Thomas Dart, Partner, Family Law.

There are, sadly, similarities between the NHL lockout and warring spouses. Here are a few:

  1. Both argue over their just share of total “family” income,
  2. Both want to have final say and therefore power over the other;
  3. Both detest the other side – even mediation won’t assist them in overcoming their animosity toward each other;
  4. Both are trying to win over ‘public opinion’ – for divorcing spouses this often means getting their family and friends on ‘their side’;
  5. Both are willing to risk permanently harming their own future by going to court to resolve their dispute;
  6. Both are ignoring their  fans/children and the harm they are doing to their “parental” relationship; and
  7. The fans/children have no say in the conflict. 

In his introduction to “The Handbook of Conflict Resolution, 2nd ed.[1]  one of the co-editors, Martin Deutsch, describes such a conflict  as follows:

“[A professional couple was]  involved in bitter conflicts over issues they considered nonnegotiable. The destructiveness of their way of dealing with their conflicts was reflected in their tendency to escalate disputes about almost any specific issue (for example, a household chore, the child’s bedtime) into a power struggle in which each spouse felt that his or her self-esteem or core identity was at stake. The destructive process resulted in (as well as from) justified mutual suspicion; correctly perceived mutual hostility; a win lose orientation to their conflicts; a tendency to act so as to lead the other to respond in a way that would confirm one’s worst suspicion; inability to understand and empathize with the other’s needs and vulnerabilities; and reluctance – based on stubborn pride, nursed grudges, and fear of humiliation – to initiate or respond to a positive, generous action so as to break out of the escalating vicious cycle in which they were trapped.”

As Deutsch points out, only when each was able to listen to and fully understand the other’s feelings and how their respective life experiences had led them to those views were they really able to begin productive discussion. Fully understanding the other’s position made each person feel less hurt and humiliated and both became readier to seek solutions that would recognize mutual interests. They had to be ready to “stand in the other person’s shoes”.  Only then were they able to accept that all issues were ‘negotiable’.

In the competitive “macho” world of hockey, it is very difficult (impossible?) to accept that all issues are negotiable. If the two sides were able to work collaboratively, they most likely could increase the available revenue stream so that they could both win. There is no doubt that they have the talent to do so. So far, they appear to be trapped in that vicious cycle described by Mr. Deutsch.

Fortunately, warring couples do not have to keep warring. If they are willing not only to seek help but actively participate in resolving their issues, constructive resolution is possible, without court.  As the NHL has proven, even skilled mediators can’t assist if one side or the other is unwilling to accept that all issues are negotiable. If that stance is rigid, only the court can make the decision. But, as our experience in family law proves, the conflict won’t end with the court  decision.  Court decisions only provide a temporary resolution. As relationships by their very nature must continue, conflict will undoubtedly arise again.  Once it does, it will blaze into another court battle.  When you ‘beat somebody down’, nobody “wins”.

On the good side, it’s Christmas time which, for hockey fans, means the World Junior Championships – where we get to watch very skilled young, idealistic players who play for the love of the game and country.  One thing that the current NHL conflict is teaching us is that we can live without it. We will always have youngsters playing minor hockey at all levels.  If you have never seen a six year old play house league hockey, you don’t know what you have missed!  The joy that spurts out from them when their game is over – win or lose – is right from the heart!   We know that hockey will always be part of Canada and I don’t really care if it carries the NHL brand anymore.  In fact, it’s better  if it doesn’t  !!

So thanks NHL and NHLPA – you have made us focus on the right stuff – the loving spirit of Christmas and Canadian hockey , in that order !!

Happy Holidays to all !!!

 

[1] John Wiley & Sons Inc. 2006, Introduction, pp. 1-2.

Catherine Hyde – Paralegal, Family Law ClerkDoc1.jpg

This picture brings an immediate smile to my face.  It is clear that both mother and daughter are enjoying the moment.  No fancy games or resorts just a moment together.  Spending time with your children is the best present you can give to your children.  The day may include the full range of emotions from laughter to tears but hopefully it is the good times that will be remembered most.

It’s mid-December so by now hopefully you and your spouse have worked out all of the details relating to this Christmas holiday season so that each of you know what time you will be spending with the children.   Below are some points to help you through the holidays:

  • Speak well of your spouse.  Do not pressure your children to favour you
  • Although you may have had certain traditions during your marriage at Christmas time you can pick and choose which of those you now wish to follow and what new traditions you want to make.  Ask your children to contribute ideas and find out which traditions meant the most to them
  • Discuss with your children what their expectations should be at Christmas time.  You can outline to them what the budget might be for gifts for them and for others so that they are realistic in their expectations
  • Have your children donate to charities (i.e. donating toys in good condition) or help out organizations who help the less fortunate. This allows them to appreciate what they have and learn the joy of helping others.
  • Ensure you spend some time outdoors whether it is a walk in the park or tobogganing or skating– don’t forget the hot chocolate for afterwards! 
  • Play board games/electronic games or other activities together inside. Spend some time in the kitchen preparing together family meals or treats.
  • Plan to visit with friends and family but try not to overschedule the children.  They mainly want to spend time with you. Also let your extended family know what your plan is.

Remember that most often people are disappointed because they expected something different than what actually happened. Keep your expectations realistic and it is likely that you and your children will have a better Christmas as a result.

Children have the ability to see the joy in the simplest things. Be a child yourself! Have fun and enjoy the season!

Lori L. Aylwin – Associate, Family Law.

When a separation occurs and there is a Family Business, the separation can have a significant impact on the health and ultimate future of that business.  Often a non-owner spouse may have misconceptions about the value of a business, particularly where the business does not have significant hard assets such as a law practice, a consulting business, or a private medical practice.  Finding the value can be a difficult, controversial, and expensive issue.  On separation focus often shifts from day to day management of the business to determining value of the business, forensic analysis regarding the validity of expenses that the family has historically run through the business, and determining what actual income can be derived from the business.  This shift in focus can have a negative impact on business operations, and can cause additional economic stress on separation.  In order to avoid common problems that arise on separation, and to protect a business, the following are some precautions that may be taken:

  1. Marriage Contracts:  are the single most effective tool to reduce or avoid the negative impact of a divorce on the business.  Having an agreement signed by the business owner and his or her non-owner spouse is the best protection against future problems should the couple separate.  The Marriage Contract should contain a waiver by the non-owner spouse of the owner spouse’s interest in the business, whether it is owned prior to marriage, or whether it is anticipated that one spouse will take over the family business in the future.  You want to ensure that the waiver also includes a specific waiver of any increase in value of the business in the future.  When negotiating the Marriage Contract the business owner must provide full financial disclosure to the non-owner spouse regarding the business’ present value and its future value if known and each party must also have independent legal advice.  Full financial disclosure and independent legal advice for both parties assists in protecting the agreement from attack if there is a separation. 
  2. Succession Planning:  If you are looking at transferring a family business to a child or another family member, or if you are likely to receive a share in a family business during marriage, agreements should be in place between spouses before a transfer occurs.  It is wise to consider making a transfer of the ownership interest contingent on the signing of an acknowledge by the non-owner spouse stating that that the transfer of the ownership interest is a gift or inheritance which shall be excluded from the family’s net family property in the event of a separation.  Further, you will want a waiver by the non-owner spouse of any future claim for an increase in value on that interest over the course of the marriage.  The non-owner spouse must have independent legal advice when the acknowledgement and waiver are signed. 
  3. Business Valuations:  If you do not have a Marriage Contract or a Waiver obtained on transfer of a business interest during marriage, be prepared to have your business valued on separation.  Engage someone early in the process to determine the business’ value.  If possible, agree on a jointly retained valuator to avoid conflicting expert reports on the value of business.  The expert retained should be a certified business valuator and should have experience in dealing with the valuation of businesses for the purpose of division of matrimonial property.  In order to assist in the valuation, you will be required to provide the valuator with detailed information regarding the company including financial records.  If you have a bookkeeper for the company, they would likely be the best person to assist the valuator and  provide necessary information and records. 
  4. Management and Communication: Separation can be highly stressful; focusing on your business may be difficult.  Angry spouses can come into the business and cause significant disruption.  Upon separation, give your staff as much information as possible (and that you are comfortable sharing) regarding your separation.  It is best to take proactive steps rather than reactive steps in order to keep your business running.  Advise staff if there is significant conflict between yourself and your spouse and make a plan regarding how to deal with the non-owner spouse coming onto your premises.  If possible, abdicate some of your responsibilities to other owners or a manger while you weather the storm.  

By Douglas J. Manning, Partner, Certified Specialist in Family Law

A divorce ends a marriage but when children are involved parents still have to remain in communication with each other.  You can divorce your spouse, but you can’t be divorced from your kids’ other parent.

However, the reality is that often the last person you want to speak with may be your former spouse and you especially don’t want to speak with him/her when you know it is going to be an argument over such things as making sure the kids’ sports equipment comes home or who is picking the children up from school to get them to their dance lessons or can we exchange weekends with the kids because one of you has a conflicting obligation.  I am sure you get the picture – life’s vagaries create opportunities for conflict and debate.  No matter how hard you tried to put in writing every possible contingency for which parent was going to do what and when and how to resolve stalemates (in your Separation Agreement/Parenting Plan/Minutes of Settlement), there are still going to be times when events occur that could not have been contemplated at the time you were crafting your parenting manifesto. 

It is my impression (as a family law lawyer in Ontario for 30 years) that there is an increasing frequency of joint custody arrangements being put in place.  This means that there is more need for communication and cooperation which means more opportunities for communication, or should I say, miscommunication, with your former partner/parent of your child/ren.  However, the last thing you want to do is to play out the argument, with the usually attendant raised voices and reminders of past transgressions, in front of the children.  Well, there are high-tech solutions – sort of joint custody at a distance.

The use of electronic media can serve to keep the other parent at a “psychological distance” as opposed to being right there “in your face” debating the finer points of how many changes of socks the children should have in their overnight bag.  The electronic medium/media can provide something of a filter for your emotions and lower the likelihood that you will react to the emotional “buttons” that you know your former spouse can push if given the opportunity – even if it is just the sound of their voice that creates an emotional trigger.  The 2 dimensional written email/text etc. may be a partial answer for this.

Some of my clients have commented that Email/texts has taken away the emotional pitfalls and points of possible irritation that often accompanies joint custodial arrangements.

One resource that a number of my clients have tried and found beneficial is “Our Family Wizard”.  This software enables both parents to sign up and use it for a number of purposes.  It has a calendaring feature that allows both parents to put the normal parenting schedule on the calendar and then include special requests and allows for them to look for overlapping commitments and conflicts.  The program also provides a communication feature that creates a history of the messages back and forth, much like a diary or communications book.  Before typing that angry, nonproductive message, the creator is aware that the history of communications is kept for posterity and may be used in court documents at a later time if things go completely off the rails.

I invite you to take a tour of the program at  http://www.ourfamilywizard.com/ofw/

Catherine Hyde- Paralegal

hands.jpg

Our group blog is entitled “Matrimonial Matters”.  It consists of articles that provide helpful hints on separation and divorce.  What if we read the title in a different way – what if instead we look at “marriage matters” and using the term marriage loosely to include common law relationships.  Therefore, relationships with our spouses matter.  It is important to look at not only what to do when the relationship breaks down but what makes successful relationships or what can you do to improve your relationship.

I was watching an episode of Cityline on CityTV recently regarding relationships.  One segment involved three couples of various ages where the woman wrote down her top 5 things she needed in the relationship for romance.  The men then had to guess what those were.  The men did fairly well getting 2 or 3 out of 5.  When it was first suggested that you write down your top 5 things I was thinking what kind of monumental things might that be but in fact the items these women had on their lists were simple – housework, making dinner, gifts/flowers, walks together, dancing, attentiveness.  They did not all have the same top 5 but they were all simple, doable things.  The gist of this is that if you know what your spouse’s top 5 items are, then you can deliver those and your relationship will be better for it.  More importantly, it emphasized having a discussion with one another so that your spouse knows what your top 5 are. I know, as women we tend to think that the men should just know what we want, but, as is often said, men and women are not wired the same way. Providing the list ensures they know.  Remember the men are going to provide a list as well.  Relationships are two sided. All of the items on the lists can be done whether you are just beginning life together, in those busy years with children, or are empty nesters.  It just means that you have taken time to acknowledge each other and what you need – that your relationship is still important.

In any relationship, there are going to be hills and valleys. It is how you handle the bad times as well as the good times that will bring you closer together.  Those years with young children or trying teenagers have their moments when between work and home both parties are totally stressed. Maintaining your relationship can be just one more item on the “to do” list.  Perhaps money is tight and you argue about what you are spending it on. You might be empty nesters and thinking that it is time for you now but suddenly you appear to be on different paths. Perhaps in addition to children you are looking after your parents which stretch you to the max.  One party may be suffering setbacks at work.  These are the valleys.  Climb the hill and see if you can get back to the top. Part of doing that is ensuring you talk with your spouse.  Discuss what you are feeling.  Your partner may not be aware at all but just muddling through the day to day stuff and thinking you are doing the same.  Remember the top 5 list and ask yourself whether you have been putting in the effort or merely showing up, going through the motions.  Too often people decide to break up at the first sign of turmoil.  It is important to have the dialogue and work through your difficulties.  If you really cannot come to a resolution then yes it is time to move on but first try to see if you can get back to the top of the hill. Communication in any relationship is key.  Try it – make your top 5 list and exchange it with your partner.  Don’t expect perfection  –  be happy with the effort –your partner is trying.  Find some older couple you admire and ask them their secret.  Above all, enjoy the journey!

Barrie Hayes, Partner

The differing approaches to the calculation of spousal support under the spousal support advisory guidelines.

The spousal support advisory guidelines contain formulaic calculations to assist in the calculation of both quantum (amount) and duration of spousal support.

The guidelines contain markedly different formulaic calculations when addressing spousal support calculation where there are no dependent children and spousal support calculation where there are dependent children. Both formulaic calculations however use income sharing as the method for determining the amount of spousal support. Both formulaic calculation produce ranges for the amount and duration of support.

The ‘without child’ support formulaic calculation focuses on two factors the gross income difference between the spouses and the length of time the parties were married. The amount of spousal support ranges from 1.5 to 2 percent of the difference between the spouses gross incomes for each year of marriage/cohabitation up to a maximum of 50%. The calculation in addressing the amount of support reflects the principle that as a marriage grows longer spouses increasingly intertwine their economic and non-economic lives. The gross income difference is seen as indicator of the differential loss of the marital standard of living upon separation.

The ‘without child’ support formulaic calculation calculates the duration, or length of support entitlement, on the basis of ranges from .5 to 1 year for each year of marriage. Duration of support becomes indefinite, or without any recommended termination or review date, when the marriages 20 years or longer induration or if the marriages lasted five years or longer, when the years of marriage and the age of the support for separate recipient and separation added together total 65 or more.

I will address the ‘with children’ spousal support formulaic calculation in my next blog article.

Thomas Dart, Partner, Family Law.

Lawyers who are also mediators are almost schizophrenic. As advocates, they have to pretend that they are, in effect, at war with the other side, a war which must be conducted with “civility”, but war nonetheless. As mediators, they have to find peace.  So should family law be conducted as a ‘war’ or as a ‘peace keeping project’?  Unfortunately, there is no easy answer to that question as, very often, the answer depends on the personality and goals of the client.

In the ‘war game’, the lawyer must be the adversary who is charged with the responsibility of protecting his client’s interests and obtaining the best possible result.  The rules of the game are contained in regulations called The Family Law Rules, (no you are not allowed to kill your former spouse!), which must be learned and strategically applied to attain the best possible result for your client.  It is very much an adversarial contest, a sometimes very bitter contest because the lawyer is called upon to use every tactic in the rule book to his or her client’s advantage.  Clients who totally mistrust each other, are unwilling to play by the rules, who disrespect the law, who will do anything to hurt the other side love the adversarial game because they believe that they will somehow come out a ‘winner’ of the war game. Finally, they will receive what they perceive to be justice when the judge makes a decision, after an expensive trial, favouring them. Seldom, however, does the end result in satisfaction for either party. 

In the ‘war game’, Judges have to act only on ‘evidence’ about which there is fairly strict rules.  In the war game, the vigilant lawyer can prevent harmful evidence going in unless it complies with the Rules of Evidence. For example, you may well know that your spouse has hidden income, but if you don’t have evidence to prove it, you will probably lose that part of the war.  So in the war game, you have to spend lots of time and money trying to prove facts which both sides may well know are true. Nobody has to admit facts and, very often, people have very different perceptions about facts – we all know that two people can witness the same event and come away with two opposite versions of what really happened.

In the ‘war game’ the biggest losers are the children. In an adversarial system, harmful attacks are made by each parent against the other. Justice Harvey Brownstone’s book (http://www.amazon.ca/Tug-War-Verdict-Separation-Realities/dp/1550228706)  is a must read for those who want to play the ‘war game’.

Sadly, the common approach to family law generated by an adversarial system promotes the war game and destroys families emotionally, financially and spiritually. Equally sadly, it is a necessary evil for those who get filled with hatred (or often terror) when the separation takes place.  I would like to think that we can restrict the adversarial system to the ‘criminal element’ in the family law world – that is those who want to evade their responsibilities, those who want to steal from the other spouse, those who don’t care about harming their children – can we leave that system to them? Only a judge can hold them accountable because they don’t want to (or can’t) hold themselves accountable for the breakdown of their relationship and the decisions which must be made to move forward after separation.

For those good people who get caught up in the terrible tragedy of family breakdown and who do understand and have the maturity to accept the fact that they are accountable, the peace keeping method is far superior.  A good mediator, combined with good therapists, can assist people in understanding the law and the impact of the family breakdown on all members of the family. In a peaceful, although emotionally trying, manner, a divorcing couple can learn how not to be warring enemies of one another.  By focusing on what brings peace to the family so it can move forward with hope, a good mediator will ensure that both spouses have a clear knowledge of their legal rights and obligations, all information necessary to make an informed decision, that they are properly represented by legal counsel of their own when they reach an agreement in mediation, that their financial resources are distributed fairly and in proportion to their responsibilities and can assist them in finalizing with their lawyers a final agreement dealing with all matters arising as a result of their tragic breakup.  A good mediator will also be aware of all of the other the resources in your community which can assist you in learning how to parent your children following separation, how to manage your finances properly, how to deal with each other constructively, no matter how bitter you might be toward each other at first. 

Most importantly, a good mediator will try to understand each of your respective goals regarding the separation and will use that information to assist you in attaining an agreement which comes as close as possible to attaining those goals for each of you. Often your goals will not appear to mesh at all with your spouse’s goals but a good mediator can explore those areas in a skillful manner which may show both of you that there may well be common ground where you think there is none. A good mediator has the responsibility of trying to establish a win-win for both of you.  This is not always easy and may take some time and a lot of work – a mediator’s understanding and grasp of the underlying causes of fears or anxiety which are preventing agreement is often the first step toward reaching an agreement which both parties can acknowledge as a ‘good agreement’.

A mediator can’t take sides or give legal advice. A good mediator provides  information, acts as a coach for both parties during the negotiations, keeps everyone on track and lets both sides have equal input, knows when to call a break, knows when to let you handle things on your own and provides careful governance of the negotiations. When an agreement is reached, the mediator records the basics of the agreement in a written report to the parties which they can then take to their respective lawyers for finalizing by way of a comprehensive legal document called a “separation agreement”.  A good mediator can help with wording but cannot actually draft the separation agreement for you because drafting the agreement requires legal skill and you must have independent legal advice before you sign.

A good mediator will have ‘credentials’.  Right now, in Canada, there is no regulation of mediation services. Anyone can hang out a shingle and call themselves a ‘mediator’. But a good mediator is trained and will be certified or accredited by Family Mediation Canada, (www.fmc.ca) or by the ADR Institute (http://www.adrontario.ca/) or by the Ontario Association for Family Mediation (https://oafm.on.ca/). You can look up the name of a good mediator near you on these web sites.

So if you are caught up in the tragedy of a family breakdown, which path do you want to  follow – war or peace? The choice is really up to the two of you. As for me, I want to be nothing but a mediator – I don’t like my current schizophrenic personality J !!

By Douglas J. Manning, Partner, Certified Specialist in Family Law

rings

In my 30 years of practicing law I have never been asked by a client  “So, what should I do with my wedding ring now that my marriage is over?” or “When is it appropriate to stop wearing my wedding ring?”.   I have been waiting to be asked this, but it hasn’t happened yet.

Many clients do say to me that, from a psychological or emotional perspective, they want to “break all the ties” to their spouse so anything that can be done to get them their divorce sooner than later would be appreciated.  They feel that by cutting this legal connection that they will also be cutting the emotional connection.  Fair enough;  but I have never asked them what they did with their wedding and engagement rings once they realized their marriage was over.

A recent article in the BBC News magazine gave some examples of what some people did with their wedding rings.   One person wrote that the couple had had their picture taken on their wedding day standing on pier overlooking the ocean with their hands proudly displaying their wedding rings.  The couple divorced 10 years later and they decided to go back to the pier and to throw each other’s rings into the ocean as a symbol of the end of the marriage.  This seems like a fitting gesture that had meaning and symbolism for this couple.  I also note that they were able to agree on what they would both do with the rings.

Another writer stated that she and her spouse gave their rings back to each other immediately upon separation.  They believed that they had bought each other the rings and so it should go back to the giver.

Another contributor indicated that she was so mad at her ex-spouse that she took the ring off one day and hurled it into a garbage bin – she savoured the “ping” sound that it made as it landed in the trash.

It is clear to me that there is no “right” way to handle the keeping of, or return of, your wedding ring.  However, the optimum solution is probably one that helps the healing process along.

Christine Ashbourne, Associate

It will likely come as no surprise to some readers to learn that Canadian “Baby Boomers” — many of whom have already reached the threshold of “senior citizen” — are going to encounter a difficult financial road in the coming decades. This unwelcome forecast seems to be the result of a perfect storm of factors, many of which only recently came to light. For instance, in the federal budget that was delivered on March 29, 2012, Finance Minister Jim Flaherty announced that beginning on April 1, 2023, the age for eligibility for Old Age Security pensions would be gradually increased from 65 to 67. Other recent developments that might threaten the Boomers’ continued financial independence include the steady rise in the number of “grey divorces” as well as the likelihood that many Canadians might manage to outlive their retirement savings.

In the event that a Baby Boomer or other senior citizen is left without sufficient financial means to ensure his or her day-to-day needs, who should cover the shortfall? While many might be quick to respond that such a task should fall to one level or other of the Canadian government, financial support for impoverished or cash-strapped seniors may increasingly come out of the pockets of their children. That’s right — just as there is a legal responsibility for parents to provide financial support for their children, so too does there exist an obligation on the part of adult children to maintain their financially deficient parents.

The obligation to support one’s parents (also known as “filial support”) is enshrined in the family law legislation of all of the Canadian provinces save for Alberta, which repealed that section from its Family Law Act, S.A. 2003, c. F-4.5, in 2005. In Ontario, the filial support obligation is currently set out in s. 32 of the Family Law Act, R.S.O. 1990, c. F.3.:

“Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.”

Now, before you decide to stop answering your front door out of fear that your parents might show up at any moment with their arms outstretched and their hands open, take note of the qualifications outlined in the above provision.  An application by a parent under s. 32 of the Ontario Family Law Act will likely only be successful where the following three questions are answered in the affirmative:

  1. Has the parent who is seeking the support demonstrated financial need?
  2. Did the parent provide past care or support to the child who is now the target of the potential support order?
  3. Does the prospective payor child have the ability to pay support?

To date, very few s. 32 applications have been adjudicated in Ontario; indeed, in the 1993 decision of Dunn J. in Godwin v. Bolcso (1993), 45 R.F.L. (3d) 310 (Ont. C.J. (Prov. Div.)), aff’d (1995), 16 R.F.L. (4th) 419 (Ont. C.A.), it was observed at para. 1 that s. 32 had at that time “generated less than a dozen reported and unreported cases”. While the jurisprudence on this subject may still be scant, as noted above, the rocky financial climate that awaits the aging Boomers may mean that claims for filial support will eventually become more commonplace.

Assuming that a Boomer or other aged parent is able to establish entitlement to filial support, another new and competing demographic phenomenon may work to undermine the parent’s claim: that is, the so-called “boomerang effect”. In brief, the “boomerang effect” refers to the fact that many young adults are currently unable to find work following the completion of their post-secondary studies and so, they are returning en masse to live in their parents’ homes. As a result of their delayed entry into financial independence, the ability of these young people to pay filial support may be permanently compromised, or at least temporarily stunted. It will be interesting to see whether in the coming years there is in fact a surge in filial support claims and if so, whether the Boomers are able to collect.

For anyone who is interested in doing any further reading on this subject, I relied on and consulted the following sources in composing this blog entry:

Jodi Armstrong, Associate

Generally speaking, every parent has an obligation to provide support for his or her unmarried child who is under the age of 18.  There is, however, an exception for children aged 16 or 17 who have withdrawn from parental control.

A frequently referenced case with respect to the concept of the “withdrawal from parental control” is Haskell v. Letourneau.  It confirms that the concept means a voluntary withdrawal or the free choice of the child to:

 “cut the family bonds and strike out on a life of his own.  On taking on this personal freedom the child assumes the responsibility of maintaining or supporting himself.  It is his choice, freely made, to cut himself away from the family unit. Once this choice is freely made and the responsibility accepted by the child, the family unit has, in effect, been severed and the responsibility of the parents to support the child thus ceases.”

In other words, if the child was “kicked out” by the parents or if living conditions within the parents’ home were intolerable so the child was, essentially, forced to leave by circumstance, the withdrawal from parental control was not voluntary.  In that situation, the parents continue to have an obligation to financially support the minor child.

It should be noted that the onus is on the parents to prove that the child has voluntarily withdrawn from parental control and that it is a difficult onus to satisfy.  In another case called  Dolabaille v. Carrington, the judge stated that the defence is available “in the limited class of case in which a young person between the ages of 16 and 18 freely and voluntarily chooses the personal liberty and independence of a life of his own, over one fettered by reasonable parental control”.

In addition to establishing that the withdrawal was voluntary, it is also necessary to establish that the child has withdrawn from the control of both parents.  If a child decides to cut off ties with one of his parents, but remains financially dependent and within the control of the other parent, the obligation to pay child support apparently continues.  There is case law that suggests it makes no difference whether the child’s decision to cut ties is reasonable or unreasonable as long as he has not withdrawn from the control of one parent. 

Essentially, although extremely rare, it is possible for a rebellious teenager to forfeit his entitlement to support.  These matters are always difficult, for everyone involved.  Whether the obligation to pay support terminates will always turn on the particular facts of each individual case.