Declaration to Withdraw from Parental Control: G. (R.) v. G. (K.), 2017 CarswellOnt 1769

Unfortunately, this case exemplifies the irreparable harm that litigation can have on children and the strain it can cause in the relationship between a parent and a child.

Background

This appeal concerns an application by a minor for a declaration that she has withdrawn from parental control. The father of a 17-year-old girl appeals a declaration that she has withdrawn from parental control.

The Respondent daughter was born in 1999 and her parents separated when she was 18 months old. In 2013, the mother married and moved to Florida and the Respondent daughter enjoyed frequent and extended visits with her mother. However, on Mother’s Day in 2014, the Respondent daughter was planning to visit her mother for the weekend. The day before she was set to leave, her father drove her to school and they discussed the weekend trip. Later that day, while the Respondent daughter was in class, her father sent her a text message saying the weekend was cancelled. Some months later, the Applicant father advised the Respondent daughter that her late summer visit would be her last one for nearly a year. Following same, six upcoming trips were cancelled and the Respondent daughter was devastated.

The Respondent daughter went to visit her mother in the summer as planned and she decided that she wanted to stay. The Applicant father flew to Florida to convince her to return but the daughter explained that she wanted to stay. The father returned to Ontario, claimed the mother had “kidnapped” the daughter and obtained an Order for custody authorizing police enforcement. The father then returned to Florida with the Order for enforcement.

When the Applicant Father and the Respondent daughter returned to Ontario, their relationship began to deteriorate. Their relationship grew worse when the Applicant father insisted that the daughter change schools just as she was about to enter grade 11. The daughter completed a full course load and obtained a scholarship to the University of Miami. As expected, the Applicant father was furious and insisted that the daughter return to grade 12.

On April 13, 2016, matters between the daughter and her father reached a breaking point. The Applicant Father insisted that the daughter provide proof that she had confirmed her attendance at high school for the following year and an argument ensued. The daughter left her father’s home that night and stayed with a family friend. The father sent the police to get her. The daughter advised the police that she had withdrawn from parental control and the police respected her wishes.

The daughter proceeded with her plan to attend university while her father began court proceedings in Florida seeking an order requiring the University of Miami to disclose the contents of his daughter’s application file. In response the University sought proof that the daughter was an independent minor. As such, the daughter applied for a declaration that she had withdrawn from parental control.

The application for declaration was heard by Justice Kiteley who had no hesitation in making the Order. The formal order (the “Declaration”) provided as follows:

  • This Court Declares that pursuant to s. 65 of the Children’s Law Reform Act:
    • [O.G. (daughter)] has withdrawn from the parental control of her father [the appellant], and has withdrawn from the parental control of her mother [the respondent].
    • [O.G. (daughter)] is an independent minor with all of the statutory and common law rights and privileges of a minor who has withdrawn from parental control.

Three months after the Declaration was granted, the father launched a motion before Justice Kiteley seeking to set aside the Declaration and restore his sole custody of the daughter. By this time, the daughter was 17 years old.

The father argued that the Declaration should be set aside because he was entitled to be a party to, or at least to have been given notice of, the application which led to the Declaration. The father relied on section 62(3) of the Children’s Law Reform Act (CLRA) which provides that on an application under Part III in respect of a child, the parties shall include the parents.

The daughter submitted that she had an absolute right to withdraw from parental control and that her father was not entitled to be a party or to receive notice of her application.

Justice Kiteley concluded that the motion before her was a request to withdraw from parental control but rather a declaration that her right to do so had been exercised. Since the hearing was not for “custody, access or guardianship”, section 62(3) of the CLRA did not apply and the father was not entitled to be named as a party or to receive notice.

Justice Kiteley dismissed the motion to set aside the Declaration and dismissed the father’s request for custody.

The father appealed the Order of Justice Kiteley.

Analysis

The issue before the Court of Appeal was whether parents are required to be parties to the application for a declaration that a child has withdrawn form parental control.

The Respondent daughter submitted that parents are not to be parties to the application. She further submitted that she had an absolute right to withdraw from parental control and she does not need her parent’s consent to do so. The father continued to rely on section 62(3) of the CLRA to support his position that parents must be parties to the application.

Justice Benotto began by reviewing the history of the right to withdraw from parental control, the nature of declaratory relief and the procedural steps that need to be taken in these kinds of applications.

Justice Benotto did not accept the Respondent daughter’s position that because she has the unfettered right to withdraw from parental control, she has an unfettered right to the declaratory relief that she sought. Rather, Justice Benotto noted the following:

As already articulated, when declaratory relief is sought, the court should inquire into the reasons why the declaration is sought, the utility of the remedy and whether, if it is granted, it  will resolve the issue between the parties. The reasons of the application judge are clear that the Declaration was necessary to allow O.G. to attend university and resolve the dispute with her father. It is also significant that the application judge considered the extensive record and grounded her conclusions based on the best interests of O.G.

Given the above, Justice Benetto saw no reason to intervene with respect to the Declaration.

Justice Benotto concluded that this appeal demonstrated the importance on incorporating the voice of the child in all matters concerning minors. However, the degree to which the court will follow the wishes of the child depends on the age and level of maturity of the child and is subject to the judge’s discretion as he or she seeks to determine the child’s best interests.  In this case, Justice Benotto emphasized that when the child is months away from turning eighteen (18) years old, a continuation of litigation involving her is more about the parent’s needs than the child’s.

Ultimately, the appeal was dismissed with costs payable to the Respondent daughter.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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