Emancipation and Financial Obligation

This case raises the question; in what circumstances do parents have an obligation to support children who have completely withdrawn from their care? Justice Marvin Kurz was tasked with determining whether a 17-year-old girl’s father should financially support her academic pursuits at an American university after she was emancipated.

Background

The child was originally in her mother’s primary care, but was then shifted into a shared custody arrangement. When the child was approximately 14 years old, her mother moved to Florida, and the mother and father agreed on consent to the father having full custody of the child until her 18thbirthday. The child left her father’s home just before she turned 17-years-old due to a dispute that they had over the child’s plan to attend university in Florida. She then obtained a declaration that she had withdrawn from parental control under s. 65 of the Children’s Law Reform Act. No person was given custodial or access rights to the child. The father tried to appeal this decision, but it was upheld by the Court of Appeal for Ontario.

The child is now a first-year student at the University of Miami. Her tuition and living costs total approximately USD $65,000 per year. Her mother voluntarily paid for her first term fees and an additional USD $1,200 per month for other expenses. The father paid for the second term fees as a condition of an adjournment to allow his lawyer to question the child. The child sought child support from her father to cover the balance of her tuition and further living costs.

The father sought a summary judgment to dismiss the application on the basis that the child had withdrawn from parental control and was therefore disentitled to child support. The child agreed that she withdrew from parental control, but claimed she did so involuntarily. According to the daughter, her father’s controlling nature made her residence in his home unbearable. She relied on case law to support her argument that the involuntary nature of her withdrawal meant that she remains entitled to child support. The key issue before the court was whether the child had voluntarily withdrawn from parental control. This was the determining factor regarding the child’s entitlement to child support.

Analysis

In order to determine whether this withdrawal was voluntary, the court looked at the conduct of both the father and the child before she left the home. Justice Kurz examined the issue of involuntary withdrawal by analyzing the degree of the child’s emotional distress, which he believed to be essential in determining whether the withdrawal was voluntary or not.

Justice Kurz provided the following factors to be considered when determining whether a child has voluntarily withdrawn from parental control:

  1. The onus is on the child to establish the voluntariness of her withdrawal from parental control;
  2. Whether the conditions under parental control were unbearable or whether the child was evicted – factors regarding both the parent and child must be considered;
  3. The analysis must contextually determine what is unbearable to the child who has withdrawn – an intolerable breakdown in the parent-child communication may be sufficient;
  4. The reasonableness of the withdrawal – a child’s refusal to follow parenting limits for purely subjective reasons will likely make the withdrawal voluntary;
  5. The child’s decision must be complete;
  6. The complete withdrawal must be from both parents;
  7. In determining whether the withdrawal was voluntary the court can look at both the child and parent’s conduct;
  8. A relevant aspect of behaviour after the withdrawal is whether the parent has attempted to repair his relationship with the child; and,
  9. Despite the onus being on the child, the court must be cautious before finding on the facts that a child has decided the voluntarily withdraw from reasonable parental control.

After analyzing the facts on this summary judgment, Kurz J. found that the child’s withdrawal from parental control was involuntary due to the father’s controlling nature which made the parenting relationship unbearable; the child’s withdrawal was necessary to meet her best interests. The judge further found that it was not the child’s intention to cut the family bonds from both parents and the father has not attempted to repair his relationship with the child.

Justice Kurz dismissed the father’s motion for summary judgment. Due to the lack of information about the father’s income and for the purposes of a support order, Kurz J. imputed the father’s income to $2.5 million per year based on the information available. He ordered the father to pay temporary child support in the amount of $6,500 per month in addition to tuition, housing and meal plan fees. Ultimately, the child was found to be entitled to both her independence and to child support.

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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