K. Conduct

AuthorJulien D. Payne - Marilyn A. Payne
Pages114-120

Page 114

See note 504

A custodial parent’s substantial delay in seeking child support does not bar an appropriate order where there is a current need. The fact that a parent has not been pressed for support in the past must not be allowed to operate to the prejudice of the child.505In a proceeding for child support the prejudicial effect of a delay in filing an application must be subordinated to the best interests of the child. A biological father may be ordered to pay the applicable table amount of child support, notwithstanding the mother’s waiver of periodic child support some fifteen years previously and notwithstanding the stepfather’s current obligation to pay substantial child support.506It has been asserted that fault has no place in the determination of child support rights and obligations.507The obligation of a parent to support a child in accordance with the Guidelines is not abrogated by the conduct of the other parent, however morally reprehensible that conduct might be.508Child support is a right of the child and should not be eroded by parental misconduct, such as the denial of access privileges to the non-custodial parent.509Before the implementation of the Federal Child Support Guidelines on May 1, 1997, a court could reduce, suspend or terminate the payment of support as a result of the deliberate actions of the custodial parent in frustrating court-ordered access,510although it would decline to do so when it could harm the child.511It is not clear whether this judicial discretion to terminate or suspend child support payments continues to be exercisable un-

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der section 15.1(4) of the Divorce Act or whether it has been abrogated by section 3 of the Federal Child Support Guidelines.512In the past, a child’s conduct or attitude towards a parent or step-parent has sometimes been considered in determining the right to and amount of child support, particularly where the cost of post-secondary education for a mature child is involved.513It may still be relevant under section 3(2)(b) or section 7(1)(e) of the Guidelines in circumstances involving a child of or over the age of provincial majority who is pursuing post-secondary education.514Where a child and a parent no longer communicate with each other, the court is left to determine whether the relationship was terminated unilaterally by the child, in which case support may not be payable, or whether the payor parent has been significantly involved in the relationship’s deterioration. There must be clear and unequivocal actions taken by the child to exclude the parent from his or her life. As well, the termination must not have been justified by the actions of the parent.515As the Manitoba Court of Appeal observed in Rebenchuk v. Rebenchuk,516parent/child estrangement is a particularly difficult issue. "[S]elfish or ungrateful children who reject the non-custodial parent without justification should not expect to be supported through their years of higher education. But this factor rarely stands alone as the sole ground for denying support unless the situation is ‘extremely grave’ (Pepin v. Jung, [2003] O.J. No. 1779 (Ont. Sup. Ct.)" and the threshold for such a finding is high.517Justice David L. Corbett thoroughly reviewed the legislation and judicial authorities in a paper presented to a judicial conference.518He provided the following summary:

(a) Contrary to certain recent literature, there has not been "growing judicial recognition" that the quality of the relationship should have a bearing on child support.

(b) Courts have been willing to impose a few specific responsibilities on adult support recipients, and may properly do so, but not conditions that include maintaining a social relationship with a parent.

(c) The statutory basis for taking the quality of the child-parent relationship into account is dubious.

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(d) There is appellate authority permitting the court to place some weight on the parent-child relationship, but that authority is more ambiguous than trial and motions court decisions suggest.

(e) On the current state of the law, there seems to be a discretion to take this factor into account, though few courts do, and fewer have found it a significant factor in a support decision.

(f) The better view is that if conduct is ever relevant, it should only be in truly egregious cases of misconduct by a child against a parent.519Although a court may find it inappropriate to deny child support because of an estranged parent/child relationship where the evidence is not indicative of culpability or unilateral rejection of the paying parent by the adult child,520it may conclude that it is reasonable to impose a condition on the right to continuing support that the child provide the paying parent with copies of all academic reports, keep him or her informed of the costs associated with attending university and of other sources of income such as scholarships or employment, and discuss with him or her in a meaningful way educational plans before the beginning of any semester.521It has also been asserted that, while an estranged relationship between an adult child and the paying parent may not justify the immediate denial or reduction of child support, the child may ultimately be called upon to bear the consequence of persisting in the estrangement and that consequence may be cessation of child support.522This approach has been judicially questioned in circumstances of long-term estrangement on the basis that it is unfair to place such a burden on the child, when the responsibility for cementing a meaningful relationship with the child lay with both parents.523It is apparent from the case law that the quality of the parent/child relationship is rarely determinative in the absence of other factors negating the child support obligation,524 unless the circumstances are extremely grave and exceptional as, for example, where the parent was the victim of abuse and the child had other resources to fall back on.525In Fern-quist v. Garland,526the mother’s long history of parental alienation and the adult children’s present refusal to pursue even a modest relationship with their father or at least participate in counselling for the purpose of resolving real or perceived issues was a significant factor

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that was taken into account in determining that the adult children did not satisfy the definition of "children of the marriage" within the meaning of section 2(1) of the Divorce Act. This judgment can be compared with the more recent judgment of the Saskatchewan Court of Appeal in Olszewski v. Willick527 wherein support was sought for two adult children while they continued their post-secondary education. Applying the factors set out in Bradley v. Zaba528 and Farden v. Farden529 as relevant to determining whether the two daughters were eligible for support as "children of the marriage" within the meaning of section 2(1) of the Divorce Act, the trial judge made the following findings:

(i) an inter-spousal agreement indicated that both parents intended their daughters to pursue post-secondary education;

(ii) neither of the daughters carried a full credit load in any semester;

(iii) one daughter never applied for a student loan or other financial assistance and the same was probably true of the other daughter;

(iv) one daughter switched programs without advising her father;

(v) the other daughter did not inform her father of her educational plans and her attendance at university in the fall of 2006, and her academic performance was poor.

The trial judge also found that both daughters earned substantial income from part-time employment and he was not satisfied that they lacked the ability to contribute to their own support. The trial judge undertook a detailed analysis of the eighth factor in Farden v. Farden, namely, whether the adult children had unilaterally terminated their relationship with their father. He determined that the father wished to maintain a relationship with his two daughters but there was no reciprocity on their part; the only relationship that they sought with their father was a financial one. He held that the daughters were not entitled...

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