Support for Adult Children in Cases of Estrangement: The Parent as Wallet

• Author: Philip M. Epstein, Q.C., LSM and liana I. Zylberman
• Pages: 233-271

Support

for

Adult

Children

in

Cases

of

Estrangement:

The

Parent

as

Wallet

Philip

M.

Epstein, Q.C.,

LSM and

liana

I.

Zylberman"

''How

sharper than

a

serpent's tooth

it is to

have

a

thankless child"

—

William

Shakespeare,

King Lear

"Requiring

a

parent

to

support

an

adult child

is

inherently contradictory;

for

adulthood connotes independence, while

to be

supported connotes being

dependent

and to

some degree, child-like"

—

John

Coons,

Law and the

Sovereigns

of

Childhood

"A

parent

has a

right

to be

more than

a

wallet"

—

James

McLeod,

Annotation

to

Filice

v.

Lepore1

More

and

more, there appears

to be a

growing recognition that children

over

the age of

majority

should

be

held accountable

for

their conduct

to-

ward

their parents when support

is

sought

on

their

behalf.

There seems

to be a

general

consensus,

at

least

in the

case law, that once children

reach

the age of

majority

they should

no

longer have

an

entitlement

to

their

parents' wallets without having some responsibilities.

This paper examines

how the

courts have been dealing with situa-

tions

in

which adult children terminate

a

relationship with

a

parent.

We

look

at the

current state

of the law and

question whether

the

courts

are

doing enough

to

address this very

difficult

problem.

A

review

of the

Partners, Epstein Cole

LLP,

Toronto.

The

authors

wish

to

thank Michael

Zalev

for

his

excellent

research

assistance.

(1995),

16

R.F.L.

(4th)

42

(Ont.

Ct.

Gen. Div.).

233

*

1

234

PHILIP

EPSTEIN,

Q.C.,

LSM AND

ILANA

ZYLBERMAN

case

law

makes

it

clear that

this

is an

issue that continues

to

bedevil

the

courts

in

their attempt

to

strike

a

balance

of

fairness

to

both

the

child

who

needs

the

support

and the

payor

who has

been

rejected.2

Some

may

say

it is the

rare case where

the

withdrawal

from

the

relationship

is

com-

pletely unilateral.

Nevertheless,

we

note that

the

"rare case" appears

to

show

up all too

frequently,

particularly where

one

parent wages

a

cam-

paign

of

alienation against

the

other parent. Therefore,

a

close look

at

the

appropriate consequences

and

remedies

in

these circumstances

is

warranted.

While

the

courts appear

to

lean toward

the

principle that

it is un-

fair

and

unjust

to

require

a

payor parent

to

support

an

adult child

who,

without cause,

has

terminated

the

relationship,

the

courts

are

reluctant

to

terminate

or

even reduce support

on

this

basis alone.

It is our

position

that adult children

who

unilaterally terminate

a

parental relationship

without

cause,

and who are old

enough

to be

held accountable

for

their

actions, should

be

visited with

a

reduction

of

support

or

even

a

termina-

tion

of

their support entitlement

in

egregious circumstances.

Is

there

a

legal basis

for the

courts

to

make such orders?

On

what kind

of

evidence

can

or

should such orders

be

made? What obligations

or

responsibilities

should

adult children (and their custodial parents) have toward payor

parents

if

they

are

looking

to

them

for

support? What more,

if

anything,

can the

courts

be

doing

in

these types

of

situations?

Before

we

attempt

to

answer these questions,

we

must

first

take

a

look

at the

current state

of

the

law.

Since

child support

is

governed

by

statute,

we

start

the

analysis

by

looking

at the

relevant legislation.

A. THE

STATUTORY

FRAMEWORK

Section

15.1

of the

Divorce

AcP

imposes

an

obligation

on

spouses

and

for-

mer

spouses

to pay

support

for

"children

of the

marriage."

According

to

section

2 of the

Divorce

Act,

a

child over

the age of

majority

is

considered

to

be a

"child

of the

marriage"

if he or she is

under

their parent's charge

and

unable,

by

reason

of

illness, disability,

or

other cause,

to

withdraw

from

their charge

or to

obtain

the

necessaries

of

life.

A

distinction must

be

made where

there

is

alienation

between

the

payor

and the

child

because

of

improper

conduct

on

behalf

of the

payor.

In

such

cases

it is

clear

that

the

payors will

not be

relieved

of

their support

obligations

due to

their

own

misconduct.

R.S.C.

1985,

c. 3

(ad

Supp.),

as

amended.

2

3

Support

for

Adult

Children

in

Cases

of

Estrangement

235

A

plain reading

of

sections

2 and

15.1

of the

Divorce

Act

appears

to

suggest that once

it is

proven that

a

child over

the age of

majority

is un-

able

to

withdraw

from

a

parent's charge

by

reason

of

illness,

disability,

or

other cause,

or

that

the

child

is

unable

to

obtain

the

necessaries

of

life,

a

prima

facie

case

for

child support

for the

adult child

is

made out. There

is no

language

in

either

of

sections

2 or

15.1

of the

Divorce

Act

that would

indicate that

a

child's

rejection

of a

payor parent

is a

factor

that

may be

considered

in the

determination

of

whether support should

be

ordered

for

an

adult

child.4

Similarly,

subsection 31(1)

of the

Family

Law

Act5

provides that every

parent

has an

obligation

to

provide support

for his or her

unmarried

child

who is a

minor

or who is

enrolled

in a

full-time

program

of

educa-

tion. This obligation

is

qualified

only

by

section

31(2),

which provides

that

the

support

obligation does

not

extend

to a

child

who is

sixteen

years

of age or

older

who has

withdrawn

from

parental

control.

On a

plain reading

of

subsections 31(1)

and (2) of the

Family

Law

Act,

it

appears

that

if a

child

is

over

the age of

majority

and is

enrolled

in

full-time

studies

at

school,

so

long

as the

child

has not

withdrawn

from

parental

control,

a

case

is

made

out for

support. There

are no

provisions

in the

Family

Law Act

that state that

a

child's

rejection

of a

payor parent

is a

fac-

tor

to be

considered.

So,

is

there

statutory

authority

for

courts

to

consider

conduct

in the

determination

of

child support

for

adult children?

We

suggest that there

is

statutory authority

and it

lies

in

subsection 3(2)

of

each

of the

Fed-

eral

and

Ontario

Child Support

Guidelines.6

Subsection 3(2)

of

each

of the

Guidelines

provides that where

a

child

is

over

the age of

majority,

the

court

may

order

an

amount

of

child support either

in

accordance with

the

guidelines

or

if

the

court considers this approach

to be

inappropriate,

it

may

order another amount

that

it

considers appropriate having regard

to

the

condition, means,

needs,

or

other circumstances

of the

child

and

the

financial

ability

of

each parent.

The

legislative authority

in

subsection 3(2)

of the

Child Support Guide-

lines

appears

to

arise

from

the

words

"if

the

court considers this approach

to

be

inappropriate."

It is the

approach

and not the

quantum that must

be

inappropriate

for the

court

to

exercise

its

discretion

to

move away

from

4

The

case

law is

clear that

so

long

as a

child remains under

the

charge

of the

custod-

ial

parent,

the

child

is

still

a

"child

of the

marriage."

See Law v. Law

(1986),

2

R.F.L.

(3d)458(Ont.H.C.J.).

5

R.S.0.1990,

c.

F.3,

as

amended.

6

Federal

Child Support Guidelines,

SOR/97-175,

as

amended,

and

Child Support Guide-

lines

(Ontario),

O.

Reg.

391/97,

as

amended

[Guidelines].