Post-Divorce Parental Obligations to Emancipated Children

A recent Ontario decision discussed the circumstances under which separated or divorced parents have an obligation to a child who had been emancipated. Specifically, the court reviewed whether the father of a 17-year old daughter who had left home and obtained a legal emancipation order was responsible for financial supporting her through university.

Emancipated Daughter Seeks Child Support

The daughter had left home when she was 16, obtained a judicial declaration that she had withdrawn from the control of both of her parents, and thereafter also obtained a court order stating that neither parent had custodial or access rights over her. After she started university, she filed an order seeking child support from her father.

The father requested that the daughter’s application be summarily dismissed, arguing that he had no support obligations towards her because she had withdrawn from his parental control. He noted that the Family Law Act contains an exception to child support in such circumstances.

In response, the daughter acknowledged that she had withdrawn from parental control, but maintained that she had done so involuntarily, and that she was therefore entitled to support.

The main issue at trial was whether the daughter’s withdrawal had, in fact, been voluntary.

A History of the Parties

The daughter’s parents separated when she was two years old. The parents initially shared custody. When the daughter was about 14 years old, her mother moved to Florida. From that point, until just before the daughter’s 17^th birthday, she remained in the primary care of the father. The father was eventually granted full custody. As she got older, the daughter had several disputes with the father, primarily around education issues.

The daughter had accumulated enough credits to graduate high school a year early. However, the father insisted that she take a “victory lap” and remain in high school for one more year. Against the father’s wishes, but with the surreptitious assistance of the mother, the daughter enrolled in the engineering faculty at the University of Miami.

When the father found out about the daughter’s plans, they argued and he became verbally aggressive. The daughter stated that she feared for her safety, and left home to live with her mother’s friends, where she remained until she moved into her university residence. The daughter has not spoken to the father since she left his home.

Involuntary Withdrawal from Parental Control

Under s. 31(1) of the Family Law Act, an unmarried child under the age of 18 is presumptively entitled to child support, unless, per s. 31(2) they are 16 or older and have withdrawn from parental control. A withdrawal must be clearly voluntary in order to disentitle the child to support.

The onus (i.e. responsibility) of establishing withdrawal is on the parent claiming that their child has withdrawn from their support. Once that withdrawal is established, the onus then shifts to the child to establish that the withdrawal was involuntary.

Based on caselaw, the court noted that some of the factors that must be considered in determining whether a child has involuntarily withdrawn from parental control are:

1. The onus is on the child to establish the involuntariness of their withdrawal from parental control;
2. Were the conditions when the child was under the parent’s control unbearable or was the child evicted? (this question is considered broadly);
3. “Unbearable” is specific to a particular child, and what is unbearable for one child may not be unbearable for another. For example, an intolerable breakdown in communication between parents and child can be sufficient;
4. The control being withdrawn from must be reasonable in order for the withdrawal to be voluntary- a child’s refusal to follow reasonable parenting limits for subjective reasons will likely make the withdrawal voluntary;
5. The child’s decision must be complete and family ties must be cut;
6. The complete withdrawal must be from both parents;
7. In determining whether withdrawal is voluntary, the court can examine behaviour leading up to and following the withdrawal;
8. A relevant aspect following withdrawal is whether the parent has attempted to repair his or her relationship with the child;
9. The court must be cautious before making a finding that a child has clearly decided to voluntarily withdraw from parental control.

Here, the court ultimately found that the daughter’s withdrawal from parental control was involuntary because:

• The father’s controlling nature made his parental control unreasonable;
• The daughter’s withdrawal was necessary to meet her best interests;
• It was not the daughter’s intention to cut family bonds with both parents;
• The father has not attempted to repair his relationship with the daughter.

The court concluded that, in addition to her independence, the daughter was also entitled to child support. The father was ordered to pay $6,500 per month in temporary child support, in addition to university expenses (tuition, housing, meal plan, etc.).

Lessons Learned

In Ontario, child support is determined based on the Child Support Guidelines and is payable to the custodial parent along with any extraordinary expenses that are not covered by the guidelines. Generally, child support arrangements are straightforward when handled correctly. However, variables such as custody arrangements, undisclosed or hidden income, or claims of financial hardship, may complicate child support cases. It is important to obtain legal advice about child support early in the separation process in order to ensure you understand and protect your legal rights.

Contact Gelman & Associates to learn how our knowledgeable family lawyers can ensure the best possible support arrangement for you and your children. With six offices throughout North York, Downtown Toronto, Mississauga, Scarborough, Aurora and Barrie, we are easily accessible by transit and off-highway. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation