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Following up on my recent blog on child support obligations in Ontario, I thought I’d discuss an obvious limitation on those obligations: the exception in section 31(2) of the Family Law Act that says that a parent’s obligation to pay child support “does not extend to a child who is sixteen years of age or older and has withdrawn from parental control”.
So what exactly does it mean for a child to withdraw from parental control? The legislation is silent, so it’s up to the courts to interpret that section. Here are some of the principles which courts have previously come up with to decide cases…
- Whether a child has “withdrawn from parental control” is a question of fact. Parental control is a concept, the interpretation of which depends upon an assessment of all relevant circumstances, including the age and maturity of the child.
- Section 31(1) of the Act has been given a narrow interpretation and applies only to those cases where the child has voluntarily and of his or her own free will removed herself or himself from a circumstance which cannot be classed as unreasonable. Where the child is forced out by unreasonable rules, restrictions or relationships within the family unit, s. 31(1) will not apply and support may be awarded. Where, however, the child is living away from home at university and is not subject to any parental control, it may be that she or he falls within the scope of the provision. If one or both of the parents purposefully terminates support obligations, thereby requiring the child out of necessity to live independently or obtain financial assistance from a third party, then the child could nevertheless be deemed to be dependent and child support may be ordered.
- Notwithstanding that a child may no longer be under the parental control of one parent, that parent will still be obliged to provide child support if the child is under the parental control of the other parent.
- The courts have generally terminated child support in cases where the child has established an independent life, residence, and source of income.
- Once the parent has established that the child has withdrawn from parental control, the onus then shifts to the child to prove that the departure occurred involuntarily by reason, for example, of eviction or a living situation with the parent that is viewed as unbearable or impossible.
The following Ontario cases illustrate how some courts have interpreted the defence of withdrawal from parental control under s. 31(2) of the Act:
In Fitzpatrick v. Karlein, (1994) 5 R.F.L. (4th) 290, a child brought a motion for interim financial support from her mother. For most of her life, the child was in her mother’s exclusive custody. Since her mother’s remarriage, the child had felt unloved in the cold and rejecting atmosphere created by her mother and stepfather, where she was criticized, taunted, and felt cut off from the other members of the family. With emotional support from her father and maternal grandparents, the child, at age 17, left her mother’s home to reside with the parents of a friend. The Ontario Court of Justice (Provincial Division) rejected the child’s motion for support on the basis that the child had voluntarily withdrawn from parental control. In reaching that conclusion, Nasmith Prov. J. wrote:
20 While I have sympathy for Carolyn [the child] and I understand her preference for living with the Bowens, she has not demonstrated that the living situation with her mother and Mr. Karlein was unbearable or impossible. She has shown that she was unhappy there; that she felt unloved; that she was feeling cut off from other members of the family. Her choice to move out made good sense to her. But it was a relatively free choice as it has been presented. Carolyn has not satisfied me that her withdrawal from her mother’s control was involuntary.
21 Accordingly, the defence under subs. 31(2) of the Family Law Act is available to the mother and she cannot be ordered to contribute to her daughter’s support.
In Bertram v. Bertram, a child brought an application for support from her parents when she was 17 years old and living on student welfare in her own apartment and attending high school as a full-time student. Nasmith Prov. J. dismissed the application on the basis that the child had withdrawn from parental control. The evidence revealed that the child had experienced some difficulties with her mother (with whom she was previously residing) which led her to choose to live on her own. The situation was far from unbearable and the choice was a relatively free one. As such, s. 31(2) applied to block court-ordered support from her parents. Worth mentioning is that Nasmith Prov. J. emphasized the voluntary nature of the withdrawal as a requirement to the s. 31(2) defence:
7 …The case law confirms that the defence of withdrawal under section 31 is not available to a parent unless the withdrawal from parental control has been voluntary on the child’s part. If the child has been forced out of the home or has left because conditions are seen as intolerable, the withdrawal will be viewed as involuntary and the defence will fail.
8 In Haskell v. Letourneau (1979), 25 O.R. (2d) 139, 100 D.L.R. (3d) 329, 1 F.L.R.A.C. 306 (Ont. Co. Ct.), for example, County Court Judge Clements stated at page 151 [O.R.]:
If the child is driven from parental control by the emotional or physical abuse in the home … the choice of leaving was not voluntary…
9 The need for a withdrawal that is voluntary was confirmed by Provincial Judge Weisman in Dolabaille v. Carrington (1981), 32 O.R. (2d) 442, 21 R.F.L. (2d) 207 (Ont. Prov. Ct., Fam. Div.); by Provincial Judge Thomson in Distefano v. Haroutunian and Haroutunian (1984), 41 R.F.L. (2d) 201 (Ont. Prov. Ct., Fam. Div.); by Provincial Judge King in Zedner v. Zedner and Jackson (1989) 22 R.F.L. (3d) 207; by Justice Fitzgerald in Figueiredo v. Figueiredo (1991), 33 R.F.L. (3d) 72 (Ont. Gen. Div.); and by Provincial Judge Pedlar in Lyttle v. Lyttle (1992), 41 R.F.L. (3d) 422 (Ont. Prov. Div.). To be disentitled to support by reason of withdrawal from parental control, the withdrawal must be viewed as voluntary.
In Giess v. Upper, a mother applied for child support for her then 19 year old daughter. The Ontario Court of Justice – General Division found that the child was enrolled in a full time program of education; as such, the father had an obligation to provide child support – subject to whether the child had withdrawn from parental control. Mendes da Costa J. held that, while the child had withdrawn from the parental control of her father, she had not withdrawn from the parental control of her mother; as such, her father was still obliged to pay child support. Mendes da Costa J.’s reasoning is worth mentioning here:
30 Whether Elizabeth [i.e. the child] has “withdrawn from parental control”, within the meaning of the legislation, raises a question of fact. Parental control is a concept, the interpretation of which depends upon an assessment of all relevant circumstances, including the age and maturity of the child.
31 I find that Elizabeth remains under the parental control of her mother, but that she is no longer under the parental control of her father.
32 I have sketched the little evidence that was adduced surrounding Elizabeth’s departure from her father’s home. The evidence is meagre. On the present state of the evidence, I find that the parent/child relationship between Elizabeth and her father was terminated by Elizabeth, without, so far as I can tell, any good reason: at least, and perhaps I should put the matter this way, no evidence of good reason was adduced before me.
33 Section 31(2) provides, in part, that the support obligation does not extend to a child who has “withdrawn from parental control”. The legislation contemplates that child support issues may arise where parents have separated, and where a child resides with only one parent. The Act does not require, for the support obligation to exist, that the child must continue to be under the parental control of both parents. To construe the legislation in this fashion would require reading into the section words that are not there, and would, I believe, frustrate, in a substantial manner, the objectives and spirit of the Act.
34 On this reasoning, I find that Elizabeth has not “withdrawn from parental control” within the meaning of section 31(2).
In Bunnell v. Bunnell,  W.D.F.L. 2213, the mother of a 19 year old child (who was attending community college away from his parents) sought to terminate child support payments on the basis that there was a complete breakdown of the mother/child relationship. The Ontario General Division disagreed and found that the child had not withdrawn from parental control despite their lack of contact and the fact that the child lived with his father during only part of the year. Perkins J. commented that no authority had been cited by the mother to support the proposition that withdrawal from the mother’s authority alone constituted withdrawal from parental control within the meaning of s. 31(2) of the Act. Perkins J. held that, since the child had not withdrawn from his father’s control, s. 31(2) of the Act did not preclude the mother from paying child support.
In Power v. Power, 1997 CarswellOnt 4492, an application was brought by the mother for child support from the father. By the time the application was heard, the daughter lived with neither of her parents, was employed, and received no financial support from either of them. Ferguson J. found that the daughter had “withdrawn at least temporarily from parental control and is not entitled to support. She may be entitled to support in the future if she returns to live with either parent or attends school.”
In Simpson v. Hart, 1998 CarswellOnt 5163, the father of a 21 year old daughter brought an application to terminate child support. The 21 year old daughter had a daughter of her own, had been receiving a full Mother’s Allowance, and had continued to live in her mother’s home (which had been renovated into two apartments and she receives $500 per month as a rent allowance in addition to the balance of the government stipend). The Ontario Court of Justice – General Division found that the daughter had been “living independently from her mother including, more recently, in totally separate accommodation in the mother’s house and for which the mother receives $500 a month rent.” Dunbar J. held that, given the financial and physical independence of the daughter from her mother, it was not appropriate for support to be continued to be paid by the father to the mother on the daughter’s behalf.
In Belanger v. Belanger,  W.D.F.L. 3583, the grandparents of two children (both over the age of 16 and residing with them) brought an application for the father to pay child support. The Ontario Superior Court of Justice disagreed and dismissed the application on the basis that the children had withdrawn from parental control voluntarily. Cavarzan J. held that there was “no evidence of physical or psychological abuse which would make [the children] withdraw from parental control involuntarily”. Rather, Cavarzan J. wrote, the children had chosen to live with their grandparents to avoid submitting to the reasonable discipline imposed by their custodial parents and because of material benefits that the grandparents could afford them which their parents could not.
Finally, in Cox v. Gummer,  W.D.F.L. 689, the father of a 19 and a half year old child brought a motion to terminate support payments. The motion was based on the child’s age, the fact that the child no longer resided with the mother, the fact that the child was not in school, and the child’s poor history of school attendance. The Ontario Court of Justice agreed with the father and terminated support payments under the Act. Specifically, Baldock J. held that the child ceased to be under the control of her parents when she left her mother’s home at age seventeen and established a separate residence: “She has established an independent life, residence and source of income. Whatever moral obligation the parents may have to assist her financially thereafter, there is no legal requirement to do so”. Baldock J. further held that the issue of whether the child was in school was irrelevant. The father was entitled to recover any overpayment and any money held by the Family Responsibility Office was to be refunded to the father immediately.