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Court Rebukes Father Bent on Cutting Off Daughter’s Support

Close-up of assorted Canadian paper currency

Close-up of assorted Canadian paper currency

Court Rebukes Father Bent on Cutting Off Daughter’s Support

By definition, the role of family law judges is to be fair, impartial and unbiased. But it’s safe to speculate that they routinely see a good deal of needless legal wrangling from litigants. Faced with the fruitless and unnecessary protraction of proceedings – often spurred by one party’s intractable desire to “make a point” or “get even” – sometimes judges will express their exasperation.

This judicial frustration was evident throughout the decision in VanSickle (Elms) v. VanSickle, where the judge set the stage with the following opening words:

This is a family tragedy. The [father’s] relationship with his two children, … is now irreparably shattered. The parties have spent money they could ill afford on four days of trial wherein the [husband] has done his utmost to convince the court that his daughter, a university student, is no longer a dependent and not entitled to any support from him. ….

The parents had divorced in 1996 after 10 years of marriage. By court order in 2000, to which both father and mother agreed, the father’s access to the two children was terminated and he was ordered to pay support of about $585 per month, which the father dutifully paid.

The court order terminated the father’s access to the children, but he was claiming that they had severed ties with him, and that as a result he should no longer be obligated to pay child support for them. Since that order, he had made no effort to contact them, either in person, by telephone, e-mail, letters or cards. One of the children, a son aged 23, was financially independent and no longer needed support.

However, the other child, a daughter also in her 20s, had tried to get in touch with the father in 2007, in the hope that he would help with her university costs. He did provide $600 for the first semester but declined to help beyond that, expressing his disappointment that she had not maintained more contact with him. The daughter then dropped out of university and moved back with her mother, who had also been diagnosed with breast cancer around that time.

The father remarried in 2003 and his business – of which he was the sole officer, director, and shareholder — continued to do well (for example, in 2011 he took $70,000 in salary, paid his new wife $45,000, but then kept almost $240,000 in the business by way of retained earnings for that same year). Yet in 2007 – prompted by the daughter’s email request for help with university costs – he instructed his lawyer to contact the mother to ask her consent to have his child support obligations for both children terminated. With respect to the daughter in particular, he claimed that she was at school for most of the year but lived with her boyfriend for the rest of the time, and therefore was no longer in her mother’s charge. Also, he later asked for a repayment of half the child support he had already paid for a certain period up to and beyond 2007. The mother responded by asking for a retroactive adjustment for s. 7 expenses and for his contribution to the children’s post-secondary expenses.

The question for the judge was whether the adult daughter was still a “child of the marriage” in these circumstances, to the point that the father should still support her despite his unwillingness to do so and despite the cessation of a father-daughter relationship between them. (The Divorce Act defines a “child of the marriage” as an offspring who has “not withdrawn from [the] charge” of the parents; moreover the jurisprudence suggests that an adult child regularly attending post-secondary education is not legally considered to have “withdrawn” from the parents’ charge).

The judge found that the daughter was indeed still a “child of the marriage”, and ordered the father to pay retroactive support for 2007 onward. Despite her having to take educational breaks for various valid reasons, once the daughter returned to university in September of 2009, she resumed that status for the purposes of child support entitlement. Applying the established factors in situations involving an adult child in post-secondary education, her education plan was reasonable; moreover she had shown financial self-sufficiency and a determination to finish her program.

In ordering the father to pay, the judge rebuked him for failing to co-operate and for dragging out the proceedings:

With respect to Mr. VanSickle’s conduct, I have no difficulty in finding that he has engaged in blameworthy conduct. He had a positive obligation by court order to disclose not only his income, but the income of his corporation and he did absolutely nothing. Even in the face of demands, he did not properly comply with the disclosure requirements. He knew that his income was higher and yet did nothing to ensure that his children shared in that increase in income.

With respect to the children’s past and present circumstances, this is a situation where an increased amount of support would have had a positive impact on the lives of the children. I accept the evidence of the applicant and the children regarding their lifestyle, the difficulties they had with housing and the financial struggles of the family. If Mr. VanSickle had assisted Jillian with her university expenses in January 2008, she may very well have completed her degree at McMaster. One will never know.

With respect to the non-existence relationship between her and the father, the judge added:

By the time of trial, it was clear that neither [the son or the daughter] is interested in a relationship with their father. At the same time, Mr. VanSickle’s conduct is such that it is not surprising to the court that this is the case. This is not a situation where [the daughter] has unilaterally and without justification terminated her relationship with her father.

First, Mr. VanSickle chose not to see his children. He could have had supervised access to them when he and [the mother] first separated and he chose not to do so. He consented to an order in 2000 which terminated all access to his children. He did nothing to reach out to these children after the date of that order. It was Jillian who made the first overtures towards her father in 2007 when she was seeking financial assistance from him. While it is true that Mr. VanSickle responded to that request and attempted to reinstate his relationship with the children, his efforts, in my view, were minimal at best. …

In the end, and concluding that the husband’s true income would have to be scrutinized and determined (after taking into account retained earnings, income splitting with his new wife, and the validity of certain expenses that were actually deducted for his personal use), the judge held that the daughter was to bear one-third of her own university costs, and that the remainder was to be shared by the parents in proportion to their respective incomes.

For the full text of the decision, see:

VanSickle (Elms) v. VanSickle, 2012 ONSC 7340

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com