More On Whether a Kid Can Launch His or Her Own Child Support Claim
Last year we wrote about a case in which a now-16-year-old girl had written to her paternal grandmother, asking her to help cover the $130,000 tuition cost of private school, plus another $50,000 in books. While the letter was no doubt a surprise to the grandmother, it was probably a thunderbolt to the girl’s biological father, since he had not seen or had anything to do with the girl since before she was born.
The girl had been conceived during a brief relationship; even before she was born the father and mother decided they no longer wanted to have anything to do with each other. With the assistance of lawyers at the time, the reluctant parents negotiated a written agreement under which the father paid the mother a one-time, lump-sum payment of $37,000 which was intended to cover off all his child support obligations, present and future. The contract also stipulated that he would have no contact with the girl whatsoever, which is precisely what happened. (The girl was subsequently raised by the mother alone; the father went on to get married and had three other children, all of whom were unaware of their half-sister’s existence).
After the letter to the grandmother got no response, the girl launched a child support application against her father, asking for financial support to cover private school and expenses. The girl’s mother did not participate in the court action at all.
More than a year later, the girl’s case is still wending its way through the courts, and has now raised an interesting technical point: whether, being a minor, the girl needs to be represented not by lawyers of her own choosing, but rather by a “Litigation Guardian” (which is a court-appointed representative from the Office of the Public Guardian and Trustee, who would have authority to decision in the lawsuit on the girl’s behalf because she is still a minor).
After reviewing various procedural Rules, an earlier motions judge declared that the appointment of a Litigation Guardian was a prerequisite for the girl to bring her child support claim against the father.
On later appeal – which was participated in by the Attorney General of Ontario, the Office of the Children’s Lawyer, and lawyers for other children’s interest groups – the court disagreed. Although a self-initiated support application by a minor was highly unusual, the court observed that the Family Law Rules authorized court appearances by a “special party” in some circumstances. Although the definition of “special party” did not quite encompass the girl’s situation or the facts at hand, where there were evident gaps the legislation allowed a court to obtain guidance by analogy to other rules where appropriate.
Nothing in the Rules mandated that a Litigation Guardian must be appointed for the girl; they only provided certain rules and requirements in the more routine scenario in which one is duly appointed and involved in a minor’s court case. Moreover, the Rules did not preclude a court from finding that the girl’s own chosen lawyers were sufficient and appropriate representatives for her; in fact, on a proper interpretation, the girl was even entitled to act on her own (i.e. without lawyers) if she wished.
The court overturned the motion judge’s earlier ruling requiring the girl to have a Litigation Guardian, and went further by formally affirming that the steps that had been previously taken to-date, as part of her application for child support, were to be considered properly taken even though she technically had no Litigation Guardian at the time.
It’s an interesting case for lots of reasons, not the least of which is the substantive legal question of whether the girl can bring a child support claim in her own right – with or without lawyers involved. No doubt that issue will finally be decided in the near future and I will report on the outcome then.
For the full text of the decision, see:
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.