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Posts from the ‘Adult Children’ Category

Family Law Now | Episode 3: OCL Office of the Children’s Lawyer

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On this episode, hosted by Russell Alexander with special guest Jarret Johnston, a children's lawyer explains their role, lays out the process and clarifies common misconceptions. Tune in to Family Law Now to learn more.

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Can Alienated Dad Stop Paying Support for 29-Year-Old Daughter?

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Can Alienated Dad Stop Paying Support for 29-Year-Old Daughter?

The father applied to the court to eliminate his monthly $583 child support obligation for his now 29-year-old daughter.  He also asked the court to find he had been overpaying support for the past decade, since she graduated high-school, and that he should be reimbursed for those overpayments.

The daughter lived with her mother, and essentially had no relationship with her father.  He had been making support payments since 2006, and continued to do so until 2017.  At that point, after receiving long-requested information from the mother about their daughter’s activities as they pertained to her support entitlement, he brought a motion to change the 2006 eliminating his support duty.

As the court explains:

As a result of obtaining disclosure, the father amended his position for trial and asks the Court to terminate child support retroactively as of June 26, 2008, the date that [the daughter] J.K.N. graduated high school. The disclosure the father obtained reveals that J.K.N. enrolled in 6 different college programs in 3 different schools over the years since high school. In fact, in the year that the father launched this proceeding to terminate support, J.K.N., at age 28, enrolled in her 6th college program, after having been out of school for at least 4 years. Her transcripts reveal that she has earned only 1 credit, ever, in these various programs.

Even though the daughter was technically enrolled in various college programs, the father argued that her support entitlement should have ended after high school, and that the mother should now owe him for the overpayment.    The court described his position:

He argues that J.K.N. did not apply herself at college when she was enrolled, and at times, she was enrolled part-time or not at all. He argues that she switched programs multiple times, she earned very low grades or no grades at all, she failed to attend classes, she withdrew from courses, and she never obtained a degree or diploma.

The father says that his proposed termination date results in the mother owing him $66,233.66.

Eventually, the mother agreed that child support should end, but disagreed with the father on the end-date, and whether she owed him for any overpayment.  Thus the dispute as it was presented to the court was pared down to that narrow issue.

The court started by observing that the mother bore the burden of establishing that the daughter was still entitled to support.  Under the Child Support Guidelines, a child support order can be terminated if there a “change in circumstances”, which threshold was met when the daughter became an adult. However, that was not the sole criterion:  The court had to look at other factors as well.

The court heard evidence that the daughter was both financially and emotionally reliant on the mother, who also paid for any needed food, clothing, and bus tickets and also provided gas money.  The daughter was not currently working and indeed had never worked full-time in the 10 years since graduating high school, although she periodically held various part-time jobs.

Under the law, even if the court found it arguable that the adult daughter was engaged in a full-time program of education, this did not automatically mean she was still entitled to support.  Rather, the court also had to find that she was unable to withdraw from parental control.  This will occur if in her overall circumstances, she remained both financially and emotionally dependent on one or both parents.  The court said,

The analysis of this issue must be undertaken from a broad and objective standpoint. The judge must scratch beneath the surface of outward appearances to determine whether the child is truly dependent on a parent, or whether their overall circumstances are such that they are independent or reasonably capable of being so.

After considering a number of specific factors, including the reasonableness of the daughter’s education plan and her level of success in it, the court ruled that the father’s obligation to pay support ended retroactively as of April 2010.   At that date, the court reasoned, the evidence (in the form of school transcripts) showed that the daughter had passed only one of her courses, and “just barely”.

With that date in mind, the court calculated the father’s overpayment at almost $41,000, and ordered the mother to repay that amount.  Although the mother’s financial ability to do so was a relevant factor to consider, the court had only an incomplete picture of her finances, or how she was supporting herself.  It concluded that she was evasive when testifying about her income and financial circumstances.  With that said, the $41,000 was to be reduced by certain amounts that the father had not paid under two costs orders made in 2004 and 2006 respectively.

For the full text of the decision, see:

M.P.A.N. v. J.N., 2018


At Russell Alexander Collaborative 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 RussellAlexander.com

 

To Get or Vary Child Support, Do Your Kids Still have to be “Children”?

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To Get or Vary Child Support, Do Your Kids Still have to be “Children”?

An Ontario Court of Appeal decision recently brought to the forefront an interesting little legal point, about the court’s authority to make or change child support orders even after children are too old or too independent.

Under Canadian family law, section 15.1 of the federal Divorce Act allows a court to make an order requiring a parent to pay child support for any “children of the marriage”.   (And this term is defined by the Act to include: 1) a child under the age of majority (who has not otherwise withdrawn from his or her parent’s charge), and 2) a child who is over the age of majority but still dependent.)

Based on a prior ruling decided by the Supreme Court of Canada, a court only has the authority to make a child support order if, at the time of the initial application by the parent, the children fall under this “children of the marriage” definition.  In other words, if the support-recipient parent waits until the children are over the age of majority or no longer dependent, then he or she is out of luck since the court lacks jurisdiction to retrospectively make a child support order at that point.

A recent Ontario Court of Appeal decision called Colucci v. Colucci, the court considered a related question: Can a parent apply to the court to vary a child support order, even after the children stop being “children of the marriage”?

The facts of the case involved a father of two children who had been ordered to pay child support but eventually fell into arrears of more than $175,000.  By that time, both children ceased to be “children of the marriage.”  Faced by the prospect of a significant decline in his income as an unskilled labourer, the father brought a motion to change the child support order retroactively, and have his arrears rescinded on the ground that there had been a change in circumstances.

The Appeal Court reviewed the governing law when an order could be varied, as found s. 17 of the Divorce Act.  It was differently worded than the initial-support provision in section 15.1; the stated test for whether a court had the authority to vary an order was different from the test to make an order in the first place.  The Appeal Court concluded that based on that wording, a court did indeed have jurisdiction to vary an existing order even after the children are no longer dependents. (And from an Ontario family law perspective, it should be noted that this aligns with the court’s jurisdiction under the provincial Family Law Act to vary child support orders retroactively in such circumstances).

Although the Colucci decision does not foretell that every parent’s application to vary child support will succeed (since that must be determined on a case-by-case basis), the law is now abundantly clear that a court had the authority to change orders even after the children no longer fall within the “children of the marriage” definition.

For the full text of the decision, see:

Colucci v. Colucci

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 RussellAlexander.com

Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

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Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

In a recent case heard by the Ontario Court of Appeal, the issue was whether the parents of a 17-year old girl had any right whatsoever to participate in a court proceeding declaring that she had officially and legally withdrawn from their control as parents.

The girl had gone to court for a “declaration” (which is a formal court statement pronouncing on the existence of a legal state of affairs) that she had withdrawn from parental control.  This had followed a period of extreme acrimony between her and her father, with whom she lived full-time, over numerous matters.  The main precipitating event was the girl’s unilateral decision to finish high-school in Ontario a year early, in order to attend the University of Miami where she had obtained a full scholarship.

The father strongly opposed her plans, and wanted her to stay in Ontario to finish grade 12.  He even began court proceedings in Florida to force the university to disclose the contents of her application file, which impelled the university to ask the girl for proof that she was an independent minor.   Since her father had repeatedly said he would “do everything he can to stop” her from going to Miami, she needed the formal court declaration; without it he could demand that the university withdraw both her application and the scholarship.

The lower court had granted her application without hesitation, adding that “[t]he evidence indicates that [the girl] is a remarkable young woman.”  The court found the parents had no right to be included in or even have notice of the proceedings.

The father appealed, claiming that the mere fact that the court had not allowed or invited both parents to participate – including the full right to object, file evidence, and cross-examine – was grounds enough to overturn the declaration.

The Appeal Court disagreed, but conceded that the parents did indeed have a right to be part of the proceedings.  But there was still no reversible error here, since the required level of parental participation had been met, even though neither mother nor father were ever made official parties to the girl’s application.

The court’s reasoning was technical:  First, it pointed out that under the CLRA the girl had a unilateral stand-alone legal right to withdraw from parental control once she reached age 16.  The court added:

Once a child declares an intention to withdraw from parental control, her independence may – as it was here – be recognized by the police and the schools. There is no formal court process for a child to withdraw. … Unlike jurisdictions such as Quebec which have procedures for “emancipation”, Ontario law does not have a formal process for withdrawing from parental control. The child simply has to take control of the incidents of custody which include decision making regarding residence and education. No court process is required.

However, there was a narrow distinction between withdrawing from parental control, and obtaining a declaration from the court to that effect.  The former was a legal right that the girl could exercise unilaterally; the latter was a request to the court that it exercise its jurisdiction to make a declaration.  Here, the girl had appeared before the court for the second item, the declaration, which triggered consideration of the various legal interests of both the child and the parents.  In this matter, some of those interests were in conflict and called for a balanced inquiry.  Also, the CLRA expressly provides that the parents must be before the court in any application in respect of a child.

In short, and based on the legislation and basic legal principles, the court found that the parents must indeed be parties to their own daughter’s application to withdraw from parental control, but that the court has a broad discretion to direct the extent of that participation.  Here, although the father had not initially been named as a party by the lower court judge, he had been allowed a certain level of involvement nonetheless. He had been allowed to file material and make submissions.

The court also concluded that the merits of the girl’s application justified the order made. The prior judge had fully considered the extensive court record, which included more than a dozen affidavits providing information on which the best interests of the girl could be assessed.  The judge’s findings were supported by the evidence, and there was no procedural unfairness in granting the declaration.

As the Appeal Court stated: “The declaratory relief was not exercised in a vacuum. There was a clear reason for it.”

The father’s appeal was dismissed.

R.G. v. K.G.,

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 RussellAlexander.com

 

Child Support Law Changing to Include Adult Children with Disabilities

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Child Support Law Changing to Include Adult Children with Disabilities

As I reported back this past summer, a court challenge by a single mother of a 22- year-old disabled young man, based on an asserted breach of the Canadian Charter of Rights and Freedoms, succeeded in upending the law relating to the eligibility for child support for such disabled adults.  The mother had successfully claimed that the child’s father – to whom she was never married – should continue to have a support obligation for the son they had together. She convinced the court that as compared to married parents, the differential treatment parents in her situation was contrary to Charter values.

On the heels of this decision, the Ontario government had promptly announced plans to amend the provincial legislation governing child support by way of Bill 113, as I reported shortly after the ruling was released.

Those amendments, included in omnibus budget legislation called the Stronger, Fairer Ontario Act (Budget Measures) Act, 2017 (Bill 177) [RA: Add link to http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=5316], were introduced on November 14, 2017.  They alter the provisions of the Ontario Family Law Act, so that the legislation now requires that every parent provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who is “unable by reason of illness or disability to withdraw from the charge of his or her parents.”

The legal impact of the upcoming amendments is that:

  • the category of adult children who are eligible for child support is now expanded (since previously it included only adult children who are attending school full-time);
  • the child support obligation applies in respect of not only children of parents who are married, but also those with unmarried parents; and
  • the Family Law Act is now in-line with federal Divorce Act legislation, and with the law in many other Canadian jurisdictions.

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 RussellAlexander.com

 

 

Was Parents’ Money a Gift or Loan? The Perils of Poor Documentation

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Was Parents’ Money a Gift or Loan? The Perils of Poor Documentation

Picture this not-uncommon scenario:   The parents provide their newly-married adult daughter or son with a significant amount of money to put towards the down-payment of a first home.

All goes well until a few years later when that son or daughter, ensconced in the home purchased partly with the parents’ money, decides to divorce.  How does that money get treated in that divorce settlement?  Was it a gift to the couple, or a loan that was expected to be repaid?

The question is a very important one because under Ontario family law, the characterization of the parents’ money in the hands of the adult son or daughter becomes a prime consideration in the valuating separation-date assets. Under the Family Law Act, funds that are gifts to the couple during marriage get put into the “pot” for equalization of Net Family Property as usual; funds that are considered loans must naturally be repaid to the original lender.

So the intent behind the advance of funds is key.

In a recent 130-paragraph judgment in a case called Chao v. Chao, the courts scrutinized the evidence to determine what the parents’ intentions had been a full 37 years earlier, when they advanced over $450,000 to their newly-married son, as well as half the cost of the couple’s new $260,000 home.

The then-newlyweds used invested those funds wisely:   For the last 25 years of their marriage, neither husband nor wife worked at anything other than small jobs here and there, and essentially lived off the income generated from investments purchased with the money from the husband’s parents.  By the time of the trial, their investments and various account balances had grown so that the couple’s assets were nearing the $2 million mark, although neither party provided reliable figures.

Indeed, the court commented specifically on the unsatisfactory state of the financial and other evidence that had been given, some of which was purported to come from the husband’s mother, who was now 89 years old.  (The husband’s father had already passed away).  As for murky evidence of the intent behind the initial advance of funds, the court wrote:

 It is noteworthy that neither the [wife], the [husband], nor the [husband’s] mother … gave evidence of any verbal agreements, representations, expressions of intent or discussions between either of the [husband’s] parents and one or more of the parties surrounding or touching upon the [financial] advances. The evidence of each of the affiants regarding the intentions of the [husband’s] parents in making the advances consist of assumptions, understandings or conclusions of what was intended by the parents, rather than indications of what one or more of the parties may have said at the time.

By way of illustration, the husband said that in 1975 when the parents advanced half the costs of their first home, there was “an understanding” between him, them and the wife that whenever the house was sold, half the proceeds would be returned to the parents.  However, the court noted that he “never asserted that anyone ever expressed this understanding verbally or in writing.”

The court also dismissed some other late-breaking evidence put forth by the husband:

 I would strike out exhibit D to the [husband’s] affidavit as it is stated by the respondent to be undated handwritten lists made by him which he “discovered” when he “found” a file and “discovered” that it contained “some evidence to support my case that while I was unemployed, my mother provided investments in our names for our living expenses.”

The handwritten list is self-serving, has marginal probative value and in any event should have been disclosed earlier by the [husband] The probative value of handwritten list is marginal because there is no suggestion by either party that the investment accounts owned by them or with their children originated from their own earnings or resources. It is common ground that the investments were derived from advances made by the [husband’s] parents. The issue is how to properly characterize those advances, whether as gifts, loans or as subject to a resulting trust.

Ultimately the court considered what little evidence had been provided, in the context of deciding a motion for summary judgment which (if granted) would obviate the need for a trial on this issue.   It found as follows:

Based upon all of the evidence before me I find that the presumption of resulting trust in favor of [the husband’s mother] has been rebutted. I also find that the various advances made by the [husband’s] parents cannot be characterized as loans from them to the [husband]. Based upon the evidence the reality of the situation is that there never was any expectation, prior to the parties’ separation, on the part of [the husband’s mother] that the [husband] and the [wife] would be required to repay any portion of the funds advanced by her and her husband. … [I]t would be unfair to permit the [husband] to receive a credit for a debt to his mother, with the financial benefits that would flow to him from that credit on the equalization calculation.

The lesson to be learned from Chao v. Chao is a simple one.  Parents:  Put it in writing. 

Anytime parents advance funds to adult children with the expectation of being paid back, they must make sure there is ample evidence in the form of clear documentation that a loan was intended.

For the full text of the decision, see:

Chao v. Chao

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 RussellAlexander.com

 

Mother Wins Constitutional Challenge on Child Support for Disabled Adult Child

Mother Wins Constitutional Challenge on Child Support for Disabled Adult Child

The recent decision in a case called Coates v. Watson represents a landmark of constitutional law, with the court finding that section 31 of the Ontario Family Law Act discriminates against the adult disabled children of unmarried parents and is contrary to the Canadian Charter of Rights and Freedoms.

The case involved an unmarried Ontario mother who was responsible for caring for her adult disabled son named Joshua. The biological father had paid some child support, but was looking to have the support payments terminated now that Joshua was an adult.

Joshua suffered from DiGeorge syndrome, which left him with both physical and mental health issues. These in turn prevented him from attending school full-time.

The legal issue arose because section 31 of the provincial Family Law Act (“FLA”) states that every parent has an obligation to provide support, but only if the child is a minor or is in school full-time. The meant that in cases where the disabled child cannot attend school, section 31 actually operates to prevent him or her from falling within the definition of “child” and thus qualifying for child support. When applied to Joshua’s case, the law effectively eliminated the biological father’s obligation to assist in supporting his son.

In contrast, the federal Divorce Act contains no such qualification, and imposes a support obligation on the parents of disabled adult children, regardless of whether the child attends school.

In noting this discrepancy between the federal and provincial legislation, the court ultimately concluded that section 31 of the FLA was unconstitutional, because it discriminates against adult disabled children of unmarried parents on various grounds including parental marital status, and disability. That discrimination is contrary to s. 15 of the Charter, which enshrines the principle that every individual is “equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

If the ruling in Coates v. Watson stands (and is not overturned on appeal), then there is speculation that the FLA might have to be amended by expanding the definition of “child”, or by incorporating the definition found in the federal Divorce Act.

For the full text of the decision, see:

Coates v. Watson, 2017 ONCJ 454 (CanLII)

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 RussellAlexander.com

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Deceased’s Estate Division Pits Sister and Ex-Wife Against Each Other

Deceased’s Estate Division Pits Sister and Ex-Wife Against Each Other

Here’s a slightly convoluted tale, but it’s an interesting one involving a dispute between the estranged wife and sister of a deceased man over his estate. Here is the cast of players:

1) Paul, who died in 2013.

2) His wife Pauline, from whom he separated in 2002.

3) Paul’s sister Rita, to whom he left half his estate, and who was also his Estate Trustee.

When Paul and Pauline separated, Paul agreed under their separation agreement to designate Pauline as beneficiary of a $150,000 insurance policy and keep up the premium payments. If Paul failed to maintain the insurance, it was agreed that Pauline would have “first dibs” against his estate for $150,000, in the role of a creditor.

In fact, Paul did not maintain the life insurance as agreed, and it lapsed before he died.

But there was a problem: Paul’s estate was too small to pay Pauline the $150,000 he owed, since his assets at death totaled only about $100,000.

Enter Paul’s sister Rita. As a beneficiary under his Will – and but for Pauline’s $150,000 claim – she stood to inherit 50% of Paul’s estate. In the role of Estate Trustee, she had obligations to all estate creditors, including Pauline. These duties These duties included ascertaining the debts and liabilities of Paul’s estate, and paying them. So Rita essentially wore “two hats”.

Pauline’s asserted first-dibs claim against Paul’s estate became a contentious issue, and the matter went to court for resolution. In an earlier application, the court rejected Rita’s argument that Pauline had missed the deadline for bringing her claim against Paul’s estate, which she did in 2015, more than two years after Paul’s death.

On appeal, the Court of Appeal confirmed that finding. The reason for Pauline’s delay was actually Rita’s own obfuscating conduct, and it would be unfair to hold her to that deadline in the circumstances.

As Estate Trustee, Rita had control over the information Pauline needed to ascertain whether Paul held any insurance policy for her benefit, as the separation agreement required. Pauline could not obtain the information from the insurer directly, so she was understandably beholden to Rita to provide it. Only Rita knew whether Pauline’s debt claim against the estate even existed; this put her in a unique and privileged position.

The problem was, Rita was not forthright with Pauline, and withheld the information she needed.

Initially, she had her lawyer advise (inaccurately) that Paul had maintained the life insurance, and later had the lawyer advise that the policy “may have lapsed”. Neither of these statements were true: Rita had known early on that Paul had let the life insurance lapse despite his obligations under the separation agreement, knew Pauline had a valid claim against his estate as a creditor. Yet she kept the information from Pauline and caused her to delay taking timely steps in pursuit of it.

From a legal standpoint the Appeal Court found that – wholly unrelated to their family connection – Rita and Pauline had a “special relationship”, and that Rita’s withholding of information made her guilty of fraudulent concealment, and made her conduct “unconscionable”.

The Appeal Court referred to and endorsed the findings of the application judge, who had written:

By withholding material facts, the estate trustee [the sister, Rita] concealed from [Pauline, the wife] that she had a legitimate debt against the estate as a creditor. In my view, given the special relationship between the estate trustee [Rita] and [Pauline], it was unconscionable for the estate trustee [Rita] to initially suggest that insurance was in place, then delay matters by promising to bring an application for directions, and then later take the position (a position which provided a direct material benefit to her as a beneficiary of the estate), that the time for claiming against the estate had expired.

The court accordingly found that the usual deadline for Pauline to claim for $150,000 against Paul’s estate did not expire in this case, and could proceed.

For the full text of the decision, see:

Roulston v. McKenny, 2017 ONCA 9 (CanLII)

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 RussellAlexander.com

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