Child not required to get along with parent to receive support under Divorce Act

Court considers whether father had to contribute school expenses to 18-year-old daughter

Child not required to get along with parent to receive support under Divorce Act
Case explores issue of continuing child support for eldest child of separated parents

Save for extreme situations, neither the Divorce Act nor prior decided cases require the child to get along with a parent to be entitled to support, the Superior Court of Justice of Ontario has ruled in a recent case.

In Nicholson v. Nicholson, 2021 ONSC 3588, the parties, who had six children, separated in May 2018. Since the separation, the applicant mother stayed full-time in the matrimonial home with the children, while the respondent father was a teacher at a private school.

The issue in the proceedings before the Ontario Superior Court of Justice was whether the parties’ eldest child, who had recently turned 18 and who was currently completing grade 12, was entitled to continuing support and school expenses. The court had to consider whether the daughter was still considered a “child of the marriage” as defined under the Divorce Act and whether the father had to contribute ongoing support despite his alleged lack of control or limited control over the daughter’s choices.

The mother said that the daughter received a dual diagnosis of attention deficit hyperactivity disorder and bipolar disorder, was accepted in a university arts program that would start in the fall and worked part-time in a coffee shop, where she was receiving the minimum wage. The mother submitted that the daughter should receive child support until she started her post-secondary schooling and that there should be a discussion regarding the daughter’s school-related plans and expenses.

The father agreed with the mother’s submission, but claimed that the daughter had unilaterally decided to stop contact and communication with him and refused to discuss her education plans with him, so the daughter should be deemed beyond parental control and should not be considered a “child of the marriage.”

The Superior Court held that the daughter continued to be a child of the marriage because nothing in the law or in decided cases would suggest that a child should get along with a parent to have a right to support, except in extreme situations. The court found that there was not enough evidence to meet the high onus of proof that the daughter had unilaterally terminated her relationship with her father without a valid reason.

“In most cases, disruptions in the parent-child relationship have complicated and multi-faceted causes,” wrote Justice Martin James for the Ontario Superior Court of Justice.

The court directed that the mother, in consultation with the daughter, should prepare a detailed educational and financial plan for the father’s consideration and discussion. Until August ends, the daughter’s current child support would continue, and for September onward, the mother, father and daughter should discuss the matter of child support, the court ordered.

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