In today’s blog Lorne N MacLean, QC founder of our top rated* Child Support Parental Relationship Termination lawyers analyzes the recent and uncommon result in the BC Supreme Court decision of Oleksiewicz v. Oleksiewicz. Separated parents have a duty to pay child support that routinely extends past age 19 when a child attends post secondary education. In rare cases a child may be denied child support after age 19 even when they are attending legitimate post secondary education. Our award winning family law Child Support Parental Relationship Termination lawyers operate out of 5 offices across BC in Vancouver, Surrey, Richmond, Fort St John and Kelowna BC. We also help Calgary clients in our Bankers Hall location. Reach us toll free at 1-877-602-9900.
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Ostracized Parents May Not Be Liable To Pay Child Support
Child Support Parental Relationship Termination cases raise the issue of what happens when a child who would normally be entitled to child support after age 19 freezes out the paying parent? These cases are called Child Support Parental Relationship Termination cases. The key point to take away from today’s blog on the topic is that the actions of the child must be unilateral in terminating their relationship with a parent.
Child Support Parental Relationship Termination
When marriages and common law marriages break down children often pick or are perceived to have picked one parent’s side over the other’s. In some cases the adult child refuses to speak to one parent for an indefinite period. Sometimes the relationship is terminated forever. Can a child terminate the parent child relationship unilaterally and still demand cash child support in spite of this ostracism of the paying parent? Many times courts find the paying parent bears some or all of the blame for the estrangement BUT when a child acts unilaterally their child support just might be cut off entirely. Our Child Support Parental Relationship Termination lawyers can help you try to repair the bond with your child or if that is not a reasonable prospect then help you move on financially with the hopes that the child will see the light.
Child Support Parental Relationship Termination Case Reiterates The Rules
In a recent case the court found the child terminated the relationship solely on their own without fault of the paying parent and held that this choice has financial consequences for entitlement to receipt of ongoing child support from the disenfranchised parent.
In last week’s decision from our BC Supreme Court in Oleksiewicz v. Oleksiewicz the court reviewed the law and ultimately decided the child who wanted nothing to do with one parent would get nothing in child support as a result. Here is the law and how things played out in the case:
[25] However, the respondent contends that Lauren forfeited her right to child support by her actions in terminating any relationship with the respondent thereby ceasing to be a “child of the marriage”.
[26] Section 2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) [DA] defines a “child of the marriage” as follows:
2. (1)…child of the marriage means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life…
[27] Lauren is clearly over the age of majority; however, the claimant argues, she remains a child of the marriage under s. 2(b) of the DA due to an “other cause”; He contends she is financially dependent on him. Groberman J.A. described how pursuing post-secondary education can result in a child continuing to be a child of the marriage in Nordeen v. Nordeen, 2013 BCCA 178:
[15] It is clear that pursuit of post-secondary education can result in a child continuing to be a child of the marriage. In W.P.N. v. B.J.N., 2005 BCCA 7, the general proposition was summarized by Levine J.A.:
o [18] The pursuit of education necessary to equip a child with a career qualifies as “other cause” for continuing dependence of a child of or over the age of majority: Martin v. Martin (1988), 26 B.C.L.R. (2d) 390 at 393 (C.A.). In determining whether a child pursuing an education is unable to withdraw from her parents’ charge or obtain the necessaries of life a court must consider the surrounding circumstances; mere attendance at an educational institution is not sufficient: Ciardullo v. Ciardullo (1995), 15 R.F.L. (4th) 121 at para. 17 (B.C.S.C.).
[16] In determining whether pursuit of education is a valid reason for continued dependence, a court must consider two questions. The first is whether, considering all of the child’s circumstances, the child’s educational pursuits are reasonable. If they are, the court must also consider whether it is appropriate that the pursuits be financed by the parents. These questions can be complex and value-laden. In Farden v. Farden, (1993), 48 R.F.L. (3d) 60 at 64-5, Master Joyce (as he then was) set out a list of eight factors that may assist a court in making the determinations:
(1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;
(2) whether or not the child has applied for or is eligible for student loans or other financial assistance;
(3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
(4) the ability of the child to contribute to his own support through part-time employment;
(5) the age of the child;
(6) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.
[17] This Court has found the Farden factors to be useful indicators in deciding whether child support should continue to be paid in respect of a child over the age of majority who is attending a post-secondary institution (see, for example, Darlington v. Darlington (1997), 32 R.F.L. (4th) 406; W.P.N. v. B.J.N., 2005 BCCA 7 and De Beck v. De Beck, 2012 BCCA 465). It must be emphasized, however, that the Farden factors are neither a checklist nor a set of statutorily-mandated criteria. Rather, they are considerations for the court in assessing whether the child’s situation is consistent with the definition of “child of the marriage” in the Divorce Act.
[28] There is no evidence that Lauren’s educational plan is not realistic, achievable or in accord with economic reality. Lauren is attending a four year undergraduate program in Psychology at the University of British Columbia in the Okanagan. She is on track to graduate in May 2017.
[29] While attending university, Lauren has found employment, both at UBC-Okanagan and at a restaurant. While she claims she earns $9.47 per hour plus tips at the restaurant, she provided no tax returns or proof of income or employment when she testified. She could not remember how much she worked or how much she earned.
[30] She has not applied for student loans, grants or financial assistance.
[31] The respondent has made attempts to assist her children by researching and pursuing scholarship and bursary opportunities for them. She secured employment for them at the clinic where she is employed full-time. Kristen was able to work at the clinic while she attended the University of Victoria. She earned an income which helped her support herself.
[32] With respect to the last factor set out in Farden v. Farden, (1993), 48 R.F.L. (3d) 60 – a child’s unilateral termination of the relationship with the parent from whom support is sought can be a basis for denying child support to an adult child.
[33] The respondent has attempted to communicate with Lauren by sending her cards and gifts. These attempts have been unreciprocated. Since Lauren moved out in March 2014, they have not spoken or seen each other, save for Lauren’s attendance at court.
[34] Lauren now refers to her mother as “Tracy” and shows antipathy towards her. Since moving into her father’s home, Lauren has refused to communicate any details concerning her education, marks, plans or future with her mother. As a result of a court order, Lauren was required to furnish copies of her tuition invoices, marks and enrolment records to inform her mother of the progress she was making at school.
[35] If a child unilaterally terminates a relationship with a parent, the court will consider whether there was an “apparent good reason” for the vanquished parent to continue to provide maintenance for that child: Kaleniuk v. Kaleniuk (1998), 82 A.C.W.S. (3d) 959 (B.C.S.C.) at para. 15. Quoting from Jalil v. Jalil, 2015 BCSC 567, this is because:
A parent and child relationship is not just an economic dependency. If a child expects to receive support, it is reasonable the child should have a relationship with the parent who is being asked to pay that support in the absence of conduct by that parent justifying a child’s neglect of the child’s duties towards his or her parent.
[36] Although Lauren testified at the trial, she gave no explanation for her continuing antipathy and rejection of a relationship with the respondent. She has refused to acknowledge any communication with or gifts from the respondent were substantially unexplained. It may be that Lauren simply decided she was able to support herself without the respondent’s assistance, despite the respondent’s efforts to help her children attain their educational goals and to secure remunerative employment while attending school.
[37] The only evidence concerning Lauren’s decision to move out from the respondent’s home was the fact that her mother had formed a new relationship with Mr. Peters who she invited into their home. The respondent explained to her children that she had been experiencing financial difficulties and that the rent Mr. Peters would pay her while living with them would be of assistance. Her daughters felt uncomfortable with this suggestion and argued with her. However, neither this nor the minor disagreements Lauren had with her mother, including one concerning a lost passport, explain Lauren’s decision to unilaterally terminate her relationship with her mother which has continued for almost three years.
[38] I conclude that Lauren’s unilateral decision to completely exclude her mother from her life is not explained or justified. I find that she is no longer a “child of the marriage”, and that consequently, the respondent is no longer obliged to pay support or to contribute to s. 7 expenses.
Money Even Had To Be Paid Back In Child Support Parental Relationship Termination Case
[41] I am satisfied that Lauren’s rejection of her mother has festered over many years. Although it is difficult to mark a date from which the respondent’s support obligation should be terminated, I consider that August 31, 2015 will mark the end of the respondent’s support obligation. That date marks the beginning of Lauren’s third-year of university education and, in my view marks the end of her entitlement to support. All monies paid by the respondent since that date will be repaid to the [respondent.]
Our Child Support Parental Relationship Termination can help you navigate this often heartbreaking dilemma. How do you get a child to recognize parents are forever and that both parents still love them? Our lawyers can help provide strategies to you.
