IMPORTANT CASES

Steven McCutcheon

Jackson v. Jackson (2008) CanLII 3222, O.J. No. 342, 50 R.F.L. (6th) 149 (Ont. S.C.)

Jackson v. Jackson, is another high-conflict custody and access decision. The decision is of note for the detail and care Justice John Murray took reviewing the social science literature on high-conflict divorce and its effect on children. In our view it is a must-read for any lawyer involved in high-conflict cases and a case that should be provided to clients who go down the high-conflict road. Under the heading “The Toxicology of Conflict,” Justice Murray quotes extensively from learned authors. There are many nuggets here, including the court’s obligation in high-conflict cases, lawyers’ obligations, and the impact of high conflict on children. We particularly liked a quote from E. Mark Cummings, a psychology professor at Rochester University, on how the resolution of marital conflict impacts children’s sense of security: “A useful analogy is to think about emotional security as a bridge between children and the world . . . when the marital relationship is functioning well, it serves as a secure base, a structurally sound bridge to support the children’s exploration and relationships with others. When destructive marital conflict erodes the bridge, children may lack confidence and become hesitant to move forward, or may move forward in a dysregulated way, unable to find appropriate footing within themselves or in interaction with others.” This case provides a truly excellent review of the literature on high-conflict divorce and is well worth your time. Phil Epstein.

Exclusive possession of matrimonial home granted to wife until sale of matrimonial home; H had not allowed entry of W or their 4 children into matrimonial home since separation despite concerns about safety of their environment with maternal grandparents.

Costs against party acting unreasonably.

Potter v. Da Silva (2014) ONCJ 302

Parties were never married and the mother was making a claim for custody and child support. In Answer, the Respondent father asked for joint-shared custody and more time with the child. The Office of the Children’s Lawyer (OCL) appointed a social worker to investigate and she recommended 50-50 shared custody. At trial, Justice Zisman rejected her Report and ordered full custody to the Mother. Excellent review of the law and duties of OCL assessor.

(2014) ONCJ 443: Later, after written submissions, the Judge also ordered substantial indemnity costs in the amount of $59,500 be paid by the father. Approximately half of that amount was ordered to be collectable as “support” by the Family Responsibility Office (FRO), obviously a judge concerned about the possibility of the payor filing for bankruptcy and trying to avoid paying anything. Bankruptcy does not affect or cancel support.

Menegaldo v. Menegaldo (2012) ONSC 2915 (2940 revised terms)

Motion by the Husband to terminate child support for 1 child and to terminate long-term spousal support dismissed.

Husband brought motion to terminate or vary spousal support — Motion to vary spousal support was based, in part, on alleged alienating behaviour by wife after parties were divorced — Motion dismissed — Just as spousal conduct during marriage could not be considered in determination of entitlement to support, nor could spousal conduct after marriage — The phrase “spousal misconduct in relation to the marriage” in ss. 15.2(5) and 17(6) of Divorce Act encompasses spousal misconduct relating to custody of and access to children of marriage, including parental alienation of children — Emotional consequences of misconduct, without corresponding effects on spouse’s financial stability or capacity to achieve self-sufficiency, are not relevant to spousal support analysis — Husband failed to make out claim for termination or reduction of his spousal support obligation based on wife’s alleged alienation of daughter and eldest son from husband — Any alienation that may have occurred could not, in isolation, be considered in determination of spousal support variation proceeding.

Justice Chappel found, having regard to the parties’ standard of living during the marriage and to the husband’s current standard of living, it was unreasonable that the wife should be required to sell the former matrimonial home to reduce the husband’s support obligation or rent a room in her home to increase her income.

The test for unconscionable conduct is quite stringent and parties are unlikely to succeed on this basis. Menegaldo v. Menegaldo, 2012 ONSC 2915, 2012 CarswellOnt 6030 (Ont. S.C.J.); additional reasons 2012 ONSC 2940, 2012 CarswellOnt 6189 (Ont. S.C.J.). The court noted that the phrase “course of conduct” makes it clear that a single event is insufficient for section 33(10) to be applicable. The court further stated that the commission of a “matrimonial offence” is not necessarily sufficient by any means and that unconscionability is difficult to establish.

Determining Eligibility for Support for a Post-Secondary Program: The Menegaldo Factors

In Geran v. Geran, Cameron J.A. of the Saskatchewan Court of Appeal wrote that [T]he key to the legal obligation of the parents lies in the child being “unable to withdraw from their charge.” This phrase may be taken in this context to mean unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child.⁷³

Courts across Canada have used different lists of factors to determine the eligibility of adult children for support for the purpose of pursuing child support.⁷⁴ For many years, a frequently cited decision on this issue was the 1993 British Columbia judgement in Farden v. Farden, and courts referred to the “8 Farden factors of Master Joyce.”⁷⁵

More recently, courts have also begun to cite the 2012 Ontario Superior Court decision in Menegaldo v. Menegaldo as setting out a more comprehensive list of factors (though incorporating the Farden factors).⁷⁶ In Menegaldo Justice Chappel reviewed case law since Farden and set out a list of 12 factors identified in the case law as relevant to the eligibility for child support of adult children attending post-secondary education:⁷⁷

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.
Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.
The ability of the child to contribute to their own support through part time employment.
Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.
In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.
The child’s academic performance, and whether the child is demonstrating success in the chosen course of studies.
The age, qualifications and experience of the child.
The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
Whether the child is performing well in the chosen course of studies.
What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.
The means, needs and other circumstances of the parents and the child.
The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.

All of these factors are not necessarily relevant to every case; rather, the court should use any considerations that are relevant to the specific case. ⁷⁸ We will now discuss each of the factors in order to examine the main issues considered in the cases that deal with child support for adults undertaking post-secondary education.