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MAINTENANCE AND SUPPORT - Child support - Considerations - Adult dependent children - Attendance at educational institution - Where child has income

Thursday, September 28, 2017 @ 8:31 AM  

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Appeal by the father from an order that he pay child support to his adult daughter pursuant to s. 37 of the Family Law Act. The order required the father to pay $1,214 per month in prospective child support, as well as retroactive child support and costs. The parents separated when the child was 12 years old. She had developed an anxiety disorder two years earlier, which worsened over time, especially in the post-separation care of the mother, who had a serious illness. The father left his work in western Ontario when the mother’s condition precluded her from continuing to care for the child. He later returned to work and his new partner provided care for the child, along with the new partner’s two sons. The relationships between all the parties deteriorated over time. The daughter was hospitalized for a time in 2010. Shortly after returning to the father’s home, she moved in with friends and ultimately obtained her own accommodation, supported by social services. The daughter applied for support in 2012 and her application was heard in 2014 and 2015. The judge accepted that the daughter’s medical problems and her pursuit of a nursing degree meant she was entitled to child support, retroactive to 2013 and prospective until she obtained her Bachelor of Nursing degree. He calculated the daughter’s monthly living expenses at $2,000, added her educational expenses and subtracted her income from grants, loans and income support to reach retroactive and prospective monthly support figures to cover the shortfall. The judge also awarded the daughter $5,000 in costs.

HELD: Appeal dismissed. There was evidence to support the judge’s conclusion that the daughter did not leave the family home voluntarily, but was forced out due to the father and his partner’s inappropriate parental conduct and their clear statements that she was not welcome back after she left. The daughter was a medically disabled child unable to live in an intolerable situation. The judge was also entitled to conclude that the daughter was in pursuit of reasonable education since 2013, albeit slowly because of her health problems. The daughter was entitled to retroactive support to the date of her application, given that the father provided her with no support after she moved out, despite knowing that she was unwell and that she was seeking support. The father had an annual income of over $200,000, while the daughter lived extremely modestly over the same period. The fact that the state was providing support for the daughter did not relieve the father of his responsibilities. There was no error in principle reflected in the figures set for retroactive and monthly support. However, the order could result in unfairness to the father because it was open-ended, making it possible for the daughter to take her time to complete her degree without accounting to the father. Accordingly, she was ordered to provide the father with formal indication of her continued enrollment in university and her tax returns each year. Lump sum costs were appropriate to minimize further litigation and conflict. The fact that the daughter received legal aid did not preclude the costs award. The father was ordered to pay appeal costs of $1500.

Winsor v. Winsor, [2017] N.J. No. 328, Newfoundland and Labrador Supreme Court - Court of Appeal, J.D. Green C.J.N.L., B.G. Welsh and L.R. Hoegg JJ.A., September 12, 2017. Digest No. TLD-Sept252017009