Court File and Parties

Court File No.: Brampton 393/96 Date: 2012-07-19 Ontario Court of Justice

Between: Cheryl Savory, Applicant — And — Howard Burke, Respondent

Before: Justice J.C. Baldock

Heard on: July 17, 2012

Reasons for Judgment released on: July 19, 2012

Appearances:

• Cheryl Savory on her own behalf
• Melvyn Lubek, agent for the respondent

Judgment

BALDOCK, J.:

[1] The respondent has commenced a motion to change the Order granted by Justice Karswick on July 10, 1996, which provides for the respondent to pay $200.00 per month for the support of the parties' son Tyler Quinn Elijah Burke born October 4, 1990 ("Elijah").

[2] The issue for trial was limited to a determination of the time when Elijah became ineligible for support.

[3] Each of the parties testified. There were no other witnesses.

[4] The respondent maintains that Elijah ceased to be eligible for support in or around November, 2006. He believes that Elijah, who was then 16 years of age, moved out of the applicant's home, that he was not in full time attendance at school and had withdrawn from parental control.

[5] The applicant's position is that while Elijah had poor school attendance and as a result of bail conditions, lived with friends for approximately 3 months, he was otherwise in her care until sometime in 2008, by which time he had turned 18 years of age and was not in school full time.

[6] The respondent appears to have had little connection with his family over the years. In part this was due to his extended periods of incarceration. In any event, he was in no position to be able to obtain information directly with regard to Elijah's residence or school attendance. He therefore sought disclosure from the applicant.

[7] This disclosure was provided in the form of three affidavits, sworn July 13, 2011, January 11, 2012 and February 28, 2012 respectively, with documents attached as exhibits.

[8] Much of the evidence relates to the child's school records. School attendance is only one factor in determining whether the subject child under the age of 18 years has withdrawn from parental control. In this case, the evidence shows that Elijah did attend some of the time, that he was far from an exemplary or committed student and that he failed to complete all high school credits. However, the documents do not provide evidence of Elijah's residence. Thus I find the evidence to be of limited value.

[9] The applicant testified that in the fall of 2007 Elijah was charged with a criminal offence after having damaged her home. His bail terms precluded him living with her and he stayed with friends in Midland for approximately three months until his criminal matter was disposed of. To verify this she filed a report from her insurer with respect to her claim for the damage done. I note, however, that the letter states the "date of loss" was in 2008 which contradicts her oral evidence.

[10] The applicant also filed copies of bills for eye glasses and dental treatment for Elijah, dated after 2006. If questionable as evidence of Elijah's address, I accept that these were bills the mother paid for him and as such support her contention that she was providing care for him.

[11] The respondent testified that he received a telephone call from Elijah sometime in 2009 and that Elijah then moved in with him for a few months, subsequently returning to his mother's home. He also believes that Elijah's criminal charges related to events in 2006.

[12] The applicant testified that aside from the three months when Elijah's bail terms required he stay elsewhere, he lived with her (although he did "come and go") until the spring of 2008 when she herself moved out to live with her new partner.

[13] The respondent submitted a handwritten letter, dated March, 2010, purportedly from Elijah, confirming that his mother "kicked him out" in October, 2006 and that he moved in with his father in February 2009. The letter also refers to his father having helped him out while he lived with his mother.

[14] In contrast, the applicant provided a brief type written letter, also purportedly signed by Elijah, confirming that he lived with her for the period in question.

[15] There were arguments on both sides as to the validity of these documents. However, Elijah was not himself called as a witness to verify the authenticity of either letter and I ascribe them no weight whatsoever.

[16] As to credibility, I find both parties equally credible, but also equally vague and unreliable. Both parties seemed to be confused as to dates and the order in which events occurred.

[17] While there is an onus on the respondent to demonstrate that a terminating event occurred, his circumstances prevented him from having access to the information which would have substantiated his claim. However, the applicant, who was in a better position to provide the information to confirm Elijah's residence, produced little in the way of useful material.

[18] While the mother's evidence is inconsistent, I attribute this to poor recall and a general lack of investment in these proceedings rather than any conscious effort to deceive the court.

[19] Even the respondent acknowledges that for some of the time between October, 2006 and mid 2008 Elijah was at his mother's home.

[20] Overall the evidence of the parties was somewhat inconclusive but there was no evidence to suggest that Elijah was self supporting or independent of his mother. Therefore, on a balance of probabilities I find that while he may have spent periods of time away from home, he had not withdrawn from parental control within the meaning of the Family Law Act.

[21] I am however satisfied that on attaining the age of 18 years Elijah was either not living with his mother and/or not attending school on a full time basis. Given the applicant's evidence that she moved out of her home in the spring of 2008, I conclude that Elijah became ineligible for support at that time.

[22] Accordingly, support for Elijah is terminated, effective April 30, 2008.

Released: July 19, 2012

Justice J.C. Baldock