ONTARIO COURT OF JUSTICE

DATE: March 1, 2017

COURT FILE No.: Halton 297/16

BETWEEN:

O.G.

Applicant

— AND —

R.G.

Respondent

Before: Justice Marvin Kurz

Heard on: January 16, 2017

Reasons for Judgment released on: March 1, 2017

Counsel:

• Jesse Mark, for the applicant
• Gary S. Joseph & Ryan M. Kniznik, for the respondent

KURZ J.:

INTRODUCTION

[1] O.G. ("O"), a seventeen year old university student, seeks child support from her father and former custodial parent, R.G. ("R" or "the father"). She left his home on April 13, 2016 and soon obtained a judicial declaration that she had withdrawn from the control of both of her parents. She then obtained an order from another judge that neither parent has custodial or access rights over her. Those decisions have now been upheld by the Ontario Court of Appeal ("OCA") ("the appeal decision").

[2] The father moves to have O's application summarily dismissed. He argues that he has no support obligations to his child because she withdrew from his parental control. While he is presumptively required to support his minor child under the Family Law Act ("FLA"), R points to an exception to that obligation. The presumption does not apply if a child has withdrawn from parental control. He argues that there is no genuine issue for trial in light of the judicial declaration that O has withdrawn from parental control.

[3] Following the judicial declaration, O concedes that she has withdrawn from parental control for the purposes of determining child support. However she argues that her withdrawal was involuntary, and therefore she remains entitled to support. Although she does not bring her own cross-motion for summary judgment, she nonetheless asks me to find that she is entitled to support.

[4] The key issues that I must determine are:

(a) Does the issue of the voluntariness of O's withdrawal from parental control raise a genuine issue for trial?

(b) If I do not dismiss this proceeding, how much interim child support should O receive?

[5] For the reasons that follow, I find no genuine issue for trial about whether O is entitled to be supported by her father. She is entitled to child support. The amount of support that R is required to pay her is an issue for trial. I set the quantum of temporary support below.

BACKGROUND

[6] Justice Francis Kiteley of the Superior Court of Justice ("SCJ") provides an excellent summary of the prior legal history of the litigation between O, R, and O's mother, K.G.J.G., also known as T.V.D.H. ("T") in her decision of August 22, 2016. So too does Justice Mary Lou Benotto, writing for the OCA, in the appeal decision.

[7] In her decision, Kiteley J. confirmed the propriety of her earlier declaration that O has withdrawn from parental control under s. 65 of the Children's Law Reform Act. In the appeal decision, Benotto J.A. on behalf of the OCA affirmed Kiteley J.'s decision as well as that of Justice Michael R. Gibson of the SCJ regarding custody and access to O.

[8] I include the following details to highlight and supplement the key points that Kiteley J., Gibson J., and Benotto J.A. made in their decisions.

[9] O is, by all accounts, an exceptional young woman. The daughter of a very successful businessman, O was raised in wealth and privilege; materially lacking for nothing. She is an A+ student, who managed to complete her high school credits a year early.

[10] O's parents separated when she was just two years old. She was originally in her mother's primary care, but was then shifted into a shared custody arrangement. When O was about 14 years old, her mother moved to Florida. O was unhappy with the move. From that point until O was about three months shy of her 17th birthday she remained in her father's primary care. For the first year or so after the move, O regularly visited her mother in Florida.

[11] On March 4, 2015, when O was over 15½ years old, Justice Giselle Miller of the SCJ ordered, on the consent of both parents, that R be granted full custody of O. The order stated that these custodial rights would remain in effect until O's 18th birthday. Miller J. further granted R a term authorizing the police force having jurisdiction to "…apprehend and deliver the child to the father."

[12] This order followed O's refusal the previous summer to return to her father after a summer holiday with her mother. R obtained an order for O's apprehension in Florida and return to his care. She was returned to Ontario against her will, under police escort.

[13] R blamed the mother, T, for the incident. He alleges that she convinced O to stay with her. As a result, he insisted on the custody and police enforcement order. For her part, O is adamant that she was the one refusing to return home. She explains that R had informed her just before the visit that it would be her last one he would allow for the next year. This announcement followed R's last minute cancellation of a Mother's Day visit a few months earlier.

[14] R explains O's refusal to live with him by stating that she suffers from a "trauma bond" with her mother. This alleged malady arose, R claims, when T improperly withheld O from him. As a result, O is the purported victim of "Stockholm Syndrome". R makes this lay diagnosis with the support of a one-sided report by an American psychiatrist, Dr. Frank Ochberg, supposedly one of the forerunners of the identification of the condition. The author of that report never interviewed O or T.

[15] The Ochberg report has already been described by Kiteley J. as being of no evidentiary value. It was also rejected in forceful terms by Gibson J. Benotto J.A. describes it as "… the reiteration of a theory already raised and rejected twice." In rejecting it as fresh evidence on appeal, Benotto J.A. stated that it "… could not reasonably have affected the result."

[16] Despite the sole custody order of Miller J. and all the material advantages in her life, O left her father's home on April 13, 2016. She took this step after a dispute with R over her plan to enter university in Miami, Florida. T resides in nearby Fort Lauderdale.

[17] On April 28, 2016 O and her counsel attended before Kiteley J. They obtained a declaration that O had withdrawn from parental control under s. 65 of the Children's Law Reform Act. Kiteley J. added that:

[OG] is an independent minor with all of the statutory and common law rights and privileges of a minor who has withdrawn from parental control.

[18] Relying on Kiteley J.'s order, on June 2, 2016, Justice Michael R. Gibson of the SCJ ordered that no person shall have custodial or access rights to O.

[19] R moved before Kiteley J. on August 18, 2016 to set aside her declaration. Kiteley J. refused the request. R's appeals of the orders of Kiteley J. and Gibson J. were recently rejected by the OCA.

[20] Other than her refusal to return to her father's home after visiting her mother in the summer of 2014, there is no evidence that O disobeyed her father or was anything but a respectful and well-behaved young woman. Perhaps unsurprising for so successful a student, O's biggest disputes with her father have revolved around her education.

[21] In early 2015, R unilaterally decided that O must change schools from her all girls' private Catholic school to a public high school. O begged her father not to force her to change schools. R was unmoved. He forced the change on O, and she complied.

[22] O took the opportunity to accumulate enough credits to graduate from high school a year early. She earned an average of 95.5% over her high school career, a level she maintained in her graduating year. Nonetheless, R insisted that she attend high school one year longer than necessary.

[23] O was unwilling to take a "victory lap" in high school. Instead, against her father's wishes, she enrolled in the engineering faculty of the University of Miami. She did so with the surreptitious assistance of her mother, who guaranteed payment of O's college fees. O earned a substantial scholarship.

[24] On April 13, 2016, R and O argued about her university plans. He demanded proof of her enrollment for a further year in high school. Gibson J. found that R was verbally aggressive towards his daughter and that O feared for her safety.

[25] The factual findings of Gibson J. and Kiteley J., mentioned in this decision, were upheld in the appeal decision. They were all made in proceedings between O and her father regarding aspects of parenting, including custody, access and withdrawal from parental control under the Children's Law Reform Act ("CLRA"). The doctrine of issue estoppel means that I am bound by their findings.

[26] Following R's threats, O left home and went to the home of her mother's friends, H.F. and A.F.. She remained with the F. family for about four months, until she moved into her university residence in Miami in August, 2016.

[27] O is now a first year student at the University of Miami. Her university costs, including residence, are approximately USD $65,000 per year. She received a USD $24,000 annual scholarship, which is deducted from her tuition and residence fees. T voluntarily paid O's first term fees and provides O USD $1,200.00 per month for ancillary expenses. In accord with my previous order, R paid O's second term fees as a term of an adjournment to allow his lawyer to question O.

[28] O and her father have not spoken since she left his home. This state of affairs exists despite O's electronic invitations to R to communicate with her and attend her graduation. R refused to attend O's graduation or respond to her texts. R says that he misses her and wants her back home. But he appears to be unwilling to consider a rapprochement unless it is under his control.

SUMMARY JUDGMENT

[29] R argues that Kiteley J's declaration that O has withdrawn from parental control disentitles O from child support. As a result, R says that there is no genuine issue for trial about O's entitlement to child support. He asks that I immediately dismiss this support application.

[30] O denies the applicability of this argument. While she agrees that she has withdrawn from parental control, and has a judicial declaration to confirm that state of affairs, she states that she did so involuntarily. She says that R's controlling nature made her continued residence in his home and under his rules unbearable. She argues that the case law supports her contention that the involuntary nature of her withdrawal means that she remains entitled to child support.

[31] Both parties agreed that the key issue before me was whether O had voluntarily withdrawn from parental control. That would require me to look at the conduct of the parties both before and after O left R's home on April 13, 2016.

Principles on a Motion for Summary Judgment

[32] Under r. 16 (1) of the Family Law Rules ("FLR"), either party may bring a motion for summary judgment for a final order without the requirement of a trial. That motion can be brought on all or part of any claim made or defence presented in the case. The test for such a motion is whether the evidence discloses a genuine issue requiring a trial of a claim or defence.

[33] The term "no genuine issue for trial" has been variously interpreted to reflect the notion that the responding party cannot possibly succeed, even if granted the right to a full trial. Among the terms that have been used to describe the test are the following:

• "no chance of success", or
• "plain and obvious that the action cannot succeed", or
• "manifestly devoid of merit", or
• "the outcome is a foregone conclusion", or
• no realistic possibility of an outcome other than that sought by the applicant.

[34] The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[35] Each party to a motion for summary judgment has an obligation to "'put its best foot forward' with respect to the existence or non-existence of material facts that have to be tried".

[36] The onus for proving that there is no genuine issue for trial rests with the moving party.

[37] In response to the evidence of the moving party, the responding party may not rest on mere allegations or denials but shall set out in affidavit or other evidence, specific facts showing that there is a genuine issue for trial. In the oft-repeated maxim of Justice Coulter Osborne of the OCA, the responding party to a motion for summary judgment must "lead trump or risk losing".

[38] In other words, once the moving party discharges the burden of showing that there is no genuine issue for trial, the onus shifts to the responding party to provide evidence of specific facts showing that there is a genuine issue requiring a trial. An adverse inference may be drawn from a failure to support the allegations or denials in a party's pleadings.

[39] On a motion for summary judgment, the court is required to take a hard look at the merits of the case. If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order. If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.

[40] If the court does not make a final order, or makes an order for a trial of an issue, the court may also specify what facts are not in dispute. It may further state the issues and give directions about how and when the case will go to trial, and impose conditions, if appropriate.

[41] In determining whether there is a genuine issue for trial, the court shall consider the evidence submitted by the parties. In addition, it may use its expanded powers under subrule 16 (6.1), which reads as follows:

Powers

In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[42] In exercising its expanded powers, the court may hear oral evidence from one or more of the parties, with or without time limits, in the form of a mini-trial.

[43] In Hryniak v. Mauldin, the Supreme Court of Canada set out the process to be followed in applying the expanded civil summary judgment rules:

1. The court will first consider whether there is a genuine issue for trial based only on the evidence before the court. This decision is made without exercising the court's expanded powers.

2. But if there appears to be a genuine issue for trial, the court shall then determine whether the need for a trial can be avoided using those expanded powers. That decision is a discretionary one. But the court shall not exercise its discretion if doing so would be against the interests of justice.

3. The exercise of the expanded powers will not be against the interests of justice if it would lead to a fair and just result; one that serves the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[44] These new rules expand the number of cases in which there will be no genuine issue requiring a trial. They do so by permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences. I have considered the principles articulated in par. 44 - 78 of Hryniak.

[45] In keeping with the principles set out in Hryniak, the court must also consider subrules 2 (2) - (5) to ensure that a case is dealt with justly. It does so by ensuring that the procedure is fair to all parties, saves time and expense and that the case is dealt with in ways that are appropriate to its importance and complexity.

[46] The case law dealing with summary judgment under the Rules of Civil Procedure also apply to such motions under FLR r. 16. In fact, as Justice Michael G. Emery of the SCJ stated in Afolabi v. Fala, reflecting on the application of the Hryniak principles to family law before the expansion of judicial powers under r. 16:

If anything, family law in Ontario cries out for the summary disposition of issues in appropriate circumstances as much as in any other area of law. This accessibility to timely, affordable justice is as important to the parties in conflict as it is to the confidence of citizens in our court system that cases will be adjudicated efficiently and effectively according to law.

[47] One further note regarding summary judgment: subrule 16 (6) is mandatory when it states:

If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[48] The subrule does not say that a final order can only be made in favour of the moving party. As Justice Paul Perell of the SCJ pointed out in Kings Loft I Ltd. v. Emmons, if a court dismisses the moving party's summary judgment motion, it may nonetheless grant summary judgment to a responding party. The court may even take that step when the responding party has not brought its own cross-motion for summary judgment. Perell J.'s decision was upheld by the OCA.

[49] In making his decision, Perell J. relied on the OCA's "full appreciation" test enunciated in Combined Air Mechanical Services Inc. v. Flesch. That decision was overturned by the SCC in Hryniak. In doing so, the SCC replaced the more onerous "full appreciation" test with a three part test of whether the summary judgment motion:

1. can achieve a fair and just adjudication,
2. provide a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and
3. is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

[50] Karakatsanis J. called for summary judgment rules to be interpreted broadly, "… favouring proportionality and fair access to the affordable, timely and just adjudication of claims."

[51] Considering the broad interpretation of summary judgment rules called for in Hryniak and the crying need for summary disposition in appropriate family law cases described by Emery J. in Afolabi v. Fala, the principle set out in Kings Loft I Ltd. v. Emmons is particularly apposite for r. 16 motions.

ISSUE 1: HAS O VOLUNTARILY WITHDRAWN FROM PARENTAL CONTROL?

Test and Onus – General Principles

[52] Under s. 31 (1) of the FLA, an unmarried child under the age of 18 is presumptively entitled to child support. That provision reads as follows:

Obligation of parent to support child

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

[53] The caveat to the obligation is found at s. 31(2), which holds that it "… does not extend to a child who is sixteen years of age or older and has withdrawn from parental control."

[54] But as a line of cases discussed below shows, even a clear withdrawal will not disentitle a child to support unless it was clearly voluntary.

[55] The onus rests on the parent asserting withdrawal to prove that claim. Once the withdrawal is established, the onus shifts to the child to establish that the withdrawal was involuntary.

[56] Because it operates as a defence to a child support claim and impacts on a child, FLA s. 31 (2) is to be construed narrowly.

Definition of Withdrawal from Parental Control in the CLRA and FLA

[57] O conceded that Kiteley J's declaration effectively determined the issue of whether she had withdrawn from parental control for support purposes. However I reminded both parties that Kiteley J.'s declaration was made under s. 65 of the CLRA, while this case was brought under s. 31 of the FLA.

[58] While neither party sought to argue the point, I asked both counsel whether Kiteley J.'s finding under CLRA s. 65 requires me to find that O withdrew from her father's parental control under a different statute with a different purpose. Both sides urged me to accept that Kiteley J.'s CLRA declaration was binding under the FLA.

[59] I am willing to accept O's concession for the purpose of this motion. The function of this court is to determine disputes between parties, not create new issues for them or decide issues in the abstract. For that reason I will accept without having to decide that O has withdrawn from her father's control.

[60] But I note that the point is likely to arise again. The appeal decision is the second case in the past six months in which the OCA has dealt with the issue of withdrawal from parental control under s. 65 of the CLRA. The issue may also be relevant to a consideration of whether O's withdrawal applies to both of her parents, another factor relevant to her entitlement to support. For those reasons, I have chosen to consider whether a declaration under s. 65 of the CLRA requires a court to find that a child has withdrawn from parental control under s. 31 (2) of the FLA. While I accept O's concession in the facts of this case, I do not find that the proposition applies in every case. I include this analysis to ensure that this case does not stand for the proposition that a withdrawal under CLRA s. 65 necessarily requires a court to find that a child has withdrawn from parental control under FLA s. 31 (2).

[61] The notion of a child over the age of 16 withdrawing from parental control is cited in, by my count, six different Ontario statutes: the FLA, the CLRA, the Child and Family Services Act, the Education Act, the Succession Law Reform Act, and the Human Rights Code. None of those statutes defines the term.

[62] That is likely because it was part of an English child custody common law that evolved over many decades. That law was first codified in 19th century English statute law. Section 65 of the CLRA, which Kiteley J. relied upon to declare that O had withdrawn from parental control, preserved the common law rights of children of a certain age to withdraw from parental control. However, as Justice Craig Perkins of the SCJ pointed out in his careful analysis of the evolution of the right of children to withdraw from parental control in N.L. v. R.R.M., our courts now view those rights differently than their 19th century counterparts.

[63] Perkins J. considered the term in the context of s. 65 of the CLRA. He noted both the statute's lack of definition of the term and the absence of any custody/access cases that attempted to define it.

[64] Perkins J. compared the notions of withdrawal from parental control under the CLRA and withdrawal from parental charge, found in the Divorce Act's s. 2 (1) definition of the term "child of the marriage". Using dictionary definitions, he found that the terms covered similar territory but that the term charge seems to include more of a financial component than control.

[65] Having reviewed the Oxford Canadian Dictionary's definitions of the two terms, I am not certain that the difference in terms reveals any real distinction, particularly as it applies to the FLA. Both terms have multiple meanings, many of which relate to the power to direct behaviour. But the term charge has a greater financial component, in large measure because one of its definitions relates to the price that may be charged on a good or service. On the other hand, control refers broadly to the power to direct, command and restrain. Nonetheless, one way in which the word control is used in the family law context is precisely in regard to financial control.

[66] A recent example is found in the decision of Justice Victor Mitrow of the SCJ Family Court in Crosbie v. Crosbie. He found that the respondent's financial control of his spouse was relevant to the respondent's spousal support obligations. Mitrow J. states at par 23:

The evidence supports a finding, which I make, that during their relationship the respondent controlled the finances and paid the bills; the applicant would turn over her pay cheque to the respondent; it was the applicant's evidence, not contradicted by the respondent, that during the marriage, when she asked the respondent about financial matters, that he would tell her it is none of her business and according to the applicant, the respondent's income from Formet was "never talked about." I accept the applicant's evidence as to the financial control maintained by the respondent.

[67] In Vhora v. Vhora, Justice Thomas Bielby of the SCJ makes a similar finding of financial control in ordering compensatory spousal support.

[68] In White v. White, Justice Linda Walters of the SCJ considered a spouse's financial control of a business in order to determine his interest in that business.

[69] In Studerus v. Studerus, Justice R. John Harper of the SCJ set aside a domestic agreement based on duress. One factor that Harper J. considered was the financial control of one party over the other. Similarly, in S.M.B. v. K.R.B., Justice David Steinberg of the Unified Family Court considered financial control as an aspect of spousal abuse in determining whether to set aside a domestic agreement.

[70] The point was forcefully made in the context of the FLA by Justice Clements of the Ontario County Court in Haskell v. Letourneau. He wrote:

In the view of this Court the concept of the "withdrawal from parental control" at age 16 means a "voluntary" withdrawal; the free choice, indeed, of the child to cut the family bonds and strike out on a life of his own. On taking on this personal freedom the child assumes the responsibility of maintaining or supporting himself. It is his choice, freely made, to cut himself away from the family unit. Once this choice is freely made and the responsibility accepted by the child, the family unit has, in effect, been severed and the responsibility of the parents to support the child thus ceases.

[71] For those reasons, the notion of withdrawal from parental control under the FLA may, depending on the context, extend beyond parental command into the sphere of financial dependence.

[72] This analysis brings me to the issue raised above; whether the concept of withdrawal from parental control is the same under the CLRA and the FLA. If it is, then a CLRA s. 65 declaration would be determinative of withdrawal from parental control under the FLA. If it is not, the onus would still rest on the parent to prove that the child withdrew from parental control. If the parent is successful, the onus will then shift to the child to prove that her withdrawal is voluntary.

[73] CLRA s. 65, the only section of the statute dealing with the subject of withdrawal from parental control, arises in Part III. That part of the statute generally deals with custody, access and guardianship. CLRA s. 19 sets out four purposes of Part III. Most relevant to the court's consideration is s. 19 (a), which sets out this purpose of Part III:

to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children;

[74] Nothing in that provision relates to finances or financial support. None of the other three purposes of Part III of the CLRA relate to them either. While a declaration about O's withdrawal from parental control is not strictly speaking a decision about custody, access or guardianship, the OCA made frequent reference to O's best interests in upholding the propriety of Kiteley J.'s declaration.

[75] On the other hand, the FLA deals primarily with material claims that arise from the dissolution of a relationship, primarily between spouses. The Supreme Court of Canada looked at the objective of the FLA in M. v. H. Cory and Iacobucci JJ., writing for the majority, adopted this statement of the statute's purpose from the Ontario Law Reform Committee:

The purpose of the Family Law Act is to provide for the equitable resolution of economic disputes that arise when intimate relationships between individuals who have been financially interdependent break down (Parts I-IV). As well, it ensures that family members have a means to seek redress when an immediate relative is injured or killed through the negligence of a third party (Part V).

[76] Thus it is clear that the context of the FLA, which arises in part out of financial interdependence, is different than that of Part III of the CLRA. The latter statute deals with making decisions about children (primarily about custody, access and guardianship, but also regarding withdrawal from parental control) based on their best interests.

[77] This point is borne out in the decision of Justice Thomas Heeney of the SCJ in Oates v. Oates. There he looks at the case law regarding the entitlement to support by adult children under both the Divorce Act and the FLA. He finds that for adult children, financial dependency is a key criterion in the DA's definition of child of the marriage. On the other hand, under the FLA, the keys to entitlement are "enrollment in school and a continuing element of parental control".

[78] Heeney J. then goes on to add at par. 24:

Nevertheless, financial dependency has been seen as one factor indicative of parental control. This is not surprising since, where a parent is providing the funds for higher education, one would expect that he or she would retain at least some control over the manner in which it is being spent.

[79] Heeney J. found that the adult child before him had not withdrawn from parental control under s. 31 (2) of the FLA up to the completion of her Master's degree. He made that finding in part because of her continuing financial dependence. She was unable to support herself. She was living instead on student loans. One of the loans was co-signed by one of her parents.

[80] In Lyttle v. Lyttle, one of the cases cited by Heeney J. in Oates, Justice Kenneth Pedlar, then of this court, found that a 19 year old who was living on her own and attending school was entitled to claim support from her father. She was receiving emotional and financial support from her mother. The element of financial dependency on her mother was one of the determining factors for Pedlar J.

[81] In Erb v. Erb, another case cited by Heeney J., a 21 year old who had been living on her own for a number of years, was found not to have withdrawn from parental control. Even though she held part time employment and had been living with another family for a time, Justice Stephen Glithero of the SCJ relied in part on the fact that she had also been financially assisted by her mother.

[82] For the reasons described above, economic dependence on at least one parent may be sufficient to determine parental control for the purposes of determining the withdrawal defence under FLA s. 31 (2).

[83] I cannot leave the point without noting that in the leading case of Ball v. Broeger, Justice Stanley Sherr of this court found that an 18 year old child who was living with her boyfriend and his family had withdrawn from parental control (albeit involuntarily). Sherr J. did so even though the applicant was still partially financially supported by her father.

[84] But the evidence of control elicited by the child was, in Sherr J.'s words "very thin." She failed to even make out a prima facie case of control. The father had virtually no involvement with the child. He merely paid some support in the manner that a parent who does not see a child may still have to pay support. That payment, in the absence of any other relationship between father and daughter, was not sufficient on the weak facts of that case to warrant a finding of control.

Fault Based Considerations regarding Involuntary Withdrawal

[85] With O's concession that she has withdrawn from parental control, I am still called upon to determine whether her conceded withdrawal was voluntary. The onus to prove the involuntariness of the withdrawal rests on O.

[86] Despite that onus, Sherr J. stated in Ball v. Broeger that the defence of voluntary withdrawal remains limited to cases that clearly contain three elements:

1. free and voluntary withdrawal from
2. the reasonable parental control
3. of both parents

[87] Even with Sherr J.'s description of the three basic elements of voluntary withdrawal, there is no clear red line in the law as to the level of conduct that is necessary to turn a voluntary withdrawal into an involuntary one.

[88] As set out below, the line of cases that led to Ball v. Broeger have moved away from an earlier rigid and fully fault based standard. Instead of the new approach attempts to understand the complexity and often evolving nature of parent child relationships. That consideration includes the evolving acceptance of older children's right to participate in decisions that involve them. Both parent and child can contribute to the situation that makes withdrawal from parental control involuntary.

[89] But fault cannot be ignored when the standard, other than eviction, is whether continued parental control is "unbearable". That standard first arose in a 23 year old case, Fitzpatrick v. Karlein. There, Justice Peter Nasmith of this court spoke of the test before him as being whether the child was evicted or the situation in her parent's home was so unbearable that the child has no choice but to leave.

[90] In setting the bar at that level, Nasmith J. brushed aside any comparisons of fault between parent and child that are less stark than eviction or unbearableness. That test has been repeated in many cases, as set out below.

[91] The concern that this test raises is that it requires an analysis of the behavior of the parties towards each other in order to see whether the conduct of one disentitled her to support from the other. This exercise goes against the entire thrust of family law for more than the past three decades, in which fault has moved far into the background in considering entitlement to support.

[92] The only provisions of Ontario support legislation that refer to conduct are FLA s. 31(2) and 33(10). The latter states that the obligation to provide support for a spouse exists without regard to the conduct of either spouse, with one exception. That is a course of conduct that is so unconscionable as to constitute a gross and obvious repudiation of the relationship.

[93] In Bruni v. Bruni, Justice Joseph Quinn of the SCJ alliteratively describes this provision as referring to the "typically taboo topic of spousal support." He states that "…it will be the rare case that passes the test." The Divorce Act makes no reference to a defence to spousal or child support based on fault.

[94] If fault is so close to being irrelevant to the determination of support between spouses, why should it be relevant in the determination between parent and child?

[95] In Belanger v. Belanger, Justice J.J. Cavarzan of the SCJ Family Court points to two lines of cases dealing with the applicability of fault considerations to the notion of withdrawal under s. 31 (2). One line of cases, highlighted by the decision of Nasmith J. in Fitzpatrick v. Karelin, emphasizes the sanctity of the family. It does so in erecting the high barrier of the need for a child to prove eviction or unbearable living circumstances in order to be entitled to child support.

[96] The other line of cases, which includes the decision of Justice Kent of this court in Jamieson v. Bolton, described Nasmith J.'s approach as being obiter. Kent J. looked instead to the general no-fault thrust of the FLA. In Belanger, Cavarzan J. found it unnecessary to determine the issue because of the clear facts before him.

[97] In Ball v. Broeger, Sherr J. appears to have adopted the view of Kent J. in noting the complexity of family dynamics when trying to sort out fault, stating at par. 36:

Courts have noted that family dynamics are complex and have often been cautious in finding that a child has voluntarily withdrawn from parental control. See Jamieson v. Bolton and Bolton, 52 A.C.W.S. (3d) 845, [1995] W.D.F.L. 097, [1995] W.D.F.L. 745, [1994] O.J. No. 3228, 1994 CarswellOnt 2081 (Ont. Prov. Ct.) which sets out at paragraph [19] a line of cases taking this approach.

[98] Sherr J. then quoted from Nasmith J. in Fitzpatrick v. Karlein, including the comment that:

… routine comparisons of fault as between parent and child should be discouraged and only obvious cases should prevail.

[99] However it has to be noted that Nasmith J. made the comment above in order to narrow a child's ability to claim voluntariness. Sherr J. appears to take the opposite tack. He spoke of the narrowness of the exception of voluntariness available to parents who claim that withdrawal is voluntary. He notes at par. 37 that

…the exception is even narrower when the child suffers from emotional difficulties.

[100] Sherr J. looked at both the child's emotional difficulties and the parent's "…lack of insight … into that nature of [the child's] emotional difficulties and the nature of their relationship." He found that the mother daughter relationship in that case was not a normal one. The mother's lack of insight adversely affected the parent child relationship and contributed to the child leaving home.

Meaning of "Unbearable"

[101] Understanding that the bar is set at "unbearable", what does that standard mean? The Canadian Oxford Dictionary defines the word "unbearable" as "not bearable". It defines "bearable" as "that which may be endured or tolerated". When considering whether conditions are so unbearable that the decision to leave a parent is an involuntary one, the question is necessarily a subjective one. But it looks to the issue from the point of view of the child, not the parent.

[102] For each child, what makes living with a parent unbearable and departure involuntary may be different. Certainly abuse meets the standard. So too does eviction, including behavior that can be construed as "constructive eviction".

[103] But the next question is whether children should have to bear all parental behavior that falls short of abuse or some form of eviction. Would neglect suffice to make continuation of life under parental control unbearable? What about behavior that is merely not in the child's best interests but falls short of abuse or even neglect?

[104] The relevance of a child's emotional distress is central to the decision of Sherr J. in Ball v. Broeger. Even though the child in that case had produced medical and psychiatric evidence, the proffered reports appear to have offered no diagnosis. But the evidence made clear that she is suffering from emotional difficulties.

[105] Equally relevant was the parent's lack of insight into her child's needs, as it contributed to a deterioration of the parent child relationship. So too was an "intolerable breakdown in communication" between mother and daughter.

[106] In Zedner v. Zedner, Justice Lynn King of this court found that a father's overly controlling behavior was a factor that made continued cohabitation with him unbearable. The child's withdrawal was found to be involuntary.

[107] What makes life with a parent unbearable then will depend on the needs of the child, the abilities of the parent to meet them and the control that is being exercised by the parent. The determination of will necessarily be made on a case by case basis.

Reasonable Control

[108] Despite adopting an approach that does not emphasize fault, Sherr added at par 38 of Ball v Broeder:

[t]his does not mean that parents are not entitled to exercise reasonable control over a child who chooses to remain at home.

[109] But the other side of that coin can be found in the comment made in 1991 by Justice Fitzgerald of this court in Figueiredo v. Figueiredo. He stated that "…it is implicit in this section [i.e. FLA s. 31(2)] that the control sought to be exercised is reasonable."

[110] In Distefano v. Haroutunian, Justice George Thompson of this court added that the withdrawal defence applies to a child's "departure in the face of [reasonable] controls and nothing more". Thompson J. emphasized the point by stating that

[t]he law does not require parents to continue to live with and support older children who are seriously rebellious.

[111] That statement strongly implies that parental support obligations may continue when the child's behavior is less than "seriously rebellious". But that case also points to the tempering of the subjective test of "unbearable" conditions by a more objective test of "reasonable" control.

Attempts to Repair the Relationship

[112] In Friday v. Friday, Justice David Price of the SCJ spoke of the need for a parent seeking to shelter under FLA s. 31(2) to show that they have persevered in trying to reconcile with the child. He wrote at par 44:

Before terminating child support based on a child's repudiation of his or her relationship with the parent, the courts generally require evidence, additionally, that the parent has persevered in his efforts to preserve or rehabilitate his relationship with the child, and that the child has unequivocally rejected those efforts. In Green v. Green, 25 (2007), a father sought to terminate support for his adult, university student, son, on the basis that the son had repudiated their relationship. The Court refused to terminate support, noting that the breakdown of a marriage usually has a serious emotional impact on the children. However, the Court ordered that ongoing child support be terminated after a certain passage of time, based on the son's rejection of the father's later attempts at reconciliation and after leaving home, seems unable to do so.

[113] This is not a free standing response to a defence under s. 31(2). Rather it is part of the consideration of the voluntariness of the withdrawal. If a child persists in trying to maintain a relationship with a parent while the parent resists that attempt, those facts are telling about the reasons for withdrawal. The aggrieved parent, as it were, complaining of the voluntariness of the child's withdrawal, seriously undermines his or her argument if he or she did not try to repair the parent child relationship.

[114] That is particularly true when the child is the one extending the hand of reconciliation. More so when the withdrawing child is a minor while the parent is an adult.

Courts Must Understand Evolving Societal Standards of Family Life and Children's Rights

[115] The thrust of the developments in the law of withdrawal is that courts should not attempt to assume the role of referee in disputes between parent and older children, assessing minor penalties for petty misconduct. Rather they should take a broader approach; one which understands the complexity of family life.

[116] That approach includes an understanding that societal standards of family life and the right of older children to have a voice in decisions affecting them are always changing. This point was highlighted by the OCA in the appeal decision. It spoke of "the emerging movement to incorporate the voice of the child in all matters concerning minors."

[117] As children get older, they generally gain their independence in stages rather than all at once. Further, as communication and mutual understanding are elements of the test, both parent and child can be responsible for a situation that makes withdrawal involuntary. Neither has to be an ogre, an ingrate or a serious rebel for the withdrawal to be involuntary.

Summary of Factors to Determine Whether Withdrawal Voluntary

[118] In sum, the factors that must be considered in determining whether a child has involuntarily withdrawn from parental control include the following:

(a) The onus is on the child to establish the involuntariness of her withdrawal from parental control.

(b) The standard necessary to find that the withdrawal is involuntary looks to eviction or unbearable conditions. But in considering what is unbearable, the court must engage in a contextual analysis of the factors that led to the child's withdrawal. A broad matrix of factors regarding both parent and child must be considered.

(c) The analysis must look to what is unbearable to the particular child who has withdrawn. What is unbearable for one child may not be for the other. A child and parent's difficulty coping with each other may be sufficient, depending on the control being exerted and the condition of the child. Similarly, an intolerable breakdown in their communication may also suffice.

(d) Implicit in the analysis is the notion that the control being withdrawn from must be reasonable for the withdrawal to be voluntary. A child's refusal to follow reasonable parenting limits for purely subjective reasons will likely make the withdrawal voluntary.

(e) The child's decision must be complete. It must be to, in the words of Clements J. in Haskell v. Letourneau, to "… cut the family bonds and strike out on a life of his own… [to assume] the responsibility of maintaining or supporting himself... to cut himself away from the family unit."

(f) The complete withdrawal must be from both parents.

(g) In considering whether the withdrawal is voluntary, the court can look to behaviour both before and after the withdrawal.

(h) One relevant aspect of behaviour after the withdrawal is whether the parent has attempted to repair his or her relationship with the child.

(i) Despite the onus placed on the child, the court must be cautious before finding on the facts before it that a child has clearly decided to voluntarily withdraw from reasonable parental control.

Was O's Withdrawal Voluntary?

[119] The father argues that O's withdrawal was a voluntary one. He argues that:

1. but for her mother's intervention, O was happy in his care and close to him;
2. he was properly exercising his parental responsibilities over O, as he saw fit;
3. O has failed to meet the onus of proving that her withdrawal was involuntary.

[120] For her part, O argued that her withdrawal was involuntary for the following reasons:

1. her father was so controlling, and that control was so harmful to her, that it made living with him unbearable;
2. she did not leave her father's home to move into a life of independence from both parents;
3. while she tried to maintain her relationship with her father, even after leaving his home, he failed to make reasonable efforts to repair his relationship with her.

[121] Here I must consider these arguments in the context of a summary judgment motion. I am called upon to consider whether the voluntariness of O's withdrawal from parental control raises a genuine issue requiring a trial. In doing so I must first consider whether I can make the decision without reference to the expanded powers set out in FLA r. 16 (6.1).

[122] I find that I can do so based on the volume of evidence placed before me, the transcript of the questioning of O, and the findings made by Justices Kiteley, Gibson, and Benotto (all of which are binding on me).

[123] In doing so I find that there is no genuine issue for trial. I find that O's withdrawal from parental control was involuntary. I make that finding for the four following reasons:

1. R's controlling nature made his parenting control unreasonable;
2. O's withdrawal was necessary to meet her best interests;
3. It was not O's intention to cut the family bonds with both parents;
4. R has failed to attempt to repair his relationship with O.

1: R's Controlling Nature made his Parenting Control Unreasonable

[124] First, I find that R failed to exercise reasonable parenting control over O. In Figueiredo, Fitzgerald J. set out some rough parameters regarding reasonable control. He stated that what is reasonable will depend on the circumstances. But one would expect that a child would obey reasonable curfews on week nights, control his or her overspending, and offer reasonable consideration for the parent whose support is sought. On the other hand,

…one would expect to find reasonable consideration on the part of the parent for the well being of the child

[125] Here, R does not complain that O disobeyed any of the general rules described in Figueiredo. There is no evidence that O was anything but respectful and well behaved towards her father.

[126] Nonetheless R and O had three main disputes in the two years before she left his care. All related to his control of his daughter. The first was her refusal, at age 15, to return home from her mother's care after the summer of 2014. R ascribed that refusal to T's malign influence; a point that the judges who dealt with the issue at the time, without the benefit of O's direct input, generally accepted.

[127] T was not entitled to self-help even if 15 year old O refused to return to her father. If T believed that a change in custody was warranted, she should have gone to court to request that change. At that time, she could have asked that counsel be appointed to represent her daughter. O would likely have had a say in the proceedings.

[128] If she had been able to directly participate in the 2014 proceedings through her own counsel, O would likely have explained her actions. She was, in the words of Benotto J.A., "devastated" by her father's determination that she not see her mother for another year after her late summer visit. This followed the abrupt cancellation of her Mother's Day weekend trip to Florida. R's reason for imposing that future travel ban have not been disclosed to this court.

[129] In the end, O did not participate in the 2014 proceedings. While her views and preferences were placed before the court by her mother, those views were necessarily attenuated by the prism of T's unjustified breach of previous court orders. In the end, the child was forcibly returned to Ontario with the assistance of the police. That could only have begun to poison the well of the father-daughter relationship. Benotto J.A. found that O's relationship with her father deteriorated after her return to Toronto.

[130] R's response to his 15 year old daughter's refusal to leave Florida was to return to court to obtain even greater control over her. T ultimately did not contest his request for a full custody order with a police enforcement clause. The order was to last until O turned 18. Once again this was decided between the parents with no apparent input from O.

[131] Nowhere in the voluminous materials that R presented in this motion does he describe his consideration of the manner in which the entire incident affected his daughter. His evidentiary focus was on T's behaviour and the manner in which O was her mother's puppet. He did not refer in any way to his daughter's views of her own interests, or the possibility that they could have evolved as she grew older. Throughout these proceedings, R has never acknowledged that O has any independent agency, particularly in regard to him.

[132] The second father daughter conflict concerned R's decision to force O to change schools, from a private Catholic girls' school to a public high school. She had attended the Catholic school for her entire schooling career. This was not a financial decision. I have not been provided with any evidence that such a move was in O's best interests. On the other hand, Kiteley J. found that O had sound reasons for wanting to stay at her school.

[133] In his factum, R's counsel argues that "R thought it was in O's best interests to be exposed to a different school to gain further experience and expand her world view." R offers no details of O's paucity of experience or the narrowness of her world view to explain that thought. He also offers no evidence of the "further experience" or expanded "world view" that was available at O's new school.

[134] There is no evidence that R consulted his almost 16 year old daughter before making his unilateral decision about her education. Benotto J.A. stated that O. did not understand R's reasons for changing her school. Unsurprisingly, she strongly resisted the move.

[135] Yet she attempted to persuade her father in a manner that showed both a maturity and an articulate intelligence that deserved consideration. She wrote her father a very eloquent, respectful, and heartfelt two page letter setting out her reasons for resisting the change.

[136] In short, she was doing well in school. After the upheaval surrounding her parent's divorce, O. wanted two related things: the continuity of her long time school and the opportunity to finish it with her closest friends, who were like family to her.

[137] O concluded her letter with this heartfelt appeal to her father:

I love you Dad, and have tried to be very supportive of you and the changes in your life over the past couple of years. Now I need you to be supportive of me. …

I ask that you re-consider your position please. I look forward to talking about it more with you.

Love, [O]

[138] Not only was R unmoved, but in O's unchallenged evidence, he ripped up her letter in her face.

[139] Dutifully, O accepted R's decision and continued her exceptional academic career. She does not dispute telling some others that she was happy in her public high school. She explains that she had to make the best of her father's decision and did so. In fact, she chose a course load that allowed her to graduate a year early.

[140] R does not disagree with any of the above except to state that O. really enjoyed her year in a public high school. Even if true, it does not challenge her narrative that she was unhappy about the circumstances that led to her involuntary school change.

[141] R argues that he had a good relationship with his daughter. He provides the evidence of his housekeeper and friends to buttress the claim. That evidence does not contradict O's narrative. Her views changed over time and became increasingly firm with each unilateral decision that R took. O also had reason to open up more to her mother's friend, H.F., than to the housekeeper who worked for her father. There is no reason to believe that either witness is untruthful, just that O revealed different aspects of herself to each of them. Nothing about the difference in their evidence raises a triable issue.

[142] More to the point, I am bound by the findings of Gibson J. and Benotto J.A. They reject R's narrative for the period of time leading up to O's withdrawal from his control. Benotto J.A. found that R's decision to force O to change schools worsened his relationship with his daughter.

[143] O was involved in one incident of self harm after R announced he would make her change schools. Because it did not result in significant injury, R argues that I should not take the incident seriously as a form of self harm. He points to the absence of independent evidence of her hospital attendance. But Gibson J. did describe the incident as O's "attempt to harm herself."

[144] R and O's ultimate argument related to her desire to go to university after grade 11. Being an exceptional student, O acquired enough credits to graduate from high school a year early, with an average above 95%. R decided that O must attend an unnecessary further year of high school. He explained his rationale in terms that related to himself rather than his child: that he had not finished raising her. He felt that she needed to mature before going to university. There is no evidence that R sought out any counsel but his own before arriving at that conclusion.

[145] O protested against wasting an unnecessary year in high school when she felt ready for the next academic level. I have no evidence before me that O was wrong in her self-assessment. In fact the evidence before me and findings of Justices Kiteley, Gibson and Benotto are all to the contrary.

[146] Knowing that R would not approve of her going to university, O applied behind his back, with her mother's surreptitious assistance. T signed a document guaranteeing payment of O's tuition if it were not paid. O was accepted at the University of Miami, which is relatively close to her mother's Fort Lauderdale home.

[147] The father was only informed of the decision after the fact. He became enraged. Benotto J.A. specifically found that he stated to O that she "…would fucking suffer", "regret [her] choices" and be "fucking miserable". Gibson J. found that R was verbally aggressive and that O feared for her safety.

[148] After R demanded proof of O's enrollment in high school for the next year, she left his home. There is no evidence that he was ever open to reconsidering his decision in light of O's staunch desire to go to university.

2. O's Withdrawal was Necessary to meet her Best Interests

[149] The second reason that O's withdrawal from parental control was involuntary was that it was necessary to meet her best interests.

[150] The father advised this court of his view that the University of Miami is a second rate university and that O is harming her future by attending that institution. There is no evidence before me that any part of R's assessment of O's university plans was correct. In fact Kiteley J. found that O's university plan was in her best interests. Kiteley J. wrote at par. 36 of her decision:

… [O] has sound reasons for wanting to accelerate her university entrance and to attend a university in Florida. Third, at age 17, her wishes and preferences must be respected. Going to university in Florida is in her best interests and her father would not permit that plan to unfold.

[151] The converse of this finding is that if O had not left her father's home, she would not have acted in her best interests. The OCA was crystal clear in its assessment that "… the Declaration [by Kiteley J.] was necessary to allow O to attend university and resolve the dispute with her father." It further found that the declaration was based on O's best interests. If the declaration was necessary and in her best interests so too was the withdrawal that was the subject of the declaration.

[152] Based on the undisputed evidence before me and the findings in previous proceedings between the parties, it is clear that R was not attuned the needs of his daughter. He believed that he and O were close, and for a time they were. But he failed to notice her growing estrangement. That disaffection arose out of his unilateral decision making, his need to control his daughter, and her correspondingly increasing need for autonomy from him.

[153] R does not even appear to be open to the notion that O has an independent will. Instead he still describes her as suffering from "Stockholm Syndrome", like Patty Hearst in the clutches of a domestic terror group. Gibson J. described that bootless claim as "exaggerated and pejorative." He saw it as part of a "… self-absorbed attempt (by R) to have a judicial imprimatur validating his particular perspective."

[154] R's approach, both in his evidence and his counsel's submissions, is to speak about his right to decide for O, and T's unjustified interference with that right. Nowhere does he speak of O's right to have a say in her decisions. He spends scant time in his voluminous affidavits explaining the way in which he believes that his decisions are in her best interests. In failing to consider the importance of his child's best interests, including her views and preferences, R ran contrary to what Benotto J.A. described as "…the emerging movement to incorporate the voice of the child in all matters concerning minors."

[155] When considering the father's need for control, I note his demeanor at court on the occasions that counsel appeared before me in this matter. Despite having retained, at great cost, one of the leading family lawyers in this province, R demonstrated a continuing need to participate in and even direct the argument. He could not cede control of that part of this case, even to his counsel.

[156] R continually approached Mr. Joseph from the body of the court, in a somewhat agitated state, in order to hand him notes. He not only made these approaches when Mr. Mark spoke, but often when Mr. Joseph was on his feet in the middle of his own argument. Mr. Joseph was more than aware of the facts of the case and capable of making submissions without his client's interventions. While I see clients occasionally handing the odd note or whispering the odd suggestion to counsel, R's behaviour was far beyond that norm.

[157] Furthermore there were a number of occasions when R was unable to stop himself from directly offering up his comments, and even shouting them in open court. He did so during the argument of the two motions, as well as a previous court attendance. Three times during the arguments of the two motions before me, R, whether standing or sitting, loudly offered his vocal response to something said in court.

[158] I should note that nothing that O's counsel said in advance of those outbursts was offensive or even inappropriate. As an experienced and sophisticated businessman who has experience with the legal system, R must know better. He appeared simply unable to restrain himself from arguing directly to the court. He could not leave his argument to his able counsel.

[159] Writing for the OCA, Benotto J.A. could not have been more direct when she wrote of R's controlling nature and inability to understand his responsibility for O's decision. She found that:

… he is obsessed with controlling her and … this has blinded him to the reality that it is he, not her mother, who is the reason that she withdrew from parental control.

[160] This statement offers a powerful response to the argument that O voluntarily withdrew from parental control.

3. O did not Withdraw from both Parents for Support Purposes

[161] The third reason that I find that O's withdrawal was involuntary is that she did not withdraw from both parents for the purposes of FLA s. 31 (2).

[162] O correctly submits that FLA s. 31 (2) applies only to a clear and voluntary withdrawal from both parents. A great deal of case law discussed below confirms that proposition. However she argues that she did withdraw from both parents, but that her withdrawal does not disentitle her to support because it was involuntary. I believe that this argument is only half right.

[163] O begins her argument by analogizing the effect of her father's 2015 sole custody order to an involuntary withdrawal from her mother's control, leaving her under the sole parental control of her father. Thus she reasons that by involuntarily withdrawing from the care of her sole custodial parent, she has involuntarily withdrawn from both parents. I am unaware of any authority that supports that contention.

[164] Rather, as set out below, I do not find that O's withdrawal from the control of her father was a withdrawal from the control of both of her parents for FLA purposes. I find instead that she never withdrew from her mother's control and that she never sought a life of full independence.

[165] In saying that, I start with the wording of FLA s. 31 (2). It refers to a child "…who is sixteen years of age or older and has withdrawn from parental control." In other words it is the child who does the withdrawing, whether voluntarily or not. Section 31 (2) does not apply to cases where a court grants sole custody of a child to one party; that would defeat the purpose of the legislation.

[166] I then rely on my analysis of the meaning of the term, withdrawal from parental control, under s. 31 (2) as set out above. I wish to be clear that this consideration is for the purposes of the FLA alone and not for the purposes of CLRA s. 65. That point has already been determined for these parties by the SCJ and OCA.

[167] In considering the relevant facts regarding O's withdrawal, I agree with her contention that the court should look to a child's behaviour after she left the control of her parent(s) in order to determine her intentions. To paraphrase an old proverb, the proof of her intentions can be found in the eating.

[168] O refers to the fact that after she left her father's home she went into a family-like arrangement with her mother's friends, H.F. and A.F.. Her uncontested evidence and that of the F.' is that she obeyed the house rules there, attended at school, graduated with high honours and was treated as if she were the F.' daughter. She remained in the F. home until she went to university. She returned there for a week during her winter school break. Nothing involved in that step represented a rupture in her relationship with her mother or an attempt to gain full financial independence.

[169] To the contrary, O remained close to her mother after April 13, 2016. She consulted with her mother on her choice of schools. T participated in the admission process and clearly approved of O's admission. T guaranteed payment of O's fees, paid her first term fees and provided her a monthly stipend. O visited with her mother during the school year and on school breaks. T supported O's position in the proceedings before Gibson J. and then in the OCA.

[170] R answers that there is a risk of relying on evidence that follows the child's leaving her parent's home. The child could tailor her behaviour to the result she desires in court. That is why he says that the court must focus on O's behaviour before she left his care. He adds that the F. home was a mere "bus stop" for O on the way to her independent enrollment at the University of Miami.

[171] O clearly thought of leaving her father's home well before she did so. The evidence is uncontested that she was in discussions with H.F. for some time before April 13, 2016. She even planned to move out to the F. home before that date, but decided that she was not ready. She also consulted with her mother about her choice to enter university a year early and to attend a school geographically close to T's home. Rather than deny that evidence, R sees it as proof of T's bad faith. He points out that the discussions with T were behind his back and that the F.' are T's friends.

[172] Despite R's protestations, a number of cases have looked to post withdrawal evidence to determine whether the withdrawal has been from the control of both parents. Some have dealt with a child living with a non-custodial parent, others in a family-like arrangement with a non-parent.

[173] In Schneider v. Moscovitch, Justice H. Douglas Wilkins of this court found that FLA s. 31 (2) only applies when a child voluntarily withdraws from both parents. In that case, Wilkins J. found that the child had voluntarily withdrawn from the care of her custodial father and went to live with her mother. She then lived under her mother's rules and control. Despite his legal custody and his daughter's voluntary withdrawal from his control, the father was liable to pay support.

[174] Justice Mendes da Costa of this court came to a similar conclusion on similar facts in Giess v. Upper.

[175] In Lyttle v. Lyttle the parents signed a separation agreement setting out that the father would pay child support until their daughter turned 18. At that time, father stopped paying support. The daughter moved out of her mother's home, with her mother's consent and support. She lived on her own in three different places and suffered from some health challenges before applying for support from her father. At that time she was 19, living on her own and attending school.

[176] Pedlar J. found that the mother continued to support her daughter both financially and emotionally in the choice of her future academic studies. She did so even though the daughter had moved out of the mother's residence. As a result, Pedlar J. found that the daughter had not withdrawn from parental control. At par. 22 he stated:

If one or either [parent] one of them supports the dependent in his or her educational plans, either emotionally or financially, within reasonable expectations, then that dependent remains within parental control.

[177] In Bunnell v. Bunnell, Perkins J. ordered the mother of a 19 year old student to pay him interim child support. The student had originally been living with his mother when the parents separated, then moved in with his father. The student then moved out on his own to attend school. He brought a support application against both of his parents even though he planned to return to his father's home at the end of the school term. His father did not oppose the interim support motion but his mother claimed that he had withdrawn from parental control.

[178] At paragraph 12, Perkins J. found that the applicant remained under the control of his father "…to the extent that a community college student who spends a significant part of the year away from his father's home can be said to be within 'parental control'". He ordered both parents to pay support to the adult child.

[179] In Harkness v. Clark a 16 year old child sought support from both of his parents and his step-father. He left his mother and step-father to live, first with his grandparents, and then his cousins. Justice Kent of this court relied in large measure on the fact that the child lived with those relatives and that he behaved well in their care. In commenting on this case, Wilkins J. in Schneider v. Moscovitch stated: "… the child's desire for independence is sometimes measured by where he goes." He added that the fact that the child in Harkness v. Clark went to live with relatives "… militated against a desire for independence … and the parents were held liable for support despite their denial of exclusionary conduct."

[180] In Juneau v. Latreille Justice J.M. Johnston of the SCJ relied on the fact that the minor child had moved into another family's home rather than claim complete independence to grant the child temporary support. The child's entering into a family environment was an important factor in Johnston J.'s decision.

[181] Here O's decision to live with the F. family and to enjoy many aspects of her mother's financial and emotional support militate against a finding that O chose complete withdrawal from her mother or chose a life of complete independence.

R has Failed to Attempt to Repair his Relationship with O

[182] The final reason that I find O's withdrawal to be involuntary is the fact that she tried to repair her relationship with her father but he never reciprocated. She did so even before its final rupture. Below is a summary of the steps that R and O child took to repair or antagonize their relationship, and where applicable, the response of the other:

1. In early 2015, O wrote her father a heartfelt letter begging him not to force her to change schools. O says and R does not deny that he ripped it up in her face.

2. When she tried to go to university, R tried to force her into an unnecessary "victory lap" year;

3. Just after O left his care, R tried to have the police apprehend her. He did so even though she was over 16 years of age.

4. After she moved out of his home, R brought court applications in both Milton and Florida. He litigated as part of his attempt to block O's attempt to go to the University of Miami. This led O to bring her application for a declaration before Kiteley J. She told Kiteley J. that her father told her that he will "do everything he can to stop" her from going to the university of her choice. Kiteley J. accepted her evidence.

5. Despite all that had occurred between them, O continued to text her father and sought his response. She invited R to her high school graduation. He ignored the requests and failed to attend the graduation.

6. R has now argued four times in favour of an insulting proposition – that O is the victim of "Stockholm Syndrome". In each of his previous attempts to rely on the Ochberg report, the court criticised R for transfiguring his daughter's rejection of his controlling nature into pathology.

7. In argument before me, Mr. Joseph indicated that if R won his appeal of the declaration of Kiteley J and order of Gibson J. he would force his 17 year old daughter to return to Ontario. This despite the fact that she is already partway through her first year of university. I have no idea how R could believe that such an exercise of parental authority, if granted to him, would have been in his daughter's best interests.

[183] In reviewing the facts set out above it is worthwhile to ask who was withdrawing from whom.

No Genuine Issue for Trial re Entitlement to Child Support

[184] For all of the reasons set out above, I dismiss the father's motion for summary judgment that would dismiss this application.

[185] Further, I find that I have before me all of the evidence necessary to achieve a fair and just adjudication of O's entitlement to child support. I can make that decision without having to rely on my expanded powers to do so. The materials before me include extensive affidavit evidence, the transcript of O's questioning on the very issue of her entitlement to support, as well as the findings of Justices Kiteley, Gibson and Benotto. This process can allow me to make the necessary findings of fact and apply the law to those facts. Finally, in regard to the issue of entitlement, this summary judgment motion is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

[186] Following the decision in Kings Loft I Ltd. v. Emmons and the wording of r. 16 (6), I do not require a cross-motion by O to grant her summary judgment. Like the responding party in Kings Loft I Ltd. v. Emmons, O has asked in her factum and argument that I make a finding regarding entitlement in her favour. The result flows as a natural extension of the findings that I make to dismiss the father's motion.

[187] Accordingly, I find that there is no genuine issue for trial regarding O's entitlement to child support. She is entitled to be supported by her father.

Genuine Issue for Trial re Quantum

[188] That being said, the issue of the quantum of support that R owes to O does raise a genuine issue for trial. I say that for the following reasons:

1. I am not in a position to determine R's income for the purposes of a support order. I do not have sufficient disclosure from him to allow me to make that determination.

2. Once R's income is established it will still be necessary to decide the appropriate quantum of support for O. She argues that there is no reason to deviate from the Child Support Guidelines ("CSG") tables, despite the fact that she is a first year university student living in residence. R responds that the application of the CSG tables in the manner O seeks would lead to an asset transfer rather than a payment of support to meet her needs;

3. Further, the issue of the application of s. 7 expenses must be considered in light of both the costs of O's American university programme and the table support she seeks.

4. Finally, there is the potential issue of the manner in which to treat T's contributions to child support. She has paid O's first term university fees and has provided her daughter a USD $1,200.00 monthly stipend. R's counsel advised that if he loses the summary judgment motion, he will seek to add T to the proceeding.

[189] At this point, even if it were to utilize its expanded powers, this court is not presently in a position to finally determine the quantum of final child support. All of the necessary parties will have to become involved in the proceeding and all necessary disclosure will have to be exchanged.

ISSUE 2: QUANTUM OF O's ENTITLEMENT TO TEMPORARY CHILD SUPPORT

O's Claims

[190] For the reasons that follow, I find that O is entitled to temporary child support in a quantum far less that she claims but a fair bit more than R admits. Some support issues will have to await trial.

[191] I turn next to temporary support for O. In Charbonneau v. Charbonneau, Justice Gauthier of this court set out the principles that apply to the determination of temporary (or interim) support. He stated:

15 Interim support is a short term remedy meant to ensure that a dependant has sufficient means to maintain a reasonable lifestyle until trial. Because of the nature and purpose of an interim support order, the court does not conduct an in-depth analysis of entitlement, however, a claimant must establish a prima facie case. (See: Jarzebinski v. Jarzebinski [2004] O.J. No. 4595 ).

16 At this stage, the court does not embark on a detailed examination of the merits of the case. Having said that, however, it is nonetheless clear that entitlement to support must be established before any order is made for support, be it interim or permanent. (See: Cuzzocrea v. Swain [1995] O.J. No. 2824 ).

[192] Here, R's counsel fairly conceded that if this case survives his client's motion for summary judgment, O has a prima facie entitlement to temporary child support.

[193] O takes the position that I should order temporary child support in an amount that would give her the same luxurious standard of living that she enjoyed while living with R. She points out that her father has annual expenses of over $1.2 million per year. This gives some idea of her previous standard of living.

[194] O argues that R would have to earn about $2.5 million per year to have $1.2 million in disposable income. She sees that as the minimum amount of income that should be attributed or imputed to R for support purposes. She says that the figure could reach $10 million per year.

[195] O seeks temporary table support from R of $18,653.00 per month (or $223,836.00 per annum), based on an attribution of $2.5 million per year in income to R. She further argues that if she is granted so large a table figure, she should still not have to contribute to her university expenses. She seeks an order that R pay of all of her university expenses as s. 7 special and extraordinary expenses under the CSG.

[196] O's counsel points to a number of trial decisions between separated spouses in which very high income parents were ordered to pay extremely high child support orders. Those decisions allow substantial allowances for discretionary expenses. Despite the fact that O presently has few of those, she seeks an amount of support sufficient to allow her to claim significant discretionary expenses.

[197] O states that such an allowance for discretionary expenses will allow her to save and invest the difference between the support she receives and the money she spends. It is her plan to have a large nest egg to help her in her next stage of life when she leaves college. She argues that this is not a wealth transfer, but rather her allocation of the discretionary expenses to which she is entitled.

R's Response

[198] R responds that O's demands are excessive and unrelated to her actual needs or his income. He says that two documents tell the tale of O's needs. One is a form that O had to fill out for the U.S. Department of Homeland Security in order to be allowed to come to the U.S. for college. In that form, O. was required to set out her anticipated school expenses. She set out the figure of USD $68,599.00. However USD $24,000.00 must be deducted from that figure to account for her scholarship, leaving her total expenses at USD $44,599.00. At a current exchange rate of Can $1.3074 to USD $1.00, that figure works out to Can $58,308.73 (or $4,859.06/mo.).

[199] The second document that R points to is O's sworn financial statement. It states that her annual expenses are $119,340.00, exclusive of special and extraordinary expenses. But the father claims that his daughter's claimed expenses are overstated compared to her real expenditures. For example, he points to the following figures from O.'s sworn financial statement:

• O claims $55,680.00 in annual housing expenses even though she resides in residence. Her real residence fees are USD $7,720.00 per year, and they have already been paid for this school term.

• For the next school year, O expects to live off-campus. But as she stated in her questioning, her off-campus housing costs will not likely be more expensive than her residence fees. If they are, they only be "a bit more" expensive;

• O claims $1,400.00 per month in auto expenses but she does not even own a car. In her questioning she stated that she would want a car if she lived off campus. R replies that she should live so close to campus that she does not need a car or that she could use public transit.

• O claims a food expense of $1,000.00 per month despite her university meal plan. R argues that the proper figure is the $400.00 per month she claims for meals outside the home.

• O also claims Schedule C Special and Extraordinary Expenses of $120,700.00 per year. $80,000.00 of this figure is tuition, which is presumably a converted figure from her American dollar tuition. That figure ignores her scholarship.

• O also claims $10,500.00 in membership to a golf club to which she does not belong, and $3,600.00 for counselling she does not utilize.

• Despite residing in residence she claims $15,000.00 annually for furniture.

R's Income Claims

[200] R's other argument is that his support obligations should be based solely on his $200,000.00 annual salary from one of his companies, 2Source Manufacturing Inc. ("2Source").

[201] Despite annual personal expenses of $1,209,00.00, R asks the court to take his claim of a $200,000.00 yearly income at face value. Absent supporting evidence, he claims that he is living off of capital. In his sworn financial statement, R lists the value of his assets at $20,038,000.00. He lists only two debts, which total $125,000.00, for two credit cards. Since that figure is only about 20% more than his monthly expenses, I assume that most, if not all of that debt represents his current credit card bills at the time that he swore his financial statement. He claims no other debts.

[202] I note that R has thus far offered virtually no disclosure of his relationship with his three companies, their assets, and the manner in which he derives income or other payments from them. The only evidence that R has proffered of his relationship to and income/payments from the corporations in which he claims an interest is that:

(a) 2Source manufactures aircraft landing gear bushings in Mississauga;

(b) R holds "… an ownership interest in 2Source of approximately 60%";

(c) There are "…approximately 10 other shareholders of 2Source";

(d) In his sworn financial statement R:

i. does not value his interest in 2Source;

ii. states that he is employed by 2Source at a salary of $200,000.00 per year. That is the only income he claims;

iii. lists a debt of $1,400,000.00 that 2Source owes him (he does not state whether this is, say, a shareholder's loan or some other form of debt);

iv. states that he owns a 100% interest in R G. Investments, which he values at $1,728,000.00. He adds that the company owes him $10,200.00, again not stating the form of the debt;

v. claims a 100% interest in a numbered company that he swears to have no value and no debt to him.

[203] If the court rejects his claim that his support obligations should be based on a $200,000.00 annual income, R offers an alternative argument. He takes the position that it would be "inappropriate", as described in s. 4 (b) of the Child Support Guidelines, to grant O an amount of table support greater than her actual expenses as he parses them. He states that the proper figure is $2,905.00 per month. He adds that there should be no retroactivity because O's college fees are paid for this school year and T gave her $1,200.00 per month spending money.

Child Support Guidelines Table Support

[204] The starting point for the calculation of the quantum of child support is s. 3 (1) of the CSG. That provision makes the CSG table amount, based on the payor's income and the number of children receiving support, the presumptive table support figure. It states:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

[205] That presumption does not apply where, as here, the payor has an income of over $150,000.00 per year. In that event, s. 4 applies. It states:

Incomes over $150,000

4. Where the income of the parent or spouse against whom an order for the support of a child is sought is over $150,000, the amount of an order for the support of a child is,

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the parent's or spouse's income, the amount set out in the table for the number of children under the age of majority to whom the order relates,

(ii) in respect of the balance of the parent's or spouse's income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each parent or spouse to contribute to the support of the children, and

(iii) the amount, if any, determined under section 7.

[206] In other words, once I determine R's income for support purposes, I must exercise my discretion to determine whether to award O the straight table amount of support based on R's income, or determine whether that amount is inappropriate. In that event, I would grant O table support based on the first $150,000.00 of R's income (i.e. $1,263.00 per month) and then an additional monthly amount that I consider appropriate.

[207] I am to calculate that appropriateness based on O's "… condition, means, needs and other circumstances…" and R's financial ability to contribute to O's support. While CSG s. 4 (b) (ii) speaks to the financial ability of each spouse to contribute to O's support (i.e. both R and T), the only income issue and evidence before me relates to R.

[208] The leading case on the obligations of parents earning more than $150,000.00 per year to support their children is the 1999 Supreme Court of Canada ("SCC") case, Francis v. Baker. That decision set out a number of principles that have been followed in numerous other cases under CSG s. 4. Among its key points, the decision of Justice Michel Bastarache, writing for the court, affirms the presumption in favour of the table amount. That presumption even applies for payors earning over $150,000.00 per year. Bastarache J. also explains that the term "inappropriate" refers to an "unsuitable" amount of table support, rather than an "inadequate" one.

[209] The decision of the Alberta Court of Appeal in Ewing v. Ewing offers the following excellent summary of the principles set out in Francis and Baker (including parenthetical references to the relevant paragraph numbers of the Supreme Court's decision):

i. There is a presumption that the Table applies to all incomes, including incomes over $150,000. A party seeking to deviate from the Table has the onus of rebutting the presumption. (paras. 41, 43)

ii. Children can expect the Table amount on the first $150,000 and a fair additional amount for that portion that exceeds $150,000. The closer the amount is to $150,000, the more likely it is that the Table amount will be awarded. (para. 41)

iii. Where the presumption is rebutted, the Guideline figures can be increased or reduced under section 4. (para. 42)

iv. The test for deviation from the Table amount is that the evidence in its entirety must be sufficient to raise a concern that the Table amount is inappropriate. The evidence for departure from the Guidelines must be clear and compelling. A party seeking deviation is not required to testify or adduce evidence and no unfavourable conclusion should be drawn from a failure to do so. It is recognized that a party may not possess the required relevant evidence. (para. 43)

v. The actual situation of the children is central, and the condition, means, needs and other circumstances of the children must be considered in the assessment of the initial determination of inappropriateness and the determination of appropriate support. (para.44) No single element of legislative purpose is to be given more weight than the actual circumstances of the children (para. 39). A proper construction of section 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual "condition, means, needs and other circumstances of the children" on the other. (para. 40)

vi. To determine appropriateness the court must be armed with sufficient information, and trial judges have discretion to determine on a case-by-case basis whether a child expense budget is required to provide that information and they have the power to order it. (para. 45) Custodial parents are not required to produce child expense budgets in all cases under section 4.

vii. Although frequently child support results in a benefit to the wife, the legislative objective is maintenance for the children rather than household equalization or spousal support. (para. 41)

viii. While standard of living can be considered in assessing need, at some point support payments will meet even a wealthy child's reasonable needs. When the Table amount is so in excess of the child's reasonable needs it must be considered a functional wealth transfer to a parent, or de facto spousal support. (para. 41)

ix. The test for whether expenses are reasonable will be met by the paying parent if the budgeted expenses are so high as to "excee[d] the generous ambit within which reasonable disagreement is possible": Bellenden v. Satterthwaite, [1948] 1 All E.R. 343 at 345. (para. 49).

[210] Conrad J.A., speaking for the court in Ewing, looked at Francis v. Baker's child centred analysis of the appropriateness of table support under CSG s. 4. He stated that it should not be displaced by an assumption that children are automatically entitled to share in the entirety of their payor parent's wealth.

[211] In Tauber v. Tauber, Justice Mark Rosenberg, speaking for the Ontario Court of Appeal, stated that if the payor raises a prima facie case that the table support is inappropriate, the presumption in favour of table support is rebutted.

[212] But as Justice Jennifer Woolcombe of the SCJ pointed out in Marchioni v Marchioni, merely hinting at an argument that table support is inappropriate is insufficient to overcome the presumption.

[213] In Tauber, Rosenberg J.A. pointed out at par. 40 that in cases "… involving a very wealthy support payer, the basic needs of the child are not the sole or even dominant consideration. Child support in such cases will include reasonable discretionary expenses." Rosenberg J.A. then quoted from Francis v. Baker to the effect that for such high income families, the concept of the reasonableness of discretionary expenses replaces the concept of need.

[214] In the retrial ordered in Tauber, Justice Ruth Mesbur of the SCJ considered the "guiding principles" of child care budgets set out in Francis v. Baker. She concluded the following:

1. The Guidelines have not displaced the Divorce Act. The objective of child support is still the maintenance of children, not household equalization or spousal support;

2. Standard of living may be a consideration in assessing need. However, at some point, support payments will meet even a wealthy child's reasonable needs;

3. At some point, the Guidelines figure may be so in excess of a child's reasonable needs that it must be considered a functional wealth transfer, or de facto spousal support; however,

4. Courts should not be too quick to conclude that the Guidelines figure enters the realm of wealth transfer or spousal support.

[215] Mesbur J. ordered that a payor earning $1,652,200.00 per year pay table support of $11,173.00 per month.

[216] In R. v. R., Justice John Cavarzan of the SCJ Family Court offered two further comments about the scheme of the CSG, particularly regarding high income payors. He noted Bastarache J.'s comment that the closer a payor's income is to the $150,000.00 threshold, the more likely it is that the presumption of table support will apply. Cavarzan J. stated that the converse of that statement is that:

…the more the paying parent's income surpasses the $150,000 threshold, the more likely it is that the Table amount will not be awarded.

[217] He added at par. 51 that the scheme of the CSG "is a 'cost-sharing' rather than a 'resource-sharing' scheme. It does not seek to promote 'income equalization'." He adopts with approval a New York State decision that holds that the children of wealthy parents are not "… entitled as a matter of law to every luxury that money can buy."

[218] Cavarzan J. found that the onus to rebut the presumption of table support had been met in the case before him. He found that the mother's budget was inflated and that the table amount was not appropriate. The budget did not come close to meeting Bastarache J.'s "generous ambit within which reasonable disagreement is possible" test in Francis v. Baker.

[219] Cavarzan J. granted the mother less than the full table amount for four young children with a payor's income of $4.1 million per year. He granted $12,000.00 per month in table support even though the tables called for a monthly figure of $65,500.00. With an added $4,000.00 per month for discretionary expenses, Cavarzan J. awarded just over 25% of the table support to the mother.

[220] O argues that an allowance for discretionary expenses is not simply the purview of a trial court. In Jung v. Johnson, Justice Suzanne M. Stephenson of the SCJ awarded the applicant mother $28,000 per month in temporary child support. That figure was $10,000.00 more than the mother's reasonable child care budget. Justice Stephenson stated "[h]ow Ms. Jung chooses to use these funds for Amelia pending trial will be up to her…"

[221] But it should be noted how extraordinary that case is. The payor, a professional athlete, was earning $15,713,280.00 per year. Table support was over $116,000.00 per month. The mother was seeking $50,000.00 per month. She received less than ¼ of the CSG table amount and just over half of what she requested. The $28,000.00 monthly figure was the amount offered by the payor.

[222] The court did not describe the $10,000.00 per month above the recipient's budget figure as a discretionary amount. In fact Stephenson J. explicitly refused to include a figure for savings on a temporary support motion. Rather she left issues such as an allowance for discretionary spending and another for savings, as well as retroactivity before notice of the support claim, to trial.

[223] In sum, courts dealing with motions for the temporary support of the children of very high income earners should be careful about two opposing considerations. On the one hand they should ensure that temporary child support meets "the generous ambit with which reasonable disagreement is possible" with regard to the reasonable needs of children until trial. But on the other hand, they should also be careful about making decisions about long term spending that require a full factual context and are best left to trial. Those issues include savings, large discretionary spending and similar controversial issues.

Special and Extraordinary Expenses

[224] Because O is requesting that R pay her college expenses in addition to her table support, I must consider CSG s. 7. The relevant provisions of CSG s. 7 read as follows:

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(e) expenses for post-secondary education; …

Definition, "extraordinary expenses"

(1.1) For the purposes of clauses (1) (d) and (f),

"extraordinary expenses" means

(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's or spouse's income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

[225] The only submissions that I heard regarding O's CSG s. 7 expenses are:

1 O's request to add her college fees to her table support, so that she does not have to pay those fees out of the $223,836.00 per annum she seeks for temporary support.

2 For his part, the father points out that O's fees have already been paid until her September term resumes, so they are covered in the short term.

3 He adds that her mother is already voluntarily paying O $1,200.00 per month, which would be the table amount for an income of $141,600.00 per year. He thus argues that s. 7 expenses should be paid proportionate to the parents' incomes, based on his at $200,000.00 and T's at $141,600.00 per year.

Quantum of Temporary Child Support

The Father's Income for Purposes of Temporary Support

[226] I start my determination of R's temporary child support obligations with a calculation of his income for support purposes. I find that it is appropriate to base them, on a temporary basis, on an imputed figure of $2,500,000.00 per year.

[227] Right now it is virtually impossible to know R's actual income. His claim that his income is only $200,000.00 per year is simply not credible. I say that because:

1. In Bak v. Dobell, Justice Susan Lang of the Ontario Court of Appeal pointed out that lifestyle is not income. Rather it is evidence from which an inference can be drawn that a payor has undisclosed income that may be imputed for the purpose of calculating income. R's expenses are indicative of his lifestyle. They are the most relevant indicator of the income he has available for temporary support purposes.

2. R's expenses of $1,209,000.00 per year make no sense for a man with a $200,000.00 annual income. I agree with O (and R does not disagree with the math) that at present Canadian tax rates, R would have to earn about $2,500.000.00 per year to have $1,209,000.00 available to spend.

3. While R claims assets of over $20,000,000.00 in his financial statement, that figure is incomplete. He has not valued 2Source. Without further disclosure or questioning, I have no idea of how he valued his other closely held investments. Further, O points out that in 1999 R sold one business for $54,000,000.00.

4. Even if R's assets have dwindled down to just over $20,000,000.00, he is spending money at a rate that would leave him impoverished in nine years. This makes little sense for a savvy businessman;

5. Perhaps most importantly, if R were really living off of capital, he could prove that claim. He could point to assets sold, loan payments made to him by his companies and bank accounts diminished. He does not offer a scintilla of evidence other than his word.

6. Considering his spending habits, including on relatives other than O, and his legal fees, as set out above, the figure of $2,500,000.00 per year represents the best available determination of R's income for temporary support purposes at this time.

O's Reasonable Expenses

[228] I agree with R that many of the expenses claimed by O are excessive or even non-existent. But I note two things. First, R is a lot less liberal about O's expenses than he is about his own. Second, O is unable to spend money until she has it. Until now she has had only $1,200.00 per month (presumably American) available to her to spend, in addition to her pre-paid college fees.

[229] Dealing with the first point, R has been very critical of O's expenses. He has raised some valid points about, say, housing expenses when O is living in residence; car expenses when she does not own a car; and food expenses when she is on a meal plan. He also takes her to task for claiming membership fees to a country club to which she does not belong.

[230] R also holds his daughter to a far higher spending standard than he holds himself. In her August 15, 2016 affidavit, O alleges, and R does not deny that:

1. his home is worth $5,000,000.00:
2. he has a very expensive sailboat (which he values at $600,000.00);
3. he drives a "fully loaded Mercedes s550" (which is not specifically listed in his sworn financial statement, but he does swear to $2,200.00 per month in car lease payments, as part of a $4,100.00 per month personal transportation expense);
4. he holds a membership in the Oakville Club at the rates cited by O (note: there is no reference to this in his sworn financial statement).

[231] I note as well some other discretionary spending set out in R's sworn financial statement includes:

1. $4,000.00 per month in vacations;
2. $1,750.00 in combined school fees, clothing for children and children's activities, even though O is living at a university residence and not with him;
3. $16,000.00 per month in monthly assistance to unnamed family members;
4. $5,000.00 per month in miscellaneous expenses including donations; and
5. $40,000.00 per month in legal fees for R's various proceedings against O (and her mother).

[232] R's high spending lifestyle is the most likely reflection of O's lifestyle until less than a year ago. For that reason it would be appropriate to at least consider his personal expenses when determining the appropriateness of O's claims.

[233] Among the expenses that O claims that I believe would be appropriate to consider, in addition to her basic expenses are the following:

1. Housing: O's school fees cover her expenses while living in residence. They likely also reflect her basic expenses while at college next year, although a slight increase for inflation and the costs of living off campus must be considered. But O is right in stating that she has no guarantee that she will be able to indefinitely live with the F. family during her school holidays. They do not owe her a home. In addition, even if she does live with them, it would not be unreasonable for them to charge her some rent. Further she may choose to continue to live in Miami to take courses or take a job there for the summer. That being said, the figure that she attributes to rent, of $4,640.00 per month, which really applies to a figure over and above the s. 7 housing cost at school, seems excessive for what will be a part time residence. I note that it is not even clear where O will be living this summer.

2. Automobile: R expects O to walk or take public transit to school if she lives off campus. If O's father were a man of modest means, that argument would have some traction. But O grew up being driven to school. Her father spends over $4,000.00 per month in luxury automotive expenses (although some are likely business related). Miami is not renowned as the safest city in North America, particularly at night. It is completely appropriate that O lease a car that will allow her to travel to school and about town for recreation.

3. Recreation: It would be very appropriate for a young woman like O to be active and to join a gym or club to maintain her fitness. While her university likely has a fitness centre, she is off for about five months a year.

4. Travel: I believe that it is reasonable for O to travel to Ontario a number of times per year, when she is on a school break. She would do so to visit the F. family, her friends, or to simply return to her home jurisdiction for a vacation.

5. Discretionary Expenses: In light of R's income, it is reasonable for O to have some budget for discretionary expenses. She can choose how to spend her money. But at this stage, I believe that it is premature on a temporary basis to grant her a discretionary allowance that will allow her to save money for her post university life.

[234] For those reasons, I have to consider the appropriateness of O's expenses in light of the purposes of temporary support. I will not engage in an in-depth analysis of all of the issues raised, including the issue of O's right to an amount of child support that will sustain her well past the time of her support eligibility. That issue, like that of retroactivity to the period before the commencement of this proceeding, will have to await a trial.

[235] While I am aware of T's voluntary child support payments to O of $1,200.00 per month, R has yet not made T a party to this proceeding. I do not know her financial situation, and am not in a position to make a determination of her support obligations, if any, to O.

[236] The table support on R's first $150,000.00 in annual income is $1,263.00 per month. Anything above that figure is discretionary, based on a determination of what amount of temporary support is appropriate for O prior to trial.

[237] In considering all of the factors set out above, I find that an appropriate amount for temporary support child support is $6,500.00 per month, retroactive to August 1, 2016. O served R with her application in this proceeding in mid-July, 2016. The issue of retroactivity before that date is an issue best left for trial.

[238] I also order that R pay O's college fees, including housing, as a s. 7 expense. At this time he is the only person from whom support is sought, I order him to pay them. If he chooses to bring T into this proceeding, the relative proportions of their obligations can be reconsidered. But in any event, and to ensure that there is no gap in payment, R will pay O's school fees and related expenses, for the September, 2017 term, when due.

Final Comment

[239] In reading the all of the voluminous materials that the parties have presented in these motions, it is clear to me that O. and R. care deeply about each other. R would not have fought so hard had he not loved his daughter. O's materials offer a perspective that perhaps reflects more sorrow than anger towards her father.

[240] The steps that the father and daughter have been taken to date do not have to be irreversible. The confirmation of the propriety of O's withdrawal from R's control and her right to child support do not have to be the death knell of their relationship.

[241] R is the adult in this relationship. On each of the two occasions that he has appeared before me, I have tried to persuade him to enter into mediation or counselling with his daughter. Each time I got the impression that R felt that I failed to understand an important point. I do not know whether O is open to such a process either.

[242] Nonetheless, one cannot ignore the fact that Benotto J.A. highlighted: O is approaching her 18th birthday. At this stage, a continuation of the litigation resolved before the OCA speaks more to the parents' needs that those of the child.

[243] O is entitled to both her independence and to child support. I hope that that this decision and that of Benotto J.A. will persuade both father and daughter that it would be best for each of them to find a way to end the litigation. R must surely wish to participate in O's life as she becomes a splendid young and successful woman. O surely wants the father who was so large a part of her life to continue to be part of this newly independent life.

[244] There are excellent mediation services available through the court. The parties could also afford the services of the best counsellors and private mediators to help mend their relationship and resolve their dispute. Their future ability to relate to each other without lawyers likely depends on their ability to mend the fences that O's newfound independence and R's response to that step have rent asunder.

ORDER

[245] For the reasons set out above, I order as follows:

1. O is entitled to child support.

2. I dismiss the balance of R's motion for summary judgment.

3. I direct that a trial be held to determine the quantum of R's child support obligations to O, and whether they are retroactive to April 13, 2016.

4. A case conference shall be held to deal with the steps needed to move to a trial on the issue of the quantum of a final support order. The conference shall be scheduled with my judicial secretary. Under r. 1 (7.1) and 16 (9) (b), I direct:

   a) the case conference date will be no less than 45 days from the date of issue of these reasons;

   b) If R is going to add T to these proceedings, he shall do so within 20 days of the release of these reasons;

   c) once pleadings have been exchanged, all parties will exchange their requests for disclosure. I will deal with the issue of outstanding disclosure at the case conference;

   d) briefs and updated financial statements will be filed for the case conference.

5. Commencing on July 1, 2016 and continuing on the first day of each month thereafter until further order, R shall pay to O temporary child support of $6,500.00 per month. This amount is based on an imputed income for R, for temporary support purposes, of $2,500,000.00 per year.

6. Until further order, R will pay, on a temporary basis, all of O's college expenses, including tuition, related fees, and housing. If she resides in residence, he will pay for her meal plan.

7. If R chooses to add T to this proceeding he will nonetheless pay all of O's college expenses for her first term of the 2017-2018 college term. Thereafter the court will consider a reapportionment of each parent's obligation to contribute to O's support.

8. If R is going to add T to these proceedings, he shall do so within 20 days of the release of these reasons;

9. If T is added to these proceedings, once pleadings have been exchanged, all parties will exchange their requests for disclosure. I will deal with the issue of disclosure at the case conference.

10. The terms set out above are without prejudice to either party's right to move for summary judgment on the quantum of R's child support obligations to O once full disclosure is made.

11. Assuming that the parties are unable to agree on the issue of costs, Mr. Mark shall provide me with his written submissions of no more than 5 pages, double spaced, along with a bill of costs and any offers to settle within 14 days of the release of this decision. Mr. Joseph will reply in kind within a further 14 days. If either party wishes, they may attend to make oral submissions of no more than 20 minutes each. If both parties agree, this may take place by conference call.

Released: March 1, 2017

Signed: "Justice Marvin Kurz"