J.M.S. v. F.J.M., 2005 ONSCDC 25769

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J.M.S. v. F.J.M.

[Indexed as: J.M.S. v. F.J.M.]

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79 O.R. (3d) 528

[2005] O.J. No. 3085

Court File No. 219/05

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Ontario Superior Court of Justice,

Divisional Court,

Meehan, Molloy and Swinton JJ.

July 19, 2005

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Family law -- Support -- Child support -- "Child of the marriage" -- Words "who has not withdrawn from their charge" in s. 2(1)(a) of [page529] Divorce Act not requiring action on part of child to withdraw from parental charge -- Child who was made permanent Crown ward under s. 57 of Child and Family Services Act not being "child of the marriage" for purposes of s. 2(1)(a) of Divorce Act -- Child and Family Services Act, R.S.O. 1990, c. 11, s. 57 -- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 2(1)(a).

The mother moved under the Divorce Act to vary a child support order to increase child support for both of the parties' children. One of the children, C, had severe developmental and behavioural disorders and was declared a child in need of protection under s. 57 of the Child and Family Services Act and made a permanent Crown ward pursuant to s. 57(1)2. By agreement, a payment order was made under s. 60 of the Act in the amount of $80 per month against the mother. The mother had regular contact with C, bringing him home every other weekend, at Christmas and March break and during half the summer holidays. She provided C with clothing, toys and sports equipment, haircuts and personal items, spending a total of $550 per month on his care. The motions judge found that C was a "child of the marriage" as defined in s. 2(1)(a) of the Divorce Act and varied the child support order to increase child support for both children. The father appealed the order as it applied to C, arguing that, as a Crown ward, C was not a "child of the marriage".

Held, the appeal should be allowed.

Per Meehan J.: The effect of an order of permanent Crown wardship is to remove the care and control of the child from both parents.

Per Swinton J.: The motions judge erred in interpreting s. 2(1)(a) of the Divorce Act as applying only if the child has taken action to withdraw from the charge of his parents. While the phrase "has withdrawn from their charge" in s. 2(1)(a) might on first reading suggest some action on the part of the child, that is not the proper interpretation of the language, when the words are read in context with para. (b) and the French version of the definition. The French version does not suggest that there must be some action on the part of the child; rather, it requires the court to determine whether the child is a minor and still in the charge of a parent. Given the statutory scheme in the Child and Family Services Act, the charge of a person, including a parent, is terminated by an order of Crown wardship. C was not a "child of the marriage".

Per Molloy J. (dissenting): The correct interpretation of the words "has not withdrawn from their charge" in s. 2(1)(a) of the Divorce Act does not import any requirement of an overt voluntary act on the child's part in withdrawing from his parent's charge. The fact that a child is no longer "in the charge" of the parent seeking the support order is sufficient to take the child out of the definition of "child of the marriage". However, such an interpretation does not inevitably lead to the conclusion that a child who has been found in need of protection and is therefore in the care of a children's aid society is necessarily not a "child of the marriage" within the meaning of the Divorce Act. The particular circumstances of the child must be looked at in context to determine if the parent seeking support may still be regarded as having "charge" of the child to a sufficient degree to be eligible to receive support for that child. In the particular circumstances of this case, C remained a child of the marriage notwithstanding the intervention of the Children's Aid Society.

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Rizzo & Rizzo Shoes Ltd. (Re), [1998 837 (SCC)], [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, [1998 837 (SCC)], 36 O.R. (3d) 418n, 154 D.L.R. (4th) 193, 221 N.R. 241, [1998 837 (SCC)], 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 C.L.L.C. 210-006 (sub nom. Ontario Ministry of Labour v. Rizzo & Rizzo Shoes Ltd., Adrien v. Ontario Ministry of Labour), apld

[page530]

Other cases referred to

Buzon v. Buzon, [1999 ABQB 254], [1999] A.J. No. 371, 240 A.R. 103, 48 R.F.L. (4th) 263 (Q.B.); Contino v. Leonelli-Contino (2003), 67 O.R. (3d) 703, [2003 30327 (ON CA)], [2003] O.J. No. 4128, 232 D.L.R. (4th) 654, 42 R.F.L. (5th) 295 (C.A.); Horner v. Horner (2004), 72 O.R. (3d) 561, [2004 34381 (ON CA)], [2004] O.J. No. 4268, 191 O.A.C. 28, 245 D.L.R. (4th) 410, [2004 34381 (ON CA)], 6 R.F.L. (6th) 140 (C.A.); Johnston v. Johnston, [1969] 2 O.R. 198, [1969 262 (ON SC)], 4 D.L.R. (3d) 681 (H.C.J.); Tapson v. Tapson, [1970] 1 O.R. 521, [1969 541 (ON CA)], 8 D.L.R. (3d) 727, 2 R.F.L. 305 (C.A.)

Statues referred to

Canadian Charter of Rights and Freedoms, s. 15

Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 57 [as am.], 58, 59 [as am.], 60 [as am.], 61 [as am.], 63(1), 65(1), 105

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 2(1) "child of the marriage", 15 [as am.], 15.1(5), 16, 17

Human Rights Code, R.S.O. 1990, c. H.19

Rules and regulations referred to

Federal Child Support Guidelines, S.O.R./97-175, ss. 7 [as am.], 9

Authorities referred to

Sullivan, R., Statutory Interpretation (Concord, Ont.: Irwin Law, 1997)

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APPEAL from an order varying child support.

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Karen D. Mitchell, for applicant (respondent on appeal).

Albert D. Ferranti, for respondent (appellant).

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[1] MEEHAN J.:-- The appellant, F.J.M., appeals an order of Perkins J. dated September 12, 2004 awarding Guidelines [Federal Child Support Guidelines, S.O.R./97-175] child support to the mother of two children, namely: D.E. born September 15, 1988 and C.A. born October 4, 1989 in the amount of $528 per month based on respondent father's income of $36,744 per annum for 2003; and secondly, commencing May 1, 2004, respondent father shall pay to applicant mother Guidelines child support for two children, namely D.E. born September 15, 1988 and C.A. born October 4, 1989 in the amount of $677.50 per month based on respondent father's income of $48,253 per annum for 2004. He was also to provide her annually by the 1st of May a complete copy of his income tax return as filed and, promptly as received, any notice of assessment or re-assessment and notice of any change of income or employment.

Family History and Background Facts

[2] The parties married on March 19, 1988, separated October 27, 1992 and were divorced June 26, 1995. The formal divorce [page531] judgment was dated May 24, 1995 and it gave custody of the two sons of the marriage to the respondent wife.

[3] In the summer of 1995 or 1996, the mother relocated from Sault Ste. Marie to southern Ontario. There was a dispute between the parties as to whether he was aware of where they were or whether he was attempting to exercise any access.

[4] The issues of importance with which the trial judge dealt were the existence of substantial arrears, arising from retroactive child maintenance and the issue of any support obligation for the younger son.

[5] The parties' younger son suffers from severe developmental and behavioural disorders together with a type of attention deficit hyperactivity disorder. He was temporarily in the care of York Children and Family Services for part of 1996 and 1997, and again in 1998 to the date of permanent Crown wardship on September 24, 1998.

[6] The Crown wardship order dated September 24, 1998 was accompanied by an agreement signed by the mother to pay $80 a month to the CAS to assist with the cost of the care of the child. The material discloses that that obligation is met by the mother by the assignment of a portion of the federal child tax credit to the Children's Aid Society.

[7] The mother commenced proceedings for variation on May 1, 2003. She listed her earnings on a net basis including the remainder of the child tax benefit and the support payments as $1,984 per month. She listed her monthly income, her net monthly expenses at $2,510 in her original material, including $100 per month for clothing for the children, $200 for eyeglasses on a yearly basis, $300 per month for groceries, $50 per month for school activities, school lunches at $20 per month, vacation $40, children's summer camp $50, and children's activities $50 per month. This material showed her with a monthly deficit of $516 per month.

[8] She listed the son, C.A, as residing with her. She also indicated that the order or agreement had never been assigned to either the Ontario Ministry of Community Services or any municipality. Later in the proceedings, it was recognized that through much of this time, the youngest son was either a temporary ward or permanent ward of the Children's Aid Society and as well, she had been on social assistance and, ordinarily, the child support order would have been assigned.

[9] The motion's judge awarded no retroactive support prior to the motion to change the support dated May 1, 2003 although in [page532] his reasons, he did not comment on the issue of assignment of the child support nor the circumstances that for part of those years, the youngest child had been a temporary ward of the Crown.

[10] By affidavit dated November 28, 2003, Ms. J.M.S. swore there was no material change in circumstances since her earlier Financial Statement of May 1, 2003 and her earlier affidavit sworn October 30, 2003.

[11] She then, as well, listed as an exhibit to her affidavit the order of the Provincial Court making the child a ward of the Crown and placing the child in the care of the Children's Aid Society. The order noted that access to the child by any parent should be at the discretion of the Society. It is as well noted earlier temporary care agreements for 1997 and 1998. She also attached to it a Financial Statement where she noted her expenses for C.A. were $7,560 per year: clothing $1,500, shoes $500, books and so on $1,000, presents $1,000, haircut $180, toiletries $300, allowances $120, treats $300, transportation $500, food (groceries and restaurants) $1,200 and paid to the CAS $960. This seems to conflict with the earlier Financial Statement which she filed at the beginning of the proceedings. It is difficult to reconcile the two Financial Statements.

[12] The father submitted that the younger son was not eligible for child support under the Divorce Act because as a Crown ward, he was no longer a child of the marriage as defined in the Divorce Act.

[13] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) defines a "child of the marriage" as follows:

2(1) In this Act,

"child of the marriage" means a child of two spouses or former spouses, who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; . . .

The Decision under Appeal

[14] Mr. Justice Perkins found that an order could be made varying the original support order. He went on to discuss the fact that the younger son had not taken any steps to withdraw from the "charge" of his parents. Leaving out the question of an active withdrawal from the charge of parents, the question is as to whether a parent who does not have custody or charge of the child is entitled to Guidelines support. [page533]

[15] At para. 25 of his judgment, Mr. Justice Perkins indicates:

The parent continues to have an enforceable support obligation (albeit payable to the CAS rather than to the person with whom the child is placed) . . .

He goes on at para. 26 to indicate:

On the facts of this case, the parties' younger son appears to be still physically and financially under the mother's "charge", to use the term found in the definition of "child of the marriage" in section 2 of the Divorce Act. She is, under a binding agreement, making a direct payment for his support to the children's aid society. She is making a major contribution (greater by far than that sought from the father for this child -- see below) in direct expenditures she incurs herself. She provides housing, clothing, personal items and meals, as well as exercising physical custody, on a regular and frequent basis. She continues to participate in medical and other consultations regarding the son. The actual contributions she makes in physical care and financial expenditures, together with the legal rights and responsibilities she has in relation to him, even though he is a Crown ward, lead me to conclude that the younger son remains a "child of the marriage" for the purposes of the Divorce Act.

Analysis

[16] Johnston v. Johnston, [1969 262 (ON SC)], [1969] 2 O.R. 198, 4 D.L.R. (3d) 681 (H.C.J.) was decided under the previous Divorce Act and dealt with the case of whether children who were adopted continued to be children of the marriage. In that case, the court indicated:

. . . children who are no longer in law the children of the spouses in the divorce proceedings, and the protection of whose interests is the legal obligation of a person or persons not privy to such proceedings, is, in my view, to ascribe to Parliament the intention to produce an absurd result.

[17] The Child and Family Services Act, R.S.O. 1990, c. C.11 (as amended) has various sections which deal with the care, custody and supervision of children in need of protection.

[18] The father's submissions were that the child was now legally a child of the state by virtue of the Crown wardship order. The effect of Crown wardship on parents' rights and obligations was covered by the following provisions of the Child and Family Services Act, supra.

[19] Section 63(1):

63(1) Where a child is made a Crown ward under paragraph 3 of subsection 57(1), the Crown has the rights and responsibilities of a parent for the purposes of the child's care, custody and control and has the right to give or refuse consent to medical treatment for the child where a parent's consent would otherwise be required, and the Crown's powers, duties and obligations in respect of the child, except those assigned to a Director by this Act or the regulations, shall be exercised and performed by the society caring for the child. [page534]

Section 65(1) of the Act:

65(1) Where an application for review of a child's status is made under section 64, the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date; or

(c) make a further order or orders under section 57.

Section 57 of the Act:

57(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, in the child's best interests:

1. That the child be placed with or returned to a parent or another person, subject to the supervision of the society, for a specified period of at least three and not more than twelve months.

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65 or expires under subsection 71(1), and be placed in the care of the society.

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

(2) In determining which order to make under subsection (1), the court shall ask the parties what efforts the society or another agency or person made to assist the child before intervention under this Part.

(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

(9) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the [page535] court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

(Emphasis added)

[20] "Charge", in Black's Law Dictionary, 7th ed., states:

. . . A person or thing entrusted to another's care . . .

[21] "Custody" is defined in Black's Law Dictionary, 7th ed., as follows:

The care and control of a thing or person . . .

[22] "Custody" is further defined in the Concise Oxford Dictionary as follows:

Guardianship, care, (parent has custody of child, child is in the custody of father).

[23] Section 63 of the Child and Family Services Act indicates:

. . . the Crown has the rights and responsibilities of a parent for the purpose of the child's care, custody and control . . .

[24] In my view, the effect of such an order is to remove the care and control of the child from both parents once a finding has been made that the child is a child in need of protection.

[25] The definition of a "child of a marriage" and the issue of whether that child has or has not withdrawn from the "charge" of the parents is a provision inserted by the federal Parliament to deal with the not uncommon issue of teenagers going out on their own and not abiding by the rule of their parents. Subsection (b) of s. 2(1) is an extension of the dependency of a child under the federal legislation over the age of majority and is generally interpreted to cover such a child in the case of either true physical disability or more commonly continuing education. Those provisions were not intended to have one parent collect Guidelines child support from another parent while the child was being maintained by the state.

[26] The Federal Support Guidelines, ss. 7 and 9, are restricted to the relationship between the parties and the time that each of them had the child in their care and control. It does not really affect the situation such as this where the state has care and control of the child.

[27] In my view, the Child and Family Services Act at subsection 60(1) deals with the question of payment for the child as follows:

60(1) Where the court places a child in the care of,

(a) a society; or[page536]

(b) a person other than the child's parent, subject to a society's supervision,

the court may order a parent or a parent's estate to pay the society a specified amount at specified intervals for each day the child is in the society's care or supervision.

[28] However laudable the monthly payment by the mother to the Society for the care of the child, it is after all, only an assignment of part of the Federal Child Tax Credit. In my view, there is no conflict between the provisions of the Divorce Act and the provincial legislation. In effect, they both may co- exist.

[29] While counsel for the respondent mother argued that a child may have many parents for the purpose of having payments collected for the assistance of the child, it does not seem to me that that argument can be used in the converse situation. Surely, neither the federal Parliament nor the Ontario legislature would have contemplated that payments could be obtained from a parent for the support of the child as a permanent ward of the Crown, and under a different piece of legislation to have that same parent contribute support to a parent who no longer has custody of the child. To rule otherwise is, in my view, an error of law and to fail to recognize the validity of a valid provincial court order transferring responsibility for the child to the Children's Aid Society. Exercising access to the child, no matter how laudable, is not having custody and control of the child.

[30] It may well be with the advent of new provincial legislation and an indication by the Children's Aid Society that the child may be transferred back to the care and custody of the mother that the situation will change. If it does, then she will have care and control of the child and may proceed to collect maintenance from the father.

[31] It would be hoped that the Children's Aid Society would, in any case, collect something more than nominal support from the father; in this case, his employment and his pay have been known to the provincial agency collecting such sums for many years.

[32] The appeal is allowed. The order of Perkins J. is varied in that the portion of maintenance directed to the child C.A. is removed.

[33] Leave was granted to appeal the costs order of $4,500 against the appellant. As the appellant at appeal is now successful on both issues, the costs order is set aside. The appeal as to costs is allowed.

[34] Both parties may make submissions as to costs of the variation hearing and the costs on appeal, the appellant within 21 days in writing and the respondent within ten days thereafter. [page537]

SWINTON J.: --

[1] F.J.M. appeals from an order of Perkins J. dated September 13, 2004 and seeks leave to appeal from a costs order made March 29, 2005. At issue in this appeal is whether the parties' son ("C") is a child of the marriage for purposes of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended, given that he is a permanent ward of the Crown.

Factual Background

[2] The parties married on March 19, 1988, separated on October 27, 1992 and were divorced on June 26, 1995. They have two sons, now aged 16 and 15 years. Child support ordered at the time of the divorce was $25 per month per child payable by the appellant father as long as he was in receipt of UIC benefits or employment income totalling $1,000 per month, net.

[3] On May 1, 2003, the respondent mother moved under the Divorce Act to vary the child support order, seeking to increase child support for both children to the level set out in the Federal Child Support Guidelines, S.O.R./97-175 and seeking retroactivity to 1995. Her Notice of Motion was subsequently amended to claim retroactivity from September 1999.

[4] The younger child, C, has a history of emotional and behavioural difficulties. He was placed in the temporary care of a Children's Aid Society three times, first in 1995, again in 1996 and then in March 1998. In September 1996, he was diagnosed as suffering from pervasive developmental disorder.

[5] Pursuant to an application by Children and Family Services for York Region, an order was made in the Superior Court of Justice on September 24, 1998, declaring that C was a child in need of protection under s. 57 of the Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA"), and he was made a Crown ward pursuant to s. 57(1)3 and placed in the care of the Children's Aid Society of York Region. Access by any parent was to be at the discretion of the Society. By agreement, a payment order under s. 60 of the Act was made in the amount of $80 per month against the respondent mother.

[6] As a Crown ward, C is dealt with by the Society pursuant to s. 61 of the CFSA. The section mandates that the Society shall choose the child's residential placement and shall ensure that he receives an education that corresponds to his aptitudes and abilities. Pursuant to s. 61(5), the Society "having care of a child" shall take into account the wishes of any parent who is "entitled" to access to the child when making major decisions concerning the child. [page538]

[7] Pursuant to s. 63 of the CFSA, the Crown is extended the rights and responsibilities of a parent for the purpose of the child's care, custody and control. Subsection 63(1) reads:

Where a child is made a Crown ward under paragraph 3 of subsection 57 (1), the Crown has the rights and responsibilities of a parent for the purpose of the child's care, custody and control and has the right to give or refuse consent to medical treatment for the child where a parent's consent would otherwise be required, and the Crown's powers, duties and obligations in respect of the child, except those assigned to a Director by this Act or the regulations, shall be exercised and performed by the society caring for the child.

[8] Pursuant to s. 61(5) of the CFSA, the Society having care of the child shall ensure that the child is afforded all the rights referred to in Part V ("Rights of Children"). Section 105 is found in that Part and provides for the following rights:

105(1) A child in care has a right to a plan of care designed to meet the child's particular needs, which shall be prepared within thirty days of the child's admission to the residential placement.

(2) A child in care has a right,

(a) to participate in the development of the child's individual plan of care and in any changes made to it;

(b) to receive meals that are well-balanced, of good quality and appropriate for the child;

(c) to be provided with clothing that is of good quality and appropriate for the child, given the child's size and activities and prevailing weather conditions;

(d) to receive medical and dental care, subject to section 106, at regular intervals and whenever required, in a community setting whenever possible;

(e) to receive an education that corresponds to the child's aptitudes and abilities, in a community setting whenever possible; and

(f) to participate in recreational and athletic activities that are appropriate for the child's aptitudes and interests, in a community setting whenever possible.

[9] According to the respondent's affidavit of August 21, 2003, C was declared a Crown ward so that he could receive court order, C was placed in a group home, where he still lives.

[10] According to the respondent's affidavit, she has regular contact with C, bringing him home every other weekend, at Christmas and March break and during half the summer holidays. Although the government has responsibility for C's accommodation, food, clothing, health-related and transportation expenses and other necessities of life because of the Crown wardship order, [page539] the respondent also provides C with clothing, toys and sports equipment, haircuts and personal items, and she takes him out to lunch or dinner on occasions with his brother. In total, she spends about $550 per month towards C's care. She also does his laundry and attends at his doctor's and dentist's appointments.

The Decision under Appeal

[11] One of the major issues before the motions judge was whether C is a "child of the marriage" within s. 2(1) of the Divorce Act. The definition is as follows:

"child of the marriage" means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life . . .

[12] The motions judge interpreted para. (a) as applying only if the child has taken action to withdraw from the charge of his parents. In his view, an application for Crown wardship by a children's aid society, a parent's consent to Crown wardship or a court order of Crown wardship did not amount to a child's withdrawal from the charge of his parents (at para. 15 of his reasons [[2004] O.J. No. 3768]).

[13] He then went on to ask "whether a child who is a Crown ward remains in the circumstances of this case a aechild of two spouses or former spouses' or becomes instead the child of the state" (at para. 16). He contrasted adoption, where there has been a termination of parental rights and obligations for the child by statute, with Crown wardship (at paras. 24-25). He then concluded at para. 26:

On the facts of this case, the parties' younger son appears to be still physically and financially under the mother's "charge", to use the term in the definition of "child of the marriage" in section 2 of the Divorce Act. She is, under a binding agreement, making a direct payment for his support to the children's aid society. She is making a major contribution (greater by far than that sought by the father for this child -- see below) in direct expenditures she incurs herself. She provides housing, clothing, personal items and meals, as well as exercising physical custody, on a regular and frequent basis. She continues to participate in medical and other consultations regarding the son. The actual contribution she makes in physical care and financial expenditures, together with the legal rights and responsibilities she has in relation to him, even though he is a Crown ward, lead me to conclude that the younger son remains a "child of the marriage" for the purposes of the Divorce Act. [page540]

[14] He went on to rule that child support would be payable for both children by the appellant at the table rate in the guidelines in the amount of $528 beginning May 1, 2003 based on a 2003 income of $36,744 and $677.50 per month beginning May 1, 2004, based on a 2004 income of $48,253. He rejected the request for retroactivity to 1999, holding that the new support amount would be effective May 1, 2003, the date the motion to change the support was filed.

Analysis

[15] On a motion to vary child support under s. 17(1) of the Divorce Act, the judge must determine that there has been a material change of circumstances (s. 17(4)). Subsection 17(6.1) then provides that "A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines."

[16] Subsection 17(6.2) provides that a court may make an order different from the amount that would have been ordered in accordance with the guidelines if special provisions have otherwise been made for the benefit of the child. However, according to the motions judge's reasons, no one relied on that provision, nor provided evidence that it should or should not apply.

[17] The issue on this appeal is whether the child C, having been made a Crown ward, is still a "child of the marriage". The answer to that question turns on the meaning of para. (a) of the definition in s. 2(1) of the Divorce Act, quoted earlier. It provides that a child of the marriage means a child of two spouses or former spouses who, at the material time, "is under the age of majority and who has not withdrawn from their charge". The motions judge concluded that the words "who has not withdrawn from their charge" requires action on the part of the child.

[18] Prior to 1997, the definition of a child of the marriage made no reference to withdrawal from charge for a child under the age of 16 years. Instead, the right to claim support for a child under 16 years of age rested solely on the criterion of age. The earlier version of the definition read:

"children of the marriage" means each child of a husband and wife who at the material time is

(a) under the age of sixteen years, or

(b) sixteen years of age or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw himself from their charge or to provide himself with the necessaries of life.

[page541]

[19] The current definition of "child of the marriage" in both paras. (a) and (b) makes reference to a child who has withdrawn from the parents' charge.

[20] The jurisprudence interpreting withdrawal from the parents' charge for children over 16 years under the prior version of the legislation and over the age of majority in the current legislation emphasizes the child's voluntary withdrawal from the care and support of the parents. Often, this arises in the context where a child attending an educational institution is dependent on the parents for financial support, and a court finds the child still under a parent's charge (see, for example, Tapson v. Tapson, [1970] 1 O.R. 521, [1969 541 (ON CA)], 2 R.F.L. 305 (C.A.), p. 523 O.R., p. 308 R.F.L.). In Tapson, Laskin J.A. interpreted the phrase "under their charge" broadly to mean "that the parent has assumed the care and maintenance of the child in the parent's premises" (at p. 523 O.R., p. 307 R.F.L.). He went on to say (at p. 523 O.R., p. 308 R.F.L.):

An order for maintenance or for interim maintenance based on a child 16 years of age or over being in the charge of a parent assumes, of course, that the child is living with the parent in the parent's care and to that extent, within the parent's responsibility for maintenance.

[21] The appellant made reference to the decision in Buzon v. Buzon, [1999] A.J. No. 371, 48 R.F.L. (4th) 263 (Q.B.), which held that support was not payable for a disabled adult child because he was receiving social assistance. However, this case dealt with the application of the Federal Child Support Guidelines to an adult child, rather than the definition of a "child of the marriage", and it is of no assistance in this case.

[22] In interpreting a statute, the words are to be read "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (Rizzo & Rizzo Shoes Ltd. (Re), [1998 837 (SCC)], [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21). While the phrase "has withdrawn from their charge" in para. (a) might on first reading suggest some action on the part of the child, in my view, that is not the proper interpretation of the language, when the words are read in context with para. (b) and the French version of the definition.

[23] Both the French and English versions of a federal Act are equally authoritative, and they should be read together so that both versions of the Act are harmonious (Ruth Sullivan, Statutory Interpretation (Concord, Ont.: Irwin Law, 1997), p. 91). To read para. (a) of the English version as requiring an act by the child is inconsistent with the French version of the Act, which states: [page542]

<<enfant … charge>> Enfant des deux ‚poux ou ex-‚poux qui, … l'‚poque consid‚r‚e, se trouve dans une des situations suivantes:

a) il n'est pas majeur et est … leur charge;

b) il est majeur et est … leur charge, sans pouvoir, pour cause notamment de maladie ou d'invalidit‚, cesser d'ˆtre … leur charge ou subvenir … ses propres besoins.

(Emphasis added)

The French version of para. (a) of the definition does not suggest that there must be some action on the part of the child; rather, it requires the court to determine whether the child is a minor and still in the charge of a parent.

[24] One purpose of the definition of a "child of the marriage" is to identify those children for whom support may be ordered under ss. 15 and 17 of the Divorce Act; another is to determine those children for whom a custody or access order may be made pursuant to ss. 16 and 17 of the Act. The French definition of "enfant … charge" makes it clear that the Act is dealing with dependent children -- that is, those still under the care of a parent responsible for their maintenance.

[25] In my view, the words "has not withdrawn from their charge" in para. (a) of the English version should be read consistently with the words in para. (b) and with the French version of the Act. The issue for a court to determine is whether the child is, at the material time, still under the care and maintenance of a parent and, therefore, dependent on him or her for support.

[26] To answer that question in this case, one must consider the provincial legislation governing Crown wardship. C was made a Crown ward pursuant to s. 57(1)3 of the CFSA, which reads:

57(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, in the child's best interests:

1. That the child be placed with or returned to a parent or another person, subject to the supervision of the society, for a specified period of at least three and not more than twelve months.

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65 or expires under subsection 71(1), and be placed in the care of the society.

4. That the child be made a ward of the society under para. 2 for a specified period and then be returned to a parent or another person [page543] under para. 1, for a period or periods not exceeding an aggregate of twelve months.

(2) In determining which order to make under subsection (1), the court shall ask the parties what efforts the society or another agency or person made to assist the child before intervention under this Part.

(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under para. 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under para. 1 of subsection (1) with the consent of the relative or other person.

(9) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

(Emphasis added)

[27] It is noteworthy that s. 57 refers a number of times to the person who had "charge" of the child immediately before intervention under this Part of the Act. This implies that the order of Crown wardship terminates the charge of the person who had previously had responsibility for the child's care.

[28] Section 58 of the CFSA permits the court to make an access order. A similar reference to "charge" of the child is found in s. 59(1), dealing with access:

59(1) Where an order is made under para. 1 or 2 of subsection 57(1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with him or her would not be in the child's best interests.

(2) The court shall not make or vary an access order with respect to a Crown ward under section 58 (access) or section 65 (status review) unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for a permanent or stable placement.

(Emphasis added) [page544]

[29] Again, this suggests that the charge of a person, including a parent, is terminated by the order of Crown wardship. Indeed, given the powers conferred on the Crown pursuant to ss. 61 and 63(1) of the CFSA as a result of the Crown wardship order, it follows that a parent who had previously had charge of a child ceases to have charge once the order is made. Pursuant to s. 61, the Society shall choose the child's residential placement and shall ensure that he or she receives an appropriate education. Pursuant to s. 63(1), quoted above in para. 7 of these reasons, the Crown assumes the rights and responsibilities of a parent for the purpose of the child's care, custody and control. Moreover, it is clear that the child becomes a dependent of the state, given his or her rights under s. 105, set out above in para. 8 of these reasons. No evidence was led in this case about the inadequacy of the financial support provided to C by the government.

[30] The motions judge noted that there was a distinction between adoption and Crown wardship, and concluded that in the circumstances of this case, C remained a child of the marriage rather than a child of the state, despite the fact that he is a Crown ward. In my view, the motions judge focused on the wrong question. The issue before him was whether a child who is a Crown ward remains in the charge of a parent within the meaning of para. (a) of the definition of a "child of the marriage", not whether he remained the child of the parties. Given the statutory scheme in the CFSA, a Crown ward is no longer in the charge of his or her parents, even though he remains their child in law. Therefore, he is not a child of the marriage, either for purposes of an order for child support or custody and access under the Divorce Act.

[31] Counsel for the respondent submitted that on the facts of this case, C is still under his mother's charge extensively, and he remains financially dependent on her. There is no doubt that the respondent continues to play an active role in his life, and C remains an important member of the family. However, the respondent is now in the position of an access parent under the CFSA, and primary responsibility for C's custody, care and support has been assumed by the government.

[32] While the respondent incurs expenses for C, she is not entitled to claim child support from the appellant under the Federal Child Support Guidelines, as C is no longer a child of the marriage under the Divorce Act while he remains a Crown ward. Indeed, the guidelines are not appropriately applied in this case, as they were established to deal with payments from a payor spouse to the payee spouse who has the primary responsibility for housing and looking after their child. As the Court of Appeal [page545] stated in Horner v. Horner (2004), [2004 34381 (ON CA)], 72 O.R. (3d) 561, [2004] O.J. No. 4268 (C.A.), the guidelines impose a duty on a parent to pay support in accordance with his or her income, so as not to penalize the child nor to place a disproportionate burden of support on the parent with the day-to-day care of the child (at para. 85). Those guidelines assume a joint obligation of parents to maintain the children of the marriage in accordance with their relative financial abilities to contribute (s. 26.1 of the Act), with payment made by a payor spouse to the parent with whom the child primarily resides. Moreover, no support is payable to an access parent unless that parent has physical custody or exercises a right of access to the child not less than 40 per cent of the time (see s. 9 of the Guidelines and Contino v. Leonelli-Contino (2003), [2003 30327 (ON CA)], 67 O.R. (3d) 703, [2003] O.J. No. 4128 (C.A.), at paras. 3, 31). The respondent mother in this case does not meet that level of access.

[33] In my view, the motions judge erred in ordering the table amount of child support for C, as the Federal Child Support Guidelines do not apply because C is not a child of the marriage so long as he is a Crown ward. While the appellant clearly has a moral responsibility to provide financial assistance for his son, the respondent can not claim child support from him under the Divorce Act. It is the role of the Children's Aid Society to seek support from the appellant pursuant to s. 60 of the CFSA, if it wishes to do so.

[34] The appeal is allowed, and the order of the motions judge is varied to substitute the amount payable under the Federal Child Support Guidelines for one child at the income levels determined by the motions judge.

[35] The appellant also sought leave to appeal the costs order of $4,500 made against him by the motions judge. Leave was granted. However, there is no need to canvass the arguments made on this issue, which were premised on the assumption that the appeal on the merits would be dismissed. The appeal on the merits having been allowed, the costs order of the motions judge must be reconsidered in light of this result. Therefore, the appeal with respect to costs is allowed, and the costs order is set aside.

[36] The parties have not made submissions on the costs of the appeal or the appropriate order with respect to costs of the motion to vary, given the result on the appeal. The appellant may make brief written submissions on the costs of the appeal and of the motion to vary within 21 days of the release of this decision, with the respondent to make submissions within ten days thereafter. [page546]

[37] MOLLOY J. (dissenting): -- I agree with the decision of Swinton J. as to the importance of interpreting the English and French versions of the Divorce Act in a consistent manner. I also agree that the correct interpretation of the words "has not withdrawn from their charge" in s. 2(1)(a) of the Divorce Act does not import any requirement of an overt voluntary act on the child's part in withdrawing from his parent's charge. The fact that a child is no longer "in the charge" of the parent seeking the support order is sufficient to take the child out of the definition of "child of the marriage" in the Divorce Act. However, I do not agree with Swinton J. that such an interpretation inevitably leads to the conclusion that a child who has been found in need of protection and is therefore in the care of a children's aid society is necessarily not a "child of the marriage" within the meaning of the Divorce Act. On the contrary, in my opinion, the particular circumstances of the child must be looked at in context to determine if the parent seeking support may still be regarded as having "charge" of the child to a sufficient degree to be eligible to receive support for that child. I therefore disagree with the result reached by the majority. In the particular circumstances of this case, I would have found C remains a child of the marriage notwithstanding the intervention of the CAS protection order, and I would have upheld the decision of the motion judge in ordering the respondent father to pay child support for C to the mother.

[38] In my view, whether a child has withdrawn from his mother's charge is a question of fact. I agree with the motion judge's observations with respect to the significant differences between protection orders and adoptions. Adoptions are final and exclude the natural parents from involvement. An adoption order is clearly inconsistent with a child still being "in the charge" of his natural parents. However, the consequences of a protection order are not as clear-cut. Protection orders can be made in widely divergent circumstances and with great variation in the extent of parental involvement. In order to determine if a particular protection order results in the parent no longer having the "charge" of the child, it is necessary to examine the circumstances in which the order was made and the nature and degree of parental involvement thereafter.

[39] In determining the mother's entitlement to support in this case, it is relevant to consider the particular context in which the protection order in this case arose. C is a child with disabilities. The nature of those disabilities made it impossible for his mother to continue caring for him on her own. He required a residential placement, the cost of which was beyond the mother's financial means. Prior to 1997, a parent who was financially unable to [page547] meet the special needs of a child because of that child's disability, could enter into a Special Needs Agreement with the Minister or with a children's aid society pursuant to which the government would provide the required services: s. 30 of the CFSA. However, in 1997, the government abandoned this program and no new Special Needs Agreements were entered into thereafter. For parents who could not afford to provide the services themselves, the only alternative was to give up their children to the CAS and the services could then be provided directly by the CAS. That is what happened in this case. C required special care because of his disability and his mother could not pay for it. Special Needs Agreements, although provided for in the legislation, were no longer being made available by the government. Therefore, in 1998, C's mother consented to a protection order being made in favour of CAS and C was then placed in a group home with a program to meet his needs.

[40] This is not a situation in which there was any inadequate care or wrongdoing by the mother, nor is it a situation in which the child's conduct made it necessary to remove him from his parent. Rather, through no fault of either the mother or the child, the combination of the child's disability and the mother's limited resources resulted in this protection order arrangement being made.

[41] The applicant mother has extensive contact and involvement with her son, C. She continues to maintain a home for him and for his brother. C spends weekends, holidays and summer vacations with his mother and brother in that home. His mother also continues to be actively involved in his health care and attends all of his medical appointments with him. She has direct expenditures for C of $550 per month, including such things as clothing, toys, sports equipment and other personal items. Although the CAS provides for C's basic needs such as food and shelter, these are supplemented by his mother, and necessarily so. She has two sons and does not differentiate between them in terms of the type of clothing, running shoes and recreational items both boys have. That is appropriate and important. Otherwise, C would be in an inferior position vis-…- vis his brother, solely because of his disability.

[42] The underlying and overarching purpose of the CFSA is to protect the best interests of the child. The CFSA also specifies the importance of continuity and maintenance of the family in determining the best interests of the child. All provisions of the CFSA must be interpreted in that light. Further, because of the supremacy of s. 15 of the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code, R.S.O. 1990, c. H.19, [page548] it is necessary to interpret other legislation in a manner consistent with the protection of equality rights. C is a child with a disability. He is entitled to have his special needs arising from his disability accommodated, unless to do so would cause undue hardship. A construction of other legislation that would result in adverse treatment of C because of his disability is to be avoided. These are important overriding principles, which must inform the interpretation of the relevant legislative provisions in this case.

[43] In my opinion, the proper application of these principles to the circumstances of this case leads to the conclusion that C has not "withdrawn" from the "charge" of his mother. Because of his disability, he is residing for a substantial part of the time in a group home and is subject to the control of the CAS for that purpose. This, however, was effected with the consent of his mother and solely for the purpose of accommodating his disability. It is clearly in his best interests to have regular and substantial involvement with his mother and brother, which is recognized by the CAS. It is also in his best interests to know he has a regular home with his mother and brother and that he and his brother be treated even-handedly by their mother. His mother is incurring substantial expenses to meet these needs. The purpose of the support obligations in the Divorce Act is to avoid penalizing a child upon divorce and to avoid placing a disproportionate financial burden on the parent with primary responsibility for the child, thus recognizing the joint responsibility of both parents to support their children in accordance with their respective abilities: Horner v. Horner, supra.

[44] All of these factors point to an interpretation of the Divorce Act that would include C as a "child of the marriage". Indeed, the opposite interpretation:

(a) results in C being treated differently and less advantageously because of his disability;

(b) makes it difficult for their mother to ensure that C receives the same standard of living as his brother who lives at home all of the time;

(c) places a disproportionate burden for C's care on his mother;

(d) ignores the father's legal responsibility to contribute to the support of both of his children; and,

(e) therefore, cannot be said to be in C's best interests.

[page549]

[45] Such an interpretation could only be justified if it were the only possible interpretation of the provision in question. In my view, it is not. The issue is what is meant by the word "charge". In my opinion, it involves a relationship of financial support and financial dependence rather than physical care, control and custody. The word "charge" is used in both subsections (a) and (b) of s. 2(1) of the Divorce Act. Section 2(1)(b) relates to a child who is the age of majority or over, and thus in the eyes of the law, an adult. It includes competent adults who are unable to withdraw from their parents' "charge" for whatever cause, a typical example being adult children who are still attending university. Parents in that situation cannot be seen to have physical "care and custody", nor are they legally capable of "control" over their adult children. However, if the children are still financially dependent for valid reasons, then the child is considered to be in the parents' "charge" for purposes of support obligations under the Divorce Act. The word "charge" should be interpreted in the same manner in subsections (a) and (b). I therefore interpret s. 2(1)(a) as also being concerned with financial responsibility and financial dependence, rather than physical care and control. With young children, financial responsibility typically accompanies physical care and control of the child, but this is not necessarily always the case. Finally, s. 2(1) of the Divorce Act does not require that a child be in the "exclusive" charge of the parent seeking support. It therefore does not necessarily preclude a situation in which the child receives some, but not complete, financial assistance elsewhere, but is nevertheless a financial charge on a parent. In my opinion, that is precisely the situation in this case. Although the CAS provides substantial financial assistance to C, so too does his mother and he is, therefore, still in her "charge" for purposes of s. 2(1) of the Divorce Act.

[46] There is nothing in the CFSA that requires a protection order to usurp the entitlement of a parent financially supporting a child to seek support from the other parent. As a practical matter, it is likely the case that for the vast majority of children under protection orders, the parents cannot be said to still have "charge" of the child. It will be a rare case where a child in the care of the CAS will have the kind of regular contact with a parent that C does, and where the parent will incur such substantial expense to support the child over and above what is being paid for by the CAS, as the mother in this case has demonstrated. Since the circumstances in which protection orders can arise are infinitely variable, the court should remain flexible in determining the implications of protection orders outside the CFSA. In this case, it is reasonable to conclude that this particular child in [page550] the particular circumstances of this case has not "withdrawn" from his mother's "charge" as she continues to provide him with a home and with substantial financial support beyond what she contributes to the CAS and what the CAS itself pays for C's care.

[47] An affluent divorced parent is able to send her child to a private boarding school without being deemed to have lost "charge" of the child for purposes of determining whether he is a "child of the marriage" for support purposes. If C's mother had been able to afford a private boarding school to accommodate C's disability, had placed him there herself and had paid for it out of her own resources, C would clearly be considered a "child of the marriage" and his father would be obliged to pay support to his mother in accordance with the Guidelines. Further, the costs of the private boarding school would be regarded as an exceptional expense to which the father would be obliged to contribute proportionally pursuant to s. 7 of the Federal Child Support Guidelines. I do not see anything in the CFSA or the Divorce Act that requires a child with a disability whose mother is not rich to be treated differently from the child of a rich parent who sends him to an expensive private school. Neither do I see any justification in either piece of legislation for entitling the affluent mother to support from her child's father, while disentitling the mother of modest means from the same type of relief. C is in his mother's care and control to the same extent as he would be if away for most of the year at a private boarding school or university. I do not consider the amount of time he spends at the group home to be a factor disentitling his mother from obtaining support.

[48] The CAS also has a right to seek a support order from the parents of a child under a protection order. C's mother does pay some support to CAS pursuant to such an order. The fact that the CAS is also entitled to seek a support order from C's father is not necessarily a barrier to the father paying support to the mother. The expenses covered by the CAS, to which the father would be contributing, are quite separate from the expenses incurred by the mother. However, if the father was paying such support to CAS, that could be a special factor to be taken into account in determining the extent to which he might also be required to contribute to other expenses borne solely by the mother. However, that does not arise here as the CAS has not sought such an order.

[49] In circumstances such as these, it may well be appropriate to make an order for support that is other than the Guidelines amount, since much of the ordinary room and board and basic [page551] expenses for C are covered by the CAS. Section 15.1(5) of the Divorce Act would enable a departure from the Guidelines amount in this type of situation. In this case, the motion judge concluded that since neither party had argued or relied upon this provision, he would not apply it. That was reasonable in the circumstances. Further, in light of the amount of support ordered, the needs of the child and the comparative financial abilities of each parent, the quantum of the support is reasonable in any event and I would not have interfered with it.

Appeal allowed.

@1@HFAM,

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