ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-09-102
DATE: 2012/04/16

BETWEEN:

LINDA MORIN Applicant – and – MICHEL LECLERC Respondent

Richard Chatelain, for the Applicant

Steve Duplain, for the Respondent

HEARD: April 10, 2012

DECISION ON MOTION FOR SUPPORT FOR AN ADULT CHILD

LALONDE J.

Introduction

[ 1 ] This is a motion by the applicant and a cross‑motion by the respondent concerning financial support for an adult child, Eric Morin (“Eric”), born October 30, 1991, who turned 20 last fall. Eric had been out of school for a period of time and on January 6, 2012, he commenced his post‑secondary studies in music engineering at Pierce College in Los Angeles, California.

[ 2 ] The applicant wants the respondent to help pay the $16,098 cost per year for Eric’s tuition, living expenses, and school supplies for three years. The respondent is refusing to provide financial support arguing that Eric has withdrawn from parental control, has squandered educational opportunities in the recent past and that he cannot afford to contribute support.

Facts

[ 3 ] The parties started to live together in 1984 and separated in 1992. Eric was their only child. The applicant has not worked since 2007 when she was diagnosed with breast cancer and had a double mastectomy in August of 2007. In 2008, she was diagnosed with cervical cancer and had a full abdominal hysterectomy. As a result, she is in receipt of disability pension and her income for 2009 was $8,251 and in 2009, $8,218.

[ 4 ] The respondent is an electrician and stated that he earns between $55,000 and $60,000 per year. In his submission in court, counsel for the respondent said that his client did not own property, was renting his living quarters and at 52 years of age, has not accumulated any funds towards a pension.

[ 5 ] The parties consented to a final order before Master MacLeod on March 3, 2009, whereby the applicant received full custody of Eric who was then 18 years of age. The respondent was ordered to pay $434 per month to support Eric based on an annual income of $53,792.54 as specified. The order provided also that the respondent was to pay $200 per month on child support arrears, and pay his proportionate share of special and extraordinary expenses. The order further provided that the applicant had to consult the respondent prior to incurring expenses above $100 at which time reasonable consent would not be withheld.

[ 6 ] The child residential history is relevant and his track record in attending school or not attending school has to be examined. I accept the applicant’s history of Eric’s residence as contained in the applicant’s March 12, 2012 affidavit largely uncontested by the respondent father and as follows:

• Eric went to live with his father for the month of July and August 2009;

• Eric returned to live with his mother in September 2009;

• It was then decided that Eric would not go back to school for September to December;

• During that time, Eric registered for a music course at Algonquin College for January 2010, the applicant paid the registration fee of $135;

• Then Eric was informed that there was no more availability for that course in January 2010;

• Plans had been made for Eric to attend the Algonquin course for the 2010‑2011 school years, the fees being approximately $6,000 per year;

• In March 2010, Eric received a letter from Algonquin College saying that he was accepted;

• The applicant had requested the father to contribute approximately $3,000 expecting that she would have to contribute the same amount and maybe O.S.A.P. helping cover some of the fees;

• The father made it clear that he was not going to pay for it;

• When the applicant asked Eric to come back to live with her in August 2010 Eric advised her that he was taking a year off from school as his father had taken a job abroad and he had been asked by his father to remain in his father’s apartment to take care of it while his father was gone.

[ 7 ] I find that the respondent’s job abroad did not materialize and the father found jobs for Eric who remained with his father until November 2010 when Eric returned to live with his mother. At that time, the applicant found work for Eric as a janitor where he worked until June 2011 and then Eric worked at Kanata Ford from September 2011 until he left for school in Los Angeles in January 2012.

[ 8 ] While living with his father, Eric paid room and board. While living with his mother, Eric did not pay room and board and saved money for his school. The applicant claimed that Pierce College is one of the best schools in music engineering and that part of the costs is covered by a student bursary that Eric has already obtained. Eric will be staying with the applicant’s sister in a very controlled, secure and disciplined environment. There are strict house rules in place and Eric has a model, a cousin doing a third year in university in art school. Eric’s aunt is a professional artist who has her own studio in Los Angeles.

Issues

[ 9 ] These are the issues to be considered:

A. Has Eric withdrawn from parental control?

B. Has 20 year old Eric’s absence from school in 2010 and 2011 precluded him from being supported by his father?

C. In the event that the respondent is made to support Eric, what is his share of Eric’s expenses?

Analysis and Decision

[ 10 ] I find that Eric has not withdrawn from parental control. Despite having moved to his father’s apartment, Eric was living with his mother from September 2011 until his departure for Los Angeles in January 2012. Aside from the year off Eric took off from school to look after his father’s place while the father was supposed to work away from the city, Eric was in the care of his mother. The applicant had received sole custody of Eric with the father’s consent as that formed part of the March 3, 2009 court order (the court order).

[ 11 ] The respondent tried his best to have Eric leave school so that his support obligations under the court order would be nullified. When Eric found out that his father was not going to work out of town, he moved back to live with his mother and applied to get in the Algonquin College only to be told that there was no place for him for the next semester. The applicant’s statement that the respondent’s failure to pay support for Eric and supply her with post‑dated cheques is believed. I also believe the applicant when she stated that the respondent would also not contribute to Eric’s bus pass as required by the court order.

[ 12 ] Eric’s January 2, 2012 letter filed with the court shows that he has not withdrawn from parental control. He hopes that his father will support him for all his future endeavours. Eric is in Los Angeles with the support of his mother with whom he was living and will continue to live once college is out for the summer. The respondent by his failure to support Eric in the past and his failure to encourage Eric in post‑secondary studies, demonstrated that it was futile to seek his consent to allow Eric to enrol at Pierce College.

[ 13 ] Dealing with Eric’s aptitudes for music, I find that his interest and motivation to learn in that field is not farfetched. The respondent attempted to have Eric interested in the construction industry but that was not in Eric’s plans. In 2008, Eric was in all likelihood adversely affected by his mother’s operations for cancer. Knowing that his father was apathetic towards him and that his father wanted him to work instead of going to school, Eric did what he thought pleased his father. I find that it was partly the respondent’s fault that Eric did not attend Algonquin College, where he had been accepted in September 2010.

[ 14 ] Eric is now accepted and is attending Pierce College and until there is evidence to the contrary, namely that he is not studying and doing what he needs to do to succeed, he will remain in the current program supported by both his parents. There are many members of Eric’s family involved in music. Eric should be given a chance to prove himself in his chosen field.

[ 15 ] I accept the law as set out in Mr. Justice Pazaratz in Haley v. Haley , 2008 2607 (ON SC) , [2008] 49 RFL (6th) 190. In that case, the father had refused to help pay for his 21 year old son’s cost of attending animation school in Toronto. Justice Pazaratz found that the two years the son had spent out of the school system after finishing high school while refining and attempting to implement an education plan, including an unsuccessful attempt to save money, did not disentitle him from reinstating his status as a child of the marriage.

[ 16 ] This application has to be considered made pursuant to the Family Law Act . Eric is a mature child, has not terminated his relationship with his father and is enrolled according to the evidence on this motion in a serious course of studies. It is true that if Eric had stayed in Ottawa, he would have had to complete one year at Algonquin College and three years at University. The respondent would have been required to share in the costs.

[ 17 ] Eric has applied for financial help and has received an O.S.A.P. bursary in the amount of $3,326. This leaves $12,732 outstanding to meet Eric’s expenses in the program, including room and board. Eric will be expected to apply for a student loan and attempt to save money through his summer employment. The shortfall on Eric’s budget will have to be met by his parents. I find that the applicant should cover at least $300 of the $450 charged to Eric for room and board by his aunt each month and I so order.

[ 18 ] In Lewi v. Lewi , 2006 15446 (ON CA) , 80 OR (3d) 321 , 2006 Carswell Ont. 2892, the Court stated that it must be an exceptional situation rather than the rule to deviate from the standard guideline approach. While the adult child is living away from home while attending a post‑secondary institution, there is no evidence that he is receiving income from other sources. I will order the respondent father to pay Eric $532 per month based on a $60,000 income on the conditions that I will enumerate later. The presumptive amount to be charged to the father is derived from the standard Child Support Guidelines approach as if the adult child of a majority age was actually a minor.

[ 19 ] I have received the list of reasonable expenses that include tuition fees, books and room and board. I have not included travelling expenses from Los Angeles to Ottawa. I consider the airfare spent in January 2012 reasonable if one considers the higher cost of bus or train fares if one adds on the cost of meals.

[ 20 ] Support will be paid by the parents for three years subject to the following terms:

(1) That the parents receive the school reports that become available to monitor how the adult child is progressing;

(2) Support will terminate when the course is completed at the end of three years or when Eric drops out of the program or does not obtain passing grades;

(3) The parties will continue to report to each other their income on June 1 st each year and Eric will disclose what he receives by way of bursary, loans and monies saved from summer employment;

(4) Eric will be obligated to furnish proof of his attendance in his program at Pierce College to both his parents.

[ 21 ] To summarize, my order gives the following result:

Eric will receive from:

Amount

O.S.A.P.

$3,326

his father ($532 x 12)

$6,384

his mother ($300 x 12)

$3,600

Total

$13,310

[ 22 ] The total is leaving Eric with a shortfall of $2,788 ($16,098 - $13,310) that will have to be met by Eric himself through a student loan and his savings derived from summer employment. No money has been allotted for travel, for clothing and personal expenses in the total of $16,098.

[ 23 ] I fix costs at $950 that the respondent will pay to the applicant within 90 days. The respondent’s support payment to Eric will retroactively commence on January 1, 2012 and continue for the three years if Eric meets the conditions I set out earlier.

Mr. Justice Paul F. Lalonde

Released: April 16, 2012

COURT FILE NO.: FC-09-102

DATE: 2012/04/16

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: LINDA MORIN Applicant – and – MICHEL LECLERC Respondent DECISION ON MOTION FOR SUPPORT FOR AN ADULT CHILD Lalonde J.

Released: April 16, 2012