Furlani v. Furlani , 2015 ONSC 1582

Court File and Parties

COURT FILE NO.: D-17,755-07

DATE: 2015/03/10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RODNEY RAYMOND FURLANI v. MYRNA EVELYN FURLANI

BEFORE: Ellies J.

COUNSEL: Gerald D. Brouillette, for the Applicant (Moving Party)

Myrna Evelyn Furlani, acting in person

HEARD: March 9, 2015

ENDORSEMENT

[1] Mr. Furlani’s motion to change proceeded to trial before me. In his motion, Mr. Furlani seeks to terminate the support he was ordered to pay for his daughter, Chelsey, in the divorce order of Hennessy J. dated July 27, 2010. Ms. Furlani opposes the request, predominately because she is concerned that Chelsey’s present circumstances are not stable enough to be sure she will continue to be independent.

[2] In my view, the motion should be allowed. Although Chelsey’s future may be somewhat uncertain, she does not presently fit within the definition of “child of the marriage”. Therefore, Mr. Furlani ought not to be required to pay support for her.

[3] I heard evidence from both Mr. and Ms. Furlani. For the most part, they agree on the evidence concerning Chelsey’s past and present circumstances and much of that evidence, although hearsay, was admitted on consent. That is fortunate, as the alternative would have required that I also hear from Chelsey.

[4] Chelsey was diagnosed at age three with cystic fibrosis. Her mother testified about the difficulties Chelsey experienced as a child and the efforts that Ms. Furlani had to make to get the doctors to finally arrive at the correct diagnosis. I understand very well the effect that diagnostic testing and treatment of young children can have on the child and the parents, alike.

[5] I also understand how difficult it can be for the parents of a child who has gone through such testing and treatment to let go, once the child has reached adulthood. There is always a fear that the past will return with a vengeance. In Chelsey’s case, it is a certainty that her illness will one day pose great challenges. In fact, she faces many challenges today, including requiring treatment for lung and sinus infections.

[6] However, at present, Chelsey is overcoming these challenges. She is now 21 years old. She lives in southern Ontario with a partner, with whom she is romantically involved. Although both her parents share concerns about it, Chelsey has entered into a formal contractual relationship as an apprentice to learn the tattoo trade. While she is not yet earning income from that trade, Chelsey does have income in the form of Ontario Disability Support Program (ODSP) payments that she has been receiving since she turned 18.

[7] It is true that both Mr. and Ms. Furlani have been required to come to Chelsey’s aid financially from time-to-time since she moved away from home. However, that is something that parents of young adults are often called upon to do. Despite the fact that Chelsey needs this financial support on occasion, I am satisfied that the order of July 27, 2010, should be terminated under s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

[8] Section 15.1 of the Divorce Act, the section under which the original child support order was made, permits the court to order a spouse to pay support for “any or all children of the marriage”. That term is defined in s. 2 of the Divorce Act to include a child of two spouses or former spouses over the age of 18 who is “unable, by reason of illness, disability or other cause”, to withdraw from her parents “charge”, or to obtain the necessities of life.

[9] Chelsey did not continue her formal schooling after graduating from high school in June of 2012. Since then, she has been able to work either part-time or full-time. Under the present arrangements with her employer, she will not be earning income until at least 2016. However, as her mother explained, that is a choice that Chelsey has made for herself. No doubt, in making it, Chelsey took into account the fact that she receives monthly disability income, a fact which I also take into account.

[10] I believe that both Ms. and Mr. Furlani are concerned about Chelsey’s future. However, I must make a determination based on the present. At present, Chelsey is able to remove herself from her parents charge and I believe that she will continue to be able to do that for the foreseeable future. She appears to be a determined young lady.

[11] Should my expectations not meet with reality, a further motion to change may one day be necessary, as counsel for Mr. Furlani stated in his submissions. For now, however, it is my conclusion that Chelsey is no longer a “child of the marriage” within the meaning of s. 2 of the Divorce Act. The motion, therefore, is allowed.

[12] I agree with both Mr. and Ms. Furlani, whom I would add were both very reasonable in their positions, that this is not a case where costs should be ordered against either party. No such order will be made.

Ellies J.

Date: March 10, 2015