CITATION: O.G. v. R.G., 2017 ONSC 6490

COURT FILE NO.: 1238/17

DATE: 2017-10-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

O.G.

Applicant (Respondent on Appeal)

– and –

R.G.

Respondent (Appellant on Appeal)

Jesse Mark and Emily Chan, for the Applicant (Respondent on Appeal)

Gary S. Joseph and Ryan M. Kniznik, for the Respondent (Appellant on Appeal)

HEARD: September 18, 2017

REASONS FOR JUDGMENT

Gray J.

[1] This is an appeal from an order of Kurz J. dated March 1, 2017. The appellant also seeks leave to appeal from Kurz J.’s costs order dated April 16, 2017.

[2] This matter has a considerable history. The applicant (respondent on appeal) is the daughter of the respondent (appellant on appeal). She is now 18 years of age. On April 28, 2016, Kiteley J. issued an order declaring that the applicant (respondent on appeal) had withdrawn from parental control. On August 22, 2016, she issued an order confirming her original order: 2016 ONSC 5292. On June 2, 2016, Gibson J. issued an order setting aside an order of Miller J. dated March 4, 2015, by which the respondent (appellant on appeal) was awarded custody of the applicant, and he ordered that neither parent had custodial or access rights to her: 2016 ONSC 3582. On February 9, 2017, the Court of Appeal dismissed appeals from the orders of Kiteley J. and Gibson J.: 2017 ONCA 108.

[3] Hereafter, to avoid confusion, I will refer to the applicant, respondent on the appeal, as the “respondent”, and the respondent, appellant on the appeal, as the “appellant.”

[4] By application issued on July 7, 2016, the respondent sought an order for child support from the appellant, pursuant to s.31 of the Family Law Act. It is that application that gave rise to the order of Kurz J. that is the subject of the appeal to this court.

[5] The appellant brought a motion for summary judgment, seeking an order that the respondent’s request for child support be dismissed.

[6] In the order under appeal, dated March 1, 2017, Kurz J. dismissed the appellant’s motion for summary judgment. Instead, he granted summary judgment to the respondent, and declared on a final basis that the respondent is entitled to child support. He held, however, that he was not in a position to make a final determination of the quantum of support, and made an interim order that the appellant pay child support in the amount of $6,500 per month, retroactive to the commencement of the application, and ordered that the appellant pay the fees and other expenses for the respondent to attend the University of Miami.

[7] For the reasons that follow, the appeal is allowed. The requests for summary judgment by both parties are dismissed, and I order that the matter proceed to trial. The order for interim support is varied, so that the appeallant will, on an interim basis, pay support in the amount of $5,300 per month, and he will pay one-half of the fees and expenses for the respondent’s attendance at the University of Miami.

Background

[8] In the proceedings under appeal, the parties have been referred to by their initials. Although, in some of the earlier proceedings, the full names of the parties had been used, the use of initials was approved by the Court of Appeal. The applicant is now 18 years of age, and she is legally an adult. While there is no apparent legal reason to continue using initials, I will do so since neither party requested that I do otherwise.

[9] The respondent’s parents separated when she was two years old. When she was about 14 years of age, her mother moved to Florida. From that point, she remained in the primary care of the appellant, her father. She would visit her mother in Florida.

[10] On March 4, 2015, Miller J. ordered, on consent, that the appellant be granted full custody of the respondent. It was ordered that the custodial rights would remain in effect until the respondent’s 18^th birthday. Miller J. further granted the appellant a term authorizing the police to apprehend and deliver the child to the father. There had been earlier proceedings before Kruzick J. and Trimble J. arising out the mother’s refusal to return the respondent from Florida. The appellant’s position was largely upheld in those proceedings.

[11] The order of Miller J. was obtained after the respondent’s refusal to return to the appellant after a summer holiday with her mother in Florida. She was returned to Ontario under police escort. There was a dispute as to whether the refusal to return to Ontario was as a result of conduct of the mother, or whether it was because of the wishes of the respondent. Apparently, the appellant alleged that the respondent was the victim of “Stockholm syndrome”. This theory was supported by a report of a psychiatrist, which was described by Kiteley J. as having no evidentiary value. It was also rejected by Gibson J.

[12] The respondent left the appellant’s home on April 13, 2016. She wanted to enter the University of Miami. This was opposed by the appellant.

[13] On April 28, 2016, the respondent attended before Kiteley J. and obtained a declaration that she had withdrawn from parental control as contemplated under s.65 of the Children’s Law Reform Act. Neither the appellant nor the respondent’s mother were named as parties, or served with the material.

[14] On June 2, 2016, Gibson J. ordered that no person shall have custodial rights of or access to the respondent.

[15] On August 22, 2016, Kiteley J. issued an endorsement after a motion, brought by the appellant, to set aside her earlier endorsement made on April 22, 2016. Among other things, she ruled that the appellant, and the respondent’s mother, were not proper parties on the original application, and had no right to receive material or participate in the proceedings. She ruled, however, that assuming they were entitled to be parties, she would have granted the declaration she made in any event.

[16] On February 9, 2017, the Court of Appeal dismissed appeals from the orders of Kiteley J. and Gibson J.: see G.(R.) v. G.(K.), 2017 ONCA 108.

[17] In its decision, the Court of Appeal held that while Kiteley J. was in error in holding that the parents were not proper parties to the application, the error was cured by the conduct of the proceedings. The Court held that ultimately the father was permitted by Kiteley J. to file material and make submissions, and Kiteley J. fully and thoroughly canvassed all the evidence and made findings based on that evidence.

[18] The Court of Appeal noted that at common law a child had the right to withdraw from parental control once the child had reached the age of discretion, and that this right appeared to be recognized in s.65 of the Children’s Law Reform Act. While there is no formal court process for a child to withdraw, the court nevertheless has the jurisdiction to make a declaration that a child has withdrawn from parental control. However, in exercising its discretion as to whether to grant declaratory relief, the court should inquire into the reasons why the declaration is sought, the utility of the remedy, and whether, if it is granted, it will resolve the issue between the parties. In this case, the declaration was necessary to allow the respondent to attend university and resolve the dispute with her father. Thus, there was a practical utility achieved by the declaration.

[19] On July 7, 2016, the respondent commenced her application for child support, pursuant to s.31 of the Family Law Act.

[20] By Notice of Motion dated November 1, 2016, the respondent requested an order for interim support, to continue “until a final order is made on the application.” Her motion was supported by a 20-page affidavit, and 15 exhibits.

[21] By Notice of Motion dated November 4, 2016, the appellant brought a motion for summary judgment, requesting that the respondent’s application for child support be dismissed. His motion was supported by a 16-page affidavit, and 15 exhibits.

[22] Thereafter, there followed a number of evidentiary and procedural steps.

[23] The appellant filed affidavits of Susan Bonhomme, Laura Khurana, and Louis Massey Breithaupt.

[24] The latter two affiants are friends of the appellant, and testified as to the relationship of the appellant and his daughter. Susan Bonhomme is the appellant’s housekeeper, and had been so since January 2013. Her evidence, and the treatment of her evidence by Kurz J., assumes some importance. Her affidavit includes the following paragraphs:

The Relationship

10. When I started working for R. in January 2013, his relationship with O. was excellent. O. spent time between Tika’s house and R.’s house, and all three of them appeared to get along great. R.’s sole focus was O.’s best interests. As such, he made sure that O. maintained a relationship with Tika and he did not talk negatively about Tika while I observed and heard their many discussions at the dinner table. In fact, R., Tika and O. all went out for dinner together in 2013.

11. I continued to watch O.’s relationship grow with R. from 2013 forward, when Tika left to move to Florida, leaving O. in R.’s primary care. They continued to eat dinner together, engage in meaningful discussions, which I observed and heard while they were eating in their home, and joke and laugh together.

12. When Tika left for Florida in 2013, R. went out of his way to spend even more time with O. They went on trips, attended baseball and hockey games, and spent time one-on-one and together with their friends. Furthermore, R. usually took O. to her doctor and dentist appointments, looking after her health.

13. I observed, being in the home, R.’s parenting of O. He was a very supportive father, making himself available to O. to provide advice and guidance, and he was very involved with O.’s education. When requested by O., R. would sit down with O. and help her with her school work. When she had a test, O. would sometimes ask for R.’s help, which he would provide, and R. would quiz O.

14. R. is a great parent. He was very involved in all aspects of O.’s life. They were so close that when O. went shopping, if R. was not with her, she would often send picture of herself to R. in clothes that she tried on and asked what he thought. R. went out of his way to make sure that O. was happy. He would make sure her friends were invited for dinner. He would listen to O. His actions demonstrate that he cared and cares deeply for O.

15. At no time, since I first met O. and R. in January 2013, did I ever observe R. address, or interact with, O. in a what which was rude, mean-spirited or high-handed.

Changing Schools

16. O. changed schools from St. Mildred’s to Oakville Trafalgar High School. The change occurred for the start of the 2015-2016 school year, namely September 2015. Since O. and I developed a close relationship, we talked about her school change on a frequent basis. At first, O. did not want to switch high schools, however, once she did, she was happy and loved attending at Oakville Trafalgar High School. O., in fact, told me, which I believe, that she loved her new school.

17. Prior to changing schools, I observed and heard R. having discussions with O. about the school change, while at their home. R., when discussing the matter, told O. why he wanted her to switch schools. When having in-depth conversations about the switch, R. indicated to O. that he thought it was in her interest to switch. St. Mildred’s was a private all-girls school, whereas Oakville Trafalgar High School was a public co-ed school. R., from hearing their conversations, wanted O. to experience the diversity of public school and attending with both males and females.

18. Also, prior to O. switching schools, O. would tell me about St. Mildred’s. She complained about the teachers at St. Mildred’s and how strict they were. She did not like wearing the St. Mildred’s uniforms to school. By switching schools, O. no long had to wear a uniform and had a change of atmosphere. When O. switched, she already had friends at Oakville Trafalgar High School, as one of her friends had already switched from St. Mildred’s. Also, O. made new friends quickly.

19. One night, before O. switched schools, while O. and R. were discussing her switching schools, O. went up to her room by herself, was upset, and called Tika. I went to O.’s room, took the phone from her and told Tika that O. would call her back as I was going to speak to O. about her being upset, and hung up the phone. I sat with O. in her bathroom and calmed her down. When I left the house that evening, O. was calm.

20. Subsequent to O. switching schools, she continued to have a close and loving relationship with R. She did not display any anger, disappointment, or resentment towards R. about switching schools. I repeat that O. told me that she loved her new school. R. continued to be supportive of O.’s education and assisting her with school work.

[25] In Ms. Khurana’s affidavit, the following appears:

13. For example, O. switched schools for the start of the September 2015 school year. She switched from St. Mildred’s School to Oakville Trafalgar High School. From discussion with R., O. did not want to switch schools. However, I saw O. a few months after she had switched schools and spoke to O., without R., about the change. O. communicated to me that she was thrilled with the change of school. O. told me, which I believe to be true, that she did not like the new school at first, however, she was very happy with the change after attending Oakville Trafalgar.

[26] In an affidavit sworn November 9, 2016, the respondent comments on the affidavit of Susan Bonhomme. She disputes much of Ms. Bonhomme’s affidavit, and in some cases refers to it as “simply a lie”, and “not true”. She states:

55. In summary, I am confused, concerned, and worried by Sue’s affidavit. There are many aspects of it that are simply untrue. Many things seem selectively absent from her affidavit, and some of it is taken out of context. I do not know why she signed this affidavit.

56. Sue and I were very close. She was one of the few people I could talk to about my dad and the way he treated me because she had witnessed so much of it first-hand. Sue was at times a mother-figure for me. She knows better than anyone the extent of my father’s controlling and oppressive behaviour that forced me to leave my home. I believe that if Sue was in a position to freely say what she knew, there would be no doubt that I left my father’s home involuntarily.

[27] The respondent filed an affidavit sworn by Hazel Flores, sworn November 10, 2016. In substance, Ms. Flores’ affidavit relates her relationship with the respondent and her parents, and in particular the fact that the respondent’s mother would stay with her when she visited Ontario after moving to Florida. She assisted the respondent in leaving her father’s home on April 13, 2016.

[28] By affidavit dated November 18, 2016, Susan Bonhomme responded to the affidavit of the respondent, in which the respondent had accused Ms. Bonhomme of lying and being untruthful. Included in her affidavit are the following:

3. At paragraph 9 O. states that R. has an “intimidating persona” and at paragraph 10 that R.’s “intimidating persona” may provide a possible explanation as to why [I] provided an affidavit in support of [R.].” I completely deny this statement. R. is not intimidating, nor did he intimidate me, pressure me or force me to provide my affidavit sworn November 2, 2016. I provided the evidence within my affidavit on my own volition.

4. Moreover, I did not draft an affidavit to “support” R. as stated at paragraph 10 of O.’s affidavit. I provided my observations and experiences.

5. O. comments from paragraph 42 to 56 of her affidavit sworn November 9, 2016 with respect to my affidavit sworn November 2, 2016, O.’s assertions that I lied and that my statements are not true is troubling. I did not lie in my affidavit. My statements are not false. I reported from my personal observations, experiences and conversations in this matter.

6. Drilling down into the specifics. O. at paragraph 42 indicated that she cares “very deeply for [me]” and that I was “caring, kind and understanding” of O. I agree that we shared a caring relationship. O. and I were very close while I was working at her home from January 2013 forward. We shared many conversations together, and spent time together enjoying each other’s company.

7. It is concerning that O. is “deeply troubled” by my affidavit sworn November 2, 2016, as outlined at paragraph 42 of her affidavit. There is nothing for Olivia to be “deeply troubled” over. As noted above, I was not influenced or intimidated to provide an affidavit. Nor do I feel “dragged into this litigation.”

8. At paragraph 43 of O’s affidavit she outlines that I earn “significantly more than minimum wage, and notably more than what a housekeeper might be paid on average in Ontario.” I am paid $60,000 per year for my services. However, this is not more than what the housekeepers in the Oakville area are paid. I speak with other housekeepers in the area and they inform me that they make a similar salary to mine. My employment with R. did not influence my prior affidavit nor this affidavit. I am not motivated in “aligning” myself with either R. or O. I am merely outlining what I have observed and experienced from January 2013 forward.

9. O.’s statement at paragraph 48 that she sent R. pictures because if she didn’t she would be punished, from the best of my knowledge is not correct. O. had not been “punished” by R. for not sending pictures. I cannot comment on whether R. thought a dress was “too slutty”, however, from knowing R., working at his home since January 2013, this is not language that he would use with O. Moreover, from my knowledge, O. did send R. pictures because they were close, not because this was a requirement.

10. O. states, at paragraph 49 that paragraph 15 of my affidavit sworn November 2, 2016 is “simply a lie,” that I saw R. “yell, swear and be verbally aggressive with [her] many, many times,” that we would “regularly talk about my dad’s rampages,” and we were in the “trenches together”. All of this is completely denied and untrue. As stated at paragraph 15 of my affidavit, I reiterate that at no time, since I first met O. and R. in January 2013, did I ever observe R. address, or interact with, O. in a way which was rude, mean-spirited or high-handed.

11. Further, contrary to O.’s statement, I did not observe R. “yell, swear and be verbally aggressive” with O. Nor did I observe or R. go on a “rampage” or discuss this “regularly” with O. We were not in the “trenches together.” O. and R. shared a closely bonded and loving relationship. They were often joking around, about their dog for example, and having many discussions and eating dinner together.

12. At paragraphs 50-51 O. discusses changing schools, the she was “scared and helpless”, and that I witnessed many interactions that were a “one-sided rant” by R. O.’s school change was discussed at paragraphs 16-20 of my affidavit sworn November 2, 2016. O. at first did not want to switch schools, however, she was not “scared and helpless”. O. was an outspoken and intelligent child. R. would engage in discussions with O. about matters. He did not engage in “one-sided rants.” If R. did not agree with O.’s position or view, he communicated this to her, however it was not in the form of a rant.

13. O. at paragraph 52 states that paragraph 2- of my affidavit sworn November 2, 2016 is “not true.” O.’s statement is false. Paragraph 20 of my affidavit is true. Paragraph 20 outlined the relationship that O. continued to have with R. after she switched schools, that O. told me she loved her new school and that R. was supportive of O.’s education.

14. In terms of R.’s decision regarding O. switching schools, whether I supported or did not support his decision is irrelevant. I was not O.’s parent. R. was O.’s parent making decisions that he viewed to be in her best interests. Moreover, O.’s statement at paragraph 52 that she “wouldn’t be allowed to expressed [her] feelings in front of” R. is not an accurate statement as to the openness of their relationship and the constant lines of communication that they had.

15. Further, O. was not merely “trying to make the best of it.” She loved her new school, to which she communicated this to me directly. O. did not express resentment of R. to me regarding the switch. In fact, she continued to seek R.’s assistance with her school work and joke around with him all the time.

16. I deny at paragraph 53 that I knew O. had been “grounded indefinitely.” There was some strain at that time because R. requested to see O.’s course selection and did not agree with her attending at the University of Miami.

17. Olivia at paragraph 54 indicates that paragraphs 21 to 24 of my affidavit are not true. The statements are true. I may have mistaken salmon for sole, however, they were eating fish that night. Moreover, generally I visit my dad in the hospital in the morning and not in the evening. I recall being at their home during their dinner.

18. There is nothing for O. to be “confused, concerned and worried” about with respect to my affidavit sworn November 2, 2016 nor this affidavit. I deny her statement that “many aspects of it...are simply untrue,” that things are taken out of context and selectively absent.

19. Paragraph 56 of O.’s affidavit indicates that I know “better than anyone the extent of my father’s controlling and oppressive behaviour that forced me to leave my home.” From my observations and experiences, R. was not controlling and oppressive. He was a loving father and who cared and still cares deeply for O. O.’s characterization of R.’s parenting and his relationship with O. is incorrect.

20. Moreover, O., at paragraph 56 again attempts to indicate that I am not freely providing my affidavits. She states “I believe that if Sue was in a position to freely say what she knew, there would be no doubt that I left my father’s home involuntarily.” I am freely providing this affidavit. Any statement of O. to the contrary is denied.

21. Lastly, at paragraph 62 O. states that “I understand Sue’s motivation for aligning herself the way she has.” I again state that I am not motivated to align myself with R. nor have I aligned myself with R. I am providing statements of my personal observations and experiences.

[29] By Notice of Motion dated November 11, 2016, the appellant sought an order limiting the financial disclosure he was required to make, and particularly disclosure related to corporations in which he had an interest. By endorsement dated November 21, 2016, Kurz J. limited the disclosure as requested, and noted that the respondent did not oppose the motion. He also stated: “Further, the disclosure above is likely sufficient for the purpose of an interim support motion.”

[30] By affidavit dated November 14, 2016, the appellant responded to the respondent’s affidavit that had been filed in support of her interim motion for child support. In substance, he disputed many of the allegations made by the respondent in her affidavit.

[31] Included in his affidavit is an explanation as to why he wanted his daughter to change schools. He stated:

As O.’s sole-custody parent in early 2015, I decided that it was in O.’s best interest to move form an all-girls private high school to a large, co-ed public high school which offered a wide range of courses. O. had free choice on many matters in her life, however in this matter I decided that O. needed to change schools and I explained my reasoning to O. very carefully on multiple occasions. Tika, who had no custody of O., called me and asked me to change my mind – and then Tika decided to breach my sole-custody court order and interfere in my decision.

[32] By Notice of Motion dated November 11, 2016, the appellant sought an order that he be entitled to question the respondent. The request was unopposed, and questioning of the respondent took place in Florida.

[33] By Notice of Motion dated November 6, 2016, the appellant sought an order permitting the questioning of the respondent’s mother. By Notice of Motion dated December 19, 2016, the appellant sought an order allowing for the questioning of Hazel Flores. By endorsements dated December 9, 2016 and January 4, 2017, those requests were denied by Kurz J.

[34] The motions giving rise to the orders now under appeal were argued on January 16, 2017. Before the argument of the motions, the only requests that were made were that of the appellant, for summary judgment dismissing the respondent’s application for child support altogether; and the respondent’s motion for an interim order for child support, pending a final determination of her entitlement to child support. In her factum, she requested, for the first time, summary judgment of her own for a final order for child support.

[35] While the decision was under reserve, the appellant, by Notice of Motion dated January 25, 2017, sought an order permitting him to file a receivership order issued by Hainey J. with respect to the respondent’s corporation. By way of an endorsement dated February 6, 2017, that request was denied.

[36] Kurz J. issued Reasons for Judgment on March 1, 2017. He ordered as follows:

a) The respondent is entitled to child support;

b) The appellant’s motion for summary judgment is dismissed;

c) A final determination of the quantum of child support is to be determined at a trial;

d) Commencing July 1, 2006, appellant shall pay temporary child support of $6,500 per month, based on an imputed income of $2,500,000 per year;

e) Appellant shall pay, on a temporary basis, all of the respondent’s college expenses, including tuition, related fees, and housing and, if she resides in residence, he will pay for her meal plan.

[37] Kurz J. also set out some procedural requirements for moving the matter to a trial. As part of that order, he required that if the appellant was going to add the respondent’s mother to the proceedings, he must do so within 20 days. The interim support order could be reapportioned only if the mother was added to the proceedings.

[38] By endorsement, dated April 26, 2017, Kurz J. ordered that the appellant pay the respondent’s costs in the amount of $17,789.72, on a full indemnity basis.

[39] By endorsement dated April 27, 2017, I refused a request to stay the order for interim child support and payment of university expenses, but stayed the order that procedural steps prior to a trial be undertaken.

[40] In his Reasons, Kurz J. noted that it had been decided by Perell J. in Kingsloft 1 Ltd. v. Emmons, 2013 ONSC 6113, [2013] O.J. No.4418 (S.C.J.); aff’d 2014 ONCA 215, [2014] O.J. No. 1333 (C.A.), that summary judgment may, in appropriate circumstances, be granted to a responding party even when the responding party has not brought its own cross-motion for summary judgment. He decided that it was appropriate to do so here.

[41] Kurz J. recognized that the case was to be determined under s.31 of the Family Law Act, which provides as follows:

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.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[Emphasis added]

[42] Kurz J. held that the exception to the general obligations set out in s.31(1), that is contained in s.31(2), applies only where a child has “voluntarily” withdrawn from parental control. That was an issue on which the parties were on common ground.

[43] Kurz J. considered the effect of the declaration of Kiteley J., upheld by the Court of Appeal, that the respondent had withdrawn from parental control. He noted that that declaration was made in connection with s.65 of Children’s Law Reform Act, which provides:

65 Nothing in this Part abrogates the right of a child of sixteen or more years of age to withdraw from parental control. [Emphasis added]

[44] Kurz J. noted that the parties agreed that the declaration under s.65 of the Children’s Law Reform Act settled the question of whether the respondent had withdrawn from parental control, but not the question of whether she had withdrawn voluntarily. While Kurz J. accepted the concession, he did not necessarily accept that it would apply in all cases. For the purpose of this appeal, it is not necessary to set out his reasoning in that respect, although I entertain some doubts about his analysis.

[45] At paragraph 85 of his reasons, Kurz J. held that it was necessary to determine whether the respondent’s conceded withdrawal from parental control was voluntary. He stated that the onus to prove the involuntariness of the withdrawal rested on the respondent.

[46] Kurz J. referred to a number of cases in which the standard of proof as to involuntariness was canvassed. In the final analysis, he determined that the bar for involuntary withdrawal is set at the level of “unbearable”. At paragraph 118, he listed the factors that must be considered in determining whether a child has involuntarily withdrawn from parental control, as follows:

[118] In sum, the facts 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 lead to a finding that withdrawal was 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.

[47] Kurz J. found that there was no genuine issue for trial, and that the applicant’s withdrawal from parental control was involuntary. He made that finding for the following reasons:

a) The appellant’s controlling nature made his parenting control unreasonable;

b) Respondent’s withdrawal was necessary to meet her best interests;

c) It was not Respondent’s intention to cut the family bonds with both parents;

d) Appellant had failed to attempt to repair his relationship with the respondent.

[48] In connection with the first issue, that is, whether the appellant failed to exercise reasonable parenting control over the respondent, Kurz J. first considered the issues that resulted in the consent order that granted the appellant full custody. He noted that while the respondent’s parents had consented to the order, her input was neither obtained nor considered. He stated the appellant had not described any consideration of the manner in which the incident affected his daughter. His apparent focus was on the mother’s behaviour, and did not refer in any way to his daughter’s views of her own interests.

[49] Next, he considered the conflict between the appellant and the respondent concerning the appellant’s decision to require the respondent to change schools. He stated that he had not been provided with any evidence that such a move was in the respondent’s best interests. He stated “There is no evidence that R consulted his almost 16 year old daughter before making his unilateral decision about her education.”

[50] Kurz J. noted that the respondent did not dispute telling some people that she was happy in her new school. He said “she explains that she had to make the best of her father’s decision and did so.”

[51] There was clearly an issue as to whether the parties had a good, or at least reasonable, relationship. At paragraph 141 of his reasons, he stated:

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 reasons to open up more to her mother’s friend, Hazel Flores, 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 aspect of herself to each of them. Nothing about the difference in their evidence raises a triable issue.

[Emphasis added]

[52] Kurz J. also stated that he was bound by the findings of Gibson J., and Benotto J.A. in the Court of Appeal. At paragraph 142, he stated:

More to the point, I am bound by the findings of Gibson J. and Benotto J.A. They reject R’s narrative of 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.

[53] The other significant issue addressed by Kurz J. was the respondent’s desire to go to university after Grade 11. The appellant had decided that it would be better if the respondent attended a further year of high school. He felt that she needed to mature before going to university.

[54] The respondent protested, and indeed applied behind the appellant’s back to the University of Miami, with her mother’s surreptitious assistance. Her mother signed a document guaranteeing payment of the respondent’s tuition. The appellant was only informed of this after the fact.

[55] After the appellant demanded proof that the respondent was enrolled in high school for the next year, the respondent left the appellant’s home.

[56] In connection with the second factor mentioned by Kurz J., that is, that the respondent’s withdrawal from parental control was necessary to meet her best interests, Kurz J. noted that the appellant was of the view that the University of Miami is a second-rate university. He stated that there was no evidence that his assessment was correct.

[57] Kurz J. held that it was clear that the appellant was not attuned to the needs of his daughter. He held that their estrangement arose out of the appellant’s unilateral decision making and his need to control his daughter.

[58] In connection with the third criterion, that is, whether it was the respondent’s intention to cut the family bonds with both parents, Kurz J. held that the respondent’s withdrawal was involuntary in that she did not withdraw from both parents for the purposes of s.31(2) of the Family Law Act. He found that she never withdrew from her mother’s control and that she never sought a life of full independence.

[59] Kurz J. considered the respondent’s behaviour after she left the control of her parents in order to determine her intentions. He referred to the fact that the respondent left her father’s home and lived for a time with Hazel and Armando Flores. She was treated as if she were the Flores’ daughter, and she remained there until she went to university. He held that nothing involved in that step represented a rupture in her relationship with her mother or an attempt to gain full financial independence. As part of the analysis, Kurz J. noted that the “evidence is uncontested that she was in discussions with Hazel Flores for some time before April 13, 2016.”, and that she was in discussions with her mother about her choice to enter university a year early.

[60] Kurz J.’s conclusion on this point was as follows:

Here O’s decision to live with the Flores 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.

[61] In connection with the fourth factor, namely, whether the appellant had failed to attempt to repair his relationship with the respondent, Kurz J. found that the respondent had tried to repair her relationship with her father but he never reciprocated. It is unnecessary to list the reasons for his conclusion, but they are found in paragraph 182 of Kurz J.’s Reasons.

[62] Kurz J. found that there was no genuine issue for trial with respect to the respondent’s entitlement to child support. His reasons for coming to that conclusion are founds in paragraphs 185 -187 of his Reasons, as follows:

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.

Following the decision in Kings Loft 1 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 1 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.

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.

[63] Kurz J. held that a trial would be necessary in order to determine the quantum of support, primarily because he did not have sufficient disclosure of the appellant’s income.

[64] He held, however, that the respondent was entitled to temporary child support, and in the final analysis he ordered that the appellant pay the sum of $6,500 per month, retroactive to July 1, 2016, based on an imputed income of $2,500,000 per year, and that the appellant pay, on a temporary basis, all of the respondent’s college expenses, including tuition, related fees and housing and, if she resides in residence he will pay for her meal plan.

[65] Kurz J. made it clear that the temporary orders he made were without consideration of any contribution made, or that might be made, by the respondent’s mother. He contemplated that any contribution, if any, to be made by her would be considered only if she were made a party to the proceedings.

Submissions

[66] Mr. Joseph, counsel for the appellant, submits that the appeal should be allowed, and his client’s Motion for Summary Judgment should be granted, and the respondent’s application should be dismissed. In the alternative, he submits that there should be a bifurcated trial, to initially determine the issue of the respondent’s entitlement to support. Further, he requests a stay of the interim order made by Kurz J., or in the further alternative, requests an order varying the interim order.

[67] Mr. Joseph does not seek costs of the appeal, regardless of the result. While he sought leave to appeal Kurz J.’s costs order, he notes that the costs have been paid, and does not seek recovery of those costs. Accordingly, the costs appeal is, for all intents and purposes, moot.

[68] Mr. Joseph submits that Kurz J. committed a number of legal errors in his decision. Furthermore, he committed a number of errors that amounted to procedural unfairness. Also, he committed a number of errors in quantifying the interim order he made.

[69] Mr. Joseph points out that the only motions before Kurz J. were his client’s Motion for Summary Judgment, and the respondent’s motion for interim support. Mr. Joseph concedes that while it is theoretically possible for a responding party to be granted summary judgment, that must be done in a procedurally fair manner, and in this case it was not appropriate to do so.

[70] Assuming that this was an appropriate case to grant summary judgment to the respondent, which Mr. Joseph disputes, his submission is that Kurz J. erred in determining that the respondent’s withdrawal from parental control was involuntary. He submits that the motion judge applied a subjective standard, rather than an objective one. Furthermore, he submits that the record supported a finding that the respondent had withdrawn voluntarily.

[71] Mr. Joseph submits that the motion judge erred in coming to a conclusion on matters that were highly disputed, and on which there was conflicting evidence on material matters. In such a case, the motion judge should have determined the matter either by utilizing the expanded powers for fact-finding under the Family Law Rules, by holding a mini-trial, or by sending the matter to a full-scale trial.

[72] Mr. Joseph points out that his client, pursuant to a consent order of Miller J. dated March 4, 2015, was the sole custodial parent of the respondent. Pursuant to the order of Kiteley J. dated April 28, 2016, it was declared that the respondent had withdrawn from the parental control of both of her parents. The order of Gibson J. dated June 2, 2016 provided that neither parent had custody or access rights to the respondent. Those orders were upheld by the Court of Appeal.

[73] Mr. Joseph points out that Kurz J. relied on findings of fact made by Kiteley J. and Gibson J., and findings made by the Court of Appeal. Kurz J. held that the doctrine of issue estoppel meant that he was bound by their findings.

[74] Mr. Joseph submits that the issues before Kiteley J., Gibson J. and the Court of Appeal were markedly different than the issues before Kurz J. The issues before Kiteley J., Gibson J. and the Court of Appeal had to do with whether the respondent had simply withdrawn from parental control, so that she could register at the University of Miami without the approval of either of her parents. There was no issue before those courts as to whether the withdrawal from parental control was voluntary. Those courts were not asked to, nor would it have been appropriate to, make any determination of voluntariness, because it was not relevant to those proceedings. Accordingly, any findings made by those courts would not be binding on the issue of voluntariness, since that issue was not before them.

[75] Mr. Joseph also submits that Kurz J. erred in the use he made of the Court of Appeal’s decision without inviting submissions from counsel on the use that should be made of it, particularly on factual issues. The Court of Appeal’s decision was issued after the argument of the matter before Kurz J., and before deciding that any factual determinations made by the Court of Appeal should be considered by Kurz J., he should have invited submissions on whether it was appropriate to do, and if so, to what extent.

[76] Mr. Joseph points out that Kurz J. relied on certain events, in deciding that the respondent had involuntarily withdrawn from parental control, that had been the subject of previous proceedings. In August, 2014, the respondent’s mother refused to return the respondent to his client’s care in Ontario. Kruzick J. held that the respondent was unlawfully being detained by her mother in Florida, and provided the appellant with interim custody. The mother continued to refuse to return the respondent to Ontario, and Trimble J. by order dated October 1, 2014, ordered the mother to return the respondent to Ontario, and provided a police enforcement provision.

[77] Notwithstanding these judicial determinations, Kurz J. nevertheless concluded that these events constituted evidence of the appellant’s unreasonable parental control to ground a finding of involuntary withdrawal.

[78] A second incident relied on by Kurz J. to find unreasonable control was the respondent’s change of high school for the 2015-2016 school year. Notwithstanding evidence that the appellant discussed with the respondent her switching of schools, and his decision that it was in her best interests to switch, in order to be exposed to a co-ed environment, and to expand her view of the world, Kurz J. held that he had not been provided with any evidence that such a move was in the respondent’s best interests. This was so notwithstanding evidence that the respondent loved her new school, continued to excel academically, and was thrilled with the change. Kurz J. dealt with this evidence simply by stating that the respondent had to make the best of her father’s decision.

[79] Mr. Joseph points out that the evidence on these matters was highly conflicting.

[80] The other event relied upon by Kurz J. was with respect to the respondent’s decision to attend the University of Miami. Mr. Joseph points out that the respondent applied to that university in October 2015, without the knowledge of the appellant and with the facilitation of the respondent’s mother. When the appellant found out about this in February 2016, he was not agreeable with the decision because he regarded the University of Miami as an inferior university, and the appellant had grades that would allow her to attend any top-flight university in the world. Furthermore, the appellant considered that it was in the respondent’s best interests to finish her final year of high school, allowing her to broaden her interests and mature further.

[81] Mr. Joseph points out that there is no dispute that this occurred at a time when an order granting sole custody to his client was in effect, and the respondent’s mother was in clear breach of that order.

[82] Mr. Joseph points out that there was disputed evidence as to the appellant’s reaction when he found out about the surreptitious activity, and submits that Kurz J. was in no position to make findings based on the disputed evidence, but nevertheless he did so.

[83] Mr. Joseph submits that Kurz J. erred in imputing income to the appellant in the amount of $2,500,000 per year. The appellant’s evidence was that his income was $200,000 per year, and he had made disclosure in accordance with an order made by Kurz J. himself. The appellant’s evidence was that he had withdrawn an additional $10,200,000 from his corporation as a withdrawal of capital in order to pay expenses. It was improper, in those circumstances, for Kurz J. to impute an income in excess of $200,000.

[84] Mr. Joseph submits that it was improper of Kurz J. to refuse to allow questioning of the respondent’s mother and Hazel Flores, notwithstanding that Ms. Flores had filed an affidavit in these proceedings, and that evidence had been elicited from the respondent, in her questioning, that raised serious issues as to the involvement of Ms. Flores in the supposedly involuntary withdrawal from parental control. Evidence of respondent’s mother would be clearly relevant to whether she had influenced the so-called “involuntary” withdrawal from parental control. Kurz J. refused the questioning, in part, on the basis that the questioning would not be relevant to the motions that were then before the court, namely, the appellant’s motion for summary judgment and the respondent’s motion for interim support. Having then determined that the evidence was not relevant to those motions, it was improper for Kurz J. to then grant summary judgment to the respondent (that had not been requested until argument), and rely on Ms. Flores’ uncontradicted evidence. Mr. Joseph submits that it is clear that summary judgment should be granted only where each party has had a full opportunity to put its best foot forward. In this case, the appellant was deprived of an opportunity to put his best foot forward, and it was highly improper to grant summary judgment to the respondent in such circumstances.

[85] Mr. Joseph submits that Kurz J. erred in declining to accept evidence of a receivership order for the appellant’s corporation that had been granted after argument of the motions before Kurz J. That evidence was clearly not available before argument of the motions. Notwithstanding the fact that the appellant deposed that he no longer received any income from the corporation, Kurz J. declined to receive the evidence.

[86] In the final analysis, Mr. Joseph submits that his client was denied procedural fairness, the motion judge applied the wrong legal standard in determining that there was an involuntary withdrawal from parental control, and it was improper to grant summary judgment to the respondent in the circumstances. Furthermore, he erred in granting the interim order for support in the amounts he ordered.

[87] Mr. Mark, counsel for the respondent, submits that the appeal should be dismissed. He submits that there was no procedural unfairness, and that the evidence supported a conclusion that the respondent’s withdrawal from parental control was involuntary. He submits that the previous findings of Kiteley J., Gibson J. and the Court of Appeal were binding. In terms of the interim order, the quantum awarded was considerably less than what the respondent had requested, and there is no basis to overturn it.

[88] Mr. Mark acknowledges that the respondent did not, in her Notice of Motion, seek summary judgment, and the first time it was sought was in her factum filed before the argument of the matter before Kurz J. However, he submits that the record was, by that point, complete, and it did not make sense to require the respondent to formally make a request for summary judgment in a Notice of Motion. Previous caselaw had recognized that a responding party could be granted summary judgment, and this was an appropriate case to do so.

[89] Mr. Mark points out that the issues regarding withdrawal from parental control under the Children’s Law Reform Act and the Family Law Act are different. Under the Children’s Law Reform Act, it is recognized that a child can withdraw from parental control. There is no element of voluntariness that is at issue. However, under the Family Law Act, a parent can be relieved from the obligation to provide child support only where a child has withdrawn from parental control voluntarily.

[90] It was on the issue of voluntariness that the evidence was joined in the proceedings before Kurz J., and each party had a full opportunity to provide evidence and submissions on that issue.

[91] Even though the issue of voluntariness was not squarely before the courts in the proceedings before Kiteley J., Gibson J. and the Court of Appeal, nevertheless certain factual findings were made by those courts, and in the circumstances they were binding on Kurz J.

[92] Mr. Mark submits that Kurz J. was perfectly entitled to make findings based on the material before him. The findings were of mixed fact and law, and there is no basis on which to hold that they should be disturbed. Any such findings can only be disturbed on the basis of palpable and overriding error, of which there is none here.

[93] Mr. Mark points out that the standard of voluntariness has been canvassed in many cases, and Kurz J. referred to them in deciding what standard should be applied here. At the end of the day, the evidence reasonably supported a conclusion that the respondent had been compelled to withdraw from parental control as a result of the appellant’s unreasonable, controlling behaviour and that her withdrawal from parental control was in her best interests. Since the evidence reasonably supports that conclusion, there is simply no basis to overturn it on appeal.

[94] Mr. Mark submits that on each factual finding, there was evidence before Kurz J. that could reasonably support such a finding, and even if the evidence conflicted in some respects, Kurz J. was entitled to come his own conclusion as to which evidence he preferred.

[95] With respect to the amount of support that was ordered, Mr. Mark submits that Kurz J. was entitled to take into account the degree of disclosure, or non-disclosure, that the appellant had chosen to make. Mr. Mark points out that the amount awarded by Kurz J. was considerably less than what the respondent had requested, and was also considerably less than what the appellant himself expends on his own lifestyle.

[96] Authorities relied on by the parties include C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; King Lofts Toronto 1 Ltd. v. Emmons, 2013 ONSC 6113; aff’d 2014 ONCA 215; Ball v. Broger, 2010 ONCJ 557; Papaschase Indian Band No.136 v. Canada (Attorney General), 2008 SCC 14, [2008] 1 S.C.R. 372; Fratianni v. D’Ambrosio, 2014 ONSC 2680; Zafir v. Diamond (2008), 2008 CanLII 15231 (ON SC), 53 R.F.L. (6^th) 209 (Ont. S.C.J.); Imperial Manufacturing Group Inc. v. Décor Grates Inc., 2015 FCA 100; Letourneau v. Haskell (1979), 1979 CanLII 1963 (ON SC), 25 O.R. (2d) 139 (Co. Ct.); Dolabaille v. Carrington (1981), 1981 CanLII 1970 (ON CJ), 32 O.R. (2d) 442 (Prov. Ct.); Canada (Attorney General) v. Levac, 1992 CanLII 14817 (FCA), [1992] F.C.J. No.618 (C.A.); Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Potter v. DaSilva, 2015 ONSC 3088; Dolyn Developments Inc. v. Paradigm Properties Inc., [2007] O.J. No.63 (S.C.J.); Jamieson v. Bolton, [1994] O.J. No. 3328 (O.C.J.); Zedner v. Zedner, 1989 CanLII 3486 (ON CJ), [1989] O.J. No. 1568 (O.C.J.); Juneau v. Latreille, 2011 ONSC 6424; Tromblay v. Tromblay (1981), 1981 CanLII 1966 (ON CJ), 35 O.R. (2d) 567 (Prov. Ct.); Judd v. Judd (1995), 1995 CanLII 17872 (ON CJ), 16 R.F.L. (4^th) 430 (O.C.J.); Friday v. Friday, 2013 ONSC 1931; Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450; Fielding v. Fielding, 2015 ONCA 901; Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250; R. v. R. (2002), 2002 CanLII 41875 (ON CA), 58 O.R. (3d) 656 (C.A.); Tauber v. Tauber, 2001 CanLII 28234 (ON SC), [2001] O.J. No. 3259 (S.C.J.); Sirdevan v. Sirdevan, 2010 ONSC 2375; Chow v. Rider, 2015 ONCJ 1; S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231; Fitzpatrick v. Karlein, 1994 CanLII 9710 (ON CJ), [1994] O.J. No.1573 (O.C.J.); Rodaro v. Royal Bank (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.); Moradkhan v. Mofidi, 2013 BCCA 132; Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643; Madden v. Simm, 2012 ONCJ 331; Trotter v. Trotter, 2014 ONCA 841; Eastwood Square Kitchener Inc. v. Value Village Stores, Inc., 2017 ONSC 832; B.(S.G.) v. L.(S.J.) (2010), 2010 ONSC 3717, 102 O.R. (3d) 197 (S.C.J.); Minott v. O’Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321 (C.A.); S.(C.) v. S.(M.) (2010), 2010 ONCA 196, 262 O.A.C. 225 (C.A.); Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23; R. v. Riesberry, 2014 ONCA 744; Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 25 O.R. (2d) 673 (C.A.); R. v. C.(M.), 2014 ONCA 611; Tiveron v. Collins, 2016 ONSC 2451; Labatt Brewing Co. v. NHL Enterprises Canada L.P. (2011), 2011 ONCA 511, 106 O.R. (3d) 677 (C.A.); Frick v. Frick, 2016 ONCA 799; Starr v. Gordon, 2010 ONSC 4167; McCash v. McCash, 2012 ONCJ 503; A-C-H International Inc. v. Royal Bank (2005), 2005 CanLII 17769 (ON CA), 197 O.A.C. 227 (C.A.); Ramdial v. Davis (Litigation Guardian of) (2015), 2015 ONCA 726, 341 O.A.C. 78 (C.A.); Sawdon Estate v. Watchtower Bible and Tract Society of Canada (2014), 2014 ONCA 101, 119 O.R. (3d) 81 (C.A.); Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293; Edwards v. Edwards, [1998] O.J. No. 492 (O.C.J.); Figueiredo v. Figueiredo, 1991 CanLII 4204 (ON SC), [1991] O.J. No. 953 (O.C.J.); Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3; Canada (Director of Investigation & Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748; R. v. Knezevic, 2016 ONCA 914; Vivian v. Courtney, 2012 ONSC 6585; Pearson v. Poulin, 2016 ONSC 3707; 1615540 Ontario Inc. v. Simon, 2016 ONCA 966; Cook v. Joyce, 2017 ONCA 49; Simioni v. Simioni, 2009 CanLII 934 (ON SC), [2009] O.J. No. 174 (S.C.J.); McLean v. McLean, 2013 ONCA 788; Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.); Bak v. Dobell, 2007 ONCA 304; R. v. MacIsaac, 2015 ONCA 587; Haider v. Saleh, 2015 ONSC 3659; Ewing v. Ewing, 2009 ABCA 227; Park v. Thompson (2005), 2005 CanLII 14132 (ON CA), 77 O.R. (3d) 601 (C.A.); Postma v. Postma, [2008] O.J. No. 608 (S.C.J.); Orsini v. Orsini, 2016 ONSC 3332; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303; Saint Jean (Litigation Guardian of) v. Cheung, 2009 ONCA 9; Brad-Jay Investments Ltd. v. Szijjarto (2006), 2006 CanLII 42636 (ON CA), 218 O.A.C. 315 (C.A.); Scipione v. Del Sordo, 2015 ONSC 5982; Green v. Cook, 2012 ONSC 3731; Davies v. Clarington (Municipality), 2009 ONCA 722; Anderson v. Anderson, 2016 ONSC 7774; Ogg v. Ogg, 2016 ONSC 2784; Independent Multi-Funds Inc. v. Bank of Nova Scotia, [2004] O.J. No.1885 (S.C.J.); and Barker v. Barker, 2017 ONSC 3397.

Analysis

[97] Section 65 of the Children’s Law Reform Act provides as follows:

65 Nothing in this Part abrogates the right of a child of sixteen or more years of age to withdraw from parental control. [Emphasis added]

[98] Section 31 of the Family Law Act provides as follows:

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.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[Emphasis added]

[99] The Children’s Law Reform Act and the Family Law Act are statutes in pari materia. Indeed, Mr. Mark concedes that that is so. Thus, one starts from the presumption that the legislature, in using the same words in different statutes that are in pari materia, intends the same meanings to be given in each.

[100] Professor Sullivan, in her text, Construction of Statutes (5^th Ed.), at pages 214 and 215, states:

It is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings. Another way of understanding this presumption is to say that the legislature is presumed to avoid stylistic variation.

[101] Also on page 215, she states:

The presumption of consistent expression applies not only within statutes but across statutes as well, especially statutes or provisions dealing with the same subject matter.

[102] On page 412, dealing with specifically with statutes in pari materia, she states:

Statutes enacted by a legislature that deal with the same subject are presumed to be drafted with one another in mind, so as to offer a coherent and consistent treatment of the subject. The governing principle was stated by Lord Mansfield in R. v. Loxdale (1758), 1 Burr. 445, at 447:

Where there are different statutes in pari materia though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system, and as explanatory of each other.

The provisions of each are read in the context of the others and consideration is given to whether they are part of a single scheme. The presumptions of coherence and consistent expression apply as if the provisions of these statutes were part of a single Act.

[103] The same expressions, in substance, are used in both section 65 of the Children’s Law Reform Act and section 31(2) of the Family Law Act. In one case, the expression is “withdraw from parental control” and in the other the expression is “has withdrawn from parental control.” One might have thought that when the legislature used the same expression in both statutes, it meant the same thing. Logically, one might also have thought that if a litigant had secured a formal declaration under one statute, that he or she had withdrawn from parental control, that that would settle the matter under the other statute as well. The word “voluntarily” is used in neither statute, and one would expect that if the word were impliedly to be inserted in one statute, it would have to be impliedly inserted in the other.

[104] However, the parties have not approached the case on this basis. They have jointly accepted the proposition that withdrawal from parental control, for the purposes of s.65 of the Children’s Law Reform Act, does not necessarily equate to withdrawal from parental control for the purposes of s.31(2) of the Family Law Act. They agree that for the purposes of s.31(2) of the Family Law Act, a withdrawal from parental control must be voluntary. Since the parties have approached the case on this basis, I will do likewise.

[105] As noted, the word “voluntary” or “voluntarily” does not appear in s.31(2). The meaning of the term is not intuitively obvious. As expected, there are a variety of meanings given to the term in the cases that have considered the issue. To render a withdrawal from parental control involuntary, different courts have described the necessary degree of discomfort on the part of the child as ranging from simply not getting along to being unbearable. It is noteworthy that there are no appellate decisions on the point.

[106] It seems to me that considerable weight must be given to parental decisions regarding a child’s best interests, even if they are disagreed with by the child. Perspectives arrived at by a parent after years of experience are entitled to respect, even if they may be perceived by a child to be wrong or misconceived. Without coming to any conclusions on the issues in this case (because, as I discuss below, they should be determined after a trial) nevertheless they need to be looked at from more than one perspective, including that of the custodial parent. The view that it would be beneficial for a child to spend some time at a co-educational school where she can broaden her circle of friends and her perspective generally, cannot be considered to be irrational. Neither can the view that it would be beneficial for a child to attend an additional year of high school, in order to gain maturity. Neither can the view that a child is intelligent enough to attend any top-flight university in the world. Whether holding such views and impressing them upon a child renders a situation so intolerable that a child’s withdrawal from parental control is involuntary is, at the very least, debatable, and can hardly be said to be settled by the caselaw.

[107] Where the state of the law appears to be somewhat uncertain, as it clearly is here, it would be helpful to be able to formulate an informed view of the appropriate standard with the assistance of a full evidentiary record, with full argument based on that evidentiary record: see Romano v. D’Onofrio (2005), 2005 CanLII 43288 (ON CA), 77 O.R. (3d) 583 (C.A.). While that case was decided before the seminal case of Hryniak v. Mauldin, supra, nevertheless I think the analysis of the Court of Appeal there is useful in this context. The court held that a question of law, as to whether a microphone and loud speaker that used wires and cables constituted a broadcast within the meaning of the Libel and Slander Act, was one that would best be decided in the context of a full factual record. The court noted that it was not a case where the law was settled and could be applied to admitted facts. The scope of the term “broadcast” in the Libel and Slander Act had not been conclusively determined in the caselaw. Similarly, there is no settled understanding of the meaning of the term “voluntarily”, which does not even appear in s.31(2) of the Family Law Act.

[108] At the very least, it seems to me, it would be necessary for the motion judge to be satisfied that the facts can be safely ascertained on the record before the court, before the factual and legal issues can be finally determined on a motion for summary judgment. As stated by Karakatsanis J. in Hryniak, supra, at para. 28: “A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found.”

[109] Where there are conflicts in the affidavit evidence it is incumbent on a motion judge to resolve those conflicts, and explain why one version of the facts is accepted as opposed to another. As noted by the Court of Appeal in Trotter, supra, at para. 55, it is not always a simple task to assess credibility on a written record. If that cannot be done, that should be a sign that oral evidence or a trial is required.

[110] Also of significance is the requirement that each party put its best foot forward on a motion for summary judgment. Both before and after the decision of the seminal case of Hryniak, supra, it has been the law that each party must “put its best foot forward” and “lead trump or risk losing”: see Ramdial, supra at paras. 27-29.

[111] It must be borne in mind that under the Family Law Rules, the parties are somewhat hamstrung in their ability to put their best foot forward because of the inability to examine witnesses out of court, or cross-examine on affidavits, without leave. For that reason, in my view, a motion judge must be particularly careful, in dealing with a summary judgment motion, in assessing a request for leave to examine a witness out of court or to cross-examine a witness on an affidavit. The motion judge must be satisfied that to decline to permit such examinations will not unduly hamper a litigant in putting forward his or her best foot. At a trial, of course, the litigant will be at liberty to call whatever witnesses he or she chooses, subject to relevance, and to cross-examine any witnesses called by the opposite party.

[112] In this case, there are two primary features that compel me to conclude that the granting of summary judgment in the circumstances was in error, and the matter must proceed to trial.

[113] First, there were significant facts in dispute that could not be resolved on a paper record. Primarily, the disputed evidence involved the question of whether the situation between the appellant and his daughter was so intolerable that it required the respondent to involuntarily withdraw from parental control.

[114] There was conflicting evidence between the appellant and the respondent on the primary issues that were said to have given rise to the intolerable situation that drove the respondent out of the appellant’s home. Those were, in the main, that the appellant had taken proceedings to return the respondent to his custody in Ontario when she was with her mother in Florida; that the appellant had decided that the respondent should switch high schools; and that the appellant wanted the respondent to spend an additional year in high school and attend a different university than the University of Miami.

[115] Not only was there conflicting evidence between the appellant and the respondent on these issues, there was evidence given by Susan Bonhomme, the appellant’s housekeeper, that flatly contradicted a good deal of the evidence of the respondent. Indeed, in the conflicting affidavits each deponent accused the other of lying. With respect, it is not accurate to say, as Kurz J. says at paragraph 141 of his Reasons, that Ms. Bonhomme’s evidence does not “contradict” the respondent’s narrative. I reviewed the evidence earlier, and it is simply not possible to reconcile the conflicting evidence in that way. Furthermore, in view of the evidence of both the appellant and Ms. Bonhomme, it simply cannot be said that the appellant did not consult with the respondent about the change of schools, at least without an assessment of the competing versions of the facts at an oral hearing. In view of Ms. Bonhomme’s evidence, and that of Ms. Khurana, that the respondent was “happy” and “loved” attending her new school, and that she was “thrilled” with the change of school, it is difficult to see how it could be concluded that she simply “made the best of it.” Rather, it may reflect the fact that the appellant’s decision was a wise one. Once again, an assessment of the competing evidence at an oral hearing would have produced a far more accurate conclusion.

[116] As noted earlier, Kurz J. denied the appellant’s request that he be permitted to question the respondent’s mother, and to question Ms. Flores, who had filed an affidavit. As noted earlier, at that point the only motions before the court were the appellant’s summary judgment motion and the respondent’s motion for interim support. There was no request, at that point, by the respondent, for any order of a final nature.

[117] In my view, while there were some issues with respect to the timing of the requests made by the appellant’s counsel to question the witnesses, nevertheless to deny counsel the opportunity to question the witnesses when it was his obligation to put his best foot forward is problematical. This is particularly so, in my view, when the request for summary judgment on the part of the respondent only took place shortly before the argument of the matter, and the importance of the evidence in that context became even more critical. In that context, it was not open to the motion judge to rely on the “uncontested” evidence of Ms. Flores (as he referred to it in para. 168 of his Reasons) in support of the late-breaking request for summary judgment on the part of the respondent, and to have denied the appellant the opportunity to question the respondent’s mother.

[118] It seems odd to regard the proceedings to return the respondent from Florida as evidence of the appellant’s unreasonable parental control when they arose from judicially-sanctioned conduct. There had been decisions made by Kruzick J. and Trimble J., and ultimately a consent order by Miller J. granting sole custody to the appellant. However, since there must be a trial I will not comment on this issue further.

[119] I question the motion judge’s conclusion that the respondent did not withdraw from the control of both parents. This seems counter-intuitive to the formal declaration of Kiteley J. that she had withdrawn from control of both parents, the holding of Gibson J. that neither parent had custody of or access rights to her, and the order of the Court of Appeal upholding both. However, once again, since there must a trial I will not comment further on the point.

[120] I think it was an error for the motion judge to treat the findings of fact made by Kiteley J., Gibson J. and the Court of Appeal in the way he did. His treatment of them was problematical on substantive grounds and, in the case of the Court of Appeal’s decision, on procedural grounds.

[121] As noted earlier, the parties have jointly addressed this case on the basis that the issue under s.31(2) of the Family Law Act is different from the issue dealt with in the earlier proceedings under the Children’s Law Reform Act. It was agreed that the judgments of the courts in the earlier proceedings did not determine the issue arising under the Family Law Act, because under that Act it was necessary that the respondent prove that her withdrawal from parental control was involuntary.

[122] That being the case, neither cause of action estoppel nor issue estoppel arise from the decisions of the courts in the earlier proceedings: see McQuillan v. Native Inter-Tribal Housing Operative Inc. (1998), 1998 CanLII 6408 (ON CA), 42 O.R. (3d) 46 (C.A.), at pages 49 and 50.

[123] The parties never joined issue as to the voluntariness of the respondent’s withdrawal from parental control in the earlier proceedings. Thus, any findings made by the courts in those proceedings were made without the benefit of all the evidence that each party would call when that issue was joined, as happened in the proceedings before Kurz J. This is not a case like Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, where it was considered to be an abuse of process for a person convicted of a criminal offence, based on a standard of proof of beyond a reasonable doubt, to re-litigate the same issue in a civil context. Quite simply, the issue before Kurz J., namely, voluntariness, had not been litigated in the earlier proceedings. Only the issue actually determined by the courts in the earlier proceedings would be binding, but not any findings that led to the actual decision: see Canadian Union of Public Employees, Local 1394 v. Extendicare Health Services Inc. (1993), 1993 CanLII 8515 (ON CA), 14 O.R. (3d) 65 (C.A.).

[124] Thus, in my view Kurz J. was in error in holding that certain findings of fact made by the courts in the earlier proceedings were binding on him.

[125] Furthermore, to the extent that he relied on the findings made by the Court of Appeal in its decision released after argument had taken place, he was in error. At the very least, before making the use he made of that decision, he was obliged to advise counsel that he was considering making use of the decision, and inviting submissions before he did so. This is not a case where a judge makes use of a legal proposition that is expounded in a decision issued by another court after argument (although, even then, it is customary for a court to invite submissions where that occurs); rather, the motion judge proposed to use the findings of fact made by the Court of Appeal in the case before him, and, in my view, it was clearly incumbent on him to invite submissions before he did so.

[126] In the final analysis, I hold that Kurz J. was in error in granting summary judgment to the respondent. In the circumstances, the case could only be fairly determined at a trial, where the conflicting evidence could be adequately resolved and the legal issues determined on the basis of a full record, after each party has had a full opportunity to put his or her best foot forward. In the circumstances, summary judgment in favour of the appellant could not be granted either.

[127] Accordingly, the summary judgment granted in favour of the respondent is set aside, and the matter is ordered to proceed to trial.

[128] That leaves the interim order for support. Notwithstanding that the matter is to proceed to trial, Kurz J. had clear jurisdiction to grant an interim order, as do I.

[129] An interim order can usually represent nothing more than rough justice. As here, such an order is invariably made without the benefit of a full record. Such an order is highly discretionary, and unless the judge making the order has proceeded on a wrong principle it should not be disturbed.

[130] With one exception, I do not see any wrong principle upon which the motion judge proceeded in making the interim order. In my view, he was entitled to rely on the rather incomplete disclosure made by the appellant in arriving at an appropriate amount for interim support. While the appellant was entitled to make the degree of disclosure he made (indeed, it was made pursuant to a specific order that was made by Kurz J.), nevertheless the disclosure he made left the record in a rather incomplete state. Apart from the appellant’s self-serving statement that his income was $200,000 per year, the court had no information as to what benefit, if any, he actually received from his manufacturing corporation or his other corporations, or what retained earnings might be appropriately considered as income for the purposes of calculating support. The appellant could have chosen to provide more information, but he chose not to.

[131] At the end of the day, Kurz J. selected a figure for interim support that was somewhere between the amount sought by the respondent and the amount considered appropriate by the appellant. On an interim basis, he cannot be faulted for doing so.

[132] In my view, the motion judge also cannot be faulted for ordering the appellant to contribute to his daughter’s university expenses. If she is entitled to support, she is entitled to have her parents contribute to her university expenses: see Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321 (C.A.).

[133] Where the motion judge went wrong, in my view, was in his treatment of the support that was being provided by the respondent’s mother, and the contribution to the respondent’s education expenses that was being made by the respondent’s mother.

[134] The uncontradicted evidence was that the respondent’s mother was contributing $1,200 per month towards the respondent’s support. Furthermore, it was uncontradicted that she was also paying one-half of the respondent’s university expenses, after taking into account the respondent’s scholarship. In effect, Kurz J. held that he would not take those contributions into account unless and until the respondent’s mother was specifically made a party to the application. With respect, I do not think he was entitled to ignore the contributions made by the respondent’s mother in this way.

[135] In order to arrive at an appropriate level of interim support, it was necessary for the motion judge to consider all sources of income and assistance that were available to the child. This would include contributions made by the respondent’s mother, just as it would also include, for example, any contributions made through a trust fund. To ignore the contributions made by the respondent’s mother in this way simply amounts to a windfall in the hands of the respondent.

[136] For these reasons, I will order that the interim order made by the motion judge be reduced on a monthly basis by the amount of $1,200 per month, and that the obligation of the appellant to contribute to the respondent’s university expenses be restricted to paying one-half of those expenses after taking into account any scholarship or any other financial assistance available to the respondent.

Disposition

[137] For the foregoing reasons, I order that the appeal be allowed, the summary judgment granted to the respondent be set aside, and the matter proceed to trial. I order that henceforth the appellant shall pay, on an interim basis, child support to the respondent in the amount of $5,300 per month, and he shall pay, on an interim basis, one-half of the respondent’s college expenses, including tuition, related fees and housing, after taking into account any scholarship or any other financial assistance available to the respondent.

[138] The appellant has been largely successful on the appeal, and ordinarily would be entitled to costs. However, Mr. Joseph made it clear that his client would not seek costs no matter the result of the appeal. Accordingly, there will be no order as to costs of the appeal.

[139] In the motion for a stay that I heard, I reserved costs to the appeal judge. There will be no order as to costs of the motion to stay.

Gray J.

Released: October 30, 2017

CITATION: O.G. v. R.G., 2017 ONSC 6490

COURT FILE NO.: 1238/17

DATE: 2017-10-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

O.G.

Applicant (Respondent on Appeal)

– and –

R.G.

Respondent (Appellant on Appeal)

REASONS FOR JUDGMENT

Gray J.

Released: October 30, 2017