COURT FILE NO.: FC-20-25

DATE: May 17, 2021

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Nicholson v. Nicholson

BETWEEN: Erin Mae Nicholson, Applicant and Scott Ross Nicholson, Respondent

COUNSEL: Rebecca Rosenstock for the Applicant

M. Peter Sammon for the Respondent

BEFORE: Honourable Mr. Justice Martin James

HEARD: By written submissions

ENDORSEMENT

James, J

Introduction

[1] This endorsement supplements the previous endorsement reported at E.M.N. v. S.R.N., 2021 ONSC 3524 and addresses the issue of continuing child support for the parties’ eldest child, Madeleine, who turned 18 years old on March 23, 2021.

Position of the Applicant

[2] Madeleine has resided with the Applicant on a full-time basis since the parties separated.

[3] The Applicant says that Madeleine has a dual diagnosis of ADHD and bi-polar disorder.

[4] She is currently completing grade 12 and hopes to attend Carleton University in the autumn of 2021, although she has applied to other post-secondary institutions. Apparently, Madeleine has received an acceptance from Carleton University in an arts program this fall.

[5] Currently, she is works part-time in a coffee ship at minimum wage.

[6] The Applicant says Madeleine is entitled to received child support until she commences her post-secondary schooling. In the meantime, there needs to be a discussion about her plans, the program, the availability of student assistance and living expenses.

Position of the Respondent

[7] The Respondent agrees that Madeleine’s child support should continue to the end of June when the current school year will be completed and thereafter there needs to be a discussion about the next phase of her education, what it will cost and how it will be paid for.

[8] The Respondent says Madeleine has unilaterally ceased communicating with him without reasonable explanation.

[9] The Applicant has done nothing to assist in repairing this relationship. Madeleine indicated to the Respondent in August 201, that it was necessary to limit contact with him in order to appease the Applicant.

[10] Madeleine refuses to have contact with the Respondent or to discuss her school plans with him, putting her beyond parental control and outside the definition of child of the marriage. Madeleine should negotiate directly with the Respondent on the issue of her continued support.

Issues

[11] Is Madeleine still a “child of the marriage”?

[12] Should the Respondent be obliged to contribute to Madeleine’s ongoing support and/or school expenses when he has little or no control over her choices?

Discussion

[13] The phrase, “child of the marriage”, is a term of art that is defined by the Divorce Act to include a child who is the age of majority or over and who, by reason of illness, disability or other cause, to withdraw from parental charge or to obtain the necessaries of life. The phrase “or other cause” is broadly defined and includes the continuation of the child’s education well into their 20s.

[14] There is nothing in the Divorce Act or the cases decided pursuant to the Act that says a child must get along with a parent in order to be entitled to support except in extreme situations. In Misener v. Misener, [2010], O.J. No. 1793 (Ont. S.C.) the Court held that a 20-year-old daughter’s estrangement from her father did not preclude him from having a support obligation while she attended college. The two argued over highly emotional, sensitive family issues. The situational conflict that arose did not disentitle the child to support.

[15] In most cases, disruptions in the parent-child relationship have complicated and multi-faceted causes. The sparse available evidence does not satisfy the high onus of proof required to establish that Madeleine has unilaterally terminated her relationship with the Respondent for no good reason.

[16] I make no comment or findings on the available evidentiary record whether the Applicant has exacerbated the difficulties between Madeleine and the Respondent.

[17] Madeleine continues to be a child of the marriage. In determining support for adult children, the court is to consider whether the table amount of support under the Child Support Guidelines is inappropriate. If it is inappropriate, the court needs to determine an appropriate amount taking into account the means and needs and other circumstances of the child and the financial ability of her parents to contribute to her education.

[18] The Applicant, in consultation with Madeleine, shall prepare a detailed educational and financial plan and provide it to the Respondent for consideration and discussion within three weeks. Madeleine’s present child support shall continue until the end of August. Madeleine’s support arrangements from September onward shall be subject to discussion between the Applicant, the Respondent and Madeleine.

[19] In the event that the issue of the Respondent’s child support obligation for Madeleine after August 2021 cannot be determined by discussion between the parties, this motion may be continued on a date to be set by the trial coordinator at the request of either party on 10 days written notice, to be returnable before me, within 90 days.

Mr. Justice M. S. James

Date: May 17, 2021