Law Times

Law Times • November 19, 2018 Page 11 www.lawtimesnews.com Decision addresses support obligations BY MARG. BRUINEMAN For Law Times A recent Ontario Supe- rior Court of Justice decision serves as a re- minder to lawyers that there are no hard and fast rules laying out when support for a child should end. Vidal v. Dunn examines the situation of a 20-year-old off- spring of divorced parents, the second of their two children, and the extent to which the father, who had been providing sup- port, should continue to help the child under the separation agree- ment or legislation. In Vidal, the child's circumstances were com- plicated by breaks from her edu- cation, changing her residence from one parent to another, sug- gestions of mental health issues and a criminal charge. The court ultimately found in favour of the father that there was no support arears owing un- der the contract. "In a great number of cases nowadays, it's not as clear-cut as I think this case demonstrates," says Ron Shulman, founder of Shulman Law Firm PC in To- ronto. The child's 18th birthday doesn't necessarily mark the ex- act time when they are meant to suddenly become financially in- dependent from their parents, he says. Typically, parents continue to support their adult children through post-secondary educa- tion, which may include the odd gap year, says Shulman. In family law, says Steven Benmor of Benmor Family Law Group in Toronto, a child ceases to be a child when they are no longer economic dependents. Typically, that includes those still enrolled in post-secondary education. But it depends upon the individual situation and, Benmor says, the law is continu- ing to develop, particularly in the area of mental health. "It's a discretionary call by the judge," he says. When a child has a disability, they can be a dependent forever, says Benmor. That means that, when a couple separates, the support for a child with disabili- ties continues. "We're at that point right now where family law is look- ing closely at mental health and wondering what to do with it," he says. "The question then becomes is the law going to stretch it even more for lower levels of mental ill- ness? And that's what's going on in this case." But Benmor sees this as an evolution and he suspects that courts will accommodate higher-functioning young adults, particularly if there is medical evidence supporting that. "As soon as the doctor starts using the language mentally dis- abled, which is the language in the legislation for family law for support, now that disability is no longer just a physical disabil- ity — it's [a] mental disability," he says. The obligations have been changing from one generation to the next, and they may not be consistent from one family to another, depending on their own unique circumstances, says Nathalie Boutet, whose Toronto firm, Boutet Family Law, centres around negotiation and media- tion. "This generation is very dif- ferent in the sense that the paren- tal involvement in the children lasts longer" and more children seem to have difficulty and don't always follow that straight path from high school to university and then into a job, says Boutet. "It poses a lot of problems for parents because they may come with different values. "Parents have different views sometimes on when they should stop paying for their kids." Boutet says she has found that courts allow some latitude for grown children who may have interruptions in their education, as long as the child keeps trying at school with an eye to finishing. That child, too, she adds, needs to be prepared to demon- strate they are trying by provid- ing proof, such as school records. "The same principles have been applying for a very long time that the children have to provide information," such as showing school records and registration, says Boutet. "They have to be in- volved in presenting the case." Overall, she says, exactly when support for a child ceases requires a case-by-case analysis. But, adds Boutet, there is also a trend that the court will look at the child's makeup to figure out why the child is not following a straight or regular path and that includes looking at possible in- tellectual challenges. And there is usually latitude in terms of continuing the support when a child shows that they are trying to find their way. In Vidal, the situation in- volved divorced parents, which likely was the reason it was heard by a court, says Benmor, who be- lieves that had the parents still been together, it would have ended up being a heated family argument instead. "They took this fight, because of divorce, in front of the divorce judge and the divorce judge sid- ed with the father. The next di- vorce judge is going to side with the mother," he says. LT FOCUS Please refer to the Federation of Law Societies website: www sc.ca then click on the link to the National Family Law Program for ongoing program information updates. • Summary of topic(s), format of presentation, possible co presenters and estimated time for presentation or workshop. • Presentations and written material must include a national perspective • Your agreement to participate in other presentations as workshop leader or panelist if needed. • Please include a copy of your curriculum vitae and co presenter's as well with your submission. 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We are inviting submissions of proposals for Papers/Presentations under the following guidelines: FederationLawSocieties_LT_Nov19_18.indd 1 2018-11-14 11:03 AM Ron Shulman says a child's 18th birthday doesn't necessarily mark the exact time when they are meant to suddenly become financially independent from their parents. We're at that point right now where family law is looking closely at mental health and wondering what to do with it. Steven Benmor

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