“As E.G. falls within the requirements of subsection 31(1) of the Family Law Act, child support is presumed to be payable by her parents.
The onus is on the parents to prove that E.G. meets the criteria of subsection 31(2). They must establish that E.G. has withdrawn from their parental control for her to be disentitled to child support.
In the event that I find E.G. has withdrawn from parental control, the onus then shifts on E.G. to establish on a balance of probabilities the withdrawal was not voluntary.
The decision of Ball v. Broger, 2010 ONCJ 557 (CanLII), [2010] O.J. No. 5824 by Justice S. B. Sherr provided an excellent overview on this issue as follows. He noted at page 8 of his decision:
A child is entitled to support, unless he or she voluntarily withdraws from parental authority. The defence of withdrawal from parental authority is limited to clear cases of free and voluntary withdrawal from reasonable parental control. See Edwards v. Edwards, [1998] O.J. No. 492, 1998 CarswellOnt 555 (Ont. Prov. Div); and Haskell v. Haskell and Letourneau (1979), 1979 CanLII 1963 (ON SC), 25 O.R. (2d) 139, 100 D.L.R. (3d) 329, 1 F.L.R.A.C. 306, [1979] O.J. No. 4278, 1979 CarswellOnt 101 (Ont. Co. Ct.).
Once it has been established that a child has withdrawn from parental control, the onus shifts on the child to establish that the withdrawal was not voluntary; that he or she had little choice in the matter. See Belanger v. Belanger and Capin, 2005 CanLII 25110 (ON SC), 2005 CanLII 25110, 17 R.F.L. (6th) 325, [2005] O.J. No. 3033, 2005 CarswellOnt 3076 (Ont. Fam. Ct.); and Fitzpatrick v. Karlein, supra.
Courts have noted that family dynamics are complex and have often been cautions in finding that a child has voluntarily withdrawn from parental control. See Jamieson v. Bolton and Bolton, 1994 CanLII 9211 (AB QB), 1994 CanLII 9211, 52 A.C.W.S. (3d) 845, [1995] W.D.F.L. 097, [1995] W.D.F.L. 745, [1994] O.J. No. 3228, 1994 CarswellOnt 2081 (Ont. Prov. Ct.) which sets out at paragraph [19] a line of cases taking this approach.
Justice Sherr went on to review at page 9 of his decision portions of Fitzpatrick v. Karlein, supra which stated the following at paragraph [12]:
[12] This distraction from the business of sorting out financial obligations is a digression into conduct that the legislature has, at times, tried to separate from support obligations. To minimize that distraction, we should recognize “normal” difficulties between parent and youth, especially if they are struggling with a reconstituted family. We should look to see whether a child has withdrawn from the control of a relevant parent and, if so, whether this was the youth’s free choice. Unless the youth was evicted by a custodial parent (not a free choice) or was subjected to unbearable conditions when viewed objectively (also not a free choice), the more subtle and subjective questions about parent-and-youth relationships should be left for a question more pressing than who, as between the youth and the parent and the state is going to pay the youth’s bills. In other words, routine comparisons of fault as between parent and child should be discouraged and only obvious cases should prevail.
Justice Sherr went on to further state at page 9 of his decision:
Courts have noted that the exception is even narrower when the child suffers from emotional difficulties. See Jamieson v. Bolton and Bolton, supra, at paragraph [35], citing L.G. v. F.G. and V.G., 1989 CanLII 3487 (ON CJ), 1989 CanLII 3487, 20 R.F.L. (3d) 157, [1989] O.J. No. 818, 1989 CarswellOnt 241 (Ont. Prov Ct., Family Division).
This does not mean that parents are not entitled to exercise reasonable controls over a child who chooses to remain at home. See Distefano v. Haroutnunian and Haroutunian, 1984 CANLII 1705, 41 R.F.L. (2d) 201, [1984] O.J. No. 2312, 1984 CarswellOnt 272 (Ont. Prov. Ct., Fam. Div.0; and Figueiredo v. Figueiredo, 1991 CanLII 4204 (ON SC), 1991 CanLII 4204, 33 R.F.L. (3d) 72, [1991] O.J. No. 953, 1991 CarswellOnt 278 (Ont. Gen. Div.).
The issue of whether a child has voluntarily withdrawn from parental control has been reviewed by the courts. In reviewing Jamieson v. Bolton and Bolton, supra, Justice Sherr noted at paragraph [36] of his decision the following:
Courts should examine a young person’s behaviour after leaving the home when assessing whether the young person left the home voluntarily or rather, whether she was just seeking independence. Did the young person move to a life of independence or did she move into another parent-child relationship? Upon leaving the home, did she abandon school? Has the young person experienced conflict in relation with other adults or other persons in authority? Or on the other hand, has the young person appeared to comply with reasonable expectations? How has the young person ordered their life after separation?”