Alienating a former spouse may come with a cost in family court

“I have a full family and it doesn’t include your (sic) sorry a– ,” wrote a 21-year-old son to his father in a 2005 Ontario case. “If you haven’t realized, you have been replaced.”

In that case and in many other high-conflict separations, children often become involved in the battle between their parents. When that happens, sadly, it is not unusual for children to send messages like this one to the non-residential parent.

But does a payor parent continue to have the obligation to pay child support when a minor child refuses to have a relationship with the payor? What if the primary residential parent encourages the alienation between the payor spouse and the child? Is there a difference when a child is over the age of majority?

Child support is governed by either provincial legislation or the Divorce Act and the Child Support Guidelines. The Guidelines, which were first introduced in 1999, were adopted nation-wide to bring more predictability and certainty to the amount payor parents were obliged to pay for their children, based on their income levels. The Guidelines set out the default position of the amount of child support that should be paid by the payor parent. One of the objectives of the Guidelines is to prevent disputes over child support between separated parents. As a result, deviations from the Guidelines are rare.

Child support for children under the age of majority is payable to the parent with whom the child resides. For children over the age of majority, the Guidelines allow more discretion. If a child remains entitled to child support (for example, the child is attending a post-secondary institution), the judge is directed to either apply the Guidelines or, if that approach is ‘inappropriate’, the judge must decide the appropriate amount, taking into account the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the child’s support.

Even when a child refuses contact with a payor parent, child support usually remains payable to the parent with whom the child primarily resides.

Child support is the right of the child; children are not to be punished for their parents’ actions. In alienation cases, however, a court will consider the child’s conduct as well as the conduct of each of the spouses, and may consider alternatives to the usual orders for child support.

In the 2017 Alberta case of CJD v RIJ, Justice Robert Graesser decided how retroactive and prospective child support should be dealt with when the parties’ 16-year-old daughter was completely estranged from her mother. That case had been in litigation over ongoing parenting and financial issues for fourteen years, and Justice Graesser himself had dealt with the parties for the prior five years.

Despite court-ordered access and a court-appointed therapist for the child, the daughter cut herself off from the mother and the mother’s family, although she had previously enjoyed a good relationship with each. Each parent blamed the other for the situation.

The father sought retroactive child support for the daughter from the date that the daughter began to live with him. When deciding this, Justice Graesser considered the father’s actions and found that the father had interfered with the child custody assessment and his daughter’s court-ordered counselling.

Rather than requiring that the child support be paid to the father, Justice Graesser decided that this was “an exceptional case, (which called for) exceptional remedies.” He ordered that the payments owing by the mother be paid into court, to be disbursed to or for the daughter, as agreed by the parents or ordered by the Court.

In the 2005 Ontario case, in which the estranged son was 21 at the time of the hearing, the judge not only accepted that the mother had neither promoted nor facilitated access with the father, but found that in fact, the father was “completely unwelcome” in the lives of the woman and her son.

The judge also considered the conduct of the parties and their son when deciding whether ordering the payment of child support for a child over the age of majority under the Guidelines was “inappropriate.”

Ultimately, the judge refused to order that monthly child support be paid to the mother, and ordered that only 25 per cent of the cost of the son’s university be paid by the father, to be paid either to the son directly, or to the university.

As the mother had refused to provide any information to the father about the son’s university attendance, the judge required that the mother provide the parties’ son with the details of the arrangement so that the son could inform the father.

“It is time that (the son) appreciate(s) that there is a need for him to deal with his father directly and in a more mature manner when it now comes to requests for financial assistance with his future education,” the judge said.

Justice Graesser summarized the law in these difficult situations the best, saying that, when the alienation is for no good reason, “it may be unreasonable for a child to expect support from a parent the child wants nothing to do with, other than his or her money.”

This article was published in the National Post. To read the full article, please click here.