COURT FILE NO.: F-818/03
DATE: 20050610



B E T W E E N:


Joseph F. Fitzpatrick, counsel on behalf of the Applicant


- and –


Brian J. Inglis, counsel on behalf of the Respondent Anthony Michael Capin


HEARD: May 25, 26, & 27,


(at the John Sopinka Court House, Hamilton)


[1] Is the maternal grandmother of two teenaged children who chose to reside with her instead of with the custodial parent, entitled to receive child support from the non-custodial parent?

[2] What began as claims for various items of relief under the Divorce Act and under the relevant provincial legislation has boiled down, during the course of this trial, to the issue of the applicant’s entitlement to receive child support from the respondent, Anthony Capin, pursuant to s. 33 of the Family Law Act.

[3] Capin invokes the exception in subsection 31(2) of the Family Law Act. The obligation of a parent to support a child and the exception invoked are set forth in s. 31:

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(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.


[4] The respondents Jayne Belanger and Anthony Capin were married in 1983. A son, Joel, was born on August 5, 1985, and a daughter, Danielle, was born on February 12, 1987. The couple separated prior to the birth of Danielle, and were subsequently divorced.

[5] Upon separation Jayne and Joel went to reside with Jayne’s parents, Marjorie and Claude Belanger. In 1988 the Belangers purchased a larger home with four bedrooms which permitted Jayne, Joel and Danielle to continue to reside with them. Jayne, who was employed full-time, always contributed what she could to the household expenses. The amounts mentioned in the testimony of Marjorie Belanger were $500.00 per month plus some groceries and, latterly, $800.00 per month.

[6] Jayne Belanger obtained a consent order granting her custody of the two children and orders in 1988 directing Anthony Capin to pay child support. It is not disputed that Capin paid the requisite child support faithfully until March, 2003 when Jayne Belanger executed a Notice of Withdrawal terminating Capin’s court-ordered obligations to pay support. In that Notice of Withdrawal Jayne Belanger as “Recipient” states that Joel and Danielle no longer reside with her “and are no longer in my custody, or under my care and control”. (Exhibit 20)

[7] In 1994, Jayne and the two children, who were then about 9 and 8 years of age respectively, moved out of the Belangers’ residence to live on their own. Jayne re-married but separated from her second husband in 1999.

[8] In 1996, Anthony Capin instituted Family Court proceedings in which he was unsuccessful in his attempt to gain custody of the children.

[9] In 2000 Jayne was diagnosed with clinical depression and was obliged to sell her house. She and the children moved to a rental property from which, it appears, she was evicted. They then resumed living with the Belangers in September, 2001. By then Joel was about 16 years of age and Danielle was about 14; both were students at the Cathedral High School.

[10] Marjorie Belanger testified that Jayne’s depression led to a noticeable change in Jayne’s behaviour. Her ability to keep house deteriorated; she was often very tired and she slept a lot. No doubt this blow to Jayne’s health did not make family life more pleasant for the children. The record shows, however, that Jayne sought treatment for her condition and has largely overcome its negative consequences. She denied being depressed at the time of the move to Kimberley Drive referred to in the next paragraph. This evidence was not disputed. She has returned to full time employment. In my view the evidence falls far short of demonstrating that living conditions in Jayne Belanger’s household were such that the children had no choice but to leave.

[11] Because of tension between Jayne and her parents, she and Danielle moved out on June 15, 2002 to a new residence on Kimberley Drive. Joel had friends in the area of the city where the Belangers resided; he indicated to his mother that he would move to the Kimberley Drive house at the end of the Summer. It appears that Joel followed through on that intention; however, when he arrived at Kimberley Drive with his possessions he found that the room he was to occupy was cluttered with boxes. He returned to his grandparents’ residence where he remains to date.

[12] On September 27, 2002, Danielle had an argument with her mother in the course of which she told her that she was counting the days until she was 16 so that she could leave. Jayne responded by telling Danielle that this was her lucky day. Danielle thereupon left and returned to her grandparents’ residence where she too has continued to reside to date.

[13] As noted previously, Capin stopped paying child support in about March 2003. This application was commenced by Marjorie Belanger on May 2, 2003.

[14] On May 24, 2005, the eve of this three-day hearing Jayne Belanger entered into Minutes of Settlement with the applicant in which she agrees to pay to Marjorie Belanger $400.00 per month child support.

[15] Joel is currently 19 years of age and a student at Mohawk College. Danielle is currently 18 years of age and in her final year at high school. Her application to enroll at McMaster University this Fall has been accepted although she has yet to commit to that institution.


[16] The respondent Capin challenged the applicant’s standing to bring these proceedings. It appears, however, that the applicant comes within the definition of “parent” in the Family Law Act and that an application pursuant to s. 33 of the Family Law Act may be made by a dependant’s parent:

s.1 In this Act, “child” includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family…

“parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family…

s.33(1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.
(2) An application for an order for the support of a dependant may be made by the dependant or the dependant’s parent.

[17] Marjorie Belanger testified that as of September 2002 she decided that Joel and Danielle could stay with her and her husband. She ceased encouraging the children to return to stay with their parents. She testified that her relationship with her grandchildren is the same as it was with her own children. Rules are imposed and she deals with matters of discipline.

[18] This testimony was not challenged. I find that the applicant has demonstrated a settled intention to treat Joel and Danielle as children of her family. This, incidentally, exposes her to a similar application at the instance of the children.

[19] There being no longer an enforceable support order made pursuant to the Divorce Act, it is open to the applicant to apply for such an order pursuant to the Family Law Act.


[20] Anthony Capin takes the position that he is responsible to pay support only so long as the children reside with their mother who he described as a loving and caring mother. In Capin’s view the children withdrew voluntarily from parental control within the family unit in favour of life with their grandparents who spoiled them.

[21] The position of the applicant is that there has been no withdrawal from parental control because the children continue to reside with a “parent”. Alternatively, the applicant takes the position that the withdrawal of the children from parental control was not voluntary.

[22] Although the definition of “parent” in section 1 of the Family Law Act includes the applicant, the status so acquired by the grandparents cannot have the effect alleged by the applicant. The preamble to the Family Law Act contemplates the nuclear family not an extended family with four or more “parents”. In my view the obligation of a biological parent to support a child may be extinguished under subsection 31(2) and that obligation assumed by a substitute parent under section 1.

[23] I have concluded, for the reasons expressed in what follows, that the children withdrew from parental control voluntarily; accordingly, there is no obligation on the respondent Capin to provide support.

[24] Re Haskell and Letourneau (1979), 1979 CanLII 1963 (ON SC), 25 O.R. (2d) 139, 100 D.L.R. (3d) 329 was cited as a starting point for interpreting the analogous provisions of the predecessor to the Family Law Act, the Family Law Reform Act, 1978. There it is stated at p. 151 (O.R.) that:

…the concept of the “withdrawal from parental control” at age 16 means a “voluntary” withdrawal; the free choice, indeed, of the child to cut the family bonds and strike out on a life of his own. On taking on this personal freedom the child assumes the responsibility of maintaining or supporting himself. It is his choice, freely made, to cut himself away from the family unit. Once this choice is freely made and the responsibility accepted by the child, the family unit has, in effect, been severed and the responsibility of the parents to support the child thus ceases.

If the child is driven from parental control by the emotional or physical abuse in the home brought on due to the circumstances in the home, then surely he cannot be compelled to remain there. These cases may be analogized to a term of “constructive” withdrawal from parental control. The choice of leaving was not voluntary but of necessity to ensure the physical and mental well-being of the child.

[25] The onus of proof is on the parent raising the defence under s. 31(2) to show that the children had in fact withdrawn: Fitzpatrick v. Karlein, 1994 CanLII 9710 (ON CJ), [1994] O.J. No. 1573 (Nasmith, Prov.Div.J.) at para. 13. Nasmith J. went on to hold, however, at para. 14 that:

…once withdrawal from parental control is established, as it is in this case, the onus, I think, shifts back to the child, as applicant, who has, ostensibly, withdrawn from parental control, to show on the balance of probabilities that she did so without any other choice in the matter.

[26] Nasmith J. acknowledged that previous case law had treated this exception in a very narrow and limited way. He reasoned, however, that it is perhaps time that that view be reassessed:

18. I am persuaded that it is time to ask whether there is a valid basis for the “narrow” approach to the legislation now that the wording of section 31 of the Family Law Act, leaves open-ended the parental obligation to support a child after age sixteen so long as the child remains a full-time student.

19. The correct approach to the new legislation, in my opinion, once the defence under subsection 31(2) has been raised and it has been established that the child is past sixteen years and outside the control of the former custodial parent, is to assign to the child, as the applicant, the onus of demonstrating that the withdrawal was involuntary whether by reason of eviction or a living situation with the parent that is viewed as unbearable or impossible. If the child wants to do that and can do that, the parental support obligation can be legally sustained. It is not just a matter of showing that the choice to become independent was reasonable or understandable. Under section 31 of the Family Law Act, for a youth past the age of sixteen, who has, ostensibly, withdrawn from parental control to succeed in obtaining court-ordered support, it must be demonstrated by her that the withdrawal was involuntary.

[27] Kent, Prov. J. in Jamieson v. Bolton 1994 CanLII 9711 (ON CJ), [1994] O.J. No. 3228 disagreed with the above approach by Nasmith J. and characterized it, at para. 31 of his reasons, as “obiter dictum”. Kent J. cited a string of authorities supporting the view that s. 31(2) should be narrowly construed as an exception to the general “no fault” thrust of the Family Law Act.

[28] It appears to me that the analysis of Nasmith J. emphasizes the sanctity of the family unit, an underlying principle of the Family Law Act. The analysis by Kent J. focuses on the “no fault” thrust of the Family Law Act. This is a clash of competing “goods” which I need not attempt to resolve in the circumstances here because, in this case, the dependent children are not the applicants and, perhaps more significantly, they were not called to testify as to the circumstances leading up to their decisions to reside with their grandparents. In any event, I have concluded on the basis of the totality of the evidence presented, that the respondent Capin has met the onus on him of demonstrating that the withdrawal was voluntary.

[29] The sole witness in support of the application was the applicant herself. The respondent Anthony Capin testified. In addition, he called the respondent Jayne Belanger as a witness. Joel and Danielle had been subpoenaed to attend the trial, were present in the court house, but were not called to testify. They were available to be called by the applicant and, in my view, ought to have been called by her. Without their testimony, the court is left to assess the impressions of the applicant as to why the children withdrew from the control of the custodial parent.

[30] I was impressed by the straightforward manner in which all three witnesses testified. I have no doubt that the applicant is dedicated to the welfare of the children and is well-intentioned.

[31] Jayne Belanger has tried to make the best of the difficult circumstances in which she found herself as a result of two failed marriages and her psychological difficulties with depression. She acknowledged the condition, she testified that she had sought treatment and has been taking appropriate medication. She denied that depression was a contributing cause to Danielle’s departure on September 27, 2002 or in Joel’s decision to not move into his quarters at the Kimberley Drive home.

[32] Jayne Belanger has been steadily employed full-time, initially as a bus driver and, following her diagnosis with depression and a two-year absence from work, as an employee of the Corporation of the City of Hamilton.

[33] Anthony Capin has been an employee of the Steel Company of Canada for the past 25 years. He impressed me as a no-nonsense type who expects that his children will comply with reasonable house rules and restrictions on their conduct. For Danielle, he drew the line at tattooing and body-piercing when she resided with him.

[34] It was suggested to Capin during cross-examination that he had once shaken Joel when Joel was younger, and that he had lost his temper with Joel. Capin acknowledged the shaking incident but not having lost his temper nor the further suggestion that he had “beat up” Danielle’s dog. No evidence was called to support those suggestions. Counsel’s questions are, of course, not evidence.

[35] In her testimony, Jayne Belanger stated that Danielle would not go to live with Capin because she finds him to be somewhat rigid and is a little afraid of him. On re-examination she explained that the expressed fear was not of physical abuse but that Danielle was afraid of Capin’s disapproval.

[36] In my view, the evidence shows nothing more that that Joel and Danielle were experiencing the all-too-common in today’s society, unpleasantness of life after marital breakdown. There is no evidence of physical or psychological abuse which would make them withdraw from parental control involuntarily.

[37] Both parents testified that they have been willing and able in the past and currently to have their children reside with them. I find as well that Jayne Belanger went to extraordinary lengths to reconcile with Danielle after Danielle left Kimberley Drive on September 27, 2002. She expressed her regret to Danielle for having made the “this is your lucky day” comment. She contacted a school counsellor and attended counselling sessions with Danielle, she contacted the police and she contacted the Children’s Aid Society. Jayne Belanger was advised by all of the above authorities that Danielle was of an age such that her choice of residence could not be dictated. I note that shortly before Danielle’s departure, on September 27th, she had been “grounded” by her mother as a disciplinary measure.

[38] In my view Danielle chose to live with her grandparents because she would not submit to reasonable discipline imposed by her custodial parent. Both Anthony Capin and Jayne Belanger testified that they had been told by Danielle that she was counting the days to her 16th birthday at which time she planned to leave.

[39] I find as well, on the evidence, that Joel withdrew from the control of the custodial parent for an equally frivolous reason. Jayne Belanger acknowledged that his room at the Kimberley Drive home was cluttered with boxes when he arrived to move in. She testified that about two hours of effort rearranging things would have made the room ready to receive Joel’s bed and personal belongings.

[40] In her testimony, Marjorie Belanger hinted that it was not just the state of the room but “other issues” between Joel and his mother which caused him to withdraw. Marjorie Belanger did not elaborate. She did not call Joel to testify. The court does not act on speculation.

[41] Both parents testified that they have appropriate accommodation for their children in their respective residences. Capin testified that this has been the case since 1990 at his residence. In the mid-90s he lost his bid to have the court grant him custody.

[42] The evidence shows that the applicant and her husband are able and willing to provide material benefits for the children which the parents were unable or unwilling to offer. The grandparents own several motor vehicles which are available for the use of Joel and Danielle. A Volkswagen was purchased by the applicant and registered in Joel’s name. Most recently they acquired a Ford Explorer which Joel uses as his own. Danielle has the use of a Honda automobile which bears personalized licence plates reading “NIELLA”, purchased for her by her grandparents. The grandparents have purchased and provided for Joel since he was 12 years of age a series of three “dirt bikes”, which are motorcycles used in off-road competition. They purchased a pet parrot for Daniella.

[43] Anthony Capin testified that these are enticements which the children found difficult to resist. He stated frankly that his children would not have ready access to his motor vehicle unless they earned the right by sharing in the expenses of operating it.

[44] On the evidence, it appears that the children are doing well in school. Joel earns about $8,000.00 annually working at an auto parts retailer part-time and during the summer school break. Danielle has had at least two part-time jobs to date.


[45] The respondent, Anthony Capin, has satisfied the onus on him of demonstrating on a balance of probabilities that Joel Capin and Danielle Capin are 16 years of age or older and have withdrawn from parental control.

[46] This application as against the respondent Anthony Capin is dismissed. There will be an order pursuant to the minutes of settlement filed in the case of the respondent Jayne Belanger.

[47] If the parties are unable to agree on the matter of the costs of this application, they may exchange brief written submissions and then send them to me within 45 days.


Released: June 10, 2005