The matter of
Turner v Ansell was an appeal from the decision of the Honourable Mr. Justice Kukurin
on a motion to change brought by both the Applicant Mother and Respondent
Father. The case, which was unusually drawn out, was made very difficult
by complicating factors outlined in Justice Kukurin’s decision.
The main issue on appeal was the rights of a disabled, mature child to
child support.
The Applicant, Ms. Turner, and Respondent, Mr. Ansell, entered into a separation
agreement on March 1, 2002. At the time, there were two children, a son,
Christopher, and a daughter, Jocelyn, for whom child support was to be
paid by the father. The case was started by a motion to change filed by
Ms. Turner on May 8, 2007. In response, Mr. Ansell also brought a motion
to change. The changes sought related only to child support for Jocelyn,
who, at the time of trial, had just turned 22 years old.
Many of the issues in the case revolved around the fact that Jocelyn was
a “special needs child”; her conditions included: learning
disabilities, communication problems, difficulties socializing, Asperger’s
Syndrome, depression, borderline personality disorder, and a substance
abuse disorder.
In his order of May 16, 2011, the learned trial judge, Justice Kukurin,
held that Jocelyn was enrolled in a full-time program of education and
thus continued to be entitled to child support according to the couple’s
agreement. He ordered a variation of the child support effective June
1, 2007 applying the
Child Support grid in amounts based on the Respondent’s gross annual income.
At trial, the Respondent asserted, pursuant to the former couple’s
separation agreement and subsequent court order (July 2005), that his
obligation to pay child support had ended due to the fact that Jocelyn
was no longer in “full time attendance in an educational institution.”
Justice Kukurin concluded that the statutory wording in s. 31 of the
Family Law Act, and not the wording of the separation agreement, should apply. Accordingly,
the test was whether Jocelyn was “enrolled in a full-time program
of education.”
Explaining his reasoning for construing the agreement in this manner, Justice
Kukurin took a moment to remind the parents of the purpose of support
orders. He stated:
Parents are free to insert whatever they wish in their domestic contracts.
That does not necessarily mean that the law will uphold their agreements…
Notwithstanding that separation agreements or court orders dealing with
child support may require one parent to pay money to another parent, the
right to be supported is the right of the
child [emphasis added]. A parent cannot bargain away that right, nor can a parent, by entering
into an agreement, limit the child’s entitlement either temporarily,
or on a contingency that is different than that provided by statute….Courts
ought not condone the limitations sought to be imposed by parents when
they curtail the rights given to their children by statute.
On appeal, Justice Gareau accepted Justice Kukruin’s findings on
this issue and declined to set aside his decision.
One of the main issues on appeal was whether the appellant (Mr. Ansell)
came within s. 3(2)(b) of the
Child Support Guidelines. This section provides that, for children over the age of majority, the
Guideline amount is to be used unless the court considers that approach
to be inappropriate, in which case the court must award an appropriate
level of support “having regard for the condition, means, needs,
and other circumstances of the child and the financial ability of the
of each spouse to contribute to the support of the child.”
Justice Kukurin determined that under the circumstances, it was inappropriate
to diverge from the
Guideline amount and refused to use his discretion under s. 3(2)(b). He contended
that the financial needs, conditions and circumstances of the child were
relatively unknown, and there was a lack of evidence in this respect.
Affirming the trial judge’s decision, Justice Gareau held that “it
was not reasonable to expect the trial judge to dismiss the claim for
support based on an inability to apply s. 3(2)(b) of the
Guidelines to deny support to Jocelyn when there was a finding of fact that she was
enrolled in a full-time program of education and clearly entitled to child
support.”
A related issue on appeal was whether the trial judge failed to consider
disability payments received by Jocelyn after her 18thbirthday as income for the purposes of calculating child support. Justice
Gareau reviewed the findings of Justice Kukurin, including his consideration
of the line of cases that hold that disability incomes received by a child
over the age of majority are to be considered as income of the child in
determining child support.
Justice Gareau mused that while Justice Kukurin could have granted the
Respondent Father’s request and ordered no child support, such an
order would have been a “gross injustice to Jocelyn, who, with extreme
challenges, [was] doing the best she [could] to continue with her post-secondary
school education.” The court agreed with the trial judge’s
findings that simply because Jocelyn was receiving $762/month in ODSP
benefits did not disentitle her to support from her father.
The Respondent wrongly assumed that because Jocelyn was receiving an amount
she did not receive before her 18thbirthday, that he no longer owed child support. The court concluded that
the father’s assumption failed to take into account Jocelyn’s
actual needs and held that the Respondent had not demonstrated a material change
in circumstances. As a result, the court refused to terminate child support
on the basis that Jocelyn was receiving a slightly unconventional education.