Warner v. Warner, 2017 ONCJ 920

ONTARIO COURT OF JUSTICE CITATION: Warner v. Warner , 2017 ONCJ 920 DATE: 2017 08 03 COURT FILE No.: Halton 299/09 BETWEEN: JACQUELINE REBECCA WARNER Applicant — AND — STUART JOHN WARNER Respondent Before Justice Victoria Starr Motion Heard on July 25, 2017 Reasons for Decision released on August 3, 2017 A. Stoner........................................................................................... counsel for the applicant J.

Treloar...................................................................................... counsel for the respondent STARR J.: INTRODUCTION [ 1 ] On July 25, 2017 the court heard a motion brought by the respondent father (hereinafter, “the father”) to terminate his child support obligation for each of the parties’ two children. On that same day the court also heard the applicant mother’s (hereafter, the mother”) cross-motion for a recalculation of the child support paid from May 2015 to June 2017 and from July 1, 2017, onwards.

After hearing full submissions on both motions (heard together), the court placed its decision on reserve and adjourned the hearing to August 4, 2017. [ 2 ] Both motions have to do with child support for the parties’ two adult children: 19 year old, James Stewart Warner, born April 15, 1998 (hereinafter, “James”), and 23 year old, Madeline Lee Warner (hereinafter “Madeline”), born November 24, 1993. Neither child is in school right now, nor is either living in the home of the mother – the support applicant and recipient. THE ISSUES [ 3 ] The issues I must decide are these:

(1) Has the father’s obligation to pay child support to the mother, for Madeline ended, and, if so, as of what date?

(2) Has the father’s obligation to pay child support to the mother, for James ended, and, if so, as of what date?

(3) If the father’s obligation to pay the mother child support for both children has ended and the order for support terminated, does the mother have standing to pursue her claim for an adjustment to the level of support which predates the date when the father is found to

have no obligation to pay support to the mother for either child? [ 4 ] There are several issues that are not in dispute. First, it is agreed that if the mother has standing to pursue her claim for a recalculation of the level of child support paid by the father prior to the last of the termination dates, the order the mother seeks in relation to a recalculation of child support prior to said date, should be made. This agreement is subject to one caveat: the amounts reflected in the mother’s notice of motion must be corrected as, for some of the months, the wrong data was used.

The parties agree on both the formula and data to be used in the recalculation so the exercise is simply mathematical. [ 5 ] Second, both parties relied on hearsay. When questioned by the court about this, neither raised any objection to its admissibility.

I have thus admitted it and any concerns I have had about the reliability of that evidence, have gone to weight. [ 6 ] Third, the parties agree to provide the documentary disclosure the other seeks in the event that the father has an ongoing child support obligation. [ 7 ] Fourth, the parties agree that if the court grants the relief sought by the mother for any period prior to December 2016, the order shall be final. TERMINATION Onus and Applicable Test [ 8 ] The parties have a separation agreement, portions of which remain operative and in force.

The most important paragraph of that agreement (dated October 19, 2007) for purposes of these motions is paragraph 5.9. It sets out the parties’ agreement as to when child support ends. [ 9 ] There are also three orders in place which are relevant to these motions. These are: (

a) The final order of Justice Zisman, dated May 31, 2010. That order changes the level of child support from that set out in the parties’ separation agreement and confirms that the terms set out in the parties’ separation agreement that are not changed by the order, remain in full force and effect, one of which is paragraph 5.9; (

b) The order of Justice O’Connell dated October 1, 2013. Paragraph 8 of that order varies, on a final basis, the child support provisions set out in paragraph 3 of Justice Zisman’s order. (

c) The temporary order of Justice Starr, dated September 16, 2014. That order varies paragraph 8 of Justice O’Connell’s order. [ 10 ] Paragraph 5.9 of the agreement states that:

a) Child support ends for each child when:

b) the child ceases to be a “child” as defined in the Divorce Act ,

c) the child no longer resides with the custodial parent, (“resides” includes the child living away from home for school, summer employment or vacation),

d) the child turns 18, unless he or she is unable to become self-supporting due to illness, disability, education or other cause,

e) the child becomes self-supporting,

f) the child obtains one post-secondary degree or diploma,

g) the child turns 23 years of age,

h) the child marries, or

i) the child dies. [ 11 ] As paragraph 5.9 of the agreement references eligibility under the Divorce Act , 1985, c. 3 (2nd Supp.), it is necessary to set out the relevant sections of that Act . The obligation of one parent to pay child support to the other is set out in subsection 15.1(1). That

section reads: Child support order 15.1

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. [ 12 ] Subsection 2(1) defines “child of the marriage” as follows:

Definitions 2

(1) In this Act, Child of the marriage means a child of two spouses or former spouses who, at the material time, (

a) is under the age of majority and who has not withdrawn from their charge, or

(

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; [ 13 ] The onus of demonstrating that child support should continue for a child who has attained the age of majority or more, is on the person seeking child support. In this case, that is the mother. [ 14 ] This court’s jurisdiction to determine if child support has ended, lies in the Family Law Act, RSO 1990, c F3.

In her affidavit material the mother asserts that the father’s obligation to pay child support to her for the children continues under both the Divorce Act and the Family Law Act. No one made any submissions on the different tests under each Act , or even addressed the legislative authority for this court’s jurisdiction in their argument.

It is, however, given the mother raises it in her material and the fact that this court’s jurisdiction lies in the Family Law Act , not the Divorce Act, necessary for me to address the test to be applied in this case for continued entitlement of an adult child under the Family Law Act. [ 15 ] The Family Law Act contains a far narrower definition than the Divorce Act , and one that Justice A.W.A. Sullivan recently read in the definition of child of child of the marriage under the Divorce Act into s. 31(1) of the FLA , in the case of Coates v. Watson , 2017 CarswellOnt 10653 (Ont. C.J.) .

He did this after finding that s. 31(1) of the FLA was unconstitutional as it violated

section 15 of the Charter and is not saved by

section 1. [1] [ 16 ] In determining whether child support for each child has ended, I have applied the more expansive definition set out in the Divorce Act , for two reasons: First, because I have followed Justice Sullivan’s decision and find that the definition of child under s. 31(1) of the Family Law Act includes the more inclusive definition of "child of the marriage" into subsection 31(1) of the Family Law Act . [ 17 ] Second, and perhaps most importantly, the parties agreed that the more expansive definition of “child of the marriage” should be used when deciding whether child support for a child ends. T he parties have a valid separation agreement, and

section 5.9 addresses the very issue I must decide.

Section 5.9 of the agreement remains, by virtue of Justice Zisman’s order, in full force and effect. [ 18 ] While the court is not bound by the termination provisions of the parties’ agreement, it must still consider the parties’ intentions when determining what order to make and ought to, as I do, give great deference and weight to those intentions, absent some compelling reason to override their agreement. [ 19 ] For these reasons, in deciding whether child support for these adult children continues, I have adopted and followed the criteria set out in paragraph 5.9 of the parties’ separation agreement.

Issue 1: Should the father’s obligation to pay child support to the mother for Madeline end, and if so as of what date? Positions [ 20 ] The father’s position is that his obligation to support Madeline should be terminated effective December 2016. The mother’s position is that support for Madeline should continue. In her submissions she suggested that the obligation be suspended, rather than terminated. With respect to the commencement date of any suspension or termination, the mother suggested the month of April 2017.

Relevant Facts [ 21 ] Madeline completed her first degree in December 2016. [ 22 ] After finishing her first degree, Madeline, who had been living away from her mother’s home to attend at university, continued to live in Waterloo. [ 23 ] From January to April 2017 she took three high school courses which she requires for the next post-secondary program she plans to attend. [ 24 ] In or about April or May 2017, Madeline went off to Thailand to travel and work.

It is agreed that she is working and supporting herself with her earnings at this time. [ 25 ] Although the parties disagree as to the solidity of Madeline’s plans with respect to when she might return from Thailand and about whether she will go on to further education, the earliest date when she may be planning to go back to university is January 2018. Analysis [ 26 ] In their separation agreement, the parties agreed that upon a child obtaining her first degree, or turning 23 (which Madeline did on November 24, 2016), support for that child would end.

Thus, the first of the itemized potential termination events occurred in November 2016, the second in December 2016. [ 27 ] In my view, Madeline continued to be a child under the Divorce Act , despite attaining the age of 18 because she was unable to withdraw from parental control or to provide for her necessities of life by reason of her full time attendance at university to complete her first degree. It is also clear that the parties’ intended support to continue until such time as she obtained her first degree.

Thus, I place no weight on the first terminating event. [ 28 ] In my view, the parties’ intentions were fulfilled upon Madeline obtaining her first degree, and that thereafter, support would only be paid if she could not withdraw from parental control due to illness, disability or other non-education reason, that prevented this. Based on my reading of paragraph 5.9 and the lack of evidence to the contrary, I also find that even in such circumstances, the parties intended for child support to end upon Madeline turning 23. As both events (obtaining the first degree and turning 23) had occurred by

December 31, 2016, the events and circumstances thereafter, are immaterial. [ 29 ] Thus, in this case, the fact that she continued to take courses in aid of her next degree is irrelevant. So too is the fact that her accommodation lease in Waterloo continued. [ 30 ] There is no evidence to suggest that after December 2016, Madeline has been unable to withdraw from parental control or to provide for the necessities of life for herself, due to her pursuit of her first degree, disability, illness, or other reason affecting her ability to work and be self-supporting. Madeline is an adult and she had had a choice.

She decided she would remain in Waterloo until April and go back and take three high school courses, rather than work full time to support herself.

It was not a decision necessitated by the pursuit of her first degree, some illness or disability, or other reason that prevented her from being able to withdraw from parental control and provide for her own necessities of life. [ 31 ] For all these reasons I find that child support for Madeline payable by the father to the mother, ended by no later than December 31, 2016. [ 32 ] I have not suspended the father’s obligation as the mother requests rather than terminate it for two reasons: first, I have found that the obligation ended.

Second, I find that it is not likely to resume, given the parties’ intentions that support for Madeline would end upon her obtaining her first degree and turning 23.

In this regard I note that paragraph 5.13 of the separation agreement allows for the obligation to be revived in the event that a child interrupts her schooling and later returns to full-time school, so long as the child is under the age of 23. [ 33 ] As Madeline is now 24, did not interrupt her studies in pursuit of her first degree, and had in fact obtained it by December 31, 2016, there is no reason, at this time and on the evidence before me, to believe that the father’s obligation to pay child support to the mother for Madeline will revive. [ 34 ] For these reasons I find that the father’s obligation to support Madeline terminated December 31, 2016 and I order accordingly.

Issue 2: Should the father’s obligation to pay child support to the mother for James end, and if so as of what date? Positions [ 35 ] The father’s position is that James is not entitled to support because: he is over the age of majority; has not been in school full- time since December 2016; has not, diligently pursued his education since, and has not maintained a residence with the mother since February 2017. On these facts, he submits James is no longer a child of the marriage and his obligation to pay the mother child support for James should be terminated.

In his written material the father asserted that the termination date should be February 1, 2017. During submissions, however, his lawyer argued that the termination date should be December 31, 2016. [ 36 ] The mother’s position is that the father’s obligation to pay her child support for James continues. She asserts that James is unable to withdraw from parental control, or to provide himself with the necessaries of life. This inability is by reason of his substance abuse issues, psychological issues, and poor emotion and behaviour regulation skills.

As a result of these challenges, he has been in trouble with the law and faced challenges pursuing his education, maintaining employment, and maintaining a residence with her. He is financially and emotionally dependant on her.

Relevant Facts James’s attendance at school [ 37 ] The evidence of the parties aligns on the fact that James does not have a high-school diploma and on the fact that since December 2016, the only time that James was enrolled in, and may have attended a program of study was for a week or two in late April and early May 2017. [ 38 ] There is no evidence demonstrating his actual attendance record. The evidence about whether this was a full-time program, of the number of courses that James was required to take, or of the number of hours he would be in school.

The only documentary evidence the mother produced for this program was a generic sheet of paper congratulating an unidentified student on being accepted into the program and outlining some of its features. [ 39 ] One of the features of the program identified is the start date of the various courses offered by the program, which start dates appear to depend on the course stream the student elects. There is no evidence as to what stream James elected.

In any event, the earliest start date for any of the programs was an orientation session to be held on April 24, 2017. [ 40 ] The mother’s unchallenged evidence is that James has had many encounters with the criminal justice system because of his criminal behaviour. Further, he had an episode in early May 2017, which resulted in him being charged with breaching his probation, as a result of which he was incarcerated at Maplehurst Correctional Complex. Maplehurst is an adult correctional facility.

James’ incarceration prevented him from continuing to attend the Sheridan program. [ 41 ] James was released from the correctional facility on June 30, 2017. He has not returned to school. [ 42 ] The mother’s evidence is that James’ plan prior to his incarceration was to complete the program at Sheridan and then go back in September to get the last two credits that he needs to graduate from high school. [ 43 ] Based on the evidence this much is clear to me: w ith the exception of the one or two weeks James attended Sheridan College,

the last time James was in what could be a considered a full-time education program was when he was in a co-op program at Gary Allan. This ended in December 2016. James’ Residence [ 44 ] There is no dispute that:

(1) James has maintained a separate residence from his mother since February 27, 2017. On that date, the mother required James to leave her residence and enlisted the help of the police. A “No Trespass Order”, according to the father, issued, prohibiting him from coming on her property.

(2) From February 2017 to May 2017 James was not living in his mother’s home. Instead he was living on his own in a room (according to his mother) or a basement apartment (according to his father);

(3) From May to June 30, 2017, James resided in a correctional facility;

(4) Since his release from Maplehurst, on June 30, 2017, James has resided in an apartment of his own. James’ Ability to Support Himself [ 45 ] The mother’s evidence which is not challenged by any evidence of the father to the contrary, is that:

(1) In April 2017 James was working at Home Depot but this ended shortly after it began. It is not clear to me whether this was because he was incarcerated or because he quit;

(2) Since his release from jail and despite having his own residence, James returns to her home to stay more often than he is in his own residence. For example, since renting his own apartment, he has stayed with her continuously in her house for five days and spent another five days at her cottage. He is lonely, she says, and has already asked to return to her home permanently;

(3) James uses illicit drugs;

(4) James has often been in trouble with the law; [ 46 ] Although they disagree on the level of financial assistance the other provides and on who is providing more, it is clear that both parents are financially supporting James. Their efforts are independent of each other with arrangements made directly with James or his third party service providers. [ 47 ] The mother’s evidence is that James suffers from OCD, ADD, and severe anxiety and that he may be bipolar.

The gist of her evidence is that he is unable to withdraw from parental control or to provide the necessities of life for himself, because of these mental health issues. This coupled with the fact that he tends to self-medicate through the use of illegal drugs, affect his ability to control his anger and maintain steady attendance at school or employment. His inability to control his anger has also meant that he cannot live with her, and is frequently in trouble with the law. Analysis [ 48 ] The decision with respect to James turns on whether James remains a child as defined in the Divorce Act .

More particularly, it turns on whether the mother has met her onus to demonstrate James is under parental charge but unable, by reason of illness, disability or other cause, to withdraw from parental charge or to obtain the necessaries of life. [ 49 ] On the evidence before me, I find that the mother has demonstrated her onus to prove that James remains, to a significant degree, under his parents’ charge.

The evidence leaves little doubt that James is economically dependent on both parents and that despite living on his own and an ability to turn to the state for support through social assistance, he relies entirely on both parents to support him emotionally and financially. [ 50 ] In coming to this decision, I have considered the decision of Justice Thomas Heeney of the SCJ in Oates v. Oates. [2] Although the central issue in that case was whether the adult child had withdrawn from parental control, the case is none the less helpful in determining the meaning of “parental charge” and “parental control”.

This is particularly so as in that case, the subject child was living in a residence separate from either parent. [ 51 ] In Oates v. Oates, Justice Thomas Heeney looks at the case law regarding the entitlement to support by adult children under both the Divorce Act and the FLA . He finds that for adult children, financial dependency is a key criterion in the Divorce Act’s definition of child of the marriage .

On the other hand, under the Family Law Act , the keys to entitlement are “enrollment in school and a continuing element of parental control”. [ 52 ] Heeney J. adds at par. 24: Nevertheless, financial dependency has been seen as one factor indicative of parental control.

This is not surprising since, where a parent is providing the funds for higher education, one would expect that he or she would retain at least some control over the manner in which it is being spent. [ 53 ] Heeney J. found that the adult child before him had not withdrawn from parental control under s. 31(2) of the FLA up to the completion of her Master’s degree. He made that finding in part because of her continuing financial dependence. She was unable to support herself. She was living instead on student loans. One of the loans was co-signed by one of her parents.

[ 54 ] I adopt and apply the maxim that economic dependency on at least one parent may be sufficient to ground a finding that a child remains under parental control or charge. In my view, the foundation for such a finding is even stronger when the child also remains emotionally dependant on at least one parent.

In this case, while the degree may be different, James is emotionally and economically dependent on both parents. [ 55 ] Despite the fact that he remains under their charge or control, I have decided that the father’s obligation to pay the mother child support for James, ended in December 2016 and is not revived for the one or two weeks he attended at the Sheridan program. I have reached this decision because the mother has not met her onus to demonstrate James is unable, by reason of illness, disability or other cause, to withdraw from parental charge or to obtain the necessaries of life.

In the absence of a finding that he remains a child of the marriage, the obligation ought to terminate based on other terminating events that apply under the parties’ agreement. [ 56 ] I turn to set out the considerations upon which I have placed the greatest weight in reaching this this decision. [ 57 ] First, the mother provided no medical evidence to corroborate her claim that James suffers from OCD, ADD, generalized anxiety, that he may be bipolar, or that his reliance on illicit drugs rises to the level of an addiction.

Further, and more importantly, given that the father did not deny her evidence of James’ mental health issues, she produced no medical evidence or expert opinion to show that the diagnosis and/or his drug related issues rise to the level of an illness, disability, or other cause which significantly impairs his ability to withdraw from parental control/charge or to acquire "the necessaries of life". [ 58 ] Most of the cases that consider whether an adult child is a "child of the marriage" focus on participation in post-secondary education as the "other cause" which impairs a child's ability to withdraw from parental charge or to acquire "the necessaries of life".

No case law was presented to the court on this motion, let alone cases dealing with the “other causes" and which could have assisted the court in analyzing this case so as to determine whether James’ drug, anger management, mental health and behavioural issues, etc. rise to the level of “other cause”. [ 59 ] I am not persuaded that the issues the mother relies on fall into the category of illness, disability, or other cause, which actually impairs James’ ability to withdraw from his parents’ charge or obtain the necessities of life.

Based on his overall behaviour, it seems far more likely to me that James is unwilling to act like the adult he is and either work or go to school, and he is in greater control of the choices he makes than his mother claims, and which bring him in contact with the criminal justice system. [ 60 ] In other words, on the evidence before me, and on a balance of probabilities, James failure to withdraw from parental charge is more likely the result of his choices than abilities. [ 61 ] I have no difficulty finding that any failure on James’ part to withdraw from parental control, is not related to his pursuit of his education.

He has not been in school in all of 2017, except for one or two weeks and even then, evidence of whether he actually attended the Sheridan program regularly and diligently is scant. His plans to attend between January 2017 and the end of April 2017, and his failure to attend from early May 2017 onwards cannot ground a finding that he is a child of the marriage. [ 62 ] Further, if being in and out of trouble with the law can amount to “other cause”, I have not been presented with any authority to support this proposition.

It also seems to me that while James was incarcerated he was not entitled to child support as the state was to have assumed responsibility for James’ financial care and support and for providing him with the necessities of life. [ 63 ] Given my finding that James is no longer a child of the marriage under the Divorce Act , the balance of the criteria in in paragraph 5.9 of the parties’ separation agreement apply. James is over the age of 18, no longer in school, and no longer residing with the mother.

Thus, pursuant to the agreement, the father’s obligation to pay the mother child support for James, is at an end. [ 64 ] As to the date when the father’s obligation should be terminated, I find it is December 31, 2016. By this date, James was the age of majority and not a child of the marriage, and not in school. I have given no weight to the fact that he later enrolled at Sheridan and may have attended for one or two weeks.

On the evidence before me, December 2016, was the last time James attended a program of study that could in any way be found by me to be sufficient for him to be found to have an inability to withdraw from his parent’s charge due to the pursuit of an education. [ 65 ] I have decided to terminate the father’s obligation, rather than suspend it for these reasons: First, much is up in the air with James. While he may have said he wishes to resume living in his mother’s home, his mother’s evidence makes no mention of whether she will permit this or if so, when.

Further, although he may have had plans to go back to school in September to earn his two credits, those plans were prior to going to jail. There is no evidence before me that this is his current plan and there is no evidence as to any steps he has taken to further such a goal. [ 66 ] I am also mindful that the parties’ agreement clearly makes provision for child support to resume if James goes back to school while still under the age of 23.

I am referring to paragraph 5.13 of the separation agreement which allows for the obligation to be revived in the event that a child interrupts his schooling and later returns to full-time school, so long as the child is under the age of 23. This term of their agreement, like paragraph 5.9, remains in full force and effect. [ 67 ] I wish to make two things very clear to these parents. First, my decision is not intended to be in the least bit critical of them as I applaud both of them for their devotion to their son’s wellbeing. Every parent who supports their adult children in the ways that they see fit.

They know their children and their circumstances far more intimately than any judge can. It must be very difficult and highly distressing for both the mother and the father to parent their vulnerable son. I can see that as loving and caring parents leaving him to fend for himself is not really an option. Nonetheless, in the circumstances of this case, each parent should have the right to decide when and how they will support James financially and emotionally.

Each should have the right to make those arrangements with James directly. [ 68 ] For all these reasons I have decided that the father’s obligation to pay child support to the mother, ended December 31, 2016. I have accordingly ordered that it terminates as of that date.

Issue 3: Does the mother have standing to pursue her claim for an adjustment to the level of support paid from May 2015 toDecember 2016? Positions [69] The mother’s position is that the father underpaid child support from May 2015, onwards and that his obligation should berecalculated for that period based on his actual income. [70] The father’s position is that the mother is seeking retroactive child support and to have standing to seek retroactive support, atleast one of the children must qualify at the time of this hearing for child support.

As I have ruled that the father’s obligation to pay childsupport to the mother terminated for both children on December 31, 2016, the mother has no standing at this hearing to pursue herretroactive support claim and her claim in this regard must be dismissed. [71] I find that the mother is entitled to make these claims for three reasons: First, the mother’s claims are not “retroactive” claims. In MacKinnon v.

MacKinnon, (2005), (ON CA), 75 O.R. (3d) 175 (C.A.) at para. 19, the Ontario Court of Appealclarified that retroactive support relates to claims for support for the period predating the commencement date of the pleading in whichsupport is claimed. A claim for support within the pleading is properly characterized as prospective support. [72] In the instant case, these motions to change proceedings started on November 22, 2012. The mother’s response to motion tochange is dated December 20, 2012.

In that pleading she specifically seeks a prospective adjustment right up to December 2016, to thelevel of child support based on the same 4 month / 8 month payment plan that she seeks on this motion. At that time both children wereentitled to child support. Given this and the direction given by the Ontario Court of Appeal, her claim on this motion is not a claim forretroactive support but rather, a recalculation based on what she originally pleaded.

She thus, has standing to seek the adjustment sheseeks up to December 31, 2016. [73] Second, even if her claim was a claim for retroactive support, the Supreme Court of Canada clearly stated that for a parent tohave standing to assert such a claim, the child must be entitled to support at the time of the application [ see D.B.S., par. 89, and Clancyv. Hansman, 2013 ONCJ 622 ].

At the time of her response to motion to change, both children were entitled to child support,and thus, the mother has standing to pursue a retroactive claim for support. [74] Third, it would be unfair and unjust in all the circumstances not to let the mother pursue her claim. These proceedings wereongoing.

The claim was made and the only reason it was not handled prior to the termination of the father’s obligation to pay support tothe mother for the children is because of delay in process and this court’s decision to adjudicate the issues on the father’s motion first,rather than those on the mother’s cross-motion. DISCLOSURE [75] Both parties asked for orders for disclosure as part of the relief sought on these motions. It seems to me that if the father’sobligation to pay child support was terminated, that the issue of disclosure would be moot.

During submissions, both counsel agreed toprovide the disclosure requited in the event that the father’s obligation to pay support for one or both children continues. I assume thatthe converse is also agreed to – that if his obligation is terminated, there is no further need for the order for disclosure to be made. Ihave thus, dismissed their requests for disclosure. I am, however, prepared to change that decision if either party takes the position onAugust 4, 2017, that the disclosure sought should still be ordered. COSTS [76] Both parties have sought costs in their notices of motion.

If either party wishes to pursue this issue, I will hear submissions onAugust 4, 2017. ORDER [77] For all of the forgoing reasons I make the following order:

(1) On a temporary basis, the respondent’s obligation to pay the applicant child support for either of the children, namely, JamesStewart Warner, born April 15, 1998 and Madeline Lee Warner born November 24, 1993, pursuant to any previous order or the parties’separation agreement dated October 19, 2007, shall terminate effective December 31, 2016.

(2) On a final basis, the relief sought by the mother in her notice of motion dated May 30, 2017, at paragraphs 2 – 6, is granted onthe condition that the applicant provide the court with a draft order, approved by the respondent that has the corrected levels of supportpayable.

(3) Each party’s claim for disclosure is dismissed;

(4) The issue of costs and next steps in the case, along with any additional submissions regarding disclosure, are to be addressedwhen this matter returns before me on August 4, 2017 at 9:15 a.m. Released: August 3, 2017 Signed: Justice Victoria Starr

[1] The distinction is that under the Divorce Act , married or divorced parents have the legal obligation to support a child over the age of majority who is ill or disabled and unable to support herself. Under subsection 31(1) of the Family Law Act : 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.

Thus, under the Family Law Act , the child who is over the age of majority and from unmarried parents has no prima facie right to child support on the basis of illness or disability, or other cause that may prevent the child from withdrawing from their parent’s charge or to obtain the necessaries of life as does the child of married parents. Also, under the Family Law Act , t he child who is over the age of majority must satisfy the requirement in s. 31 FLA of "enrolled in a full-time program of education" to continue to be eligible for support.