In a recent Ontario Court of Justice motion decision, Juneau v. Latrielle, the court ordered interim child support payable to the child by the child’s mother and father while she was living with parents of a school friend. The case commenced by way of a motion to change child support, brought by the father to terminate his child support obligation payable to the mother. The child commenced her own claim in her response, claiming child support from her parents on the basis that she was less than 18 years of age, more than 16, in need of support, and had not voluntarily withdrawn from care. Counsel for Father argued that the Court cannot make an interim Order in a motion to change. Counsel for Father also argued that there were significant factual disparities in the affidavits filed on behalf of the Father and child, and that those factual disputes cannot properly be resolved and that, therefore, the matter needs to be adjourned to trial and no interim Order can be made. Justice Johnson found that the child is entitled to interim child support from both her mother and father, pending trial to determine if the child is entitled to support.
In granting interim relief, the judge relied on the decision of Ball v. Broger, which states:”The fact that trial will be required and that a Court might subsequently determine that [the child] is ineligible for support does not preclude the Court from making a temporary Order. The prejudice to a parent of overpaying support (and not being able to recover it) is more than offset by the prejudice to a child if he or she immediately needs support and the Court does not make a temporary Order.” The test is whether the child has established a prima facia case that she is entitled to support on the balance of probabilities.”The judge further considered the following factors in deciding that child is entitled to interim support:(1) The child did not move to a life of independence, rather moved into another parent and childlike environment, with the parents of a school friend;(2) The child did not drop out of school but, rather, returned to high school full time and is passing her courses;(3) The child did experience conflict in relation with adults other than her father and his partner, however, the child has resided for approximately one year with the parents of a school friend without difficulty;(4) The child demonstrates distress and regret at the breakdown in the relationship between herself and her father. She is working to repair the relationship with her mother. The child was open to mediation;(5) The child had a difficult childhood, witnessing domestic abuse and herself was sexually assaulted;(6) Special consideration ought to be given to the emotional difficulties of the child’s childhood;(7) There is ongoing conflict between the child and her father. At this stage, it is not reasonable to require the child to return to her father’s care; and(8) The child is attempting to better herself by way of education. She is under the age of eighteen and unable to support herself. The child requires child support. The father has a legal obligation to do so.