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December 10, 2001
Girls can sue grandparents for cutting off money flow
'Novel' case follows parents' divorceCristin Schmitz
TORONTO - In the first Canadian ruling of its kind, a Toronto judge has decided that two girls can sue their wealthy grandparents for stopping their financial support after the children's parents split up.
Shari Lynn Fein, 37, is suing businessman H. Lawrence Fein, and his wife, Beverley, on behalf of herself and her five- and nine-year-old daughters, for allegedly turning off the financial tap when Ms. Fein's marriage to their son, Eric, ended last year.
The senior Fein is the founder, chairman and CEO of Toronto's Telegenic Programs Inc., a successful television and film distribution, production and licensing company.
The Feins have not yet filed a defence to Ms. Fein's allegations, which remain unproven, but Ms. Fein claims her in-laws virtually kept her family for 12 years.
Although her estranged husband once held a $200,000 senior executive post with a family company, Eric Fein, 37, now earns just $15,000 to $18,000 a year selling magazine subscriptions and pays modest child support, Ms. Fein states in court documents.
In a decision reported in The Lawyers Weekly this week, Ontario Superior Court Justice Craig Perkins rejected the Feins' preliminary bid to have the case thrown out before trial.
The grandparents argued the claims of the children and their mother -- based on what the judge described as withdrawal of financial largesse -- are not recognized by the law and thus have no chance of success.
Noting he shared the grandparents' concern about the "daunting prospect of bitter intrafamilial lawsuits," Judge Perkins ruled Ms. Fein nevertheless had established a basis to continue with the novel suit.
Novel claims cannot be barred from court unless precedents make it clear they cannot succeed. "Whether these allegations are borne out remains to be seen, but ... if they are, I think the situation qualifies as one where a fiduciary duty could be found by a trial court," Judge Perkins held.
The grandparents are alleged to have undertaken and promised to maintain the mother, father and children, and to have provided directly or indirectly for all of their needs, noted the judge.
"What [Ms. Fein] has said is the grandparents created a dependency on the income they supplied, arranged for the father to lose his job when things started going sour between the mother and father, assisted him in becoming judgment proof and then, after the separation, cut off all the support they had formerly been providing to her and the children. Further, they continue to support [their son] in his former comfortable lifestyle."
Ms. Fein alleges the senior Feins underwrote, directly and indirectly, all aspects of the junior Feins' affluent lifestyle during their marriage.
This included groceries, gas and clothing, a $715,000 house in an upscale area of Toronto, vacations in Palm Beach, Fla., a trust for the children, and a $300 weekly allowance for Ms. Fein, who quit work as a medical assistant to become a full-time homemaker as part of what she contends was an explicit and implicit agreement with her husband and his parents she would be a partner in a traditional marriage.
Since the separation, the grandparents have also stopped paying for the children's private school and religious and recreational activities. "This has caused considerable distress to the children," Ms. Fein claims in court documents.
Her lawyer, Julie Hannaford, said the girls now attend public school, live with their mother, and continue to see their father and grandparents.
Ms. Hannaford said her client has returned to work as a receptionist, but has depleted her savings, and is seeking subsidized housing and subsidized day care. She is also seeking legal aid because she can't afford legal fees.
"I understand that people, at first blush, say: 'Jeez, you are actually legislating generosity or you are punishing the withdrawal of generosity,' " said Ms. Hannaford. "But there is a big difference between getting a very expensive gift on your birthday, and having the gas in your car paid for.
"[My client] is saying the grandparents undertook to establish and maintain a life for these children she cannot possibly hope to replicate, and ... then underwrote this lifestyle, and ... having done so, breached a duty, especially when small children were involved, when they cut it off."
But the Feins' lawyer suggested if a court eventually does recognize the existence of a legal duty not to cease providing financial largesse it could spark lawsuits and open a Pandora's box.
"It may lead to grandparents or other people that may want to be generous to stop because they are going to be worried about establishing a pattern, or creating a duty," warned Herschel Fogelman, who noted his Toronto law firm is handling a similar case.
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