Dec. 11, 01:00 EDT

Sisters can sue rich grandparents

Judge gives go-ahead to claim support in novel case

Nicholas Keung
STAFF REPORTER
Toronto Star

Family lawyers are wondering if an unprecedented court decision, allowing two Toronto girls to proceed with a lawsuit against their wealthy grandparents for withdrawing financial support, will open up a can of worms.

"If it went that far, there would be a whole new raft of litigations at least available to people. When something is available, there is someone who will try to take advantage of it," lawyer Gerald Sadvari said in an interview yesterday.

"I don't think this is good for grandparents-grandchildren relationships."

Shari Lynn Fein, 37, is suing businessman H. Lawrence Fein and his wife Beverley on behalf of herself and her daughters for allegedly stopping their financial assistance when her marriage ended last year to their son Eric, also 37. The girls are aged 5 and 9.

Despite a motion by the elder Feins — who own Toronto's Telegenic Programs Inc., a television and film distribution, production and licensing company — to strike out the claim against them, Mr. Justice Craig Perkins of the Superior Court has ruled that the court should further explore the case.

Perkins struck out all but one of the 25 claims made by the plaintiff and allowed the girls and their mothers to proceed with the claim for breach of contract and breach of fiduciary duty.

"The cause of action is novel. ... I do not think that the developing law governing fiduciary duties, even in family situations, is so clearly in the grandparents' favour that I should strike out the claim at this stage, without even requiring the grandparents to defend," the judge said in his 16-page decision released last month.

Both the plaintiff and the grandparents told The Star, through their lawyers Julie Hannaford and Herschel Fogelman, that they would not comment on the lawsuit.

It is not uncommon for children to sue their parents for support when they are minors, but Sadvari said lawsuits against grandparents in this context are unheard of.

"The court in the past has been trying to narrow the scope of grandparents' rights. If that right has been narrowed, it would be quite surprising if the obligation to support is created at the same time," he explained. "I am surprised that the judge has allowed it to go to the next step in this case. If it succeeds, then it's a huge can of worms and a lot of litigation."

`I am surprised that the judge has allowed it to go to the next step in this case. If it succeeds, then it's a huge can of worms and a lot of litigation.' Gerald Sadvari Family lawyer

Shari Lynn Fein claimed that the grandparents had supplanted the parents' role in her daughters' lives by undertaking all aspects of the children's affluent lifestyle during her marriage.

They allegedly bought the family an upscale Toronto home, paid for their education in a private school, took them to Palm Beach, Fla., and provided for everything from gasoline and groceries to the children's clothing.

All the support ceased with the couple's separation, and the girls' mother said in her claim, "This has caused considerable distress to the children."

Lawyer Phil Epstein said he could see why the judge would reject the grandparents' motion for a dismissal.

"The Supreme Court of Canada has said that the range of who a fiduciary is is never closed. What breaches of the fiduciary duty may amount to is still an open area for the court to examine," he noted.

With regard to tossing out the other claims put forward by the daughter-in-law, Epstein said: "It looks to me (the judge) is sending a clear message that trying to treat grandparents as parents is a very difficult hill to climb.

"He's generally thrown cold water on the idea of a grandparent being legally obliged to support their grandchildren."

Calling the case "unique and facts-driven," Mary Reilly, chair of the Family Lawyers' Association, said she doubts if it will open the floodgates to this kind of lawsuit because not many grandparents could afford to pay for such a lavish lifestyle for their grand- children.

"It sounds like the support from the grandparents (in this case) is to the extreme. It's a horrible thing to think that it could get tighter when it comes to paying for private education or things like that," she said.

Lawyer Roselyn Zisman said the case may have far-reaching implications for the practice of family law in Canada, as grandparents who have taken on the obligation of caring for their offspring might be required to do that on an ongoing basis whether their son or daughter separates from a spouse or not.

"It will certainly open up cases when there is a pattern (of support), but we are talking about a select few. I am not sure if it is a bad can of worms to open," she said.

The grandparents have not yet filed a defence to Shari Lynn Fein's allegations, which have yet to be proved in court.

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