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| Child support for disabled adult children: What is the effect of ODSP on entitlement to and quantum of child support ? |
Parents of a disabled adult child face unique financial, emotional and social challenges. When they are divorced or separated, the immediate burden usually falls on the parent with whom the child resides. A portion of that financial burden, however, is alleviated by the government through receipt of benefits like the Ontario Disability Support Plan (“ODSP”). When a child support obligation exists for a disabled adult child, the question arises as to whether receipt of ODSP income by that child renders the presumptive Table approach to child support inappropriate, giving way to a reduction in child support.
This was the question the Ontario Court of Appeal sought to answer in the case of Senos v. Karcz, [2014] O.J. No. 2808.
In that case, the appellant father brought a motion to change the amount of child support he had been paying for his disabled adult son. He argued that his child support obligations ought to be reduced by the amount of his son’s ODSP income. The parties were parents to a 24 year old son, who was diagnosed with schizophrenia and bipolar disorder at the age of 17. The son lived with the mother, her second husband and their 10 year old daughter. As the son had a disability, the parties agreed that, for support purposes, he remained a “child of the marriage” as defined by the Divorce Act.
The framework for determining child support for an adult child is found in section 3(2) of the Child Support Guidelines, which provides that:
(1) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority or;
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
Thus, an adult child is presumptively entitled to Table child support, unless the court considers such an amount “inappropriate”. If it is found to be inappropriate, the court needs to determine an appropriate amount, taking into account the condition, means, needs and other circumstances of the child and the financial ability of each of the parents.
In the case at hand, the father’s position was that the son’s ODSP income in the amount of $814 per month made the Table approach inappropriate. The mother’s position was that the father should continue paying full Table support, because, according to her, the ODSP payments belonged to the child, whereas the child support belonged to her.
In the end, the Court of Appeal agreed with the father and found that the Table approach was inappropriate. The Court held that the son’s receipt of almost $10,000 per year in the form of ODSP income support was, in itself, sufficient to displace the “one-size-fits-most” approach in s.3(2)(a) of the Guidelines in favour of the “tailor made” approach in s.3(2)(b). The Court of Appeal stated:
ODSP reflects society’s commitment to sharing financial responsibility for adults with disabilities. It makes little sense to calculate child support on the basis that this responsibility falls only on the parents. In my view, the assumption of some responsibility by the state and [the son’s] receipt of income support for his board and lodging make the Table approach inappropriate. These circumstances change the equation and call for a bespoke calculation based on [the son’s] unique condition, means, needs and other circumstances, including his receipt of ODSP, and the ability of his parents to contribute to his support.
As for the new amount of child support under s.3(2)(b) of the Guidelines, the Court of Appeal directed the matter back to trial stating that there wasn’t enough evidence to determine the issue. It did note, however, that “the support, care and treatment of a 24 year old with a serious psychiatric disability may require a greater financial contribution from his parents than the support of a young child or a teenager without a disability.” Thus, it is possible that the support calculation under s.3(2)(b) will not be less than the Table amount, even after taking into account the receipt of ODSP. |
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