Families who have children with special needs may find themselves in situations not commonly experienced by other families, including long-term care costs even once the child becomes an adult. In a recent decision from the Ontario Superior Court of Justice, we look at a situation where an adult child is no longer in the care of her parents, and is not receiving child support, but has expenses that might otherwise require child support payments from her father. The decision offers a good look at when courts might deviate from a “one size fits all” approach to child support guidelines.

Adult child lives in therapeutic home

The parents involved were married in 1991.  They had one child while married. The child was born on December 5, 1993. She struggles with autism, significant developmental delay, Oppositional Defiance Disorder, and Attention Deficit Hyperactivity Disorder.

The parents separated in 2005 and were divorced in 2016. A separation agreement from June 2006 was signed by both parents and stated that the mother was to have full custody of the child, but if one parent was to predecease the child, the other parent would become her guardian of property and would have custody of her.

At the time child support was fixed in the amount of $200 per month. This was reflective of the father’s helping the child before and after school as well as taking care of her on days where there was no school.

The agreement stated that child support obligations would terminate when the child was no longer a “child” as defined by the child support guidelines in the Divorce Act.

Child moves to therapeutic home

In September 2007 the child moved to a therapeutic home in Northern Ontario where she has been cared for. The mother makes weekend trips to see her daughter. The child turned 18 in 2011 and at this time he stopped paying child support.

However, the mother applied for support in accordance with Federal Child Support Guidelines to go towards the child’s section 7 expenses.

The court looked at Section 3(2) of the Federal Child Support Guidelines, which state

 “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.”

Does the child need financial support?

The court noted that the child currently receives $896 per month under the Ontario Disability Support Program (“ODSP”). Of this amount, $500 goes towards room and board, and $100 is saved for an annual trip to Cuba. The balance of her income goes towards extracurricular activities, personal hygiene products, clothing, medication, and gifts for family members.

While the child has a small monthly income, she meets most of her needs. That said, the mother told the court that she pays $231 per month on average to help with additional expenses related to clothing & footwear, personal hygiene, and payments towards a mattress.

The court noted that those expenses could be categorized as Section 7 expenses, and even though the father no longer pays child support, he should be required to pay his portion of the Section 7 expenses.

Separation, divorce, and other family disputes are generally stressful and emotional. If you are contemplating a separation or divorce, your best short term plan is to contact an experienced family lawyer immediately to understand your options, and to formulate a strategy for moving forward. Contact the knowledgeable, effective, and compassionate family lawyer at NULaw online or at 416-481-5604 to book a consultation.

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