How Do Courts Determine Support For Adult Children With Disabilities?

Written on behalf of Arbesman Hamilton LLP

Child support payments can be one of the impacts felt the longest following a separation or divorce, especially if there are young children involved. Parents will have to communicate for years about their finances and may expect to work through changes in support as their circumstances change over time. Having a child with a disability can add further complexity to matters of child support because some children with disabilities may require support from their parents long after they turn 18-years-old. These were the facts behind a case heard recently by the Ontario Superior Court of Justice.

The circumstances of the child

The child was born with serious cognitive and physiological disabilities, including severe autism, cerebral palsy, developmental delay, and epilepsy. The court explained that the child requires the constant presence of a caregiver.

The parents were married in 1987 and separated in 2006. By the time of the hearing they were both 64-years-old, and the child was 25-years-old. For many years the child lived with the mother, who acted as his primary care giver. However, as the child grew, the mother was no longer able to properly care for him, resulting in the child moving in with the father. After two years looking after the child, the father applied to the court with a motion to receive an increase in child support from the mother.

Has there been a material change in circumstances?

The court first looked at whether there had been a material change in circumstances, something needed in order to vary child support. The court did not take long to conclude that there had been a material change, noting that when the original order was established, the child was living with the mother, and was now living with the father.

Is the son still a “child of the marriage”?

The next issue the court addressed was whether the son is still a “child of the marriage.” This is part of the test for determining whether adult children are entitled to child support.  The court is able to exercise considerable discretion when addressing this. The court established that the child was still a child of the marriage, writing he “is now 25 years old. He is permanently disabled and is completely dependent on his parents to take care of his physical, emotional, health and financial needs. I am satisfied that (the child) is unable to withdraw from parental charge due to his disability and is entitled to support.”

Establishing the quantum for ongoing child support

The court determined the Child Support Guidelines are not appropriate to use in this situation. Even the mother submitted that the amount called for in the Guidelines, which are based on income, were below what is actually needed. She submitted that $1,167.52 per month was appropriate, with the Guidelines only landing on $871.

The court agreed with the gather that there should be a sharing of responsibility between all parties involved as well as the state (through government funding). The court looked at how much the child receives in support from the government and turned to the parents’ income in order to address the shortfall. The mother’s income was $95,000 per year, while the father’s was $55,000. The court ordered the mother to pay 63% of the difference, with the father covering the remaining 37%.

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