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Parents can have an obligation to support a child over the age of majority in some circumstances, such as if the adult child has a disability. The framework for determining child support is set out in the Child Support Guidelines. However, the table amount of support in the Guidelines may not be appropriate for an adult child with disabilities. If the child receives provincial disability benefits such as Ontario Disability Support Program (ODSP), this can affect the amount of support a parent has to pay, but it does not eliminate the parent’s obligation to support their child. Courts have emphasized that society maintains a financial commitment to adults with disabilities through programs such as ODSP, but parents maintain responsibility alongside the state.
Courts Look at the Purpose of ODSP
In Fatima v. Akhtar Agha, the parties had been married for 28 years and had five children. One daughter was 27 years old and had a genetic condition for which she required lifelong support and daily supervision. She was dependent on care provided by her mother and was unable to live independently. She also received financial support through ODSP. Although she was over the age of majority, she still met the definition of a “child of the marriage” under the Divorce Act, based on the fact that she could not withdraw from her parents’ care because of her illness and disability. The judge determined that although she received ODSP, the father was obligated to make child support payments and “still had the financial ability to supplement the support provided by the state”.
Section 1 of the Ontario Disability Support Program Act sets out the purpose of the Act, which includes recognizing that “government, communities, families and individuals share responsibility for providing such supports” to meet the needs of persons with disabilities. In Senos v. Karcz, the Ontario Court of Appeal considered the program, noting that it “provides income support, health benefits and employment supports to people with disabilities in financial need”. In that case, the court examined the interaction between ODSP and child support, and the court concluded that the fact that an individual is receiving ODSP benefits does not, by itself, disentitle them from receiving child support.
Relying on the Table Amount of Support Can be Inappropriate
Determining child support for an adult child is not simply a matter of locating the table amount of support under the Child Support Guidelines. Section 3(2) of the Guidelines clearly states that courts have discretion in setting the amount of child support for a child who is over the age of majority. Section 3(2)(a) provides that courts may award an amount by applying the Guidelines as if the child were under the age of majority. But section 3(2)(b) provides that if the court finds that approach inappropriate, it may determine an amount that it considers to be 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”.
In Fatima, the judge cited Francis v. Baker and noted that the party who is seeking to set aside the presumptive table amount of support recommended by the Guidelines carries the burden of rebutting the presumption that the table amount is inappropriate. If the presumption in 3(2)(a) is rebutted, child support can be set at a higher or lower amount. The wife suggested that child support be determined according to 3(2)(a) using the table amount and that the husband pay the amount corresponding to his income. In turn, the husband argued that the child’s ODSP needed to be considered, indicating that his support contributions should be reduced or terminated, since the child was receiving ODSP benefits.
In Morden v. Kelly, the court determined that an adult child who was receiving ODSP benefits displaced the “one-size-fits-most” approach in section 3(2)(a) in favour of the tailor-made assessment set out in section 3(2)(b). Justice Braid acknowledged, there is potential for overlap between child support payments, which are intended to assist the residential parent to cover the child’s needs relating to shelter, food and clothing, and ODSP benefits, which are paid directly to the recipient child and would cover similar needs. Looking back at the Ontario Disability Support Program Act, it sets out the purpose of ODSP as reflecting society’s commitment to share responsibility for providing financial support to adults with disabilities. Consequently, in Senos, the court concluded that “it makes little sense to calculate child support on the basis that this responsibility falls only on the parents”. Overall, the approach in 3(2)(b) was needed to “achieve an equitable balancing of responsibility” between the adult child, the adult child’s parents, and society.
Court Acknowledges Possibility of Overlap between ODSP and Support Payments
In Fatima, the evidence was that the child was currently receiving $1,308 a month in ODSP payments. This consisted of $752 for basic needs and $556 towards shelter. In Senos, the court stated that child support paid by a parent of an adult disabled child is “not automatically considered income to the child so as to reduce the amount of his or her ODSP benefits”. It first had to be determined whether the parent gives the support payments directly to the child or uses the payments for the benefit of the child. Generally, where the payments are not given directly to the child or used for his or her benefit, the payments are considered the recipient parent’s income, not the child’s, and it does not impact the child’s ODSP entitlement. Conversely, if the payments were given directly to the child, the payments are treated as income unless an exemption applies.
Justice Kraft believed there may be some overlap between the amounts the husband was obligated to pay for child support and the income support that the child received from ODSP. For the judge, it was reasonable to conclude that a portion of the child support payments was intended to cover the child’s needs, such as shelter, food, and other expenses. Although the husband had an obligation to provide support, the ODSP may also address some of the same needs. However, the judge found that the difficulty in this case was little evidence about the child’s “condition, means, needs and other circumstances”. No evidence showed how the mother used the ODSP payments that she handled as the child’s trustee, so nothing showed how much was paid to the child for her own benefit or how much was used to reimburse the mother. There was no evidence of the expenses the mother incurred that were attributable to the child. Likewise, there was nothing to indicate the extent of the child’s expenses or how she used any part of the ODSP payments.
Looking back at the framework for deciding the quantum of child support for an adult child, the husband did not advance any evidence rebutting the presumption that the table amount of support set out in the Guidelines was inappropriate. Justice Kraft concluded that from the date of separation until 2021, the table amount of support was appropriate, as there was no evidence that the child was receiving ODSP. However, from 2022 going forward, the judge found the table amount was inappropriate since the child was in receipt of ODSP, and under section 3(2)(b) ordered that support payments should be reduced by $316 a month.
Court Balances Financial Responsibility
It would be inappropriate to calculate support based on the assumption that financial responsibility is solely the parents’. Consequently, the table of support in the Guidelines can be displaced, with courts setting an amount of support that they consider appropriate, having regard to the child’s conditions, means, needs, and other circumstances.
Johnson Miller Family Lawyers: Knowledgeable Windsor Child Support Lawyers
Navigating child support for an adult child with disabilities can be complex, especially when ODSP is involved. Our team at Johnson Miller Family Lawyers understands the nuances of these cases and can help you achieve a fair resolution. Contact us today for a consultation to discuss your specific circumstances and gain clarity on your options. You can reach us by completing our online questionnaire or calling 519.973.1500.
