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In most cases, the obligation to pay child support ends when a child becomes an adult, either by reaching the age of majority or by becoming independent and living without the assistance of their parents. However, there are situations when a child can remain a “child of the marriage” and therefore still eligible for child support. This can include situations where a child is attending post-secondary education, or if the child has a disability. But does every type of disability qualify an adult child for child support? This was a question recently addressed by the Ontario Superior Court of Justice.
The question of whether a child is a “child of the marriage”
The mother and father were married in 1994 and separated in 2009. They had two children while they were married. One was 15-years-old at the time of the trial and the other was 20-years-old. The mother applied to the court to determine three issues. One of the issues concerned the father’s income, while the other two were support-related, with one being whether or not the older child, “KRG”, continues to be a child of the marriage for the purpose of child support.
The mother contends that KRG is disabled due to mental illness. The mother argued that KRG suffers from mental health and addiction issues, and has not been able to work through those issues without her “unwavering support”. As a result, her lawyers told the court KRG could not properly take care of himself. Furthermore, the mother said KRG wants to return to school and she has been tutoring him to assist in that goal. Finally, the mother stated that KRG’s addiction issues prevent him from being able to manage his own finances, and he would not be able to live on $672 per month from the Ontario Disability Support Program (“ODSP”).
The father, meanwhile, said KRG has chosen a negative lifestyle which includes drug and alcohol abuse. He stated the mother enables KRG’s behaviour. The father told the court that the son currently receives ODSP income, but none of that goes towards his living expenses. Without having to be responsible for himself, the father feels as though KRG will not have the incentive to straighten out his life.
A lack of medical evidence
The mother did not share any evidence to indicate KRG suffers from a mental illness. While she did submit a document from a hospital after KRG was discharged from care, and the document contained an opinion on KRG’s diagnosis, it was unsworn and nobody was called to verify its contents. Other documents from the hospital contained information collected while KRG was admitted, but it all fell short of the threshold needed to hold up as medical evidence.
The court agreed with the father’s position that KRG has not accepted his father’s direction or assistance in dealing with his addiction. This, coupled with the mother’s failure to provide any evidence that KRG is unable to take care of himself or that he has a mental illness, was enough for the court to determine that KRG is not a child of the marriage.
For questions that only a family law lawyer can answer, contact a family law lawyer at Johnson Miller Family Lawyers at 519.973.1500 or contact us online. Johnson Miller Family Lawyers has been a fixture of the family law community of Windsor and Essex County for over 25 years, and so understandably, many prospective clients come to the firm through referrals from current or past clients, and also through referrals from lawyers, accountants, medical professionals and marriage counsellors.
