This is the first part of Child Support and Disability Benefits: Paid by Peter and Tom? Click here to go on to Part 2. Note that all references are at the bottom of Part 2.

Child support is complicated enough what with disparate formulas across jurisdictions, the challenging issue of university-aged children, and payors who hide their true income.

This fuzzy grey of legal uncertainty turns a much darker opacity when, into the mix, one throws disability benefits.

This article focuses on the flow of benefits to a healthy child because of the disability of a payor. Part 2 deals with the related but different issue of the disabled adult child receiving disability benefits and the consequences on child support.

THE CHILD

In 1974, Robertson v. Robertson, the Manitoba Court of Appeal found that the father, in that case the payor, whose children were in receipt of Canada Pension Plan ("CPP") benefits as a result of his disability, was entitled to deduct the amount of the CPP payments made to the children since the benefits were being received by the children for no other reason then that they were children of a disabled contributor.

child support double flow?In Huey v. Huey (1991), Madam Justice Simmons found that when a child is in receipt of Canada Pension Plan benefits because of a disability of the payor, that amount should not be deducted from child support; that such payments belong to the children and do not constitute a direct financial contribution by the father to their support, even though such payments are made as a result of his disability.

In 1995, the Ontario case of Williams v. Williams was published. Note that it pre-dated the 1997 Federal Child Support Guidelines.

The payor (father) who was obligated to a support payment under a court order for child support, became disabled. He as well as his dependant children became entitled to retroactive Canada Pension Plan benefits because of his disability. The payor brought an application to vary the order of child support.

The Court adopted the reasoning in Huey noting particularly that the payment of the CPP benefit was at no additional cost to the Payor adding:

"The child's benefit does not displace the father's obligation to provide support according to his means and condition, and the needs of the children.

"While the benefit payment is triggered by the disability, the benefit belongs to the child and is payable directly to the child and where the child is a minor, to the person having custody."

Williams v Williams was overturned on appeal but not on this point, the Court of Appeal reiterating:

"The child’s (CPP) benefit does not pass through the hands of the disabled contributor nor does he have any control over it. It is not taxable in the father’s hands, nor is it exigible from him for the purpose of paying child support arrears. The child’s benefit is not a windfall for either parent, but constitutes a benefit that belongs to the child. The child’s benefit is payable directly to the child, or, in the case of a minor, to the person having custody and control of the child."

In 1996, Madam Justice Marsham, in Thompson v. Westlake, accepted the rule proposed in Williams: disability payments may not be applied directly against arrears, but are to be taken into account when assessing the needs of the children. But in Justice Marshman's acceptance of the propositions of law as set out in Williams, she nonetheless granted a credit to the payor of his obligations towards the extraordinary expenses for the child. At ¶18:

"Disability payments may not be applied directly against arrears, but are to be taken into account when assessing the needs of the children."

In Corkum v. Corkum, Justice Moir of the Nova Scotia Supreme Court considered whether C.P.P. child benefits affected the calculation of support under the Guidelines, and like Justice Marsham before him, opined that to allow such benefits to be credited to the pensioner against support payable to the child is to give the pensioner a credit for a benefit belonging to the child. Justice Moir then distinguished the case where disability payments are directed to a child because of the disability of the payor. In those cases, the reasoning in Corkum goes, the payments are only relevant to special or extraordinary expenses. For any other purpose, according to Justice Moir, the child's CPP benefits are irrelevant under the Child Support Guidelines.

In Blain-Hughes v. Blain (1998), two of the children came into receipt of monthly Canada Pension Plan benefits because of the death of their step-father. The natural father, the Payor, applied to reduce his child support ;liability by the amount of the CPP benefits.

"The payor, claims the deduction for as long as he is required to pay child support and for as long as the children continue to receive the benefit. From our examination the basis upon which the benefit is paid, is of some importance in that these payments are not dependent upon any contribution by the payor. Of added significance is that the parent who is in receipt of the benefit is obliged to pay the income tax as custodial trustee for the children....

"I do not find that receipt of the C.P.P. benefits to the dependant child creates an inequity to this respondent. Child support by the Guideline Tables is based on the means of the payor, not the benefits possessed by the child. It also does not relate to outside payments to the dependant child, which are given to the custodial parent from outside sources for child care, save where those payments satisfy the special provisions of s.37 (2.3) (a) and (b) (of the Family Law Act of Ontario) and would result in an amount of child support which is inequitable."

The child's need, in this post-Guidelines era, is largely irrelevant.

In 2007, the Ontario Court of Appeal, in Sipos, agreed with Huey, Williams and Corkum, the opinion of the Court written by Madam Justice Susan Lang:

"If Parliament had intended to provide an offset of the child benefit against support, it would have provided for that result either in the Federal Child Support Guidelines or in the Canada Pension Plan (Act). It did not do so. Second, the benefit is not income of the appellant in the sense that he redirects it to his son simply as a matter of convenience. Instead, the Act treats the benefit as that of the child, not that of the contributor."

... continued ...

 

This is the first part of Child Support and Disability Benefits: Paid by Peter and Tom? Click here to go on to Part 2. Note that all references are at the bottom of Part 2.