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

THE OLDER, ADULT CHILD

Under the 2011 Divorce Act, the statute allows that a child may remain a child of the marriage, in spite of attaining the age of majority, if the individual is "unable to withdraw from his or her parents’ charge or to obtain the necessaries of life by reason of illness (or) disability...."

At first glance, therefore, the statute does not preclude the payment of child support for a child, though adult, until death doth we part, if the disability is such that he or she is "unable to withdraw from his or her parents’ charge or to obtain the necessaries of life".

Lougheed v Lougheed

In Lougheed v. Lougheed, the father applied to discontinue child support payments to a 28-year-old daughter who received provincial income assistance for a mental disability and resided semi-independently in an assisted living facility. The mother provided the daughter with supplemental payments, as the government assistance did not cover all of the reasonably necessary costs for her.

Justice Saunders, writing the reasons for the British Columbia Court of Appeal, agreed with the trial judge in holding that not all the necessaries needed to sustain her were paid by the state, thus making the child unable to withdraw from her parents' charge. Accordingly, the father's application to discontinue the child support obligations was dismissed.

Briard & Blonski

This issue resurfaced in British Columbia in Briard v Briard, where a 22-year old child of the marriage, born with Down's syndrome, still lived with her mother.  the father argued that because she was now in receipt of $900/month in social assistance, his daughter was no longer  a child of the marriage. The trial judge hung up on the definition of child of the marriage in the federal Divorce Act, and especially the words:

"...  and unable to withdraw from their charge due to certain conditions or to obtain the necessaries of life...."

Perhaps the most important fact and regrettably not properly emphasized by the trial judge in reasons for decision, was the simple fact that the expenses related to the child were not satisfied by the amount of social assistance. The judge relied on the Lougheed decision but did not apply the guideline amount. Instead, it was  reduced to a flat $500 a month.

The decision was appealed but the Court of Appeal of British Columbia was "not persuaded that there is any basis for interfering with the order made by the trial judge".

There was a breath of clear, understandable judicial wisdom in another 2010 case, Blonski v Blonski where, on behalf of the Superior Court of Justice of Ontario, Justice Pazaratz wrote:

"(T)he amount of basic child support payable must take into account amounts received by the child through government assistance.  Those cases were fact-specific in determining whether the adult child’s government assistance eliminated or merely reduced child support otherwise payable."

Zero Child Support Cases

Baker v. Baker (1988) and Hanson v. Hanson (2003) are examples of cases in which child support for a disabled adult child was terminated because the child no longer required parental support.

  • In Baker (British Columbia), the adult child had minimally impaired abilities.
  • In Hanson (Saskatchewan), the adult child living independently and was a highly functioning individual.

These cases should be compared with the facts in the 1991 case, Buckley v Holden where Justice Hood noted:

"Counsel for the respondent argues, in effect, that all of Gordan's necessaries of life are being paid by the Ministry; that accordingly, he no longer falls within the definition referred to. I do not agree. Gordan is mentally handicapped and is in the process of being educated, with the hope that he may be able to function in society independently and to work at some vocation. At the present time, he is neither able to withdraw himself from the parties' charge nor to provide himself with necessaries of life. He may never be able to achieve independence in either respect."

Curry v Curry deals with an adult child (Kellen) who, upon reaching the age of majority, applied for and received disability benefits from the Province of British Columbia on the basis of his cerebral palsy. But the government stipulated that any sums received on account of child support would be deducted from the disability pension. The trial judge (McEwan, BCSC) noted that the young adult suffered from:

"... complex ... medical conditions that required a great deal of attention.

"Given the fact that the government has chosen to treat Kellen as an adult for purposes of establishing a disability pension for him, I think the time has come to an end when child support should be payable for him.

"Kellen is being treated like an adult and has his own adult income."

This is consistent with the finding in J.D.C. v. R.B.T., where the receipt of disability benefits ended the applicability of the Child Support Guidelines:

"Until June 2009, when S began receiving the disability pension, child support should be determined by applying the Guidelines as if S were under the age of majority.

"Disability benefits are properly taken into account in setting child support. Such benefits are akin to income for the adult child."

Justice Barrow held the payor to child support, but only on a proportionate basis and as to the shortfall between an adult disabled child’s expenses and the disability benefit she received.

Unintended, But Now What?

Somewhere, on the meandering trail of the law as it tackles disability benefits and child support, there is a pulse of reason.

But no path of any certain destination.

At the altar of child support, the Courts seem quite willing to overlook the obvious financial unfairness of having a parent pay for an adult child even when that adult child is in receipt of disability benefits, in a quantum assessed sufficient by the government for his or her needs.

That the deficit-conscious disability paying agencies of Canada, are looking for income anywhere they can find it. They are closely tuned to these developments and we can expect that with the support of the Courts, they will jump all over payor-parents of disabled adult children to extract child support until the the child or the payor's death. Watch for rules such as reduction of disability benefits by the amount of any child support received, coupled by an obligation on any guardian-parent to chase down every penny of child support from the other parent, as a condition of disability benefits.

Money talks.

And money can often motivate legal decisions just as potently as judges or Parliament can.

This concludes Child Support and Disability Benefits: Paid by Peter and Tom? Click here to return to the first part. Note that all references are at the bottom of this part.

REFERENCES:

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