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The recent Ontario family law case Senos v Karcz, 2014 ONCA 459 answered this question. Well, almost! The Court of Appeal held that receipt of Ontario Disability Support Program payments (ODSP) can, and in this case did, make the presumptive table amount under the Child Support Guidelines inappropriate. However, it did not go further and make a determination regarding what amount would be appropriate.

The father in this case brought an application to vary the amount of child support he had been paying to his former wife for their adult son, who was considered as a result of health issues to have a disability. The parents agreed that the son remained a ‘child of the marriage’ because of his disability, and that the mother was eligible to receive child support from the father. The father argued that his child support payments (the presumptive table amount as set out in the Child Support Guidelines), should be reduced by the amount the mother was receiving in trust for the son, in ODSP payments. The lower courts disagreed with the father, and the matter was appealed to the Ontario Court of Appeal.

The Court allowed the appeal. The Court held that there must be “clear and compelling evidence” for departing from the presumptive Guidelines amount and that the following factors should be considered when determining child support when ODSP support is being received:

1) How are the disability support payments being used?

2) How much money from the disability support payments is given to the child to spend at his or her own discretion?

3) How much of the disability and child support payments are used for the child’s room and board?

4) What are the child’s expenses, aside from room and board, and how are they being met? Are the expenses due to the child’s disability?

5) Is the child employable?

The Court of Appeal remitted the matter for a new trial with consideration of the above factors, to determine how the table amount should be adjusted based on further information about the child’s needs and how the support payments were being used.

We can take from this case that receipt of disability support payments may very well warrant a variation in child support from the table amount set out in the Guidelines. The extent of this variation will depend on the individual circumstances of the adult child, how support payments are being used, and the child’s ability to contribute financially to his or her own support. While this case did not offer a set formula for how child support quantum will be affected, it did provide guidance in the form of a comprehensive set of factors to consider. Given the individual nature of these cases, this may be the most guidance we can expect from the courts on this issue.

For the full text of the decision see:

https://www.canlii.org/en/on/onca/doc/2014/2014onca459/2014onca459.html

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