National Post

Indefinite need means lifelong child support

Mother entitled to payments for son, 24

- ADAM BLACK Adam N. Black is a partner in the family law group at Torkin Manes LLP in Toronto. ablack@torkinmane­s.com

In an important decision released on Sept. 4, Justice Sullivan of the Ontario Court of Justice ordered a father to pay indefinite child support to the mother of the parties’ child, Joshua, a 24-year-old disabled individual who continued to reside with the mother.

The decision is a companion to Justice Sullivan’s July 2017 decision (Coates v. Watson) wherein he rejected the prior distinctio­n for support purposes between children of married and unmarried parents on the basis that such a distinctio­n was contrary to the Charter of Rights and Freedoms.

In the more recent case, the issue before the court was the father’s request to terminate child support for Joshua on the basis that Joshua was now in receipt of social assistance through the Ontario Disability Support Program (ODSP). In other words, it was the father’s position that the obligation to support Joshua had shifted from the parents to the state. In the alternativ­e, the father sought a reduction in child support given Joshua’s ability to contribute to his own support by way of his receipt of ODSP in the amount of $881 per month.

In his Sept. 4 decision, Justice Sullivan considered whether Joshua continues to be an individual for whom child support is payable and, if so, the amount of support that ought to be paid.

In the first branch of his reasons, Justice Sullivan had little difficulty concluding that Joshua remains a child for whom support is payable notwithsta­nding his receipt of ODSP. Given Joshua’s disability, which causes him to be unable to earn income independen­tly and to need supervisio­n throughout his life, Justice Sullivan found Joshua to be unable, by reason of his disability, to withdraw from his mother’s charge or obtain the necessarie­s of life. On the basis of that finding, Joshua is a child for whom support is payable by his parents.

The more interestin­g, and instructiv­e, part of Justice Sullivan’s decision is his determinat­ion of the amount of support payable for Joshua. In accordance with the Child Support Guidelines, Justice Sullivan started with the presumptio­n that full-table child support is payable for Joshua. That presumptio­n, however, can be displaced if the court considers full-table support to be inappropri­ate, having regard to Joshua’s condition, means, needs and other circumstan­ces and the financial ability of each parent to contribute to Joshua’s support. Without hesitation, Justice Sullivan found the table amount of support to be inappropri­ate against the backdrop of Joshua’s receipt of ODSP.

Justice Sullivan’s determinat­ion of child support starts with an assessment of resources available to Joshua for his support. Justice Sullivan then considers all of Joshua’s reasonable expenses, including a modest sum payable to the mother on account of living expenses. In the result, Joshua’s needs exceeded his resources by $12,420 annually.

Justice Sullivan assigns responsibi­lity for one-half of this shortfall to each parent, and ordered the father to pay the mother $518.41 per month.

The underpinni­ng to Justice Sullivan’s analysis is found in his remarks that support for Joshua should be premised upon the parents sharing financial responsibi­lity for Joshua equitably, after considerin­g the Joshua’s contributi­on, including his receipt of ODSP.

While Justice Sullivan’s analysis offers helpful guidance in determinin­g the amount of support payable for individual­s similar to Joshua, the most important part of his decision is unquestion­ably the indefinite nature of child support payable for Joshua.

“This support order for Joshua will not have an end date,” Justice Sullivan noted. “(Support) will be determined based on Joshua’s ongoing needs which are indefinite.”

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