Support for disabled children.
The Divorce Act direct the court to award support for a child of a marriage which is ending. Section 2 defines a child of the marriage as
a child of two spouses or former spouses who is either under the age of 16 years or is over 16 years of age and under their charge, but unable by reason of illness, disability or other cause, to withdraw from their charge.
A key question concerns the child's entitlement to child support. There should be little question regarding the support of a disabled child under the age of 16. However, is a child of two spouses or former spouses considered to be a child of the marriage even if the child is over 16 and unable to support him/herself because of illness or disability? Both the Divorce Act and the case law indicate that a person over the age of 16 years may still be a child of the marriage if that child is unable to withdraw from their parents' care. Thus, child support has been extended to university aged children, who, while in their 20s, depend on their parents financially.
The situation regarding disabled children over the age of 16 years is more compelling. The case law clearly establishes that a disabled child over the age of 16 years is entitled to support under the Divorce Act. This means that a parent who is paying support may be obliged to support the disabled child of the marriage well into the child's adult years.
In the latter half of the twentieth century, the social safety net assumed significant responsibility for the care for the disabled through programs such as Assured Income for the Severely Handicapped. As a result, payor parents have successfully argued that social benefits offset their own obligation to support a disabled child. This was the situation in Mange v. Mange, (1990), a decision of the Manitoba Court of Queen's Bench. Here, a 21-year-old, found by the trial judge to be not capable of finding or holding a job, was held to be a child of the marriage. In awarding the child support payment of $300 per month, the trial judge took into account that the child was receiving $300 per month from social assistance. However, the approach of the trial judge in Mange v. Mange might be tempered by the current climate of restrictions on government spending as parents are forced to assume more responsibility for the health care and education of their children.
It is not always necessary that the child live with the parent to qualify as a child entitled to support under the Divorce Act. Some circumstances dictate a separate residence from the custodial parent, such as a special treatment facility for the disabled, or a university residence. The decision of the British Columbia Supreme Court in Buckley v. Holden (1991) is noteworthy. The issue concerned a mentally handicapped and special needs 19-year-old who had lived in foster care and treatment programs since he was 17. He was funded by social assistance as well as the $400 per month support payment from his father. His father argued that the 19-year-old was no longer a child of the marriage since he was over the age of 16 years and did not reside with his mother.
The Court found that, although over the age of 19 years, the disabled person was still a child of the marriage under the Divorce Act and, thus, deserving of support. The Court, then, continued to address the particular aspects of this case as follows:
Counsel argues further that, if the Petitioner chooses to "shower" things on the child, for example, by bringing him home on weekends, and thus enhance the standards of the child, that is up to her; that it does not create any obligation on the part of the Respondent to contribute to this "upgrading". I do not agree. In my opinion, being at home and having the guidance and loving care of his mother are a most important part of Geordan's education. The extra cost of these activities are moneys well spent and clearly fall within the ambit of the parties' financial obligation to Geordan. Further, I do not agree with the suggestion that the amount of Geordan's maintenance and support, and the joint obligation of the parties with respect thereto, should be based on poverty level necessities. It is the cost of Geordan's particular needs, to which he has a right, with which I am only concerned. I am told that, while neither party is wealthy, each can contribute a reasonable sum to Geordan's needs and obviously, this has been done in the past.
Whether a disabled person over the age of 16, residing in a group home, was entitled to child support was one of the issues before the Honourable Justice S. LoVecchio in Baker v. Baker. Here the payor parent applied to change the amount of child support, partly on the basis that the disabled person was over the age of 16 and resided in a group home for all but 6 days of the month. The Court dismissed the application to vary the amount of child support without written reasons.
In addition to the Divorce Act, other legislation addresses support for disabled adult children. Section 2 of the Maintenance Order Act states,
the husband, wife, father, mother and children of
(a) an old, blind, lame, mentally deficient or impotent person, or
(b) any other destitute person who is not able to work,
shall provide maintenance, including adequate food, clothing, medical aid and lodging, for that person.
In the recent decision of Wani v. Wani (1994), Justice R.A. Dixon ordered that the father of a 28-year-old woman pay her support in the amount of $1500 per month for a 10 month period. Justice Dixon found that the woman was a destitute person, unable to work within the meaning of the Maintenance Order Act.
Justice Dixon's review of the legislative precursors to the Maintenance Order Act was very interesting. He noted that the origins of the Maintenance Order Act lie in the English Poor Relief Act, 1601. Justice Dixon referred to the comments of Judge Fitch in F., Re (1976) 27 R.F.L. 372 (Alta Juv. Court) as follows:
In 1601 the intention was for the state to help only those who could not help themselves but 369 years later in Alberta the intention is for the state to help everybody who needs help. Everybody who needs help includes not only those who cannot help themselves but also the lazy and the shiftless. But while the state's duty has broadened greatly as shown by the difference in the statutes, the duty of the parents and other relatives has changed little, as shown by those same statues. I conclude, therefore, that the parent's duty to support the destitute child 16 years of age or over, while not confined to the child with physical limitations, is confined to the child who is destitute "for good cause."
Having established that disabled children are entitled to support from their parents, the next step is to establish the amount of child support. The Alberta Court of Appeal in Levesque v. Levesque (1994) established the formula for calculating child support awards as follows:
(a) calculate the combined gross income of both parents;
(b) calculate a reasonable cost for the child;
(c) apportion that cost between the parents;
(d) re-calculate the adjusted share assigned to reflect the tax consequences;
(e) further adjust the assigned share for any special circumstance of a parent.
While the Court of Appeal was clear that the formula was a guideline only and that other factors might enter into consideration, there is no indication that the Levesque formula does not apply to awards of support for special needs children. In fact, the reasonable cost of raising a child will likely be higher where the child is disabled and has more expensive special needs.
In conclusion, it is clear that children are entitled to support from parents. In Alberta, this extends to adult children who are disabled. The existence of social assistance may have an impact on the amount of support; however, it does not eliminate the obligation to the disabled child. Similarly, whether the disabled child resides with the parent or in a group home or treatment facility does not necessarily affect the obligation to support the child.
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|Author:||Catherine Christopher; Michelle Christopher|
|Date:||Feb 1, 1996|
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