Can an Ontario Court Grant Me Custody of My Child?

Introduction
In Ontario, the laws regarding child support require a parent to pay support until their children turn eighteen, or, until their children withdraw from parental control. But what happens if children cannot attain independence on account of a medical or other disability? Are parents bound to pay support forever?


Background Facts
In Collins v Collins, 2015 ONSC 5160 [Collins], the Parties were married in 1981 and separated in 1994. They had three children. Pursuant to a Court Order, Ms. Collins maintained custody over the two younger children, at the time ages nine and seven, and Mr. Collins maintained custody over the oldest child, at the time age fifteen. Accordingly, Mr. Collins paid child support to Ms. Collins in the amount of $600.00 per month, a set-off amount since one child resided with Mr. Collins, in addition to spousal support in the amount of $800.00 per month.


The Parties’ youngest child, Catherine Collins (“Catherine”), had Down syndrome, and, as a result, was entirely dependent upon Ms. Collins. Due to her condition, Catherine was in receipt of the Ontario Disability Support Plan in the amount of $841.00 per month, as well as eligible for annual reimbursements of $5,280.00 under the Passport Program.


In 2015, Mr. Collins brought a motion against Ms. Collins to review and reduce his child support obligations, as well as to review and eliminate his spousal support obligations. Although this decision raises interesting insights with regards to the laws of child support and spousal support in general, its central issue focused on the extent of Mr. Collin’s ongoing child support obligations to Catherine, age twenty-four at the time of the motion, on account of her disability. More specifically, and, arguably, more controversially, the Court was asked to determine whether Mr. Collins was entitled to deduct the various government subsidize and other financial assistances that Catherine received from his monthly child support payments.


The Law of Child Support in Ontario
In general, child support is payable until a child attains the age of majority, or, until the child withdraws from parental control. For formally married parents, the law of child support is governed by the Federal Child Support Guidelines (the “Guidelines”). Pursuant to Section 3(1) of the Guidelines, child support is presumptively based upon the income of the parent with whom the children do not reside with in conjunction with prescribed legislated amounts. Pursuant to Section 3(2)(b) of the Guidelines, however, a court may apply a different approach to determine child support if the child is over the age of majority, and, if the court considers it appropriate to do so with regards to the conditions, means, needs and other circumstances of the child in connection with the financial capabilities of each parent.


In Collins, it was undisputed that Catherine remained a child of the marriage, and, therefore, that she remained entitled to child support, since she was unable to withdraw from parental control due to her condition. It was further undisputed the Mr. Collins had the capabilities to pay ongoing child support, who, even though he was retired, he still earned an income of over $6,000.00 per month and owned several income-generating assets.


The Court’s Decision
In its decision, the Court applied Section 3(2)(b) of the Guidelines to permit Mr. Collins to reduce his child support payments as the state had assumed some responsibility for Catharine’s financial needs through the various assistance programs and other subsidies. It further held that the proper approach for child support for Catherine was to determine her reasonable financial needs, and thereafter determine whether there was a shortfall from the resources earmarked for her wellbeing. In the event of a shortfall, it was appropriate to apportion that shortfall based upon the parents’ incomes.


After reviewing the proposed budget for Catherine by Ms. Collins, the Court found that Catherine’s realistic expenses were in the range of $1,200.00 to $1,300.00 per month. The Court subsequently subtracted the monthly amounts Catherine received from the various programs for a shortfall in the range of $350.00 to $450.00 per month. The Court then ordered Mr. Collins to pay $350.00 per month for ongoing child support for Catherine.


Implications
Overall, this decision raises important implications for child support for parents of disabled children. It stands for the proposition that while adult disabled children remain eligible for child support, any government funding or other assistance can be used to reduce monthly support payments depending on the specifics facts of the case at issue.


Jared Teitel

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