Most child support obligations terminate at some point. Typically child support is paid in some form for a child beyond the age of majority to the point that the adult child has completed some post secondary education and is able to launch as an independent adult. For those children who have physical or mental disabilities, however, it may be impossible to achieve financial independence from their parents. In such situations, family law provides that both parents potentially are obliged to provide for the child indefinitely even if that adult child becomes eligible for provincial disability benefits.
This is one area of family law in which at least in Ontario there is a disjunct between rights under federal and provincial legislation. For married parents who seek a divorce, or are divorced, the federal Divorce Act applies. The Divorce Act has generous provisions for the long term support of adult children. For unmarried parents, the provincial Family Law Act applies. The provincial act has much more restrictive terms for adult children.
The Divorce Act imposes an obligation on both parents to support a “child of the marriage.” A “child of the marriage” is specifically defined to include an adult child who is the age of majority or over and under the parents charge but unable by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. This definition potentially extends the child support obligation indefinitely for an adult child who lacks the physical or mental health to become financially independent.
By contrast, the Family Law Act only extends the obligation to support a child who is the age of majority or older if that child is enrolled in a full time program of education. A child with physical or mental disabilities may not be able to enrol in such a program and, if not, is disentitled from child support. There is some latitude if the child is in part-time attendance in a full time program because of a legitimate health restriction or learning disability. For example, a child would likely remain entitled to child support if completing a two year program over four years in such circumstances. The entitlement is, however, clearly much less than for the child of married spouses. There is no justification for such a difference in entitlement to arise from the irrelevant circumstances of the parents’ marital status.
An adult child who has a significant physical or mental incapacity may qualify for provincial disability benefits. The fact that a child is receiving such benefits is not sufficient to remove the parental child support obligation. However, the child’s income will be considered as part of the picture when assessing child support. For a child over the age of 18, the Child Support Guideline Tables which are based solely on the payor parent’s income are not automatically applied. If the Table amounts are inappropriate, a different amount of support may be calculated taking into account the child’s own income, and the parents’ respective incomes and financial circumstances. Provincial disability benefits are at a subsistence level. If the family has lived at a higher standard of living and the payor parent has the ability to pay child support then the adult child will receive support to supplement his or her expenses over and above the subsistence level met by the provincial benefits.
The Ontario Court of Appeal has recently confirmed that an adult may still receive the full provincial disability benefit even if also in receipt of child support. The child support payments are formally paid to the recipient parent, not the child, and as such are not treated as income of the adult child when determining if he or she qualifies for provincial benefits. This decision levels the playing field between adult children of intact marriages whose parents may supplement their expenses indirectly and those from divorced families in which the obligation is met more formally through a child support order or agreement.
As with intact families, separated parents of adult children who are unable to become financially independent need to plan for the very long term. The support obligation may remain after the parents’ retirement or after their death. It is possible to take advantage of the federal government’s new Registered Disability Savings Plan and to make provision by will for testamentary trust terms that will benefit the child without interfering with his or her provincial benefits. Families facing these issues need to address them at the time of separation if possible. The obligations may be the most significant financial burden for the parents and certainly one that merits thoughtful planning.