Evidence key in support variations for adult children

Child support for adult children can often be a complicated issue. The matter becomes even more complex when the child has disabilities and is receiving benefits from programs such as the Ontario Disability Support Program.

Ontario Court Justice John Kukurin, in what I view as a very thorough analysis, grappled with this issue in Turner v. Ansell. On appeal by the father, Superior Court Justice Edward Gareau recently affirmed the ruling. Lawyers should read both decisions together as they’re very illuminating on the issues at play and certainly provide a clear approach to these cases.

The case spanned five years of litigation and the relief sought by both parents on a variation motion was quite convoluted. However, the issues ultimately dealt with at trial were essentially whether the father ought to continue to be obligated to pay child support for his then-22-year-old daughter who suffered from various disabilities, including Asperger syndrome on the autism spectrum.

When the motion to change began, the child was under the age of majority. Once attaining the age of 18, she was able to receive ODSP benefits, a fact that led to a matter before the Ontario Court of Appeal last year (for background, see “Should support count as child’s income,” Law Times, May 9).

There are a number of notable points arising out of the litigation within this family. First, a prior court order provided for payment of table support at a level that was below the guideline table amount payable by the father (although that was a consent order).

Kukurin specifically noted the father ought to have paid the actual table level of support and not less as the courts shouldn’t condone or allow parents to bargain away the child’s statutory right. I see this happen frequently because recipients of child support often agree to somewhat lower amounts of table support in the belief that they have sufficient means to meet the child’s needs and wish to end negotiations.

For those payers, we need to be very explicit in our advice that even if such agreements become consent orders, the court can set them aside later. Those payers would be wise to keep the excess aside just in case as they could face retroactive orders for increases.

With respect to children over the age of majority, the legislative scheme will govern. Therefore, if an agreement or order provides a basis upon which a child over the age of majority is to have the right to table support determined and that method differs from the legislative language, the legislation will govern for the same reasons. For example, in Ansell the issue was whether the child had to be “enrolled” in a full-time program of study (that being the statutory language) versus being in full-time “attendance” in one (that being the language in the agreement and corresponding court order).

The guidelines were to a large extent an effort to decrease litigation around child support. The courts are clearly loath to step away from them and so when lawyers are advising clients, this should be at the forefront of the considerations when moving away from the strict language of the legislation even if for perfectly valid reasons. They should take a great deal of care to ensure they explicitly and legitimately explain any deviation.

Lastly, in cases of support payments for children over the age of majority, the evidentiary record is essential, as the payer father unfortunately learned. To succeed in reducing table support for a child over the age of majority, an applicant must put clear evidence of actual expenses, living and otherwise, before the court when seeking to pay an amount that’s less than what’s in the tables. If applicants can’t show through clear evidence what the child’s actual needs and means are, they’re not likely to succeed.

In this case, the child received ODSP payments once she turned 18. Notwithstanding that she still lived with her mother and therefore her living expenses presumably didn’t change (although there was no evidence on that), Kukurin refused to order any reduction in table support because actual evidence wasn’t available to him upon which to base any other amount. While it may be logical to assume that an addition of social benefits with living arrangements remaining constant would lead to at least some reduction in child support, payers are unlikely to be successful in such claims without actual and direct evidence of needs and expenses.

Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O’Brien Payne LLP in Ottawa. She can be reached at [email protected].

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