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.”
Joshua’s indefinite need for support from his parents and the consequent indefinite nature of child support will have a significant impact on the future determination of child support and beyond. In particular, this decision potentially calls into question the adequacy of support an individual receives through ODSP. Further, it will likely spark a dialogue as to when, if ever, the state ought to assume full financial responsibility for an individual who is unable to support himself or herself.
Adam N. Black is a partner in the family law group at Torkin Manes LLP in Toronto.