CHILD SUPPORT: Prescribed Table Amounts Are Not Always Appropriate -

CHILD SUPPORT: Prescribed Table Amounts Are Not Always Appropriate

In the case of Senos v. Karcz (“Senos”), which was released by the Ontario Court of Appeal last June, the use of the Federal Child Support Guidelines came under close scrutiny and the result was that the simple Table Amount of child support was not used, given the facts that were before the Court on appeal.  Senos is a reminder that for every “rule”, there usually are, in law, “exceptions” that exist, and one should not be too quick to characterize a child support obligation as a basic duty to comply with a presumptive rule.

The parents in this case were married in 1984, separated in 1991, and were divorced in 1993.  At the time of the divorce, the father was obligated to pay child support of $900 per month to the mother, who retained custody of their four-year-old son.

When their son was 18, he was diagnosed with both schizophrenia and bipolar disorder.  At age 20, the son began receiving income support payments under the Ontario Disability Support Plan Act, 1997 which amounted to almost $10,000 a year.  The O.D.S.P. benefits were paid to the mother as trustee for the adult child and she was required to report annually on how the money was spent.

The father brought a motion before the Superior Court of Justice to change his child support payments to take into account the O.D.S.P. benefits received by the son through his mother as trustee.  The father’s motion was dismissed and he appealed to the Ontario Divisional Court who also dismissed the father’s argument.  The father carried on and appealed to the Ontario Court of Appeal.

The mother argued that the O.D.S.P. payments belonged to her son, whereas the father’s child support belonged to her.  The father argued that his child support should be reduced dollar-for-dollar by the son’s O.D.S.P. monthly benefits.

In allowing the father’s appeal, the Court of Appeal acknowledged that the “one size fits most” approach to child support, as captured under section 3(2)(a) of the Child Support Guidelines, should be displaced by the $10,000 in annual O. D. S. P. benefits received and, therefore, the more fitting basis for child support was the “tailor made” approach as contained in section 3(2)(b) of the Guidelines.  It simply did not make sense to calculate child support on the basis that the responsibility fell only on the parents when the O.D.S.P. legislation was operating to help alleviate the child’s economic burden and reflected society’s commitment to help assist those with clear disabilities.  The problem with the lower Court’s ruling was characterizing that the O.D.S.P. money was for the adult child to use as he wished.  To treat the O.D.S.P. benefits as discretionary spending money did not reflect the purpose of O.D.S.P. as income support.

The Court looked at how, under O.D.S.P. directives, child support paid by a parent of an adult disabled child is not automatically considered income to the child, so as to reduce the amount of the child’s O.D.S.P. benefits.  It ultimately depended on whether the payments of child support went directly to the child or if the payments were used generally for the benefit of the child.

The Court remitted the matter back to the trial judge in order to get updated financial information from both parents, a child support budget, and a personal budget for the child.  The budgets were to include a description of the mother’s use of the O.D.S.P. payments on the child’s behalf, her use of the support payments she received from the father, and her proposed use of any additional payments she might be seeking.  This information was sought to assist in assessing the child’s “condition, means, needs, and other circumstances” as required by the Guidelines under section 3(2)(b) to determine the most appropriate amount of child support, as opposed to simply reverting to the Table Amount and the payor’s annual income.

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James M. Peluch. James is a lawyer at SorbaraLaw, practising predominantly family law in the firm’s Guelph office.

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