The Ontario government continues to make improvements to the Ontario Autism Program (OAP), including the expansion of services to support children’s ongoing learning and development. We highlight some of those changes here so that caregivers can better understand how to access government programs and supports for their children living with autism.
In addition, the New Brunswick Court of Appeal has recently weighed in on the issue of supporting an adult “child” with a disability under the Federal Child Support Guidelines – which we view as an important contribution to the jurisprudence in this area. We agree with some of the commentary in the family law bar that the Federal Guidelines and provincial legislation pertaining to child support and disability support programs are in need of an amendment to ensure alignment and consistency across the country. This is so that individuals living with a disability can have equal entitlements to child support and disability support payments, in order to access the supports and services that they require to meet their needs and to live with as much financial security and dignity as possible.
Changes to the OAP
The Ontario government has announced that they are providing more capacity-building supports to families through “foundational family services,” such as family and peer mentoring, and caregiver workshops and coaching, including virtual and remote options, as we progress through the COVID-19 pandemic. The first phase of the foundational family services launched on August 7, 2020. Read the government’s News Release here and contact Melanie Battaglia if you have questions regarding the OAP and how to access supports for your family.
Supporting an Adult Child with a Disability under the Federal Child Support Guidelines
C.M. v. G.M. (2020), 38 R.F.L. (8th) 303 (N.B.C.A.)
In this New Brunswick case, the parents were divorced and had one child with multiple disabilities, including cerebral palsy, which required diapering and assistance with personal care on a full-time basis. The child was 21 at the time of the hearing of the appeal. The child resided with the mother and accessed respite services through a program offered by the provincial government, at no cost, along with subsidized housing for the mother and child, and payment of the child’s medications and diapers. Since the age of 18, the child had been in receipt of government disability benefits. The mother used the disability benefits to help pay the rent, cell phone, internet, and cable television bills, and the expenses associated with a wheelchair accessible van.
The issue on appeal was whether the motion judge erred when she ordered the Table amount of child support according to the Federal Child Support Guidelines, in a case where there was evidence that the Province of New Brunswick would “claw back” the amount, dollar for dollar, due to the fact the mother was also in receipt of Social Assistance benefits. The mother argued that the judge should have ordered the father (the respondent) to pay a monthly contribution towards the expenses she incurred for the wheelchair accessible van that she had purchased for the child, designating the amount as a special and/or extraordinary (“section 7”) expense, which would not have been deducted from her Social Assistance benefits. The New Brunswick Court of Appeal, aligning with the Courts of Appeal for Saskatchewan, Manitoba and Ontario, held that, “child support in New Brunswick for a disabled adult child of a marriage is to be determined based on the “condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child” under s 3(2) of the Guidelines”. The Court of Appeal upheld the motions judge award that the father should pay full Table child support and his proportionate share of the after-school care, summer camp and the costs of a home support worker. The Court of Appeal further held that the mother knew that the government would claw back the child support payments from her social assistance benefits on a dollar-for-dollar basis.
This case highlights the inconsistency in disability support regimes across the country and how they can adversely impact individuals and/or their caregivers in receipt of child support. In Ontario, the Ontario Disability Support Program (“ODSP”) does NOT claw back child support for a dependent adult child effective as of January 1, 2017, whereby child support payments are fully exempt as income and do not impact a person’s eligibility for ODSP benefits. Child support payments that are exempt relate to legally required payments for any member of a benefit unit, regardless of age, and may include children under 18, dependent adults, and recipients eligible in their own right. Further information regarding ODSP Directives can be found here. For more information, please contact Melanie Battaglia or Stephanie Dickson.
Join A Free Webinar on Sept. 28, 2020
Our family law partner, Melanie Battaglia, will be providing more information regarding support for an adult child with a disability during her webinar on Monday September 28, 2020. If interested in participating in this webinar, please register here.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.