Recent Cases – Adult Children with Disabilities and Daycare Supports

Two recent cases emphasis the need for parents and childcare providers to be better informed about government funded programs and services available to families of people (children and adults) with disabilities.

Morden v Kelly – “Child Support” Obligations for Separated Parents of Adults with Disabilities

In Morden, the child, C.K., was born with serious cognitive and physiological disabilities including severe autism, cerebral palsy, significant developmental delay and epilepsy. He required the constant presence of a caregiver. The proceedings involved a family law motion to change the final court order in relation to child support as between C.K.’s parents. At the time of the final court order, C.K. was in his mother’s care but as he grew older, his mother was no longer able to care for him, and he moved in with his father. At the time of the hearing, C.K. was 25 years old and was on a wait list to move into residential care.

Is an adult child with a disability entitled to child support?

Turning to the primary issue as to whether C.K. remained entitled to child support and the calculation of support for an adult child with a disability, the court provided a helpful summary of the law regarding these considerations. The starting point for spouses that were legally married is whether the adult child remains a “child of the marriage” for support purposes.  In this case, the parents submitted and the court agreed that C.K. remained entitled to child support, noting that C.K. is “permanently disabled” and is “completely dependent” on his parents to take care of his physical, emotional, health and financial needs.

Will the court consider ODSP benefits when calculating child support?

The court affirmed that the child’s receipt of ODSP is an important consideration but does not displace the parents’ obligations to support their child from a family law perspective:

The Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B. enshrines the objective of creating a shared responsibility between government and families in meeting the needs of adults with disabilities. The receipt of ODSP benefits does not in and of itself lead to disentitlement to child support“. (see Senos v. Karcz,2014 ONCA 459 (CanLII)Chittle v. Chittle2019 ONSC 1433 (CanLII).

Turning to the calculation of support, the Federal Child Support Guidelines do not presumptively apply for a child over the age of majority; rather, courts first determine the amount under the Guidelines as if the child was under the age of majority. If that approach is inappropriate, the court considers an amount that is appropriate having regard to 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 (see, s. 3(2) of the Guidelines, and Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA)Senos v. Karcz, 2014 ONCA 459 (CanLII); Coates v. Watson, 2017 ONCJ 454 (CanLII)).

In most cases, an adult child’s receipt of ODSP benefits is generally sufficient to displace the “one-size-fits-most” approach, i.e. application of the Guidelines, in favour of the “tailor-made” approach.  In that regard, the court will consider a budget for the child, the parent’s means/ability to pay and the child’s sources of revenue, including ODSP, Passport Funding, availability and cost of residential facilities and treatment programs and other government funded supports.

When acting for a parent of a child with a disability, it is important that family counsel have a good understanding of what government programs and subsidies are available if the parties have not exhausted all of the resources available to them. In Morden, Justice Braid calculated C.K.’s total expenses, less the government funding (ODSP and Passport), and then allocated a proportionate sharing of the balance of his expenses between the parents.

Life planning and guardianship of an adult child with a disability

In the original Minutes of Settlement giving rise to the final court order, the parents were to undertake a “Life Plan” for C.K. While this was not done by the parents, we commend family law counsel at first instance for including future planning for C.K. as part of the family law proceedings. Too often, family lawyers neglect to consider a life and estate plan for a child with a disability leaving open the potential for future litigation as the child grows and/or his or her parents become unable to care for him or her.

Interestingly, in Morden, the parents also asked Justice Braid to make findings regarding issues of guardianship for C.K., notwithstanding that this was a family law proceeding and not an application under the Substitute Decisions Act. Justice Braid made findings regarding C.K.’s incapability of making decisions for his property and personal care, thus having significant implications for C.K. and raising important issues as to whether these findings could bind a court in subsequent guardianship proceedings.

C.P. v. Ontario (Education) – Supports for Children in Childcare

In C.P. v. Ontario (Education), the applicant mother was self-represented. She was the parent of a 12-year old with a disability and could not access suitable childcare for her daughter. She unsuccessfully argued that the Child Care and Early Years Act, 2014, S.O. 2014, c. 11, Sched. 1, was discriminatory and that it be changed to add language making it “completely illegal for any childcare to deny or remove a child based on their disability.” Although the mother was unsuccessful in her application, the decision highlights the importance of educating parents and child care providers about the additional supports and resources parents may bring into a child care facility to support their child with special needs.

Unlike schools, which limit third party private community health professionals from providing direct classroom supports to students, childcare providers are governed under a different legislative regime and will often work with private providers to support the child. For instance, private Speech-Language Pathologists (“SLP”), Occupational Therapists, and Applied Behaviour Analysis (“ABA”) therapists can support the child with peer integration, social/communication skills, pre-academic learning, etc., directly in the childcare setting. With the changes to the Ontario Autism Program, parents receiving funding for their child with autism can use the money for SLP and OT services now, not limited to ABA. Special Services at Home provides respite funding for relief for parents of children under 18 years and there are other subsidized programs or grants through community organizations that provide funding for 1-1 support workers for children.

The early years are crucial for intervention and establishing the appropriate supports that children need. The childcare team working with the child through their early years can be of great assistance to school staff when the child enters school. Parents can request that the child’s early years provider, along with other privately retained community health professionals, attend a school case conference and support meeting, along with the Identification Placement Review Committee (“IPRC”) to determine the child’s needs, placement for school and supports and recommendations for the child’s individual education plan (“IEP”.) Working collaboratively, childcare staff, private community professionals, school staff and parents can ensure that the child receives the supports, programs and services they are entitled to in order to thrive at school and with their peers.

Melanie Battaglia leads the Family Law Practice at PooranLaw. To know more about these cases and the potential implications for you or your family, contact Melanie.