This is a question with no clear-cut answer.
Disabled children may qualify for disability benefits when they reach adulthood (or even before then). This may affect child support – or not. It depends on the facts in each individual case. Every family is different and court decisions are accordingly mixed. In this blog post, I will discuss some of the orders courts have made in different situations.
The threshold question is whether the child is still a “child” as defined by the legislation. If not, no child support is payable.
The governing statues are the federal Divorce Act and the provincial Family Law Act. For married spouses, either or both apply but the Divorce Act takes precedence. For unmarried spouses, only the Family Law Act applies. The definition of child is similar in both.
The Divorce Act says, at section 2(1):
child of the marriage means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
Section 146 of the Family Law Act says:
“child” includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of the person’s parents or guardians.
Both acts obligate parents to support their children. The parent with the majority of parenting time receives support. If the child spends equal time with both parents, support is based on a set off between respective incomes, with the higher-income parent paying the difference to the lower-income parent.
Under either act, the amount of child support is determined by the Federal Child Support Guidelines (“Guidelines”).
The Guidelines have tables that set out the amount of monthly child support based on income and number of children (see section 3(1)).
Once a child reaches the age of majority (age 19 in B.C.), the regular table amount may change. Section 3(2) of the Guidelines addresses this:
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers 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.
Section 3(2)(a) allows for continuation of the regular table amount of child support.
Section 3(2)(b) gives the court considerable discretion to order an amount based on the particular circumstances of each family.
A common reason why a child over the age of majority is unable to withdraw from their parents’ care or to obtain the necessaries of life is participation in post-secondary education. In those circumstances, child support often continues (usually with modifications) until the child’s studies conclude.
The inability to withdraw from parental care and provide for oneself is less clear-cut in disability cases. This is because of the vast range of disabilities and their effect on a child’s ability to become independent.
Parents will often disagree on whether the disability entitles the child to ongoing support once the child is an adult. Predictably, the paying parent argues support should end and the recipient parent disagrees.
Even when both parents agree a child is unable to live independently, they will often disagree on entitlement to ongoing support if the child is receiving disability benefits.
What often happens when a court orders continued support is that it will order a reduced amount of child support after taking the child’s disability benefits and any other income into account along with the respective financial situations of the parents.
In Forliti v. Forliti, 2016 BCSC 743, the parties’ 18 year-old son, Blue, had severe cerebral palsy due to oxygen deprivation at birth. He required help with every aspect of his life from feeding to toileting. His parents agreed he would never be able to live independently but disagreed on almost everything else, including whether child support should continue once he reached 19.
Blue had received a personal injury award because of the injuries he sustained at birth. This funded his care along with child support from his father.
The father applied to end child support when Blue turned 19 due to a reduction in the father’s income. The court dismissed his application and ordered child support to continue. It looked at the “conditions, means, needs and other circumstances” of the parties in reaching its decision, finding that while the father’s income had dropped, he still earned more than the mother. Therefore, in the court’s view, ceasing child support would adversely affect Blue.
In P.E.R. v C.A.R., 2018 BCSC 339, the issue was whether the parties’ 32 year-old daughter, T.E.R., was still a “child” due to mental illness and therefore entitled to continued child support.
T.E.R. lived with her mother and received “Person With Disabilities” (“PWD”) benefits. The mother’s position was that T.E.R. required daily supervision and could not live independently; therefore, child support should continue. The father argued that child support should end because T.E.R.’s disability was due to her use of illicit drugs and refusal to get treatment.
The court found that T.E.R. was currently unable to withdraw from her mother’s care due to mental illness. It looked at her “condition, means, needs and other circumstances” (including PWD benefits), and her parents’ respective financial abilities to contribute to her support. It tailored its order accordingly: child support would continue for now but T.E.R. would undergo a vocational assessment with child support revisited depending on the result.
In Bye v. Bye, 2024 BCCA 264, the father appealed an order that his two children remained “children” entitled to ongoing child support upon reaching the age of majority.
The oldest child suffered from mental illness and the younger had an intellectual disability. Both children lived with the mother and received PWD benefits. The judge in the court below found both children were unable to withdraw from the care of their mother. That finding was upheld on appeal and the father was ordered to continue to pay child support for both children.
In C.R.L. v S.L.L, 2019 BCSC 2103, the parties’ son lived with autism/Asperger’s syndrome. He received PWD benefits and resided primarily with his mother. The father agreed his son was unable to live independently but argued his PWD benefits were sufficient for his needs and child support was simply allowing him to build his savings. The court agreed. It held that the purpose of child support is to meet the child’s day-to-day needs and not to allow a child to build savings. It found that the child’s PWD benefits were sufficient for the child and ordered an end to child support.
Whether child support should continue for your disabled adult child depends on whether that child can, as per the legislation, obtain the necessaries of life or withdraw from the charge of you and the other parent. That is the starting point. If the answer is no, a court can order child support to continue based on the table amount or a different amount tailored to the particular circumstances of your family.
If you have questions about this, please contact a member of our Family Law Practice Group for a consultation.
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Catherine Collver Lawyer | Family Law Vancouver |
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.