D. Child’s Illness or Disability; Respective Obligations of Parents and State

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 45-50

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A child over the provincial age of majority who is unable to work due to illness or disability may be a "child of the marriage" within the meaning of section 2(1) of the Divorce Act.³⁸Important factors in determining whether an adult child is a child of the marriage are employability and the extent of the disability when determining whether that individual is able to obtain the necessaries of life.³⁹A time limited support order for an adult child is inappropriate where the child’s future ability to "withdraw from parental charge" is unpredictable.⁴⁰

An adult child with Down Syndrome may be found to be a "child of the marriage" within the meaning of section 2(1) of the Divorce Act, but the amount of monthly support payable pursuant to section 3(2)(b) of the Federal Child Support Guidelines may take account of the custodial parent’s receipt of a provincial subsidy for the disabled adult child.⁴¹Section 3(2) (b) of the Federal Child Support Guidelines empowers a court to deny a custodial parent’s application for the support of an adult disabled child where the non-custodial parent is responsible for unusually high access expenses and disability benefits, including subsidized housing, and diverse services, including respite care, are provided free of charge by the province.⁴²Proof of an adult child’s disability does not itself justify a child support order where there is no evidence that the disability prevents the child from obtaining gainful employment; evidence of financial dependence is required.⁴³A court may refuse to order a parent or step-parent to pay child support, where the court is satisfied that reasonable arrangements are already in place to meet an adult disabled child’s needs in that government allowances and benefits accommodate the child’s basic needs and respite services.⁴⁴A high functioning adult child with Down syndrome, who is in receipt of provincial assistance and

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a modest income from part-time employment, is not a "child of the marriage" within the meaning of section 2(1) of the Divorce Act, where the financial resources available to the adult child are sufficient to enable her to obtain the necessaries of life while living apart from either parent. The fact that the mother provides some day-to-day guidance on certain matters does not signify that the child is unable to withdraw from parental charge.⁴⁵In

Krangle (Guardian ad litem of) v. Brisco,⁴⁶McLachlin C.J., of the Supreme Court of Canada, addressed the issue of a disabled adult’s child’s withdrawal from the charge of his parents in the context of an action for damages for medical malpractice. She observed that the relevant statutory amendments "were not aimed at shifting the burden of caring for adult children from the state to parents, but rather with ensuring that in situations where one parent is charged with the care of an adult disabled child, the other parent is obliged to assist." A similar approach is tenable when interpreting federal or provincial legislation dealing with the support of adult disabled children.⁴⁷A parent has no legal duty to support an adult child with learning disabilities in an unsuccessful attempt by that child to achieve an unrealistic professional goal.⁴⁸The parental support obligation should be balanced against the need for an adult disabled child to assume responsibility for his or her own future.⁴⁹By the exercise of its statutory discretion under section 3(2)(b) or section 7 of the Federal Child Support Guidelines, a court may find it appropriate to segregate support for a disabled adult child from the applicable table amount of support allocated to other children of the marriage.⁵⁰

State-subsidized financial assistance for special needs adult children does not necessarily absolve parents of their child support obligation but disability payments may be taken into account under section 3(2)(b) of the Federal Child Support Guidelines.⁵¹In some cases, the subsidies will be sufficient to eliminate or significantly reduce child support otherwise payable. In other cases, as, for example, where the government funding only subsidizes extraordinary expenses related to the child’s disability, the table amount of child support may be unaffected.⁵²However, an adult child with a disability, which does not preclude certain types of employment, may not be a "child of the marriage."⁵³An adult child suffering from schizophrenia ceases to be a "child of the marriage" within the meaning of section 2(1) of

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the Divorce Act where he or she has a successful university record and can find suitable employment, if allowed to do so by the parent with whom the child resides.⁵⁴An adult child with emotional problems, who is completing grade ten, may be a "child of the marriage" within the meaning of section 2 of the Divorce Act and entitled to child support.⁵⁵Child support may be denied with respect to an adult child with unresolved medical problems, where the child is not immediately dependent on either parent for the necessities of life.⁵⁶Addiction is a disease, but courts will not condone chronic financial dependence for addicts who are unwilling to seek rehabilitation. An adult addicted child who has squandered opportunities for rehabilitation and the attainment of economic self-sufficiency is not entitled to call on a high income parent for support beyond the reasonable amount already being voluntarily provided.⁵⁷An adult child with a drug abuse problem may be found to be a "child of the marriage" within the meaning of section 2(1) of the Divorce Act for the purpose of determining the father’s ongoing court-ordered child support obligation for several months following the adult child’s release from a youth detention centre on the condition that he reside with his mother.⁵⁸An adult child with special needs does not satisfy the definition of "child of the marriage" in section 2(1) of the Divorce Act, if the adult child receives a monthly payment from a structured settlement sufficient to meet the child’s needs.⁵⁹In Harrington v. Harrington,⁶⁰which was a pre-Guidelines judgment under the Divorce Act, 1968, it was asserted that the extent of a parent’s legal obligation to support a disabled adult child should focus on the effect of the divorce on the support of the child. It remains to be seen whether this approach will prevail under the current Divorce Act and the Federal Child Support Guidelines.⁶¹In Hellinckx v. Large,⁶²the British Columbia Supreme Court concluded that under the circumstances arising in that case, "the appropriate measure of responsibility on the respondent is set by the Guidelines, rather than by analysing in depth the condition, means, needs and other circumstances of [the adult disabled child]." The onus of proving that an adult child remains a "child of the marriage" in that she is under her parents’ charge and unable by reason of disability to withdraw from their charge or to obtain the necessaries of life falls on the parent asserting the claim.⁶³ Where this onus is discharged, the court may order the applicable table amount of child support, notwithstanding that the payor receives an income that is near the poverty line. If a parent earns an income above the minimum threshold of $7,000, there is a presumed ability to pay the applicable

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table amount of child support.⁶⁴A court may conclude that it is premature to determine how long child support must be paid. There may come a point where the adult child should reside in a state-subsidized group home or the child may achieve a...