O. Disability Payments and Child Support

Author:Julien D. Payne - Marilyn A. Payne

Page 486

As illustrated in Vickers v Vickers,459given that the table amount of child support is determined solely by reference to the obligor’s income, federal or provincial monthly benefits paid to or for a child of a disabled parent are not deductible from the applicable table amount of child support that is payable under the Federal Child Support Guidelines. The income of the custodial parent or child is relevant only where there are special or extraordinary expenses within the meaning of section 7 of the Guidelines or where the court has a discretion,460such as under section 3(2) of the Guidelines if the child has attained the provincial age of majority,461or under section 4 insofar as the

Page 487

obligor’s income exceeds $150,000,462or under section 5 of the Guidelines, which relates to the child support obligation of a spouse who stands in the place of a biological or adoptive parent,463or in shared-parenting arrangements under section 9 of the Guidelines,464or under section 10 of the Guidelines in circumstances of undue hardship.465On an application for special or extraordinary expenses under section 7 of the Guidelines, an obligor is not entitled to be credited dollar for dollar with respect to Canada Pension Plan payments made to children in consequence of the obligor’s disability, but the amount received by the other parent will be included in that parent’s income for the purpose of determining the proportionate parental contributions towards the expenses.466In Saskatchewan, the benefits payable under the Canada Pension Plan to the children of a disabled parent have been held not to constitute "special provisions" for the benefit of the children within the meaning of section 3(4)(a) of the Family Maintenance Act, 1997,467and similar reasoning can be applied to sections 15.1(5) and 17(6.2) of the Divorce Act.

[459] [2001] NSJ No 218 (CA). For decisions to similar effect, see Trehearne v Trehearne, [2000] AJ No 1632 (QB); Kaupp v Kaupp, 2008 ABQB 372; Wadden v Wadden, [2000] BCJ No 1287 (SC); Callaghan v Brett, [2000] NJ No 354 (SC); Sayong v Aindow, [1999] NWTJ No 43 (SC); St Croix v Maxwell, [1999] OJ No 4824 (Sup Ct); Sipos v Sipos, [2007] OJ No 711 (CA); Rousseau v Rousseau, [1999] SJ No 76 (QB); Jones v Jones, [2005] SJ No 284 (QB); Peterson v Horan, [2006] SJ No 333 (CA); see contra: Mullen v Mullen, [1998] NBJ No 338 (QB).

[460] Vickers v Vickers, [2001] NSJ No 218 (CA); Jones v Jones, [2005] SJ No 284 (QB); Peterson v...

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