Calgary Disabled Adult Child Support Lawyers deal with child support for adult disabled children. There are two approaches under the child support guidelines in determining over the age of majority child support. Often an adult disabled child will be in receipt of disability payments as a person with disability “PWD” and this source of income can affect the amount of child support paid. Contact our top rated Calgary Disabled Adult Child Support Lawyers at Vancouver, Surrey, Calgary, Kelowna, Fort St John and Richmond, BC.
Lorne N. MacLean, QC founder of the top rated Calgary Disabled Adult Child Support Lawyers at MacLean Law explains a recent BC Supreme Court of BC case of P.E.R. v. C.A.R. 2018 BCSC 339 provides a great review of the law in the area. In this case the husband was a high income earner who argued that the budget for the child should be used and that he should only pay the difference before the basic costs for the child AFTER DEDUCTION of the monthly disability payments. The court reviewed the law and the two approaches that can be applied under section 3 of the Child Support Guidelines.
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Calgary Disabled Adult Child Support Lawyers summarize the key principles the court applied i saying the husband’s approach was incorrect.
[66] In advocating for an order that the respondent be required to provide child support under s. 3(2)(a) of the Guidelines, counsel for the claimant submits that the respondent has had and continues to have ample means to support T.E.R. His income for Guideline purposes for the applicable years (converted from USD to Canadian dollars at a rate of 1.27), together with the corresponding Guideline support amount, …[$533,000 to $609,000]
[67] Some British Columbia cases have determined that the receipt by a child of the marriage of disability benefits pursuant to a PWD designation may be sufficient to displace the “one-size-fits-all” approach under s. 3(2)(a) of the Guidelines and that the approach to be used is that set out in s. 3(2)(b) of the Guidelines: Briard v. Briard, 2010 BCCA 431, at para. 30; C.L.C. v. B.T.C., 2012 BCSC 736, at para. 75; Poehlke v. Poehlke, 2012 BCSC 1029, at para. 50; Ross v. Ross, 2004 BCCA 131, at para. 14, Carten v. Carten, 2015 BCSC 19, at para. 21; T.A.P., at paras. 42–44.
[68] More recent cases have pointed out that the approach to be taken where the child is receiving PWD Benefits is to determine the amount of assistance that is appropriate from the non-custodial parent, the primary focus being on the needs and circumstances of the child. In Wright v. Frederickson, 2017 BCSC 1062, which also involved a child over the age of majority with disabilities. Mr. Justice Grauer stated, at paras. 88–91:
[88] Mr. Frederickson contends that B’s needs are limited because of his disability, pointing to the monthly expenses outlined by Ms. Wright and B’s receipt of benefits of $1,000 per month. The monthly expenses outlined by Ms. Wright, which were, I find taken somewhat out of context and do not reflect the true extent of those expenses, consisted of food, supplements, clothing, medical supplies, hygiene products, then maintenance and insurance, and entertainment, and total approximately $1,765.
[89] Mr. Frederickson submits that he should be responsible for no more than the remainder of $765 after deducting the PWD benefit. He relies upon Kollmuss v. Kollmuss, 2015 BCSC 1101, where Mr. Justice Voith undertook a thorough review of the law:
[38] In summary, these five cases [Briard v. Briard, 2010 BCCA 431; C.L.C. v. B.T.C., 2012 BCSC 736; Poehlke v. Poehlke, 2012 BCSC 1029; Ross v. Ross, 2004 BCCA 131 and Carten v. Carten, 2015 BCSC 19] establish that the receipt of PWD benefits is often considered sufficient to trigger a s. 3(2)(b) analysis. This will particularly be so where, as in this case, the incomes of the parties are modest. Further, these cases apply the Wesemann approach [Wesemann v. Wesemann, [1999] B.C.J. No. 1387 (S.C.)]: the court must ask itself (1) whether the claimant has proven that the usual Guidelines approach is inappropriate, and (2), if not, what amount 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”.
[39] The party requesting the change has the onus of establishing that the usual Guidelines approach is inappropriate. It may be inappropriate where the child’s circumstances differ from the circumstances upon which the usual Guidelines approach is based. Some disability benefit cases have held that the receipt of the benefit itself renders the usual Guidelines approach inappropriate; Briard at para. 22; Poehlke at para. 51; Ross at para. 25. Others engage in an initial consideration of the financial significance of the benefit amount in the context of the case; C.L.C. at para. 62; Carten at para. 21.
[40] In considering an appropriate amount or level of support, the court engages in the usual condition, means, needs and other circumstances analysis; however, in these cases, the reasonable ability of the child to contribute to those needs is also incorporated, or factored, into the analysis. Ultimately, a court will calculate a child’s reasonable costs and deduct the amount of the disability benefit in order to quantify the relevant shortfall. The court will then consider the parents’ incomes and the usual table amount. The child’s shortfall is then often divided in proportion to the parents’ respective incomes.
[41] In term of financial reporting, courts have generally been prepared to work with rough budget amounts, or budgets lacking significant detail, so long as they were able to determine the reasonable costs of the child.
Husband Fails To Meet Onus To Depart From Basic Formula
Calgary Disabled Adult Child Support Lawyers now review the Court’s determination that the husband failed to meet the legal onus to depart from the basic Child Support Guidelines formula. The court noted the daughter had a mental disorder, it was manageable if she took her medication, there was no vocational assessment and there was also a dearth of evidence on what she could do to be self sufficient. Calgary Disabled Adult Child Support Lawyers need to use a tailored approach to deciding the correct amount of child support. This case guides family law clients and Calgary Disabled Adult Child Support Lawyers and suggests a reduction of the table amount is likely but that the reduction will be modest.
[90] As this passage makes clear, the onus is on Mr. Frederickson to establish that the usual Guidelines approach is inappropriate. In my view, given the quite extraordinary needs of B, which go well beyond the items that made up Ms. Wright’s estimate of expenses, he has failed to do so.
[91] As Voith J. pointed out, the cases are inconsistent in their approach to the effect of PWD benefits. In Poehlke, the parties had already agreed to reduce child support by the amount of the benefit, and one party sought to renege from that agreement. The decision in Ross turned in part on the means of the parties, and the benefit in question was more than double the amount of the benefit here. Briard reminds us that the question is not one of offloading the responsibility for care on to the state, but rather inquiring as to what assistance is appropriate from the non-custodial parent. The primary focus must be on the needs and circumstances of the child.
[72] The claimant deposes in her Form F8 Financial Statement filed January 19, 2018 that the expense she incurs for or on behalf of T.E.R. is $1,412 per month.
[73] In my view, the circumstances of this case necessitate a tailored solution that reflects the condition, means (including disability benefits), needs and other circumstances of T.E.R. as well as the respective financial ability of the parties to contribute to T.E.R.’s support.
[74] In my view, an appropriate order is that the respondent pay the Guideline amount of $3,000 per month. This amount takes into consideration the Guideline support of $4,938, the exigencies and contingencies of the conversion between U.S. currency and Canadian currency, a deduction for the PWD benefit received by both T.E.R. and the claimant totalling $1,058, and the claimant’s evidence that her current financial need to support T.E.R. in the amount of $1,412 per month. In making this award, I have also taken into consideration the evidence that T.E.R.’s activities are severely limited and restricted, and that she is presently unable to work, socialize with others or attend rehabilitation.
Calgary Disabled Adult Child Support Lawyers Can Help
Call our Calgary Disabled Adult Child Support Lawyers early on to start creating a plan to help your disabled child succeed in being as independent as possible.
