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by Daniel Gloade on June 23, 2014

In Senos v. Karcz, 2014 ONCA 459 the Ontario Court of Appeal dealt with this issue.

The parties were married in 1984. Their son, Antoni, was born in 1989. They separated in 1991 and divorced in 1993.  The Father was ordered to pay child support of $900 per month. Antoni was diagnosed with schizophrenia and bipolar disorder in 2007 (after he was 18). Antoni lives with the mother.  Mother receives Disability Support Payments as trustee for benefit of Antoni.

Does the Child Support Guidelines table still apply? 

Section 3 of the Child Support Guidelines provides as follows:

“3. (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.”

The Honourable Justice Strathy held that the “table” amounts should not be used. The situation were sufficiently different from the normal circumstances of a child support order that a nuanced approached must be used.

Are O.D.S.P. payments deducted from the monthly child support amount?

O.D.S.P  has internal directives as to whether child support payments are considered the “child’s” income and therefore should reduce O.D.S.P. payments.  O.D.S.P. administrators look at who receives the payments  and for what expenses are these  payments used.

There are two types of payments which are automatically disqualified from being considered as payment-reducing income.

    1. Child support payments are exempt if they are paid pursuant to a court order and are applied to expenses for disability-related items, services, education or training and have been approved by the Director and not otherwise reimbursed.
    2. gifts or voluntary payments
    • used to address disability costs
    • any amount less than $6000 per year.

The Honourable Justice Strathy further held that there was insufficient information to make an evaluation under section 3(2)(b) of the Guidelines but listed several relevant factors:

  • How the mother uses the ODSP payments she receives as Antoni’s trustee?
  • How much money from O.D.S.P and from the child support payments did mother give Antoni to spend in his own discretion?
  • How much was the O.D.S.P. payments and child support payments used to pay for Antoni’s room and board?
  • What are Antoni’s expenses apart from room and board.  How are they paid?  Are the expenses inevitable due to his disability?
  • Is Antoni employable?

The Honourable Justice Strathy also commented on the circular pattern.  Courts adjust child support payments based on the O.D.S.P. payments the benefactor receives.   O.D.S.P. then adjusts the payments based on the new child support amount.  The courts and the administrative tribunal are different and do not coordinate with each other.

To avoid parents having to go back and forth between the courts and ODSP, the courts should make findings of fact as to where the money is and will be spent.  At least the two deciders will work with a common set of facts.  Also, the results of a court’s decision will be more predictable if the courts considers the impact of its decision on the O.D.S.P. amount.

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