In Senos v. Karcz, the Court of Appeal allowed a father’s motion to change his support payments to reflect his adult son’s receipt of the Ontario Disability Support Plant Act, 1997 (ODSP) benefits.
Following the parties divorce in 1997, the father had been paying child support of $900 per month, and subsequently adjusted to $1,153 for his son, who resided with the mother. In 2007, the son was diagnosed with bipolar disorder and schizophrenia. In 2009, the son was approved for ODSP and began receiving income support payments of $796 per month, and subsequently increased to $814. The father brought a motion to change his support payments to reflect the son’s receipt of ODSP benefits.
The trial judge had dismissed the motion and found that the table approach to child support under s. 3(2)(a) of the Federal Child Support Guidelines (“Guidelines”) was not inappropriate. The decision was upheld by the Divisional Court. The Court of Appeal held the fact that the son was receiving almost $10,000 a year from ODSP benefits was sufficient to displace the table approach in s. 3(2)(a) of the Guidelines and apply the customized approach in s. 3(2)(b), which takes into account the “condition, means, needs and other circumstances of the child.” To reach this decision the court recognized that the ODSP reflects society’s commitment to sharing financial responsibility for adults with disability.
It was unreasonable to calculate child support on the basis that responsibility fell solely on the parents. Therefore, the assumption of responsibility by the state and the son’s receipt of income support for his board and lodging made the table approach to child support under s. 3(2)(a) inappropriate. The trial judge erred in finding the ODSP payments were the son’s to dispose as he pleased. To treat the son’s income support payments as discretionary spending money did not reflect the purpose of ODSP. Furthermore, since the money was paid to the mother as the son’s trustee, she was required to report annually on how the money was spent.