Lawyer for mother says case is important for disabled adults and their primary caregivers
The chambers judge deciding the case of whether two adult children with disabilities were still “children of the marriage,” for support purposes, was correct in ruling that the existing support order was not “automatically spent” when they turned 19, a British Columbia Court of Appeal panel recently ruled.
The judge “made no palpable and overriding errors in determining that both children remained children of the marriage,” said the decision written by Justice Barbara Fisher.
“This case is important for disabled adults and their primary supports or caregivers,” says Victoria-based lawyer Angela Atwood-Brewka, who represented the mother of the two children.
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“The case also makes it clear that support is not terminated because an adult child is in receipt of Persons With Disability payments from the Government of B.C. The quantum of support may be adjusted, but the payment the government provides is not necessarily sufficient to support the adult child.”
She adds that the appeal court “has shown consideration and respect for the heavy burden taken on by those parents who are tasked with caring for their disabled children - the court has confirmed that both parents must share this burden.”
The case involves a couple who divorced in 2010 with two children, one born in 2000 and the other in 2002. The most recent order for child support was made by consent in 2015, under which the father was required to pay $1,478 per month in support to his ex for an indefinite period.
The older child, in this case, turned 19 in August 2019, and the younger child in February 2021. In July 2022, the father brought a motion to a chambers judge asking for a declaration that the children were no longer children of the marriage after they turned 19 and that child support for each should be terminated.
He also asked that the child support money be reimbursed to him for the period after each child turned 19. Both children lived with their mother when this matter was heard in November 2022.
The father continued to pay child support in accordance with the 2015 order after each child turned 19 but reduced the payment substantially in March 2022. He argued that the child support order was “spent” when the child was no longer a “child” for support purposes.
The ex-wife’s position was that the children, one with a mental illness and the other with an intellectual disability, were still children of the marriage even after they turned 19. Since reaching the age of majority, both children have been designated as “persons with disabilities” under the Employment and Assistance for Persons with Disabilities Act and were receiving PWD benefits.”
Atwood-Brewka says the argument that a child is 19 and, therefore, no support is owed comes up frequently in her practice and “sadly, most often when the adult is disabled and in receipt of PWD payments."
The chambers judge who heard the case ruled that the children were still children of the marriage, as the definition includes a child who is “the age of majority or over and under their [custodial parents'] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life” to leave that care.
The chambers judge accepted that the aim and effect of this definition is to ensure that in situations where one parent is charged with the care of an adult disabled child, the other parent is obliged to assist.
The judge concluded that one child had mental health issues that included a diagnosis of Schizoaffective disorder and a substance abuse disorder that prevented them from withdrawing from the mother’s care. The chambers judge also concluded the other child still needed to be under the mother’s care to live successfully, despite the ability to work part-time, because of intellectual disability.
The judge did not address the amount of child support as she did not read the appellant’s notice of application to seek a variation of the 2015 order.
The father appealed the chambers decision on the basis that the judge made errors, including failing to consider the lack of evidence of the inability of the child with an intellectual disability to withdraw from his parents’ charge; and failing to address the financial capabilities of each child to meet their living expenses.
The court of appeal dismissed the father’s appeal, with Justice Fisher writing for the panel: “In many cases, parents will agree about the status of their child for support purposes, and there will be no need for anyone to come to court. The child support order will either continue if the child is still a child for support purposes or will be spent if the child is not.
“Where the parents do not agree, as in this case, it is open to either parent to apply to the court to determine that issue. Either way, the onus is on the recipient parent to prove that the child continues to qualify for support.”
The appeal court ruling added there was “no error” in the chambers judge’s analysis that “a child support order is not spent when the child reaches the age of majority if the child continues to qualify as a child for support purposes. As well, The Divorce Act defines a “child of the marriage” as including a child under or over the age of majority.
With regards to the child diagnosed with Schizoaffective disorder and substance abuse disorder, there is clear evidence these factors have affected their ability to function, and the mother must still give reminders for their daily routine and self-care.
A psychiatrist wrote in a report that this child “remains quite fragile as well as symptomatic, and [their] condition significantly impairs [their] ability to engage in work or educational pursuits.”
The father argued that the mother’s approach to caring for this child focuses on maintaining the “status quo” rather than becoming self-sufficient.
As for their sibling, the father recognizes there is an intellectual disability but argues that the child can withdraw from being under the mother’s care. He points to the recent purchase of a car and being able to work part-time as evidence of that ability.
The mother, however, gave evidence that it is “significantly challenging” for this child to maintain a full-time 40-hour work week. She described their working memory and processing speed as “challenges that leave [them] exhausted after a part-time shift,” such that “lots of downtime to recover” is needed. While this child is working towards independence, help with banking, taxes and household tasks is still needed.
Justice Fisher wrote in her decision that, in her view, the lower court judge’s “conclusion that [this child] was not yet able to withdraw from his mother’s care due to [their] intellectual disability was one that was open to her.”
The appeal court said the income from part-time work this child earns could be a factor in determining how much support the father must pay.
However, the appeal court ruled that the remedy for how much child support should be paid is one for the lower court to decide, as “it is not the role of this court to make findings of first instance.”
Justice Fisher wrote that either party was at liberty to seek a variation of the 2015 Order. “Rather than do so at the time, the [father] chose to appeal. In my view, the option to apply for variation remains the preferred one, especially in light of the considerable passage of time since the order under appeal was made.”
Lawyer Atwood-Brewka said the message to parents who pay support is that “the obligation only ends if they are not in fact “Children of the Marriage” or “dependent children,” depending on the marriage.
“Sometimes this is obvious. They are out working, married, or doing something which makes their independence clear. It is only when parents disagree that they will need to discuss and resolve whether the person can or cannot remove themselves from their parents’ charge and, if not, what amount should be paid by the payor."
She adds: “This issue should be dealt with by the parties and should not require the court. If court is required, then in B.C. the recipient of support bears the onus of proving that the child is in fact entitled to support.”
Typically, the spouse paying support will apply for a variation because enforcement will keep collecting the original support amount. In others, the recipient may apply because the support is terminated by the payor, and they cannot get enforcement without an order, or perhaps the amount being paid is not agreed or sufficient.
She adds that these cases are unique in that a lot of information is required of the adult child in terms of financial records, medical records, school records, and information about efforts at independence.”
“This places a further burden on the caregiving parent. Even when the child is not disabled, and the issue is whether they are in school enough, or perhaps their relationship with the payor is nonexistent, then the need to respond fully is still difficult and likely to exacerbate difficulties in the family relationships.”
