Does Receiving Government Assistance Change Child Support Obligations for Adult Children with Disabilities?

When an adult child living with a disability starts receiving government assistance, parents often question whether their obligation to pay child support continues. This article explores the relevant legislation, case law, and factors considered by courts in determining child support in these instances.

Relevant Legislation

Divorce Act

Under the Divorce Act, child support may be ordered by a court for children considered to be “children of the marriage” (Divorce Act, s. 15.1(1)). Normally, once a child turns 18, they no longer qualify as a "child of the marriage." However, an adult child who cannot withdraw from parental care or obtain the necessaries of life due to illness, disability, or other causes may still be considered a child of the marriage despite being over the age of 18 (Divorce Act, s. 2(1)(b)). The burden of proving that a child remains a “child of the marriage” lies with the party claiming child support. Courts require proof of financial dependence or an inability to manage daily living independently. Simply living with a disability or receiving government assistance alone does not automatically make an adult child a “child of the marriage” within the Divorce Act.

Child Support Guidelines

Once the court determines that the adult child is a “child of the marriage,” it will then turn to the relevant Child Support Guidelines to determine the exact amount and entitlement of support. According to s. 3(2) of the guidelines, when a child support order relates to a child over the age of majority, the court will determine an amount based on either the suggested Table Amount outlined in the guidelines (3(2)(a)) or an amount appropriate having regard to the condition, means, needs, and other circumstances of the child (3(2)(b)). The “Table Amount” is typically an objective amount based on the parties’ income, while the latter amount considers the surrounding circumstances of the child. To deviate from the Table Amount, the party seeking the deviation must prove that the Table Amount is “inappropriate.”

Case Law

Courts have generally found that financial assistance does not necessarily absolve parents of their child support obligations (Remillard v Remillard, 2014 MBCA 101). Instead, courts tend to render the Table Amount inappropriate in the presence of financial assistance and shift the consideration to all of the circumstances surrounding the adult child, including the amount they receive in assistance (Steidinger v Morrell, 2013 MBQB 143, Wetsch v Kuski, 2017 SKCA 77).

From that point, they must consider what is actually appropriate for each case. In some cases, there was still entitlement to support, but the court rendered the amount payable to $0 because the entirety of the child’s needs were supported by government assistance (see Cossette v Cossette, 2003 CanLII 2086 (ONSC), Liscio v Avram, 2009 CanLII 43640 (ONSC), Woodard v McDonald, 2014 MBQB 39, Werenka v Werenka, 2021 ABQB 789). In other cases, the court merely reduced the amount of child support to reflect the amount their assistance offsets their need for support (see Briard v Briard, 2010 BSCC 65, 2010 BCCA 431, Steidinger v Morrell, 2013 MBQB 143, Wetsch v Kuski, 2017 SKCA 77).

Ultimately, a full consideration of the adult child’s financial information, surrounding circumstances, level of care and attention, and exact needs are necessary.

Additionally, if an order or a separation agreement exists, a child’s receipt of social assistance or other benefits after the age of majority usually constitutes a “material change in circumstances” warranting a review or adjustment of the amount that is payable in child support.

Conclusion

In summary, proving that an adult child remains a “child of the marriage” requires credible proof of financial dependence or an inability to manage daily living independently. The presence of state financial assistance generally shifts the analysis from the Table Amount under s. 3(2)(a) to a needs-based assessment under s. 3(2)(b). Courts typically reduce child support in the amount that offsets how much government assistance contributes to meeting the child's total needs. However, substantial ongoing support and supervision by the custodial parent may still necessitate child support in an amount close to the Table Amount.

If you have been previously ordered to pay child support or are navigating a separation, you may apply for a variation of support with the court if there is a significant change in circumstances, such as the receipt of government assistance.

If you have any questions about your child support obligations or are navigating a separation, please call our office or send us an email at info@patersons.ca for more information.