In the case of Morden v. Kelly, the parties had an adult child who was born with severe cognitive and physiological disabilities and required the constant presence of a caregiver. After the parties’ separation, the child initially resided with the mother in Ottawa before moving to reside with the father in Hamilton. Two years after the child’s move, the father brought a Motion to Change seeking increased child support from the mother.
The parties were married in 1987 and separated in 2006. They are now both 64 years of age. The child in the proceeding is 25 years old and has received benefits from the Ontario Disability Support Program and other government programs. The parties agree that there has been a material change in circumstances since the child has moved to Hamilton to live with the father.
On a Motion to Change child support under section 17(1) of the Divorce Act, the Court can change, suspend, or discharge the terms of an Order, either prospectively or retroactively. In this case, because the child involved is over the age of majority, the Court had to first determine whether he is a “child of the marriage” for support purposes, as defined by the Divorce Act.
The test for entitlement to support for an adult child is a fact-driven exercise involving considerable judicial discretion. Given that the child is permanently disabled and completely dependent on his parents and caregivers, the Court found that the child was unable to withdraw from parental control due to his disability and is therefore entitled to support.
To calculate the appropriate amount of child support for an adult child, the Court applied the general principles from Lewi v. Lewi:
- The Court starts with the presumption that child support for an adult child should be calculated using the same approach as for a child under the age of majority. However, the Court must then determine whether this approach is inappropriate based on the facts of the case.
- If the Court determines that the standard approach is inappropriate, then the Court must determine the amount of child support that is appropriate in light of the conditions, means, needs, and other circumstances of the child, as well as the financial ability of each spouse to support the child.
- Pursuant to section 3(2)(b) of the Child Support Guidelines, the Court can decide the amount that the child should be required to contribute to his or her own support.
The Court held that there should be an equitable balancing of responsibility between the adult child, his parents, and society. As such, the Court had to consider the government funding that is available to the child. After examining the child’s expenses, the Court found a shortfall between the child’s total expenses and the amount of government funding available. The Court then ordered that the shortfall be shared between the parents in proportion to their respective incomes. Since the mother earned an annual income of $95,000 and the father earned $55,000, the proportionate share of expenses would be divided as 63% paid by the mother and 37% paid by the father, which means the mother would pay $1,167.52 per month in child support.
Need to File a Motion to Change?
Contact the child support attorneys at Feldstein Family Law Group P.C. if you have questions about an order or need to file a Motion to Change. Our compassionate legal team has 20+ years of family law experience and an inclusive understanding of the various factors that could influence the outcome of your case.
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