NAVIGATING THE LEGAL MAZE:
Updated: Sep 26, 2019
THE EFFECT OF THE ONTARIO DISABILITY SUPPORT PLAN ON SUPPORT FOR ADULT STUDENTS WITH DISABILITIES
It should not come as a surprise that university enrolment in Ontario has grown substantially since the 1970s. Some experts view this increase in attendance as evidence that students have been responding to changes in the labour market, which has shifted from a resource-based to a service-based economy. Torontonians need not look far to observe this theory in practice. Old factories line the streets of our city, but a closer look at their interiors will reveal lofty apartments, grocery stores and places of business; all modern-day exhibits of how the post-war manufacturing industry has been converted to suit modern society’s needs. The demand for a highly skilled labour force to fill the influx of jobs created by this shift may just be the principal driver in the growth of university participation rates. In their new book Academic Reform, policy experts Ian D. Clark, David Trick and Richard Van Loon projected that the Greater Toronto Area will need 51,000 to 74,000 new undergraduate seats between 2009 and 2025. It is clear that high school students are and will continue to choose university as a stepping stone to their future careers.
Universities have doubled and even tripled their capacities in response to this demand and continue to introduce new programs to suit the needs of the increasing number of students. Accommodations and special services that meet the needs of students with disabilities have also become available, allowing disabled students to go to university with greater support. Among these disabled students participating in undergraduate degrees are student recipients of Ontario Disability Support Plan payments (or “ODSP” payments) from the Government of Ontario.
When a disabled student attending university receives ODSP payments as well as child support, the question then arises: Should the ODSP payment be taken into account in determining the amount of child support for an adult child? In several cases, the payor parent has discontinued payment of child support upon learning that their child is in receipt of ODSP payments, which can cover up to $800 or more per month. The parent in receipt of support then argues that the ODSP payments belong to the child whereas child support is granted to the parent, so the payor parent should continue to pay the full table amount of child support.
The Court’s answer to this question has lacked certainty…until now! Among Phil Epstein’s eclectic list of what he considers the most important cases over the past six months, known as his “Year in Review”, is the case of Senos v Karcz. In this case, the Ontario Court of Appeal has settled the law on this very issue, at least in Ontario. The Court of Appeal accepted that if an adult child with a disability is receiving government disability support payments, the government support must be taken into account when setting the amount payable, if any. The Court’s reasoning is as follows: ODSP reflects society’s commitment to sharing financial responsibility for adults with disabilities. It makes little sense to calculate child support on the basis that this responsibility falls only on the parents. In my view, the assumption of some responsibility by the state and Antoni’s receipt of income support for his board and lodging make the Table Approach inappropriate.
Instead of relying on the table amount, the Court calls for a ‘bespoke calculation’ that considers the means of the child as well as the means of the parents in determining an appropriate amount of child support. The practical result of this decision is that the Courts are given greater discretion in determining the amount that the child should be expected to contribute.
Keeping in mind that this decision relates to child support, where does this leave those expenses that fall outside of the realm of child support? These are known as the adult child’s “extraordinary expenses” and the court can award a sharing of them provided that they are ‘reasonable.’ Reasonable expenses should always include tuition, compulsory student fees and books, provided the party can adduce evidence of these costs. The cost of a computer is increasingly regarded as a reasonable expense (see McMahon v Hodgson). In its 2008 decision in LaRue v LaRue, the Ontario Court of Appeal upheld a decision that included the following items as reasonable expenses: monthly bus passes, telephone and Internet, food and household supplies and laundry and clothing costs during the school year.
When an adult child is in receipt of ODSP and the guidelines approach isn’t appropriate, the court has greater discretion in apportioning reasonable post-secondary expenses, rather than strictly apportioning the expenses between the two parents in proportion their income (see Meyer v Content).
In Welsh v. Welsh, the Court acknowledged that an approach involving deducting the child’s contributions (whether from ODSP or income earned from employment etc.) and apportioning the net expenses between the parents in proportion to their incomes was a viable option. The Court stated, “The primary attraction to this approach is that it leads to a thorough analysis of the child’s needs, which will likely result in a far more fine-tuned outcome that fairly divides the disabled adult child’s expenses between the child, the state and the parents.”
The Superior Court Liscio v. Avram, calculated the child’s expenses during the eight months the child was at university, deducted the contribution the child was able to make from summer earnings, and apportioned the net expenses between the parents in proportion to their respective incomes. The court then calculated the table amount of the non-residential parent’s obligation to pay child support for the four summer months, when the child was living with the residential parent, as if the child were a minor, and required him to pay that amount to the residential parent.
If a child is in receipt of student loans, the amount of same may fall within the deducted contribution from the child to his or her post-secondary expenses, as was the case in Fulcher v. Fulcher. Cases have held that a student loan may reduce the contribution to be made by a parent towards the child’s education but it may not necessarily do that, depending on the circumstances of the case. It depends on the “reasonableness” of taking account of any such loans in light of the case (see Blonski v. Blonski).
At the end of the day, there is no magical formula to calculate exactly how ODSP payments will affect child support and extraordinary expenses. Adult children with disabilities face enough uncertainty as they navigate through a society that has not been designed with them in mind. The forgoing case law may provide recipients of ODSP payments with a comfort in knowing that they must now be taken into account.