



COURT OF APPEAL FOR ONTARIO

CITATION:
    Senos v. Karcz, 2014 ONCA 459


DATE: 20140612

DOCKET: C57331

Juriansz, Pepall and Strathy JJ.A

BETWEEN

Natalie Senos

Applicant (Respondent)

and

Peter Karcz

Respondent (Appellant)

Aaron Franks, Michael Zalev and Melanie Sager, for the
    appellant

Martha McCarthy and Eric Sadvari, for the respondent

Heard: January 30, 2014

On appeal from the order of the Divisional Court (Justices
    Gladys I. Pardu and A. Duncan Grace, Justice Frances P. Kiteley dissenting),
    dated January 25, 2013, with reasons reported at 359 D.L.R. (4th) 342,
    affirming the order of Justice Douglas K. Gray of the Superior Court of
    Justice, dated March 14, 2012, with reasons reported at 2012 ONSC 1547.

Strathy J.A.:


[1]

Parents of a disabled adult child face unique financial, emotional and
    social challenges. When they are divorced or separated, the immediate burden
usually falls on the parent with whom the child resides. This appeal concerns
    the appropriate allocation of financial responsibility for the child between
    divorced parents and between those parents and the state.

[2]

On a technical level, this appeal raises the issue of whether the
    receipt of income support under the
Ontario Disability Support Plan Act
,
    1997,
S.O. 1997, c. 25, Sched. B

(
ODSPA
) by an adult
    child makes the presumptive Table approach to child support  inappropriate, so
    that support must be determined based on an individualized assessment of the condition,
    means, needs and other circumstances of the child.  For the reasons that follow,
    I find that the receipt of income support can make the Table approach
    inappropriate, and in this case it does. I would therefore allow the appeal and
    remit the matter for trial on a more complete factual record.

A.

facts

[3]

The appellant father
[1]
brought a motion to change the amount of support he had been paying for his
    adult son, Antoni. The trial judge dismissed the motion, and the Divisional
    Court dismissed the fathers appeal. The father now appeals to this court,
    arguing that the child support should be reduced by the amount of Antonis ODSP
    income support.

[4]

The parties were married in 1984. Antoni was born in 1989. They
    separated in 1991 and divorced in 1993, at which time the father was ordered to
    pay child support of $900 per month. The
Federal Child Support Guidelines,
S.O.R./97-175
    had not yet been enacted.

[5]

The amount has been adjusted for cost of living and stood at $1,153 per
    month in 2009.

[6]

Antoni was diagnosed with schizophrenia and bipolar disorder in 2007. He
    lives with his mother, her second husband, and their 10 or 11 year-old daughter
    in Acton, Ontario. Antoni occasionally visits his father, who lives near
    Sudbury with his second wife and their 11 year-old son. As Antoni has a
    disability, the parties agree that, for support purposes, he remains a child
    of the marriage as defined by the
Divorce Act
, R.S.C. 1985, c. 3 (2nd
    Supp.), s. 2(1).

[7]

There was conflicting evidence at trial concerning Antonis degree of
    independence. He is now 24 years old and does not work. The father claimed that
    Antoni makes his own meals, uses public transportation and does not require
    supervision.  He has been able to travel on his own to Sudbury by bus to visit his
    father and his family.  According to the father, Antoni spends time fishing,
    skateboarding, snowboarding, watching movies and collecting hockey cards. He
    enjoys eating, smoking cigarettes and drinking beer. The mother, on the other
    hand, says that Antonis condition makes him susceptible to addiction and
    compulsive behaviour, necessitating additional supervision. He is subject to a
    Community Treatment Order under the
Mental Health Act
, R.S.O. 1990, c.
    M.7, which permits him to live in the community.

[8]

In September 2009, Antoni was approved for ODSP and began receiving income
    support payments of $796 per month, subsequently increased to $814. These
    payments are net of taxes. He also received a drug and dental card and other
    medical benefits. His ODSP application was approved retroactive to February
    2008, with the result that he received a lump sum payment of about $12,000. The
    payments are made directly to the mother as Antonis ODSP trustee and are
    deposited into a bank account in their joint names.

[9]

The father earned an average of about $110,000 per year between 2006 and
    2009. The mother has not worked for several years. Her husbands income is a
    matter of dispute  the father alleges he earns $200,000 per year. The mother
    asserts that he only earned that amount in 2009 because he lost his job and
    received severance payments.

[10]

The
    father stopped making child support payments in July 2009 when he learned that
    Antoni had applied for ODSP. He brought a motion to change his support payments
    to reflect Antonis receipt of ODSP and obtained an order directing the Family
    Responsibility Office to hold any funds garnished from his employer in trust,
    pending the outcome of the litigation. As of the date of trial, the FRO held
    $11,007.57 in trust. The Ministry of Community and Social Services has asked
    the mother to advise it on the completion of this litigation of any support
    payments she has received and how they have been used since November 1, 2010.
    Pursuant to the ODSP Income Support Directives, the mother is required to file
    a form setting out whether child support payments are being given directly to
    Antoni or are used for his direct benefit.

B.

the child support guidelines

[11]

Section
    15.1 of the
Divorce Act
provides that a court may make an order
    requiring a spouse to pay for the support of a child of the marriage. Such an
    order must be made in accordance with the
Guidelines
.

[12]

Section
    3 of the
Guidelines

provides as follows:

3.
(1) Unless
    otherwise provided under these Guidelines, the amount of a child support order
    for children under the age of majority is

(
a
) the
    amount set out in the applicable table, according to the number of children
    under the age of majority to whom the order relates and the income of the
    spouse against whom the order is sought; and

(
b
) the
    amount, if any, determined under section 7.

(2) Unless otherwise provided under these Guidelines,
    where a child to whom a child support order relates is the age of majority or
    over, the amount of the child support order is

(
a
) the
    amount determined by applying these Guidelines as if the child were under the
    age of majority; or

(
b
) if
    the court considers that approach to be inappropriate, the amount that it
    considers appropriate, having regard to the condition, means, needs and other
    circumstances of the child and the financial ability of each spouse to
    contribute to the support of the child.

[13]

Section
    3(2)(a) prescribes the Table approach, unless the court considers it
    inappropriate, in which case the court is to apply the approach under s.
    3(2)(b).

C.

Positions of the parties

[14]

The
    fathers position is that the Table approach under s. 3(2)(a) of the
Guidelines
is inappropriate in the circumstances and the amount of child support should be
    determined based on a consideration of Antonis condition, means, needs and
    other circumstances under s. 3(2)(b). He says his support payments should be
    reduced dollar-for-dollar by Antonis ODSP benefits.

[15]

The
    mothers position is that the father should continue paying full Table support.
    Relying on this courts decision in
Ontario (Director of Disability Support
    Program) v. Ansell
, 2011 ONCA 309, 281 O.A.C. 224, she argues that the
    ODSP payments belong to Antoni, whereas the child support belongs to her.

D.

proceedings below

(1)

Trial Judge

[16]

The
    trial judge held that because Antoni was of the age of majority, s. 3(2) of the
Guidelines

applied. In determining that the Table approach
    under s. 3(2)(a) was not inappropriate, the trial judge took guidance from this
    courts observation in
Lewi v. Lewi

(2006), 80 O.R. (3d) 321 (C.A.),
    discussed below, that the amount generated by the Table is the presumptive
    amount and that the s. 3(2)(b) approach is the exception.

[17]

The
    trial judge observed that if s. 3(2)(b) were applied, it would be too
    simplistic an approach to simply deduct the ODSP payments from the amount
    otherwise payable as child support. He noted that in
Ansell
, Laskin
    J.A. listed certain features of child support that distinguish it from ODSP.
    Justice Laskin concluded at para. 29 that in the recipient mothers hands,
    child support payments were not the childs income and the child had no control
    over how they were spent. The recipient was entitled to use those payments to
    repair the roof, pay a hydro bill or buy a new television set.

[18]

Drawing
    on this distinction in
Ansell
, the trial judge stated at para. 21 that
    the ODSP payments clearly belong to Antoni, not to the mother:

Similar reasoning reflects the status of ODSP payments. They
    belong to Antoni. They do not belong to Ms. Senos. Ms. Senos has no legal
    entitlement to them, and no control over how they are spent. Antoni could use
    them to take a trip, buy a car, or buy liquor. In the meantime, Ms. Senos must
    maintain a home for Antoni and support him.

[19]

The
    trial judge concluded that the approach under s. 3(2)(a) was not inappropriate
    in this case. He noted the significant disparity between the parties
    respective incomes and said that there was no evidence that the mothers spouse
    used his income to support Antoni and the spouse was under no obligation to do
    so. He added that the fact that Antoni had his own spending money did not
    make the approach under s. 3(2)(a) inappropriate.

[20]

At
    para. 26, the trial judge contrasted the facts of the present case with cases
    such as
Lewi
, where a child is at university and living away from home
    for a good part of the year and is expected to contribute to the costs of his
    or her education:

In a case such as this, however, the child suffers from what
    is likely a permanent disability that will render him unemployable. He has
    access to some spending money of his own. Should that mean that Mr. Karcz
    should be relieved of all or part of the normal obligation he would otherwise
    have to support his child? Does that make the formula prescribed by s. 3(2)(a)
    inappropriate? In my view, the answer is no.

[21]

Finally,
    the trial judge reiterated that even if the s. 3(2)(b) approach were applied,
    it did not mean that the court would simply deduct the ODSP payments from the
    child support. In view of the disparity between the parties incomes, the
    support payments might be very close to or even equal to the Table amount.

[22]

In
    the result, the trial judge dismissed the fathers motion.

(2)

Divisional Court

[23]

In
    the Divisional Court, the majority and the dissenting judge differed about the
    impact of Antonis receipt of ODSP on the fathers child support payments and
    vice versa.

(a)

Majority (Pardu and Grace JJ.)

[24]

The
    majority dismissed the fathers appeal. Referring to
Lewi
, they noted
    that the Table amount is the presumptive rule for a child over the age of
    majority, unless the court considers that approach inappropriate. The onus of
    proof was on the father to establish that the
Guidelines
approach was
    inappropriate and the trial judges determination that the burden had not been
    discharged was a discretionary decision and was entitled to deference:
Hickey
    v. Hickey
, [1999] 2 S.C.R. 518.

[25]

The
    majority did not agree that the
ODSPA
creates a primary obligation on
    the state to attend to the basic needs of an adult child of the marriage when
    there is a parent financially capable of doing so. There was no basis to
    conclude that Antonis needs were less than the total of the support payments
    received by the mother and the portion of the ODSP payments that Antoni would
    receive after the Director of ODSP had considered the effect of the support
    payments on Antonis budget. Nor was there any basis for thinking the aggregate
    amount in this case was excessive or disproportionate. It would be an error to
    treat ODSP payments as equivalent to employment or investment income earned by an
    adult child. In this case, there had been no analysis of Antonis expenses and
    no evidence of the mothers earning capacity. Therefore, there was no basis on
    which to find the
Guidelines
approach inappropriate.

[26]

Moreover,
    the majority noted that, even if the father had established that the
    presumptive
Guidelines
approach was inappropriate, it was not likely
    that an assessment of Antonis condition, means, needs and other circumstances
    under s. 3(2)(b) would have resulted in a support payment markedly different
    from the table amount.

[27]

Referring
    to
Ansell
, the majority observed that if child support payments are
    used for the benefit of the adult child, for purposes that are not exempt for
    the purposes of calculating the childs income under the ODSP Regulation, they
    become relevant to the assessment of the childs budgetary requirements for the
    purpose of calculating the amount of the benefit to which the child is
    entitled. The majority noted that in this case, there is no evidence of exempt
    expenditures for disability to which support payments are dedicated (para.
    14).

[28]

Pardu
    J. concluded at paras. 20 and 24 that Antonis income support could be reduced
    to take into account the mothers application of child support payments for the
    benefit of the child. Consequently, it would not make sense to reduce child
    support to take into account Antonis receipt of income support:

Here, where the adult child resides with the support
    recipient, it would be reasonable in the absence of evidence to the contrary,
    to conclude that a significant portion of the child support is applied to the
    child's basic needs. These are the same expenses intended to be covered in part
    by ODSP payments, and on the authority of
Director (ODSP Program) v. Ansell
,
the Director would be entitled to take the amount of child support applied
    towards these needs into consideration in assessing the adult child's budgetary
    requirements.



It would be circular to reduce support payments because of
    ODSP payments received by the adult child when those ODSP payments would
    properly be reduced by the extent to which support payments are applied by the
    recipient parent for the benefit of non-exempt living expenses of the child.

(b)

Dissent (Kiteley J.)

[29]

Kiteley
    J. observed that ODSP is meant to reflect a commitment that the legal
    obligation on parents is not unlimited, and that as a disabled child reaches
    the age of majority, the government or the community becomes a stakeholder.

[30]

The
    payments for Antonis support made by the father to Antonis mother would not
    necessarily result in a reduction in Antonis ODSP payments.  He is entitled to
    ODSP in his own right, regardless of his fathers legal obligation to pay child
    support to his mother and regardless of whether his father meets that
    obligation.

[31]

The
Guidelines
were intended to represent a calculation of average
    expenditures for children that include items like board and lodging. Thus,
    there was overlap between the ODSP payments Antoni received for board and
    lodging and the support payments made to the mother. This overlap must be
    recognized in the analysis of whether the approach in s. 3(2)(a) is
    inappropriate. Inappropriate means unsuitable, not inadequate:
Francis v.
    Baker
, [1999] 3 S.C.R. 250, at para. 40. That leaves a wide discretion,
    but one that must be exercised on a principled basis. Receipt of ODSP means
    that the basis upon which the
Guidelines
were established no longer
    applies, and the approach under s. 3(2)(a) is unsuitable.

[32]

Concluding
    that the trial judge should have analyzed the evidence on the basis of the
    factors in s. 3(2)(b), Kiteley J. undertook her own analysis. She concluded
    that the appropriate amount of support pursuant to s. 3(2)(b) would be $186 per
    month, on the assumption that the table amount would be $1,000, less the ODSP income
    support of $814.

E.

The issueS

[33]

The
    first issue is whether the Divisional Court erred in deferring to the trial
    judges determination that the presumptive Table approach under s. 3(1)(a) of
    the
Guidelines
was not inappropriate in the circumstances of this
    case, which include Antonis receipt of ODSP.

[34]

If
    the Divisional Court erred in that regard, the second question is whether,
    having regard to Antonis condition, means, needs and other circumstances, and
    his parents respective capacities to contribute to his support, the fathers
    child support should have been reduced, and if so, by how much.

[35]

The
    mother raises a third issue concerning the trial judges calculation of the fathers
    income and the need for updated financial information.

F.

analysis

[36]

I
    approach these issues keeping in mind the discretionary nature of the trial
    judges determination of support. An appellate court should not interfere with a
    support order unless there has been an error in principle, a significant
    misapprehension of the evidence, or the award is clearly wrong:
Hickey
.
This approach reflects the fact-based and discretionary nature of the
    underlying inquiry and the importance of finality in family disputes. As
    expressed in
Hickey
, at para. 12:

There are strong reasons for the significant deference that
    must be given to trial judges in relation to support orders. This standard of
    appellate review recognizes that the discretion involved in making a support
    order is best exercised by the judge who has heard the parties directly. It
    avoids giving parties an incentive to appeal judgments and incur added expenses
    in the hope that the appeal court will have a different appreciation of the
    relevant factors and evidence. This approach promotes finality in family law
    litigation and recognizes the importance of the appreciation of the facts by
    the trial judge. Though an appeal court must intervene when there is a material
    error, a serious misapprehension of the evidence, or an error in law, it is not
    entitled to overturn a support order simply because it would have made a
    different decision or balanced the factors differently.

(1)

Child Support

[37]

In
Francis v. Baker
, at paras. 42-49, the Supreme Court discussed the
    circumstances in which the presumptive Table amount in the
Guidelines
can be displaced.  Section 3 of the
Guidelines

establishes a
    presumption in favour of the Table amount and the party seeking to deviate from
    that amount bears the onus of rebutting the presumption. That party is not
    obliged to call evidence and may simply choose to question the opposing partys
    evidence. However, the evidence must, in its entirety, be sufficient to raise a
    concern that the Table amount is inappropriate. There must be clear and
    compelling evidence for departing from the
Guidelines

amount. The
    factors to be considered in determining both whether the
Guidelines
approach is inappropriate and the appropriate level of support, are the
    conditions, means, needs and other circumstances of the child and the financial
    ability of both parents to contribute. Only after examining all the
    circumstances of the case should a court find the table amount to be
    inappropriate and craft a more suitable support award. To determine appropriateness,
    the Court must have sufficient evidence. Trial judges have the discretion to
    determine on a case-by-case basis whether a child expense budget is required
    and they have the power to order it. When the presumption in s. 3(2)(a) is
    rebutted, child support can then be set above or below the Table amount.

[38]

In
Lewi
, the majority observed that s. 3(2)(b) of the
Guidelines

only applies in the case of an adult child when the court determines that
    the Table
approach
is inappropriate. At paras. 127-129, Juriansz J.A.
    explained that the focus of the inquiry at this stage is on the
approach
rather than the amount:

Section 3(2) provides two ways of determining the amount of
    child support for a child of majority age. Under s. 3(2)(a), the amount of
    support for a child over the age of majority is calculated in exactly the same
    way as that for a minor child. The opening words of s. 3(2)(b) indicate that
    the amount determined by applying s. 3(2)(a) is the presumptive amount. Section
    3(2)(a), by adopting the same approach for children of majority age that
    applies to minor children, fosters predictability, consistency and efficiency
    in the resolution of disputes concerning the amount of support for children of
    majority age.

Section 3(2)(b) only comes into play "if the court
    considers that approach to be inappropriate". It is apparent that the word
    "approach" was chosen with care, as the word "amount" is
    used six times in the section...The words "that approach" refer to
    the technique dictated by s. 3(2)(a)namely applying the Guidelines "as if
    the child were under the age of majority". I will refer to that technique
    as the "standard Guidelines approach". Before resorting to its
    discretion under s. 3(2)(b), the court must conclude that it is inappropriate to
    apply the Guidelines as if the child who is actually of majority age were a
    minor.

The word "approach" makes it clear that the court
    cannot depart from the application of the Guidelines simply because it
    considers the "amount" determined under s. 3(2)(a),
i.e.
, the table amount or additional expenses under
    s. 7, to be inappropriate. It must be satisfied that the standard Guidelines
    approach is inappropriate; clearly an exceptional situation rather than the
    rule. This further promotes predictability, consistency and efficiency in
    family law litigation.

[39]

In
    considering whether the Table
approach
is appropriate, a number of
    courts
[2]
have made reference to the commentary of
James C. MacDonald,
    Q.C. and Ann C. Wilton,
Child Support Guidelines: Law and Practice
, 2nd ed., looseleaf (Toronto: Carswell, 2004) vol. 1, at p. 3-10:

The usual Guidelines approach is based on
    factors that normally apply to a child under the age of majority; that is the
    child resides with one or both parents, is not earning an income and is dependent
    on his or her parents. It is also based on the understanding that, though only
    the income of the person paying is used to calculate the amount payable, the
    other parent makes a significant contribution to the costs of that child's care
    because the child is residing with him or her.
The closer the circumstances
    of the child are to those upon which the usual Guidelines approach is based,
    the less likely it is that the usual Guidelines calculation will be
    inappropriate. The opposite is also true.
Children over the age of majority
    may reside away from home and earn a significant income. If a child is not
    residing at home, the nature of the contribution towards the child's expenses
    may be quite different. [Emphasis added].

[40]

Here,
    in determining whether Antonis circumstances, including his receipt of ODSP
    income support and his disability, make the
Guidelines

approach
    inappropriate, it is necessary to examine the nature and purpose of ODSP
    support and the impact of child support on ODSP payments.

(2)

ODSP

[41]

The
ODSPA

recognizes that government, communities, families and
    individuals share responsibility for providing support to persons with
    disabilities: s. 1(b). The intent of the program, as expressed in its
    Directives, is to provide supports necessary to enable individuals and families
    to live as independently as possible in the community and to lead more
    productive, dignified lives.

[42]

To
    these ends, the program provides income support, health benefits and employment
    supports to people with disabilities in financial need. The policy of the
ODSPA
,
    insofar as it applies to adult children with disabilities, reflects the
    principle expressed by the Supreme Court of Canada in
Krangle (Guardian ad
    litem of) v. Brisco
,
2002 SCC 9, [2002] 1 S.C.R. 205, at para. 40,

that society shares the responsibility of caring for adults with
    disabilities:

It is the policy of the Province of
    British Columbia to provide care for disabled adults. This policy is expressly
    stated in the
BC Benefits (Income Assistance) Act
, which confirms in the preamble that "British
    Columbians are committed to preserving a social safety net that is responsive
    to changing social and economic circumstances". When a disabled person
    becomes an adult, the burden of his or her care shifts from the parents to
    society as a whole, and it is accepted as fair and just that the continued
    burden of care of disabled adults should be spread over society generally. At
    one time, it may well have been the moral responsibility of parents to care for
    a disabled child for as long as they lived. But for some decades now, that
    moral responsibility has shifted to British Columbia society as a whole, as
    expressed by legislation enacted and preserved by successive governments. No
    evidence was presented for the proposition that it is shameful or wrong for
    parents to accept the benefits provided by the government which allow adult
    disabled children to be cared for under the social security network of the
    state. Great as social and medical progress may be, disability will inevitably
    strike some members of society, randomly and irrationally. It is not immoral
    for a society to say that when this happens, the burden will not be confined to
    the individual and his family, but will be shared by society as a whole.

[43]

I
    agree with the observation in
Briard v. Briard
, 2010 BCCA 431, at
    para. 18

that this statement does not mean that the entire burden of
    caring for disabled adult children has shifted to society. Chief Justice McLachlin
    acknowledged at para. 35 that, under the British Columbia
Family Relations
    Act
, R.S.B.C. 1996, c. 128, both parents must contribute equally when a
    child cannot leave home and remains a charge or burden on his or her
    parents.

[44]

The
    determination of the amount of
ODSPA
income support requires the
    calculation of a basic needs amount to assist with the costs of food,
    clothing, transportation and other needs, as well as a shelter allowance. Qualified
    recipients such as Antoni, whose parents provide them with housing and food,
    are considered to be in board and lodging and receive a benefit under that
    heading. Antonis present benefit is $814 per month.

[45]

In
    order to determine the amount of the benefit, a determination is made under O.
    Reg. 222/98 of the total budgetary requirements of the benefit unit. In this
    case, Antoni himself is regarded as a benefit unit. As described in the
    Regulation, the amount of income support is generally calculated by reducing
    the budgetary requirements in accordance with ss. 33.2 to 36.2 of the
    Regulation, where applicable,
[3]
and subtracting from that amount all income received by the unit, determined in
    accordance with ss. 37-43 of the Regulation. Income includes all payments of
    any nature paid to or on behalf of or for the benefit of every member of the
    benefit unit: s. 37(1).

[46]

According
    to the ODSP Directives, child support paid by a parent of an adult disabled
    child is not automatically considered income to the child so as to reduce the
    amount of his or her ODSP benefits. A determination must first be made whether
    the parent gives the support payments directly to the child, or uses the
    payments for the benefit of the child. An Income Support Directive issued in November
    2011 indicates that where the child support payments are not given directly to
    the child, or used for his or her benefit, the payments will be considered the
    recipient parents income and not the childs, and will not impact the childs ODSP
    entitlement. If the payments are given directly to the child, or used for his
    or her benefit, the payments are treated as income unless an income exemption
    applies.

[47]

Some
    forms of income may be wholly or partially exempt. For example, gifts or
    voluntary payments for disability-related items and services or for education
    and training incurred because of the disability will be exempt from inclusion in
    income. As well, the ODSP recipient may receive up to $6,000 in any 12 month
    period in the form of gifts or voluntary payments for any purpose from any
    source. The ODSP Directive concerning spousal and child support recognizes that
    child support that is given directly to the child or used for the childs
    benefit will be considered income and deducted dollar-for-dollar against the
    childs ODSP support, unless one of the exemptions applies.

[48]

Child
    support payments are exempt if they are paid pursuant to a court order and are
    applied to expenses for disability-related items, services, education or
    training and have been approved by the Director and not otherwise reimbursed.

[49]

As
    Antonis ODSP trustee, the mother is required to file an annual report stating
    how the ODSP income support has been spent on behalf of Antoni. She is also
    required to verify any amounts received for disability-related expenses pursuant
    to a court order.

(3)

The interaction between ODSP and child support:
Ansell

[50]

In
Ansell
, this court considered the obverse of the question now before
    us.

[51]

There,
    the Director had treated support payments made to the separated mother of an
    adult child with autism as income paid for or on behalf of or for the benefit
    of the child, with the result that her income exceeded her budget, making her
    ineligible for ODSP. This court upheld the decision of the Divisional Court,
    which had in turn upheld the Social Benefits Tribunal in reversing the
    Directors decision and finding that the child support paid to the mother was
    not to be treated as income of the child.

[52]

In
    that case there was evidence of how the mother used the child support payments.
    They were used primarily for special horse therapy for the child  therapy that
    specifically addressed her disability. Had the payments for those purposes been
    made directly by the father, or had he obtained a child support order that
    specifically stated his payments were to be used for the childs disability-related
    expenses, they would have been excluded in calculating the childs income for
    ODSP purposes.

[53]

As
    in this case, the adult child in
Ansell
was entitled to be assessed
    independently for ODSP, notwithstanding that she was living with a parent, and
    was entitled to receive a board and lodging allowance.

[54]

This
    court described the right of disabled adults to apply for income support in
    their own right as a fundamentally important element of ODSP, notwithstanding
    that they might live with a parent who receives child support: para 27.
    Treating the child support as income in the hands of the child would be
    inconsistent with the
ODSPA
s purpose of serving persons with
    disabilities who are in need of assistance.

[55]

Laskin
    J.A. observed at para. 29 that, in the recipient mothers hands, the child
    support payments were not the childs income. It was in this context that he
    made the observation referred to earlier, that the mother could use the child
    support as she pleased:

These features show that, in her
    mother's hands, the child support payments are not Jocelyn's income. Jocelyn
    has no legal entitlement to them, no ability to access them, and no control
    over how they are spent. Her mother could use the child support to repair the
    roof, pay a hydro bill or buy a new television set. Although these expenditures
    might be said to benefit Jocelyn indirectly, they are not the kind of
    expenditures that would be characterized as income attributable to Jocelyn
    under s. 37(1) of the Regulation. They are not payments to her or on her behalf
    or, at a practical level, even for her benefit.

[56]

He
    added that the Director should have focussed not on the fact that the mother
    was receiving child support, but
on what she did with the payments
.
    Because the payments were used for disability-related purposes, they fell
    within a statutory exemption and were not to be included in the childs income.

[57]

Laskin
    J.A. also noted that to treat the payments as income would undermine the
    objective of shared responsibility for the support of disabled adults and would
    unfairly discriminate against the children of separated parents. In an intact
    family, parental income that benefits a disabled child would not be considered
    in calculating that childs income for the purpose of ODSP entitlement. On the
    other hand, support payments in the hands of a single parent would qualify as
    income, resulting in discriminatory treatment.

(4)

Was the 3(2)(a) approach inappropriate?

[58]

In
    my respectful view, it was an error in principle to apply the Table approach.
    Antonis annual receipt of almost $10,000 in the form of ODSP income support
    was, in itself, sufficient to displace the one-size-fits-most approach in s.
    3(2)(a) of the
Guidelines
in favour of the tailor made approach in
    s. 3(2)(b). That approach would have regard to Antonis condition, means,
    needs and other circumstances. That approach is particularly appropriate in
    light of Antonis disability and societys commitment to share in his care.

[59]

Antonis
    eligibility for ODSP is based on a determination that his budgetary
    requirements exceed his income. Since he receives a payment in respect of board
    and lodging, it is reasonable to conclude that he established a budgetary
    requirement for this expense. As his mother and her spouse provide that board
    and lodging, it is also reasonable to conclude that some portion of the ODSP he
    receives is to enable him to make a contribution to the cost of his board and
    lodging.

[60]

I
    agree with Kiteley J. that the trial judge erred in finding the ODSP payments
    were Antonis to use as he wished  that he could use them to take a trip, buy
    a car or buy liquor and in describing the payments as Antonis spending money
    of his own: paras. 21 and 26. To treat the ODSP as discretionary spending
    money does not reflect the purpose of ODSP income support. The money is paid
    to the mother as Antonis trustee and she is required to report annually on how
    the money has been spent.

[61]

I
    also agree with Kiteley J.A. that there is at least the potential for overlap
    between the amounts paid by the father for child support and the amount
    received by Antoni as income support for board and lodging. As Kiteley J.
    observed, at para. 106:

As indicated in
Ansell

#1
,
the
Child Support Guidelines
were
    intended to represent a calculation of average expenditures for children that
    includes items otherwise categorized as "board and lodging". The
    overlap between the reason for ODSP income support and child support must be
    recognized in the analysis as to whether the approach in s. 3(2)(a) is
    inappropriate. It was an error of law to have concluded otherwise.

[62]

As
    the majority in the Divisional Court noted, it would be reasonable to conclude
    that a significant portion of child support would be intended to contribute to
    the childs needs for shelter, food and clothing and the multitude of other
    expenses associated with raising a child (para. 19).

[63]

I
    acknowledge the majoritys concern about circularity  that reducing child
    support to reflect the childs receipt of ODSP could be unfair because ODSP
    payments may themselves be reduced due to the recipient parents application of
    child support to the non-exempt living expenses of the child. However, a
    reduction of ODSP would only be triggered by an increase in the amount of child
    support which the mother gives directly to Antoni or uses for his benefit. Calculating
    support under s. 3(2)(b), which may or may not result in an amount different
    from the Table amount, will not necessarily affect the mothers use of the
    support payments or reduce the amount of the ODSP payments that Antoni receives.
    The impact, if any, of the change in support on ODSP is a matter that can be
    taken into account under the s. 3(2)(b) approach.

[64]

ODSP
    reflects societys 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 Antonis receipt of income
    support for his board and lodging make the Table approach inappropriate. These
    circumstances change the equation and call for a bespoke calculation based on Antonis
    unique condition, means, needs and other circumstances, including his receipt
    of ODSP, and the ability of his parents to contribute to his support.

[65]

It
    is useful to analogize to the cases involving adult children attending
    university, living away from home and earning an income, thereby contributing
    to their own education and support. There are numerous cases in which courts
    have concluded that these circumstances make the usual
Guidelines

approach
    inappropriate because the assumptions underlying the approach are not
    present.

The Saskatchewan Court of Appeal noted
    in
Geran v. Geran
, 2011 SKCA 55, 371 Sask. R. 233 that the fact that
    the child is earning a substantial income serves to displace one of the basic
    assumptions on which the Table amounts are based: namely, that children under
    the age of majority have no incomes of their own.
This
    operates in turn to throw the appropriateness of the table amount into doubt,
    which suggests in general that the amount is more appropriately determined
    pursuant to subsection 3(2)(b)
:
Geran v. Geran
, at para. 65.
    See also
Rebenchuk v. Rebenchuk
, 2007 MBCA 22, at paras. 29-32;
W.P.N.
    v. B.J.N.
, 2005 BCCA 7, at para. 42.

[66]

There
    have as well been a number of cases at the trial level in which ODSP and other
    forms of social assistance received by the child have been taken into account
    in determining the appropriate support:
Magne v. Magne

(1990),
    26 R.F.L. (3d) 364 (Man Q.B.);
Cossette v. Cossette
,
[2003]
    O.J. No. 4928 (S.C.);
Liscio v. Abram
, [2009] O.J. No. 3406 (S.C.)
;
Welsh v. Welsh

(1998), 79 O.T.C. 81 (Gen. Div.);
Blonski v.
    Blonski
,
2010 ONSC 2552. In
Henry v. Henry
, 2010 ONSC
    6990, the court found that the receipt of ODSP income by one of the children
    made the
Guidelines
approach not appropriate. See also
Vivian v.
    Courtney
, 2012 ONSC 6585.

[67]

The
    Table amount is predicated on the parents alone sharing responsibility for the financial
    support of their child. In the case of adult children with disabilities, the
ODSPA

commits society to sharing some responsibility for support. In my view,
    this makes the s. 3(2)(a) approach inappropriate, and s. 3(2)(b) should be
    applied to achieve an equitable balancing of responsibility between Antoni, his
    parents and society.

(5)

The s. 3(2)(b) analysis

[68]

As
    I have concluded that the father discharged the onus of showing the Table
    approach was inappropriate, it is necessary to determine an appropriate amount
    of child support under s. 3(2)(b).

[69]

The
    trial judge did not address this issue because he found the Table approach was
    not inappropriate. Having regard to the disparity in the parties incomes, it was
    unlikely that calculating the fathers support payments under s. 3(2)(b) would result
    in a reduction. The Divisional Court majority agreed at para. 42:

Even if the adult child's expenses were capable of
    determination and shared by the parents after deduction of the full amount of
    the ODSP benefits now being paid, there is no basis to conclude that this would
    result in a support payment markedly different from the Table amount. The onus
    lay upon the father to justify a departure from the Table approach and the
    evidence he assembled did not do so.

[70]

Justice
    Kiteley, on the other hand, would have drawn an adverse inference against the mother
    for failing to provide evidence of Antonis expenses and would have deducted
    the full amount of the ODSP payments from the Table amount, which she
    calculated at $1,000. She would have required the father to pay $186 per month,
    or about $2,200 per year, for Antonis support.

[71]

The
    difficulty in this case is that there is insufficient evidence of Antonis
    condition, means, needs and other circumstances to enable this court to make a
    fully-informed, tailor-made decision. The parties have failed to focus on these
    issues and have instead taken an all-or-nothing position, the fathers position
    being that he is entitled to the benefit of all the ODSP payments and the mothers
    position being that all of the child support belongs to her and not to Antoni.

[72]

There
    was no evidence to show how the mother uses the ODSP payments she receives as
    Antonis trustee  no evidence as to how much, if any, was paid to him or for
    his benefit or how much, if any, was used to reimburse her for the room and
    board she provided. Nor was there evidence of how she used the child support
    payments. There was no evidence of Antonis expenses or how he used any portion
    of the ODSP payments. Nor was there evidence to support the trial judges
    conclusion that Antoni was likely to be permanently unemployable. There was no
    evidence about his potential employability or his ability to supplement his
    income within the boundaries permitted by ODSP without affecting his support. Finally,
    and perhaps most significantly, there was no evidence of his disability-related
    needs, nor of the expenses incurred by the mother that were attributable to
    Antoni.

[73]

Antonis
    disability was not diagnosed until he was 18, many years after the original
    support order. The support, care and treatment of a 24 year-old with a serious
    psychiatric disability may require a greater financial contribution from his
    parents than the support of a young child or a teenager without a disability. As
    Pazaratz J. observed in
Blonski
, at para. 14, we should not lose
    sight of the fact that, by definition, ODSP payments are intended to assist
    people with special needs. Recipients of ODSP may have special or
    extraordinary expenses which go beyond what either the Table amount or income
    support may cover. It is possible, therefore, that the support calculation
    under s. 3(2)(b) will not be less than the Table amount, even after taking into
    account the receipt of ODSP.

[74]

While
    I am conscious that the parties have already invested a considerable amount in
    this dispute, the thrust of their evidence has been misdirected. It would not
    be fair to them, or more importantly to Antoni, for this court to attempt a
    back-of-the-envelope calculation of the amount of support under s. 3(2)(b). In
    such circumstances, it is appropriate for an appellate court to refer the
    matter to trial so the issue can be addressed on a complete record: see, for
    example,
Vivian v. Courtney
.


G.

Conclusion

[75]

For
    these reasons, I would allow the appeal and remit the matter for trial in order
    to determine the appropriate amount of support under s. 3(2)(b) of the
Guidelines
on a more complete record. The record will include updated financial
    information from both parties, a child support budget, and a personal budget
    for Antoni. These budgets will include a description of the mothers use of the
    ODSP payments on Antonis behalf, her use of the support payments she received
    from the father, and her proposed use of any additional payments she seeks.

[76]

At
    the parties request, costs may be addressed by written submissions, not
    exceeding five pages in length, together with a costs outline. The appellant
    shall file his submissions with the Registrar within 15 days and the respondent
    shall have 15 days within which to reply.

Released: June 12, 2014 (S.E.P.)

G.R.
    Strathy J.A.

I
    agree R.G. Juriansz J.A.

I
    agree S.E. Pepall J.A.





[1]
For the sake of convenience, I will generally refer to the appellant as the
    father and the respondent as the mother.



[2]
See, for example,
Canada v. Canada-Somers
, 2008 MBCA 59.



[3]
To address situations such as a child of a member of a benefit unit who is in
    shared custody, a member who is incarcerated or a member who is in hospital.


