Background

In L.M.G. v. R.E.G. (2020), 41 R.F.L. (8th) 432, the court was tasked with determining whether the parties 20-year-old son qualified as a child of the marriage and thus eligible for child support. The son was receiving aid from the Ontario Disability Support Program (ODSP). The mother argued that this meant that he had a disability and thus qualified as a child of the marriage. The father argued that the son was on disability as a result of his alcohol and drug addictions, causing him an inability to work to support himself financially.

Analysis

The son was still living with the mother and she was covering his expenses because he could not support himself. Thus, she was seeking for the father to pay child support to assist with their sons expenses. The mother claimed that the government assistance her son was receiving was going directly to him and was not being put towards his expenses. The father submitted that the mother enabled the son to continue his lifestyle by covering his expenses, and he should not have to contribute to this enabling. The father argued that the son had chosen to lead a lifestyle filled with drugs and alcohol abuse and as a result could not hold down a job or pursue education. The father was encouraging the son to pursue education and was not disputing that if he was in school, the father would owe child support.

The court turned its mind to the definition of disability to determine whether the son qualified as a child of the marriage in this case. The mother's position was that the very receipt of ODSP confirmed that he suffered from a disability and that he was therefore, by definition a "child of the marriage". A child of the marriage is defined by the s. 2 of the Divorce Act as “a child the age of majority or over . . . but unable, by reason of illness or other cause, to withdraw from their charge or to obtain the necessaries of life." However, the mother was unable to produce any actual evidence of her claims that her son suffered from a mental illness. In making its determination, the court turned to the leading case of Rebenchuk v. Rebenchuk (2007), 35 R.F.L. (6th) 239, for the test for determining support for adult children. It is important to remember that the Applicant for child support bears the onus of proving that a child is still "a child of the marriage." The court concluded that the son’s receipt of ODSP did not automatically mean that he was suffering from a disability. Instead, the court turned to the evidence provided by both sides to make its determination pertaining to the proposed disability. The court was not persuaded by the evidence that the son possessed what fit the definition of disability such that he should qualify for support.

Additionally, even if the court had determined that the son was suffering from a mental illness, this does not automatically qualify someone as a “child of the marriage”. The judge pointed to the fact that there are many people who are highly functioning members of society who suffer from mental illnesses, and thus there is no automatic qualification by the nature of receiving ODSP, that one is a child of the marriage. This is still a case by case fact-finding and discretionary determination for a judge.

In this case, there was no evidence lead by the mother that convinced the court that the son was suffering from a mental illness that qualified him as a ‘child of the marriage’. Thus, the mother’s application for child support was dismissed.

Conclusion

It is important to note that there will be instances where an individual is receiving ODSP, or other support as a result of a mental illness or other disability, where the court is satisfied that they still qualify for support, however, this was not the case for this family.

The court determined that the son was no longer a "child of the marriage" as defined by the Divorce Act and that the mother was not entitled to child support or s. 7 benefits for him.

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