Hello, my name is Jeffrey Hart and I am one of the lawyers here at Feldstein Family Law Group.

My topic for today is Ontario Disability Support Program payments and child support.

The Ontario Disability Support Program provides financial assistance to disabled adults, and disabled adult children. It is empowered to do so by the Ontario Disability Support Program Act (ODSPA), which came into force in 1997.

Support of adult children with disabilities is a vast and complicated area, be it for payment of basic child support, the duration of the support, or what sources of payment are available to the adult child with disabilities.

It has been determined by the Social Benefits Tribunal, Divisional Court and Court of Appeal that income in the context of eligibility for support under the ODSPA does not include child support.

In a 2010 Ontario case the Director of Ontario Disability Support Program sought to deny an adult child, a 21-year old woman with Asperger’s syndrome, which is a high functioning form of Autism, from receiving disability payments. The ODSP wished to deny her the payments on the basis that child support paid by her father to her mother should count as income for her.

All three levels of court who heard this case held that since the funds were provided to her mother, the daughter has no independent right to them or legal entitlement to them.

The child support funds the mother received from the father were used to pay for therapies and other disability related expenses. One of the indicia and common traits of a person with Asperger’s syndrome is the very high, almost obsessive, interest in a particular subject or thing. This young woman had an interest in horses. The mother purchased a horse for her daughter as a therapy animal. The daughter participated in horse therapy 16 times per month.

One of the primary purposes of the ODSPA is to recognize that support of the disabled is a shared responsibility between families and government. The young woman had applied in her own right for support when she was 19. She happened to live with her mother. Her parents were separated. The father had been ordered to pay child support to the mother back in 2005.

The Divisional Court stated that is was their view that “it would be inconsistent with the intent of the ODSPA to establish a partnership between government and families that would fairly contribute to children with disabilities, to attribute income to a child as a result of child support order.

Child support is intended to allow children who find themselves in a separated family to continue to live a standard consistent with each parent’s financial resources. It would be inconsistent and unfair to give an interpretation of “income” that allows children in an intact family to live at a standard consistent with both parents’ financial resources without any deduction for their ODSP but require a deduction of child support to a child from a separated family. The whole purpose of the support is to ensure the standard, as best as can be possible, remains the same for those children.”

The Court of Appeal agreed with this, and the young woman finally got her money.

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