Back

Child Support - The Court's Decision in the Case of Kollmuss

August 27, 2021

British Columbia

,

Canada

Issue

Are payor parents obligated to continue paying child support after a child reaches the age of majority if the child receives disability income assistance?

Conclusion

Regarding the regulations respecting child support: "child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians. (Family Law Act)

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. (s. 3(2)) ( Federal Child Support Guidelines)

Important factors in determining whether an adult child is a child of the marriage are employability and the extent of the disability when determining whether that individual is able to obtain the necessaries of life. (H.M.R. v. D.G.R.)

In considering an appropriate amount or level of support, the court engages in the usual condition, means, needs and other circumstances analysis; however, in these cases, the reasonable ability of the child to contribute to those needs is also incorporated, or factored, into the analysis. Ultimately, a court will calculate a child’s reasonable costs and deduct the amount of the disability benefit in order to quantify the relevant shortfall. The court will then consider the parents’ incomes and the usual table amount. The child’s shortfall is then often divided in proportion to the parents’ respective incomes. (Kollmuss v. Kollmuss)

In C.L.C. v. B.T.C., the Court was asked to determine if a child who suffered a disability was to be considered a child of the marriage after the age of majority. Having determined that the child suffered from a severe cognitive impairment and required constant supervision, the Court found that he remained a child of the marriage despite being over the age of majority and was receiving disability income support. Verhoeven J. found that the appropriate formula for determining child support was to subtract the disability income support from the child's expenses, and apportion the remainder payable by his parents according to their means.

In P.S.C. v. S.C.C., the parties disagreed as to whether the child, aged 20, remained a child of the marriage. The child had suffered a psychotic break and was slowly recovering while continuing to live at home. The Court found that the child remained a child of the marriage. Using the formula from C.L.C. v. B.T.C., the Court determined that due to the relative financial positions of the parties, there was no longer any obligation by the father to pay child support.

In D.C.A. v R.D.M, the central issue was whether the respondent was obligated to to continue to support his daughter financially. The daughter suffered from a disability and received disability benefits, but was unable to work as she was attending university. The Court found that despite the receipt of disability benefits, other factors indicated the person was no longer a child of the marriage, including her ability to live independently. Weatherill J. dismissed the application.

Law

S. 146 of the Family Law Act, SBC 2011, c 25 defines "child":

146 In this Part and section 247 [regulations respecting child support]:
"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;

S. 3(2) of the Federal Child Support Guidelines, SOR/97-175 dictates the amount of child support to be determined for a child over the age of majority:

(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.

In H.M.R. v. D.G.R., 2010 BCSC 647 (CanLII), the dispute was whether the child of the parties remained a child of the marriage after the age of 19. The father brought an application for a review of his support obligations and a declaration that the child was no longer a child of the marriage. The mother sought a declaration that the child remain a child of the marriage. The Court found that because the child's disability prevented him from obtaining the necessities of life, the child remained a child of the marriage and the father's child support obligations continued:

[27] J.C.R. is now 19 years old. In his affidavit of November 23, 2009, Mr. R. deposed that he believed that J.C.R. continued to reside with Ms. R. but was currently working and not attending school. Ms. R. deposes that J.C.R. has reached the age of majority and is living semi-independently. She says that he suffers from bipolar disorder, oppositional defiant disorder and attention deficit disorder and has great difficulty maintaining any type of employment for more than a few weeks. She provides him with a cell phone, medication and dental coverage. When J.C.R. comes to her home she feeds him and sends him home with groceries. She says because of his mental health issues he is not able to provide for himself.

[28] In evidence was a psychiatric assessment report of April 22, 2008. It indicates that J.C.R. suffers from a major depressive disorder that is in partial remission. The report queries whether there is an underlying attention deficit disorder.

[29] Pursuant to the provisions of the Act, a child of the marriage includes a child who is over the age of majority but unable, by reason of illness, disability or other cause to withdraw from his parents' charge or obtain the necessities of life. The determination of whether a child is a "child of the marriage" is a question of fact and each case depends upon its own circumstances: Pound v. Pound, 1987 CanLII 2899 (BC CA), [1997] B.C.J. No. 109, 6 R.F.L. (3d) 231 (C.A.). A starting point for the analysis was set out by Master Joyce (as he then was) in Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 at 64:

Under the Divorce Act, 1985 there is no absolute duty nor is there any prima facie legal obligation upon a parent to support a child who is over the age of 16. Once the child reaches age 16 the onus is on the spouse seeking an order for support under s. 15 to satisfy the court that the child is unable to withdraw from the parents' charge or to obtain the necessaries of life [see Law v. Law (1986), 1986 CanLII 6291 (ON SC), 2 R.F.L. (3d) 458 at 462 (Ont.S.C.)].
[...]

[33] Important factors in determining whether an adult child is a child of the marriage are employability and the extent of the disability when determining whether that individual is able to obtain the necessaries of life. The concern in this case is the lack of updated medical evidence. That said, in both Andrews and Pound the court appears to have accepted the evidence of the child's disability without any expert confirmation. In this case there is some evidence, being the report of April 2008 of J.C.R.'s difficulties.

[34] In her Outline, Ms. R. states that J.C.R. has not been able to maintain employment or attend school full time and still requires financial assistance concerning medical costs, dental costs, food and clothing. She indicates that she believes the situation will resolve itself as J.C.R. matures and gains a better understanding of how to successfully manage his depression.

[35] Given all of the above circumstances, I find that J.C.R. is still a child of the marriage. He has not been unable to withdraw from his mother's charge. This does remain a somewhat fluid situation. Ms. R is hopeful that J.C.R. will soon be able to live independently. Unless the parties are not otherwise able to agree, I direct that there be a review of J.C.R.'s status as of August 3, 2011. If at that time Ms. R. continues to suggest that J.C.R. remains a child of the marriage, updated information concerning J.C.R.'s employability and medical condition should be put before the Court.

In C.L.C. v. B.T.C., 2012 BCSC 736 (CanLII), the Court was asked to determine if a child who suffered a disability was to be considered a child of the marriage after the age of majority. Having determined that the child suffered from a severe cognitive impairment and required constant supervision, the Court found that he remained a child of the marriage despite being over the age of majority and was receiving disability income support. Verhoeven J. found that the appropriate formula for determining child support was to subtract the disability income support from the child's expenses, and apportion the remainder payable by his parents according to their means:

[93] The mother’s evidence sets out that she has investigated other benefits that C. might be able to receive. Those benefits immediately available consist of such things as optical and dental care, and relief against MSP fees. The other benefits are not significant to the financial analysis currently.

[94] On the evidence, I conclude that the monthly expenses for C. are approximately $2,100. In my view this is a reasonable amount of expense, upon a consideration of all of the factors referred to in s. 3(2)(b) of the Guidelines. Of this, $940 is now received through the PWD benefits. Clearly, the amount of the PWD benefits does not approach the amount required for C.’s support. This leaves a monthly shortfall of $1,160 to be financed by C.’s parents.

[95] In my view it is appropriate that the shortfall in C.’s financial needs be financed by C.’s parents in proportion to their incomes. That is, 74% by the father, and 26% by the mother. On this basis, the appropriate amount of child support to be paid by the father is $858 per month, commencing June 1, 2012.

[96] As the father’s obligation is dependent upon the amount of C.’s expenses in relation to the incomes of the parties, I order that the information the father may request under s. 25(1) of the Guidelines will also include an annual budget regarding C.’s expenses and any government benefits or subsidies to which he may be entitled, and information as to C.’s income.

[97] The mother has been taking $750 per month from the amount that C. has been receiving as PWD benefits to cover expenses relating to him. The remaining amount she leaves with C. as his personal spending money. The father criticizes the $750 payments to the mother. However, the entirety of the PWD payment is being used to support C. How the mother chooses to allocate the PWD payment is not material to the analysis.

In P.S.C. v. S.C.C., 2020 BCPC 165 (CanLII), the parties disagreed as to whether the child, aged 20, remained a child of the marriage. The child had suffered a psychotic break and was slowly recovering while continuing to live at home. The Court found that the child remained a child of the marriage. Using the formula from C.L.C. v. B.T.C., 2012 BCSC 736 (CanLII), the Court determined that due to the relative financial positions of the parties, there was no longer any obligation by the father to pay child support:

Analysis

Is D.P.C. a “child of the marriage” under s. 2(1)(b) of the Divorce Act?


[33] Section 2(1) of the Divorce Act defines a “child of the marriage” as:

child of the marriage means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.


[34] I have determined that D.P.C. remains a child of the marriage as a result of his mental health challenges and continued efforts to complete his grade 12 diploma.
[...]

[39] What distinguishes this case however is that D.P.C. is not currently in receipt of PWD benefits. It is clear that he could certainly make an application for PWD benefits and has, in fact, been encouraged to do so both by Mr. C. and his attending psychiatrist. Mr. C. stated that he would gladly assist his son in making such application as he sees it as a positive step toward D.P.C.’s independence. I have therefore considered the ability to apply for PWD benefits as analogous to the receipt of PWD benefits in the circumstances of this case. The fact that he is currently not in receipt of PWD benefits and has not applied should not preclude an analysis under s. 3(2)(b).

[40] In terms of a methodology to determine the appropriate amount of support where the Guidelines amount is inappropriate, the Court in C.L.C.calculated the adult child’s basic monthly expenses, deducted the disability benefits from this total, and ordered the parties to divide the remainder in proportion to their incomes. This approach was followed in Willms v. Willms, [2019] B.C.J. No. 2161.

[41] In this case, the proposed budget of $2,475 per month is of limited assistance as D.P.C. does not live on his own and has no plans to do so. When he does choose to move from Ms. C.’s home, he may be able to live in some form of assisted or supportive housing, if he makes an application for government assistance. His current actual expenses are modest as he contributes approximately $140 per month to Ms. C.’s household and the remainder of his earnings go towards his savings.

[42] Based upon Ms. C.’s Financial Statement, D.P.C.’s share of her basic monthly budget including the mortgage, property taxes, insurance, utilities, food and household supplies totals $1,722 per month. This is easily covered by D.P.C.’s earnings of $1,500 per month and PWD benefits of $1,183.

[43] Ms. C.’s proposed future budget for D.P.C. included a further $1,200 to $2,400 per year for psychotherapy being 10 to 20 sessions. Mr. C. suggests far less expensive community counselling. Ms. C.’s Financial Statement included Blue Cross statements which show D.P.C.’s counselling costs being covered by her extended benefits plan. Should D.P.C. receive PWD benefits, some of these expenses may well be covered. I therefore do not consider these to be current special and extraordinary expenses.

[44] As a result, I find that child support is no longer payable for D.P.C. I order that Mr. C.’s obligation to pay child support terminates as of October 1, 2020 to allow for some transitional child support while Mr. C. assists D.P.C. in applying for PWD benefits. If, for any reason, D.P.C.’s application for disability benefits is not approved, and he is found ineligible after submitting his application, then either party may be at liberty to seek a review of child support.

In Kollmuss v. Kollmuss, 2015 BCSC 1101 (CanLII), the central issue was whether the applicant father should have continued to make the child support payments he was making. It was accepted that the child would remain a child of the marriage permanently due to a disability. In determining the appropriate amount of support payable in this particular family, the Court examined five important precedent cases. The formula of calculating expenses and subtracting the disability income, and then apportioning the shortfall to each parent as to their ability to provide, was common across the precedents:

[27] The cases decided under s. 3(2) generally fall into two categories: dependent adult children attending post-secondary schools and dependent adult children in receipt of some form of disability benefit. While the parties provided me with some out-of-province authorities, as well as authorities relating to adult children attending university, I have focused my analysis on the disability cases that have been decided in British Columbia. In my view, these authorities establish an appropriate and consistent framework for the application of s. 3(2)(b) in this province. Five cases are relevant to this discussion.

[28] In Briard v. Briard, 2010 BCCA 431 at paras. 19-24, a case relied upon by Mr. Kollmuss, the court upheld the trial judge’s approach. At trial, the judge had first accepted that the application of the usual table amounts was rendered inappropriate due to the child’s receipt of PWD benefits, and had then entered into a consideration of whether the child could obtain the necessaries of life based on a consideration of her income, costs of living and further expenses. In the second part of this analysis, the trial judge noted the fact that the lack of a detailed budget “somewhat hampered” the analysis; at para. 23. After concluding that the child could not obtain the necessaries of life on her own, the trial judge turned to a consideration of her parents’ respective incomes, the default table amount and the fact that her mother was her primary caregiver. The trial court concluded that the mother’s proposed amount, which was $78 less than the Guidelines amount, was appropriate; at para. 25.

[29] In C.L.C. v. B.T.C., 2012 BCSC 736 at para. 75, a further decision relied upon by Mr. Kollmuss, the court again accepted that the child’s receipt of PWD benefits could engage s. 3(2)(b), as per the third and fourth steps of the Wesemann approach. In considering whether the table amount was inappropriate, the court posited the following inquiry:

[62] The question, then, is simply whether the addition of the PWD benefits of approximately $940 per month renders the underage approach to determination of child support inappropriate. In my view this question turns on the relative financial significance of the PWD benefits in the circumstances of this case.

[30] After considering the income of both parents, the usual table amount, the custodial parent’s lost child tax benefit, and the custodial parent’s claimed costs for household and additional expenses, the court concluded that the PWD benefits rendered the usual table amount inappropriate:

[75] In my view, even assuming that the PWD benefits provide a net additional benefit that is in the range of $600 per month, in all of the circumstances of the case, the underage approach to determination of child support is inappropriate. The addition of $600 in additional government assistance is significant enough in the context of C.'s support expenses and the finances of the parents that it ought to be taken into account.

[31] The court then turned to the assessment of the appropriate amount based on the child’s financial needs, noting at para. 80 that “[w]hile the mother's evidence concerning C.'s financial needs could have been more detailed, I am satisfied that I have sufficient information to deal with the matter on the merits.”

[32] The court’s approach to determining the appropriate amount involved calculating the child’s monthly expenses, deducting the PWD benefit amount, and then dividing the shortfall between her parents in proportion to their incomes:

[94] On the evidence, I conclude that the monthly expenses for C. are approximately $2,100. In my view this is a reasonable amount of expense, upon a consideration of all of the factors referred to in s. 3(2)(b) of the Guidelines. Of this, $940 is now received through the PWD benefits. Clearly, the amount of the PWD benefits does not approach the amount required for C.’s support. This leaves a monthly shortfall of $1,160 to be financed by C.’s parents.
[95] In my view it is appropriate that the shortfall in C.’s financial needs be financed by C.’s parents in proportion to their incomes. That is, 74% by the father, and 26% by the mother. On this basis, the appropriate amount of child support to be paid by the father is $858 per month, commencing June 1, 2012.


[33] I observe that the child in the C.L.C. case required less day-to-day care than Curtis requires from his mother. I also observe that the court implemented a form of reporting requirement:

[96] As the father's obligation is dependent upon the amount of C.'s expenses in relation to the incomes of the parties, I order that the information the father may request under s. 25(1) of the Guidelines will also include an annual budget regarding C.'s expenses and any government benefits or subsidies to which he may be entitled, and information as to C.'s income.

[34] Poehlke v. Poehlke, 2012 BCSC 1029 at paras. 48-51, considered the impact of disability payments on a default table amount of $1,034. The court, once again, accepted that the receipt of the PWD benefits engaged s. 3(2)(b) of the Guidelines, though a calculation of an appropriate amount was not necessary in this case:

[51] Just as the court will take into account the income-earning ability of a child over the age of majority who, for instance, is attending university, so it is appropriate in the circumstances of this case to take into account the income earned by BP as an adult person with disabilities in the amount of $906 per month, together with the expenses that are covered. With this in mind, I consider that a reduction from the Guideline amount to $750 per month is not unreasonable. The parties and their counsel evidently agreed in November. It is most unfortunate that one should seek to renege from that agreement by mischaracterizing it.

[35] In Ross v. Ross, 2004 BCCA 131 at para. 25, the court upheld the trial decision to deviate from the Guidelines in the case of an adult child who was both receiving a grant and held a number of other assets in his name.

[36] In Carten v. Carten, 2015 BCSC 19, the court addressed circumstances where the custodial parent applied, pursuant to s. 3(2)(b), for a payment in addition to the table amounts. In holding that the usual table approach was inappropriate, the court noted not only the PWD benefit, but also the child’s increased costs as a result of his need for assistance with activities of daily living and round-the-clock care and supervision:

[21] Both parents have modest incomes, and Patrick's PWD benefit is in this context a significant income: C.L.C. v. B.T.C., 2012 BCSC 736, at paras. 55-75. Moreover, because of his disability, Patrick has higher expenses than most children. His circumstances are far removed from those upon which the usual Guidelinesapproach is based.

[37] Again, the court first considered the child’s expenses and the amount of his disability payment and then the ability of each parent to contribute, concluding:

[31] The proper resolution under s. 3(2)(b) of the Guidelines is, in this case, for the parents to absorb their child's monthly expense shortfall in proportion to their respective incomes; this has been the approach adopted by this Court in like cases: see, for instance, Hickman v. Hickman, 2003 BCSC 116, and C.L.C. v. B.T.C., 2012 BCSC 736. Accordingly, using my findings as to the parents' incomes, Mr. Carten's share of the $1639.61 shortfall is 45%, say $740. The previous orders regarding child support for Patrick are varied such that Mr. Carten is obligated to pay monthly child support of $740 effective 1 January 2015.

[38] In summary, these five cases establish that the receipt of PWD benefits is often considered sufficient to trigger a s. 3(2)(b) analysis. This will particularly be so where, as in this case, the incomes of the parties are modest. Further, these cases apply the Wesemann approach: the court must ask itself (1) whether the claimant has proven that the usual Guidelines approach is inappropriate, and (2), if not, what amount is 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”.

[39] The party requesting the change has the onus of establishing that the usual Guidelines approach is inappropriate. It may be inappropriate where the child’s circumstances differ from the circumstances upon which the usual Guidelines approach is based. Some disability benefit cases have held that the receipt of the benefit itself renders the usual Guidelines approach inappropriate; Briard at para. 22; Poehlke at para. 51; Ross at para. 25. Others engage in an initial consideration of the financial significance of the benefit amount in the context of the case; C.L.C. at para. 62; Carten at para. 21.

[40] In considering an appropriate amount or level of support, the court engages in the usual condition, means, needs and other circumstances analysis; however, in these cases, the reasonable ability of the child to contribute to those needs is also incorporated, or factored, into the analysis. Ultimately, a court will calculate a child’s reasonable costs and deduct the amount of the disability benefit in order to quantify the relevant shortfall. The court will then consider the parents’ incomes and the usual table amount. The child’s shortfall is then often divided in proportion to the parents’ respective incomes.

In D.C.A. v R.D.M, 2021 BCSC 385 (CanLII), the central issue was whether the respondent was obligated to to continue to support his daughter financially. The daughter suffered from a disability and received disability benefits, but was unable to work as she was attending university. The Court found that despite the receipt of disability benefits, other factors indicated the person was no longer a child of the marriage, including her ability to live independently. Weatherill J. dismissed the application:

[53] The question for determination, therefore, is whether E. continues to be a Child of the Marriage after December 31, 2020. This means she must fit within the s. 2(1) Divorce Act definition of “child of the marriage” or the s. 146 FLA definition of “child” as follows:

[s. 2(1) Divorce Act] child of the marriage means a child of two spouses or former spouses who, at the material time,
. . . .
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life
[
s.146 FLA] “child” includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdr
Alexsei publishing date:
34