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MAINTENANCE AND SUPPORT - Child support - Special or extraordinary expenses - Health

Tuesday, May 19, 2020 @ 9:25 AM  


Lexis Advance® Quicklaw®
Appeal by the mother from a child support award in respect of an adult disabled child. The parties divorced several years earlier. Their only child, age 21, suffered from multiple disabilities, including cerebral palsy. The child required assistance with personal care on a full-time basis. The mother was able to access respite services at no cost through a provincial government program. The child received disability benefits from age 18 onward. The province further offered subsidized housing and payment for medications and related care needs. The father had a history of non-compliance with financial disclosure requirements. The mother brought a motion for variation. The motion judge imputed the father a specified annual income from 2016 onward and ordered monthly payment of table support with additional amounts attributable to arrears of support and special expenses. The judge declined to award a s. 7 order for expenses associated with the purchase of a wheelchair accessible van. The mother appealed on the basis that table support was subject to clawback by virtue of her social assistance benefits, whereas a s. 7 award would not have been deducted.

HELD: Appeal dismissed. The father's income was such that it would have been unreasonable to order both the table amount of child support, as well as a further amount to be paid under s. 7. The judge chose to order the table amount because the child’s disability benefits were being applied to the van expenses and the other required expenses for which there was a monthly shortfall. There was no evidence on how the Province would treat an order specifically allocating payments to a particular expense. The judge’s decision to proceed in the fashion she did was consistent with jurisprudence, correct in law and was an exercise of discretion that generally attracted deference.

C.M. v. G.M., [2020] N.B.J. No. 68, New Brunswick Court of Appeal, B.V. Green, B.L. Baird and R.T. French JJ.A., March 26, 2020. Digest No. TLD-May182020002