“In my respectful view, it was an error in principle to apply the Table approach. Antoni’s 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 Guidelinesin favour of the “tailor made” approach in s. 3(2)(b). That approach would have regard to Antoni’s “condition, means, needs and other circumstances”. That approach is particularly appropriate in light of Antoni’s disability and society’s commitment to share in his care.
Antoni’s 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.
I agree with Kiteley J. that the trial judge erred in finding the ODSP payments were Antoni’s 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 Antoni’s “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 Antoni’s trustee and she is required to report annually on how the money has been spent.
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 Guidelineswere 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.
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 “child’s needs for shelter, food and clothing and the multitude of other expenses associated with raising a child” (para. 19).
I acknowledge the majority’s concern about circularity – that reducing child support to reflect the child’s receipt of ODSP could be unfair because ODSP payments may themselves be reduced due to the recipient parent’s 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 mother’s 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.
ODSP reflects society’s 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 Antoni’s 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 Antoni’s unique condition, means, needs and other circumstances, including his receipt of ODSP, and the ability of his parents to contribute to his support.”