YLaw Wins Groundbreaking Victory for Child Support for Child with Disabilities

After pouring significant time and dedication into this Supreme Court of BC case, Leena Yousefi and Ari Wormeli were the successful counsel to a vulnerable mother who was the caretaker of a child with disabilities. Our lawyers at YLaw were able to win over $225,000 of support for the mother who sacrificed her career to take care of her child- a truly noble effort.

W. v. F. highlights the distinct and complex legal challenges that families with disabled or ill adult children face, and clarifies how retroactive spousal support works when circumstances change over time.

Why was the Adult Child with Disabilities Involved in the Case?

After 14 years and 3 kids, a couple finalized their divorce in 2012.

Of their three children, the oldest, child B, had severe cerebral palsy which required round-the-clock care. Even though child B was 25 years old at the time of the hearing, he was still considered a child of the marriage due to his disability. The second child was 20 and was no longer eligible for financial support due to her age. The last child was 18 years old and remained dependent and eligible for support.

At the time of separation, the father owned a printing business, which was originally valued at $90,000, and grew to over $2,000,000 by the time of the 2012 divorce.

In 2012, the father ended up keeping the business and had paid the mother $700,000. The mother kept the home and RRSPs. She also received $4,000 a month for child support. In total, the mother received $377,000 and the support was supposed to end after a specified amount had been paid out.

Why was the Issue Brought Back to Court?

Originally, child B was to start a day program, where the care for the child with disabilities would be outsourced. Unfortunately, the day program did not end up working, so the mother continued to care for her son. She was unable to get a formal job and make an income to support the two of them. She filed a new case to get retroactive child support from 2013.

In 2014, the father was making significantly more than what the original $4,000 of child support was based on. He argued that because child B gets $1,000 in government benefits that he shouldn’t have to pay according to his high income.

What was the Outcome in this Case for the Child with Disabilities?

The judge agreed with Leena Yousefi and Ari Wormeli that the father should pay the difference between what he paid and what he should have paid from 2014.

They successfully argued that since the originally planned care for Child B had fallen and the mother could not work, the father was required to pay a one-time spousal support of $225,000 to the mother. The judge ruled that he also had to pay their youngest child’s expenses from university.

What Circumstances are you Able to Reopen a Case on Child Support?

This case clarifies under which circumstances are you able to re-open a case on child and spousal support even after your divorce has finalized and/or you have an agreement.

You may not be able re-open a case on spousal support just because your ex-spouse’s income has increased after agreeing to a specific income, but you are able to re-open it when there has been a material change in the circumstances that the original agreement did not contemplate. This ensures that when a care plan fails, the financial consequences are shared rather than falling entirely on the shoulders of the parent who provides care.

The outcome of this case highlights that it is the responsibility of spouses continuously disclose if their income has changed significantly. If your income jumps massively, the moral and legal obligation to pay the correct amount falls on your shoulders. If not, then the other party is entitled to retroactive child support payments based on the new income.

The primary responsibility for a child falls on the parents- not the government. In this case, the father attempted to argue that the government benefits that the child receives should be deducted from the amount that he should pay, but our team said that the benefits received are insignificant in comparison to the amount of care that is needed for the child with disabilities, which the judge agreed with.

If you are dealing with a case which involves dependent adult children, or complex spousal support agreements, please reach out or call us at 604-974-9529 to get in touch with one of the lawyers on our team. We are equipped with the knowledge and skills to help protect you and your child.