Do Child Support Obligations Cease When an Adult Child is in Receipt of AISH Payments?

What happens when your adult child starts receiving AISH payments? Are you still obligated to make child support payments? In Werenka v Werenka, 2021 ABQB 789, the parties had been separated for 12 years and were parents to two children. The father had been paying child support in the amount of $2,000 per month as agreed to by the parties in their separation agreement and divorce judgment. However, in October 2019, the eldest son began receiving AISH payments of $1,685 monthly. Both parties agreed that their son, although almost 20, will likely always be a “child of the marriage” as he has non-verbal Autism. Nonetheless, the father argued that the onset of AISH benefits affected his child-support obligations.

Pursuant to the Divorce Act, a “child of the marriage” can include a child over the age of majority who is unable, by reason of illness, disability or other cause, to obtain the necessaries of life. Furthermore, the Federal Child Support Guidelines establishes that the Court can deviate from the Guideline support payments for a child who is over the age of majority, if the Court determines it to be inappropriate having regard for means, needs and other circumstances of the child. Therefore, the father argued that in cases of an adult child, the resources of the child may be considered for the purposes of calculating child support payments.

In canvassing case law, the Court found several Alberta decisions to confirm this approach. The case law established that AISH payments have been considered to reduce and even eliminate child support obligations altogether. To make such a determination, the Courts look to whether there is a shortfall between the child’s needs and the benefits provided. Therefore, AISH payments may not be sufficient to eliminate child support obligations if they are inadequate to completely support the adult child. The Court found further support in case law to determine that when a child is under the age of majority, the parents, alone, share responsibility for the financial support of the child. However, when a child reaches the age of majority, society shares the responsibility of caring for disabled adults. Therefore, the Court concluded that the AISH benefits are a means of the adult child and should be considered when deviating from the Guidelines to calculate child support payments.

In analyzing the expenses of the child as prepared by the mother, the Court concluded that the AISH payments of $1,685 were sufficient to cover the expenses of the child. As such, the father’s child support payments were cut in half to $1,000 to cover the care of the younger son only.

If you have any questions about child support obligations, the family lawyers at Vogel LLP are happy to assist in providing you the information you need to make the best decision for your family.