IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Ms. D. and Mr. T. are the parents of two children: J., age 21, and M., age 22.  M. is a self-supporting adult.  Mr. T. concedes that: (i) by reason of his disabilities, J. continues to be a “child”, as defined by s. 146 of the Family Law Act SBC 2011, c 25; and (ii) Mr. T. continues to owe a child support obligation in respect of him.  The issue is the quantum of child support which should be ordered.

[2]           Because of the severity of his disabilities, J. requires constant supervision, which is presently provided to him by Ms. D.  In determining the appropriate quantum of child support, it is necessary to consider whether (and if so, how) to take into account the value of the services now provided to J. by his mother.

[3]           J. suffers from attention deficit hyperactivity disorder, anxiety, obsessive-compulsive disorder and limited intellect.  His full-scale intellectual ability falls into the first percentile (i.e. 99% of the population score better than he does on that scale).

[4]           Ms. D. reports that J. is unable to cook for himself.  He can perform some simple household chores, like sweeping and vacuuming, but no more complex tasks.  He is easily frustrated when presented with a task beyond his skills, and presents as angry when that occurs, although Ms. D. believes that he is more fearful than angry.  He is socially maladroit, and tends to avoid social contacts.  Ms. D. is working with him to persuade him to make use of public transit, but progress on that front is slow.

[5]           J. is incapable of managing his financial affairs.  He has made a representation agreement (under the Representation Act, RSBC 1996, c 405), under the authority of which Ms. D. manages his affairs.

[6]           J. graduated high school, and was employed as a part-time worker at Tim Horton’s, but was dismissed from that employment and has not since sought employment.

[7]           J.’s social worker believes that he would benefit from counselling, and that, with the assistance of counselling, might someday be employable.  However, there is no government funding for the recommended counselling programs.  The estimated cost of counselling is about $400 per month.  The evidence does not provide a basis for an inference as to the probability that the counselling would have the desired effect, nor as to the duration of counselling necessary for that purpose.

[8]           J. now receives Persons With Disability (“PWD”) Benefits from the government in the amount of $1046 per month, and also a free pass on public transit.  He is not now able to use public transit because of his disabilities, but it is hoped that he will do so in future.

[9]           Ms. D. presents a budget for J. of $1500 per month, comprising the following items:

[10]        The budget is deficient in one respect.  It makes no allowance for the cost of full-time supervision and care for J.  Ms. D. says, and I accept, that he cannot be left unsupervised.  Ms. D. is therefore faced with a choice.  She can provide the requisite supervision herself, as she has been doing.  If she does that, she could not return to work even if her own health were to permit.  Or, she can return to work and hire a caregiver for J.  I think it likely that, if Ms. D. were otherwise able to work, it would be possible for J. to attend some form of adult day care during her working hours, but there is no evidence of the cost of such programs.

[11]        Ms. D. has a diploma in criminal and social justice, and has completed approximately 75% of the university courses necessary to qualify her for an undergraduate degree in psychology.  However, she has a criminal record which precludes her from working in the justice system.

[12]        Ms. D. has worked as a landscaper and a cleaner.  However, she suffers from arthritis, which prevents her from working except in the summer months.  As a result, Ms. D. has not worked since July, 2017.  She receives PWD benefits of $14,225 annually.

[13]        Ms. D. made an assignment in bankruptcy on May 1, 2015, and received her discharge from bankruptcy on February 2, 2016.

[14]        Mr. T. works in a metal recycling business in Victoria, BC.  Counsel agree that his 2019 income is likely to be of the order of $41,000.  He lives with his wife in a house which they own in Victoria, BC.  The approximate value of the house is $555,000, and the amount owing on their mortgage is approximately $201,000.  His wife is also employed, and earns approximately $42,000 annually.

[15]        Mr. T. and his wife have a daughter, now age 14, who suffers from a chromosomal deficiency, as a result which she suffers intellectual impairment and mild autism.  Her treating physician opines that she will never be able to live independently or to care for herself.

[16]        Section 3(1) of the Federal Child Support Guidelines SOR/97-175 provides:

[17]        I reviewed the authorities considering this provision in AMP v. TWP [2017] BCJ No. 2342; 2017 BCPC 335.  I am advised by counsel in that case that an appeal of that decision to the Supreme Court of British Columbia was dismissed, but that no written reasons were given on the appeal.  None of the authorities referred to by counsel in this case cause me to alter the views which I expressed in AMP.

[18]        I think that the correct approach in cases of this kind is to:

[19]        In AMP at paragraphs 22 - 25, I took into account the fair value of the care and supervision services provided by the custodial parent (the mother).  I think that the same rationale applies in this case, and the fair value of Ms. D.’s care-giving services should be added to the monthly budget for J.

[20]        One might value Ms. D.’s caregiving services in either of two ways: (i) lost opportunity cost; i.e. the net income which Ms. D. would be able to earn if she were not caring for J. full-time; or (ii) fair market value; i.e. the cost of those services if purchased from an arms-length caregiver.  I do not think it possible to articulate a rule which would govern that question in all cases.  I think that each case must be decided by reference to its own particular circumstances.  In this case: (i) Ms. D.’s opportunity cost is zero; and (ii) there is no evidence of the market value of the services which she provides.  In those circumstances, I think that a modest allowance of $500 per month is appropriate.  If that allowance is added to the budget figure of $1500, the total budget is $2000.

[21]        The items for counselling and educational expenses included in J.’s budget are properly to be considered as “special & extraordinary expenses”.  If those are excised from the budget, the total monthly budget is $1500.

[22]        The Guideline figure for one child and a payor income of $41,000 annually is $386 per month.  The difference between J.’s income ($1046) and the budget total ($1500) is $454.  A child support obligation of $386 per month is a significant financial burden for a family with a disabled child and an income of $83,000 annually, but is not beyond the means of Mr. T. and his wife.  Balancing those two factors, I cannot say that an award of child support at the rate set out in the tables to the Guidelines would be “inappropriate”.  For that reason, section 3(1)(a) of the Guidelines applies, and the appropriate award is the Guideline figure of $386 monthly.

[23]        Like any other parent, Mr. T. is also responsible for his share of “special & extraordinary expenses”, to be apportioned between the parents in proportion to their incomes.  Mr. T.’s annual income is approximately $41,000 and Ms. D.’s approximately $14,000.  Mr. T. should pay 75% of “special & extraordinary expenses” and Ms. D. 25% of them.

[24]        Mr. T.’s child support obligation is fixed at $386 per month, payable on the first day of each month, commencing March 1, 2019 and continuing until further order of the court.

[25]        Ms. D. must prepare and deliver to Mr. T., on or before March 1 of each year, a budget for J.’s special and extraordinary expenses.  Mr. T. must respond by March 15 of each year, either accepting the budget or proposing changes.  If the parties are unable to agree on the budget, either party may apply to the court to resolve the dispute.

[26]        Once the budget is settled, by agreement or court order, Ms. D. must submit to Mr. T. by the 15^th of each month, a list of expenditures incurred (within the budgeted limits) during the preceding month with copies of supporting invoices and receipts, and Mr. T. must reimburse Ms. D. for 75% of those expenditures by the first day of the month following.

[27]        Circumstances may change over time.  To allow for that contingency: