The MacDonald & Partners Team, Working for You
ARTICLES
Gary Stuart Joseph, Partner and Firm
Chair
Reasons for Decision of J. Greer
Child Support / CPP Benefits
EXPLANATORY NOTE
Domestic Violence in Family Law Cases
Leave to appeal opinion
Tax Treatment of Payments of To and From Non Resident Spouses
von Czieslik v Ayuso
Challenging Arbitration Awards
and/or Removing the Arbitrator under the Arbitration Act, 1991
Child Support / CPP Benefits
A child’s sources of income are often relevant to child support claims. This issue most often arises when dealing with “adult children” however, the issue can arise in other circumstances as illustrated by the case summary found below.
Kaupp v. Kaupp, 2008 CarswellAlta 819 (Alta. Q.B.) is a decision of Justice Lee in the Alberta Court of the Queen's Bench which could finally put to rest the vexing question of whether Canada Pension Plan benefits which are paid to a child as a result of a parent's disability should be set off against child support payable by the disabled parent.
This issue has been canvassed widely across Canada, including by appellate courts. While there are some earlier cases to the contrary, the overwhelming weight of authority is clear that the fact that a support payor's child is receiving disability payments does not reduce the payor's child support obligation to that child. While the payment of the CPP child benefit arises on account of the disabled contributor's circumstances, those payments are not made by or on behalf of the contributor, but rather the benefit belongs to the children under the Canada Pension Plan Act. Thus, the Canada Pension Plan benefits cannot be seen as representing a windfall to the recipient parent, nor do they give rise to a right of the disabled parent to have them set off. We would have thought that by now this was a dead issue from the sheer volume of cases that have been decided this the same way.
Justice Lee canvassed the cases that have dealt with this issue. In particular, he pointed out that if there were to be a right of set off, it would have been set out either in the Canada Pension Plan Act or in the Child Support Guidelines. The benefit, quite simply, belongs to the child. This argument is over in Canada. There can be no set off from a child support obligation as a result of the recipient/child receiving a Canada Pension Plan benefit.