Special Needs Child Support in Alberta: A Complete Legal Guide

Understanding Support Obligations for Special Needs Children

When parents separate, ensuring adequate support for a special needs child requires careful planning that goes beyond standard child support calculations. Children with disabilities often have needs that continue well into adulthood, require expensive therapies and interventions, and may never achieve full financial independence.

Alberta's family law framework recognizes these realities. Both federal legislation (the Divorce Act and Federal Child Support Guidelines) and provincial legislation (the Family Law Act) provide mechanisms for extended support obligations and sharing of extraordinary expenses that can address the unique needs of special needs children.

Our Edmonton family lawyers have experience helping families navigate these complex issues. We understand that every special needs child is different, and we work to craft support arrangements that address your child's specific needs both now and in the future.

Child Support for Adult Disabled Children

One of the most significant differences between supporting a special needs child and a neurotypical child is that support obligations may continue indefinitely. Under both federal and Alberta provincial law, parents may be required to support adult children who cannot withdraw from their charge due to illness, disability, or other cause.

Section 3(2)(b) of the Federal Child Support Guidelines

Section 3(2)(b) of the Federal Child Support Guidelines states that a child who is the age of majority or over may be considered a "child" for support purposes if they are "unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life."

This provision means there is no automatic termination of child support at age 18 or upon completion of education for children with disabilities. Support continues for as long as the child remains unable to support themselves due to their disability.

Alberta's Family Law Act

Section 56 of Alberta's Family Law Act contains a similar provision for unmarried parents and cases not involving divorce. A "child" includes a person 18 years of age or older who is unable, because of illness, disability, or other cause, to withdraw from the charge of his or her parents or to obtain the necessaries of life.

What Courts Consider

When determining whether support should continue for an adult child with a disability, courts consider:

• The nature and severity of the disability
• Whether the disability prevents the child from becoming financially self-sufficient
• The child's ability to work, even in a limited capacity
• Whether the child lives independently or requires parental support for housing and daily care
• The child's income from any source, including government benefits
• The child's reasonable needs given their disability
• The parents' ability to pay

Calculating Support for Adult Disabled Children

Support for adult disabled children is not automatically calculated using the table amounts. Courts have discretion to order support in an amount they consider appropriate given the circumstances. The amount may be:

• The table amount based on the payor's income
• A different amount based on the child's actual needs and means
• A lump sum payment in some circumstances
• Structured to avoid negative impacts on government benefit eligibility

For more information on support for children who have reached adulthood, see our adult child support guide.

Section 7 Extraordinary Expenses for Special Needs Children

Section 7 of the Federal Child Support Guidelines allows courts to order parents to share "special or extraordinary expenses" in proportion to their incomes. For special needs children, Section 7 expenses often represent a significant portion of the overall support obligation and can include a wide range of therapies, equipment, and services.

What Qualifies as a Section 7 Expense

For special needs children, Section 7 expenses may include:

The "Necessary and Reasonable" Test

For an expense to be shared under Section 7, it must be:

• Necessary: The expense must be needed for the child's benefit, not merely desired. For special needs children, medical and professional recommendations supporting the necessity of the expense are important.
• Reasonable: The expense must be reasonable in amount, considering the child's best interests and the parents' means. A more expensive option is not automatically unreasonable if it better meets the child's needs.

Proportional Sharing

Section 7 expenses are shared in proportion to each parent's income after deducting any subsidies, benefits, or insurance coverage that applies to the expense. For example, if one parent earns 60% of the combined family income and the other earns 40%, they would share uninsured expenses in a 60/40 ratio.

Learn more about how activity and expense sharing works in Alberta family law.

AISH and Child Support Interaction

Assured Income for the Severely Handicapped (AISH) is Alberta's income support program for adults with permanent disabilities that substantially limit their ability to earn a living. Understanding how AISH interacts with child support is crucial for families with adult disabled children.

AISH Eligibility and Income Testing

AISH is a needs-tested benefit, meaning the recipient's income affects their eligibility and payment amount. When an adult disabled child receives AISH, child support payments may affect their benefits:

• Child support received by an AISH recipient may be treated as income
• Income above certain thresholds reduces the AISH payment
• In some cases, child support could result in complete AISH ineligibility

Strategic Support Planning

Given the interaction between child support and AISH, careful planning is essential. Options may include:

• Structuring support payments to minimize impact on AISH eligibility
• Directing support to a Henson trust rather than to the disabled person directly
• Contributing to an RDSP instead of or in addition to direct support payments
• Paying certain expenses directly rather than providing cash support
• Timing support payments strategically

The goal is to maximize the total resources available to the disabled person without unnecessarily reducing government benefits. This requires coordination between family law advice and disability benefits planning.

Court Consideration of Government Benefits

Courts may consider AISH and other government benefits when determining the appropriate amount and structure of child support. However, the existence of government benefits does not eliminate a parent's support obligation. Courts aim to ensure the disabled person's needs are met while not creating unintended consequences that reduce their overall financial security.

Special Needs Trusts and Henson Trusts

Special needs trusts are essential estate planning tools for families with disabled children. These trusts allow parents to provide for their child's future without disqualifying them from means-tested government benefits.

What is a Henson Trust?

A Henson trust (named after the Ontario case that established the concept) is an absolute discretionary trust where:

• The trustee has complete discretion over whether to make distributions to the beneficiary
• The beneficiary has no legal entitlement to the trust assets or income
• Because the beneficiary has no entitlement, the trust assets are not counted as the beneficiary's assets for government benefit purposes

This structure allows parents to leave assets for their disabled child's benefit while preserving the child's eligibility for AISH and other needs-tested programs.

Key Elements of an Effective Henson Trust

For a Henson trust to provide benefit protection, it must be properly structured:

• Absolute discretion: The trustee must have unfettered discretion over distributions. Any language suggesting the beneficiary has a right to distributions could result in the trust being counted as the beneficiary's asset.
• Appropriate trustee: The trustee should be someone who understands the disabled person's needs, will exercise their discretion appropriately, and can manage trust assets prudently.
• Clear purpose: The trust should specify that its purpose is to supplement, not replace, government benefits.
• Guidance for trustee: While the trustee must have discretion, the trust can include non-binding guidance about the settlor's wishes for how funds should be used.

Using Trusts in Divorce Proceedings

In a divorce involving a special needs child, trusts may be relevant in several ways:

• Child support or property division proceeds can be directed to a trust for the child's benefit
• Parents may agree to contribute to an existing trust as part of their support obligations
• Life insurance proceeds payable on a parent's death can be directed to a trust
• Separation agreements can include provisions about future trust contributions

Establishing or modifying a trust should involve both a family lawyer and an estate planning lawyer with special needs trust experience.

RDSP Planning in Divorce

Registered Disability Savings Plans (RDSPs) are tax-advantaged savings vehicles designed to help families save for the long-term financial security of individuals with disabilities. Understanding how RDSPs are treated in divorce is important for families with special needs children.

RDSP Basics

Key features of RDSPs include:

• The beneficiary must be eligible for the Disability Tax Credit
• Contributions are not tax-deductible but grow tax-free
• The federal government provides matching grants (Canada Disability Savings Grant) of up to $3,500 per year
• Low-income beneficiaries may receive Canada Disability Savings Bonds of up to $1,000 per year without any contribution
• Lifetime contribution limit is $200,000
• Withdrawals are taxed in the hands of the beneficiary, who typically has low income

RDSPs and Property Division

RDSPs held for a child are generally not considered family property subject to division because:

• The RDSP belongs to the disabled beneficiary, not the contributing parents
• Parents are contributors and possibly plan holders, but they have no ownership interest in the funds
• The purpose is to benefit the disabled person, not to accumulate assets for the parents

RDSP Considerations in Separation Agreements

While RDSPs may not be divided, separation agreements should address:

• Ongoing contributions: Will both parents continue contributing? How much? On what schedule?
• Maximizing grants: How will parents ensure contributions are sufficient to receive maximum government grants?
• Plan holder: Who will be the plan holder (responsible for managing the RDSP) after separation?
• Investment decisions: How will investment decisions be made?
• Succession: What happens to plan holder status if the current plan holder dies or becomes incapacitated?
• Communication: How will parents share information about the RDSP?

RDSPs vs. Direct Child Support

RDSP contributions can complement child support but generally should not replace it:

• Child support addresses current needs; RDSPs address long-term security
• RDSP funds cannot be withdrawn without potential penalty until the beneficiary reaches a certain age
• Early withdrawal triggers repayment of government grants and bonds received in the past 10 years
• Both forms of support may be appropriate depending on the family's circumstances

Educational Support Costs

Special needs children often require educational supports beyond what public schools provide. These costs can be significant and are an important consideration in child support arrangements.

Public School Support Obligations

Alberta's public education system is required to accommodate students with disabilities. However, the supports provided may not be sufficient for some children's needs. Understanding what the school system provides helps identify gaps that parents may need to fill.

Private Educational Supports

Educational expenses that may be shared between parents include:

• Private school tuition if public school cannot adequately meet the child's needs
• One-on-one tutoring in areas of difficulty
• Educational therapy (such as Orton-Gillingham for dyslexia)
• After-school homework support programs
• Summer academic programs to prevent regression
• Assistive technology (specialized software, tablets, communication devices)
• Private educational assessments and Individual Program Plan development

Transition Planning for Post-Secondary

For special needs children who may attend post-secondary education or vocational training, planning should begin early. Considerations include:

• Programs specifically designed for students with disabilities
• Accommodation costs if the child needs to live away from home
• Support services at the post-secondary institution
• Extended timelines for program completion
• RDSP and other savings strategies to fund education

Medical Expense Sharing

Special needs children often have ongoing medical needs that result in significant expenses. Establishing clear protocols for sharing these costs reduces conflict and ensures the child receives necessary care.

Insurance Coverage

Separation agreements should address health insurance coverage:

• Which parent will provide coverage if both have access to employer plans
• Whether both parents should maintain coverage for coordination of benefits
• What happens if a parent loses or changes employment
• How to handle gaps in coverage

Process for Sharing Uninsured Expenses

A clear process helps parents manage expense sharing efficiently:

• Pre-approval: For major expenses, parents may agree to consult before incurring the cost
• Insurance submission: All expenses should be submitted to insurance first
• Documentation: Receipts and explanation of benefits should be shared
• Reimbursement timing: Specify when the non-paying parent must reimburse their share
• Dispute resolution: Establish a process for disagreements about whether an expense is necessary

Common Medical Expenses for Special Needs Children

Expenses that may be shared include:

• Specialist appointments and assessments
• Prescription medications and medical supplies
• Dental care, particularly orthodontics
• Vision care and hearing aids
• Mental health services not covered by provincial health care
• Travel costs for medical appointments not available locally
• Alternative therapies if agreed upon by both parents

Parenting Considerations for Special Needs Children

Beyond financial support, parenting arrangements for special needs children require special attention to ensure the child's developmental, therapeutic, and emotional needs are met.

Consistency and Routine

Many children with disabilities thrive on consistency and routine. Parenting plans should consider:

• How transitions between homes will be managed to minimize disruption
• Whether the child's schedule allows for equal time with both parents
• How to maintain consistent behavioral approaches and routines across households
• Transportation needs, particularly if the child cannot drive

Therapy and Appointment Management

Special needs children often have multiple weekly appointments. Parents need to coordinate:

• Who will take the child to appointments during each parent's time
• How information from therapists and doctors will be shared
• Who will communicate with service providers
• How therapy homework and exercises will be implemented in both homes

Decision-Making About Treatments

Significant medical and therapeutic decisions require careful consideration. Decision-making responsibility arrangements should address:

• Who has authority to make medical decisions
• How disagreements about treatment approaches will be resolved
• What process will be used to evaluate new therapies or interventions
• How to handle emergency medical decisions

For families with high levels of conflict, parallel parenting arrangements may be appropriate, allowing each parent to manage the child's care during their parenting time with minimal direct communication.

Frequently Asked Questions