Seek informed divorce advice when dealing with autism issues
This article was originally published on AdvocateDaily.com (now closed down) on 8 November 2019. It is re-published in full below.
By Paul Russell, AdvocateDaily.com Contributor
Child support, custody, and access issues arising in
a divorce become more complicated when a child of the marriage is on the autistic spectrum, says Mississauga family lawyer Deepa Tailor.
“That condition adds a layer of complexity that other divorce files don’t have,” explains Tailor, managing director of Tailor Law Professional Corporation.
“That is why it is critical for parents to consult with a legal professional who has experience in this area, to ensure their children get the funding and support they need,” she tells AdvocateDaily.com.
Depending on the severity of the condition, Tailor says the child may require applied behaviour analysis (ABA) or intensive behavioural intervention (IBI) therapy, which are both expensive.
The costs of these treatments are considered expenses in divorce proceedings under s. 7 of the Family Law Act, she says, since they are above and beyond what is listed in the Ontario Support Table put out by the Department of Justice.
“What we often see is that the combined income of both parents isn’t sufficient to cover these expenses, which means the division of s. 7 costs won’t really rectify the situation for either party because, no matter how you slice it, you’re trying to divide a pie that isn’t large enough to begin with,” Tailor says.
To make up for that shortfall, parents have relied on provincial funding to get their children the help they need, Tailor says, though proposed changes to the Ontario Autism Program may reduce the amount of support that is available.
According to a Canadian Press (CP) story, five education worker unions released a joint statement condemning the changes.
“We strongly urge the government to rethink its rash decision-making on the Ontario Autism Program and put the needs of children with autism first,” they wrote, according to the CP story.
“These changes are a devastating blow to thousands of families and will undermine the inclusion of children with autism in the public education system.”
Tailor says clients have told her the proposed modifications will be detrimental to their children.
“The provincial proposals have complicated custody and support issues in divorce cases dealing with a child on the spectrum, reinforcing the need to have counsel with knowledge in this area,” she says.
Tailor says it is critical for the divorce order to state that the parent who is paying for the extra help receives the government funding.
“If one party is going to be paying for extra programs, or the ABA or IBI treatments, they should be receiving the subsidy to assist with that,” she says. “Chances are they will have custody, giving them primary decision-making authority about what extra programs the child will be enrolled in.”
Custody battles can become problematic if there are substantial s. 7 costs to deal with, Tailor says.
“These expenses add a strain to the divorce that other parties don’t have, making it much harder emotionally,” she says.
Issues around access are also complicated when it comes to children on the autism spectrum, Tailor says.
“It’s a consideration the court is going to take into account, because if one parent has not really been involved with taking care of an autistic child, that person will lack the soft skills they need, such as how to handle outbursts in public,” she says.
“Whenever you have children who are on the autism scale, there are certain implications for access for the parents as well, such as knowing where they can and cannot take the child, depending on what their triggers are,” Tailor adds.