Gary Joseph | July 2025
This article was originally published by Law360 (www.law360.ca), part of LexisNexis Canada Inc.
Some years ago, I was engaged in a case where the family had a severely disabled eight-year-old daughter. The daughter was born with multiple health issues and required both home and community support. The matrimonial home had been retrofitted to meet the needs of her wheelchair and other devices necessary to meet her health issues.
The parents both loved and cherished this special child, but the marriage had broken down for various reasons, and it was necessary to address the usual family law issues. As the case progressed, I learned that the family law issues were significantly impacted by the needs of this child. Of course, a parenting schedule was impacted by the multiple medical issues but so too were other family law issues.
The father wanted the matrimonial home sold. It was mortgage free and the largest asset of the family. The mother resisted, arguing that the retrofit of the home was an essential part of the treatment and care of the daughter. Happily, a compromise was reached permitting the father to take a mortgage on the home to bleed out his equity.
The mother was highly educated and had held a responsible employment position before the child was born. In any other circumstances, an argument to impute income to her for support purposes would have been reasonable, but not here. Outside care for this child proved to be far more expensive than the mother staying home to provide the care. Further, of course, the more personal care of the mother was preferable to third-party care. Agreement on spousal support was reached recognizing the savings in s. 7 expenses (Federal Child Support Guidelines) by reason of the mother’s care as opposed to a paid caregiver.
Fortunately, this special child had special parents who acted truly in her best interests. They bent to the family law challenges posed by the needs of their lovely daughter. That is, of course, not always the case. We are, as I have written many times before, family lawyers, not just lawyers. At all times we must be cognizant of how our actions impact the family, never so much as when the family is dealing with a breakup and a disabled child.
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Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.
The opinions expressed are those of the authors) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
