An Ontario woman and her lawyer have succeeded in a constitutional challenge, obtaining child support for a disabled adult child of unmarried parents, who is not attending school full time.
As previously reported in Law Times, the case focused on the difference between the federal Divorce Act, which states that children with disabilities can obtain child support once they are adults, regardless of if they are in school or not, and s. 31 of Ontario’s Family Law Act, which states that every parent has an obligation to provide support only if the child is a minor or in school full time.
On July 7, Justice William Sullivan ruled that s. 31 of the Family Law Act violated Robyn and Joshua Coates’ Charter rights.
Sullivan stated that s. 31 is a “provision [that] ‘widens the gap’ between historically disadvantaged groups and the rest of society,” thereby expanding the definition of what it means to be a child for the purpose of child support.
“Disabled children of unmarried relationships, and their residential parents, most often mothers, face economic hardships and insecurity not visited upon those whose parents married. It is substantively discriminatory that children and residential parents have diminished access to financial resources as a result of the parents’ marital status,” says the ruling.
“Even if the perfect public supports were in place for people with disabilities, the legislative regime here denies access to child support to ‘illegitimate’ children in contrast to ‘legitimate’ children, sending the message that the claimant families are less worthy of respect, concern and consideration.
This offence to dignity is substantively discriminatory.”
Coates’ father, Wayne Watson, who had paid child support since Joshua was four years old, had been arguing to terminate his financial obligations, and was represented by an amicus curiae, Michael Tweyman, to assist with constitutional arguments of the case.
Both the federal Department of Justice and the Ontario Ministry of the Attorney General told the court they declined to intervene in the case. However, Joanna Radbord acted for the Family Alliance Ontario and the Sherbourne Health Centre, who did intervene in the case.
Robert Shawyer, who acted for Robyn Coates on a pro bono basis, says he was “ecstatic” by the decision. He says he will wait to see if the decision is appealed, and there may be legislative change coming in Ontario. As part of the ruling, Sullivan stated the Family Law Act could be remedied by expanding the definition of child in the provincial legislation, to incorporate the federal definition.
“What this does for lawyers is that it gives them more options to present to their client, because a lot of times, clients will come to lawyers and say, ‘Well, I’ve got a disabled child, but I was never married,’ and the lawyer, based on the legislation as it was written, they had very few options,” says Shawyer.
Shawyer says the decision will provide lawyers with “more options,” but it also could lead to more litigation around how disability is defined.
“[It’s going to] expand the case law in the area of child support. It’s going to define what it means to be disabled, it’s going to define how long child support can be awarded for, when it should be awarded, on what basis it should be awarded, so it’s going to open up a whole new area of child support case law,” he says.
Jonathan Richardson, a partner at Augustine Bater Binks LLP in Ottawa, says the “decision fills a gap in the Family Law Act for which no particular explanation was offered.”
“This will be of tremendous importance to those adult disabled children affected by this decision as it provides them with means to support themselves over and above [the Ontario Disability Support Program],” says Richardson. The decision by Justice Sullivan notes the approach by Alberta and Ontario to the issue is different than the rest of Canada.
“Ontario and Alberta stand alone in foreclosing access to adult children of unmarried parents not enrolled in school full-time but who remain in a parent’s charge or unable to obtain the necessaries of life due to illness, disability or other cause,” said the ruling.