Ontario Court of Justice Determines that Ontario’s Family Law Legislation Discriminates Against Dependent Adults With Disabilities Whose Parents Were Never Married

14 July 2017

By Allison Curley

On July 7 2017, Justice Sullivan of the Ontario Court of Justice released a decision that pertains to the constitutionality of Ontario’s Family Law Act in relation to child support obligations for parents of dependent adults with disabilities. The Applicant in this matter is a Robyn Coates, mother to Joshua Coates. Joshua turned 18 in 2012, but is unable to live independently from his mother as he was born with a rare genetic composition. The Respondent is Joshua’s biological father.

Robyn launched a constitutional challenge against Ontario’s FLA in 2016. In her Notice of Constitutional Question, Robyn argued that section 31 of the FLA discriminated against dependent adults with disabilities who were born to parents that were never married. The Notice asserted that this discrimination was on the basis of parental marital status, disability, and sex, and that section 31 of the FLA contravened section 15 of the Canadian Charter of Rights and Freedoms.

Joshua’s biological parents were listed as Applicant and Respondent to the litigation, and Joshua was an added party. Family Alliance Ontario and Sherbourne Health Centre were granted Intervenor status to the case as well. The Department of Justice and the Ontario Ministry of the Attorney General declined to participate as Intervenors in this action.

The intersection between marital status, disability, and sex is relevant in the context of this case in the sense that Joshua is a person with a disability who is over the age of majority, and his parents were never married. These factors give rise to the question of constitutionality of section 31 within Ontario’s FLA.

Canada’s federal Divorce Act provides in the definitions that a “child of the marriage” can include a person who is over the age of the majority but who is unable, by reason of disability, “to withdraw from their charge or to obtain the necessaries of life” (section 2(1)). If Joshua’s parents had been married, his mother could have commenced divorce proceedings, and Joshua would have fallen under the definition of “child of the marriage.” If this had been the case, his biological father would have been obligated to provide child support under section 15.1(1) of the Divorce Act. Joshua’s parents were never married, however, which then requires any child support order to be made under Ontario’s provincial FLA legislation.

Section 31(1) of Ontario’s FLA stipulates that every parent has an obligation to provide support for their child until the child is no longer a minor. The exception to this rule is in instances where a child is no longer a minor, but is in a full-time program of education. In these circumstances, a parent will also be obligated to provide child support. In this case, Joshua did not fall under section 31(1) of the FLA as he is not enrolled in a program of full-time study. Paragraph 45 of the decision states that, “Joshua submits that there is no principled reason to exclude children of common law partnerships from the security that accrues by being a family member born to unmarried parents.”

Justice Sullivan concluded that denying child support to dependent adults with disabilities whose parents were never married is indeed a violation of section 15 of the Charter as it prevents inclusion and respect for all persons. Further in the decision, Justice Sullivan asserted that, “[t]he denial of child support under s. 31 of the FLA further disadvantages already disadvantaged groups, rather than remedying their inequality.”

Of note is that Ontario and Alberta are the only jurisdictions in Canada where dependent adults with disabilities whose parents were never married parents are not entitled to child support under respective family law legislation. In British Columbia, the definition of “child” in section 146 of the Family Law Act includes a person who is 19 years of age or older and who is, “unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians.”

Justice Sullivan provided commentary on the concept of substantive equality, and stated that, “substantive equality requires the Court to focus on the actual impact of the impugned law from the perspective of a reasonable person in the circumstances of the claimants, taking into account the social, political, economic and historical factors concerning those it effects.” Discussion then ensued on the topic of post-separation poverty, and how many caregivers to dependents suffer from the effects stemming from a lack of adequate supports. In this portion of the decision, Justice Sullivan noted how adversely affected caregivers are often women, and how the Supreme Court of Canada has taken judicial notice of this issue.

Justice Sullivan concluded that section 31 of Ontario’s FLA contravened Joshua and Robyn’s section 15 Charter rights. In this particular case, Sullivan J. decided that section 31 of the FLA would include a person who is over the age of majority but unable by reason of disability to withdraw from their parent’s charge or obtain the necessaries of life. A court appearance was scheduled for July 10 2017, for a discussion of next steps with respect to child support for Joshua.

Laurie Monsebraaten, writing for the Toronto Star, stated that a government source has indicated that the province of Ontario will be moving towards amendments to the FLA so that the provincial legislation is in line with the federal Divorce Act. The government source supposedly revealed that the provincial government has been working on a change that would mitigate the discrimination against dependant adults with disabilities born to unmarried parents, and will be able to table an amendment to the bill when the house is sitting again.

In Schedule A of the decision, the Ontario Law Reform Commission’s 1973 Report on Family Law was referenced in a discussion of legislative history relating to the support of illegitimate children. Justice Sullivan referred to the “proposals for change” made by the Ontario Law Reform Commission, and noted that the Commission recommended the abolition of concepts of “legitimacy” and “illegitimacy” in the family law context.

It appears that other families with similar circumstances to Joshua and his mother Robyn may have to wait for amendments to Ontario’s FLA. The Court determined however, that Joshua is entitled to child support.

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