An ongoing Brampton court battle could have significant implications for parents and family lawyers who deal with child support payments. Robyn Coates, the single mother of 22-year-old Joshua Coates, believes that Ontario’s Family Law Act is unconstitutional because it discriminates against children with disabilities. Under the Act, adult children with disabilities are only eligible for support if they are in school full-time. This is subject to the child’s parents never having been married.
Under the federal Divorce Act, however, children with disabilities are eligible for support well into adulthood, whether they are attending school or not. The wording of section 2(1)(b) of the Divorce Act defines a “child of the marriage” as a child of two spouses or former spouses who, at the material time, is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life (emphasis added).
Joshua was born with a “genetic abnormality that causes multiple medical and psychiatric problems,” the Toronto Star reports. His “chronic, severe and debilitating” condition “will require the care and supervision of others throughout his life,” states Joshua’s doctor, according to the Star. Although he is 22 years old, he reads and writes at a Grade 2 level, the Star reports.
Joshua’s father, Wayne Watson, became aware of his son’s existence only in year 1999, when he was almost 4 years old. It was then that Robyn Coates filed for child support, which Watson has paid regularly since. Watson believes his financial obligation towards Joshua is over, given his age and the fact that he is not enrolled in school full-time.
According to Ontario’s Family Law Act, Watson is correct. In fact, Ontario and Alberta are the only two jurisdictions in Canada that do not mandate child support eligibility for adult children with disabilities. Some family law lawyers believe these provinces to be behind the times in their conceptualization of family law relationships and archaic in their differentiation of support for children of married parents versus those born of unmarried parents.
“In terms of the changes to family law, this is probably the last constitutional challenge left because all the other areas of law that have been in need of reform, such as same-sex marriage, have already changed,” Coates’ lawyer, Robert Shawyer, told the Star. “This is the last vestige of the old pre-1980s mentality in relation to family law in terms of illegitimate children and the rights of people to marry and so on.”
“There clearly needs to be a balance of how we care for one another in society,” added ARCH Disability Law Centre staff lawyer, Johanna Macdonald. “From ARCH’s perspective, the most important thing is those who are most affected – the adult child with disabilities – must be able to have full standing to ask and to seek entitlement from both the state and the family. There will always be a tension. But the ability to seek the support necessary needs to be in place.”
Lawyer Michael Tweyman, who is acting pro-bono as a “friend of the court” and arguing on Watson’s behalf, states that his interest in the case stems largely from its constitutional implications. “I am here to assist with some of the law that will help you make the decision on the constitutional issue,” Tweyman initially advised Justice William Sullivan.
Needless to say, family law lawyers will be watching the case closely. The judge’s ruling could significantly impact the lives of thousands of single parents with adult disabled children in Ontario.
If you have questions or concerns about child support payments or any other aspect of family law, contact the family law lawyers at Nanda & Associate today. Our team can help you understand the nuances of the Ontario legal landscape and advise you on your best path forward.
