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In a precedent setting decision, an Ontario judge has awarded a single mother in Brampton, Ontario monthly payments of more than $500 to care for her disabled adult son for the remainder of his life.
Child’s Father Stopped Support Payments
The woman’s son was born with Di George Syndrome– a genetic abnormality which results in various physical and mental difficulties. The son’s physician says that the son will “require the care and supervision of others throughout his life.” He is 21 years old, reads and writes at a Grade 2 level, has attention span issues, and suffers from anxiety and obsessive-compulsive behaviour.
While the son was still under the age of majority, his mother was receiving monthly child support payments from the son’s father. She was able to enrol the son in community programs where he was able to go hiking, practice yoga and weightlifting, and take cooking and other classes. Together these programs cost about $1,400 a month.
Once the son became an adult, his father took the position that his financial obligations towards the son were over. The father claimed that he had not even known that he had a son until the boy was almost four years old and the mother applied for support. He was shocked but complied with his court-ordered support without asking for a paternity test and had never missed any payments.
After the payments stopped, the mother could no longer afford the son’s monthly programming.
Divorce Act Does Not Apply
The son’s parents had never married. If the parents had married, the situation would be different: under the federal Divorce Act, children with disabilities are eligible for child support into adulthood whether or not they are attending school.
For parents who are not married, section 31 of the Ontario Family Law Act (FLA) mandates child support for adult children only where those children are in school.
Adult children with disabilities are eligible for child support in every jurisdiction, except Ontario and Alberta, regardless of their parent’s marital status, and regardless of whether or not the children are in school.
Constitutional Challenge
The mother launched a constitutional challenge, claiming that section 31 of the FLA discriminates against children with disabilities. She wanted the provincial law changed so that single parents caring for disabled children would not be left in the same position she was.
The mother’s lawyer told the Toronto Star that:
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 been changed…[t]his 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.
The Father’s Response
The father, who is married and has two other children, told the Toronto Star that he is “…a dad who has tried to do the right thing.” In the face of the mother’s constitutional challenge, the father’s hope is to terminate payments to the time that the son turned 18 (in 2012) and seek full reimbursement of his “overpayments” to the mother since then.
He argued that although the son was enrolled in a Brampton high school for students with developmental disabilities between the ages of 18 and 21, he did not believe that the son was interested in school and did not attend regularly, thus making him ineligible for support.
The father further noted that the son had been receiving Ontario Disability Support Program (ODSP) payments of more than $830 per month since turning 18, as well as additional provincial services funding of approximately $3000 annually. The father argued that these payments show that the government has taken responsibility for the son, and that the father’s financial role should cease.
The Decision on Constitutionality of s. 31 of the FLA
In a precedent setting decision, Justice Sullivan found that the FLA discriminates against adult children with disabilities because it denies them access to child support, contrary to the Charter. Justice Sullivan noted:
I find that Section 31 of the Family Law Act shuts a door to [the mother/son] to have a court in Ontario consider and have an opportunity to assess his needs and who is better positioned to meet those needs. Effectively access to a debate and a just adjudication of these issues is denied a citizen of Ontario and one who is a member of a vulnerable group.
I say this with confidence not because I sympathies with Joshua given his circumstances, as I am mindful of this earlier point made by Amicus, but rather I find this to be the objective effect of s. 31 of the FLA for [the mother and son] based primarily on being an unmarried women who has a child with disability who cannot meet the provisions for child support set out in s.31 of the FLA.
A further hearing was scheduled to determine what amount of support, if any, the son’s father should pay.
Following Justice Sullivan’s decision, the provincial government announced it would table an amendment to the FLA that would provide adult children with disabilities access to support.
The Decision on Continued Child Support
Earlier this month, Justice Sullivan released his decision, ordering continued child support payments of $518.41 for the son until a further court order ceased them.
In making his decision, Justice Sullivan noted that:
…in fixing [the son’s] needs my analysis is not based on a Table amount depending on a parent’s annual income and an accompanied section 7 analysis. It is a broader analysis, considering all of his needs, some of which are his daily basic needs and some of which might be considered traditionally section 7 extras.
Relevance of the Decisions
The decision that s. 31 of the FLA violated the Charter was met with open arms in many legal circles.
The mother’s lawyer told the Toronto Star that he was elated with the decision, and looked forward to further changes to the law that would stop discrimination against children of unmarried parents, particularly since women are the overwhelming number of caregivers of children with disabilities.
The lawyer who represented the Family Alliance Ontario (an organization that supports individuals with disabilities and their families) as an intervener in the Charter challenge told the Toronto Star that:
The court recognizes that it is discriminatory to limit access to the family law court for adult children with disabilities and their parents…[h]opefully we are finally going to get the government to make a change so that children and their parents will be free to access child support on a non-discriminatory basis. It’s going to advance equality in Ontario.
If you have questions about child support, contact Gelman & Associates. Our experienced family lawyers can help guide you through the post-separation and post-divorce process, and help you obtain the best possible support arrangement for your children. With six offices in North York, Downtown Toronto, Mississauga, Scarborough, Aurora and Barrie, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.
