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A recent Ontario Court of Justice decision confirmed that adult disabled children of unmarried parents are entitled to child support in the same way that adult disabled children of divorced parents are.
A constitutional challenge was filed by a single mother of an adult disabled son, who argued that s. 31 of the Family Law Act (FLA) discriminates against adult disabled children of unmarried parents on the basis of parental marital status, disability, and sex, contrary to the Charter. The challenge was filed in an attempt to have the son’s biological father continue to financially support him.
The son is 22 years old and was born with Di George Syndrome, a genetic abnormality that results in various chronic, severe, and debilitating medical and psychiatric conditions. According to the son’s doctor, the son writes at a Grade 2 level, has trouble paying attention, suffers from anxiety and obsessive-compulsive behavior, and “will require the care and supervision of others throughout his life”.
The son’s mother and father had never lived together or been married, but the father had been paying court-ordered child support since the son was 4-years-old. With the assistance of child support payments from the son’s father, the mother enrolled the son in various community programs for adults, including yoga, cooking and pottery classes, hiking, and other activities which were beneficial to him. However, when the son became an adult, the father claimed that his financial obligations towards him were over.
A Difference Between Married and Unmarried Parents
At the crux of the issue were differences between the law that applies to married couples and that which applies to unmarried couples.
Since the parents at issue were unmarried, the FLA was the applicable governing legislation. Under the FLA the definition of a child entitled to child support does not include an adult child with a disability. Adult children are only eligible for child support if they are in school full-time. Had the parents been married and had separated or divorced, the Divorce Act would be applicable. Under the Divorce Act, the definition of a child entitled to child support includes an adult child requiring parental support due to a disability.
Practically, this meant that the son would have been entitled to continued child support had the parents been married, but since they were not, there was no legal obligation on the father to continue to financially support the son.
In a precedent-setting, 60 page decision, the Court found that the FLA provision in question violated s.15(1) of the Charter which prohibits, among other things, discrimination on the basis of physical or mental disability. The current provision discriminates against adult children with disabilities by denying them access to child support.
The Court made a number of remarks about the current system, noting 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.
Child support is a fundamental right of a child, and it is a challenge to discern any pressing and substantial, non-discriminatory purpose to the exclusion of adult children who have disabilities or illnesses.
The impugned provision of the FLA undermines child supports laudatory purposes and denies some children the financial support of both parents, and contributes to the poverty of custodial parents, mostly women and vulnerable children who as a result of illness and disability are unable to leave the care of a parent.
The mother, who had filed the constitutional challenge in November 2015, has stated that she is “extremely happy”, noting:
I feel like [my son] is being treated like children of married couples. I feel we are equal. I don’t feel like we are being discriminated against, like we have been…It’s been so exciting to be a part of this. To make it fair for myself and others
The provincial government will table an amendment to the FLA. A government source told the Toronto Star that:
The Ontario government will be moving forward with an amendment to include adult children with disabilities in the Family Law Act, to essentially mirror the federal Divorce Act.
We will continue to follow developments in this matter and will blog about them as more information become available. In the meantime, 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.