Ontario’s child support law faces constitutional challenge

TheStar.com – News/GTA – Brampton single mother’s Charter challenge aimed at helping disabled adult children whose parents never married.
March 24, 2017.   By LAURIE MONSEBRAATEN, Social justice reporter

A constitutional challenge scheduled to play out in a Brampton court on Friday hinges on two little words: “I Do.”

The case involves a single mother who claims Ontario’s child support law discriminates against disabled children of unmarried parents.

If a couple is divorced, a disabled child is eligible for support into adulthood. But if the parents were never married, support ends when the child is 18 or no longer in school full-time.

“I am very excited this case is going forward,” said Robyn Coates, who has been fighting her son’s estranged father for continued child support for the past four years.

“Initially, it was just for myself,” she said. “But when I see how many other women and their families could potentially benefit from this in terms of being able to provide the kind of quality of life I want to provide for my son, it’s very exciting.”

Coates says her developmentally disabled son, Joshua, who is 22 but reads and writes at a Grade 2 level, will likely continue to live with her and require her financial support indefinitely.

She believes his father, Wayne Watson, should continue to pay support, as he has been doing since Joshua was 4.

If Coates and Watson had been married and divorced, he wouldn’t be off the hook because under the federal Divorce Act, disabled adult children are eligible for child support whether or not they are still in school.

But Ontario’s Family Law Act, which covers child support for unmarried parents, makes no provision for adult disabled children.

“If children of divorced parents can claim support for both education and disability beyond age 18, then children born to parents who were never married should enjoy the same rights,” Coates said.

If the case succeeds, thousands of single parents and their adult disabled children would gain the right to claim child support in Ontario, says a lawyer acting on behalf of two groups with intervener status in the case, including Sherbourne Health Centre, which supports LGBTQ parents and children.

Since same-sex marriage was not legal in Canada until 2003, disabled young adult children of LGBTQ parents also face discrimination under Ontario’s child support laws, the clinic argues.

“The current legislative scheme sends the message that children of unmarried parents are less worthy of the non-custodial parent’s support,” says clinic lawyer Joanna Radbord, who is also representing Family Alliance Ontario, an organization that supports individuals with disabilities and their families.

“The potential availability of limited public benefits for adults with disabilities does not extinguish the non-custodial parent’s obligation where a child is unable to withdraw from the custodial parent’s charge . . . by reason of disability, illness, coming out, gender transition, or other cause,” Radbord writes in her affidavit before the Ontario Court of Justice.

As a result, Ontario’s child support law should be declared unconstitutional and replaced to reflect “the equality of all children,” writes Radbord.

Coates currently receives about $800 a month from Watson to support Joshua. Although the parents never lived together or married, Watson has paid court-ordered child support of varying amounts since Joshua was 4.

Watson, who married another woman after Joshua was born and is raising two other children with his wife, previously told the Star he has never missed a court-ordered support payment.

But now that Joshua is no longer in school and is receiving provincial social assistance for adults with disabilities, Watson says his legal obligation has ended.

“It is the legislature which has the ability to expand the class of people entitled to child support. It is not the role of the court to legislate,” says lawyer Michael Tweyman, who is acting pro bono as a “friend of the court” and is arguing Watson’s side in the case. Watson did not return a request for comment Thursday.

“When a disabled person becomes an adult, the burden of his or her care shifts from the parents to society as a whole,” Tweyman writes, quoting an earlier Supreme Court case on the court’s approach to the care of disabled adults.

Coates, an educational resource worker for students with special needs in the Dufferin-Peel Catholic School Board, says she needs child support to help defray the costs of day programs for Joshua that can run as high as $1,400 a month.

“It’s very exciting to have society as a whole see what costs are involved in looking after an adult with a disability,” she said.

People don’t realize that parents are on their own to pay for day programs if their disabled adult child is unable to work or can’t find paid employment when school ends, she said.

The Ontario Disability Support Program provides some support, Coates said. But many of Joshua’s expenses such as orthotics, massage therapy and his sleeping medication are not covered under the program’s benefits, she said. Coates can’t claim those costs under her own work-based health benefits because the insurer doesn’t cover children over age 21, she added.

Adult children with disabilities are eligible for child support in every province except Ontario and Alberta, regardless of the parents’ previous marital status and whether children are in school or not, said Coates’s lawyer Robert Shawyer, who is also working pro bono on the case.

Ontario’s attorney general’s office is not intervening. But a spokeswoman said the ministry “is always willing to consider proposals for reforms to Ontario’s family laws.”

In addition to provincial social assistance, Ontario’s Passport program provides funding for activities and for parents of an adult with a developmental disability to take a break from their care-giving responsibilities.

https://www.thestar.com/news/gta/2017/03/24/ontarios-child-support-law-faces-constitutional-challenge.html

Leave a Reply

Your email address will not be published. Required fields are marked *