Brampton single mother launched a constitutional challenge to win child support for her 22-year-old disabled son. By Laurie Monsebraaten Social justice reporter
Sat., July 8, 2017
The provincial government will table an amendment to Ontario’s Family Law Act this fall to give adult children with disabilities access to child support, the Star has learned.
The move comes in the wake of a provincial court decision Friday that ruled the law unconstitutional after a Brampton single mother’s fight to win child support for her 22-year-old disabled son.
“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,” said the government source, who added the province has been working on the change since last fall.
“As soon as the house is sitting again, we will be able to table an amendment to the bill,” the source said.
In his precedent-setting decision, Justice William Sullivan agreed with Robyn Coates that Ontario’s Family Law Act discriminates against adult children with disabilities because it denies them access to child support.
Under provincial law, which governs unmarried parents, adult children are eligible for child support only if they are in school full-time.
But under the federal Divorce Act, an adult child who is unable to live independently due to disability, illness or other cause is also eligible for support as long as they need it.
Sullivan’s ruling, which adopts the federal Divorce Act wording for the case, means Coates’s son Joshua is eligible for child support from his estranged father Wayne Watson.
“I find that Section 31 of the Family Law Act shuts the door to Joshua/Robyn to have a court in Ontario consider . . . his needs and who is better positioned to meet those needs,” Sullivan said in his 60-page decision.
Sullivan ruled that Ontario’s child support law violates section 15 (1) of the Charter that prohibits discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
A hearing to determine what, if any, child support Watson should pay will be scheduled in Brampton court on Monday.
“I am extremely happy,” said Coates, 48, who launched the Charter casein November 2015. “I feel like (Joshua) 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,” she said. “I’m extremely hopeful that we will be successful in changing the law.”
Coates and Watson never lived together or married. But Watson has paid court-ordered child support since Joshua was 4. The father paid $319 a month for almost 13 years until a court-order increased support to more than $1,000 a month. He currently pays about $800 a month.
Watson, 46, has said he recognizes his son is disabled, but he noted programs such as the Ontario Disability Support Program are there to help adults with disabilities.
He said he was “shocked” by Friday’s decision.
“I wasn’t expecting this,” he said in an interview. “This is a total shock. I thought this would have been over with a long time ago. I have put myself in debt because of it and figured once (my child support obligations) were over I’d be able to get myself out of debt.”
Watson is married with two other children ages 15 and 21.
Joshua was born with Di George Syndrome, a genetic abnormality that causes multiple medical and psychiatric problems that his doctor says are “chronic, severe and debilitating.”
He has trouble paying attention, suffers from anxiety and obsessive compulsive behaviour and “will require the care and supervision of others throughout his life,” according to his doctor.
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 and medical expenses for Joshua that can run more than $1,400 a month.
She says she launched the case so that no other single parent caring for a disabled child could be abandoned by an absent parent when the child becomes an adult.
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, argued Coates’s lawyer Robert Shawyer who took on the case pro bono in January.
“I’m elated with the decision,” said Shawyer, who has been acting on behalf of unmarried parents trying to access child support in Ontario since 2011.
“I’m looking forward to continuing to press forward with this issue until the Ontario government comes to its senses and changes the law and stops discriminating against children of unmarried parents who are primarily women.”
Women are the overwhelming number of caregivers for children with disabilities, he added.
“The court recognizes that it is discriminatory to limit access to the family law court for adult children with disabilities and their parents,” said lawyer Joanna Radbord, an intervener in the case representing Family Alliance Ontario, an organization that supports individuals with disabilities and their families.
“Hopefully 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,” added Radbord, who also acted on behalf of the Sherbourne Health Centre, which supports LGBTQ parents and children.
In light of Coates’s constitutional challenge, provincial NDP Women’s Critic Peggy Sattler introduced a private member’s billin March to amend the provincial law.
Sattler first became aware of the issue about a year ago through Marnie Carson, a parent with a disabled son in her London West constituency. Carson urged Sattler to introduce the bill on behalf of her son Brayden, 18, who has autism. Because Carson and the boy’s biological father were never married, his child support is set to end shortly.
“I am so excited to see justice for the disabled children of unmarried parents,” Carson said. “I have been promoting this new bill for months, contacting all provincial MPPs myself. We are determined to see this through for my son’s sake.”