A constitutional challenge over child support for disabled adults is heading for a showdown in March. Described by lawyer Robert Shawyer as “the last area of family law where there is abject discrimination against children of unmarried parents,” a team of lawyers will be acting pro bono to litigate the issue.
“I honestly believe it’s the last constitutional case for family law,” says Robert Shawyer of Shawyer Family Law and Mediation PC in Toronto, who is representing the mother involved in the challenge.
“I’ve looked at all the other provisions and I cannot see another area of family law that requires a change because it violates peoples’ constitutional rights.”
Shawyer says, “If you happen to be the child of married parents, you can continue to receive child support forever so long as you don’t leave a person’s care.
“The definition of child under the Divorce Act is much more expansive,” he adds. “Under the Family Law Act, once you leave school, that’s it, even if you are severely disabled and the caregiving parent needs support.”
The mother’s factum states: “Section 31 of the Family Law Act treats (disabled adults) as a discrete and insular minority and offends their right to be treated equally under the law.”
In this case, 21-year-old Joshua Coates was born with DiGeorge syndrome, which is a rare genetic condition that causes multiple medical and psychiatric problems. He also has Attention Deficit Disorder and Generalized Anxiety Disorder. He requires 24-hour supervision and will never be able to care for or support himself.
Shawyer’s partner, Andrew Sudano, and Prof. Shelley Kierstead are representing Coates. They submit that had “the Applicant and Joshua lived anywhere else in Canada save and except for Ontario or Alberta, Joshua would have the same right to child support as disabled children born to married parents. Denying Joshua’s right to child support simply because he had the misfortune of being born in Ontario is discriminatory, arbitrary and manifestly unjust.”
They are adopting the mother’s position that the FLA position offends s. 15 of the Charter, which contains guaranteed equality rights. They also say that it offends s. 7, which is the right to life, liberty and the security of the person, and it is not saved by s. 1 by reason of being a reasonable and justifiable limitation.
Joshua’s father, Wayne Watson, who has paid child support since Joshua was four years old, is seeking to terminate his financial obligations. He will be self-represented, but there is an amicus curiae who will present his position. He seeks to uphold the distinction as a valid exercise of provincial legislative authority and says that Joshua has become the responsibility of the government, which has a system of financial support for the purpose.
Joanna Radbord, a partner at Martha McCarthy & Co LLP in Toronto, is hoping to intervene on behalf of the Sherbourne Health Centre and Family Alliance Ontario, but she has yet to obtain the respondent’s consent.
“It’s an important equality case for disability and marital status and family status,” she says. “These organizations are concerned that the law and child support respect the needs of all children and families. It’s useful to the courts to have broad legislative facts before them and a broad perspective. These organizations have helpful insights to offer.”
Radbord will be launching a motion seeking the right to intervene if the father’s consent is not forthcoming, with Shawyer’s blessing.
“It will be a much stronger case if we have the positions of the parties themselves, the child and groups that advocate for people,” notes Shawyer.
“It’s one of the few times you get to go to court and argue pure law.”
Both the Department of Justice and the Ontario Ministry of the Attorney General were invited to intervene and both declined. Radbord says the government should have taken a more proactive approach on the issue.
“I’m surprised it hasn’t been addressed already. I’m disappointed the government isn’t taking an equality-minded approach and amending the statute,” she says. “It’s clear there shouldn’t be any discrimination because of the status of the marriage. It shouldn’t be up to the individual parties in this case, at their own personal expense and the expense to the public of hearing the trial, to deal with the government’s constitutional problem.”
A spokeswoman for the Ministry of the Attorney General confirmed that the department received a Notice of Constitutional Question in this matter.
“We advised the parties in March 2016 that the Attorney General was not intervening in this matter before the Ontario Court of Justice,” she said.
“More generally, we recognize that disputes around financial support can be very difficult for families and are always willing to consider proposals for reforms to Ontario’s family laws.”