The growing trend of young adults living in the family home is generating a demand for child support that flows on past childhood into adulthood.
With perpetual students and adults with disabilities joining the ranks of young adults who do not live independently, parental responsibilities are continually extending.
“Child support for adult children is definitely increasing,” says Reesa Heft of Heft Law of Toronto. “Children just aren’t withdrawing from parental care at the same rate as prior generations. When do you say, ‘Enough is enough?’”
Heft points to changing patterns of education as one cause.
“We have more children going into higher education and longer education than we did in the past,” she says.
Robert Shawyer of Robert Shawyer Family Law of Toronto cites the cases of adult children who suffer from disabilities and illness. He is representing the mother in the case of Coates v. Watson 2017 ONCJ 454, in which the adult child seeking support, Joshua, is disabled and not attending school. Because his parents were never married, a claim for child support under the Divorce Act is not possible.
Nor is it possible under s. 31 of the Ontario Family Law Act, which only applies to the children of married parents.
The mother, child and intervenors argued that s. 31 of the act discriminates against adult disabled children of unmarried parents on the basis of parental marital status, disability and sex, contrary to s. 15 of the Canadian Charter of Rights and Freedoms.
In July, Justice Anthony W.J. Sullivan released his ruling on the matter and agreed with that position. He said, “I find that Section 31 of the Family Law Act shuts a door to Joshua/Robyn to have a court in Ontario consider and have an opportunity to assess his needs and who is better positioned to meet those needs.”
Shawyer is extremely pleased with Sullivan’s decision, with one reservation.
“I wish it was in the Superior Court. Then it would, in effect, have ordered the government to change the law, and the reasons for the decision would apply in all courts,” he says.
Joanna Radbord of Martha McCarthy & Company LLP acted in Coates for the intervenors, Family Alliance Ontario and the Sherbourne Health Centre, which supported the mother’s position. She expressed the same unfulfilled wish as Shawyer, saying it would be preferable to have a decision from a higher court.
“I’m frustrated that plaintiffs aren’t starting in the Superior Court of Justice where the decisions would be binding or, if it was not so obvious, there would be an appeal that would be binding,” she says. “The only place to get a proper declaration is in the Superior Court.”
Both lawyers point out that further court applications would be unnecessary if the decision were to be incorporated in legislation, and there are indications that this will happen. The government announced in the summer that it intends to introduce an amendment to the Family Law Act later this fall in relation to the availability of child support for persons over the age of majority.
Emilie Smith, spokeswoman for the Ministry of the Attorney General, says that details of that proposal will be announced in the near future.
Radbord says the changes cannot come soon enough.
“With every day that passes, children are experiencing discrimination with respect to child support,” she says.
Until the wording of the proposed amendment is actually released, family lawyers are wondering whether the clause will set out a new test or simply mirror the terms of the Divorce Act, in which “child of the marriage” is defined to include a child who is “the age of majority or over . . . but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
Heft says a broadly worded clause is a “double-edged sword.”
“You don’t want to exclude cases where it makes sense for a parent to continue support. On the other hand, there is a danger in having the legislation too open-ended,” she says. “At a certain point, even children must be responsible for themselves.”
Shawyer and Radbord argue that the amendment should simply mirror the federal Divorce Act.
“That’s all that needs to be done,” says Shawyer. “Circumstances are never uniformly the same.”
Radbord says there is no need to come up with a new provision.
“The federal Divorce Act has a body of case law that would be applicable. It is tried and true,” she says. As the lawyer representing the Sherbourne Health Centre, which serves the LGBTQ community, Radbord stresses the importance of including the term “other cause” in the amendment.
“My client is specifically focused on members of the LGBTQ community transitioning or coming out. That shouldn’t have to be framed as an illness or disability,” she says. “Trans people have a terrible employment rate and so do youth generally, and for a period where they have difficulty adjusting, they are not very employable.”
Radbord cites other problems where a disability or illness cannot and should not have to be established.
“Often, a child doesn’t necessarily get diagnosed with a learning disability, but they are not able to complete their degree in a four-year period. Their parents may have separated just before they start university, and they have emotional problems,” she says