Current definition is unfair to adults under the care of unmarried parents: FOLA
The Federation of Ontario Law Associations supports a proposal from the Ministry of the Attorney General to expand the definition of child in the Children’s Law Reform Act.
The government is considering aligning the provincial legislation’s definition with that of its federal counterpart, the Divorce Act. The move is aimed at ensuring equal treatment for children, whether their parents are married or unmarried. The MAG put out a call for input Dec. 14, and the deadline for submissions was Jan. 8.
The definition of a child in the Children’s Law Reform Act is limited to a person who is a minor. The Divorce Act contains a more extensive definition: “a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
If the parents of an adult who, for whatever reason, is in their care want the court to make an order on custody, access or decision-making concerning the adult’s care, they cannot access the Children’s Law Reform Act because their child is not a minor. And they can only seek relief via the Divorce Act if they were, or are, married.
As it currently stands, the regime is unfair to adults under the care of their unmarried parents, said FOLA. The Federation has asked the MAG to add to the definition, so that those adults fall under the provincial legislation’s scope.
“We have to make sure that everybody's treated equally and fairly. We cannot discriminate,” says Rasim Sam Misheal, FOLA’s family law chair.
“This may have been acceptable back hundreds of years ago… we can’t have this today. Access to justice has to be equally applied to all Ontarians.”
The current inconsistency between the Children’s Law Reform Act and Divorce Act also raises constitutional issues, said FOLA in their submission to the Attorney General.
The problem is similar to that found in Coates v. Watson, 2017 ONCJ 454, said FOLA. In Coates, Justice William Sullivan found the Family Law Act failed to provide for support for dependents once they became adults. For children of unmarried spouses who are no longer minors, this was a violation of their s. 15(1) Charter right to equality under the law, said the court.
The shortcomings of the Children’s Law Reform Act were also demonstrated in the access and custody matter Simons v. Crow, 2020 ONSC 5940, said FOLA. Justice Stephen Bale found the court did not have jurisdiction to order custody or access in the case of a “a child who is not a minor.”
If the definition of child is expanded, the government will have to consider how to reconcile the overlap between the Children’s Law Reform Act and the Substitute Decisions Act, which is the current legislation governing the decision-making over dependent adults, said FOLA.