Ontario Court Finds Child Support Provision of their Family Law Act Violates Charter Rights of Adult, Disabled Children: Implications for Alberta

A recent Ontario family law case, Coates v Watson 2017 CarswellOnt 10653, dealt with the fact that the Divorce Act and the Family Law Act (in Ontario) treats adult, disabled children of once-married parents differently than adult, disabled children of parents who were never married.

This case is of particular interest in Alberta since Ontario and Alberta are the only two provinces who continue to have these distinctions in their Family Law Acts, which apply to families where the parents were never married and set out who is entitled to and who is obligated to pay child support.

The child in this case was an adult child named Joshua, who was disabled and not able to care for himself, live independently or attend school. His parents were never married so his mother could not claim for child support under the Divorce Act.

Under the Divorce Act, child support can be claimed from either or both parents for a child who is the age of majority or over and unable to withdraw from their parents’ care or to obtain the necessaries of life due to illness, disability or other cause.

Under the Ontario Family Law Act, a parent has an obligation to provide support for his or her unmarried child who is a minor OR is enrolled in a full time program of education, to the extent that the parent is capable of doing so.” (section 31.)

In Alberta, the Family Law Act defines a child for the purposes of child support as “a person who is under the age of 18 years, or who is at least 18 years of age but not older than 22 years of age. and is unable to withdraw from his or her parents’ charge because he or she is a full-time student…” (s.46(b).)

The Plaintiffs had applied to the Ontario Court of Justice for a declaration that section 3 of the Ontario Family Law Act was contrary to section 7 or section 15 of the Canadian Charter of Rights and Freedoms (“the Charter.”) The Defendant Father sought to uphold s.31 of the FLA..

Section 7 of the Charter sets out that everyone has the “right to life liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The Plaintiffs’ arguments in this vein centered on the fact that, due to his lack of access to child support under the FLA, he was left with “increased levels of poverty which in turn impair[ed] his physical and psychological integrity.” (para. 196) In this case, Sullivan J. held that there was not enough of a connection with a compulsive state action to make out a s.7 challenge and that ground was dismissed.

Section 15(1) of the Charter sets out that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Sullivan J. noted that “the law is well settled that discrimination on the basis of marital status violates section 15 of the Charter,” citing Miron v Trudel, [1995] 2 SCR 418 at paras 154-166. He went on to state that “section 31 of the assumes that children over the age of majority will be self-sufficient unless they are in school full-time. It does not consider the needs and circumstances of adult children who are unable to leave a parent’s charge or obtain the necessaries of life by reason of temporary or permanent disability.” (para.103)

Sullivan J. found that the Ontario legislation did discriminate between dependent disabled children of once-married couples and those of never-married couples. It also discriminated between children of never-married parents who were dependent based on being in school full-time and those who were dependent based on disability. He stated that the “ableist drafting of s.31 denies children with disabilities substantively equal access to child support…Ultimately, the impugned provision expresses the stereotype that children born to unmarried parents are less worth of parental support than children born to married spouses.” (paras. 110, 114)

Sullivan J. also stated that “[a]cross Canada, family law statutes have largely eliminated differential treatment between ‘illegitimate’ and ‘legitimate’ children, but s.31 of the FLA has not been amended. Ontario and Alberta stand alone in foreclosing access to child support to adult children of unmarried parents not enrolled in school full-time but who remain in a parent’s charge or unable to obtain the necessaries of life due to illness, disability or other cause.” (para.85)

Sullivan J. found that that section 31 of the FLA was not saved by section 1 of the Charter. Section 1 of the Charter states that the rights and freedoms set out in the Charter are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This requires the trier-of-fact to determine whether the legislation in question is demonstrably justified in a free and democratic society. Interestingly, the Ontario government, who had the burden to prove that the legislation was justified, chose not to participate in the case. This may have been because the Ontario government was not interested in defending the law and perhaps recognized the lack of justification for the distinction themselves.

The end result was that Sullivan J. found that s.31 of the FLA did infringe the Plaintiff’s s.15(1) Charter rights and so he replaced the definition of “child” in the FLA in the parties’ Order with the more expansive definition from the Divorce Act.

Due to the fact that Ontario and Alberta are the last provinces to have legislation which treats adult, disabled children of non-married couples differently from adult, disabled children of divorced couples, this case can likely be used to argue that the Alberta Family Law Act is similarly discriminatory.