The recent decision in a case called Coates v. Watson represents a landmark of constitutional law, with the court finding that section 31 of the Ontario Family Law Act discriminates against the adult disabled children of unmarried parents and is contrary to the Canadian Charter of Rights and Freedoms.
The case involved an unmarried Ontario mother who was responsible for caring for her adult disabled son named Joshua. The biological father had paid some child support, but was looking to have the support payments terminated now that Joshua was an adult.
Joshua suffered from DiGeorge syndrome, which left him with both physical and mental health issues. These in turn prevented him from attending school full-time.
The legal issue arose because section 31 of the provincial Family Law Act (“FLA”) states that every parent has an obligation to provide support, but only if the child is a minor or is in school full-time. The meant that in cases where the disabled child cannot attend school, section 31 actually operates to prevent him or her from falling within the definition of “child” and thus qualifying for child support. When applied to Joshua’s case, the law effectively eliminated the biological father’s obligation to assist in supporting his son.
In contrast, the federal Divorce Act contains no such qualification, and imposes a support obligation on the parents of disabled adult children, regardless of whether the child attends school.
In noting this discrepancy between the federal and provincial legislation, the court ultimately concluded that section 31 of the FLA was unconstitutional, because it discriminates against adult disabled children of unmarried parents on various grounds including parental marital status, and disability. That discrimination is contrary to s. 15 of the Charter, which enshrines the principle 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.”
If the ruling in Coates v. Watson stands (and is not overturned on appeal), then there is speculation that the FLA might have to be amended by expanding the definition of “child”, or by incorporating the definition found in the federal Divorce Act.
For the full text of the decision, see:
Coates v. Watson, 2017 ONCJ 454 (CanLII)