Disability Changes Coming to the Family Law Act

In 2006, the Supreme Court of Canada held in S (DB) v G (SR) stated,

60 No child support analysis should ever lose sight of the fact that support is the right of the child…

While this is trite law, the concept still comes up in unique circumstances such as with a disabled adult child who may have an entitlement to support under the Divorce Act, but would not under Ontario’s Family Law Act.

This distinction was explained in the Ontario Superior Court of Justice decision in Jason Vivian v. Nicole Courtney et al. in 2011,

[25] When children are born, parents assume a legal responsibility for them that is long-lasting and specific in law. However, the child support obligation of parents who are married is a slightly different one than the child support obligation of unmarried parents.

28. The child who is over the age of majority and from unmarried parents has no prima facie right to child support on the basis of illness or disability, as does the child of married parents. The child of unmarried parents who is over the age of majority must satisfy the requirement ins. 31 FLA of “enrolled in a fulltime program of education” to continue to be eligible for support.

29. Children whose parents are married are treated differently than children whose parents are not married. Children of married parents had a long and now mostly historical advantage over children whose parents were not married. Some of this advantage was rooted in moral analysis about shame and blame assigned to unmarried parents, in a construct from another era, regarding children born “out of wedlock”, an old-fashioned and now seldom used expression.

The adult child in Vivian had Schimke Immunosseous Dysplasia (SID), but the support payor believed “that it is part of the provincial government’s policy that the social safety net, including social services, are intended to be the primary mode of financial support for adult children that are disabled”.

Justice Curtis rejected this argument, and stated,

[30] These laws, while directed at and defined by the parents’ legal status, functioned to disadvantage the children, who were blameless and innocent of decisions their parents made. As society changed, that has changed. These laws could not survive the introduction of the Canadian Charter of Rights and Freedoms, 1982, which provided certainty of equality for all Canadians.

[31] Distinctions for children based on the marital status of their parents were removed from most areas of Canadian law many years ago. Sweeping and comprehensive changes were made to Ontario laws to ensure this (changes regarding estates, inheritance, property ownership, support and other issues).

[32] Laws in Ontario have changed to eliminate any vestiges of this overt and intentional discrimination. Children are to be treated the same, no matter who their parents are and no matter what the legal status of their parents’ relationship.

[33] The continuation of that distinction here for an ill or disabled child of unmarried parents is difficult to justify in the modern era of the Canadian Charter of Rights and Freedoms. It is questionable whether those provisions of the FLA would survive a challenge to their constitutionality.

Although the distinction was not necessary for the determination of support in this case, the stage was set to challenge its constitutionality.

That distinction was removed last Friday, when Justice Sullivan ruled in Coates v. Watson that s. 31 of the FLA violated the child’s s. 15 Charter rights and could not be saved by s. 1. He read into the definition of “child of the marriage” as follows,

[229] …the word child in section 31 of the Family Law Act means a child who,

(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.


Robert Shawyer, acting on behalf of the applicant, told the Toronto Star, “I’m looking forward to continuing to press forward with this issue until the Ontario government comes to its senses and changes the law and stops discriminating against children of unmarried parents who are primarily women.”

He may not have to wait for long, as the government has already indicated they will table an amendment to the FLA to ensure consistency in the law.


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