Lawyers Back Family Law Act Change, But Say Disability Definition May Become Issue

Friday, November 24, 2017 @ 8:51 AM | By Amanda Jerome
The Ontario government has introduced an amendment to the province’s Family Law Act that would make all children with disabilities eligible for child support regardless of whether their parents were ever married.

“Our government believes that everyone is entitled to the financial support they need regardless of the makeup of their family,” said Ontario Attorney General Yasir Naqvi, in a statement.

Naqvi added that the government’s introduction to the amendment in its fall economic statement, released Nov. 14, would expand eligibility for support payments to those over 18 years old with a disability or illness who require ongoing financial support from a parent.

“The proposed change would update Ontario’s Family Law Act to more closely align Ontario’s child support legislation with the federal Divorce Act as well as with the child support laws in the majority of other Canadian provinces and territories,” he said.

Ontario and Alberta are the only jurisdictions in Canada that exclude adult disabled children of unmarried parents from child support laws.

The disparity between the federal law and Ontario law came to the fore when Robyn Coates, a single mother in Brampton, challenged the constitutionality of the Family Law Act, claiming it discriminated against her developmentally disabled son.

The Charter challenge even inspired the NDP MPP for London West, Peggy Sattler, to propose Bill 113 in March. The bill, which has reached first reading, amends the Family Law Act so that “parents must provide support to their adult child if the child has an illness, disability or other issue that makes them unable to support themselves.” However, the government announced after the judgment in Coates v. Watson 2017 ONCJ 454 in July that it would introduce amendments to the Act this fall.

“I think it’s fabulous. From my perspective, there should be no difference between the children of non-married parents and the children of married parents in this day and age. There’s no solid policy reason behind why that would exist, so the fact that the Ontario Family Law Act is not in line with the Divorce Act, which applies across Canada, is in need of amendment,” said Ryan McNeil, an associate who specializes in family law at Lerners LLP in Toronto.

McNeil said the one possible pitfall would be if there are two parents who disagreed on what is, in fact, a disability. This is a circumstance McNeil has encountered before in his work and he said it leads to parents standing on opposing sides in a debate on whether their child is disabled and in need of support.

“If the child is old enough or is able to comprehend what’s going on with the parents, that can be harmful to their well-being or their psychology. The very fact that it can pit parents against each other is a downfall, but that already exists for children of married spouses under the Divorce Act,” he said, adding that this amendment should be welcomed with open arms regardless of any difficulties that might arise.

Reesa Heft, founder of Heft Law in Richmond Hill, Ont., said this amendment has been a long time coming. However, like McNeil, she sees a possible concern when it comes to the definition of a disability.

“That’s where you’re going to run into trouble. I think it becomes an even bigger and harder problem to define with a child who has mental health issues,” she said, adding that the understanding of mental health in general is wanting and that behavioural issues might fall under that definition as well.

“Another issue with adult children with disabilities is does the child qualify for ODSP (the Ontario Disability Support Program)? How does that affect child support? If the child is already getting a stipend from the government for the ODSP should the child be entitled to the full table amount of child support?” she asked.

Overall, Heft believes this amendment is a big step forward in recognizing the economic hardships custodial parents of disabled children face.

Timothy Sullivan, the principal lawyer at SullivanLaw in Ottawa, also believes that Ontario should have made this amendment long ago and that it only makes sense for the province’s Family Law Act to become more aligned with the Divorce Act.

“Fathering a child does not require knowledge of the mother, so a child can slip through the cracks if their parents weren’t married and the child has difficulty withdrawing from parental control,” he said.

“We’ve probably had mothers, most likely, who have not had the resources or the wherewithal to challenge it [the law] because they’ve been burdened with the expenses without assistance from a father,” he added, noting that he’s not intentionally disparaging fathers, but that child care often falls to mothers to take on.

“It’s often the case that the mother takes care of the child and the father is MIA. You can’t find them, so what good is an order for support if you don’t know where the dad is? My advice to parents is you have to support your child. I wouldn’t hang my hat on any sort of argument that says ‘well, the law doesn’t say I have to do it,’ ” he concluded.

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