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Successful constitutional challenge helps unmarried parents of disabled adults

A successful constitutional challenge means unmarried parents will be able to claim child support for their adult disabled children, says Toronto family lawyer Jennifer Samara Shuber

In a recent Ontario Court of Justice case, the judge ordered the father of a 22-year-old disabled man to pay child support to his mother after finding that s.31 of Ontario’s Family Law Act (FLA) violates s. 15 (1) of the Charter, which prohibits discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Provincial child support laws, which govern unmarried parents, only make adult children eligible for child support when they are in full-time education. However, the federal Divorce Act dictates that any child unable to live independently because of an illness or disability continues to qualify for support for as long as it's needed.

“I think the decision makes sense,” Shuber, a lawyer in the family law practice group at Beard Winter LLP, tells AdvocateDaily.com.

“There shouldn’t be any difference in treatment depending on which statute applies when the only distinction is the marital status of the parents,” adds Shuber, who was not involved in the case and comments generally.

“Ultimately, the impugned provision expresses the stereotype that children born to unmarried parents are less worthy of parental support than children born to married spouses,” the judge wrote in his decision.  

To remedy the situation, he ordered that the word “child” in the FLA provision be read to match the more inclusive definition found in the Divorce Act.  

As the Toronto Star reports, Ontario’s ruling Liberals have also promised to formalize the change by amending the FLA, with a government source telling the paper that it has been planning since last fall to amend the law “to essentially mirror” the federal law.

“As soon as the house is sitting again, we will be able to table an amendment to the bill,” the source added.

The child in the case was born with a genetic syndrome that causes several medical problems. According to the Star story, he has trouble paying attention, suffers from anxiety and obsessive-compulsive behaviour that means he will require care and supervision for the rest of his life.

His mother, who has two other children, said she was “extremely happy” with the decision, which came almost two years after she launched the case.  

“I feel like [he] is being treated like children of married couples. I feel we are equal. I don’t feel like we are being discriminated against, like we have been,” she told the Star.

The paper says the boy’s father, who once lived with the mother but was never married to her, pays around $800 in court-ordered child support every month.  

“I wasn’t expecting this,” he told the Star in an interview about the decision. “This is a total shock. I thought this would have been over with a long time ago. I have put myself in debt because of it and figured once (my child support obligations) were over I’d be able to get myself out of debt.”

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