Ontario has recently introduced an amendment to the provincial Family Law Act that aims to make all adult children with disabilities, regardless of the martial status of their parents, eligible for child support.
Typically, a parent's obligation to pay child support ends when the child reaches the age of majority and/or is no longer a full-time student. However, section 2(1) of the federal Divorce Act creates an obligation to continue paying support for a child of the marriage who is over the age of majority but unable by reason of illness, disability, or other cause to withdraw from parental charge or obtain the necessaries of life. It is important to note that the Divorce Act only applies to families of married parents. For those Ontario families of unmarried parents, they must turn to the provincial Family Law Act legislation.
Currently, there are marked differences in the wording of the federal Divorce Act and provincial Family Law Act statutes, which has resulted in differential treatment between children of married and unmarried parents. The current Family Law Act does not include the clause creating an obligation for child support where an adult child, by reason of illness, disability, or other cause cannot withdraw from parental charge. Therefore, unmarried parents have been prevented from claiming child support for their adult children with disabilities, unlike their married counterparts.
Across Canada, family law statutes have largely eliminated the differential treatment of children of married and unmarried parents. However, Ontario and Alberta have lagged behind with respect to children with disabilities. The newly proposed Ontario Bill 113 proposes to correct this by repealing s. 31 of the Family Law Act and substituting the following:
Obligation of parent to support child:
(1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who is,
- (a) a minor;
- (b) enrolled in a full time program of education; or
- (c) unable, by reason of illness, disability or other cause, to obtain the necessaries of life.
This change was prompted, in part, by a recent case Coates v Watson heard in March 2017. Ms. Coates, the mother, sought child support for her 22-year-old son with a rare genetic composition that prevented him from withdrawing from her care. Although she began receiving support from the father, she brought a Charter Challenge to allow the court to finally decide on the merits of the issue whether section 31 of the Family Law Act contravenes the Charter, specifically Joshua's right to equal protection and equal benefit of the law as guaranteed by section 15(1). The court released its decision in July 2017, ruling in Ms. Coates and Joshua's favour and finding that they were subjected to differential treatment based on marital status.
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. The bill has recently passed its first reading.
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