Law Times

Page 10 February 27, 2017 • Law Times www.lawtimesnews.com Challenge over child support heads for showdown BY JUDY VAN RHIJN For Law Times A constitutional chal- lenge over child sup- port for disabled adults is heading for a show- down in March. Described by lawyer Robert Shawyer as "the last area of family law where there is abject discrimination against children of unmarried parents," a team of lawyers will be acting pro bono to litigate the issue. The challenge in Warren v. Coates, (Ontario Court of Jus- tice, File No. 1547/95) address- es the discrepancy between On- tario's Family Law Act, in which disabled adult children are eligi- ble for child support only if they are in school full time, and the federal Divorce Act, which pro- vides that children with disabili- ties are eligible for child support into adulthood whether they are in school or not. "I honestly believe it's the last constitutional case for fam- ily law," says Robert Shawyer of Shawyer Family Law and Medi- ation PC in Toronto, who is rep- resenting the mother involved in the challenge. "I've looked at all the other provisions and I cannot see an- other area of family law that re- quires a change because it violates peoples' constitutional rights." Shawyer says, "If you happen to be the child of married par- ents, you can continue to receive child support forever so long as you don't leave a person's care. "The definition of child under the Divorce Act is much more expansive," he adds. "Under the Family Law Act, once you leave school, that's it, even if you are severely disabled and the care- giving parent needs support." The mother's factum states: "Section 31 of the Family Law Act treats (disabled adults) as a discrete and insular minor- ity and offends their right to be treated equally under the law." In this case, 21-year-old Joshua Coates was born with DiGeorge syndrome, which is a rare genetic condition that causes multiple medical and psychiatric problems. He also has Attention Deficit Disorder and Generalized Anxiety Disor- der. He requires 24-hour super- vision and will never be able to care for or support himself. Shawyer's partner, Andrew Sudano, and Prof. Shelley Kier- stead are representing Coates. They submit that had "the Appli- cant and Joshua lived anywhere else in Canada save and except for Ontario or Alberta, Joshua would have the same right to child support as disabled chil- dren born to married parents. Denying Joshua's right to child support simply because he had the misfortune of being born in Ontario is discriminatory, arbi- trary and manifestly unjust." They are adopting the moth- er's position that the FLA posi- tion offends s. 15 of the Char- ter, which contains guaranteed equality rights. They also say that it offends s. 7, which is the right to life, liberty and the security of the person, and it is not saved by s. 1 by reason of being a reason- able and justifiable limitation. Joshua's father, Wayne Wat- son, who has paid child support since Joshua was four years old, is seeking to terminate his finan- cial obligations. He will be self- represented, but there is an am- icus curiae who will present his position. He seeks to uphold the distinction as a valid exercise of provincial legislative authority and says that Joshua has become the responsibility of the govern- ment, which has a system of fi- nancial support for the purpose. Joanna Radbord, a partner at Martha McCarthy & Co LLP in Toronto, is hoping to intervene on behalf of the Sherbourne Health Centre and Family Alli- ance Ontario, but she has yet to obtain the respondent's consent. "It's an important equality case for disability and marital status and family status," she says. "These organizations are concerned that the law and child support respect the needs of all children and families. It's use- ful to the courts to have broad legislative facts before them and a broad perspective. These orga- nizations have helpful insights to offer." Radbord will be launching a motion seeking the right to in- tervene if the father's consent is not forthcoming, with Shawyer's blessing. "It will be a much stronger case if we have the positions of the parties themselves, the child and groups that advocate for people," notes Shawyer. "It's one of the few times you get to go to court and argue pure law." Both the Department of Jus- tice and the Ontario Ministry of the Attorney General were in- vited to intervene and both de- clined. Radbord says the govern- ment should have taken a more proactive approach on the issue. "I'm surprised it hasn't been addressed already. I'm disap- pointed the government isn't taking an equality-minded ap- proach and amending the stat- ute," she says. "It's clear there shouldn't be any discrimination because of the status of the mar- riage. It shouldn't be up to the individual parties in this case, at their own personal expense and the expense to the public of hearing the trial, to deal with the government's constitutional problem." A spokeswoman for the Min- istry of the Attorney General confirmed that the department received a Notice of Constitu- tional Question in this matter. "We advised the parties in March 2016 that the Attorney General was not intervening in this matter before the Ontario Court of Justice," she said. "More generally, we rec- ognize that disputes around financial support can be very difficult for families and are always willing to consider pro- posals for reforms to Ontario's family laws." LT FOCUS Joanna Radbord says she's 'disappointed the government isn't taking an equality- minded approach.' Fe 2 Please refer to the Federation of Law Societies website: www sc.ca then click on the link to the National Family Law Program for ongoing program information updates. • Summary of topic(s), format of presentation, possible co presenters and estimated time for presentation or workshop. • Presentations and written material must include a national perspective • Your agreement to participate in other presentations as workshop leader or panelist if needed. • Please include a copy of your curriculum vitae and co presenter's as well with your submission. Your written proposal must be received no later than May 30, 2017 • Your agreement to provide an original written paper on the topic(s), short bio for each presenter and summary of the topic to include in conference handbook by May 15, 2018. Note: Presenters will only receive a contribution toward travel and accommodation expenses. Please submit your Family Law proposal by email or mail to: Heather Walker Program Co-coordinator P.O. Box 244 Woodville, ON K0M 2T0 email: nationalfamilylawprogram@sympatico.ca messages: 705-879-3082 (Due to the volume submissions please identify the proposal as a submission for the 2018 National Family Law Program and topic title on the subject line of the e-mail) Federation of Law Societies of Canada National Family Law Program Vancouver British Columbia Monday July 9 – Thursday 12 2018 (Conference Of ce and Opening Reception Sunday July 8) CALL FOR PAPERS Planning for the National Family Law Program in 2018 is already underway. We are inviting submissions of proposals for Papers/Presentations under the following guidelines: FederationOfLaw_LT_Feb27_17.indd 1 2017-02-24 8:27 AM

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