Law Times

Page 8 November 6, 2017 • Law Times www.lawtimesnews.com Child support extending to reflect adults at home BY JUDY VAN RHIJN For Law Times T he growing trend of young adults living in the family home is gen- erating a demand for child support that f lows on past childhood into adulthood. With perpetual students and adults with disabilities joining the ranks of young adults who do not live independently, pa- rental responsibilities are con- tinually extending. "Child support for adult chil- dren is definitely increasing," says Reesa Heft of Heft Law of Toronto. "Children just aren't withdrawing from parental care at the same rate as prior genera- tions. When do you say, 'Enough is enough?'" Heft points to changing pat- terns of education as one cause. "We have more children go- ing into higher education and longer education than we did in the past," she says. Robert Shawyer of Robert Shawyer Family Law of Toronto cites the cases of adult children who suffer from disabilities and illness. He is representing the mother in the case of Coates v. Watson 2017 ONCJ 454, in which the adult child seeking support, Joshua, is disabled and not attending school. Because his parents were never married, a claim for child support under the Divorce Act is not possible. Nor is it possible under s. 31 of the Ontario Family Law Act, which only applies to the chil- dren of married parents. The mother, child and inter- venors argued that s. 31 of the act discriminates against adult disabled children of unmarried parents on the basis of parental marital status, disability and sex, contrary to s. 15 of the Canadian Charter of Rights and Freedoms. In July, Justice Anthony W.J. Sullivan released his ruling on the matter and agreed with that position. He said, "I find that Section 31 of the Family Law Act shuts a door to Joshua/Robyn to have a court in Ontario consider and have an opportunity to as- sess his needs and who is better positioned to meet those needs." Shawyer is extremely pleased with Sullivan's decision, with one reservation. "I wish it was in the Superior Court. Then it would, in effect, have ordered the government to change the law, and the reasons for the decision would apply in all courts," he says. Joanna Radbord of Martha McCarthy & Company LLP act- ed in Coates for the intervenors, Family Alliance Ontario and the Sherbourne Health Centre, which supported the mother's position. She expressed the same unfulfilled wish as Shawyer, say- ing it would be preferable to have a decision from a higher court. "I'm frustrated that plaintiffs aren't starting in the Superior Court of Justice where the deci- sions would be binding or, if it was not so obvious, there would be an appeal that would be bind- ing," she says. "The only place to get a proper declaration is in the Superior Court." Both lawyers point out that further court applications would be unnecessary if the de- cision were to be incorporated in legislation, and there are indica- tions that this will happen. The government announced in the summer that it intends to intro- duce an amendment to the Fam- ily Law Act later this fall in rela- tion to the availability of child support for persons over the age of majority. Emilie Smith, spokeswoman for the Ministry of the Attorney General, says that details of that proposal will be announced in the near future. Radbord says the changes cannot come soon enough. "With every day that passes, children are experiencing dis- crimination with respect to child support," she says. Until the wording of the pro- posed amendment is actually re- leased, family lawyers are won- dering whether the clause will set out a new test or simply mir- ror the terms of the Divorce Act, in which "child of the marriage" is defined to include a child who is "the age of majority or over . . . but unable, by reason of ill- ness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life." Heft says a broadly worded clause is a "double-edged sword." "You don't want to exclude cases where it makes sense for a parent to continue support. On the other hand, there is a dan- ger in having the legislation too open-ended," she says. "At a cer- tain point, even children must be responsible for themselves." Shawyer and Radbord argue that the amendment should sim- ply mirror the federal Divorce Act. "That's all that needs to be done," says Shawyer. "Circum- stances are never uniformly the same." Radbord says there is no need to come up with a new provision. "The federal Divorce Act has a body of case law that would be applicable. It is tried and true," she says. As the lawyer representing the Sherbourne Health Centre, which serves the LGBTQ community, Radbord stresses the importance of in- cluding the term "other cause" in the amendment. "My client is specifically fo- cused on members of the LG- BTQ community transitioning or coming out. That shouldn't have to be framed as an illness or disability," she says. "Trans peo- ple have a terrible employment rate and so do youth generally, and for a period where they have difficulty adjusting, they are not very employable." Radbord cites other problems where a disability or illness can- not and should not have to be established. "Often, a child doesn't nec- essarily get diagnosed with a learning disability, but they are not able to complete their de- gree in a four-year period. Their parents may have separated just before they start university, and they have emotional problems," she says LT FOCUS ON Family Law Joanna Radbord says she hopes there will be legisla- tive change when it comes to support for adults with disabilities who remain living in a family home. FOCUS Childview_LT_Nov6_17.indd 1 2017-10-31 12:05 PM

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