Law Times

Law Times • November 27, 2017 Page 5 www.lawtimesnews.com Discrepancy between federal and provincial law remains Backlash against new child support amendment BY JUDY VAN RHIJN For Law Times F amily lawyers are ex- pressing disappointment over the Ontario govern- ment's proposed amend- ment that is meant to provide parity between dependent adult children of unmarried and mar- ried parents who require ongo- ing child support. Instead of mirroring the federal provisions under the Divorce Act, lawyers say the amendment provides a nar- rower test as to who is eligible, making further litigation on the point inevitable. "I am stunned that the pro- posed amendment continues to discriminate," says Joanna Rad- bord, partner at Martha McCar- thy & Company LLP. "The [provincial] government is perpetuating differential treat- ment between children of mar- ried versus unmarried parents." Radbord says the provincial ministry of the attorney gen- eral has not properly drafted the amendment to s. 31 of the Fam- ily Law Act. The proposed amendment is listed in Schedule 15 of Bill 177, Stronger, Fairer Ontario Act (Budget Measures) 2017. It states, "The Schedule amends the Family Law Act to require that every parent provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who is unable by reason of illness or disability to withdraw from the charge of his or her parents." This contrasts with the defini- tion of "child of the marriage" in the Divorce Act, which refers to children "unable, by reason of illness, disability or other cause" to withdraw from their parents' charge or to obtain the necessar- ies of life. Radbord says the province has used more restrictive lan- guage than the Divorce Act by excluding "other causes" that might allow people to receive support. For example, Radbord says the change could impact LGBTQ youth who are tran- sitioning or young adults with learning difficulties, which she says should not be labelled as a disability or illness. Jonathan Richardson, part- ner at Augustine Bater Binks LLP of Ottawa, says the amend- ment to the provincial law still doesn't cover adult children who are suffering from emotional problems that keep them de- pendant. "They may very well prove to be one of the 'other' cases," he says."They are infrequent, but that is not to say that they aren't legitimate." Ontario Attorney General Yasir Naqvi provided a statement to Law Times that says: "The government introduced amend- ments to Ontario's Family Law Act to expand eligibility for sup- port payments to those over 18 years old with a disability or ill- ness who require ongoing finan- cial support from a parent. "The proposed change would update the Ontario Family Law Act to more closely align On- tario's child support legislation with the federal Divorce Act as well as with the child support laws in the majority of other Can- adian provinces and territories," said the statement, provided by Naqvi's spokesman, Andrew Rudyk. It is this wish to "closely align" rather than fully align the provincial and federal law that has family lawyers puzzled. "The government purports to support equality for all families, but [it] has instead chosen to give inferior, more restrictive access to support for the children of unmarried parents," says Rad- bord. "Litigation will continue, at public expense, needlessly." According to MAG, the amendment is a response to the ruling by Justice Anthony W.J. Sullivan released on July 7 in Coates v. Watson 2017 ONCJ 454. In Coates, the disabled adult child seeking support was found to be discriminated against be- cause he was not covered as eli- gible under federal laws because of his parental marital status nor provincial laws, which required him to be in school full time. "This is counter to what the motions judge in Coates v. Wat- son found," says Richardson. He points to paragraph 226 of the decision, which says, "The remedy can be precisely stated by replacing the limited definition of 'child' in s. 31 of the FLA with the definition of 'child of the marriage' in the Divorce Act." Robert Shawyer of Shawyer Family Law and Meditation PC, who is representing the mother in Coates, is also con- cerned about the wording of the amendment. "It achieved what my client personally wanted and for people in similar situations. That's a good thing. Ontario's now in line with the rest of the country," he says. "It is recognizing a portion of society that wasn't recognized before and now treats them sim- ilarly to other children." Shawyer says the problem is that the amendment does not go far enough. "It puts the onus on the parent caring for a child whose disability may not be diagnosed — or whose disability is being questioned by the non-custodial parent — to go to significant trouble and expense to get medical tests . . . before making a claim for con- tinued child support." Radbord says this is bad for everyone. "Parents will be thrust into conf lict about defining chil- dren as disabled or not, when the focus should be on the adult child's need and well- being. Diagnoses can be debat- ed by parents and professionals, and some diagnoses change over time," she says. "Should we require custodial parents to repeatedly obtain ex- pert reports, at significant cost, and adduce evidence that frames the child as disabled in order to obtain the other parent's finan- cial contribution, when the child has need and remains unable to self-support?" Radbord and Shawyer foresee more constitutional challenges if the provincial amendment is passed as written. "I believe in persevering to get the right results," says Radbord. "We definitely will challenge it until there is equality for the children of the province, wheth- er their parents are married or not." LT NEWS Jonathan Richardson says adult children suffering from emotional problems who need financial support should be covered by provincial law. The government purports to support equality for all families, but it has instead chosen to give inferior, more restrictive access to support for the children of unmarried parents. Joanna Radbord Each year, the Law Society proudly recognizes Ontario lawyers and paralegals who have made outstanding contributions to the legal professions. Nominations are now open for the 2018 Law Society Awards for all fi ve categories: • The Law Society Medal – for outstanding service • The Lincoln Alexander Award – for community service • The Laura Legge Award – for leadership • The William J. Simpson Distinguished Paralegal Award – for outstanding professional achievement • The J. Shirley Denison Award – for signifi cant contributions to access to justice and/or poverty law issues Who will you nominate? Call for Nominations! Deadline: January 26, 2018 Submit your nomination today! More information at: www.lsuc.on.ca/awards-nominations CanadianLawyerMag.com Fresh Canadian legal news and analysis available on any device. Get More Online

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