On December 14, 2017, my birthday, I received the best gift a lawyer could ask for. The Ontario Government, with Bill 177 receiving Royal Assent, amended section 31 of the Family Law Act to include the right to child support for adult children with disabilities.
It had all started in an elevator.
It was the early fall of 2011. A brave mother and her even more courageous daughter stepped into an elevator with me, and in the blink of an eye my whole world changed. “Are you a lawyer?” she asked. Still wearing my court robes after filing a motion for another client that day, I replied, “either that or an overdressed Maître d’.”
Luckily my response made them laugh, and they showed me a child support order that was recently made by Justice Carole Curtis of the Ontario Court of Justice. It was being appealed by the child’s father.
The Order was being appealed because at the time, Ontario’s child support law did not require non-custodial parents who were never married and had separated to continue to pay child support for a child who was over the age of 18 and no longer enrolled in a full-time program of education. However, Justice Curtis had recognized in her reasons that section 31 of the FLA may not withstand the scrutiny of the Charter.
The client was looking for a lawyer – what she didn’t realize was that she required a lawyer who would have the courage to take on the Ontario Government.
After reading Justice Curtis’s reasons in Vivian v. Courtney, my decision was made: I would take the case, even though I knew nothing more about it than what Justice Curtis had written. I was moved by the client and her daughter’s story, strength and perseverance.
The first hurdle was to convince a Superior Court Judge to allow my client to raise the issue of whether section 31 was constitutional. We successfully did so on January 27, 2012.
Now that we had the green light to challenge the constitutionality, we began tracing the history of Ontario’s child support law and of child support more generally. I assigned my articling student at the time, Andrew Sudano, to head to the Great Library to do some legal research. After much digging, Andrew learned that the concept of child support began with the introduction of the English Poor Act in 1576.
While Andrew was collecting all of the background materials, I began refreshing my memory as to the evolution of Canadian Constitutional case law and Section 15 Charter litigation case law. So voluminous was the case law it took me an entire week of reading on my couch at home.
I quickly realized I was going to need help. I began to assemble a formidable team of family law lawyers who were as invested in changing Ontario’s child support law as I was. Joined by five of the most well-known family lawyers in Ontario, we appeared in the Superior Court of Justice in Toronto in an effort to convince Justice Michael Penny that Ontario’s child support law needed to be amended.
On November 21, 2012 Justice Penny decided the father’s appeal based on other on issues, but not the Charter issues; however, he did recognize that Ontario’s child support law might be unconstitutional, which left the door open for a future challenge.
It would take another four long years, but that challenge came in 2016. A colleague contacted me about taking on a similar case: Coates v. Watson.
I agreed to represent Robyn Coates pro bono to help Ontario’s disabled adult children and other parents like Robyn.
Once again, I assembled a team of stellar lawyers to argue that Ontario’s child support law was unconstitutional.
Unlike the Vivian case, the media took notice of Coates v. Watson. I was asked to do several interviews and I was happy to oblige in order to raise awareness of the need for ongoing child support for disabled children of unmarried parents and to bring attention to the pro bono aspect of the case.
On March 24, 2017, this time on Robyn Coates’s behalf, I again attended court to argue that Ontario’s child support law did not conform to the values that underpin the Charter and Canadian values. Quite unlike my usual court appearances in my day-to-day practice, members of the media were present to report on the issue, one I believed was of broad societal importance to all Ontarians.
I even invited my parents to sit in the courtroom and watch the arguments before the Honourable Justice Sullivan. Personally and professionally, this moment embodied the very reasons why I went to law school and personified my calling to practice law.
At the end of the Court appearance, Justice Sullivan, in an unusual move, allowed all of the lawyers and the clients seeking to change Ontario’s child support law, to take pictures while they were standing behind the Bench. Robert keeps those pictures in his office as a constant reminder of what turned out to be a momentous occasion not only for his client but in advancing the cause of social justice and the advancement of the law in Ontario.
The pictures that were taken that day serve as a constant reminder, particularly on difficult days when I become weary, of the larger societal importance of what dedicated lawyers can and do achieve when they go to work.
From March 5 to 30, 2018, OBA members can volunteer for the Free Legal Advice Hotline to assist low-income Ontarians who can't afford a lawyer and desperately need help with everyday legal problems. View further information..
About the author
Robert Shawyer is the founder of Shawyer Family Law & Mediation. His practice focuses on collaborative law, mediation and litigation in the area of family law.