Shortly after being called to the bar I had the unique opportunity of acting as counsel in a constitutional case challenging section 31 of the Family Law Act (“the Act”). Recently, I was provided with the opportunity to advance yet another constitutional challenge to section 31 of the Act on behalf of my client.
The case – Coates v. Watson, 2017 ONCJ 454, released on July 7, 2017 and written by the Honourable Justice Sullivan – received significant coverage in media outlets including the Toronto Star. Coates v. Watson represents a victory for a variety of historically discriminated against groups, namely individuals with disabilities, children of LGBTQ same-sex parented families, custodial parents who are overwhelmingly women, and children born of unmarried parents.
In Coates v. Watson I represented Joshua Coates, a child above the age of majority who suffered from lifelong disabilities. The constitutional challenge to section 31 was premised on the distinction under the Act between the treatment of children of married parents and children of common law parents, which is apparent upon a plain reading of the legislation when compared to the Divorce Act. Justice Curtis in Vivian v. Courtney, 2010 ONCJ 768 articulated the distinction at paragraphs 26-29 of her judgment:
26. Under the Divorce Act, 1985, c. 3 (2nd Supp.), as amended, married or divorced parents have the legal obligation to support a child over the age of majority who is ill or disabled and unable to support herself:
Child support order
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
Definitions
2. (1) In this Act,
"child of the marriage"
"child of the marriage" means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;
27. The law for the children of unmarried parents is different. The obligation of an unmarried parent to support a child is set out in s. 31(1) of the FLA:
Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.
28. The child who is over the age of majority and from unmarried parents has no prima facie right to child support on the basis of illness or disability, as does the child of married parents. The child of unmarried parents who is over the age of majority must satisfy the requirement in s. 31 FLA of "enrolled in a full-time program of education" to continue to be eligible for support.
29. Children whose parents are married are treated differently than children whose parents are not married. Children of married parents had a long and now mostly historical advantage over children whose parents were not married. Some of this advantage was rooted in moral analysis about shame and blame assigned to unmarried parents, in a construct from another era, regarding children born "out of wedlock", an old-fashioned and now seldom used expression.
In my most recent constitutional challenge to section 31 of the Family Law Act, Sullivan J. held that Section 31 of the Family Law Act violated Robyn, Joshua’s mother, and Joshua’s section 15(1) Charter rights and was not saved by section 1 of the Charter.
Sullivan J. further ordered at paragraph 229 that the word child in section 31 of the Family Law Act means a child who:
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
In reflecting on my experience, the opportunity to represent the lives of disabled adult children who need ongoing child support across the province was a significant, satisfying and humbling challenge. I learned about the love and sacrifice that my clients gave towards their children as they have often sacrificed their careers, money and future to care for their children with special needs. Finally, I realized the importance of social justice and the larger issues that we as lawyers need to advocate for in society at large, beyond the needs of our clients.
While the Toronto Star article notes that the provincial government intends on amending section 31 of the Family Law Act to reflect the Divorce Act, I wholeheartedly welcome the long overdue change to the legislation. At the same time, after my experience representing Joshua Coates, I am determined to continue challenging section 31 of the Family Law Act in future cases, if possible, until the provincial government amends this discriminatory law. I certainly did not expect to become a constitutional lawyer in law school; however, I feel fortunate and intensely motivated by the opportunity.
About the author
Andrew Sudano, Shawyer Family Law