Family law in Canada is a strange creature, inasmuch as it is both federally and provincially/territorially regulated.
Federal law is restricted to the Divorce Act which, as the name indicates, only applies to people who are seeking a divorce. Obviously, this means they must initially have been married to one another, which is increasingly uncommon in Canada. When someone applies for a divorce, they can also use the federal legislation to assist them resolve what the law calls corollary issues: all the other messy bits and pieces that accompany the breakdown of a marriage.
Provincial/territorial laws, on the other hand, apply to everyone whose relationship is ending and who need the law to help them resolve the many issues that arise in such situations.
People who are married can use provincial laws to sort out issues such as custody, access, child and spousal support and the division of property and then, later, apply for a divorce if they want them.
Divorce is expensive and slow
There are practical reasons for this: applying for a divorce requires payment of a hefty fee, which not all people have at the ready when their marriage ends, and there must be a one-year period of separation before a no-fault divorce can be granted, which may be too long to wait to resolve more immediate issues related to children and finances.
While all of the laws are more or less in step with one another, there are some dissimilarities that can lead to a less than equitable situation for some families.
Just such a situation recently made the news when single mother Robyn Coates went to court with a constitutional challenge to Ontario’s child support laws. Her argument, which was successful, addressed the inconsistency between the Divorce Act section 2(1) and the Family Law Act section 31(1).
Child support differences
Section 2(1) of the Divorce Act states that, for the purpose of determining eligibility for child support, a child is still considered a child of the marriage even if the child is over the age of majority (which is 18 years of age), in situations where that child is unable because of illness, disability or other causes to withdraw the parents’ care and be self-sufficient.
Section 31(1) of the Family Law Act, on the other hand, extends eligibility for children support past the age of 18 only if a child is enrolled in a full-time program of education.
In other words, a parent in Ontario seeking child support for a child who is over the age of 18 and has an illness or disability such that the child cannot become independent can only do so if she is married to her child’s father and the child support application is part of a divorce proceeding.
Clear case of discrimination
There is little doubt that this discriminates against adult children with disabilities whose parents were never married, as Justice William Sullivan found in his decision earlier this year. He ruled that Ontario’s legislation violates section 15(1) of the Charter of Rights and Freedoms, which prohibits discrimination on the basis of a number of factors, including mental or physical disability and family status.
As a result of this decision, the Ontario government will be introducing an amendment to the Family Law Act when the legislature resumes sitting this fall to ensure access to child support for adult children with disabilities. This will bring Ontario in line with every other province/territory except Alberta which, like Ontario to date, does not protect the right of adult children with disabilities to receive child support.
Let’s hope that all three parties in the Ontario legislature will see the wisdom of passing this amendment with a minimum of the usual political posturing and rhetoric.