Disability Changes Coming to the Family Law Act

Author:Omar Ha-Redeye
Date:July 09, 2017
 
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In 2006, the Supreme Court of Canada held in S (DB) v G (SR) stated,

60 No child support analysis should ever lose sight of the fact that support is the right of the child…

While this is trite law, the concept still comes up in unique circumstances such as with a disabled adult child who may have an entitlement to support under the Divorce Act, but would not under Ontario’s Family Law Act.

This distinction was explained in the Ontario Superior Court of Justice decision in Jason Vivian v. Nicole Courtney et al. in 2011,

[25] When children are born, parents assume a legal responsibility for them that is long-lasting and specific in law. However, the child support obligation of parents who are married is a slightly different one than the child support obligation of unmarried parents.

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 ins. 31 FLA of “enrolled in a fulltime 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.

The adult child in Vivian had Schimke Immunosseous Dysplasia (SID), but the support payor believed “that it is part of the provincial government’s policy that the social safety net, including social services, are intended to be the primary mode of financial support for adult children that are disabled”.

Justice Curtis rejected this argument, and stated,

[30] These laws, while directed at and defined by the parents’ legal status, functioned to disadvantage the children, who were blameless and innocent of decisions their parents made. As society changed, that has changed. These laws could not survive the introduction of the Canadian Charter of Rights and Freedoms, 1982, which provided certainty of equality for all Canadians.

[31] Distinctions for children based on the marital status of their parents were removed from most areas of Canadian...

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