This case is a monumental breakthrough in family law legislation. A mother challenged the constitutionality of child support provisions. The issue before the Court was whether section 31 of the Family Law Act (FLA) discriminated against adult disabled children of unmarried parents on the basis of parental marital status and disability, violating section 15 of the Canadian Charter of Rights and Freedoms.
The adult child was born with a rare genetic condition which prevented him from attending school, working and withdrawing from his mother’s care. His mother and father were never married or divorced, so they were not entitled to make claims under the Divorce Act because this legislation only applies to married people. Instead, claims for child support were made under the FLA. The father acknowledged a support obligation for his son until he turned 18 years old. Subsequently, the father wanted to cease child support obligations since the child is now 20 years old and therefore no longer entitled to child support as an adult child under the FLA. Adult children are entitled to child support under the FLA only if they are enrolled in full-time education.
Since child support must be claimed under the FLA due to the marital status of the parents, it is clear that legislation under the FLA treats unmarried parents differently than married parents, which ultimately calls into question the constitutionality of this legislation. As a result, the mother applied to the Ontario Court of Justice for a declaration that section 31 violates section 15 of the Charter – the right to equal protection and benefit from the law without discrimination, and section 7 – the right to life liberty and security of the person.
Furthermore, it is the mother and her child’s position that the legislation as drafted is discriminatory when compared to the treatment of married parents of disabled children because it denies her and her child the right to claim child support after the child turns 18, despite ongoing lifelong need.
Justice Sullivan found it to be obvious when reading the FLA and the Divorce Act together that the FLA discriminates between adult disabled children of once married parents and adult disabled children of parents whom were never married, which as a result violated section 15. Further to this, the FLA assumes that children over the age of majority will be self-sufficient unless they are in school full-time. The FLA fails to consider the needs and circumstances of adult children who are unable to withdraw from a parent’s care or obtain the necessaries of life by reason of temporary or permanent disability.
Ultimately, Sullivan J. found that section 31 of the FLA did not violate the child’s right to life liberty and security of the person (i.e. section 7). However, Sullivan J. found that section 31 was discriminatory against dependent children with disabilities born to unmarried parents, which renders this provision unconstitutional.
It was only a matter of time before section 31 of the FLA was successfully challenged. It will be interesting to see how legislation evolves to reflect this ruling.