A new Constitutional challenge is currently unfolding at the Brampton court house. Robyn Coates is challenging the validity of Ontario's Family Law Act on behalf of her 22 year old son, Joshua Coates. Joshua has DiGeorge syndrome and suffers severe cognitive impairment.
Robyn is arguing the law is discriminatory as it arbitrarily harms disabled children of non-married parents. Coates wants Joshua's father, Wayne Winston, to continue paying child support payments for the rest of Wayne's life.
Watson, despite not seeing Joshua since he was six, has paid child support throughout the boy's life. With a wife and two kids, and not enough money to even pay his own legal bills, Wayne thinks he has paid enough. Wayne believes Joshua should be covered by Ontario Disability Support Programs.
Ontario Disability Support Programs assist people like Joshua, but his mother argues this is insufficient. Robyn believes Joshua requires day programs to live a more enriched life, which can cost between $3,500 – $17,000 per year.
When a couple gets divorced, their disabled child is eligible to receive child support payments for the duration of their lives. However, if the couple is never married, Ontario's Family Law Act states that child support only continues where a child is in full-time post-secondary education.
Child support for divorced parents is governed by the federal Divorce Act. The Divorce Act allows disabled individuals to receive child support from their parents beyond their eighteenth birthdays. For non-married parents, child support payments are based on provincial Family Law Acts, which in Ontario, make clear that support will only continue to be paid in circumstances where a child is enrolled in full-time post-secondary education. Alberta has similar legislation to Ontario, while the rest of the provinces are aligned with the federal Divorce Act.
What is at issue in this decision is not whether the law is bad or immoral, but whether it is unconstitutional, which requires the law to be discriminatory.
Robyn Coates is a resource worker helping students with disabilities, and is hoping to send a message with this action. Robyn has given quotes which indicate this case is about more than Joshua, but about all children with disabilities from unmarried parents, receiving care. Robyn said: "Many women are raising these kids alone and they are living in poverty. And nobody seems to give a damn," and "I don't want any other mother to go through this." However, even if the court is unpersuaded by Robyn's argument, the media attention this case is generating might be sufficient to motivate the legislature to act.
This challenge raises some important questions about family law legislation in Ontario. Should non-married parents be treated differently than married parents? Presently, the law dictates the act of creating a child only mandates 18 (plus any additional school years) years of legal responsibility, while the act of marriage (and divorce), makes the parents responsible (by law) to the child for their entire life.
The court will have to assess if the is law trying to distinguish between divorced parents and non-married parents. If the law is not trying to achieve this purpose, it would be arbitrary for the law to in effect, treat disabled children of non-married parents differently than disabled children of divorced parents. Given Ontario's Family Law Act does not distinguish between divorced and non-married parents in other capacities, it is likely that the law in question is arbitrary and therefore, discriminatory.
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