New Fairness for Children of Unmarried Couples A new Constitutional challenge is currently unfolding at the Brampton courthouse. 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 that 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. If you need assistance navigating your family dispute, Devry Smith Frank LLP’s family law group can provide you with the guidance and support that you require. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawMay 26, 2017June 24, 2020
Grandparents’ Custody and Access Claims Enhanced by Amendments to Ontario’s Children’s Law Reform Act Parents’ separations can mean difficult transitions for children. Grandparents very often play a special role in these circumstances, providing their grandchildren with stability and unconditional love when they need it most. These times of transition, however, can also lead to parents and grandparents becoming estranged from one another, such that grandparents’ access to their grandchildren can be abruptly reduced or terminated. In Ontario alone, an estimated 75,000 grandparents have been denied access to their grandchildren (as reported here). Recent amendments to the Children’s Law Reform Act (the Act), in force since January 1 of this year, may help such grandparents. Section 21 of the Act has been amended to make specific reference to grandparents as among the parties who can bring an application for custody or access. Subsection 24(2) , which lists factors used to determine the best interests of the child, has been amended to specifically refer to “a parent or grandparent” as among those whose “love, affection and emotional ties” to the child must be considered. In context, the amendments are as follows: Application for custody or access (1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. R.S.O. 1990, c. C.12, s. 21; 2016, c. 23, s. 3; 2016, c. 28, s. 1. Merits of application for custody or access (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1). Best interests of the child (2) The court shall consider all the child’s needs and circumstances, including, (a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; What’s Changed? The amendments consist of only eight added words – fewer characters than your average tweet. While hardly revolutionary, some things certainly have changed. Grandparents were always able to bring applications for custody of, or access to, their grandchildren – they were simply included as “any other person” under section 21. Likewise, considering the “love, affection and emotional ties between the child” and others, including a grandparent, was always required of judges in determining what custody or access arrangement was in the best interests of the child (section 24). Now, however, judges must specifically consider these ties between child and parent, and child and grandparent, rather than simply between the child “and those entitled to or claiming custody or access.” In other words, the grandparent-grandchild relationship is now expressly considered as a component of the best interests of the child. While it is too early to tell whether and how the courts might seize on this amendment, one might expect that all else being equal, the courts would be more likely to make an order granting access to one’s grandchild. After all, to the extent the grandparents play a positive role in a child’s life, it will be difficult to argue that their role should be reduced or halted in the child’s best interests. Parental Autonomy Undermined? Some of you may be thinking, “Wait, what if the parent has a good reason to keep their kid(s) from their grandparent(s)? Aren’t parents better placed than courts to decide what’s best for their kid(s)?” These and other issues were raised during a parliamentary debate. To be clear, the amendments do not require that grandparents be given access or custody, just that their unique relationship with grandchildren be considered in making those determinations. Of course, a parent may have a sound, child-focussed rationale for denying grandparents access to the child. In such a case, it is the best interest of the child (or grandchild) which will determine the outcome. These amendments, appear to be aimed at cases where grandparents’ access is unreasonably withheld. Consider, for example, loving maternal grandparents, previously heavily involved in a child’s life, who are now denied access because the father, who was just awarded sole custody, has decided that it is no longer necessary for them to continue seeing their grandchildren. In this all too common scenario, the decision to deny access is not based on the child’s best interests. Indeed, it may well be harmful to the child. This is where the courts have been instructed by Parliament to intervene. Parental autonomy is important, but the law is clear: the best interests of the child are the courts’ predominant concern. Given these amendments, the grandparents in question may now have a better chance of asking a court to grant them access in the face of the parent’s objections. What happens next? These amendments will be welcomed by the thousands of grandparents who might find in them some hope of reuniting with their grandchildren. Some parents may instinctively object to the courts second-guessing their choices, but, as a society, we’ve long restricted parents’ behaviour where it is seen to harm their children. Thanks to these amendments, a judge must now specifically consider a grandparent’s important role in a child’s life. Are you a grandparent seeking access to, or custody of, your grandchild? The experienced family lawyers at Devry Smith Frank LLP can help. For any family law concern, please do not hesitate to contact us at 416-449-1400 in Toronto, 705-812-2100 in Barrie, or 289-638-3171 in Whitby, or send us an email at info@devrylaw.ca. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawMay 23, 2017June 23, 2020
