Monday 17 July 2017

Can a mother get child support for an adult child?                                                      

Children need financial support from their parents and they have a legal right to it. When parents separate or divorce, they should try to agree on the amount of child support. If they ask a court to decide, a Canadian court will use child support guidelines to determine child support payments. Some child support guidelines fall under federal law, while others fall under provincial or territorial law. Under provincial law, which also governs unmarried parents, adult children are eligible for child support however that only applies if they are attending school or college full-time. That law is about to change. More on that later in this article.

When I was practicing law, I prepared Separation Agreements for couples and included in the Agreements were child support and visitation obligations and rights. As far as I know, none of those Agreements were broken. If they were, my clients would have told me. 

In one particular case that I undertook, I was acting in family court on behalf of one of my clients. It was a really interesting case. Here are the particulars of that case.

I was acting for the mother of her ten-year-old son. She and her husband were separated and he obtained a court order to care for their son without ever having first served my client with his court motion. He obtained judgement and my client’s son was seized from her home and began living with his father. My client according to her former spouse wasn’t permitted to communicate with her son but she did know where he lived with his father.  

At her request, I brought in a motion for the court to review the circumstances of the seizure. Meanwhile, the court ordered that my client could visit her son in a supervised setting. During one of those visits, the boy’s father spit in his son’s face. When this was brought to the attention of the judge, he ordered that my client’s son was to live with her and her former spouse would have no visitation rights and was ordered to pay child support to my client.  

In Canada, a child becomes an adult at the age of eighteen.  If the adult child of a parent is going to a school or college, there is a legal obligation of the child’s parents to support the child unless one or both parents are financially unable to support the child.   Generally the supported child is living with one of the parents and more often, it is the mother. If is, she will be given the support money from her former spouse. I should add this law also applies in cases where both parents are of the same sex.  

If the parent looking after the child can’t get the support from her former spouse because the former spouse is deceased, missing, incarcerated or hospitalized, the provincial government will pay the support to the surviving parent who is caring for the child.

Should a separated parent pay support to his or her former spouse for his or her adult child if the child isn’t going to college? Recently that question was asked in a family court in Ontario.

The son (Joshua Robyn) of a single mother is disabled, twenty-two years of age and is not going to school or college, and requires child support for her son.

As I said earlier, under Ontario provincial law, which governs unmarried parents, adult children are eligible for child support only if they are in school full-time.  Since Joshua wasn’t going to school, his mother didn’t qualify for government support for her son. She subsequently turned to the family court in Brampton, Ontario for relief. She launched a constitutional challenge to win child support for her 22-year-old disabled son.

Adult children with disabilities are eligible for child support in every province except Ontario and Alberta regardless of the parents’ previous marital status and whether children are in school or not.

In his precedent-setting decision, Justice William Sullivan agreed with Robyn Coates that Ontario’s Family Law Act discriminates against adult children with disabilities because it denies them access to child support.

Under the federal Divorce Act, an adult child who is unable to live independently due to disability, illness or other cause is eligible for support as long as they need it. Sullivan’s ruling, which adopts the federal Divorce Act wording for the case, means Coates’s son Joshua is eligible for child support from his estranged father Wayne Watson who up to now wasn’t paying full support for his son.

Judge Sullivan said in his 60-page decision, “I find that Section 31 of the Family Law Act had shut the door to Joshua Robyn to (be able to) have a court in Ontario consider his needs. 

Sullivan ruled that Ontario’s child support law violates section 15 (1) of the Canadian Charter of Rights and Freedoms that prohibits discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

“The court recognizes that it is discriminatory to limit access to the family law court for adult children with disabilities and their parents,” said lawyer Joanna Radbord, an intervener in the case representing Family Alliance Ontario, an organization that supports individuals with disabilities and their families. Hopefully we are finally going to get the government to make a change so that children and their parents will be free to access child support on a non-discriminatory basis. It’s going to advance equality in Ontario,” added Radbord, who also acted on behalf of the Sherbourne Health Centre, which supports LGBTQ parents and children,

“I am extremely happy,” said Coates, 48, who launched the Charter case in November 2015. “I (now) feel like Joshua is being treated like children of married couples. I feel we are equal. I don’t feel like we are being discriminated against, like we have been (in the past.)

Coates and Watson never lived together or married. But Watson has paid court-ordered child support since Joshua was 4. The father paid $319 a month for almost 13 years until a court-order increased support to more than $1,000 a month. He currently pays about $800 a month.

Watson, now 46, has said he recognizes his son is disabled, but he noted that programs such as the Ontario Disability Support Program are there to help adults with disabilities. That is true and whatever his son earns, it will be deducted from what he has to pay towards his son’s support.

In all likelihood, the Ontario government will pay towards the support of his son but Watson in turn will have to pay the government each month as the government keeps paying for the boy’s support less what the boy earns.

Joshua was born with Di George Syndrome, a genetic abnormality that causes multiple medical and psychiatric problems that his doctor says are “chronic, severe and debilitating. He has trouble paying attention, suffers from anxiety and obsessive compulsive behaviour and will require the care and supervision of others throughout his life,” according to his doctor.

Watson said in an interview, “I wasn’t expecting this. This is a total shock. I thought this would have been over with a long time ago. I have put myself in debt because of it and figured once (my child support obligations) were over I’d be able to get myself out of debt.” Watson is married with two other children ages 15 and 21. I think Watson will be paying towards the support of his third son for a very long time.

There is a lesson to be learned here. I address this message to men reading this article. If you want to have sex with a woman you aren’t married to, make sure you take proper steps so she doesn’t become pregnant with your baby. Watson has paid out more than $7,000 so far in support payments for his third son’s support and he will pay a great deal more money in child support as the years go by for the birth of his child he didn’t expect and who will live much longer than school age at a time when child support payments generally stop. I’m thinking that Watson may be wondering if self-masturbation would have been a better option when he was going out with Joshua’s mother.

The Ontario provincial government has stated that it will table an amendment to Ontario’s Family Law Act this fall to give adult children with disabilities access to child support. It is highly unlikely that any member of the Ontario legislature with not vote in favour of the amendment.  

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