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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