Charter challenge of Ontario child support law gets green light.

A provincial court justice has agreed to hear a constitutional challenge of Ontario's child support laws.

Thestar.com
Nov. 23, 2016
By Laurie Monsebraaten

Wayne Watson’s seemingly losing bid to terminate child support payments for his disabled adult son took an unexpected turn in Brampton Court Tuesday.

A lawyer who saw a Saturday Star story about single mother Robyn Coates’s constitutional claim that Ontario’s Family Law Act discriminates against disabled children, has offered to represent Watson’s side of the case pro bono as a “friend of the court” so that it can proceed.

“I am here to assist with some of the law that will help you make the decision on the constitutional issue,” lawyer Michael Tweyman told Justice William Sullivan.

Sullivan, who said the issue is “significant and important” and needs to be resolved, agreed to Tweyman’s participation and set a date in March 2017 for a full hearing.

Tweyman and Coates’s lawyer Robert Shawyer litigated the constitutionality of child support under Ontario law in provincial superior court in 2012. Tweyman represented the father’s side in that case, but the judge ruled on the merits and made no decision on the constitutional question.

“I’m a person who is passionate about the law and interested in important family law issues,” Tweyman said in an interview. “It seemed like no other side was going to be put forth and I thought it would be beneficial to the court to at least know the other legal side of the argument.”

Watson, who was planning to “throw myself on the mercy of the court” because he could no longer afford a lawyer in the case, said he was “thankful” for Tweyman’s involvement.

Under Ontario law, adult children are eligible for child support only if they are in school full-time. Since Watson’s son Joshua will be 22 next month and is no longer in school, the father says he is no longer required to pay.

But if Watson and Coates had been married and divorced, it would have been another story.

Under the federal Divorce Act, children with disabilities are eligible for child support into adulthood whether they are in school or not.

As a result, Coates is questioning the constitutionality of Ontario’s law. If children of divorced parents can claim support for both education and disability beyond age 18, then children born to parents who were never married should enjoy the same rights, she argues.

Coates says she needs child support to help defray the costs of day programs for Joshua that can run as high as $1,400 a month.

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, said Shawyer who is representing Coates pro bono.

Watson and Coates never lived together or married. But Watson has paid court-ordered child support since Joshua was 4 and never missed a payment. He 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.

Coates says she tried to foster a relationship between Joshua and his father, but gave up when the boy was 6 due to Watson’s resistance. Watson is married with two other children, ages 16 and 19.

Although Tweyman has sympathy for single parents of disabled children of any age, he said he will argue that the legislature and not the courts should change child support provisions under Ontario’s Family Law Act.

The attorney general’s office advised Coates and Watson last March that the province would not be intervening in the case.

“The ministry of the attorney general is always willing to consider proposals for reforms to Ontario’s family laws,” a ministry spokesman said in a statement.

“The ministry of community and social services provides funding and services designed to help adults 18 years or older with a developmental disability to participate in their communities,” added Brendan Crawley. “It also helps caregivers of an adult with a developmental disability take a break from their care giving responsibilities.”