Case Summary

The applicant mother sought to challenge the constitutionality of section 31 of the Family Law Act, which denies adult disabled children of unmarried parents the right to claim child support. The respondent father brought a motion to change to terminate child support obligations for his disabled adult son. The court found that section 31 of the Family Law Act violates section 15 of the Canadian Charter of Rights and Freedoms on the grounds of marital status, disability, and sex. The court rejected the respondent's federalism argument that provincial and federal legislation cannot be compared for Charter purposes. The court found that section 31 is not saved by section 1 of the Charter and declared that the definition of "child" in section 31 should be read to include adult children unable to withdraw from parental care due to disability or illness. interesting_citations_summary: > This decision provides significant guidance on substantive equality analysis under section 15 of the Charter, rejecting formalistic approaches that confine analysis to the four corners of impugned legislation. The court adopted a contextual approach examining the real-world impact of laws on vulnerable groups. The decision clarifies that provinces cannot enact under-inclusive legislation that perpetuates disadvantage of historically marginalized groups, even within their constitutional jurisdiction. The court addressed the intersection of multiple protected grounds (marital status, disability, and sex) and the concept of ableism in statutory interpretation. The decision also discusses the limits of federalism as a defense to Charter violations and the proper scope of section 7 (security of the person) claims. final_judgement: > Section 31 of the Family Law Act of Ontario violates Joshua and Robyn's section 15(1) Charter rights and is not saved by section 1 of the Charter. The section 7 challenge is dismissed. For the purposes of the motion to change, the word "child" in section 31 of the Family Law Act means a child who is under the age of majority and has not withdrawn from their charge, or is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. keywords: - Charter of Rights and Freedoms - Section 15 equality rights - Disability discrimination - Marital status discrimination - Family Law Act - Child support - Substantive equality - Ableism - Federalism - Constitutional remedy - Reading in areas_of_law: - Constitutional Law - Family Law - Equality Rights - Disability Rights legislation: - title: "Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982" url: "https://laws-lois.justice.gc.ca/eng/const/page-12.html" - title: "Constitution Act, 1867" url: "https://laws-lois.justice.gc.ca/eng/const/page-1.html" - title: "Family Law Act, R.S.O. 1990, c. F.3" url: "https://www.ontario.ca/laws/statute/900f03" - title: "Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)" url: "https://laws-lois.justice.gc.ca/eng/acts/d-3.4/" - title: "Children's Law Reform Act, R.S.O. 1990, c. C.12" url: "https://www.ontario.ca/laws/statute/900c12" - title: "Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B" url: "https://www.ontario.ca/laws/statute/970025" - title: "Child Support Guidelines (Ontario), O. Reg. 391/97" url: "https://www.ontario.ca/laws/regulation/970391" - title: "Federal Child Support Guidelines, SOR/97-175" url: "https://laws-lois.justice.gc.ca/eng/regulations/970175/" case_law: - title: "S (DB) v G (SR), 2006 SCC 37" url: "https://www.canlii.org/en/ca/scc/doc/2006/2006scc37/2006scc37.html" - title: "Vivian v Courtney, 2012 ONSC 6585" url: "https://www.canlii.org/en/on/onsc/doc/2012/2012onsc6585/2012onsc6585.html" - title: "Reference Re S. 94(2) of the Motor Vehicle Act (B.C.)" url: "https://www.canlii.org/en/ca/scc/doc/1985/1985canlii81/1985canlii81.html" - title: "Law Society of Upper Canada v. Skapinker" url: "https://www.canlii.org/en/ca/scc/doc/1984/1984canlii3/1984canlii3.html" - title: "Withler v. Canada (A.G.), 2011 SCC 12" url: "https://www.canlii.org/en/ca/scc/doc/2011/2011scc12/2011scc12.html" - title: "R. v. Turpin" url: "https://www.canlii.org/en/ca/scc/doc/1989/1989canlii1/1989canlii1.html" - title: "Vriend v. 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Jackson" url: "https://www.canlii.org/en/ca/scc/doc/1972/1972canlii141/1972canlii141.html" - title: "Zacks v. Zacks" url: "https://www.canlii.org/en/ca/scc/doc/1973/1973canlii137/1973canlii137.html" - title: "Paras v. Paras" url: "https://www.canlii.org/en/on/onca/doc/1970/1970canlii370/1970canlii370.html" - title: "Richardson v. Richardson" url: "https://www.canlii.org/en/ca/scc/doc/1987/1987canlii58/1987canlii58.html" - title: "Chaoulli v Quebec (Attorney General), 2005 SCC 35" url: "https://www.canlii.org/en/ca/scc/doc/2005/2005scc35/2005scc35.html" - title: "R v Morgentaler" url: "https://www.canlii.org/en/ca/scc/doc/1988/1988canlii90/1988canlii90.html" --- # ONTARIO COURT OF JUSTICE **Date:** July 7, 2017 **Court File No.:** Brampton 95-1547 --- ## BETWEEN: **ROBYN DENISE COATES** Applicant **- AND -** **WAYNE MARLON WATSON** Respondent **- AND -** **JOSHUA COATES** Added Party --- **Before:** Justice A.W.J. Sullivan **Reasons for Judgment** **Motion heard on:** March 24, 2017 **Further written submissions received ending:** April 17, 2017 **Released:** July 7, 2017 --- ### Counsel **Robert Shawyer** — for Robyn Denise Coates **Michael Tweyman, Gary Joseph (Amicus Curiae)** — for Wayne Marlon Watson **Andrew Sudano, Shelley Kierstead** — for Joshua Coates (added party) **Joanna Radbord** — Intervener - Family Alliance Ontario, Sherbourne Health Centre --- ## SULLIVAN J.: ### Table of Contents 1. Introduction (Page 2 – 3) 2. Litigation Background (Page 3 – 5) 3. Preliminary Ruling (Page 5 – 7) 4. The Constitutional Issue (Page 7 – 8) 5. Adjudicative Facts (Page 9) 6. Legislative History (Page 9 – 10) 7. The Arguments and Law re s.15 of The Charter (Page 10 – 25) 8. Arguments of Amicus (Page 25 – 36) 9. Discussion and Decision in s.15 Challenge (Page 36 – 40) 10. Section 7 Challenge (Page 40 – 43) 11. Section 1 Analysis (Page 43 – 49) 12. Summary of Final Orders (Page 49 – 50) --- ## 1. Introduction [1] This is the court's decision in the Notice of Constitutional Question filed on January 19, 2016 by the Applicant, Robyn Coates, framed as follows: **Paragraph 8 states:** The question to be argued is whether section 31 of the Family Law Act discriminates against adult disabled children of unmarried parents on the basis of parental marital status, disability and sex, contrary to s. 15 of the Canadian Charter of Rights and Freedoms. Schedule B to the Canada Act 1982, c. 11 (U. K.), the Charter. **Paragraph 11 states:** By denying an adult child qualification for child support on the basis of a disability, s.31 of the Family Law Act is contrary to s.15 or s. 7 of The Charter. [2] The parties to this matter are: a) The applicant mother, Robyn Coates (Robyn), biological mother of Joshua Coates (Joshua) born December 19, 1994. b) The respondent father Wayne Watson (Wayne), biological father of Joshua Coates (Joshua) born December 19, 1994. c) On August 16, 2016, this court made Joshua Coates a "Special Party" to the Notice of Constitutional Question filed by the applicant, thus adding him as a party (Joshua). d) On November 22, 2016, on consent of all parties based on the request of Mr. Watson, I appointed a lawyer, Mr. M. Tweyman as Amicus Curiae to assist in the constitutional arguments on behalf of Mr. Watson and the Court, given the public policy issues raised in this Constitutional argument (Amicus Curiae). e) As the date of argument approached, March 24, 2017, on the consent of all parties, I granted Intervener status to The Family Alliance of Ontario and the Sherbourne Health Centre (the Intervener). This was on the condition, the Intervener not add to the record, serve and file a Factum, not to exceed 30 pages, and not seek nor be subject to a cost award in this Constitutional argument. [3] The Department of Justice, and the Ontario Ministry of the Attorney General, both indicated through letters that they declined to intervene in this challenge to the constitutionality of sec. 31 of the Family Law Act. [4] The facts of the case are not in dispute. The adult child seeking support, Joshua, is disabled not attending school and that his parents were never married, and therefore claims for child support under the Divorce Act are not possible. [5] Amicus notes that the issues to be resolved do not depend on the extent of Joshua's disability, what the Applicant mother does to support Joshua, what Joshua's father has done to pay support properly and whether other children require support or any other fact that creates sympathies on one side or the other of this equation. [6] The Court is called on to answer a legal question which does not specifically depend on the situation of the parties. [7] As Amicus states -- This hearing provides an opportunity for a court to finally decide the merits of the issue of whether s.31 of the Family Law Act contravenes s.15 or s.7 of The Charter of Rights and Freedoms. The issue has been before the court before, but the appeal judge in that case allowed the appeal on the merits and declined to entertain The Charter issue. [8] The Appeal Judge referred to by Amicus was Justice Penny in [Vivian v. Courtney et al., 2012 ONSC 6585](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc6585/2012onsc6585.html). That court framed The Charter issues as: **Paragraph 72 states:** The Charter issues focuses squarely on whether an adult disabled child for child support independent of full-time enrollment with an educational institution **Paragraph 77 states:** The constitutional issue raised here is quite unique. The disparate treatment said to underpin the constitutional violation results from two pieces of legislation, one enacted by the federal government under its undoubted constitutional authority over 'marriage and divorces' (Constitution Act, 1867, S. 91.26), the other enacted under Ontario's undoubted constitutional authority over 'property and civil rights in the province' (Constitution Act S. 91.13). --- ## 2. Litigation Background [9] Joshua was born with a rare genetic composition which prevents him from working and withdrawing from his mother's care. Joshua is unable to live independently and will require care of others for the duration of his life. His mother, Robyn, has provided and continues to care for her son Joshua. [10] Wayne acknowledged a support obligation for his son until Joshua turned 18 in 2012. [11] On July 22, 2014 Mr. Watson (Wayne) filed a Motion to Change seeking to terminate his child support obligations set out in the order of Justice L. Parent dated May 1, 2014, at which time the court granted the mother child support for Joshua, in the amount of $880 per month based on an imputed income of $100,000 per year to Mr. Watson. [12] On September 15, 2015, I directed that Wayne's Motion to Change would be heard by a focused or directed hearing to be held on January 8, 2016. [13] Wayne is paying monthly child support of $630.00 based on a declared income of $69,000.00. This order was made by me on a without prejudice basis, on Jan 8, 2016. [14] In the case management of this matter I granted leave to the parties to cross examine on the distinct affidavit evidence that was to be filed by both. Cross examination was not conducted. [15] It comes as no surprise when I state that in I do not often encounter Charter arguments in family domestic matters dealing with motions to change child support orders. Charter arguments might on occasion be raised in child protection matters. [16] This in part possibly speaks to the settled nature of family law and in part to the unique issue to be dealt with in this motion. [17] Given the extensive legal arguments presented in this motion I have in writing this decision borrowed extensively from each of the parties' factums and reproduced their arguments to assure that the broader public is aware of the essence and logic of the arguments presented on this public policy issue before the court. I believe it would be a disservice to attempt to summarize these arguments at this stage. [18] Before we begin to review these arguments I wish to underline an issue that Amicus emphasized to the court in the close of its argument, which is that my role in this matter should be one exercised with caution when asked, as I am here, to review the constitutionality of a law properly enacted pursuant to Constitutional authority granted to the Ontario government. [19] The better venue, it is suggested, to resolve matters that are raised in this motion and Charter challenges in general, that often involve issues of politics, social values, moral and broader public interests, is the legislature where informed debate may eventually achieve the appropriate formula or balance between individual rights and freedoms and the broader public interest. [20] I have not ignored this concern when reviewing the respective arguments and the issues presented in this motion and in particular my function at this stage. I am guided by Justice Lamar's comments on this issue from the early life of The Charter when he stated in [Reference Re-S. 94 (2) Of the Motor Vehicle Act (B. C.)](https://www.canlii.org/en/ca/scc/doc/1985/1985canlii81/1985canlii81.html), [1985] 2 S. C. R. 486, at 497 (S.C.R.): > "It ought not to be forgotten that the historical decision to entrench The Charter in our Constitution was taken not by the courts but by the elected representatives of the people of Canada. It was those representatives who extended the scope of the constitutional adjudication and entrusted the courts with this new and onerous responsibility. Adjudication on The Charter must be approached free of any lingering doubts as to its legitimacy." In addition I note from the following written by Justice Estey, in 1984: > … The Charter comes from neither level of the legislative branches of government from the Constitution itself. ... With the Constitution Act, 1982 comes a new dimension, a new yardstick of reconciliation between the individual and the community and their respective rights, a dimension which, like the balance of the Constitution, remains to be interpreted and applied by the court. [Law Society of Upper Canada v. Skapinker](https://www.canlii.org/en/ca/scc/doc/1984/1984canlii3/1984canlii3.html), [1984] 1 S.C.R.357, at 365-367 (1984), 9 D.L.R. (4th) 161 at 167-168. [21] I am the first to question my role as a judge in this matter and do so each day in this role within our justice system. This decision that I have made will inevitably and understandably be questioned, reviewed and further debated, as it should, in our democratic society. [22] With the above in mind, I will now turn to a consideration of the issues presented in the course of this Charter argument. --- ## 3. Preliminary Ruling on Extent of Pleadings (Background Information) Filed by the Intervener [23] The Intervener in its factum provided background data and information regarding disadvantages to persons with disabilities within Ontario that it requests the court to consider in this matter. [24] Amicus opposed the introduction of this background information. In part it is argued that when the parties consented to the Intervener being given status the intervener was not to add to the record. [25] To resolve this issue and hear the main Constitutional arguments on the day of argument, I asked both the amicus an intervener to submit a two-page argument and law in support of their respective positions as to why the court should consider the Interveners facts that I was asked to consider. Both filed materials as requested, the last received by the court on April 17, 2017. [26] The Intervener argued that it produced in its factum uncontroversial contextual information of groups of individuals in our society that are disadvantaged. Intervener argued that this information was provided to: > … situate the equality claim in its full social, political and legal context and to more fully illustrate how the law "widens the gap" [Withler v. Canada (A.G.), 2011 SCC 12](https://www.canlii.org/en/ca/scc/doc/2011/2011scc12/2011scc12.html) at par 66 citing [R. v. Turpin [1998] 1 S.C.R. 1296](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii1/1989canlii1.html) at p. 1331. [27] Intervener states it is appropriate for this court to use judicial notice and logical reasoning. It suggests that the court may appropriately consider scholarly works such as Prof. Hogg's writing cited by the Amicus. [Law v. Canada (Minister of Employment & Immigration) 1999 Carswell Nat 359 (SCC)](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii675/1999canlii675.html) at paras 77 – 79. [28] In addition routinely the Supreme Court and other courts recognize that if a proposition has been accepted in prior cases, there is no need to adduce evidence on the point. The court will simply take judicial notice. Intervener notes in [Vriend v. Alberta](https://www.canlii.org/en/ca/scc/doc/1998/1998canlii816/1998canlii816.html) the Court stated … "the fact that homosexuals have suffered discrimination in all aspects of their lives was accepted in Egan… It follows that there is really no need to adduce additional evidence…" [29] Intervener argues that a significant number of the cases referred to have social facts that should be given judicial notice given that case law supports all propositions that are asserted. [Vriend v. Alberta](https://www.canlii.org/en/ca/scc/doc/1998/1998canlii816/1998canlii816.html), [1998] 1 S.C.R. 493 at paragraph 48. [30] Amicus argues against the ability of the Intervener to add to the record and that the order appointing Intervener clearly indicated that they would not add to the record and they have done exactly what they should not have done. [31] Amicus indicates that the Intervener's information is selective statistics and materials with one-sided social theories that could not be responded to it the last minute and as such is prejudicial. In addition Amicus argues that the Intervener added to its brief statistics and social theories regarding the LGBTQ community which it is argued has nothing to do with this matter. [32] Amicus further notes that in the decision of [M. v. H. The Ontario Court of Appeal](https://www.canlii.org/en/on/onca/doc/1996/1996canlii1754/1996canlii1754.html), struck the entirety of a brief except for non-controversial "legislative facts" the Court of Appeal indicated that in its opinion the material submitted was much too late and prejudiced both the appellant and the intervener in that matter. [33] Amicus urges the court to decide that I should only consider the Interveners submissions on section 7 and section 15 which relate to the issues before the court, which is whether section 31 of the Family Law Act offends section 7 or section 15 of The Charter of Rights and Freedoms due to discrimination based on marital status or disability. [34] I agree with Amicus that information relevant to the related issues before the court should be the information that this court considers in this matter. [35] I am concerned about the prejudicial effect that the added information presented by the Intervener at the last moment has not given the other parties the ability to properly test this information. [36] However, I note that in [Willick v. Willick](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii28/1994canlii28.html), [1994] 3 S.C.R.670, Justice Bastarache stated the following: > "I do not mean to say that a judge's power to take notice of social authority relevant to legal interpretation should be untrammeled. I share my colleagues concern that this power be exercise prudently by judges and that, where feasible, the parties should be accorded the opportunity to comment if the matter is susceptible to dispute." In so doing the Supreme Court indicated that in accepting undisputed facts…." ensures that this court's decisions will address and interpret the law placed within its social context." [37] As such I will consider the references by the Intervener to social facts that have been accepted in prior cases as an appropriate exercise of judicial notice as set out in Vriend. I will further restrict my consideration of statistics and information as it relates to the case for the subject matter involving Joshua as set out before this court. --- ## 4. The Constitutional Issue [38] Robyn and Joshua make the following primary submissions on The Charter issue: a) When reading the Divorce Act and the Family Law Act in unison, the totality of the law discriminates between adult, disabled children of once-married parents and adult, disabled children of never married parents, and therefore s.15 is violated; and b) Constitutional issues raised by Robyn can be considered. c) Economic rights have not yet been recognized as rights protected pursuant to s.7, but the jurisprudence does not foreclose such protections. Joshua submits that s.7 should be extended to protect his right to claim support from Wayne. [39] The Amicus' position on The Charter issues is summarized: The Ontario Family Law Act does not discriminate between the children of unmarried and married parents. Under the Family Law Act, marital status is irrelevant to the question of entitlement to support. Robyn's approach and submissions rest on a fundamental error which renders her entire s.15 analysis flawed ab initio. The federalist system in Canada, Ontario Amicus argues, does not permit the comparison and contrasting of laws at different levels of government. So long as each law itself does not discriminate, it is contrary to established Constitutional interpretation to find that two statutes of different levels of government, enacted based on different constitutional heads of power, discriminate when compared and contrasted with one another. [40] Robyn, Joshua supported by the Intervener argue that the consequences of the different legislative schemes is as follows: (i) children of intact married families can claim child support from either or both parents under the FLA for the purpose of continuing their education; (ii) children of intact common law partnerships can claim child support from either or both parents under the FLA for the purpose of continuing their education; (iii) children of intact married families or intact common law partnerships have no right to ongoing support after the age of majority solely on the basis of disability; (iv) children of divorcing or divorced parents can claim support both for education and in circumstances where the child remains dependent due to inability to withdraw from parental care; (v) children of separated common law partnerships do not have the right to claim support on the basis of disability; they can only claim support on the basis of continuing in a full-time program of education. [41] The result is that children in categories (iii) and (v) have fewer rights to support than children in category (IV). [42] Wayne seeks to uphold the distinction as a valid exercise of provincial legislative authority. He further maintains that Robyn and Joshua do not have standing to raise the section 7 argument. [43] Robyn and Joshua submit that the distinction discriminates against an identifiable class (disabled children of unmarried parents) and therefore violates section 15 of the Canadian Charter of Rights and Freedoms. Note that Joshua would have a similar problem even if his parents had been married and separated but had not commenced divorce proceedings. As such it is the deprivation of access to the wider ambit of entitlement under the Divorce Act that triggers this constitutional challenge. [Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [en by the Canada Act 1982 (UK), 1982, c. 11, Sched B] [Charter]] [44] Joshua adopts Robyn's position and further submits that the distinction violates section 7 of The Charter, which guarantees security of the person. This argument will entail an analysis of the nature of the family support obligation and indeed the nature of the concept of family, and family responsibility. In this context the current position of the Ontario government is germane. In a June 2011 discussion paper issued by the Commission for Review of Social Assistance in Ontario, the commissioners observed that "[s]ocial assistance is intended by the government to be used as a last resort when people have no other financial options." [Commission for the Review of Social Assistance in Ontario: Discussion Paper: Issues and Ideas June 2011; Francis Lankin, Munir Sheikh – commissioners at 13] [45] The support responsibility applies to divorced parents of disabled children; it also applies to adult children capable of contributing to the support of parents in need. Joshua submits that there is no principled reason to exclude children of common law partnerships from the security that accrues by being a family member born to unmarried parents. --- ## 5. Adjudicative Facts [46] Joshua adopts the Adjudicative Facts as set out in the Factum for the Applicant Mother, Robyn Coates. For the purpose of the argument under The Charter, the following facts are relevant and not in dispute by any of the Parties: (i) Joshua, born December 19, 1994, is the biological child of the Applicant, Robyn Denise Coates ("Robyn") and the Respondent, Wayne Marlon Watson ("Wayne"); (ii) Robyn and Wayne never married; (iii) Joshua was born with a rare genetic development known as a micro deletion of chromosome 22, which is also known as 22q11.2 Deletion Syndrome or Di George Syndrome; (iv) Robyn was granted Final Sole Custody of Joshua pursuant to the Orders of Justice J. Kerrigan Brownridge dated December 20, 1995, and Justice Wolder dated January 7, 1999; (v) Joshua is disabled and is unable ever to withdraw from parental care, and is not attending school or enrolled in any form of education. (vi) Robyn has cared for Joshua throughout Joshua's life and continues to do so; (vii) Wayne has been paying support since January 7, 1999, when Robyn and Wayne entered into Minutes of Settlement. (viii) Wayne commenced a Motion to Change on or around July 22, 2014, to terminate support for Joshua pursuant to section 31 of the FLA. [47] The information about Joshua's medical history, disability, and ongoing, lifelong needs can be found at Exhibits "A" through "C""J""L" of the Applicant's Form 14A Affidavit dated October 24, 2014 at Tab 11 of Vol. III of the Continuing Record and in the Applicant's Document Brief at Tabs 1 – 12, 26 – 31 and 37, which is Exhibit "A" to the Applicant's Affidavit dated April 28, 2015, and is found at Tab 1 of Vol. IV of the Continuing Record. --- ## 6. Legislative History [48] Both the Applicant an Amicus provided the court with extensive legislative history which shows the development of the law and social attitudes over hundreds of years dealing with children of unmarried parents. [49] I have considered this historical information and have grouped this legislative history as Schedule A and B for ease of reference to the reader. [50] It is important that this information is considered when understanding the arguments as outlines below dealing with the main constitutional challenge to section 31, the Ontario Family Law Act. Is it important to understand the development of the law over 150 years in Canada and Ontario to situate the function of the Family Law Act and for that matter the Divorce Act in terms of what they are meant to accomplish in our society. [51] In the legislative information/history that Amicus has provided, it emphasizes the role of the Ontario Disability Support Program (ODSP) as our societal responsibility to care for adult disabled children. [52] Amicus argues that the issue and or argument before this court does not raise questions of morality regarding Wayne's obligation to his support Joshua. [53] I agree with this in part in that the issue is whether either parent has a legal obligation depending on the outcome of how section 31 of the Family Law Act conforms to The Charter after this review. [54] In this historical background section Amicus added a brief comment that in this case, between Joshua and both his parents for support, if there is any support owed by a parent, it is the gap between Joshua's needs, and what he currently receives from his ODSP payments that will be the focus of attention. [55] This I agree with, and all parties would also agree that in this Constitutional argument the issue before this court is not that of a monetary gap but whether or not there is a rights gap in how the Family Law Act impacts or treats Joshua as a disabled adult child of unmarried parents in relation to how other children of married parents, with similarities to Joshua, are treated when seeking support from a parent. [56] Finally, Amicus notes that there is no presumption to support of an adult disabled child under the Divorce Act and the Child Support Guidelines. [57] With this in mind, I recommend the reader to review schedule A and B to situate the historical references and related and interconnected pieces of legislation to The Charter arguments which will consider as follows. --- ## 7. The Arguments and Law re s. 15 of The Charter [58] The Applicant and Joshua wishes to address the following legal issues in this case: These issues are support by the Intervener and opposed by the Amicus a) Does Joshua have standing to raise The Charter issues? b) Does section 31 of the FLA infringe or deny, in whole or in part, Joshua's right to equal protection and equal benefit of the law as guaranteed by section 15(1) of The Constitution Act, 1982 (The Charter)? c) Is Joshua's right to security of the person as guaranteed by section 7 of the Canadian Charter of Rights and Freedoms ("Charter") infringed by the provisions of section 31 of the FLA? d) If the answer to (c) and (d) s "yes" then is section 31 of the FLA saved by the provisions of section 1 of The Charter? [59] The relevant sections of The Charter are as follows: **Section 1** - The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. **Section 7** - Everyone has the right to life liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. **Section 15.(1)** - Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and in particular without discrimination based on race, national or ethnic origin, colour, religion, sex age or mental or physical disability. --- ### Issue One: Does Joshua have standing to raise The Charter challenge? [60] I will first turn my attention to the section 15 arguments of The Charter raised in this matter. Initially Robyn and Joshua raised the issue of whether they have standing to raise The Charter issues? A review of my notes from the arguments made in this motion, and the Amicus' Factum, do not show this to be an issue argued by Amicus in relation to the section 15 argument, but rather it was argued in regards to the section 7 argument. [61] Briefly the principal argument of Amicus in regards to the s. 15 challenge by Robyn and Joshua should fail… As it is based on their misunderstanding of the Federalist system (Summarized above in paragraph 39). [62] If I am mistaken and Amicus argues against either Robyn or Joshua making a section 15 argument, then I have decided that they do have this right for the following reasons. [63] On August 16, 2016, I made Joshua a special party to the constitutional question this decision and this was not appealed. [64] I further agree with the argument of Robyn and Joshua that the central issue in this matter touches them personally as they have argued below: a) The Supreme Court of Canada held in [S (DB) v G (SR)](https://www.canlii.org/en/ca/scc/doc/2006/2006scc37/2006scc37.html) that a core principal in the law relating to child support is that "child support is the right of the child." Contrary to Wayne's position, Joshua's right to child support is directly involved in this matter and therefore he has standing to raise The Charter issues. [S (DB) v G (SR), 2006 SCC 37 at paras 35-42, [2006] 2 SCR 231 [DBS]] b) Further, Joshua's exclusion from entitlement to child support under section 31 of the FLA as a disabled adult child of unmarried parents provides him with a special interest in the result of his litigation as it will have a significant financial impact on his daily life and well-being. This case is similar to the Appellants in [Withler v Canada](https://www.canlii.org/en/ca/scc/doc/2011/2011scc12/2011scc12.html), where the Supreme Court of Canada agreed with the trial judge that "...where the target of the impugned provision is the plaintiff and it is the plaintiff who suffers discrimination associated with her spouse's age, the plaintiff should have standing." As constructed, the legislation saddles Joshua with a burden, namely once he turned 18 he was expected to find an additional source of income to replicate Wayne's child support payments despite Joshua being disabled and unable to withdraw from Robyn's care. [Withler v Canada (Attorney General), 2011 SCC 12 at para 28, [2011] 1 SCR 396 [Withler]] c) The Applicant Mother's position is that a constitutional issue can be raised in the context of private litigation. In the case at bar, the Applicant is directly affected by the effects of s. 31 of the FLA and is prejudiced by not being entitled to child support as a result of having never have being married to the Applicant. Joshua will remain under the care and control of the Applicant Mother for the remainder of his life due to his permanent disability. Further, Joshua lives with the Applicant Mother, who provides him shelter and food and provides for his everyday needs. The Applicant Mother personally bears the burden of providing for her Joshua who will never be able to live independently. This burden would be compounded by a strict interpretation of s. 31 of the FLA that would result in a denial of ongoing child support and would be in the Applicant's respectful. --- ### Issue Two: Does Joshua's status as a disabled child of unmarried parents affect his right to support from either of those parents so as to disadvantage him when compared to disabled children of married parents who are divorced or divorcing? [65] Robyn and Joshua submit that the legislation as drafted, if applied as the Respondent suggests in his Motion to Change has the effect of discriminating against her and Joshua by comparison to formerly married parents of disabled children and disabled children of divorced parents because it saddles her and Joshua with a burden the law does not impose on someone else, namely a denial of the right to claim child support under the Divorce and a denial of child support after the age of 18 when a child is no longer enrolled in a full time program of education despite ongoing lifelong need [66] The denial of child support to disabled adult children of unmarried spouses breaches the section 15 equality guarantee, as it violates The Charter's guarantee of inclusion and respect for all persons. The Intervener outlines the following in its submissions regarding the concept of Equality: [67] The Supreme Court has described equality as "an elusive concept" and the most conceptually difficult Charter guarantee. The Court has struggled with its articulation. As a result, past equality decisions must be approached with care. [Andrews v Law Society (British Columbia)](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii2/1989canlii2.html), [1989] 1 SCR 143 at para 8 [Andrews] [Law v Canada (Minister of Employment and Immigration)](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii675/1999canlii675.html), [1999] 1 SCR 497, at para 2 [Law] [68] After the Supreme Court's first section 15 decision in Andrews, the court split in the approach to equality in the 1995 trilogy. The members of the court were finally reunited with the troubled Law test in 1999. The Law approach was heavily criticized and in large measure rejected by the Court in Kapp in 2011. Withler made considerable progress, but there were still aspects to be clarified in Quebec v A and Taypotat. [Egan v Canada](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii98/1995canlii98.html), [1995] 2 SCR 513 [Egan] [Thibaudeau v Canada](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii99/1995canlii99.html), [1995] 2 SCR 627 [Thibaudeau] [Miron v Trudel](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii97/1995canlii97.html), [1995] 2 SCR 418 [R v Kapp 2008 SCC 41](https://www.canlii.org/en/ca/scc/doc/2008/2008scc41/2008scc41.html), [2008] 2 SCR 483 [Kapp] [Withler v Canada (Attorney General) 2011 SCC 12](https://www.canlii.org/en/ca/scc/doc/2011/2011scc12/2011scc12.html), [2011] 1 SCR 396 [Withler] [Kahkewistahaw First Nation v Taypotat 2015 SCC 30](https://www.canlii.org/en/ca/scc/doc/2015/2015scc30/2015scc30.html), [2015] 2 SCR 548 [Taypotat] [69] The approach to s. 15 has been considerably refashioned over the past 3 decades and should continue to evolve to better prevent and remedy discrimination. The Supreme Court has distanced itself from the three-step test followed by the four contextual factors set out in Law. The Court has also abandoned its prior insistence on comparator groups. Proof of an offence to dignity is no longer required. It is also unnecessary for equality claimants to identify the operation of either stereotype or prejudice to establish discrimination. Now, where a law furthers disadvantage of an already disadvantaged group on the basis of a protected characteristic, it discriminates. [Withler, supra, at paras 41-67] [Kapp, supra, at para 22] [Quebec (Attorney General) v A, 2013 SCC 5 at paras 329-330] [70] Choice of status and the heterogeneity of the group are not barriers to acknowledging a breach of s. 15. The Supreme Court has abandoned the need for mirror comparisons and other formalistic approaches. Instead, it has moved toward a more flexible approach, emphasizing context and effects, attuned to the realities of disadvantage. [Quebec v A, supra, at para 325] [Kapp, supra, at paras 21-24] [71] The Chief Justice and Justice Abella wrote for the Court when they explained in Withler: > [The section 15] analysis involves looking at the circumstances of members of the group and the negative impact of the law on them. The analysis is contextual, not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation. [Quebec v A, supra, at para 331] [Withler, supra, at 3.] [72] The jurisprudence establishes a two-part test for assessing a section 15(1) claim: (i) Does the law create a distinction based on an enumerated or analogous ground? (ii) Does the distinction create a distinction create a disadvantage by perpetuating prejudice or stereotyping? [Withler, supra] The purpose of s. 15 remains "to eliminate the exclusionary barriers faced by individuals in the enumerated or analogous groups in gaining meaningful access to what is generally available… [T]he claimant's burden under the Andrews test [and to date] is to show that the government has made a distinction based on an enumerated or analogous ground and that the distinction's impact on the individual or group perpetuates disadvantage." [Quebec v A, Supra, at paras 319 and 323] The denial of child support under s. 31 of the FLA further disadvantages already disadvantaged groups, rather than remedying their inequality. Accordingly, the impugned provision discriminates contrary to s. 15. [73] Section 31 of the FLA discriminates in the following manner: (i) The impugned law subjects the claimants to differential treatment based on grounds protected by section 15, specifically marital status, disability and sex; and (ii) The differential treatment discriminates in a substantive sense. [R v. Kapp, 2008 SCC 41 [2008] 2 SCR 483 [Kapp]] The claimants are subjected to differential treatment based on protected characteristics. [74] Robyn and Joshua argue that the distinction between the treatment of children of married parents and children of common law parents is obvious. Justice Curtis in [Vivian v Courtney](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc6585/2012onsc6585.html), articulated the distinction at paragraphs 26-29 of her judgment: > 26. Under the Divorce Act, 1985, c. 3 (2nd Supp.), as amended, married or divorced parents have the legal obligation to support a child over the age of majority who is ill or disabled and unable to support herself: > > **Child support order** > > 15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. > > **Definitions** > > 2. (1) In this Act, > > "child of the marriage" > > "child of the marriage" means a child of two spouses or former spouses who, at the material time, > > (a) is under the age of majority and who has not withdrawn from their charge, or > > (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; > > 27. The law for the children of unmarried parents is different. The obligation of an unmarried parent to support a child is set out in s. 31(1) of the FLA: > > Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. > > 28. The child who is over the age of majority and from unmarried parents has no prima facie right to child support on the basis of illness or disability, as does the child of married parents. The child of unmarried parents who is over the age of majority must satisfy the requirement in s. 31 FLA of "enrolled in a full-time program of education" to continue to be eligible for support. > > 29. Children whose parents are married are treated differently than children whose parents are not married. Children of married parents had a long and now mostly historical advantage over children whose parents were not married. Some of this advantage was rooted in moral analysis about shame and blame assigned to unmarried parents, in a construct from another era, regarding children born "out of wedlock", an old-fashioned and now seldom used expression. [Vivian supra at paras 26-29] [75] Robyn, Joshua and the Intervener argue that the focus of s. 15 is on groups who are disadvantaged in the larger social and economic context. Under s. 31 of the FLA, a number of marginalized groups are adversely affected. The impugned provision has the effect of reinforcing, perpetuating or exacerbating disadvantage on the basis of marital status, disability, sex, sexual orientation and family status. [76] The root of s. 15 is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed. If the state conduct widens the gap between the historically disadvantaged group and the rest of society rather than narrowing it, then it is discriminatory. [Taypotat, supra, citing Corbiere, supra, at para 19] [Taypotat, supra, at para 20, citing Quebec v A at para 332] [77] The effect of the existing legislation discriminates between two groups of people: a) Disabled adult children of married and divorced or divorcing parents; and b) Disabled adult children of unmarried parents; or married but separated parents who do not divorce, thereby rendering the provisions of the Divorce Act unavailable [78] The Intervener articulated the following on how numerous vulnerabilities of certain groups are impacted by s. 31 of the FLA. I have outlined below Intervener's whole submission on these groups but in my decision consider those that relate to Robyn and Joshua's situation. [79] Intervener argues that persons who are disadvantaged frequently experience "many interwoven grounds of discrimination" which are best understood, as they are experienced, simultaneously: a) Children of married parents are entitled to child support in circumstances in which support is not available to children born to unmarried parents. b) The law also excludes adult children with illnesses, disabilities or other challenges, like coming out or gender transition, who are not able to leave their parents' charge or obtain the necessaries of life, and cannot attend school full-time. c) The detrimental impact of the impugned provision is felt by custodial parents, overwhelmingly women, and an economically vulnerable group. d) The class of unmarried parents more often includes LGBTQ same-sex parented families. [80] These vulnerabilities are experienced as a simultaneous tangle of inequality, but are here discussed separately for clarity. Still, the Intervener suggests that the effect of the impugned provision is not best reduced to only one ground; all grounds are triggered simultaneously by the impugned provision, causing multiple, overlapping disadvantaging effects. [Withler, supra at para 58] [Taypotat, supra, at para 19] [81] The legislative treatment of these groups of people is based solely on their parents' marital status. The economic consequences are dramatic. Disabled adult children of divorce have an ongoing right to parental support; disabled adult children of others, including intact married parental units, do not. For the purpose of this argument, these groups constitute the main comparator classes. [82] For a section 15 analysis, a formal comparison with a selected mirror group is not required; rather an approach should be taken that examines the full context, including the situation of the claimant group and whether the impact of the law is to perpetuate disadvantage or negative stereotypes about that group. [Withler supra] --- ### Marital Status Discrimination [83] The law is well settled that discrimination on the basis of marital status violates section 15 of The Charter. [Miron v Trudel](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii97/1995canlii97.html), [1995] 2 SCR 418 at paras 154-166, 124 DLR (4th) 693 [Miron] [84] The Supreme Court of Canada recognizes marital status as a permanent marker of potential discrimination. [Quebec v A, supra, at para 318] [Walsh v Bona, 2002 SCC 83](https://www.canlii.org/en/ca/scc/doc/2002/2002scc83/2002scc83.html), [2002] 4 SCR 325 (SCC) at paras 32 [Walsh], citing [Miron, supra, para 156.] [85] Across Canada, family law statutes have largely eliminated differential treatment between "illegitimate" and "legitimate" children, but s. 31 of the FLA has not been amended. Ontario and Alberta stand alone in foreclosing access to child support to adult children of unmarried parents not enrolled in school full-time but who remain in a parent's charge or unable to obtain the necessaries of life due to illness, disability or other cause. [86] It has largely been established post-Charter that it is improper to draw distinctions among children based on their parents' marital status. In Ontario, the legislature sought to remove the disabilities and stigma suffered by children born outside marriage through the enactment of the CLRA. In particular, the equal status of all children set out in s. 1: > **Rule of parentage** > > 1. (1) Subject to subsection (2), for all purposes of the law of Ontario a person is the child of his or her natural parents and his or her status as their child is independent of whether the child is born within or outside marriage. R.S.O. 1990, c. C.12, s. 1 (1). > > **Common law distinction of legitimacy abolished** > > (4) Any distinction at common law between the status of children born in wedlock and born out of wedlock is abolished and the relationship of parent and child and kindred relationships flowing therefrom shall be determined for the purposes of the common law in accordance with this section. R.S.O. 1990, c. C.12, s. 1 (4). [CLRA, supra, ss 1(1) and (4) as amended - Tab 34 of Book of Authorities] [AA v BB, 2007 ONCA 2 at paras 20-21, 83 OR (3d) 561 – Tab 2 of the Applicant Mother's Book of Authorities] [87] Further, section 2 of the CLRA reverses the old rule of construction at common law which excluded children born outside of the marriage. > **Rule of construction** > > 2. (1) For the purposes of construing any instrument, Act or regulation, unless the contrary intention appears, a reference to a person or group or class of persons described in terms of relationship by blood or marriage to another person shall be construed to refer to or include a person who comes within the description by reason of the relationship of parent and child as determined under section 1. R.S.O. 1990, c. C.12, s. 2 (1). [CLRA, supra, s 2(1) as amended] [88] In those provinces that did not engage in such reform, the Courts have repeatedly held that legislative distinctions which treat children of married and unmarried spouses differently violated the equality guarantee under section 15 of The Charter. The following areas were among those affected: a) Limitation provisions with respect to filiation proceedings and child support applications where the child was born to unmarried parents; b) The rights of unwed biological parents in the context of adoption; c) The enforceability of child support agreements between common-law spouses; d) The termination of child support agreements between common law spouses; e) The termination of child support from the father of a child born to unmarried parents upon the marriage of the child's mother; f) The inheritance rights of children born outside of marriage; and g) General entitlement to child support for adult children, as well as support for adult children born outside of marriage that are unable to remove themselves from their parents' charge. [W (DS) v H (R)](https://www.canlii.org/en/sk/skca/doc/1988/1988canlii5247/1988canlii5247.html), [1989] 2 WWR 481, 18 RFL (3d) 162 (Sask CA) [A (DM) K(R)](https://www.canlii.org/en/sk/skca/doc/1996/1996canlii4969/1996canlii4969.html), [1996] WDFL 1018, 22 RFL (4th) 65 (Sask CA) [D (PA) v G (L) (1998)](https://www.canlii.org/en/ns/nsfc/doc/1988/1988canlii9720/1988canlii9720.html), 89 NSR (2d) 7, 227 APR 7 (Fam Ct) [G (MJ) v M (KT) (1990)](https://www.canlii.org/en/ns/nsfc/doc/1990/1990canlii13161/1990canlii13161.html), 96 NSR (2d) 366, 253 APR 366 (Fam Ct) [K (L) v L (TW) (1988), 31 BCLR (2d) 41, 1998 Carswell BC 342 (Prov Ct)] [M (RH) v H (SS) (1994)](https://www.canlii.org/en/ab/abkb/doc/1994/1994canlii9087/1994canlii9087.html), 26 Alta LR (3d) 91, 121 DLR (4th) 335 (Alta QB) [Rath v Kemp (1996), 1997 ABCA 270](https://www.canlii.org/en/ab/abca/doc/1997/1997abca270/1997abca270.html), 200 AR 357, 26 RFL (4th) 152 (CA) [Williams v Haugen](https://www.canlii.org/en/sk/skkb/doc/1988/1988canlii5134/1988canlii5134.html), [1998] 2 WWR 269, 65 Sask R 207 (Unified Fam Ct) [M (N) v British Columbia (Superintendent of Family & Child Services)](https://www.canlii.org/en/bc/bcsc/doc/1986/1986canlii744/1986canlii744.html), [1987] 3 WWR 176, 34 DLR (4th) 488 (BCSC) [P (CE) vV (G) (1993)](https://www.canlii.org/en/sk/skkb/doc/1993/1993canlii9068/1993canlii9068.html), 45 RFL (3d) 424, 101 DLR (4th) 726 (Sask QB) [Milne (Doherty) v Alberta (Attorney General)](https://www.canlii.org/en/ab/abkb/doc/1990/1990canlii6570/1990canlii6570.html), [1990] 5 WWR 650, 26 RFL (3d) 389 (AltaQB) [Surette v Harris Estate (1998)](https://www.canlii.org/en/ns/nssc/doc/1989/1989canlii9561/1989canlii9561.html), 91 NSR (2d) 418, [1989] NSJ No 262 (QL) (SC (TD)) [Tighe (Guardian ad litem of) v McGillivray Estate (1994), 1994 NSCA 28](https://www.canlii.org/en/ns/nsca/doc/1994/1994nsca28/1994nsca28.html), 112 DLR (4th) 201, [1994] NSJ No 61 (QL) (CA) [PT v RB, 2004 ABCA 244](https://www.canlii.org/en/ab/abca/doc/2004/2004abca244/2004abca244.html), 242 DLR (4th) 30 [Massingham-Pearce v Konkolus](https://www.canlii.org/en/ab/abkb/doc/1995/1995canlii9079/1995canlii9079.html), [1995] 7 WWR 183, 13 RFL (4th) 313 (Alta QB) [Massingham-Pearce] [89] Joshua's only potential statutory access to support is governed by his parents' marital status. Disabled children of divorced parents have the statutory right to support which is not available to Joshua. As noted above, the Ontario legislation discriminates between dependent disabled children and non-disabled children who continue to be dependent as a result of enrolment in continuing education. In effect, this distinction between disabled and non-disabled children creates a further comparator class. [90] When read alone, the FLA discriminates between dependent children whose dependency stems from continuing in a course of education and dependent children who remain dependent by virtue of disability. [91] According to the Supreme Court of Canada in [Withler, supra](https://www.canlii.org/en/ca/scc/doc/2011/2011scc12/2011scc12.html) it is not necessary to pinpoint a particular group that corresponds to the claimant group except for the personal characteristic or characteristics alleged to ground the discrimination. Further"this provides the flexibility required to accommodate claims based on intersecting grounds of discrimination." [Withler, supra at para 63] [92] Section 15(2) of The Charter recognizes that there may be instances in which legislation or other governmental activities discriminate in order to promote societal objectives. Robyn and Joshua argue that is not the case here. Discrimination against disabled children of unmarried parents cannot be a societal objective. Further, the legislation adversely affects women and the children in their care. The Supreme Court of Canada has taken judicial notice that responsibility for child care is largely assumed by women and that one of the consequences is economic deprivation – the feminization of poverty. [Moge v Moge](https://www.canlii.org/en/ca/scc/doc/1992/1992canlii25/1992canlii25.html), [1992] 3 SSCR 813 at paras 91-92, 99 DLR (4th) 456 [New Brunswick Minister of Health and Community Services v G (J)](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii653/1999canlii653.html), [1999] 3 SCR 46 at para 113, 177 DLR (4th) 124 [G (J)] [93] In G(J), Justice L'Heureux Dube noted: > This case raises issues of gender equality because women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings: see, for example, M. Callahan"Feminist Approaches: Women Recreate Child Welfare", in B. Wharf, ed., Rethinking Child Welfare in Canada (1993), 172. The fact that this appeal relates to legal representation in the family context for those whose economic circumstances are such that they are unable to afford such representation is significant. As I wrote in [Moge v. Moge](https://www.canlii.org/en/ca/scc/doc/1992/1992canlii25/1992canlii25.html), [1992] 3 S.C.R. 813, at p. 853"In Canada, the feminization of poverty is an entrenched social phenomenon." The patterns of relationships within marriage disproportionately lead to women taking responsibility for child care, foregoing economic opportunities in the workforce, and suffering economic deprivation as a result: Moge, supra, at p. 861. Issues involving parents who are poor necessarily disproportionately affect women and therefore raise equality concerns and the need to consider women's perspectives. [G (J), supra at para 113] [94] Substantive equality is grounded in the idea that "[t]he promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings deserving of concern, respect, and consideration." Substantive equality requires the Court to focus on the actual impact of the impugned law from the perspective of a reasonable person in the circumstances of the claimants, taking into account the social, political, economic and historical factors concerning those it effects. [Withler, supra at para 39] [Kapp, supra at 15] [Egan v Canada](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii98/1995canlii98.html), [1995] 2 SCR 513 at para 39, 124 DLR (4th) 609 [Egan] [95] Joshua and Robyn submit that the legislative distinction, if anything, exacerbates the potential financial prejudice to disabled dependent adult children of common-law relationships, and by extension to their caregivers. For the most part, their caregivers are women - generally mothers. The consequences of post-separation poverty arising from inadequate support are insidious and wide-ranging. Moreover, these effects are so pervasive that they have been studied to the extent that courts over the past 20 years routinely take judicial notice of them, and of the social science literature which analyzes them. [Thibaudeau v Canada](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii99/1995canlii99.html), [1995] 2 SCR 627 at paras182 -185, 124 DLR (4th) 449 [Willick v Willick](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii28/1994canlii28.html), [1994] 3 SCR 670 at paras 52-54, 119 DLR (4th) 405 [Michie v Michie (1997)](https://www.canlii.org/en/sk/skkb/doc/1997/1997canlii11212/1997canlii11212.html), 36 RFL (4th) 90, 1997 CarswellSask 608 at para 22 (QB) [96] Separated parents each have an obligation to meet the needs of a dependent child. "Legitimate" children, unable to withdraw from parental care because of disability, illness or other cause, are entitled to child support, possibly for their lifetime. "Illegitimate" children in Ontario, under section 31 of the FLA, are denied support during adulthood, except while a student. [97] Disabled children of unmarried relationships, and their residential parents, most often mothers, face economic hardships and insecurity not visited upon those whose parents married. It is substantively discriminatory that children and residential parents have diminished access to financial resources as a result of the parents' marital status. [98] Even if perfect public supports were in place for people with disabilities, the legislative regime here denies access to child support to "illegitimate" children in contrast to "legitimate" children, sending the message that the claimant families are less worthy of respect, concern, and consideration. This offense to dignity is substantively discriminatory. [99] Based on the preceding submissions, Robyn, Joshua and the Intervener submit that the legislation once found to be discriminatory cannot be saved by s 15(2) of The Charter. --- ### Ableism – Disability Discrimination [100] Among children of unmarried parents, the FLA also creates a distinction between children whose dependency stems from a program of full-time education, on the one hand, and children who remain dependent by virtue of disability, illness or other vulnerability, on the other. [101] Although most Canadians can become self-sufficient by the time they reach the age of majority and finish school, adults with disabilities like Joshua often have difficulty in attaining this independence. As a result, laws that impose an able-bodied assumption of independence only work to perpetuate the significant prejudice that people with disabilities have traditionally faced, denying them equality by failing to accommodate their different needs. [102] Robyn, Joshua and the Intervener all argue that the impugned statutory scheme is embedded with able-bodied norms. It demands complete financial independence at the age of majority unless the child is a student (a short-term venture hoped to promote independence). These are the "good" deserving children who might receive limited-term support. Dependence of an adult child as a result of disability is "bad" – it is possibly indefinite in duration, not likely in furtherance of soon-to-be-realized independence, and highly stigmatized. These adult children are not entitled to support despite their need or their parents' capacity to provide same. [103] Section 31 of the FLA assumes that children over the age of majority will be self-sufficient unless they are in school full-time. It does not consider the needs and circumstances of adult children who are unable to leave a parent's charge or obtain the necessaries of life by reason of temporary or permanent disability. [104] People with disabilities have faced, and continue to face, stigma and discrimination. As noted by Justice La Forest in [Eldridge](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii327/1997canlii327.html): > Statistics indicate that persons with disabilities, in comparison to non-disabled persons, have less education, are more likely to be outside the labour force, face much higher unemployment rates, and are concentrated at the lower end of the pay scale when employed. [Eldridge v British Columbia (Attorney General)](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii327/1997canlii327.html), [1997] 3 SCR 624, at para 56 [Eldridge] [105] Some students with disabilities require a part-time schedule as defined by their educational institution. Courts have interpreted "program of full time education" in s. 31 of the FLA in accordance with Charter values by recognizing, to some degree, the needs of students with disabilities. In accordance with Charter values, in interpreting the statute"the determination of whether a child's participation in the program in question is meaningful must take into consideration the particular circumstances of the child." [Turner v Turner, 2011 ONSC 6425](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc6425/2011onsc6425.html), at para 11 [Turner] [Wilson v Wilson](https://www.canlii.org/en/on/onsc/doc/2002/2002canlii2824/2002canlii2824.html), 2002 CarswellOnt 3838 (SCJ), at para 19 [Wilson] [Vivian v Courtney, 2012 ONSC 6585](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc6585/2012onsc6585.html) [Vivian] [Copeland v Copeland, 1992 CarswellOnt 3533 (Gen Div)](https://www.canlii.org/en/on/onsc/doc/1992/1992canlii3533/1992canlii3533.html), at para 10 [Copeland] [Vohra v Vohra, 2009 ONCJ 135](https://www.canlii.org/en/on/oncj/doc/2009/2009oncj135/2009oncj135.html), at para 14 [Vohra] [Sullivan v Sullivan, 1999 CarswellOnt 3340, (SCJ)](https://www.canlii.org/en/on/onsc/doc/1999/1999canlii3340/1999canlii3340.html) at para 3 [Sullivan] [Styles v Styles, 2011 ONSC 1160](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc1160/2011onsc1160.html), at paras 33-34 [Styles] [Gillesse v Earl, 2011 ONSC 838](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc838/2011onsc838.html), at paras 18-19 [Gillesse] [106] In Sullivan v Sullivan, the court recognized an obligation of child support even though the child was only physically able to complete one or two courses each year because of her disability. The court reasoned that: > While such a course load may not be considered "full time" by the university or for another able bodied student, we are satisfied that in the particular circumstances of this case given the nature of her illness and the opinions of her treating doctors, that the Plaintiff is enrolled in a full-time program as is required by subsection 1 of section 31 of the Family Law Act. [Sullivan, supra, at para 3] [107] Still, the ableist plain language of the impugned statute can only be strained so far. In some cases, the doors to the family courts will be closed because the child is incapable, by reason of illness, disability or other cause, of attending school at all. [108] Social institutions, including our law, have been constructed as though certain groups of people do not matter. The construction of law to exclusively reflect the needs and circumstances of the privileged has the effect of harming and socially marginalizing those disadvantaged groups who are excluded from consideration. Section 15 is meant to protect against the imposition of ableist standards and perspectives. [Granovsky v Canada (Minister of Employment & Immigration), 2000 SCC 28](https://www.canlii.org/en/ca/scc/doc/2000/2000scc28/2000scc28.html), para 33 [Granovsky] [109] The circumstances of people with disabilities have often been, and often continue to be, disregarded. There are countless buildings with flights of stairs inaccessible to those with mobility issues. Hospitals failed to provide sign language interpretation in the provision of medical services to the deaf until required by the Supreme Court. Ontario child support legislation, challenged in this case, assumes every young person is capable of full-time education and thereafter self-sufficiency. The failure to take people with disabilities into account amounts to discrimination. > [T]he purpose of s. 15(1) of The Charter is not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society as has been the case with disabled persons… Exclusion from the mainstream of society results from the construction of a society based solely on "mainstream" attributes to which disabled persons will never be able to gain access. [Eldridge, supra, at para 65 citing Eaton v Brant (County) Board of Education](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii366/1997canlii366.html), [1997] 1 SCR 241 paras 66-67 [Eaton] [110] Not all children fit the mainstream model demanded by s. 31. The impugned provision was constructed without regard to the needs and circumstances of children with disabilities. When law privileges the non-disabled, and further disadvantages people with disabilities, this is ableism -- discrimination on the basis of disability. Just as the failure to provide sign language interpretation had an adverse impact on deaf patients, and denied them effective access to medical services, here, the ableist drafting of s. 31 denies children with disabilities substantively equal access to child support. [111] There is also a public responsibility for persons with disabilities who are not self-supporting. An ODSP payment may be regarded as part of the child's own means, taken into account in determining what child support is appropriate in the circumstances of a particular child. It may be that some children have their needs met through ODSP funding and there should be no child support payable. This does not impact the discrimination analysis. It does not matter if only a few individuals are affected, or whether some individuals might be better off under current law, or whether some people might not choose to avail themselves of the benefit if it were equally available. [112] Even if there is a range of need or vulnerability…, as there must inevitably be, this Court has held that heterogeneity within a claimant group does not defeat a claim of discrimination. In [Janzen v. Platy Enterprises Ltd.](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii97/1989canlii97.html), [1989] 1 S.C.R. 1252 (S.C.C.), Dickson C.J., as he had in Brooks, squarely rejected the idea that for a claim of discrimination to succeed, all members of a group had to receive uniform treatment from the impugned law… [Quebec v A, supra, at paras 354-355, citing Jantzen v Platy Enterprises, Ltd](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii97/1989canlii97.html), [1989] 1 SCR, 1252 [113] In short, the impugned provision "widens the gap" between historically disadvantaged groups and the rest of society. It perpetuates the disadvantage of children with disabilities by excluding children of unmarried parents who are unable to achieve self-sufficiency on an ableist timeline. The doors of the family courts are closed to a category of persons on a discriminatory basis. This violates s. 15. --- ### Conclusion of Section 15 Analysis [114] Robyn and Joshua conclude considering the preceding submissions that Section 31 of the FLA violates equality right under section 15(1) of The Charter on the three grounds of marital status, disability, and sex. By foreclosing entitlement to child support for disabled adult children whose parents never married, this provision engenders significant legal, economic, symbolic and social disadvantage to adults with disabilities and their caregiver parent. It perpetuates prejudice against Canadians with disabilities, children born outside of marriage and women. Ultimately, the impugned provision expresses the stereotype that children born to unmarried parents are less worthy of parental support than children born to married spouses. Once the legislation is found to be discriminatory it cannot be saved by s 15(2) of The Charter. --- ## 8. Arguments of Amicus re s. 15 What follows is argument of Amicus to the section 15 challenge of Robyn and Joshua: ### DOES S.31 OF THE FAMILY LAW ACT CONTRAVENE S.15 OF THE CHARTER ON THE BASIS THAT IT DISCRIMINATES? [115] Amicus argues that this Charter challenge must fail because it is based on a misunderstanding of the Federalist System. The misunderstanding that Joshua, Robyn and the Intervener all rely on is to view federal and provincial laws as a "package" and comparing the laws together to look for a Charter breach. As will be shown below, there is no justification for this type of perspective in The Charter jurisprudence. --- ### The Constitutional Framework [116] It may seem trite to state that Canada is a Federalist system. However, it is the Federalist system and the very basics of the Constitutional framework which provide the important contextual lens for the analysis of the issues raised by Robyn and Joshua. [117] Pursuant to the [Constitution Act, 1867](https://laws-lois.justice.gc.ca/eng/const/page-1.html), ("the Constitution Act") there is a clear distribution of enumerated powers to both the federal government (Parliament) and the provincial governments (the legislatures), respectively. Where the decision-making powers overlap, and conflict with one another, the doctrine of paramountcy is engaged. Under this doctrine, the federal law prevails. Where the subject matter overlaps, but does not conflict, Parliament and the legislatures may legislate as they see fit within their subject areas. [118] There is one further limit on the ability of both Parliament and the legislatures to enact legislation. Since 1985, the Canadian Charter of Rights and Freedoms provided certain protection to all Canadians. This Constitution restricted both Parliament and the legislatures. With the existence of The Charter, each could only legislate on their enumerated subject areas, but now there was an added restriction, such that the laws that were enacted could not contravene the rights and freedoms given to Canadians by The Charter. [119] The Charter is primarily meant to regulate the relationship between governments and citizens. In addition, where Charter rights appear to come into conflict with either the division of powers, guarantees provided for in the Constitution Act, or historical compromises provided for in the Constitution Act, the terms of the Constitution Act will generally prevail. This idea is important in this case and will be discussed in detail below. [120] In sum, in a federalist system such as Canada's, there are distinct subject areas upon which to legislate, which may cause overlap or conflict. However, there is no "law as a whole" in which legislation belonging to both the federal and provincial governments is rolled into one, even if the legislation by happenstance deals with similar subject matter. As will be shown below, Courts have definitively ruled against the requirement for consistency amongst various levels of government when the issue has arisen in various contexts. --- ### Other Situation in which Courts have Refused to Require Consistency between Federal and Provincial Legislation [121] This is not the first case in which a claimant has attempted to argue that distinctions between different pieces of legislation may give rise to s.15 argument. However, in none of the other situations has the Court recognized any "law as a whole". Given apparent distinctions, the Court recognized the ability of each branch of government to create laws within its enumerated powers. [122] Wayne submits that [R v. S](https://www.canlii.org/en/ca/scc/doc/1990/1990canlii1/1990canlii1.html) is determinative of the question for this Court, namely, whether discrimination can be created by the interaction of two statutes. In R vs. S, the Court was asked to consider whether the failure of Ontario to designate alternative measures programs for youths infringed s.15 of The Charter because other provinces had instituted such measures for use. Therefore, a distinction was created based only on province of residence, which, it was argued by the accused, was a personal characteristic caught under s.15 of The Charter. [123] The Court held that Ontario's failure to designate "alternative measures programs" for the purposes of s.4 of the Young Offenders Act, (unlike other provinces which had implemented the programs) had not violated a youth's right to equality before the law guaranteed by s. 15(1) of The Charter. Dickson C.J.C. wrote at paragraph 48, > Obviously, the federal system of government itself demands that the values underlying s. 15(1) cannot be given unlimited scope. The division of powers not only permits differential treatment based upon province of residence, it mandates and encourages geographical distinction. There can be no question, then, that unequal treatment which stems solely from the exercise, by provincial legislators, of their legitimate jurisdictional powers cannot be the subject of a s. 15(1) challenge on the basis only that it creates distinctions based upon province of residence. As Wilson J. states in [Ref. re Bill 30](https://www.canlii.org/en/ca/scc/doc/1987/1987canlii65/1987canlii65.html), [1987] 1 S.C.R. 1148 at 1197, (sub nom. Ref. re Act to Amend Educ. Act) 40 D.L.R. (4th) 18, 36 C.R.R. 305, 22 O.A.C. 321, (sub nom. Ref. re R.C. Sep. High Sch. Funding) 77 N.R. 241"It was never intended, in my opinion, that The Charter could be used to invalidate other provisions of the Constitution". To find otherwise would be to completely undermine the value of diversity which is at the foundation of the division of powers (Emphasis added). [R.v S. 1990 CarswellOnt 97 (S.C.C.) at para. 48 (emphasis added)] [124] The Court then went on to examine whether a distinction was created within only the federal law itself, which could then form the basis for a Charter challenge. Robyn and Joshua argue that the distinction created is based on marital status, and not merely province of residence. However, framed another way, their submission is that the Federal government must create identical legislation to the province if legislating on the same issue. Looked at that way, it is clear from the underlying principle from R v. S. that the use by the legislatures of legitimate jurisdictional powers cannot give rise to a s.15 challenge. [125] The idea that The Charter could not invalidate other provisions of the Constitution arose again in another context. In Adler, a number of Jewish and Christian parents applied to the court with the goal of obtaining government funding for private schools that were not Catholic. The Constitution Act had required that the government of Ontario fund Catholic schools. The applicants argued that the Education Act and the government funding of Catholic schools to the exclusion of Jewish, Christian (not Catholic) and Muslim schools contravened s.15 of The Charter. [126] The Court, with 4 separate concurring and dissenting decisions, held that the issue was immune from Charter challenge because of both the wording of The Charter guaranteeing pre-existing rights (at s.29) and because of the Confederation compromise that led to this discriminatory funding. In other words, where two constitutional documents clash, the older one prevails. The majority, per Iacobucci J., notes that to "accept[..] the appellants' claim that s. 2(a) requires public funding of their religious schools would be to hold one section of the Constitution violative of another -- a result which Reference Re Bill 30 tells us to avoid". [Adler v. Ontario](https://www.canlii.org/en/ca/scc/doc/1996/1996canlii148/1996canlii148.html), [1996] 3 SCR 609 at para. 35 [127] In Adler, what appeared to be obvious distinctions based solely on religion clear could be justified when The Charter came into conflict with the Constitution Act and the historical compromises that formed the basis for the original constitution of Canada. [128] It is worth noting that before Adler, the Supreme Court decided the Separate Schools Reference. The Court was asked to decide whether legislation establishing full funding and an elaborate school board system for Roman Catholic Schools would be subject to Charter scrutiny. The Court answered that it would not and rejected the notion that The Charter could affect rights and guarantees enshrined in the original Constitution. [Reference re Bill 30, An Act to Amend the Education Act (Ont.)](https://www.canlii.org/en/ca/scc/doc/1987/1987canlii65/1987canlii65.html), [1987] 1 SCR 1148 ("Separate Schools Reference") [129] The division of powers in s. 91 and 92 of the Constitution Act are no less a constitutional compromise than s. 93's requirement that Ontario fund Roman Catholic denominational schools. In both cases, to find differently would be to use one Constitutional document to invalidate provisions in a different Constitutional document, an idea which has been repeatedly rejected by the Courts. --- ### Child Support and the Division of Powers [130] Robyn's entire submissions rest on a fundamental flaw, namely, trying to compare the Divorce Act and the Family Law Act. The Supreme Court of Canada has already stated that provinces have the right to make their own laws about child support irrespective of what the Divorce Act or other provinces' family law statutes say. [131] Not only has the Supreme Court stated its opinion in cases analogous to the one before the Court, it has stated its opinion on the very issue before the Court, namely, the ability of the provinces to craft child support legislation different from each other and the federal government. In a very real sense, the primary submissions made by Robyn and Joshua on the s.15 issue has already been determined by the Supreme Court. [132] In [D.B.S.](https://www.canlii.org/en/ca/scc/doc/2006/2006scc37/2006scc37.html), the majority, per Bastarache J., was clearly bothered by the idea that provincial legislatures would have to follow the Federal Child Support Guidelines. Because of what had become a common idea that provinces ought to just follow the Federal framework, Bastarache J. had the following particularly important comments, worth repeating in full: > Of course, this federal regime does not apply to all child support situations in Canada. The federal government's jurisdiction over child support is located in its power over divorce: s. 91(26) of the Constitution Act, 1867. Where the child support order cannot be seen as an incident of divorce, it is the provinces that have jurisdiction over the matter: see [Jackson v. Jackson](https://www.canlii.org/en/ca/scc/doc/1972/1972canlii141/1972canlii141.html), [1973] S.C.R. 205, at p. 211; [Zacks v. Zacks](https://www.canlii.org/en/ca/scc/doc/1973/1973canlii137/1973canlii137.html), [1973] S.C.R. 891, at p. 912. > > In exercising their own power to legislate matters concerning child support, the provinces need not conform to the paradigm espoused by the Divorce Act and the Guidelines. > > However, I cannot support a general approach that purports to follow the Guidelines whenever a court's discretion under applicable provincial law is invoked. A provincial legislature that affords its courts discretion in determining child support matters is not offering them carte blanche to render support orders pursuant to another legislature's will. To read a grant of discretion in this way would offend principles of statutory interpretation as well as the division of powers enshrined in the Constitution. > > The provincial power to regulate child support matters in contexts not involving divorce must therefore remain unfettered. While it is desirable that the federal and provincial governments treat children of married and unmarried parents the same, this does not mean that the Guidelines should trump the legislative will of the provinces. To the contrary, symmetry for married and unmarried parents can be achieved both ways: provinces may choose to adopt the federal regime, but Parliament may also decide to accept provincial solutions. Accordingly, the Divorce Act presently ensures consistency within the province by allowing certain provincial regimes to apply to divorces within the province: s. 2(5). It is not for courts to take it upon themselves to create a single, national system of child support. > > Thus, within constitutional limits, provincial governments are free to adopt a different approach than the one found in the Divorce Act and in the Guidelines…. [D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v. Henry ; Hiemstra v. Hiemstra, 2006 SCC 37](https://www.canlii.org/en/ca/scc/doc/2006/2006scc37/2006scc37.html), [2006] 2 S.C.R. 231, 2006 SCC 37 at para. 49-50, 51-53 [D.B.S.] (emphasis added). [133] The significance of the above statement is immense. Imagine, for example, that Ontario's child support legislation provided a cap on support for adult children in a post-secondary program at age 25 and B.C., for example, and the Divorce Act, capped the age at 24. Under Robyn's argument, 25 year olds in B.C. would be able to bring a Charter challenge in order to claim discrimination under s.15 and argue that child support should be extended to them for another year as well. Discrimination based on "age" is an enumerated ground under s.15, not merely an analogous ground. [134] Like in this case, it would seem "obvious" that there was discrimination and, like in this case, submissions would be made about the history of age discrimination, the patent unfairness of discriminating based on age, and the prejudice that this legislation would cause to 25-year-olds. [135] However, the challenge would fail for the same reason that the challenge ought to fail here: because of federalism, there is no "law as a whole." DBS makes clear that the provinces can legislate as they wish and do not need to follow the model of the Federal government or other provinces. The only caveat is that the provinces cannot discriminate within the legislation itself. For example, Ontario could not have a provision in the Family Law Act that allows children of married parents to be entitled to support if they are disabled and over 18, but then deny children of never-married parents that same right. That, the Amicus concedes, would breach s.15 of The Charter. [136] Charter challenges under s.15 can only be brought to remedy distinctions within legislation not by comparing statutes which are subject to different heads of powers. [137] Given the jurisprudence and Constitutional framework above, the s.15 test can now be applied to the case. --- ### S.31 OF THE FAMILY LAW ACT DOES NOT DISCRIMINATE ON THE BASIS OF DISABILITY #### The Law Test [138] In [Kapp](https://www.canlii.org/en/ca/scc/doc/2008/2008scc41/2008scc41.html), the Supreme Court reviewed the three-part test established in Law to determine whether there is discrimination within the meaning of section 15(1) of The Charter: > The template in Andrews, as further developed in a series of cases culminating in [Law v. Canada (Minister of Employment and Immigration)](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii675/1999canlii675.html), [1999] 1 S.C.R. 497, established in essence a two-part test for showing discrimination under s. 15(1): > > (1) Does the law create a distinction based on an enumerated or analogous ground? > > (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? > > These were divided, in Law, into three steps, but in our view the test is, in substance, the same. [R. v. Kapp, [2008] 2 S.C.R. 483, at para. 17 2008 SCC 41] [139] The second part of the Law test is subject to a further test. In Law, supra, Iacobucci J. set out four non-exhaustive factors for consideration of whether impugned legislation violates a claimant's human dignity: (a) pre-existing disadvantage, stereotyping or vulnerability of the claimant; (b) correspondence between the claim and the actual need or circumstances of the claimant; (c) the ameliorative purpose or effect of the impugned law on other groups in society; and (d) the nature and scope of the interest affected. [Law v. Canada (Minister of Employment and Immigration)](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii675/1999canlii675.html), [1999] 1 S.C.R. 497. [140] The "law", which the Court refers to, is the specific legislation in question. This can be established from such statements as "does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics" (emphasis added). [141] In other words, s.15 cases are always about specific pieces of legislation and whether there is discrimination based on the terms of those specific pieces of legislation. [Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497] [142] A recent family law case provides a perfect example of the proper application of the s.15 test. In [Eric v Lola](https://www.canlii.org/en/ca/scc/doc/2013/2013scc5/2013scc5.html), the Supreme Court of Canada had to decide whether Quebec law discriminated against unmarried spouses by not providing that common law spouses are eligible for spousal support under the Quebec Civil Code. The majority of the Supreme Court found that the discrimination within the Quebec Law breached s.15 of The Charter, but a majority also found that this distinction was justified under s. 1. [Quebec (Attorney General) v. A, [2013] 1 SCR 61, 2013 SCC 5 ("Eric and Lola")] [143] Importantly, other than referencing Nova Scotia legislation because of the prior Walsh decision, the Supreme Court in Eric does not draw upon the legislation of other provinces, or the Divorce Act, in its s. 15 analysis. It does not need to – under Quebec law itself, there is a differential treatment of married and unmarried couples. Indeed, all of the major family law decisions engaging The Charter are referenced within one piece of legislation. [144] Indeed, to the contrary, LeBel J., writing for four judges, references legislation of provinces other than Quebec to make the following point which is also applicable here: > Provincial legislatures have chosen to regulate the private relationships of common law spouses on the basis of their own provinces' legislative objectives. Today, each province defines the effects of de facto unions or common law relationships differently, which is a mark of Canadian legal pluralism (emphasis added). [Eric and Lola, supra, at para. 289] --- ### The Other Supreme Court of Canada Family Law s.15 Decisions: All about One Impugned Statute [145] The following chart illustrates the distinction between the major family law Charter decisions and this one: | Case | Impugned Legislation | Distinction Created | Held | |------|---------------------|-------------------|------| | Miron vs. Trudel (1995) | Insurance Act | Marital Status | Standard Automobile Policy infringes s.15 and is unconstitutional | | M vs. H (1999) | Family Law Act | Same-sex versus heterosexual couples | Distinction based on sex infringes s.15 and is unconstitutional | | Walsh vs. Bona (2002) | Matrimonial Property Act | Married spouses could apply for property division; common law spouses could not | Dignity of unmarried spouses not affected – legislation does not infringe s.15 | | Trociuk vs. Canada (2003) | B.C. Vital Statistics Act | Mother could unacknowledge father on statement of live birth – distinction based on sex | Relevant Sections of BC Vital Statistics Act are unconstitutional | | Eric vs. Lola (2013) | Quebec Civil Code | Married and unmarried spouses for the purpose of spousal support | Law violates s.15 (5-4); Law saved by s.1 (5-4). | | Watson v Coates (2017) | Family Law Act ONLY WHEN COMPARED TO Divorce Act | Divorce Act permits adult disabled children to claim support; Family Law Act has no similar provision | TBD | [146] In all of the above cases, the same piece of legislation drew distinctions based on the enumerated or analogous ground. This is the key distinction from the situation in this case, where the Family Law Act does not do so. --- ### There is No Comparator Group [147] For there to be discrimination pursuant to s.15 of The Charter, a "comparator" group must be identified. As the Supreme Court of Canada per Iacobucci J. stated in Law, > To locate the appropriate comparator, we must consider a variety of factors, including the subject-matter of the legislation. The object of a s. 15(1) analysis is not to determine equality in the abstract; it is to determine whether the impugned legislation creates differential treatment between the claimant and others on the basis of enumerated or analogous grounds, which results in discrimination…. [Law v. Canada (Minister of Employment and Immigration)](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii675/1999canlii675.html), [1999] 1 SCR 497 at para. 57 (emphasis added). [148] It seems readily apparent, at first glance, that the comparator group in this case is "disabled children over the age of 18 born to married parents". However, if a divorced couple chose to bring a claim under the Family Law Act, that child too would not be eligible for support. The Family Law Act therefore does not distinguish between children of parents who were married and children of parents who were not married. That ends the analysis. [149] For clarity, under Ontario law, all disabled adults, whether their parents were married or not, are not entitled to support under the Family Law Act. The "law" makes no distinction between whether the adult, disabled child's parents were married or not. --- ### The Intervener argues against the "De-Contextualized" approach of Amicus and submits: [150] The Amicus' De-Contextualized Approach, which it calls the Federalist State argument, tries to prevent an examination of discrimination. The Amicus asserts, that "The Charter is meant to remedy distinctions within legislation." This is incorrect. Whenever substantive inequality arises from under-inclusive legislation or adverse effects, the discrimination is not visible within the statute. [151] In the 1978 Supreme Court decision of [Bliss v. Canada (Attorney General)](https://www.canlii.org/en/ca/scc/doc/1978/1978canlii25/1978canlii25.html), the Supreme Court was asked to consider whether unemployment insurance legislation discriminated against pregnant women. The Court found the disadvantage didn't arise "at law" but came from "nature." All pregnant persons were treated the same so there was no sex discrimination. The court overruled the decision a decade later in [Brooks v. Canada Safeway Ltd.](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii96/1989canlii96.html) by focusing on the real-world impact of law. The lesson of three decades of equality law is that if the law does not reflect and respond to the needs and circumstances of the most disadvantaged members of society, and "widens the gap" between them and others, it discriminates. [Bliss v. Canada (Attorney General)](https://www.canlii.org/en/ca/scc/doc/1978/1978canlii25/1978canlii25.html), [1979] 1 SCR 183 at para 14 [Bliss] [Brooks v. Canada Safeway Ltd](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii96/1989canlii96.html), [1989] 1 SCR 1219 at paras 43-47 [Brooks] [Quebec v. A, supra, para 332.] [152] The Amicus also alleges the distinction on the basis of a protected characteristic does not come from within one statute, but from law as a whole, and therefore the equality claim cannot be made. To the contrary, the Supreme Court has long cautioned that we must move beyond the terms of the impugned statute itself and instead consider the lived impact of law in its full context. As the Supreme Court wrote in [Turpin](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii1/1989canlii1.html): > If the larger context is not examined, the s. 15 analysis may become a mechanical and sterile categorization process conducted entirely within the four corners of the impugned legislation. [R v Turpin, 1989 CarswellOnt 76 (SCC) at para 51 [Turpin].] [153] The larger context to be examined is the full social, political and legal context. As Justice Wilson declared in R. v Turpin"in determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context." [emphasis added] [Turpin, supra] [154] The Amicus' De-Contextualized Approach commits the precise error of trying to keep the analysis within the four corners of the impugned statute rather than contextualizing the claim. To have necessary regard to context, it is essential to consider the impact of "the whole of the law" on disadvantaged groups rather than examine a statutory provision in isolation. If an omission in a federal benefits scheme was addressed by a corresponding provincial benefit, it might be a complete answer to a discrimination claim, or as in Egan, it might not be, if the federal exclusion still had a disadvantaging impact on the equality claimants. In either case, the entire legal context must be examined in considering whether there is a denial of s. 15's guarantee of "the equal benefit of the law." [Egan, supra, at para 146, citing Ontario Human Rights Commission v. Simpsons‑Sears Ltd](https://www.canlii.org/en/ca/scc/doc/1985/1985canlii18/1985canlii18.html), [1985] 2 SCR 536, at para 18. [155] A substantive equality analysis focusses on the impact of the law on the claimants, not explanations or justifications for their exclusion. Rationales for the impugned provision appropriately belong in the s. 1 analysis, which must be kept analytically distinct. The responding party to an equality claim always proffers excuses that the discrimination is "natural", non-intentional, rational, freely chosen by the disadvantaged, non-objectionable because there is "neutral silence" on the part of the Legislature, and (now) non-objectionable because it is alleged to exist only in comparison to a statute under the purview of a different level of government and so must be respected in the spirit of federalism. None of these "explanations" provides any satisfactory answer to a person facing the effects of discrimination. [Bliss, supra, at para 14] [Andrews, supra, at paras 19 and 22] [Vriend v Alberta](https://www.canlii.org/en/ca/scc/doc/1998/1998canlii816/1998canlii816.html), [1998] 1 SCR 493 at paras 75-76. [Vriend] [Quebec v A, supra, at paras 333-335 and 339-347] [Rutherford v Ontario (Deputy Registrar General), 2006 CarswellOnt 3463 (SCJ)](https://www.canlii.org/en/ca/scc/doc/2006/2006canlii3463/2006canlii3463.html), at para 215 [Rutherford] [156] Section 15 instead requires consideration of the effects of the law, in context, from the perspective of the equality claimants. Robyn and Joshua Coates have been told that this Honourable Court has no statutory jurisdiction to order to support, but that they could have made a claim if the parents had been married. The equality claimants experience real-world disadvantage as a result of marital status. Looked at from their perspective, the De-Contextualized Approach must be rejected as another formalistic argument that tries to insulate discriminatory effects from Charter scrutiny. [Law, supra, at para 61.] [157] Since the main consideration is the impact of the law, and not its formal terms, the Amicus effectively concedes the s. 15 violation. The Amicus acknowledges"Ontario could not have a provision… that allows children of married parents to be entitled to support if they are disabled and over 18, but then den[ies] [sic] children of never-married parents that same right." In the lived impact of the law, Ontario's child support regime has precisely this impact; the law discriminates in its effect. "[I]f [the Amicus'] position was accepted, the form, rather than the substance, of the legislation would determine whether it was open to challenge. This result would be illogical and more importantly unfair." [Vriend v Alberta](https://www.canlii.org/en/ca/scc/doc/1998/1998canlii816/1998canlii816.html), [1998] 1 SCR 493 at para 61. [158] While s. 31 is not drafted in explicitly discriminatory terms, every case of adverse effects discrimination involves facially neutral law. The application of The Charter is not restricted to situations where the government includes an express distinction on a protected ground within the text of the statute, as suggested by the Amicus. Discrimination may exist where legislation itself is silent. The Charter is "worded broadly enough to cover positive obligations on a legislature such that The Charter will be engaged even if the legislature refuses to exercise its authority." As the Supreme Court has stated, under-inclusion "may be simply a backhanded way of permitting discrimination." [Vriend v Alberta, supra, at para 60 citing Pothier, Dianne ("The Sounds of Silence: Charter Application when the Legislature Declines to Speak" (1996), 7 Constitutional Forum 113, at p 115), at para 80 citing Brooks, supra, and at para 61.] [159] Ontario has constitutional authority in respect of child support matters. Our Legislature has failed to exercise its authority to require contribution from both parents when an adult child remains in one parent's charge or is unable to obtain the necessaries of life as a result of illness, disability or other cause. The effect of the law, in substance, is to deny access to child support on the basis of the parents' marital status and to disregard the needs and circumstances of those with disabilities. Other effects are to contribute to the poverty of custodial parents – women – post separation [160] In [Vriend](https://www.canlii.org/en/ca/scc/doc/1998/1998canlii816/1998canlii816.html), the government argued that The Charter was not available to consider the Province's "neutral silence" in respect of sexual orientation protections from its human rights regime. The Supreme Court rejected this argument finding that it was based on a "thin and impoverished" notion of equality. In effect, the "silence" was not "neutral." It had damaging effects and so was discriminatory. [Vriend, supra, at paras 75-86] [161] The government in Vriend also took the position that if the claimants were successful"the result will be that human rights legislation will always have to "mirror" The Charter by including all of the enumerated and analogous grounds of The Charter." They argued that this would unduly constrain legislative choice. Justice McClung at the Court of Appeal decried the claimants' attempt to invade a sphere of provincial legislative competence. The Supreme Court unanimously rejected these arguments, writing "[b]y virtue of s. 52 of the Constitution Act, 1982, The Charter is part of the "supreme law of Canada", and so… all … legislation in Canada, must conform to its requirements." [Vriend, supra, at paras 54-57 and 105-106.] [162] The absence of protection in the provincial human rights statute in Vriend, on basis of sexual orientation, harming the vulnerable LGBTQ community, was discriminatory. Similarly, the absence of protection in Ontario's child support statute, on the basis of numerous protected grounds, and harming many vulnerable communities, is discriminatory. The provincial child support regime does not need to mirror federal law, but it cannot further disadvantage a whole host of vulnerable disadvantaged groups. [163] There is no claim here of discrimination on the basis of province of residence. Legislatures are free to adopt different approaches, within constitutional limits. In this case, s. 31 discriminates because of its effects, in context, on groups already marginalized by systemic inequalities. The Amicus' De-Contextualized Approach must be rejected. The Charter is supreme law, and in Canada, both provincial and federal statutes must comply with it. [DBS, supra, at paras 52-53.] --- ## 9. Discussion and Decision in this Section 15 Challenge [164] It is of interest to me when considering the respective arguments for and against the section 15 challenge how binary in nature the above arguments can be at times that on occasion I was left wondering whether the parties were addressing the same issues and law. [165] Further in considering the arguments detailed above I am sensitive to how removed these discussions can become for individuals in our society who are impacted by the laws and who are the subject of the debate in these matters. [166] I have considered the arguments of Amicus but conclude that its approach overall sanitizes any examination of discrimination and the impact of section 31 of the Family Law Act to Joshua's circumstances. [167] I agree with the argument of Robyn, Joshua and the Intervener that when conducting an s 15 analysis it is central to a proper review to break from the traditional thinking when it comes to considering equality rights with the component of dignity that it brings to a vulnerable individual/ groups in our society. I agree that we cannot remain within the four corners of s31 of the FLA to situate the alleged Charter breach. [168] Are we as a society to say to vulnerable citizens such as Joshua that in Ontario today there is a mercurial feature to his equality rights as set out in section 15 of The Charter such that these are secondary to the principles of the constitutional divisions of power or the notion that any alleged breach must be found within the four corners of the legislation, rather than how he experiences the effect of legislation on him. [169] I do agree with Amicus that in considering the arguments presented that this should not be a moralistic exercise. [170] In addition the role of the court here is not to analysis who is best positioned to support Joshua now and in the future, the Ontario government (our larger society through ODSP), or his parents. Although this in part is the larger debate within the issues within this Challenge. [171] I find that Section 31 of the Family Law Act shuts a door to Joshua/ Robyn to have a court in Ontario consider and have an opportunity to assess his needs and who is better positioned to meet those needs. Effectively access to a debate and a just adjudication of these issues is denied a citizen of Ontario and one who is a member of a vulnerable group. [172] I say this with confidence not because I sympathies with Joshua given his circumstances, as I am mindful of this earlier point made by Amicus, but rather I find this to be the objective effect of s. 31 of the FLA for Robyn and Joshua based primarily on being an unmarried women who has a child with disability who cannot meet the provisions for child support set out in s.31 of the FLA. [173] Amicus argues that Joshua is treated no differently than an adult child of a married couple not attending school who might bring a claim for support under the Family Law Act in that this child would also not be eligible for child support. [174] This argument appears to me to avoid the obvious which is that there is a choice in that situation which is not available to Joshua or Robyn. That family has legal options not available to Joshua/ Robyn. [175] Arguably, this other child referred to by Amicus could be a half sibling to Joshua, which illustrates how close the difference in treatment could be between these children within a same family, yet a gap exists in their respective legal options and how the law impacts each differently based on their circumstances. [176] Amicus argues that Charter challenges under section 15 can only be brought to remedy distinctions within legislation not by comparing statutes which are subject to different heads of power. [177] Amicus points to the decision of [R v. S, supra](https://www.canlii.org/en/ca/scc/doc/1990/1990canlii1/1990canlii1.html), stating that the Supreme Court specifically block a review of discrimination created by the interaction of two statutes as Robyn, Joshua and Intervener are suggesting as part of their argument in this matter. [178] A review of that decision reveals that it was not a direct challenge within an s. 15 context of the constitutionality of legislation, but rather a comparison or lack of the implementation of alternative programs by different provinces across Canada for youth criminally charged. [179] In my opinion that case is distinguishable for the use being made of it by Amicus in that the analysis and debate before that court, in large part, involved a discussion regarding the thorny issue of the cost of implementing Charter rights and particular section 15 rights in that the subject was a comparison how provincial governments spend public money not a subject that the Supreme court or other courts are inclined to review. [180] I accept the following approach presented by the Intervener, Robyn and Joshua on this point of needing to find the breach within the impugned legislation: > Express discrimination in the wording of the legislation is not a necessary condition for a breach of the equality guarantee. Section 15 is violated if the effect of the impugned provision is to deny a historically disadvantaged group the equal protection or benefit of the law. As Justice McIntyre stated in [Andrews](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii2/1989canlii2.html)"[t]o approach the ideal of full equality before and under the law . . . the main consideration must be the impact of the law on the individual or the group concerned". [Andrews, supra, at para 8 [emphasis added]] [Eaton, supra at para 66] [Kapp, supra, at para 15] [Ontario Human Rights Commission v. Simpsons‑Sears Ltd](https://www.canlii.org/en/ca/scc/doc/1985/1985canlii18/1985canlii18.html), [1985] 2 SCR 536, at paras 13 and 18 [Simpsons-Sears] > "[P]ersistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and [s. 15] seeks to prevent conduct that perpetuates those disadvantages." Section 15 is aimed at "remedying or preventing discrimination" stopping government from contributing to systemic inequalities so as to achieve a society that fully respects and includes all its members. [Taypotat, supra, at para 17 [Emphasis added]] [R. v. Turpin, supra, at 52] The Supreme Court has articulated perhaps its clearest statement of the concept of substantive equality in [Quebec v A](https://www.canlii.org/en/ca/scc/doc/2013/2013scc5/2013scc5.html), and reaffirmed it in Tapotat: > The root of s. 15 is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed. If the state conduct widens the gap between the historically disadvantaged group and the rest of society rather than narrowing it, then it is discriminatory. [Quebec v A, supra, at para 332.] [Taypotat, supra, at para 20.] Here, the impugned provision perpetuates discrimination through legal, economic and social disregard. It denies access to the courts, and to the financial contribution of non-custodial parents, to children of unmarried parents who are already disadvantaged on the basis of protected characteristics. Those harmed by the exclusion are among the most vulnerable adult child dependents – those with illnesses or disabilities, and queer and trans youth – and their custodial parents. As the Supreme Court has affirmed, > ...[T]he imbalances of power, or the discourses of dominance, such as racism, ablebodyism and sexism, …result in a society being designed well for some and not for others. It allows those who consider themselves "normal" to continue to construct institutions and relations in their image… [T]he heart of the equality question [is] the goal of transformation …an examination of the way institutions and relations must be changed in order to make them available, accessible, meaningful and rewarding for the many diverse groups of which our society is composed… We [must abandon] the idea of "normal" and [work] for genuine inclusiveness. [British Columbia (Public Service Employee Relations Commission) v BCGSEU](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii652/1999canlii652.html), [1999] 3 SCR 3 at 41 citing with approval, S. Day and G. Brodsky"The Duty to Accommodate: Who Will Benefit?" (1996) 75 Can Bar Rev 433 at 462. [181] In the DBS, supra, Amicus notes that Justice Bastarache determined the issue that each province has the ability to legislate in the area of child and spousal support different from the Federal government and thus Robyn's and Joshua's comparison of the child support provisions in the Divorce Act and the Family Law Act is wrong and contrary to settled Constitutional division of powers in Canada. [182] One could also say that a takeaway from the Supreme Court comments in DBS is that it is desirable that the federal and provincial governments treat children of married unmarried parents the same. [183] I do not find or interpret, as Amicus suggests, the arguments of Joshua /Robin or the Intervener as attempts to attack either directly or indirectly the Ontario government's ability to legislate in this area of family law being child support. [184] I do agree with Robin/ Joshua and Intervener that when the province does enact legislation, under its legitimate constitutional power, it cannot do so in an under inclusive manner, or in a manner that has a discriminatory impact as it does in this case on Joshua and Robyn. [185] I find and agree with the following from the Intervener …The absence of protection in the provincial human rights statute in [Vriend](https://www.canlii.org/en/ca/scc/doc/1998/1998canlii816/1998canlii816.html), on basis of sexual orientation, harming the vulnerable LGBTQ community, was discriminatory. Similarly, the absence of protection in Ontario's child support statute, on the basis of numerous protected grounds, and harming many vulnerable communities, is discriminatory. The provincial child support regime does not need to mirror federal law, but it cannot further disadvantage a whole host of vulnerable disadvantaged groups. [186] I find that Robyn, Joshua, supported by the Intervener, are not advancing a claim here of discrimination on the basis of province of residence. They agree with Amicus that Legislatures are free to adopt different approaches, within constitutional limits. However differ with Amicus, as do I, that s. 31 discriminates because of its effects, in context, on groups already marginalized by systemic inequalities. The Charter is supreme law, and in Canada, both provincial and federal statutes must comply with it. [187] It is for these reasons that I find that section 31 of the Family Law Act of Ontario violates Joshua's and Robyn's section 15 (1) Charter rights and therefore s. 31 of the FLA does not apply to the circumstances within Wayne's Motion to Change before me, dated July 22,2014, Tab 1 of Vol 3 of the continuing record. [R. v Lloyd 2016 SCC 13](https://www.canlii.org/en/ca/scc/doc/2016/2016scc13/2016scc13.html), [2016] S.C.J. No 13, 2016 Carswell 959(S.C.C.) --- ## 10. Section 7 Challenge [188] Joshua advances the argument that: a) The right to the security of the person protects the physical and psychological integrity of the individual. Psychological integrity is affected where the state action causes "greater than ordinary stress and anxiety." [R v Morgentaler](https://www.canlii.org/en/ca/scc/doc/1988/1988canlii90/1988canlii90.html), [1988] 1 SCR 30 at para 22, 44 DLR (4th) 385 [Chaoulli, supra at paras 116-117] b) Section 31 of the FLA violates the right to security of the person of disabled adult children of common law spouses by precluding their continued entitlement to child support. The government support programs in place to ensure that Ontarians with disabilities receive the financial support they require are grossly inadequate. This inadequacy subsequently translates into increased levels of poverty among people with disabilities and their caregiving parent, which in turn impairs their physical and psychological integrity. [189] In relation to Joshua section 7 claim Amicus argues that any breach in this Charter right must be against government and not an individual. [190] Additional, Amicus argues that Joshua's section 7 claim should fail based on an attempt to open section 7 to the possibility that economic rights are engaged by section this section of The Charter which Amicus argues has been rejected and notes the following: • In Pomerleau, the Alberta Court of Queen's Bench provides good examples of cases that make clear that s. 7 does not protect economic interests at all, let alone economic interests between private individuals. [Pomerleau v Canada (Revenue Agency), 2017 ABQB 123](https://www.canlii.org/en/ab/abqb/doc/2017/2017abqb123/2017abqb123.html) at paras. 117-122; See also [Re Nortel Networks Corporation et al, 2017 ONSC 700](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc700/2017onsc700.html) at paras. 28-31. • Indeed, s.7 of The Charter does not even create "…a positive state obligation to guarantee adequate living standards." [Gosselin v Quebec (Attorney General), 2002 SCC 84](https://www.canlii.org/en/ca/scc/doc/2002/2002scc84/2002scc84.html), [2002] 4 SCR 429 as cited in Pomerleau, supra • In Joshua's case, the State is not interfering in his ability to engage in commercial activities or pursue economic gain. It is merely the absence of the ability for Joshua, as an adult in all other respects, to seek child support from his father that he complains about. This cannot be something captured by s.7. [191] In making a request for child support, Robyn and Joshua must work within Section 31 of the Family Law Act which regulates how they are to conduct themselves when it comes to support issues. [192] It could be argued that the road to any claim for child support runs through section 31 of the Family Law Act and therefore the government's regulation, of the rules of engagement, implicates the government in relation to an s.7 challenge. [193] Generally the case law establishes section 7 applies to governmental action by 1- the government itself as an actor or 2- indirectly nongovernmental actors may be subject to The Charter if they are engaged in government acts, such as implementing a governmental program or exercising the power of compulsion pursuant to a particular statute and by this I mean outside the context of the criminal law context. [194] I do not see Joshua's situation as fitting in either one of these categories such that the government of Ontario is exercising sufficient control or compulsion over Joshua's situation. [195] Amicus argues that no case could be successfully advanced where some form of government actor was not the primary respondent to a section 7 claim. I agree with Amicus but frame it differently. [196] I understand Joshua to argue that the security of his person is as follows - being a disabled adult child of a common-law spouse and being precluded in requesting child support, and that although there exists government supports programs in place to ensure that Ontarians with disabilities receive financial support required, that these are underfunded or inadequate and therefore leaving Joshua with increased levels of poverty which in turn impairs his physical and psychological integrity. [197] Joshua argues that the effect of the legislation, is to deny his economic right to sustain himself. By this I understand that to mean seeking support from all sources of income, including that of parents. [198] I find the causal connection between sec 31 of the Family Law Act and some state action impairing his security to be thin and uncertain, as noted in the decision of [Operation Dismantle v. R](https://www.canlii.org/en/ca/scc/doc/1985/1985canlii74/1985canlii74.html), 1 S. C. R. 441 at 447, 18 D. L. R. (4 th) 481 … Uncertain, speculative and hypothetical to sustain a cause of action. [199] Further, although some discussion has occurred in this Charter challenge around support programs for Joshua, I would require more evidence on the extent ODSP, and other options available to Joshua in our society that could be examined by all parties. [200] In addition on the impact of the security of the person, the Supreme Court in the decision [New Brunswick v. G. (J.)](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii653/1999canlii653.html), [1999] 3 S. C. R. 46, 170 7D. L. R. (4th) 124 noted that > …Not every state action which interferes with the parent – child relationship will restrict the parent's right to security of the person. [201] The court suggested examples of apparent security of the person that is not violated is when a parents child is sentenced to jail or conscripted into the army or injured due to a police action. [202] In [Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44](https://www.canlii.org/en/ca/scc/doc/2000/2000scc44/2000scc44.html), [2000] 2S. C. R. 307, 190 D. L. R. (4th) 513, Supreme Court noted that security of the person would only be violated where the state interferes in profoundly intimate and personal choices. Examples of which were given as; a woman's right to terminate her pregnancy, an individual's decision to terminate his or her life, the right to raise one's children and the ability of sexual assault victims to seek therapy without fear of their private records being disclosed. [203] Therefore I am not convinced of the connection of a compulsive state action such that it interferers with Joshua's security of the person and that if there is an aspect of interference it is not a violation of his security. I find that this s.7 challenge is not made out and dismiss it. --- ## 11. Section 1 Analysis [204] Having conclude as I have found that there has been a violation of s. 15(1) of The Charter, I must now examine whether the legislation in question is "demonstrably justified in a free and democratic society". This analysis must be conducted even though the Ontario government did not participate in this matter. [205] There is a burden in this case on the government of Ontario to justify the discrimination on a balance of probabilities: [R. v. Oakes, supra](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii46/1986canlii46.html); [Hunter v. Southam Inc.](https://www.canlii.org/en/ca/scc/doc/1984/1984canlii33/1984canlii33.html), [1984] 2 S.C.R. 145 at p. 169, 9 C.R.R. 355, per Chief Justice Dickson. [206] In order to satisfy the requirements of s. 1, those seeking to uphold the law must demonstrate that: a) the objective of the legislation is of sufficient importance to warrant overriding a constitutionally protected right or freedom; and b) the means selected to achieve the objective are proportional to the objective sought: see [R. v. Oakes, supra](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii46/1986canlii46.html), at pp. 138-40; and [R. v. Big M Drug Mart Ltd.](https://www.canlii.org/en/ca/scc/doc/1985/1985canlii69/1985canlii69.html), [1985] 1 S.C.R. 295, 13 C.R.R. 64. --- ### No Pressing and Substantial Objective of the Infringing Measure [207] As Robyn, Joshua and the intervener argue the government bears the onus of justifying its rights infringement and must adduce cogent evidence to justify the breach. Here, the government has declined to intervene to explain its purpose in denying substantively equal access to a fundamental benefit. The Amicus also does not attempt to justify any violation. "[T]o establish justification, one needs to know what problem the government is targeting, and why it is so pressing and important that it warrants limiting a Charter right." [RJR-MacDonald Inc. v Canada (AG)](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii64/1995canlii64.html), [1995] 3 SCR 199 at para 129 and 144 [RJR-MacDonald] [Rosenberg v Canada (Attorney General), 1998 CarswellOnt 1785 (CA)](https://www.canlii.org/en/on/onca/doc/1998/1998canlii1785/1998canlii1785.html), at para 49 [Rosenberg] [208] The objective which is key to the s. 1 analysis is the objective of the infringing measure, not the laudatory purpose of the legislation as a whole. "The focus of the s. 1 inquiry is on the limitation that infringes the equality right, and the objective that must satisfy the "pressing and substantial" test is the objective not of the statute or section, but of the infringing limitation in that statute or section. This is not to say that the purpose of the legislation, or of the particular section in that legislation containing the impugned provision, is irrelevant, but their relevance is limited to providing a context rather than a focus for the Oakes analysis." [Vriend, supra, at paras 111-114 [emphasis added]] [Rosenberg, supra, at para 23] [RJR-MacDonald, supra, at para 127] [209] Robyn, Joshua and the intervener are correct to point out that they are left in the awkward position of having to propose a purpose of the rights limitation in this matter. [210] Intervener suggests that potentially the rights limitation is to "give a break" to payors that are involved in "less committed" casual relationships and if so this this purpose or objective is discriminatory. [211] The applicant Robyn suggests that the objective of denying child support to disabled children of unmarried parents who are not enrolled in full time program of education cannot be to affirm or benefit solely children of married parents and children free of illness or disability. If so this is also discriminatory. [212] Joshua suggests that perhaps the object of the denial of child support to dependent adult children with disabilities of unmarried parents is because it is believed that parental obligation outside of marriage is less important and less long-lasting than married ones and therefore should be shorter in duration. [213] If a child support is a fundamental right of a child then it is a challenge to discern any pressing and substantial, non-discriminatory purpose to the exclusion of adult children who have disabilities or illness who are unable to leave their parents charge. [214] Intervener notes here that Section 31 of the FLA thereby fails at the first stage of the s. 1 analysis. It cannot be saved as a justifiable limit on the fundamental right to equality in a free and democratic society. It is unnecessary to proceed further through the s. 1 analysis, but further discussion only more fully illustrates the lack of justification. [215] Turning to the purposes of the legislation as a whole, the goal of child support itself is pressing and substantial. The child support regime upholds children's inherent right to support from both their parents. It assists in protecting against poverty of women and children and to provide children with the same standard. [DBS, supra, at para 38] [Family Law Act, RSO 1990, c F3 at s 33(7)] [Child Support Guidelines (Ontario), O Reg 391/97, as amended, s 1] [Federal Child Support Guidelines, SOR/97-175, s 1] [Moge, supra, at paras 56-61, 70-72. Willick, supra.] [216] The second portion of this test has three parts: a) the limiting measure must be rationally connected to the objective; in other words, it must not be arbitrary, unfair, or based on irrational considerations; b) the limiting measure must impair the recognized Charter right as little as possible. It must be demonstrated that the legislature could not have reasonably chosen an alternative means that could have achieved its objective as effectively; and c) the effects of the measures must be proportional to the objective sought to be achieved: [R. v. Oakes, supra](https://www.canlii.org/en/ca/scc/doc/1986/1986canlii46/1986canlii46.html). To this part of the s.1 test Robyn, Joshua, and the Intervener present the following: --- ### Legislative Intent – Rational Connection Test to Infringement [217] Child support is a fundamental right of a child, and it is a challenge to discern any pressing and substantial, non-discriminatory purpose to the exclusion of adult children who have disabilities or illnesses. [218] The impugned provision of the FLA undermines child supports laudatory purposes and denies some children the financial support of both parents, and contributes to the poverty of custodial parents, mostly women and vulnerable children who as a result of illness and disability are unable to leave the care of a parent. --- ### No Minimal Impairment [219] The exclusion of dependent children who would otherwise qualify, but for their parents' marital status, does not infringe the fundamental right as little as reasonably possible. There is a complete ban to access to child support for some of the most disadvantaged. While some adult children may access ODSP payments, child support fairly reflects the non-custodial parent's financial contribution, in accordance to their means, and may continue to make a very significant positive difference in the lives of many custodial parents and the adult children unable to withdraw from their charge. [220] The Court of Appeal has noted: > The support, care and treatment of a 24-year-old with a serious psychiatric disability may require a greater financial contribution from his parents than the support of a young child or a teenager without a disability. As Pazaratz J. observed in Blonski, at para. 14"we should not lose sight of the fact that, by definition, ODSP payments are intended to assist people with special needs". Recipients of ODSP may have special or extraordinary expenses which go beyond what either the Table amount or income support may cover. It is possible, therefore, that the support calculation under s. 3(2)(b) will not be less than the Table amount, even after taking into account the receipt of ODSP. [Senos v Karcz, 2014 ONCA 459](https://www.canlii.org/en/on/onca/doc/2014/2014onca459/2014onca459.html), at para 73 [Senos] [221] The Guidelines themselves contain flexibility to reasonably determine child support for children over the age of majority. Section 3(2) of the Guidelines, applicable to children over the age of majority, permits the court to consider both parents' income and the adult child's own means, where it is appropriate to do so. The Guidelines provide: > **Child the age of majority or over** > > (2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is, > > a) the amount determined by applying these guidelines as if the child were under the age of majority; or > > b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child. [Child Support Guidelines (Ontario), supra, s 1.] The Court of Appeal has recognized that non-custodial parents may have a continuing support obligation despite the receipt of public funds by the child. ODSP reflects a public commitment to collectively sharing financial responsibility for adults with disabilities, but it does not automatically end a non-custodial parent's financial obligation. As the Court of Appeal affirmed, [t]he ODSPA recognizes that government, communities, families and individuals share responsibility for providing support to persons with disabilities." While the Table amount may be inappropriate when an adult child already receives support for board and lodging through ODSP, the Guidelines – for children of married parents – then permit individualized calculation based on the adult child's unique condition, means, needs and other circumstances, including receipt of ODSP, and the ability of both parents to contribute. The Court of Appeal ruled that: "In the case of adult children with disabilities, the ODSPA commits society to sharing some responsibility for support. In my view, this makes the s. 3(2)(a) approach inappropriate, and s. 3(2)(b) should be applied to achieve an equitable balancing of responsibility between [the adult child], his parents and society." [Senos, supra, at paras 41 and 67 [emphasis added]] [ODSPA, supra, at s. 1(b)] The impugned provision disallows any exercise of the court's discretion to determine appropriate child support; it represents a complete bar to access to some children who would otherwise be entitled if their parents were married. Section 31 of the FLA thereby denies equal respect and dignity. The meta-message of disadvantaging "illegitimate" children is that these children are less worthy than those born into married relationships. It fails to reflect the needs and circumstances of many children with disabilities and illnesses. Their exclusion breaches the promise of the s. 15 equality guarantee. In 2017, Ontario law should not provide disadvantaged treatment to the children of unmarried parents, continuing to deem them "illegitimate." Our law must reflect the needs and circumstances of diverse children, not be designed from an ableist perspective that only reflects the needs and circumstances of the "mainstream". [M v H](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii686/1999canlii686.html), [1999] 2 SCR 3, at para 124 [M v H] [Egan, supra, at para 90] [Rutherford, supra, at paras 200 to 201 and 233] [Halpern, supra, at para 79] --- ### No Proportionality of Salutary and Deleterious Effects Finally, there is no proportionality of effects. There are no salutary effects to the rights limitation, but severe deleterious effects. Some of Ontario's most vulnerable are harmed by the impugned provision. Children with disabilities, custodial mothers of children with disabilities, all amongst the most disadvantaged in our society, are denied access to the court's assistance in relation to child support. Requiring both parents to support adult children who remain unable to leave the charge of the custodial parent does not require the expenditure of public funds. It would accord equal respect to all parent-child relationships and further the equitable sharing of children's expenses. It would remove the affront to dignity of differential treatment based on "illegitimacy" and promote the greater goals of The Charter. I agree with this analysis and find that the limitation found in section 31 of the Family Law Act that infringe on Robyn's and Joshua's section 15 rights is not saved by section 1 of The Charter. --- ### CONSTITUTIONAL REMEDY: Robyn, Joshua, and the Intervener provide the court with the following submission on a remedy in this matter. [222] Section 24 of The Charter and s. 52(1) of the Constitution Act govern remedy. These provide: > 24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. > > 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [Charter, supra, sections 24(1) and 52(1)] [223] Where the guarantee of equality has been infringed, the remedy selected must promote "a society in which all are secure in the knowledge that they are recognized at haw as human beings equally deserving of concern, respect and consideration." As the Supreme Court affirmed in [Corbiere v Canada](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii684/1999canlii684.html)"In selecting an appropriate remedy under The Charter the primary concern of the court must be to apply the measures that will best vindicate the values expressed in The Charter and to provide the form of remedy to those whose rights have been violated that best achieves that objective." [Andrews, supra, at para 34] [Corbiere, supra, at para 110] [224] The remedy that best advances the constitutional interests of equality, dignity and security is to apply the same language as "child of the marriage" in the Divorce Act, as follows: > **Definitions** > > 2. (1) In this Act, > > "child of the marriage" means a child of two spouses or former spouses, who, at the material time, > > (a) is under the age of majority and who has not withdrawn from their charge, or > > (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. [Divorce Act, supra, s. 2(1)] [225] In determining whether the reading in/reading down option is the most appropriate remedy, the court must consider how precisely the remedy can be stated, budgetary implications, the effect the remedy would have on the remaining portion of the legislation, the significance or long-standing nature of the remaining portion and the extent to which a remedy would interfere with legislative objectives. [M v H, supra, at para 139 citing Schachter v Canada](https://www.canlii.org/en/ca/scc/doc/1992/1992canlii74/1992canlii74.html), [1992] 2 SCR 679 and Vriend, supra [226] The proposed reading in of the definition of "child of the marriage" is the most appropriate remedy in this case, given the following: • The remedy can be precisely stated by replacing the limited definition of "child" in s. 31 of the FLA with the definition of "child of the marriage" in the Divorce Act; • There are no negative budgetary implications associated with reading in the definition of "child of the marriage"; instead, it would relieve pressure on the public purse; • Reading in "child of the marriage" should not have any significant effects on other schemes set out in the FLA; • Reading in "child of the marriage" does not detract from the fundamental role of the remaining portion of s. 31; and • Reading in the more inclusive definition of "child of the marriage" furthers the overarching aim of the FLA as well as the more specific purpose of its child support provisions by encouraging the equitable distribution of child care costs post-separation and enforcing the right of all dependent children, irrespective of age, to ongoing financial support from both parents. --- ## 12. Summary of Final Orders [227] Section 31 of the Family Law Act of Ontario violates Joshua and Robyn's section 15 (1) Charter rights, and therefore s. 31 of the FLA does not apply to the circumstances within Wayne's Motion to Change before me, dated July 22,2014, Tab 1 of Vol 3 of the continuing record. Section 31 of the Family Law Act is not saved by section 1 of The Charter. [228] The section 7 challenge is dismissed. [229] That in this Motion to Change before me, File 95-1547, the word child in section 31 of the Family Law Act means a child who (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. [230] The court wishes to thank each counsel for their thorough oral arguments and written submissions. [231] As July 10, 2017, is scheduled as the next court appearance in this Motion to Change, the court has converted that date into a telephone conference to permit the parties to consider this decision and their next steps to resolve this Motion to Change child support for Joshua. Conference information will be sent to all the parties. --- **Released:** July 7, 2017 **Original Signed by The Honourable Justice A.W.J. Sullivan** **Justice A.W.J. Sullivan** --- ## SCHEDULE A ### Legislative History – Support of Illegitimate Children [1] It is trite law, but very rarely articulated so fundamental is the premise, that a parent has an obligation to support their children. In fact so fundamental is the premise that it has been said that "no right thinking society would fail to recognize a parent's duty to support a child." This obligation as Little Pov. J has observed "is (a) well known and historical obligation" [W.(M.M.) v. W.(P.J.), Supra at 8, Tab 67] [Ropos-Harder v. Tanner](https://www.canlii.org/en/on/oncj/doc/1995/1995canlii10352/1995canlii10352.html), 1995 CarswellOnt 2018, [1995] W.D.F.L. 1456 at 3, Tab 47] [2] Prior to the establishment of Canada as a nation in 1867 the British Government in England was responsible for the laws that governed what is now Canada. In 1576 British Parliament passed the Poor Law Act, which governed the legal status of "bastard children" or children out of wedlock. With the passing of the Poor Law Act financial support of children born out of wedlock shifted from state and religious institutions to either the mother and/or father. The law governing children married out of wedlock did not substantially change until the introduction of the Bastardy Act in 1809. After the introduction of the Bastardy Act the financial burden of caring for a child born out of wedlock shifted from both parents to primarily the father. Despite the fact that the Bastardy Act was enacted in 1809 Britain Upper Canada, as Canada was known prior to confederation, philosophically abided by the Poor Law Act. [The Poor Act, 18 Eliz., c. 8, Tab 75] [Bastardy Act, 49 Geo. 3, c. 68, Tab 76] [3] It was not until the Thirteenth Provincial Parliament of Upper Canada in 1837 passed An Act to make the remedy in cases of seduction more effectual, and to render the Fathers of Illegitimate Children liable for support that the financial burden for illegitimate children shifted from both parents to primarily fathers. The law governing unmarried children did not change again until 1921 with the passage of The Children of Unmarried Parents Act, which was the forerunner of The Child Welfare Act of 1970. The Children of Unmarried Parent's Act further increased the burden on fathers by fixing paternity on them and making them "liable for medical expenses of the mother, weekly payments toward the maintenance of the child until he reached sixteen years of age, and the burial expenses of both the mother and child. These liabilities were additional to the duty of the father to reimburse any other person who furnished necessaries to the child." [An Act to make the remedy in cases of seduction more effectual, and to render the Fathers of Illegitimate Children liable for support, 7 William 4, C.8; The Children of Unmarried Parents Act, 11 Geo,. 5, c.54; The Child Welfare Act, R.S.O. 1970, C.64, Part III; The Ontario Law Reform Commission of 1973, Report on Family Law, Ministry of the Attorney General, http://www.archive.org/details/reportonfamilyla03onta, at pg. 3, Tabs 77, 78, 79 and 71] [4] In 1970 the law regarding illegitimate children was changed again with the introduction of The Child Welfare Act (hereinafter the "CWA"). However the CWA did nothing to shift financial liability for an illegitimate child off of the shoulders of fathers as evidenced by section 59(1). Things began to change somewhat with the issuance in 1973 of the Ontario Law Reform Commission's "Report on Family Law" (hereinafter "the Commission). Led by H. Allan Leal, Q.C. the Commission's findings led to the passage of the Children's Law Reform Act, which according to the Ontario Court of Appeal "was intended to remove disabilities suffered by children born outside of marriage". [The Child Welfare Act, Supra, s.59 (1); A.A. v. B.B., 2007 ONCA 2 at 20, Tabs 79 and 2] [5] The CLRA was enacted because as the Commission stated in the introduction to their Report on Family Law (hereinafter "Report"): > In Ontario and many other common law and civil law jurisdictions, the child born outside of marriage suffers a number of legal disabilities. These disabilities arise at the moment of birth and may remain with the child throughout his lifetime. The justification for this seems highly questionable, and in our discussions on possible reforms in the law relating to children we have accorded high priority to finding a means by which the child born out of marriage may be allowed to enjoy the same rights and privileges as other children in our society. [The Ontario Law Reform Commission of 1973, Report on Family Law, Supra at 1, Tab 71] [6] Later on in their Report in the section entitled "Proposal's for change" the Commission stated that: > We have taken as our major premise the view that the status of "illegitimacy" ought to be abolished in Ontario and that so far as it is consistent with the interests of the child born outside marriage, his position under the law ought to be equated with that of other children. [The Ontario Law Reform Commission of 1973, Report on Family Law, Supra at 10, Tab 71] [7] The reasoning for the Commissions position was that no matter what the justification was for treating children born out of wedlock differently in the past, the commission could not "perceive any factor in modern society which justifies law which perpetuated this discrimination." The Commission was influenced by and arguably this Honourable Court should be persuaded by the report of the sub-commission of the Commission on Human Rights of the United Nations that cast light on the discrimination against persons born out of wedlock: > Discrimination against persons born outside the accepted family structure dates many centuries back in the history of mankind. Such persons, because of the nature of their birth, were placed in a category which was inferior to that enjoyed by persons born within the framework of the prevailing family pattern. > > It has often been said that a person born out of wedlock, his parents and sometimes his mother's entire family, suffer a stigma as a result of the nature of his birth. Words as strong as "discredit""disdain" "shame" "contempt" and "condemnation" have been used to describe such stigma. > > As has been said, social discrimination manifests itself not only in the attitude of the members of the community towards the persons concerned, but also in the various aspects of the life of the person born out of wedlock, whether private or public. > > Most other differences between the status of persons born in and out of wedlock are discriminatory in nature. For example, in the matter of maintenance and inheritance rights, the study reveals that in many countries persons born out of wedlock enjoy rights which are inferior to those enjoyed by persons born in wedlock, and sometimes absolutely no rights of inheritance thus, persons born out of wedlock who, because of the very nature of their birth are deprived of a normal family life, are also denied the possibility of being raised and of living according the same standards as those enjoyed by persons born in wedlock. Such differences, which are discriminatory in nature, may be eliminated or at least greatly improved upon [emphasis added]. > > …once filiation has been established, whether it entails a full family relationship or limited effects only, all persons born out of wedlock should have the same maintenance rights as persons born in wedlock… [emphasis added] [The Ontario Law Reform Commission of 1973, Report on Family Law, Supra at 10; V.V. Saario, Sub-Commission on Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights, United Nations Economic and Social Council"Study of Discrimination Against Persons Born out of Wedlock" U.N. Doc. E/CN.4/SUB.2/. 265 REV.1 at pp.1, 143, 19-20, 143,110-111, Tab 71-72] [8] While the sub-commission of the Commission on Human Rights of the United Nations acknowledged paragraph 2 of article 25 of the Universal Declaration of Human Rights stating that "…all children whether born in or out of wedlock shall enjoy the same social protection" the sub-commission further recognized during the debate of the General Assembly that: > "According to the rights proclaimed in this Declaration, illegitimate children are equal to legitimate children and have the same right to social protection." > > In explaining this proposal, the representative of Yugoslavia, pointed out that discrimination against illegitimate children in certain countries, although it involved individuals only an did not affect entire social groups, was nevertheless, a serious infringement of human rights and as such should not be tolerated. He noted that children born out of wedlock were deprived in varying degrees and in varying forms of family rights, property rights and inheritance rights… Thus, from birth, various human being suffered injury to their personal dignity and were deprived of certain fundamental rights. [emphasis added] [V.V. Saario, Sub-Commission on Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights, United Nations Economic and Social Council"Study of Discrimination Against Persons Born out of Wedlock: Annex III: Consideration By the United Nations of the Position of the Person Born Out of Wedlock" U.N. Doc. E/CN.4/SUB.2/. 265 REV.1 at pp.191, Tab 72] [9] Ultimately the Ontario Law Reform Commission's objective was to see the laws of Ontario governing children born out of wedlock changed so as to "remove, as far as the law is capable of doing so, a stigma which has been cast on children who in the nature of things cannot be said to bear responsibility for it." In the Commissions view "the disadvantage under which the child suffers is repugnant to the principles of equality of more enlightened times" and that "the law of Ontario should declare positively that for all its purposes all children should have equal status." [The Ontario Law Reform Commission of 1973, Report on Family Law, Supra at 10 and 12, Tab 71] [10] Following the issuance of the Commission's Report on Family Law the central recommendation that arose from it, namely that "Ontario should abolish the concepts of legitimacy and illegitimacy and declare positively that all children have equal status in law" was enshrined into law with the enactment of Part I and II of the CLRA in 1977. As the Ontario Court of Appeal has said "the Commission's central recommendation concerning equality is found in the Act's first section: > 1. (1) Subject to subsection (2), for all purposes of the law of Ontario a person is the child of his or her natural parents and his or her status as their child is independent of whether the child is born within or outside of marriage. > > (4) Any distinction at common law between the status of children born in wedlock and born out of wedlock is abolished and the relationship of parent and child and kindred relationships flowing there from shall be determined for the purposes of the common law in accordance with this section. [A.A. v. B.B., Supra at 20; CLRA, R.S.O. 1990, C.c.12, as am, s.1 (1) and (4), Tab 2 and 80] [11] After the CLRA abolished the distinction between illegitimate and legitimate children in 1977 the Family Law Reform Act was amended in 1980 to eliminate the distinction for the purposes of child support. In 1986 the Ontario Government introduced An Act to revise the Family Law Reform Act, which was the precursor to the present FLA introduced in 1990. Further the wording of s. 31 of An Act to revise the Family Law Reform Act is identical to the present wording of s. 31 of the FLA, which the Applicant Mother argues is under inclusive and therefore discriminatory when viewed through the lens of the Charter. --- ### The Purposes of Child Support in Contemporary Canada [12] Modern Canadian Society recognizes that the purpose of child support is to provide for the support of children on the breakup of their parent's relationship. Couples when they have a child, whether they are married or not, enter into a social contract to support their children until they are no longer dependent and can support themselves. This obligation arises from the date children are born: > Giving birth to a child is an event of profound moral and legal significance. This is an event that gives rise to significant moral and legal duties. Together, the parents have brought a child into the world. Together, they share responsibility for the child's well-being. The child is vulnerable, and so there is a legal duty to protect. The child cannot support itself, and so there is a duty to provide the necessities of life. > > These parental responsibilities are the social pillars upon which the institution of the family is built. These duties are integral to a parent-child relationship. They define who we are, and what we want to be, as a family, as a society, and as a people. > > These duties fall upon the parents who chose to create life. These duties fall upon the parents equally. These are obligations that attach at birth. They continue to bind the parents until the infant reaches the age of majority or leaves a state of dependency. These solemn obligations are not readily given up. They cannot be abandoned. [M.(T.) v. N.(0.), 2007 NUCJ 18, 43 (6th) 233 at 9 – 11, Tab 31] [13] Parent's obligation to support their children has been recognized by the Supreme Court of Canada. According to the court the purpose of child support is to try and provide children with the same standard of living they enjoyed while their parents were together: > The contemporary approach to child support was delineated by Kelly J.A. in [Paras v. Paras (1970)](https://www.canlii.org/en/on/onca/doc/1970/1970canlii370/1970canlii370.html), [1971] 1 O.R. 130 (Ont. C.A.). In that case, the Ontario Court of Appeal established a set of core principles that has been endorsed by this Court in the past and continues to apply to the child support regime today: see [Richardson v. Richardson](https://www.canlii.org/en/ca/scc/doc/1987/1987canlii58/1987canlii58.html), [1987] 1 S.C.R. 857 (S.C.C.); [Willick v. Willick](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii28/1994canlii28.html), [1994] 3 S.C.R. 670 (S.C.C.). These core principles animate the support obligations that parents have towards their children. They include: child support is the right of the child; the right to support survives the breakdown of a child's parents' marriage; child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and finally, the specific amounts of child support owed will vary based upon the income of the payor parent. [S.(D.B.) v. G.(S.R.), 2006 SCC 37](https://www.canlii.org/en/ca/scc/doc/2006/2006scc37/2006scc37.html), [2006] 2 S.C.R. 231 (S.C.C.) at 35 – 42, Tab 48] [14] Arguably the principles set out by Bastarache J are applicable whether a child's parents are married or not. According to the court in Storr"[i]t is an established tradition of Canadian law that from the day a child is born, each of the parents of a child are responsible for the support of that child. This support obligation is triggered by the birth of the child and not by some other event such as notice of a court application for child support." To argue that a parent's child support obligation changes as a result of a child growing older and based on the legal status of the parent's relationship is not supportable in law, does not conform with the principles underpinning the purpose of child support legislation and is simply discriminatory. [Storr v Steen, 2010 CarswellNWT75 at 17 – 18, Tab 52] --- ## SCHEDULE B ### Amicus Presents the Following as Legislative Facts in This Matter: ### THE PROVINCIAL POLICY FRAMEWORK FOR PROVIDING SUPPORT FOR DISABLED ADULTS [15] In Ontario, disabled adults are provided with income support from the provincial government under a program called the Ontario Disability Support Program ("ODSP"). This program recognizes Society's role in caring for disabled adults, as it requires applicants to be over 18 before making an application. Children are not permitted to receive ODSP benefits on their own behalf. As the Court of Appeal stated in [Senos v Karcz](https://www.canlii.org/en/on/onca/doc/2014/2014onca459/2014onca459.html), > The ODSPA recognizes that government, communities, families and individuals share responsibility for providing support to persons with disabilities: s. 1(b). The intent of the program, as expressed in its Directives, is to provide supports necessary to enable individuals and families to live as independently as possible in the community and to lead more productive, dignified lives. [General, O Reg 222/98 at s.3 made under the Ontario Disability Support Program Act, 1997, SO 1997, c 25, Sch B. ("ODSPA")] [Senos v. Karcz, 2014 ONCA 459 at para. 41] [16] This legislative approach is not unique to Ontario and the Supreme Court has described the approach taken by other provinces. The Court summarized generally the approach taken to the care of disabled adults as follows, > When a disabled person becomes an adult, the burden of his or her care shifts from the parents to society as a whole, and it is accepted as fair and just that the continued burden of care of disabled adults should be spread over society generally. At one time, it may well have been the moral responsibility of parents to care for a disabled child for as long as they lived. But for some decades now, that moral responsibility has shifted to British Columbia society as a whole, as expressed by legislation enacted and preserved by successive governments (emphasis added). [See [Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9](https://www.canlii.org/en/ca/scc/doc/2002/2002scc9/2002scc9.html), [2002] 1 SCR 205 at para. 40] [17] In Krangle, the court summarized an important principle about Society's role in caring for adults. While this statement has been moderated slightly to include parents as having some responsibility as well, there is a safety net for adult children that does leave them with means, provided for by society as a whole. [18] [See Lougheed v. Lougheed, 2007 BCCA 396](https://www.canlii.org/en/bc/bcca/doc/2007/2007bcca396/2007bcca396.html), [2007] B.C.J. No. 1648 at paras. 25-26 as cited in [Briard v. Briard, 2010 BCCA 431] [19] Courts in Ontario have recognized that there is no common law (or, in Ontario, statutory) obligation for parents to support adult children who are disabled. In Harrington, the Court of Appeal per Morden J.A. stated, > …there is …no general common law…statutory obligation resting on a parent to support an adult child, even one who is disabled …in the absence of something in the nature of conduct on the parent's part amounting to an undertaking in this regard. [Harrington v. Harrington, (1981)](https://www.canlii.org/en/on/onca/doc/1981/1981canlii1762/1981canlii1762.html), 22 R.F.L. (2d) 40 (Ont. C.A.); [Cossette v. Cossette](https://www.canlii.org/en/on/onsc/doc/2003/2003canlii2086/2003canlii2086.html) at para. 7 and [Liscio v. Avram] [20] In addition, while the Courts might feel that Wayne's position may raise issues of "morality", there is no precedent for moral issues to become force of law without also being recognized in statute or common law. As McLachlin C.J.C. stated in Krangle; > Counsel for the Krangles argued that even if the Act does not impose a legal obligation on the Krangles for Mervyn's adult care, they have a moral obligation to care for him, one which loving parents should not be expected to relinquish. This argument raises the question of whether moral obligation, as opposed to legal, suffices to ground an award of damages. Will the law force one person to recompense another for expenditures which are not legally required, but which the other in conscience feels obliged to make? No precedent was cited for this proposition. [See [Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9](https://www.canlii.org/en/ca/scc/doc/2002/2002scc9/2002scc9.html), [2002] 1 SCR 205 at para. 39] [21] Joshua has deposed that he receives income support pursuant to the ODSPA. The amount he receives is more than the amount of support he is asking Wayne to pay, which demonstrates the extent of Ontario's safety net. The Court of Appeal in Ansell emphasized that disabled adults living with a parent are "independent adults" and pointed out that they alone are a "benefit unit" for the purpose of the ODSPA. [Ontario (Disability Support Program) v. Ansell, 2011 ONCA 309] [22] The province of Ontario recognizes the need for a "social safety net" for disabled adults. It has provided them with income support and various other programs to help meet their needs. In sum, Ontario has made provision for disabled adults and has made a legislative choice not to require parents to provide child support for disabled children for the entirety of their lives. [23] It is also important to note that Joshua is actually in a better financial position as an adult with a disability than an adult who is unable to obtain gainful employment for reasons other than disability. For example, an adult child of low intelligence who cannot get employment may qualify for Ontario Works, but would receive less monthly than Joshua. [24] Furthermore, it ought to be noted that, although Joshua has not accepted this perspective, other disabled adults might not be in support of Joshua's position. For example, Joshua's position has the effect of limiting the autonomy and independence of adult children, in that "children of the marriage" as defined under the Divorce Act are subject to custody and access orders. This itself may raise Charter issues as it may infringe on adults' autonomy. Wayne raises this to point out that rights and obligations arise out of the position Joshua is taking, and thus his position would not necessarily be supported by all people in his position. [See [Perino v. Perino](https://www.canlii.org/en/on/onsc/doc/2009/2009canlii41900/2009canlii41900.html) at paras. 11 and 13] --- ### EVEN UNDER THE DIVORCE ACT, ADULT CHILDREN WITH DISABILITIES DO NOT NECESSARILY RECEIVE CHILD SUPPORT [25] For added context, it is also important to note that Joshua would not necessarily be entitled to child support even if his parents had been married. In [Senos](https://www.canlii.org/en/on/onca/doc/2014/2014onca459/2014onca459.html), the Court of Appeal firmly held that the presumption to Guidelines support for adult children with disabilities does not apply, stating: > ODSP reflects society's commitment to sharing financial responsibility for adults with disabilities. It makes little sense to calculate child support on the basis that this responsibility falls only on the parents. In my view, the assumption of some responsibility by the state and Antoni's receipt of income support for his board and lodging make the Table approach inappropriate. These circumstances change the equation and call for a bespoke calculation based on Antoni's unique condition, means, needs and other circumstances, including his receipt of ODSP, and the ability of his parents to contribute to his support. (emphasis added). [Senos v. Karcz, 2014 ONCA 459 at para. 64] [26] Further, the Court of Appeal states: > The Table amount is predicated on the parents alone sharing responsibility for the financial support of their child. In the case of adult children with disabilities, the ODSPA commits society to sharing some responsibility for support. In my view, this makes the s. 3(2)(a) approach inappropriate, and s. 3(2)(b) should be applied to achieve an equitable balancing of responsibility between Antoni, his parents and society. [Senos, supra at para. 67] [27] In this case, while there has been some evidence of Joshua's monthly budgetary needs, the evidence has not been tested and no findings have been made. In addition, of course, Robyn would provide the highest numbers that are plausible to justify the imposition of support on Wayne. To determine whether Wayne would have to pay support even if the Family Law Act was unconstitutional, the parties would need a lot of evidence on how the ODSP is used by Robyn for Joshua's benefit, how she uses the support Wayne pays, and what Joshua's legitimate monthly budgetary needs are. [Senos, supra at para. 72] [28] In sum, even if the Divorce Act applied, Wayne could be ordered to pay any amount from $0 - to the full Guidelines amount of support. There is no guarantee Joshua would get any support from Wayne if ODSP payments were sufficient to meet his budgetary requirement. In the alternative, Wayne's payments could be reduced substantially. These factors demonstrate that the purported impact of the alleged distinctions is tempered as compared to the categorical types of doomsday statements made by Robyn and Joshua in their submissions. [29] In other words, for adult children subject to the Divorce Act, the child's parents, both of them, are required to simply cover budgetary gaps. Then, the amount of support payable by the parent without physical custody may be assessed. The extent of the support obligation is specific to the facts of each case.