One Mother’s Impact on the Ontario Family Law Act and the Enduring Challenges of Access to Disability Services

By Victoria Sorge, Windsor Law J.D. Candidate 2019  

Introduction

Robyn Coates, mother to 22-year-old Joshua Coates, has helped spearhead a long overdue amendment to Ontario’s Family Law Act. This amendment allows all adult children with disabilities to be eligible for child support, regardless of their parents’ marital status.
Joshua Coates was born with a genetic abnormality known as Di George Syndrome. This serious condition causes various medical and psychiatric challenges, which have debilitating implications for Joshua’s day-to-day life and social interaction. Ms. Coates has worked tirelessly to provide her son with resources and access to community programs for adults with disabilities in order to help maintain his quality of life. These programs are fundamental for adult children with disabilities who are no longer eligible for school. They help to keep these adults healthy, happy, and active members of the community; However, they are also extremely costly. Although Ms. Coates was never married to Joshua’s father, Wayne Watson, his contribution of child support payments has enabled Joshua’s involvement in community programs such as yoga, pottery classes, and volunteer opportunities.

The events leading to the pivotal Coates v. Watson began when Mr. Watson refuted his financial obligations to support Joshua under section 31 of the Family Law Act. At the time, this provision dictated that adult children were only eligible for child support if they were a minor or in school full-time, which no longer applied to Joshua. Ms. Coates and Joshua countered on the basis of a Charter challenge, comparing the federal Divorce Act to the provincial legislation. Under the Divorce Act, a federal law, children with disabilities are eligible for child support into adulthood if they are unable “by reason of illness, disability or other cause to withdraw from their charge or to obtain the necessaries of life”, and regardless of whether they are attending school. Ms. Coates, therefore, argued that if Joshua’s parents had been married or divorced, the financial support from his father would be Joshua’s right. The Coates family contended that the Ontario legislation discriminated against unmarried parents on the basis of marital status, against those with disabilities, and against single women.
Joshua and his mother also argued that section 31 of the  Family Law Act was in violation of section 15(1) of the Charter of Rights and Freedoms (the Charter) which states:
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, color, religion, sex, age or mental or physical disability.

They submitted further that “the greater than ordinary stress and anxiety” caused by this situation infringed on Joshua’s security of the person in violation of section 7 of the Charter which states:
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

Arguments in response centered on the basis of federalism, reasoning that the Constitution Act, 1867 dictates that provincial and federal legislatures are free to adopt different approaches to child support and that inconsistency between the two powers does not equate to discrimination. In rebuttal to the Coates’ arguments, it was further submitted that the provincial provision is not discriminatory because no disabled adults, whether their parents were married or not, are entitled to support under the Family Law Act. The Act makes no distinction between whether the adult, disabled child’s parents were married or not.
Family Alliance Ontario and Sherbourne Health Centre intervened in the case. They rejected Mr. Watson’s reasoning, highlighting that simply because discrimination is not visible within the statute does not mean that substantive inequalities are not present. Counsel for the intervenor explained that section 31 of the Family Law Act was under-inclusive, meaning it does not encompass vulnerable members of society. They noted that although the law may seem “neutral” on its face, the adverse effects of this legislation must be highlighted: “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.”
The court agreed with the intervenor’s position. The Court held that section 31 of the Family Law Act violated the Coates’ section 15(1) Charter rights and the provision could not be saved by any Charter justifications. The judge concluded that section 31 “shuts a door to Joshua/Robyn to have a court in Ontario consider and have an opportunity to assess his needs….”. As well, Justice Sullivan did not refute Mr. Watson’s argument that federal and provincial powers may legislate differently, however, he nuanced that it must be done within constitutional limits. It is not necessary that both laws mirror each other, but one must not further disadvantage vulnerable groups. Justice Sullivan commented on the under-inclusive manner of the provision: “[section] 31 discriminates because of its effects…on groups already marginalized by systemic inequalities.
The Charter is supreme law, and in Canada, both provincial and federal statutes must comply with it.”

Section 7

Although the Coates’ section 15(1) claim on the basis of unconstitutionality was successful, the court did not find merit within their section 7 argument. Justice Sullivan disagreed on this point and explained that “the security of the person would only be violated where the state interfere[d] in profoundly intimate and personal choices.” In Joshua’s case, the Ontario government is not exercising sufficient control to disallow him from accessing activities of economic gain or commercial activities. For these reasons the Coates’ section 7 challenge was dismissed.

Outcome

Notwithstanding the s. 7 challenge, Justice Sullivan ordered s. 31 of the Family Law Act to be amended. The updated provision more closely aligns with the Divorce Act and ensures that children with disabilities over 18-years-old are treated the same under both provincial and federal law. The amended provision reads, “[e]very parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who, (a) is a minor; (b) is enrolled in a full-time program of education; or (c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.”

Commentary

Although the provincial government’s steps to minimize discrimination against disabled adult children through this amendment constitute positive news for Joshua, Ms. Coates expressed that she believes some level of discrimination remains. Without more inclusive wording, Ms. Coates fears that adult children with issues that are not easily defined as a disability or “other cause”, and have parents that were never married, fall between the cracks. The intervenor discussed issues in court that exemplify Ms. Coates’ fear and perpetuate discrimination regardless of the provincial amendment. She spoke on behalf of LGBTQ+ families and explained that youth within these communities in transitioning periods may be unable to leave the care of their parents, yet don’t qualify as disabled or ill. Under the Divorce Act, they would qualify for support given the inclusive and protective language, however, even under the amended provincial Act, they may remain vulnerable. In our current evolving society of social reform and education, I have no doubt that this will be an imminent area of discussion and progression between the public and the province. Robert Shawyer, the lawyer for the Coates family, expressed his excitement regarding the updated legislation. Nonetheless, Mr. Shawyer also described the government’s treatment of the issue as an “administrative housekeeping matter rather than the important public policy issue that it is.”
In my opinion, the importance of this public policy issue is largely misunderstood and underrepresented. There is a crisis in Ontario regarding disability services. Wait lists for services are immense, adult children with disabilities face uncertainty after turning 18, and supported living homes are at full capacity. After children with developmental disabilities turn 18, they must re-apply for financial aid, even if their health has not improved and financial aid for services into adulthood is needed more than ever. Parents of adult children with disability face incredible financial and emotional stress regarding the uncertainty of their child’s future wellbeing.
The Ontario government has taken commendable steps in reducing this need, including the implementation of the Passport Program, as well as investing money into upgrading supported living homes. These services help to increase access to support for adults with developmental disability so that they can participate in their communities and lead a fulfilling life. Additionally, the government has recently increased the number of Developmental Services Ontario staff, in order to better connect people with developmental disabilities to local resources. Increasing services such as these, as well as the amending of the Family Law Act, are imperative steps toward combating the public policy issue that has been continuously underrepresented. Nonetheless, it is all too clear that the steps being taken by the Ontario government are underwhelming when compared to the statistics. As of September 2017, to obtain a room in a supported living group home, the expected wait was 25 years. In March of 2017, the government tended to an accumulation of approximately 13,000 adults with developmental disabilities waiting for Passport funding. However, since then, an additional 11,000 people have requested support and are on an unpredictable and inconsistent waitlist, expected to be years long. The government’s actions should not go unrecognized, but an incomplete effort by the province must also be acknowledged.

Ms. Coates and her son Joshua are an important part of the movement toward an increase in access to services. Their story is imperative in helping shed light on the systemic issues facing individuals with disabilities, highlighting some of the Ontario government’s successful advancements, as well as identifying shortcomings still remaining. Access to disability services remains a serious issue in Ontario, but the impact of Ms. Coates on the Family Law Act moves our society forward in terms of remedying this and is certainly a reason to celebrate.

Author: Laverne Jacobs

Canadian law professor at Windsor Law and 2013-14 Fulbright Visiting Research Chair at UC Berkeley researching administrative law, FOI, and law, disability and social change. http://www.uwindsor.ca/law/ljacobs