Marital status should not affect parental obligations: Silbert
By April Cunningham, Associate Editor
It’s surprising the issue giving rise to a recent constitutional challenge to align federal and provincial laws on the eligibility of disabled adult children for child support wasn’t addressed long ago, says St. Catharines family lawyer Sharon Silbert.
As it stands, disabled adult children of unmarried parents are not entitled to child support in Ontario and Alberta unless they are enrolled in full-time education, since common-law partners fall under provincial legislation which includes a narrow definition of who qualifies as a child for the purposes of support, says Silbert, principal of Sharon B. Silbert Professional Corporation.
In contrast, the federal Divorce Act, which applies to married spouses, allows for child support to continue into adulthood when a child over the age of majority is unable to withdraw from their parents’ charge by reason of illness or disability regardless of whether or not they are enrolled in school, she says.
“When it comes to child support, whether a child was born to married or unmarried parents is not within the child’s control and shouldn’t necessarily lead to a different set of parental rights and obligations,” Silbert tells AdvocateDaily.com. “It makes more sense to treat all parents the same way.”
The mother of a 21-year-old son with disabilities has launched a constitutional challenge in hopes of seeing child support payments continue, the Toronto Star reports. She claims Ontario’s Family Law Act discriminates against adult children with disabilities born to unmarried parents by treating them differently from adult children with disabilities whose parents were previously married and to whom the Divorce Act applies.
“The inconsistency between those two pieces of legislation has always puzzled me,” Silbert says of the constitutional challenge, “and it makes sense for it to be addressed one way or another.” She hopes the legislature provides clarity on the law, no matter what the judge rules on the case.
Child support for adult disabled children has been a “live issue” in Silbert’s practice on numerous occasions, she says, and the fact that children are treated differently by the law based on their parents’ marital status can come as a shock to some parents who never married.
“To find out a child is no longer entitled to support just because they are over 18 and not enrolled in full-time education can come as a real surprise,” she says. “Most people are aware that turning 18 doesn’t necessarily terminate child support in the vast majority of cases, but don’t realize eligibility for child support after age 18 is in some cases affected by which legislation applies.”
Silbert says that even in cases where the Divorce Act clearly applies, it’s not always clear whether child support should continue indefinitely for adult disabled children, whether it should be modified or reduced to some degree, or whether it should end altogether.
“Ultimately it’s a matter of finding the right balance between parents’ private obligations and the responsibility of our society more broadly to support its more vulnerable members,” she says.
Federal legislation doesn’t always require full child support on an indefinite basis, she says, “and it’s not what the provincial legislation would require if it was amended. A case-by-case analysis would likely still be required to define the extent of a parent’s obligations in any situation,” Silbert says.
“In general, I think it would be a good idea to bring the provincial legislation in line with the federal, rather than the other way around.”