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 1h, 2017

Robert Shawyer .................................................................... for Robyn Denise Coates

Michael Tweyman, Gary Joseph (Amicus) ..................... for Wayne Marion Watson
Andrew Sudano, Shelley Kierstead ......................... for Joshua Coates (added party)
Joanna Radbord ... Intervener- Family Alliance Ontario, Sherbourne Health Centre

SULLIVAN J.:

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)
 -2-

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.
 -3-

[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. 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 dlsperate treatment said
to underpin the constitutional violation results from two pieces of legislation, one in
acted by the federal government under its undoubted constitutional authority over
'marriage and divorces' (Constitution Act, 1867, S. 91.26), the other in acted 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.
 -4-

[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 Chatter
arguments in family domestic matters dealing with motions to change child support
orders. Chatter 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 Chatter 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 Chatter when he
stated in Reference Re-S. 94 (2) Of the Motor Vehicle Act (B. C.) [1985]2 S. C. R. 486,
at 497 (S.C.R.):

"It ought not to be forgotten that the historical decision to entrench The Chatter 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 Chatter 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 Chatter comes from neither level of the legislative branches of government from
the Constitution itself.... With the Constitution Act, 1982 comes a new dimension, a
 -5-

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, [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 at par 66 citing R. v. Turpin [1998} 1 S.C.R.
1296 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) at paras 77- 79.
 -6-

[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
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 [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,
1996 Canlll 1754 ( ON CA ), 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 [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."
 -7-

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
 -8-

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.
 -9-

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 Marion
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 Walder 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. Ill 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 April28, 2015, and is foundat 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.
 -10-

[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 res. 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
 -11-

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 Chartef?

[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 Jaw
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:
 -12-

a) The Supreme Court of Canada held in S (DB) v G (SR) 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, 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 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
 -13-

[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) [1989] 1 SCR 143 at

para 8 [Andrews]

Law v Canada (Minister of Employment and Immigration) [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. Withlermade considerable
progress, but there were still aspects to be clarified in Quebec v A and Taypotat.

Egan v Canada [1995] 2 SCR 513 [Egan]

Thibaudeau v Canada [1995] 2 SCR 627 [Thibaudeau]

Miron v Trudel [1995] 2 SCR 418

R v Kapp [2008] 2 SCR 483 [Kapp]

Withler v Canada (Attorney General) [2011] 1 SCR 396 [Withler]

Kahkewistahaw First Nation v Taypotat [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

 -14-

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
With fer.

[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

 -15-

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, 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:
 -16-

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 ins. 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.
 -17-

[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, [1995] 2 SCR 418 at paras 154-166, 124 DLR (4th) 693 [Miron]
 -18-

[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] 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.0.1990, c. C.12, s. 2 (1).
 -19-

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), [1989] 2 WWR 481, 18 RFL (3d) 162 (Sask CA)

A (DM) K(R), [1996] WDFL 1018, 22 RFL (4th) 65 (Sask CA)

D (PA) v G (L) (1998), 89 NSR (2d) 7, 227 APR 7 (Fam Ct)

G (MJ) v M (KT) (1990), 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), 26 Alta LR (3d) 91, 121 DLR (4th) 335 (Alta QB)

Rath v Kemp (1996), 200 AR 357, 26 RFL (4th) 152 (CA)

Williams v Haugen, [1998] 2 WWR 269, 65 Sask R 207 (Unified Fam Ct)

M (N) v British Columbia (Superintendent of Family & Child Services),

[1987] 3 WWR 176, 34 DLR (4th) 488 (BCSC)-

P (CE) vV (G) (1993), 45 RFL 3(d) 424, 101 DLR (4th) 726 (Sask QB)
 -20-

Milne (Doherty) v Alberta (Attorney General), [1990] 5 WWR 650, 26 RFL (3d) 389
(AitaQB)

Surette v Harris Estate (1998), 91 NSR (2d) 418, [1989] NSJ No 262 (QL) (SC (TO))

Tighe (Guardian ad litem of) v McGillivray Estate (1994), 112 DLR (4th) 201, [1994]
NSJ No 61 (QL) (CA)

PT v RB, 2004 ABCA 244, 242 DLR (4th) 30

Massingham-Pearce v Konkolus, [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 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, [1992] 3 SSCR 813 at paras 91-92, 99 DLR (4th) 456-

New Brunswick Minister of Health and Community Services v G (J), [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
 -21-

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, [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 [page100] 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, [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, [1995] 2 SCR 627 at paras182 -185, 124 DLR (4th) 449

Willick v Willick, [1994] 3 SCR 670 at paras 52-54, 119 DLR (4th) 405

Michie v Michie (1997) 36 RFL (4th) 90, 1997 CarsweiiSask 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.
 -22-

[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 sterns 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:

Statistics indicate that persons with disabilities, in comparison to

non-disabled persons, have less education, are more likely to be
 -23-

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), [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" ins. 31
of the FLA in accordance with Charier values by recognizing, to some degree, the needs
of students with disabilities. In accordance with Charier values, in interpretating 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, at para 11 [Turner]

Wilson v Wilson, 2002 CarsweiiOnt 3838 (SCJ), at para 19 [Wilson]

Vivian v Courtney, 2012 ONSC 6585 [Vivian]

Copeland v Copeland, 1992 CarsweiiOnt 3533 (Gen Div), at para 10

[Copeland]

Vohra v Vohra, 2009 ONCJ 135, at para 14 [Vohra]

Sullivan v Sullivan, 1999 CarsweiiOnt 3340, (SCJ) at para 3 [Sullivan]

Styles v Styles, 2011 ONSC 1160, at paras 33-34 [Styles]

Gil/esse v Earl, 2011 OSNC 838, at paras 18-19 [Gil/esse]

[1 06] 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.
 -24-

[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, 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 6 citing Eaton v Brant (County) Board of

Education [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 able ism-- 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., [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
 -25-

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,

[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 thepreceding 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 res. 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 provincia/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/ens for the analysis of the issues raised by Robyn and Joshua.

[117] Pursuant to the Constitution Act, 1867, ("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.
 -26-

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.

The Constitution Act, 1867, 30 & 31 Viet, c 3 ("The Constitution Act'?

[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.

The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11
("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 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
 -27-

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
as. 15(1) challenge on the basis only that it creates distinctions based upon
province of residence. As Wilson J. states in Ref. re Bi/130, [1987] 1 S. C.R. 1148
at 1197, (sub nom. Ref. reAct 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 Carswei/Ont 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 Jeiwsh, 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, [1996] 3 SCR 609 at para. 35

 -28-

[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.}, [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 Jaws about child support
irrespective of what the Divorce Act or other provinces' family Jaw 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 verv 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., 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, 1972 CanL/1 141 (SCC), [1973] S.C.R.
205, at p. 211; Zacks v. Zacks, 1973 CanL/1 137 (SCC), [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
 -29-

bv 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 provincia/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, [2006}2 S.C.R. 231, 2006 SCC 37 (CanL/1) 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-o/ds.

[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
 -30-

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, 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), [1999] 1 S.C.R. 497,
established in essence a two-part test for showing discrimination under s. 15(1):

(1) Does the Jaw 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 Jaw on other groups in
society; and

(d) the nature and scope of the interest affected.

 -31-

Law v. Canada (Minister of Employment and Immigration), 1999 CanL/1 675 (SCC),
[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, 1999
CanL/1 675 (SCC)

[142] A recent family law case provides a perfect example of the proper application of
the s. 15 test. In Eric v Lola, the Supreme Court of Canada had to decide whether
Quebec Jaw discriminated against unmarried spouses by not providing that common Jaw
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 (CanL/1) ("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 itsef, there is a differential treatment of married and unmarried couples. Indeed, all
of the major family Jaw 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:

Provincia/legislatures have chosen to regulate the private relationships of common

Jaw 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

 -32-

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 Distinction Created Held

Legislation

Miron vs. Trudel Insurance Act Marital Status Standard

(1995) Automobile Policy
infringes s. 15 and is
unconstitutional
M vs. H (1999) Family Law Act Same-sex versus Distinction based on
heterosexual couples sex infringes s. 15
and is
unconstitutional
Walsh vs. Bona Matrimonial Married spouses Dignity of unmarried
(2002) Property Act could apply for spouses not
property division; affected- legislation
common law does not infringe
spouses could not s.15
Trociuk vs. B.C. Vital Mother could Relevant Sections of
Canada (2003) Statistics Act unacknowledge BC Vital Statistics
father on statement Act are
of live birth - unconstitutional
distinction based on
sex
Eric vs. Lola Quebec Civil Code Married and Law violates s. 15 (5-
(2013) unmarried spouses 4); Law saved by s.1
for the purpose of (5-4).
spousal support
Watson v Coates Family Law Act Divorce Act permits TBD
(2017) ONLY WHEN adult disabled
COMPARED TO children to claim
Divorce Act support; Family Law
Act has no similar
provision

[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,
 -33-

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), [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), 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. 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) [1979] 1 SCR 183 at para 14 [Bliss]

Brooks v. Canada Safeway Ltd [1989] 1 SCR 1219 at paras 43-47 [Brooks] [Brief
at Tab 832]

Quebec v. A, supra, para 332.

 -34-

[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:

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 CarsweiiOnt 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, [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

 -35-

Vriend v Alberta [1998] 1 SCR 493 at paras 75-76. [Vriendj

Quebec v A, supra, at paras 333-335 and 339-347

Ruthetford v Ontario (Deputy Registrar General), 2006

CarsweiiOnt 3463 (SCJ), at para 215 [Ruthetfordj

[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. "[l]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 [1998] 1 SCR 493 at para 61.

[158] Whiles. 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,
 -36-

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, 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.
 -37-

[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.
 -38-

[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 Jaw
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, 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 Jack 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, "[t]o
approach the ideal of full equality before and under the law . . . the main
consideration must be the impact of the Jaw 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, [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
 -39-

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, 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, [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.
 -40-

[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, 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, [2016] S.C.J. No 13, 2016 Carsweii959(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, [1988] 1 SCR 30 at para 22, 44 DLR (4th) 385- Tab 17 of

Book of Authorities

Chaoulli, supra at paras 116-117

 -41-

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 (Canlll) at paras.

117-122; See also Re Notte/ Networks Corporation eta/, 2017 ONSC 700
(CanLII) 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 (CanLII), [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.
 -42-

[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 1 S. C. R. 441 at 447, 18 D. L. R. (41h) 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.) [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]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
 -43-

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; Hunter v. Southam
Inc., 1984 Canlll 33 (SCC), [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: seeR. v. Oakes, supra, at pp. 138-40; and R. v. Big M Drug Mart
Ltd., 1985 Canlll69 (SCC), [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), [1995] 3 SCR 199 at para

129 and 144 [RJR-MacDonaldJ

Rosenberg v Canada (Attorney General), 1998 CarsweiiOnt 1785

(CA), 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
 -44-

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
payers 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) [Brief at Tab AS]

Child Support Guidelines (Ontario), 0 Reg 391/97, as amended, s 1 [Brief at

Tab A9]

Federal Child Support Guidelines, SOR/97-175, s 1 [Brief at TabA10]

 -45-

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 Chatter 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.

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 8/onski, 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.
 -46-

Senos v Karcz, 2014 ONCA 459, 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)

 -47-

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, [1999] 2 SCR 3, at para 124 [M v H] [Brief at Tab 861]

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.
 -48-

[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, "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,
 -49-

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, [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 ofVol3 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
 -50-

(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 71h, 2017

 -51-

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, 1995 Carswei/Ont 2018, [1995] W.D.F.L. 1456 at 3,

Tab47

[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 until1921 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 Ill; The Ontario Law Reform
Commission of 1973, Report on Family Law, Ministry of the Attorney
 -52-

General, http://www.archive.orqldetailslreporlonfamilyla03onta, 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 and2

[5] The CLRA was enacted because as the Commission stated in the introduction to
their Report on Family Law (hereinafter "Reporf'):

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, Reporl 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, Reporl 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:
 -53-

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 discriminatorv 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 discriminatorv 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. EICN.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."
 -54-

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
netherless, 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 Ill: Consideration By the United
Nations of the Position of the Person Born Out of Wedlock" U.N. Doc.
E/CN.4/SUB.21. 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 2and80
 -55-

[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.(O.}, 2007 NUCJ 18, 43 (6 1h) 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 JA

in Paras v. Paras (1970), [19711 1 O.R. 130 (Ont. CA). 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, [198711 S.C.R. 857
(S.C.C.); Willick v. Willick, [19941 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
 -56-

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] 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 Carswei/NWT75 at 17- 18, Tab 52

 -57-

SCHEDULE 8

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,
The OOSPA 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, 0 Reg 222198 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 (CanLII) 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, [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.

See Lougheed v. Lougheed, 2007 BCCA 396 (CanLII), [2007] B.C.J. No. 1648 at
paras. 25-26 as cited in Briard v. Briard, 2010 BCCA 431 (CanLII)
 -58-

[18] 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) 22 R.F.L. (2d) 40 (Ont. C.A.); Cossette v.

Cossette, 2003 Canlll 2086 (ON S.C.) at para. 7 and Liscio v. Avram, 2009
Canlll 43190 (ON S.C.).

[19] 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, [2002] 1

SCR 205 at para. 39

[20] Joshua has deposed that he receives income support pursuant to the OOSPA.
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 OOSPA.

Ontario (Disability Support Program) v. Ansell, 2011 ONCA 309 (Canlll)

[21] 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.

[22] 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.
 -59-

[23] 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, 2009 CanL/141900 (ON SC) at paras. 11 and 13

EVEN UNDER THE DIVORCE ACT, ADULT CHILDREN WITH DISABILITIES DO NOT
NECESSARILY RECEIVE CHILD SUPPORT

[24] 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, 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 (Canlll) at para. 64

[25] 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

[26] 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.
 -60-

Senos, supra at para. 72

[27] 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.

[28] 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.