‘Unless you’ve been married, you fall through the cracks,’ says Calgary woman challenging provincial law.
By Robson Fletcher, CBC News Calgary July 10, 2017
A Calgary woman says an Alberta law that lets parents of children with severe disabilities off the hook for financial support once the child turns 18 — if the parents were never married — is unfair and needs to change.
Christina Ryan’s daughter, Emily, has Down syndrome and several other medical conditions that require her to have constant care.
To pay for that, Ryan used to rely on child support from Emily’s father.
The couple split when Emily was two but they were never married and, because of that, he is no longer required to support Emily financially, now that she’s turned 18.
“I cannot keep affording to pay for her therapies, to afford for her to do all this programming that she desperately needs,” Ryan said.
“If I was married to Emily’s biological father, this wouldn’t even be a problem. … If we were separated or we were divorced, then he would still have to make payments to Emily, as a dependent.”
Ryan has now hired a lawyer, Janet Russell, who is launching a legal challenge of Alberta’s Family Law Act.
Russell noted that, in B.C., Saskatchewan and Manitoba, it doesn’t matter whether parents of a disabled child were ever married or not.
In those provinces, she said, parents of children with disabilities are routinely required to continue providing financial support for their kids, as dependents, well into adulthood.
Ontario has legislation similar to Alberta’s but Russell noted a challenge of Ontario’s law under the Charter of Rights and Freedoms was launched there earlier this year.
A decision in that case was just rendered on Friday — in favour of a single mother and her 22-year-old disabled son.
Justice William Sullivan ruled that Ontario’s law violates both the mother’s and the son’s equality rights under section 15(1) of the Charter.
Request to justice minister
Russell has formally written to Alberta Justice Minister Kathleen Ganley to request that the legislation be amended or to at least instruct the Crown not to oppose her challenge of the existing law.
Her letter outlines how Emily’s parents had lived together for 10 years but were never formally married, and therefore aren’t governed by the federal Divorce Act, which extends parental support obligations more broadly than provincial law in Alberta.
“If the parents of the child had been married, there would be no issue in this case,” Russell wrote.
“The child would be eligible for support from the father and mother as a child who is unable to remove herself from the care of her parents due to a disability.”
In an interview, Russell said it boils down to a matter of fairness.
“It’s hard to understand why somebody who requires support and assistance before they turn 18 wouldn’t require and be eligible for the same support after they turn 18,” she said.
“It doesn’t seem fair or reasonable that only one parent should bear that [cost].”
They have a court date set for July 13 but Russell doesn’t expect the Charter issue to come up then.
Ganley declined to comment in detail about the case.
“Our government is always open to receiving feedback from Albertans about their personal experiences, and we understand why child support is such an important issue to families,” the justice minister said in an emailed statement.
“As this issue is now before the courts, it would be inappropriate to comment further.”
‘Unless you’ve been married, you fall through the cracks’
For her part, Ryan hopes the government will agree to change the legislation to be more in line with what she sees as other principles of parental law.
“Parliament and the Government of Alberta have placed responsibility of raising a child on both parents — not just one,” she said.
“So this is the role of the provincial government, to amend the legislation. … The only other way of changing it after that would be to fight this as a Charter challenge, which would be extremely long and very expensive. And that’s not something I can afford on my own.”
‘It would really be devastating’
Ryan struggled to answer when asked what Emily’s adult life would be like without financial support.
“I never let myself go there,” she said, while fighting back tears. “Because it would really be devastating.”
But she said her legal challenge isn’t just about her own daughter, as there are many other families in Alberta in similar situations.
“This is not just for me,” she said.
“I’m doing this for every parent that is out there that is guided by this Alberta law that says unless you’ve been married, you fall through the cracks.”
Source CBC News Calgary