Joshua Coates is a polite and friendly 21-year-old who reads and writes at the Grade 2 level. He has trouble paying attention, suffers from anxiety and obsessive compulsive behaviour and “will require the care and supervision of others throughout his life,” according to his doctor.

Joshua was born with Di George Syndrome, a genetic abnormality that causes multiple medical and psychiatric problems that his doctor says are “chronic, severe and debilitating.”

He is also at the heart of a constitutional challenge launched by his mother in a bid to have his biological father continue to support him.

Brampton single mother Robyn Coates, 47, has worked hard to keep Joshua healthy and happy.

With the help of child support payments from Joshua’s father, Coates has enrolled her son in community programs for adults with disabilities where he practises yoga, goes hiking, does weight training and takes cooking and pottery classes. Once a week, Joshua volunteers at the local animal shelter with the help of a support worker.

“I love to walk the dogs. But if there are no dogs, I just play with the cats,” says Joshua, as Coates describes her son’s weekly routine in her tidy two-bedroom apartment in a downtown fourplex.

“I know I need the money so I can do all these things,” Joshua adds.

But now that Joshua is an adult, his father Wayne Watson says his financial obligation is over. Under Ontario’s Family Law Act, adult children are eligible for child support only if they are in school full-time.

If Coates and Watson had been married and divorced, it would have been another story.

Under the federal Divorce Act, children with disabilities are eligible for child support into adulthood whether they are in school or not.

As a result, Coates is questioning the constitutionality of Ontario’s Family Law Act, claiming it discriminates against children with disabilities. The constitutional challenge will be heard in Brampton court on Tuesday.

She wants the provincial law changed so that no other single parent caring for a disabled child can be abandoned by an absent parent when the child becomes an adult.

“I have worked really hard to develop a real quality of life for Joshua and to celebrate his strengths,” says Coates. “To have that all go kaput is so unjust.”

Coates, who earns about $51,000 a year as an educational resource worker for students with disabilities in the Dufferin-Peel Catholic School Board, says many of the children she serves have parents who were never married.

“Many women are raising these kids alone and they are living in poverty. And nobody seems to give a damn,” she says. “I don’t want any other mother to go through this.”

Parents are shocked to learn there are few publicly-funded day programs for their children when they turn 21 and are no longer eligible for school, she says, noting full-time programs for Josh — which she can’t afford — cost about $1,400 a month.

Adult children with disabilities are eligible for child support in every province except Ontario and Alberta regardless of the parents’ previous marital status, notes Coates’s lawyer Robert Shawyer.

“In terms of the changes to family law, this is probably the last constitutional challenge left because all the other areas of law that have been in need of reform such as same-sex marriage, have already been changed,” he says.

“This is the last vestige of the old pre-1980s mentality in relation to family law in terms of illegitimate children and the rights of people to marry and so on,” adds Shawyer who has taken on the case at no charge because he believes the law needs to be changed.

Watson, who says he never dated or lived with Coates, says he had a one-night sexual encounter with her more than 20 years ago. He says he didn’t even know he was a father until Coates filed an application for child support when the boy was almost 4. Although Watson says he was shocked, he says he paid court-ordered child support from 1999 without asking for a paternity test and has never missed a payment.

“I’m a dad who has tried to do the right thing,” says Watson, 49, who works in sales for a company that imports jewelry and giftware.

“I thought this whole thing would have been over three years ago. . . but now I’m caught up in this constitutional matter and it’s killing me.”

Loading... Loading... Loading... Loading... Loading... Loading...

Frustrated and out of money — he says he has paid $37,000 in legal fees and still owes his lawyer $4,700 — Watson will attend the hearing next week without a lawyer and says he will “throw myself at the mercy of the court.”

For almost 13 years, Watson, who hasn’t seen Joshua since he was 6, paid monthly child support payments of $319, based on his 1999 annual income of $29,000.

He brought a motion to stop paying in July 2014 after Coates successfully petitioned the court to raise his support twice in two years to $1,050 a month, based on the court’s estimate that his annual income had grown to $100,000.

Coates notified the court in January this year that she planned to question the constitutionality of child support under Ontario’s Family Law Act. At that time she negotiated a reduction in Watson’s support to $800 a month based on his actual annual income of $56,000.

But Watson’s goal is still to terminate payments retroactive to December 2012 when Joshua turned 18 and to seek full reimbursement for his “overpayments” to Coates since then.

In court documents filed last fall, he argues that although Joshua was enrolled in a Brampton high school for students with developmental disabilities between the ages of 18 and 21, his son’s comments on social media showed he wasn’t interested and didn’t attend regularly. As a result, he wasn’t eligible for support, Watson claims.

Joshua has been receiving Ontario Disability Support Program payments of more than $830 a month since he turned 18, as well as provincial developmental services funding of about $3,000 a year, Watson notes.

These payments show the state has taken responsibility for Joshua and that his role should have ended, Watson adds.

Watson, who is married with two other children ages 14 and 19, says he works 12-hour days to keep his family afloat and can’t afford to continue paying for Joshua indefinitely.

But in her notice to the court, Coates argues Watson can’t rely on the Family Law Act to terminate his child support responsibilities because it is discriminatory to deny disabled children of unmarried parents the right to child support when they are eligible for support under the Divorce Act.

If children of divorced parents can claim support for both education and disability beyond age 18, then children born to parents who were never married should enjoy the same rights, she claims.

“It is discriminatory for children with disabilities like Joshua to have fewer rights than those born to parents who were married,” Coates says.

Johanna Macdonald, a staff lawyer for ARCH Disability Law Centre, a provincial legal clinic that advocates for people with disabilities, is watching the Coates case closely.

“There clearly needs to be a balance of how we care for one another in society,” she says. “From ARCH’s perspective, the most important thing is those who are most affected — the adult child with disabilities — must be able to have full standing to ask and to seek entitlement from both the state and the family.”

“There will always be a tension,” Macdonald says. “But the ability to seek the support necessary needs to be in place.”

Read more about: