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Advocacy Practice Areas Family

FOLA’s Submission on Expanding the Definition of Child in the Children’s Law Reform Act

Jan 8, 2021 Modified: January 6, 2024

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“The Voice of the Practising Lawyer in Ontario”
FOLA’s Submission to the
Attorney General on Expanding
the Definition of Child in the
Children’s Law Reform Act
Submitted to: Jane Mallen, Assistant Deputy Attorney General
Ministry of Attorney General
McMurtry-Scott Building
720 Bay Street, 11th Floor
Toronto, ON M7A 2S9
c/o: Sunny Kwon (MAG)
Submitted on: January 8, 2021
Submitted by:
Sam (Rasim) Misheal
Family Law Chair, FOLA
William Woodward, Chair
Michael Winward, Past
Jane Robertson, Treasurer
Corey Wall, Central East
Region Chair
Allen Wynperle, Central
South Region Chair
Sam Misheal, Central West
Region Chair & Family Law
Ted Mann, East Region
Chair & Mental Health
Gordon Prisco, Northeast
Region Chair
Douglas Judson, Northwest
Region Chair
Terry Brandon, Southwest
Region Chair
Anna Wong, Toronto
Lawyers Association
Nathan Baker, FOLA LIRN
Eldon Horner, Real Estate
Merredith MacLennan,
Real Estate Co-Chair
Katie Robinette, Executive
Kelly Lovell, Executive
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“The Voice of the Practising Lawyer in Ontario”
Thank you for providing this opportunity to The Federation of Ontario Law Associations (Hereinafter
referred to as “FOLA”) to provide comments with respect to expanding the definition of a child in the
Children’s Law Reform Act.
FOLA is an organization that represents the associations and members of the 46 local law associations
across Ontario. Together with our associate member, The Toronto Lawyers Association, we represent
approximately 12,000 lawyers, most of whom are in private practice in firms across the province. These
lawyers are on the front lines of the justice system and see its triumphs and shortcomings every day.
This Report serves as FOLA’s views and comments regarding the proposed and whether similar language
should be adopted within the provincial legislation, specifically the Children’s Law Reform Act. R.S.O.
1990, c. C.12. (Hereinafter referred to as “CLRA”)
FOLA is grateful for all the significant efforts made this far by the Attorney General, and the continued
dedications to ameliorate access to justice issues including the consideration in expanding the definition of
child and the possibility to harmonize Ontario’s CLRA that will similarly echo the federal Divorce Act.
FOLA supports the proposal to expand the definition of “child”. The definition of “child” in the proposed
section 18(2) of the CLRA is limited to a child who is a minor. It is our view this definition is inconsistent
with the definition of “child” pursuant to the Divorce Act and section 31(1) of the Family Law Act for child
support purposes.
FOLA submits that the definition shall include children who are “unable by reason of illness, disability or
other cause to withdraw from the charge of his or her parents”. We also believe it is of utmost importance
for the CLRA to be aligned with the federal Divorce Act in order to avoid having dissimilarities between
the two separate regimes.
At the receiving end of this ambiguity are the children, where the Divorce Act applies to children who are
of married and divorced or divorcing parents; and does not proffer same to disabled adult children of
unmarried parents in the CLRA.
Furthermore, the two separate regimes may pose a constitutional challenge similar to that in the case of
Coates v. Watson, 2017 ONCJ 454 (CanLII) where Justice W. Sullivan found the previous section 31(1) of
the Family Law Act violated the children’s section 15 (1) Charter rights and made a finding that the Family
Law Act discriminated against children with disabilities of unmarried spouses given that it did not provide
for support when they are no longer minors as is the case with the Divorce Act was.
Justice Sullivan1 Found that the Family Law Act means a child who:
(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.
In contrast, Justice L. Bale in Simons v. Crow, 2020 ONSC 5940 noted the following:2
1 Supra, paragraph 229 (CanLII)
Supra, paragraph 36 (CanLII)
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“The Voice of the Practising Lawyer in Ontario”
However, as noted above, this case has not been commenced under the Divorce Act, but rather under the
provincial Children’s Law Reform Act. This court does not have jurisdiction under the provincial
legislation to order custody or access in respect to a child who is not a minor: see for example Ciolfe
(Caravatta) v. Ciolfe: 2006 ONCJ 118. As a result, this court does not have jurisdiction to grant the relief
sought by the Applicant as it pertains to the custody and access raised in this action in relation to Geoffrey,
Michael Jr. and Richard. Likewise, this court would not have jurisdiction to order the enforcement of the
extra-provincial custody and access order of the Supreme Court of Bermuda under s. 41 of the CLRA
because the order must pertain to the custody of, or access to, a “child” as defined under Part III.
In conclusion, the overall principle that is applied around the world revolves around the realm of political,
economic, and social interests of the child whenever policies, laws, and decisions are made that directly or
indirectly affect children. More so, significant weight is applied in disputes such as decision making,
parenting time, support, child protection, and other issues.
Currently, as it stands in making an order for decision making, parenting time pursuant to the federal
Divorce Act or the Children’s Law Reform Act, the court will consider only the best interests of the child
and having two legislations of similar language would provide the courts with great flexibility rather than
the court concluding to not have a jurisdiction to grant the relief sought.
FOLA recommends the following amendment to the definition of “child” in the proposed section 18(2) of
the CLRA
A reference in this Part to a child who:
(a) is a minor; or
(b) is unable by reason of illness, disability, or other cause to withdraw from the charge of his or her parents.
FOLA is grateful for the opportunity to provide its submissions and welcome any opportunity to work with
the Ministry of Attorney General as it continues its commitment in improving Ontario’s justice system.
Yours very truly,
Rasim Sam Misheal, Family Law Chair
Federation of Ontario Law Associations