Since the COVID pandemic, there has been an explosion in the rate and acuity of mental health issues in children in Ontario. This increase places a particular demand on family law practitioners like us. Fortunately, we have a long history of representing vulnerable children in Ontario.

My understanding of the challenges faced by children with disabilities in Ontario originated during my representation of a family in a lawsuit against the government of Ontario for failing to treat autistic children. I began that case back in the late ‘90s and the first trial on the issue, including the appeal, concluded in 2007 after 136 days of trial time and months of contested motions for productions. These motions were required to force the government to produce information they had failed to disclose previously. Very recently, I worked with this family again on a constitutional issue affecting the child I represented nearly 30 years ago, now an adult with a disability.

My representation of children, and their concerned parents, over the years has shown me that giving a voice to a child is very challenging. Their concerns do not move the general public to influence public policy as their issues tend to be remote from the day-to-day challenges of the normal voting individual. Leading their evidence is very complicated, and they are often not heard directly in the courtroom. To effectively represent children, you have to develop a particular empathy and be able to bring forward relevant collateral information.

Children with disabilities are particularly vulnerable to the conflict that can arise in contested family law proceedings; isolating them from such conflict is essential. Often parents will have conflicting views on what is in “the best interest” of the child. However, while parents may fight aggressively for what they feel is right for their child, the child should see the parents in a different light. The child needs to feel the stability of the home even through a separation process to avoid causing long lasting emotional harm. Unfortunately, quite often, the parties in litigation confuse their interests with the best interests of their child. Other times, one parent will have a keen understanding of the child’s needs while the other is dismissive to them. Ultimately, protecting the child requires establishing an appropriate regime for parenting time, a decision-making structure and ensuring appropriate support is paid until the court, or the parties themselves can create a lasting supportive peace for their child.

Support for the child follows the Child Support Guidelines, as it does in any case. However, a child with disabilities may incur additional expenses that would be claimed under Section 7 of the Guidelines. Ensuring appropriate medical documentation and accurate financial calculations are essential to safeguarding the child during times of conflict between their parents. By creating a supportive financial structure, the child can continue to thrive during the crisis that is overwhelming their parents.

Should you have a child with a disability, and you are concerned about their vulnerability during a time of matrimonial breakdown, please do not hesitate to contact us for sensitive and informed representation of your and their needs.