Parenting order for adults who have disabilities but are presumed capable

The Court of Appeal recently considered the autonomy of adults living with disabilities who remain under parental charge in the case J.F.R. v. K.L.L., 2024 ONCA 520. The court was asked to determine how to approach a request for a parenting order under the Divorce Act for an adult who had been deemed capable, without that adult taking part in the proceeding.

The case specifically considered the parties’ son (“M.”), a 26-year-old adult living with Down Syndrome, and his entitlement to participate in proceedings about where and with whom he was to reside. M could not live independently and had always resided with his parents– he remained financially dependent on them. There was no formal assessment of his capacity to make decisions about his residence, nor any guardianship or litigation guardian orders in place. The parties most recent parenting order which directed that he would reside with each of his parents according to the shared parenting schedule, was created when he was a minor. M.’s parenting separated in 2012 and entered into a separation agreement for support and parenting issues for M. and his sister, through which process M.’s shared parenting regime was confirmed. M. continued to live with his parents at their respective homes past the age of majority. During the COVID-19 pandemic, the parties agreed that M. would temporarily reside solely with his mother, the Appellant. The Respondent Father had sought to return to the shared parenting schedule since October 2020 through the lower courts, but had not succeeded.

Pursuant to s. 16(1) of the Divorce Act, a parenting order can be made on a “child of the marriage” as defined in section 2(1) of the Act. Section 2(1)(b) states that a “child of the marriage” can include an individual who, “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.” While M. did not participate in the proceedings, the Superior Court created a parenting order, on an interim basis, finding that M was a “child of the marriage”, absent his position and participation. On appeal, at issue was M.’s entitlement to participate in proceedings about where, when and whom he resides with, specifically as there was no finding as to M.’s incapacity. After considering the issues, the Court of Appeal set aside the lower court decision and the temporary parenting order due to M.’s lack of opportunity to participate.

The primary issue that was raised was M.’s fundamental rights, including his right to be heard on any matter that materially affects his interests. While the motion judge ordered that M.’s views and preferences be ascertained through a social worker or psychologist before a final order is made, the Court determined that this could not stand as a substitute for M.’s participation as he is presumed to be a capable adult in the proceedings. The Court stated that before any order is made for an adult under section 16.1 of the Act, the court must determine whether the adult is “unable to withdraw from their [parental] charge or to obtain the necessaries of life” in the specific context of the order sought. M. had the right to be heard, including the right to speak to his ability to withdraw from parental control in the specific sphere of his residential schedule, and he was denied the opportunity to exercise that right. The Court used the audi alteram partem principle which requires courts to provide an opportunity to persons who are affected by a court’s decision to be heard. Failing to do so results in a breach of natural justice. In a case where an individual is living with a disability and may be dependent on others to ensure their interests are protected and their views are made known to the court, their incapacity in decision-making does not eliminate their right to be heard. The Court further stated that the right to be heard and the right to retain independent counsel protect the presumption of capacity and the right to make one’s own decisions. The onus to prove incapacity is on the party disputing it, and the presumption is only rebuttable under certain conditions and with clear evidence. This acts as a safeguard to their right of self-determination. In this case, while it was established that M. cannot live independently and requires support from others, it was not established that he was unable to withdraw from charge in relation to decisions about residence. There also was no order declaring him incapable of making personal care or property decisions, nor was there a guardianship order in place. The Court quashed the interim parenting order, and found that M. should have been involved in the proceeding before the Superior Court. The Court further ordered that future parenting proceedings under the Divorce Act must add M. as a party.

The Appellant Mother had also brought a Charter challenging, arguing that section 2(1)(b) when it is applied to a parenting order under section 16.1 for adult persons living with a disability, infringes those persons’ rights under section 15 of the Charter. The Court determined that the Appellant Mother did not have standing, as it was not her rights being infringed, and that she would fail to meet the public interest standing test.

This case has broad implications for individuals living with disabilities who are dependant on other for care. It allows for them to be heard and ensure their interests are protected while their views are shared with the court.

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