Can a court make a parenting order under the Divorce Act for an adult child living with a disability without giving them an opportunity to participate in the proceeding? The Ontario Court of Appeal considered this question while addressing the presumption of capacity and an individual’s right to be involved and heard when the decision will have an impact on them. One recent case ensured the rights of individuals with a disability are safeguarded while emphasizing that there is a high bar to overturn the presumption of capacity.

Court Makes Parenting Order Over Adult Child

In J.F.R. v. K.L.L., the parties’ son was a 26-year-old living with Down Syndrome. He could not live independently and was financially dependent on his parents. However, there was no formal assessment of his capacity to make his own decisions about his residence. When the parties separated, they agreed their son, who at the time was still a minor, would reside with each parent according to a parenting schedule. But during the COVID-19 pandemic the parties agreed he would temporarily reside only with his mother. The father (the respondent) later sought to return to that schedule.

Section 2(1)(b) of the Divorce Act states that “child of the marriage” means a child of two spouses or former spouses who, at the material time, “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”. Additionally, section 16.1(1) enables courts to “make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage”. The motion judge determined that the son met the definition of a “child of the marriage” under section 2(1)(b) and made a temporary parenting order directing when he must reside with each parent. The son was not named as a party to the proceedings and did not have an opportunity to make submissions to the court.

The mother (the appellant) challenged the order alleging the son’s rights were breached because he did not have an opportunity to be heard when the decision seriously affected his interests.

A Disability Does Not Rebut the Presumption of Capacity

The court first looked at the audi alteram partem principle. The court cited A. (L.L.) v. B. (A.), which described it as a rule of natural justice that “requires that courts provide an opportunity to be heard to those who will be affected by the decisions”. For the court, that principle is of central importance in cases involving persons living with a disability as they may rely on others to “ensure their interests are protected and their views are made known to the court”.

However, the court also emphasized that dependence on others does not eliminate the right to be heard. Importantly, there are procedural safeguards that ensure the right to be heard is maintained, such as service of proceedings on all the persons whose interests might be affected by the proceedings. This includes individuals with disabilities and enables individuals to retain independent counsel.

The right to be heard and the right to retain independent counsel are linked to the issue of capacity. The court noted that both protect the presumption of capacity and the ability of a person to make their own decisions. And these rights are fundamental to a person’s autonomy. The court heard that stereotypes that presume that adults with disabilities are incapable of decision-making cause harm and are not consistent with the common law presumption that adults have capacity. Prior cases accepted that the onus to prove incapacity falls on the party disputing it. Additionally, clear evidence is needed to rebut the presumption of capacity. In Starson v. Swayze, the Supreme Court of Canada stated that “unwarranted findings of incapacity severely infringe upon a person’s right to self-determination”.

Capacity is Context-Specific

Based on the legal framework surrounding the presumption of capacity, the court then looked at the provisions of the Divorce Act, noting that issues of decision-making capacity and an adult child’s ability to withdraw from parental charge are connected.

First, the court acknowledged that determining that an adult is a “child of the marriage” can limit that person’s autonomy, such as deciding where and with whom they will live. When a child reaches the age of majority, they are no longer presumptively a child of the marriage. An allegation that an adult child remains a “child of the marriage” requires proof that the adult is unable to withdraw from parental charge or obtain the necessities of life. In Ethier v. Skrudland, the Saskatchewan Court of Appeal was clear that the party making the allegation must specifically demonstrate how the adult child’s disability or illness impacts the adult child’s inability to withdraw from parental charge.

With the court finding that capacity is context-specific, the justices determined that the phrase “withdrawal from parental charge” in s. 2(1)(b) of the Divorce Act should be too. This meant that the phrase had to be assessed in relation to the specific order being sought. As the court illustrated, an individual might not be able to withdraw from parental charge for the purposes of financial support, but they could still be able to make decisions about which parents they want to spend time with. Overall, the court found that “in the absence of a prior capacity determination relevant to the order sought under the Divorce Act, an adult who is presumed to be capable and who is potentially affected by the order in question should be served with notice of the proceeding and afforded the opportunity to obtain separate legal representation and to participate fully, including in the adjudication of any capacity issue”.

Individuals With Disabilities Should Be Involved in Proceedings

The principles of audi alteram partem and the presumption of capacity were not applied by the motion judge in the previous decision interpreting sections 2(1)(b) and 16(1) of the Divorce Act. It was shown that the parties’ son could not live independently and required financial support. However, it was not established that he was unable to withdraw from parental charge concerning decisions about his residence. There was also no order declaring that he was incapable of making personal care or property decisions, nor was there a guardianship order in place under the Substitute Decisions Act.

Consequently, the parenting order dealing with the son’s residence could not remain in effect. The evidence that the court heard did not rebut the presumption of the son’s capacity in light of the fact that the order sought was to decide the son’s residence. The evidence did not speak to his capacity to decide the place of his residence.

Ultimately, the issue of whether the son should be bound by a parenting order was a threshold question. A psychologist’s report that was tendered as evidence indicated that the son was content to live with his parents for the time being. And as the court pointed out, until there is any determination to the contrary, he is presumed capable of making that decision. It did not mean that he agreed to an order compelling him to live with each of his parents at particular times. Even if he was incapable of living independently, he could still be able to withdraw from parental charge and make his own choice regarding his residence. Consequently, as an adult presumed capable of choosing his residence, he had the right to representation and to make submissions on the issue of whether he remained “a child of the marriage”. The son was denied the opportunity to exercise his rights and the motion judge’s order was set aside.

Contact NULaw in Toronto for Trusted Advice on Complex Parenting Matters

When you’re facing the challenges of separation or divorce, having a trusted legal partner by your side can make all the difference. At NULaw, we understand the unique needs of families in Toronto. With decades of experience, we’ve helped countless clients navigate complex family law issues, including decision-making responsibility and parenting time. Our approach is personalized and client-centred, ensuring your specific concerns are addressed with sensitivity and expertise. Contact us online or call (416) 481-5604 to learn more about how we can assist you.