Section 16.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) allows courts to make orders for parenting time and decision-making responsibility in regard to “children of the marriage.” The definition of “children of the marriage” under the Divorce Act is not limited to children under 18, but instead includes adults who are “unable, by reason of illness, disability or other cause, to withdraw from their [parent’s] charge or to obtain the necessities of life.”[1]
In Ontario; however, the law assumes all adults can make their own decisions unless there’s clear evidence to suggest otherwise.[2] This raises an important question: how can an adult presumed capable of managing their own life still be subject to an order for parenting time or decision?
The Court of Appeal grappled with this question in their recent decision of JFR v KLL,[3] where they were asked to decide on a parenting schedule for a 26-year-old adult living with Down Syndrome. Ultimately, the Court concluded that if the parents wanted to seek a parenting order, then their child would have to be added as a party to the motion and be represented by counsel.
Facts
The parties in this case were two former spouses who shared a 26-year-old son (“M”) who lives with Down Syndrome. M is unable to live independently and is financially dependent on his parents; however, at the time of the appeal, a formal capacity assessment had never been completed and there were no legal guardianship orders in place.
Since he was a minor, M resided with each parent pursuant to a 50/50 parenting schedule. During the COVID-19 pandemic, he moved into his mother’s residence full-time to reduce his exposure to the virus. After the pandemic, his father moved to restore the prior 50/50 parenting schedule.
Justice Roberts highlighted some key issues: M was not named a party to these proceedings, was not formally served with notice of these proceedings, nor given the opportunity to make submissions before the parenting order was made.[4]
Motion Decision
The motion judge determined that she had jurisdiction to make a parenting order under section 16.1 of the Divorce Act for M. She relied on recent assessments from Developmental Services Ontario, which found that M couldn’t be left alone and needed constant supervision to ensure his health and safety. Based on these findings, she determined that M qualified as a “child of the marriage” because his mental disability made him unable to live independently.
Upon finding that M was a “child of the marriage,” the motion judge made a temporary parenting order. She also ordered that the parties involve a social worker or psychologist to gather M’s views and preferences within six months of the temporary parenting order.[5]
Court of Appeal
M’s mother, the appellant in these proceedings, appealed the motion decision on the basis that it breached the principles of natural justice, as M did not have an opportunity to be heard on a decision that seriously impacted his interests. The order requiring that M’s preferences be elicited through a social worker or psychologist before the final order was not an adequate substitution for his participation.
Principles of Audi Alteram Partem and the Presumption of Capacity
The principle of Audi alteram partem – “hear the other side” – is a key component of natural justice. This principle requires that the courts must give anyone who is impacted by a decision with the chance to be heard. Ignoring this principle results in a breach of natural justice.[6] A finding of incapacity does not eliminate the right to be heard; instead, it is a central element of protecting the presumption of capacity.[7]
In reviewing the case law surrounding capacity, Justice Roberts emphasized that capacity is presumed unless there is clear evidence to the contrary, and the onus rests on the person alleging incapacity. Moreover, there are varying levels of capacity, and a person may be found incapable of making decisions related to property or finances, but remain capable of making decisions about their personal care.[8]
When laws, including the Divorce Act, limit an adult’s decision-making rights, they must be interpreted to interfere as little as possible with the adult’s independence. For adults under the Divorce Act, parenting orders must respect the presumption of capacity and meet the high standard required to override it.
Once a child reaches the age of majority, they are no longer presumed to be a “child of the marriage.” To argue otherwise, it must be proven that the adult child cannot live independently or meet their basic needs.[9] However, a person might need support in some areas of life while being independent in others.
Justice Roberts concluded that:
“[I]n 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.”[10]
Application of Principles
Here, M’s father failed to establish that M was unable to withdraw from parental charge in regard to the decision about his place of residence. Assessments showed that he was unable to live by himself or financially support himself; however, they did not show that he was incapable of making decisions about where he lived. Moreover, there was no order that declared M incapable of making decisions about his personal care or property or a guardianship order under the Substitute Decisions Act, 1992, S.O. 1992, c. 30. The Court held that:
“As an adult who is presumed capable of choosing his residence until proven otherwise, M. has the right to representation and to make submissions on the threshold question of whether, for the purpose of determining where, when and with whom he lives, he remains “a child of the marriage”, as that term is defined under s. 2(1)(b) of the Act. The onus is on the party disputing M.’s capacity to make these decisions about his residence to prove that he lacks the capacity to do so.”[11]
As a result, the Court allowed the appeal and ordered that M either be added as a party or, if he is found to be unable to withdraw from parental charge with regard to his residence, to have a representative appointed to act on his behalf.
Constitutional Challenge
In the appeal, the appellant made a constitutional challenge to ss. 2(1)(b) of the Divorce Act, alleging that, when applied to parenting orders under s. 16.1 for adults with disabilities, it infringes on their equality rights under s. 15 of the Charter of Rights and Freedoms. The Court refused to address this argument, as the appellant did not raise the issue before the motion judge and lacked standing to bring the constitutional challenge. However, Justice Roberts noted that M’s counsel could raise the constitutional issue in future proceedings.[12]
Application to Provincial Legislation
As set out above, the federal Divorce Act contains an expanded definition of “child” which can include adults with disabilities, thereby allowing parenting orders to be made for them. However, the Divorce Act has a narrow application and only applies to married couples who are divorcing. In Ontario, other parents must rely on provincial legislation, such as the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) and the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
The FLA includes provisions related to family property, the matrimonial home, domestic contracts, and support obligations. Under subsection 31(1)(c) of the FLA, parents must financially support an unmarried child who, due to illness or disability, can’t live independently. This means that parents may have to pay child support for adult children who are still dependent on them.
In contrast, the CLRA includes provisions related to parentage, parenting time, decision-making responsibility, contact orders, and guardianship. Section 18(3) of the CLRA does not include an expanded definition of child like the Divorce Act. As such, this limits the likelihood of issues related to the capacity of adults being addressed under this law.
Conclusions
The Court allowed the appeal and set aside the motion judge’s temporary order with respect to M’s residence. If M’s parents wish to pursue the parenting order, M must be added as a party and represented by counsel, so that he has a chance to be heard in the proceedings.
This decision recognizes the autonomy, rights, and dignity of adults living with disabilities who may be subject to parenting orders under the Divorce Act and implements procedural safeguards to ensure that their interests and rights are protected and heard by the courts.
If you would like more information regarding family law and parenting orders please contact Family Lawyer, Toni Pascale, of Devry Smith Frank LLP at (416) 446-5087 or at toni.pascale@devrylaw.ca.
This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.
This blog was co-authored by Articling Student, Leslie Haddock.
[1] Divorce Act, RSC 1985, c 3 (2nd Supp), s 2(1).
[2] Substitute Decisions Act, 1992, SO 1992, c 30, s 2.
[3] 2024 ONCA 520 [JFR].
[5] Ibid at paras 11-12.
[6] Ibid at para 22, citing A (LL) v B (A), 1995 CanLII 52 (SCC) at para 27.
[8] Ibid, see discussion at paras 22-29.
[9] Ibid at para 32, citing Whitton v Whitton, 1989 CanLII 8868 (ON CA), p 263.
[12] Ibid.
