By Rebecca Winninger, Senior Associate Lawyer,
Lam Family Law*

The Divorce Act, unlike Ontario’s Children’s Law Reform Act, allows courts to make parenting orders for “children of the marriage” who have reached the age of majority in some circumstances, pursuant to s. 16.1. A “child of the marriage” is defined in s. 2(1) to include a child who is the age of majority or over but who cannot withdraw from their parents’ charge “by reason of illness, disability or other cause”.

In J.F.R. v. K.L.L., 2024 ONCA 520 (CanLII), the mother of a 26-year-old man with Down Syndrome attempted to challenge the Divorce Act’s definition of a “child of the marriage” under the Charter of Rights and Freedoms. She argued that the definition infringed equality rights under s. 15 by allowing courts to make parenting orders for adults living with a disability. However, the mother had not raised the constitutional challenge in the hearing below, and the Court of Appeal for Ontario (“ONCA”) did not have an appropriate record to carry out the s. 15 analysis. The mother also lacked standing to raise the issue on behalf of her son, so the ONCA did not consider the Charter challenge: paras 13-17.

However, the mother raised other grounds of appeal, and the ONCA went on to set out important procedural safeguards in parenting cases involving adult children of the marriage, to protect their ability to be heard on important decisions affecting their lives.

The appeal concerned an order by a motion judge which imposed a shared parenting schedule on the parties’ son, M., who was 24 years old at the time of the order. M. was financially dependent on his parents and could not live independently, but there was no formal assessment of his capacity to make decisions about his residence. He was not named as a party or formally served with notice of the proceedings, and did not have the opportunity to make submissions on the motion: para 2.

The ONCA held that M., as an adult, had the right to be heard on a decision which would affect him, under the audi alteram partem principle. Dependence on others or incapacity in some or all areas of decision-making does not eliminate this right: paras 21-24.

In addition, there is a common-law presumption that adults have capacity to make decisions about their own lives, which safeguards the important right of self-determination. There is a low threshold to establish capacity, which is not an “all-or-nothing proposition”, since a person may be capable of making some decisions but not others: paras 26-29.

Procedural safeguards, including the requirement to serve a person who will be affected by a decision, protect the right to be heard and to retain independent counsel. The right to be heard and retain counsel protects, in turn, the important presumption of capacity and the right to make one’s own decisions. As the intervenor Community Living Ontario put it, “the right to make decisions about one’s own life is fundamental to autonomy and personhood”: paras 25-26.

Issues of capacity for dependent adults living with disabilities are commonly but not exclusively decided in guardianship proceedings under the Substitute Decisions Act, 1992, where there is also a presumption of capacity. There was no reason to treat capacity differently under the Divorce Act, given the common-law presumption: paras 3 & 31.

The ONCA therefore held that an adult child of the marriage is presumed capable of decision-making, and the presumption can only be rebutted on sufficient evidence. In addition, since capacity is context-specific, so should be the analysis of whether a child is unable to withdraw from parental charge in s. 2(1). The question should be assessed in relation to the particular order sought. A person may not be able to withdraw for purposes of financial support, but may be able to make decisions about which parent(s) they spend time with and when: paras 34-35.

The ONCA concluded that in the absence of a prior capacity determination relevant to the order sought, “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”: para 38 [underlining added].

In this case, M. was denied the opportunity to participate and the presumption of capacity to make his own residential decisions. While he could not live independently and required financial support, there was no evidence he could not withdraw from parental charge in relation to decisions about residence. The independent evidence that was before the motion judge did not bear directly on this question: paras 39-43.

Further, r. 7(5) of the Family Law Rules provides a mechanism for an adult child’s participation by allowing a party to be added and served notice of the proceeding. If, on the other hand, the court determined that M. was unable to withdraw from parental charge on the question of his residence, rr. 4(2) and 4(3) allow the court to order legal representation for a “special party”. These requirements apply even in the context of an interim order under the Divorce Act: paras 46-47.

The motion judge’s order could not stand. If the parties still wished to pursue a parenting order, they would have to add M. as a party and he would continue to be represented by counsel, as he was on the appeal: paras 40 & 48-49.

This case has broad implications for people living with a disability who may, as a result of the disability, be dependant on their parents or others for care. It provides procedural safeguards to ensure their interests are protected and their views made known to the court: para 24.

The right to notice is now fairly straightforward. On the other hand, the right to retain independent counsel, including how to fund counsel and ensure independence, will likely be more complex and will be an interesting area of law to follow.

*with thanks to Vanessa Lam for her suggestions and edits.