On September 18, 2024, I presented at the OBA Health Law Section – Case Law Update, a quarterly session aimed at summarizing recent important cases in the health law area. I presented the 2024 Ontario Court of Appeal (“ONCA”) decision, JFR v KLL, 2024 ONCA 520. While this is a family law case on its face, it has a huge bearing on health and disability law, as it fundamentally concerns the rights and autonomy of adult people living with disabilities.
The case addresses the way in which a court should approach a request for a parenting order concerning an adult living with disabilities who is unable to fully care for and financially support themselves, but is otherwise presumed and considered capable. Specifically, the ONCA addressed the role that the adult living with disabilities should play in such a proceeding.
Ultimately, the ONCA concluded that that in the absence of evidence supporting that the adult living with disabilities is incapable of making decisions regarding residence, they are entitled to participate in the motion, make submissions, and be represented by counsel. Importantly, the ONCA stated that an adult living with disabilities must be afforded the dignity of choice in these circumstances.
Facts
The two parties were separated parents who had a shared parenting agreement for their child, “M,” an adult living with a Down Syndrome. “M” is unable to live independently and has always lived with each parent pursuant to a 50/50 parenting schedule. He is financially dependent on them.
During COVID-19, the parties agreed that “M” would temporarily live with his mother to minimize exposure to the virus. In 2022, his father sought to restore the 50/50 parenting schedule that existed pre-COVID, when “M” was a minor. In her decision, the motion judge concluded that “M” met the definition for a “child of the marriage,” as defined in the Divorce Act, and granted a temporary order restoring the 50/50 parenting schedule. The motion judge relied on a recent assessment that “M” required constant supervision and support to protect his health and safety. The assessment did not speak to M’s capacity to make decisions about his place of residence.
“M" was not named as a party and did not have an opportunity to make submissions prior to the order. As a result, his mother 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 affected his interests, namely the specifics of where, when, and with whom he would reside.
Relevant Legislation
The ONCA referred to sections 2(1) and 16.1 of the Divorce Act, with the relevant portions stating:
2(1)(b) child of the marriage means a child of two spouses or former spouses, who, at the material time,
- is under the age of majority and who has not withdrawn from their charge, or
- is the age of majority or over and under their charge but unable, by reason of illness, disability or other case, to withdraw from their charge or to obtain the necessaries of life.
16.1(1) Parenting order
A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by
- either or both spouses; or
- a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.
Analysis
The ONCA granted the mother’s appeal and set aside the motion judge’s temporary order.
Principles of Natural Justice
The ONCA began its analysis by reviewing principles of natural justice that apply to all adults:
- The right to be heard and the presumption of capacity for an adult person;
- Audi alteram partem: courts are to provide an opportunity to the persons who are affected by a court’s decision to be heard.
The principle of audi alteram partem is of primary importance in cases involving adults living with disabilities who may be dependent on others to protect their interests. Specifically, dependence on others or incapacity in some areas of decision making does not eliminate a person’s right to be heard. The fact that a person is incapable of making decisions regarding property does not make them incapable of making decisions regarding care – determining capacity is a very case specific, and context specific exercise, and broad generalizations should never be made.
The party alleging incapacity will always have the onus of displacing the presumption of capacity. This party will have a high threshold to meet given every person’s right to self-determination.
Interpreting the Parenting Order Provisions of the Divorce Act
In interpreting sections 2(1)(b) and 16(1) of the Divorce Act, the ONCA addressed M’s entitlement to participate in the proceeding.
Relying on a 1989 ONCA decision, Whitton v Whitton, [1989] OJ No 1002, the ONCA held that once a child reaches the age of majority, they are no longer presumptively a child of marriage and the onus of proof that they are a “child of marriage” rests upon the person who alleges the child is unable to withdraw from parental charge, or to obtain the necessaries of life. The proof required to demonstrate that an adult remains a child of marriage includes:
- Nature of the disability or cause of the adult child’s failure to withdraw from parental charge or to obtain the necessaries of life;
- How the nature and consequences of the disabilities bear upon the child’s ability (or inability) to withdraw from parental charge or to obtain the necessaries of life.
Referencing a 2004 British Columbia Court of Appeal decision, Ross v Ross, the Court of Appeal held that the analysis begins from the presumption that an adult child of the marriage is capable of decision making and that the presumption of capacity can only be rebutted on sufficient evidence. In Ross, a neurological assessment was produced which demonstrated the adult’s limited abilities, but the court found that the assessment did not conclude he was incapable of making his own decision with respect to whether or not he sees his father.
Application of Principles
The ONCA concluded that the principle of audi alteram partem and the presumption of capacity were not applied in this case, and “M” was unjustly denied the opportunity to participate in a decision about his residence. While “M” could not live independently, it was not established that “M” was unable to withdraw from parental charge in relation to decisions about residence from the various options available to him.
Absent evidence of an order declaring “M” incapable of making personal care or property decisions about residence, or a guardianship order pursuant to the Substitute Decisions Act, the parenting order regarding his residence could not stand.
There is nothing in the Divorce Act or common law that displaces the presumption that adults are capable, or displaces the onus on the person alleging incapacity to prove same. “M” was presumed to be an adult capable of choosing his own residence. He had the right to representation and to make submissions for the purpose of determining where, when and with whom he lives, even as he remained a “child of the marriage.” In the absence of prior capacity determinations specifically relevant to the parenting order at appeal, “M” should have been served with notice of the proceeding and should have been afforded the right to participate in the proceeding.
The onus would have been on the party disputing capacity (his father) to prove incapacity, and no such evidence was produced. The appeal was granted and the motion judge’s decision was set aside.
Takeaway
Adult people living with disabilities are presumptively entitled to take part in decisions abouts their care and residence, even if they are considered a “child of the marriage” pursuant to the Divorce Act. Adult people living with disabilities, like all adults, are presumed to have capacity and agency.
An adult person’s inability to live by themselves or financially support themselves has no bearing on capacity, as capacity determinations should always be considered a context-specific exercise.
Importantly, the case is a caution against stereotypes that adult persons with disabilities are incapable of decision making. As pointed out by Community Living Ontario, intervenors in this action, such a presumption directly contradicts the common law presumption that all adults have capacity.
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