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.