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Disability - Divorce Act. J.F.R. v. K.L.L.
In J.F.R. v. K.L.L. (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a s.16.1 ['Parenting order'] Divorce Court proceeding (here regarding "the parties’ adult son’s residence schedule with each of his parents"), but which was made without a Substitute Decision Act "capacity for personal care and property" determination for the Down's Syndrome adult child.
These quotes reflect and consider disability-related Divorce Act provisions:II. Relevant provisions under the Divorce Act
[5] The relevant portions of ss. 2(1) and 16.1 of the Act are as follows:2(1) In this Act,
child of the marriage means a child of two spouses or former spouses who, at the material time,
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(b) 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;
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16.1 (1) 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
(a) either or both spouses; or
(b) 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.
Interim order
(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection. [Emphasis added.] [6] The term, “child of the marriage”, in relation to an adult is, in my view, unfortunate. The nomenclature obscures the presumption of capacity that applies to adults but not young children: see A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181. As the intervenors, People First of Canada and Community Living Ontario, observed, the danger is that the court could make an order infringing on the autonomy of affected adults without any inquiry into their actual legal capacity. . J.F.R. v. K.L.L.
In J.F.R. v. K.L.L. (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a s.16.1 ['Parenting order'] Divorce Court proceeding (here regarding "the parties’ adult son’s residence schedule with each of his parents"), but which was made without a Substitute Decision Act "capacity for personal care and property" determination for the Down's Syndrome adult child:I. Overview
[1] This appeal concerns the autonomy of adults living with disabilities who remain under parental charge. Specifically, it raises the question: how should the court approach a request for a parenting order under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (the “Act”), for an adult who is presumed capable under the common law? In this case, an “interim” parenting order with final effect[1] was made under subsection (b) of the definition of “child of the marriage” in s. 2(1) (hereinafter referred to as “s. 2(1)(b)”) and s. 16.1 of the Act, which specified precise terms of the parties’ adult son’s residence schedule with each of his parents. The son did not participate in the hearing.
[2] The parties’ son (“M.”), is a 26-year-old adult living with Down Syndrome. M. cannot live independently and has always lived with his parents. He is financially dependent on them. However, there is no formal assessment of his capacity to make decisions about his residence. There is no guardianship or litigation guardian order in place. M. was not named as a party or formally served with notice of these proceedings, and he did not have the opportunity to make submissions to the court before the parenting order was made. That order directed when he must reside with each of his parents in accordance with a shared parenting schedule established when he was a minor.
[3] There is no question that M. has grown up with the tremendous love and assistance of his parents and other family members. He has meaningful relationships with both parents and extended families on both sides. In the normal course, M.’s capacity for personal care and property would have been determined under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). The SDA provides express procedural safeguards to preserve the presumption of capacity, including the requirement for service and appointment of counsel for M. pursuant to s. 3.
[4] The parties proceeded, however, under the Act. At issue is M.’s entitlement, absent a specific finding of incapacity to make such decisions, to participate in proceedings about where, when, and with whom he resides. As M. was not afforded the opportunity to participate and as, even in the context of a temporary order, the outcome affects his fundamental rights, I would allow the appeal and set aside the motion judge’s temporary order with respect to his residence.
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[7] There is nothing in the Act that purports to change the common law presumption that adults are capable or that displaces the onus on the person alleging incapacity to prove it. Moreover, as I explain later in these reasons, the question of capacity to make decisions is highly nuanced – as described in the Law Commission of Ontario, Legal Capacity, Decision-Making and Guardianship: Final Report (Toronto: March 2017), at p. 15, a person can be incapable of making certain decisions and capable of making others:Determinations of legal capacity are domain or decision-specific, recognizing that a person can have the ability to make some decisions and not others. There are specific tests of capacity for different types of decisions. [8] As eloquently framed by People First of Canada, adults with disabilities must be afforded the dignity of choice.
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[25] Procedural safeguards of the right to be heard include the requirement of service of proceedings on all persons – including persons living with disabilities – whose interests may be affected by the proceedings. Service of proceedings allows for the exercise of the important right to retain independent counsel.
[26] The right to be heard and the right to retain independent counsel protect the important presumption of capacity and the right to make one’s own decisions. As Community Living Ontario put it, the right to make decisions about one’s own life is fundamental to autonomy and personhood. People First of Canada and Community Living Ontario caution against historical and harmful stereotypes that presume adults living with disabilities are incapable of decision making. Such stereotypes are at odds with the common law presumption that adults have capacity. The onus to prove incapacity rests with the party disputing it: Royal Bank of Canada v. FTVRB2 Inc., 2016 ONCA 73, at para. 18.
[27] The presumption of capacity is only rebuttable under precise conditions and with clear evidence: Ohenhen (Re), 2018 ONCA 65, 140 O.R. (3d) 616, at para. 82; Royal Bank, at para. 18. Those requirements are necessary to protect the autonomy of the person whose capacity is in issue. As Major J. acknowledged in Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 S.C.R. 722, at para. 75, “Unwarranted findings of incapacity severely infringe upon a person’s right to self-determination.”
[28] Further, the question of capacity is nuanced. There are varying levels of capacity – a person can be capable of making a basic decision and not capable of making a complex decision or capable of making decisions about personal matters such as where or with whom to live and not decisions regarding financial matters: Calvert (Litigation Guardian of) v. Calvert (1997), 1997 CanLII 12096 (ON SC), 32 O.R. (3d) 281 (Gen. Div.), at pp. 293-94, aff’d 1998 CanLII 3001 (ON CA), [1998] 37 O.R. (3d) 221 (C.A.), leave to appeal refused, [1998] S.C.C.A. 161; Ohenhen (Re), at paras. 79-80; and Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at para. 86, leave to appeal refused [2020] S.C.C.A. No. 409. In other words, the fact that a person is incapable of making decisions regarding property does not mean that they are incapable of making decisions regarding personal care. Further, a person may be capable of making decisions regarding some aspects of property and personal care, for example, one’s residence, but not others. In sum, capacity is on a spectrum and is not “an all-or-nothing proposition”: Ohenhen (Re), at para. 79.
[29] The onus on the party alleging incapacity and the high burden of proof required to displace the presumption of capacity serve to safeguard the important right of self-determination. So too does the low threshold set by the courts for the determination of capacity. As Benotto J. (as she then was) stated in Calvert, a case under the Act involving the capacity of a spouse living with Alzheimer’s disease to separate and divorce, at p. 294: “The courts are slow to take away a person’s right to decide. This is reflected in the low threshold the courts have set for the determination of capacity.” This is because “[a] person’s right of self-determination is an important philosophical and legal principle”: Calvert, at p. 293. Jamal J.A. (as he then was), relying on Calvert and Ohenhen (Re), further explained in Carmichael, at para. 85: “Capacity is linked to personal autonomy and a person’s self-determination and ability to make important life choices.”
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(2) Interpreting the Parenting Order Provisions of the Divorce Act
[30] Against the backdrop of the right to be heard and legal presumption of capacity, I turn to interpret ss. 2(1)(b) and 16(1) of the Act. Legislation that imposes limitations on an adult person’s decision-making rights must be interpreted in a way that minimizes intrusiveness: Nova Scotia (Minister of Health) v. J.J., 2005 SCC 12, [2005] 1 S.C.R. 177, at para. 23. The determination that an adult person is a “child of a marriage” may diminish that person’s right to function autonomously, including, as here, deciding where, when, and with whom they will live.
[31] Issues of capacity for dependent adults living with disabilities are commonly but not exclusively decided in proceedings brought for guardianship orders under the SDA. However, given the equally serious consequences to an adult’s autonomy that may flow from orders made under the Act, there is no reason to treat issues of capacity that arise under the Act any differently than they are treated in other proceedings. In consequence, s. 2(1)(b) of the Act must be interpreted and applied in the context of the common law presumption of capacity and the high burden of proof required to displace it.
[32] Once a child has reached the age of majority, he or she is no longer presumptively a child of the marriage: Crawford v. Crawford (1999), 45 N.B.R. (2d) 196 (C.A.), at para. 7. The onus of proof that a child is a “child of a marriage” rests upon the person who alleges that the child is unable to withdraw from parental charge or to obtain the necessaries of life: Whitton v. Whitton (1989), 1989 CanLII 8868 (ON CA), 21 R.F.L. (3d) 261 (Ont. C.A.), at p. 263; Ethier v. Skrudland, 2011 SKCA 17, 366 Sask. R. 203, at para. 29.
[33] In Ethier, at para. 29, the Saskatchewan Court of Appeal explained the nature of the onus and evidence required to demonstrate that an adult remains a “child of the marriage” under s. 2(1)(b) of the Act for the purpose of child support payments, as follows:Proof that an adult child remains a “child of the marriage” will, in most circumstances, require the recipient of child support payments to adduce evidence as to the specific nature and consequences of the illness, disability or the other cause of the adult child’s failure to withdraw from parental charge or to obtain the necessaries of life and how the nature and consequences of such illness, disability or other cause bear upon the adult child’s ability (or inability) to withdraw from parental charge or to obtain the necessaries of life. It is not enough to simply state that an adult child has not withdrawn (or cannot withdraw) from parental charge or is unable to obtain the necessaries of life or that a parent pays the adult child’s expenses. [Emphasis in original.] [34] Further, as the British Columbia Court of Appeal noted in Ross v. Ross, 2004 BCCA 131, 195 B.C.A.C. 202, at para. 22, a case concerning an access claim made in relation to an adult living with physical and cognitive disabilities under the Act, the analysis begins from the presumption that an adult child of the marriage is presumed capable of decision making and that the presumption of capacity can only be rebutted on sufficient evidence. In that case, there was a “vocational and neurological assessment” about which the court said, at para. 4, “While the results of that assessment suggest [that the adult child] is limited in his abilities, they do not suggest he is incapable of making his own decisions with respect to whether or not he sees his father.”
[35] The concepts of decision-making capacity and withdrawal from parental charge are closely connected. Since capacity is context-specific, the phrase “withdrawal from parental charge” in s. 2(1)(b) of the Act should be too. The British Columbia Court of Appeal’s decision in Ross illustrates this perfectly. An individual with “limited abilities” may still be able to decide whom they want to see and when. That is, “withdrawal from parental charge” should be assessed in relation to the particular order sought. A person may not be able to withdraw from parental charge for the purposes of financial support or medical decisions but may well be able to make decisions about which parent(s) they spend time with and when. For example, in Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, [2002] 1 S.C.R. 205, at para. 34, in the context of the definition of “child” under s. 87 of the Family Relations Act, R.S.B.C. 1996, c. 128 (effectively the same definition as “child of the marriage” under s. 2(1)(b) of the Act), McLachlin C.J. concluded that residing independently from one’s parents (though not otherwise independently) can still constitute withdrawing from their charge.
[36] There is a distinction between whether a person meets the definition of a “child of a marriage” and the consequences that flow from it: Harrington v. Harrington (1981), 1981 CanLII 1762 (ON CA), 33 O.R. (2d) 150 (C.A.). Moreover, the definition under s. 2(1)(b) is disjunctive: an adult child may be unable to withdraw from parental charge but can obtain the necessaries of life elsewhere than from the child’s parents: Briard v. Briard, 2010 BCCA 431, 297 B.C.A.C. 5, at para. 8, leave to appeal refused, [2010] S.C.C.A. No. 435. Evidence of a psychiatric diagnosis and eligibility for disability benefits are not enough to meet the definition of “child of the marriage” under s. 2(1)(b) of the Act: Crawford, at para. 7; Giorno v. Giorno (1992), 1992 CanLII 2592 (NS CA), 110 N.S.R. (2d) 87 (C.A.); and Hartshorne v. Hartshorne, 2010 BCCA 327, 320 D.L.R. (4th) 398, at para. 71. Nor is an adult child’s current residence necessarily determinative of the issue of whether an adult child is under parental charge: Duncan v. Duncan, 1989 CanLII 4502 (SK KB), [1989] 74 Sask. R. 100 (Q.B.), at para. 13. An adult child may be a child of a marriage but not require full financial support from his parents; or he may not live with his parents but be unable to withdraw from their charge: Lougheed v. Lougheed, 2007 BCCA 396, 245 B.C.A.C. 116, at para. 25; H.M.R. v. D.G.R., 2010 BCSC 647, 86 RFL (6th) 86; see also Fatima v. Agha, 2024 ONSC 1441, at para. 25.
[37] The preceding examples delineate the important distinctions between withdrawing from parental charge for one purpose versus another.
[38] Consequently, in the absence of a prior capacity determination relevant to the order sought under the 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.
(3) Principles Applied
[39] Here, the principle of audi alteram partem and the presumption of capacity were not applied in interpreting ss. 2(1)(b) and 16(1) of the Act. M. was denied the opportunity to participate and the presumption of capacity to make his own decisions about residence. While it is established that M. cannot live independently and requires financial and other support, it was not established that he was unable to withdraw from parental charge in relation to decisions about residence. There was also no order declaring him incapable of making personal care or property decisions, nor was there a guardianship order in place under the SDA.
[40] Absent such evidence, the parenting order regarding M.’s residence cannot stand.
[41] The onus to rebut the presumption of M.’s capacity and establish that he had not withdrawn from parental charge in relation to residential decisions rested on the party seeking to obtain the order. The kind of assessment evidence tendered and considered by the court would have sufficed to meet the burden of proof had it addressed the particular aspect of M.’s decision-making capacity in issue. However, this evidence did not suffice to rebut the presumption of M.’s capacity with respect to the particular order sought, namely, M.’s capacity to decide his residence. The evidence that M. was not able to live by himself or support himself financially, the 2022 evaluations by Developmental Services Ontario, the 2019 psychoeducational assessment by a psychologist, and the 2018 speech-language assessment report, did not speak specifically to his capacity to decide his residence. Aside from the fact that the 2019 psychoeducational assessment evidence was presumptively inadmissible opinion evidence unless qualified as expert evidence, it was prepared for different purposes, such as funding, and not for the purpose of assessing whether M. could make decisions about his residence.
[42] It is very clear that M. has a loving and caring family that is deeply devoted to him and steadfastly provides financial and other support to him. As articulated by the clinical psychologist who provided fresh evidence of M.’s views and preferences on appeal, M. spoke warmly of all members of his family, including his extended family. However, as I have already discussed, M.’s dependence on financial and other support to meet his personal care and financial needs is not dispositive of the question of the right to be heard on the important issue of whether he should be subject to a court order about where, when and with whom he lives. The question of whether he should be bound by a parenting order is a threshold question. As Corbett J. stated in Perino v. Perino, 2012 ONSC 328, at para. 177, aff’d 2012 ONCA 899, a similar case respecting a parenting order for an adult child living with cognitive disability: “It is a serious derogation of a person’s autonomy for the court to order [him] to live in a particular place, with and subject to the authority of, particular people.”
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[44] Based on the evidence from his parents and recent assessments by Developmental Services Ontario, which concluded that M. required “constant supervision and support to protect his health and safety at all times”, the motion judge concluded that he could not withdraw from his parents’ charge due to his disability. However, this is not an all or nothing proposition. Even if M. is incapable of living independently, he may still be able to withdraw from parental charge to the extent of being capable of making his own choices regarding his residence from the various options that may be available to him.
[45] 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. Further, it would be for M.’s counsel to raise the question of the constitutionality of ss. 2(1)(b) and 16.1 of the Act, if appropriate.
[46] In the context of proceedings under the Act, r. 7(5) of the Family Law Rules provides a clear mechanism for M’s participation: “The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.” If, on the other hand, a determination is made that M. remains unable to withdraw from parental charge on the question of residence, rr. 4(2) and 4(3) of the Family Law Rules permit a “special party” to be represented by an appropriate and willing representative. Where no such person is available, the party may be represented by the Public Guardian and Trustee, with its consent.
[47] In my view, those requirements apply even in the context of a temporary or interim order under the Act, given the importance of the fundamental rights engaged. To make an order removing a presumably capable adult’s freedom to live with whomever he wants, whenever he wants, is to reverse the presumption of capacity, as well as the onus on the person who must establish that an individual remains a “child of the marriage” under parental charge as defined by the Act.
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