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Family - Parenting - Adult Dependant Child. D.F. v. R.W.F. [adult dependent child]
In D.F. v. R.W.F. (Ont CA, 2025) the Ontario Court of Appeal allowed in part a family law appeal, here from "a final order denying the appellant (the “father”) unsupervised parenting time with his adult child who lives with Down Syndrome and is unable to withdraw from parental charge" [under Divorce Act, s.16.1 'Parenting order'].
In this context, the court focusses on the child being adult (and the recent JFR case):[2] The order is made pursuant to s. 16.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (the “Act”), which permits the court to “make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage”. The Act defines “child of the marriage” in s. 2(1) to include someone who at the material time, “is the age of majority or over and under [the spouses’] charge but unable, by reason of illness, disability, or other cause, to withdraw from their charge or to obtain the necessaries of life” (emphasis added).
[3] The appeal raises an issue specific to adult children subject to parenting orders: unlike minor children who are only subject to court-imposed orders until they reach the age of majority, absent a material change in circumstances, an adult child of the marriage by reason of disability remains subject to a final parenting order indefinitely. In this case, the concern is amplified by the complete break-down in the relationship between the parents and a final order that gives the mother sole discretion to permit any supervised parenting time with the father.
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[6] I pause here to note that the parties agreed that it was appropriate for the court to make a parenting order for A. under s. 16.1 of the Act since they agreed that A. met the definition of “child of the marriage” as defined above. However, as I will explain, their agreement on this point was insufficient for the court to presume incapacity for the purpose of imposing parenting orders. As this court held recently in J.F.R. v. K.L.L., 2024 ONCA 520, at para. 34, an adult child of the marriage is presumed capable of decision making and the presumption of capacity can only be rebutted on sufficient evidence. That said, the fresh evidence on appeal confirms that it was appropriate for the trial court to make a parenting order under s. 16.1 in A.’s case.
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[14] The father’s first submission is supported by this court’s decision in J.F.R., which was decided after the trial in this case. In J.F.R., Roberts J.A., speaking for a unanimous court, held at para. 34 that an adult child of the marriage is presumed capable of decision-making and the presumption of capacity can only be rebutted on sufficient evidence. Since capacity is context-specific, the phrase “withdrawal from parental charge” in s. 2(1)(b) of the Act should be too. The trial judge in this case did not have the benefit of this court’s decision in J.F.R. at the time of trial. However, once the matter arrived at this court, the case was case-managed and fresh evidence was obtained in an attempt to address whether A.’s views and preferences on parenting arrangements could be ascertained and to respect the presumption of capacity established in J.F.R.
[15] In my view, the fresh evidence on appeal is sufficient to dispose of the father’s concern. I would not allow the appeal on this basis.
[16] I do, however, accept part of the father’s second submission. He argues that the trial judge erred by prohibiting unsupervised contact with A. and leaving supervised contact only at the sole discretion of the mother with no built-in review mechanism; the father points out that A. will never “age out” of the order and the order will last for the rest of A.’s life.
[17] Trial judges’ decisions on parenting orders are entitled to significant deference on appeal and this court should not micromanage specific terms imposed by a parenting order. In my view the trial judge erred in not building some form of review mechanism into the order because it might effectively and permanently end the father’s in-person relationship with A. Given the fractious relationship between the mother and father, an order that gives the mother sole discretion over supervised access for the father risks permanently severing the relationship between A. and his father.
[18] I am satisfied that appellate intervention is required to honour the maximum contact principle and leave room for the father to put his conflict with his spouse to the side and prioritize his relationship with A. Accordingly, I would remit the matter to the trial judge to craft an order that alters the parenting time to allow the father, to seek an order permitting him to exercise unsupervised parenting time after a review. This review is to be scheduled to take place within 12 months of this court’s decision without the requirement that the father demonstrate a material change of circumstances. I would leave it to the trial judge to structure any subsequent reviews of the order at her discretion.
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[36] In her reasons for decision, the trial judge correctly sets out several provisions of the Act that appropriately guide her analysis. Two factors crucial to her determinations of A.’s best interests are: the nature and strength of A.’s relationship with each of his parents and his siblings (s. 16(3)(b)), and each parent’s willingness to support the development and maintenance of A.’s relationship with the other parent (s. 16(3)(c)).
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[58] Given my decision to resolve this appeal on very narrow grounds, it is not necessary to exhaustively deal with amicus’ submissions to the court regarding the procedure to be followed in parenting disputes involving adult children who are unable to withdraw from parental care. However, it is important to remind litigants and trial judges that this court in J.F.R. has outlined the approach that must be followed in determining whether an adult child is a “child of the marriage” pursuant to s. 2(1)(b) of the Act for the purpose of making parenting orders for the child. Three points underpin that approach.
[59] First, such orders should never be made without input from, participation of, or independent legal representation for the adult child. In this case, the trial judge did not have the benefit of J.F.R. and the parties appeared to have simply agreed that A. was a “child of the marriage” without his input. J.F.R. highlights that parties cannot agree to apply the definition of a “child of the marriage” to their adult child without input from the adult child and court oversight. If parties come to such an agreement, the court must take on a “gatekeeping role” by inquiring into the adult child’s position on the issue.
[60] Second, there must be specific evidence that speaks to the decision-making capacity of an adult child who is unable to withdraw from parental care in relation to the particular order sought. As previously mentioned, this court explained in J.F.R., at para. 35, that an individual with limited abilities might still be able to decide whom they want to see and when. Generic assessment reports obtained for unrelated purposes cannot be relied upon for the purpose of determining whether the adult child remains a “child of the marriage” as contemplated under s. 2(1)(b) of the Act or for entertaining claims for parenting orders regarding the adult child.
[61] Third, in the absence of a prior capacity determination relevant to the orders sought under the Act, an adult whose capacity is called into question and is potentially affected by the order should have the following procedural safeguards:1. Notice/service of the pleadings and materials upon the alleged incapable person; and
2. Independent counsel for the alleged incapable person because legal representation is key to the adult child being on notice of the application.
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