When parents of adult children with disabilities divorce, legal questions can arise about decision-making rights and parental responsibilities. In a recent case, J.F.R. v. K.L.L., the Ontario Court of Appeal addressed whether an adult with Down Syndrome (referred to in the decision as “M”) could be considered a “child of the marriage” under the Divorce Act and whether courts could impose parenting orders without their direct involvement. The decision underscores the presumption of capacity, the right to be heard, and the necessity of legal representation in cases affecting the rights and autonomy of individuals with disabilities (J.F.R. v. K.L.L., 2024 ONCA 520).
The spouses disagreed about where M should live and with whom. M’s father made an application to the Superior Court for a parenting order, under section 16(1) of the Divorce Act, whereby he proposed that M live with each parent in a fifty-fifty split.
The Divorce Act tells us that a parenting order may be made regarding only one who is a “child of the marriage.” While children are generally considered those who are under 18-years-old, section 2(1) of the Divorce Act says that a child of the marriage may include a person who “is of 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.”
Of course, there is good reason to take issue with classifying an adult with a disability as a “child of the marriage.” Not only is the terminology patronizing and ableist, the consequences of such categorization may also be vast.
At trial, the motion judge found that she had the jurisdiction required to make a parenting order under section 16(1). The judge found that because M was unable to live independently due to his disability, according to assessments from Developmental Services Ontario, he was therefore a “child of the marriage.” The judge made the temporary parenting order accordingly, and also ordered that a social worker or psychologist be involved to gather the preferences of M within six months of the order. M never participated in the hearing.
M’s mother appealed the motion judge’s decision and brought a Charter challenge. M’s mother argued that section 2(1)(b) and section 16(1) of the Divorce Act, when working in conjunction, violated section 15 and section 7 of the Charter, sections of the Charter which guarantee the right to equality, and the right to life liberty, and security of the person, respectively. Regarding the Charter challenge, the Court of Appeal for Ontario (“ONCA”) found that M’s mother did not have standing and could not bring the challenge on her son’s behalf.
Ultimately, the ONCA allowed the appeal and quashed the interim parenting order. The Court ruled that M ought to have been involved in the proceeding in the lower court and that if either parent wanted to bring a parenting order, M would need to have legal representation and involvement in the matter.
In reaching its decision, the ONCA criticized the lower court’s order which had been made without a proper inquiry as to M’s capacity explaining that a finding of incapacity is a high bar. It cannot be assumed or surmised that folks with disability lack capacity, even if they may be unable to live alone.
This case is a powerful reminder of the presumption of capacity which is extended to all adults, and the high bar which must be overcome in order to rebut the presumption. Importantly, the decision highlights capacity as on a spectrum, with the understanding that individuals may be capable of making some decisions and not others. As the ONCA put it, “Dependence on others or incapacity in some or all areas of decision making does not eliminate the right to be heard […] 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 […] the right to make decisions about one’s own life is fundamental to autonomy and personhood. [the intervenors] 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.”
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