Adults with disabilities who are dependent on their separated or divorced parents must be involved in decisions that impact them, the Ontario Court of Appeal ruled last week.
“Dependence on others or incapacity in some or all areas of decision making does not eliminate the right to be heard,” Justice Lois B. Roberts wrote for an unanimous three-judge panel in the July 2 decision.
Disability advocates are praising the decision, saying it clearly affirms people with disabilities should be involved in decisions about where and with whom they live.
The decision will “ensure that the rights of people with disabilities aren’t ignored in years to come when it comes to family law legislation,” said Brendon Pooran, a lawyer who represented the intervener Community Living Ontario in this case.
The case involved a 26-year-old man with Down Syndrome who is unable to live alone.
When he was a child, his parents divorced and his parents agreed to a separation agreement where he would spend time living at both their homes.
During the pandemic, he stayed with his mother to reduce the risk of infection caused by travelling between their homes. Since the pandemic, he has spent most of his time with his mother. His father has tried to return to a shared parenting order since October 2020.
In 2022, the Ontario Superior Court sided with the father and ordered the son to split time between his parents’ homes. The judge ruled the son — who was not represented by a lawyer in the lower court proceeding — did not have autonomy because his parents determined his schedule and he was unable to make decisions about his finances or to live safely on his own.
The mother appealed the decision, because her son was not given the opportunity to participate in the process. Last week, the appeal court sided with her.
Her son was not “afforded the opportunity to participate” in a case where the “outcome affect[ed] his fundamental rights,” the court said, explaining why it agreed with the mother.
The ruling recognizes “the right of an adult, irrespective of disability, to still have a choice when deciding issues that impact them,” said Melanie Battaglia, the lawyer who represented the mother.
The lawyer for the son, who represented the son on appeal, was not available for comment before deadline.
The decision can act like a “roadmap” in cases where parents are seeking an order under the Divorce Act about where their dependent adult children with disabilities should live, says Battaglia, who has seen a rise in cases where this issue is in dispute.
This Ontario case may also be helpful when determining similar family law cases in other jurisdictions, as the Divorce Act is federal legislation.
The Divorce Act lays out what needs to be considered when making a post-divorce parenting plan for children. It defines children as minors or adult children in their parents’ care who are unable “by reason of illness, disability or other cause, to withdraw from their [parents’] charge or to obtain the necessaries of life.”
That definition is often used to argue that child support still needs to be paid when there are adult dependent children, says Battaglia. But there is not much case law about how the Divorce Act applies when determining where dependent adult children with disabilities will live.
This decision shows that the type of order being sought — for example, a child support order or a parenting order — matters when determining whether an adult child is dependent on their parents, she says.
“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,” the decision says.
Olivia Bonham-Carter, the lawyer who represented the father, acknowledged the importance of the decision. “Although the result of the appeal was not what we expected for our client and this family, we recognize the importance of this decision for adults with disabilities across the province and the country,” she wrote in a statement to Canadian Affairs.
Gabriel Reznick, a lawyer who represented the intervener People First of Canada, praised the decision for “restating that persons with disabilities should be treated the same as all other persons, specifically in respect to the right to be heard and the right to be part of a case.”
The decision shows that determining capacity needs to happen “on a spectrum,” he said. “A person may be able to make some decisions, but may not be able to make all decisions.”
Editor’s Note: This article has been updated to include a statement from Olivia Bonham-Carter.
Editor’s Note: This article has been updated to clarify that Gabriel Reznick’s comments were about determining capacity. A previous version of the article said his comments were about determining consent.
