The Ministry of the Attorney General (the “Ministry”) has invited consultation from community stakeholders to expand the definition of “child” in the Children’s Law Reform Act (“CLRA”). The new definition would include a person who is the age of majority or over and remains in the charge of their parents or other caregiver because of disability, medical condition or other reason that makes them unable to obtain the necessaries of life. This is similar to the definitions found in the federal Divorce Act and Ontario’s Family Law Act (“FLA”).
This change in definition will give Ontario courts jurisdiction to make custody and access orders in respect of adults with disabilities or medical conditions or who, for other reasons, remain in their parents’ or other caregiver’s charge. Such orders will allow non-married parents to make decisions related to property or personal care for their adult children. These orders could include decision-making responsibility for contact with non-custodial parents, residence, education, health care, culture, language, religion and extra-curricular activities.
However, the Ministry’s proposed change to the definition of child neither takes into consideration the presumptions of capacity already embedded in the Substitute Decisions Act (“SDA”)[1], nor does it address what we view to be a long-standing gap between the SDA and family law legislation. In that regard, the proposed definition change will inevitably discriminate and/or adversely impact the decision-making rights of individuals living with disabilities.
Together with Community Living Ontario, PooranLaw is pleased to engage in this consultation process which will bring about much needed reform in family law for families with children living with disabilities. While we do not agree with amending the definition of “child” in the CLRA to align with the definition in the Divorce Act or the FLA, as we set out here, we do believe that changes need to be made in family law to bring more certainty to the adjudication of personal care decisions and support entitlements for adults with disabilities who remain in their parents’ or other caregiver’s charge. This will further ensure that the capacity presumptions afforded to individuals under the SDA are adhered to within the family law system.
The Legislative Regime
There are three pieces of relevant family law legislation for consideration: the federal Divorce Act; the provincial FLA; and the provincial CLRA (all three of which are referred to collectively as the “family law legislation”). Each piece of legislation applies in different circumstances: the Divorce Act addresses child support obligations and custody and access (referred to for ease of reference as “parenting issues”)[2] for legally married spouses (including former spouses); the FLA addresses child support obligations for parents who are not married or not seeking a divorce; and the CLRA deals with parenting issues of children of non-married parents or those not seeking a divorce.
Within the family law legislation there are differing definitions of “child” applicable to parenting issues and child support obligations:
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- Subsection 2(1) of the Divorce Act defines a “child of the marriage” as a “child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (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”. The “age of majority” in respect of a child defined in subsection 2(1) of the Divorce Act, “means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age.”[3]
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- Section 1 of the FLA defines a child as a “person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody”. More recently section 31(1) has been amended to define a child for support purposes “as a person (unmarried) who (a) is a minor; (b) is enrolled in a full-time program of education or (c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents”.
The child support obligation does not apply to a child who is sixteen years of age or older and has withdrawn from parental control. Before 2017, the FLA only allowed adult children of unmarried parents to be eligible for child support if they attended school full-time. After a provincial court found that the FLA was unconstitutional and discriminated against adult children with disabilities born to unmarried parents, Ontario amended the legislation to allow adults with disabilities who have unmarried parents to have access to child support. This amendment aligned the FLA with the Divorce Act, where adult children who are dependent due to disability, illness or other causes are eligible for child support.
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- Subsection 18(2) of the CLRA simply defines a child as a minor.
Inconsistency in Legislation: Upholding Presumptions of Capacity
The definition of “child of the marriage” in the Divorce Act does not acknowledge and adopt the presumptions of capacity for signing contracts and personal care decision-making in the SDA. In our view, this is the most problematic aspect of the proposed legislative change to the definition of “child” in the CLRA, if the definition from the Divorce Act is adopted. In family law, parenting orders, including incidents of custody which are considered to be personal care decisions (such as education), are routinely made for children 16 years of age or older without requiring the views and preferences[4] of the child. This does not take into consideration that at age 16 a person is presumptively capable of making personal care decisions.
Likewise, orders for child support are made for “children” into adulthood without consideration of the presumption that people are capable of signing contracts at 18 years of age. While anecdotal, in our experience the family law system works by way of “presumptions of incapacity” and stereotypes and misconceptions of the capabilities of individuals living with disabilities when adjudicating parenting and support issues for adult “children” with disabilities.
In that regard, recognizing a presumption of capacity should not be construed to mean that a parent does not still have a support obligation for an adult “child” with a disability. That individual may still be in need of additional supports when it comes to activities of daily of living, pursuing education and securing employment; however, one can benefit from such supports without being deemed incapable of making one’s own decisions. Often times, orders are made that seriously impact the decision-making rights and liberties of adult “children” with disabilities, without proper notice to the person or a fulsome evidentiary record, and without any consideration of the SDA. This is a failure by not only our courts, but by our legislature to not clearly delineate and mandate the interplay of the SDA with the family law legislation that must be rectified.
We look forward to participating in what we hope to be an extensive consultation process with all of the relevant stakeholders to address the gaps in legislation and make the appropriate amendments needed to the family law legislation.
[1] The SDA governs decision making for adults who are unable to make their own decisions in the areas of property management, shelter, health care, hygiene, safety, nutrition, and clothing.
[2] The terms “custody and access” are soon to be changed to “decision-making responsibility” and “parenting time” under the Divorce Act with the enactment of Bill C-78 which amends the Divorce Act and other related legislation coming into force and effect March 1, 2021 – see our newsletter post here – https://pooranlaw.com/2020-family-law-update/. Unfortunately, the Children’s Law Reform Act has not been similarly amended so there will be a further discrepancy between the federal and provincial legislation regarding custody and access of children.
[3] In Ontario, section 1 of the Age of Majority and Accountability Act states that, “every person attains the age of majority and ceases to be a minor on attaining the age of eighteen years.”
[4] Although the views and preferences of an older child are often sought by the court or advanced by a parent in custody and access cases, it is not mandatory. A child 16 years of age or older is also not automatically entitled standing as a party with all of the rights of a party, including counsel, in their parent’s family law litigation, despite the capacity presumptions for personal care decision-making under the SDA.
