Back in November, PooranLaw appeared before the Ontario Court of Appeal to make submissions on behalf of Community Living Ontario. CLO was granted intervenor status in a case involving an adult with Down syndrome who was deemed a ‘Child of the Marriage’ as defined under the Divorce Act.
Read the full decision here: 2024 ONCA 520 (CanLII) | J.F.R. v. K.L.L. | CanLII
About the Lower Court’s Decision
Superior Court of Justice found that a 24-year-old man living with Down syndrome, was a ‘child of the marriage’ as defined under the Divorce Act as he remained in his parents’ charge and could not withdraw from it due to his disability. As a result, the motion judge made a temporary parenting order (which is a legal document detailing how divorced or separated parents must split parenting time and day-to-day decision-making). Such orders are typically used in cases involving children who are minors. The man’s mother appealed the Court’s decision, arguing that imposing a parenting order for an adult child could set a harmful precedent with the effect of depriving adults living with intellectual disabilities of their right to live with dignity, autonomy, and independence.
About the Appeal Process
Through the Court of Appeal, PooranLaw helped Community Living Ontario achieve intervenor status. On its behalf, the firm shared mutual concerns on the lower court’s decision, emphasizing the negative impact it would have on people in the DS sector. Specifically, PooranLaw raised concerns related to the constitutionality of the ‘child of the marriage’ section of the federal Divorce Act as it relates to parenting orders for adults with intellectual disabilities whose parents are getting divorced or who are divorced.
PooranLaw also argued that the Substitute Decisions Act (the “SDA”) is the cornerstone of the consent and capacity legal framework in Ontario. It includes certain protections in relation to decision-making rights including: the presumption of capacity; the right to section 3 counsel; and a requirement that alternative courses of action that are less restrictive in nature be considered before finding a person incapable of making their own decisions and appointing a guardian of property and/or personal care.
About the Court of Appeal Decision
Ultimately, the appeal was granted and the motion judge’s order was set aside. The panel provided clear guidance on the application of the SDA and the nuances associated with decision-making rights when interpreting a person’s will and preference within a variety of settings.
Here are a few key excerpts from the decision:
“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. 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”
“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”
This decision resulted in a big win for the disability community at large. PooranLaw will continue to monitor the ongoing legal developments related to cases like these and report on them here. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation
