Introduction
In a recent family law case, J.F.R. v. K.L.L., the Ontario Court of Appeal (the "Court") was asked to decide on a parenting schedule for an adult living with disabilities who was living under his parents' charge pursuant to the Divorce Act (the "Act"). This case touches on issues relating to family and health law, but is particularly significant for its discussion about incapacity, autonomy and adults living with disabilities.
The parties to this action were spouses who separated. They had a 26-year-old son (M) who was living with Down Syndrome. M could not live independently. He split his time between living with each parent in a shared parenting schedule which was made pursuant to a parenting order under section 2(1)(b) of the Act. The shared parenting schedule was set when M was a minor and was changed temporarily during the pandemic. For reference, section 2(1)(b) defines a "child of the marriage" to include a child who is over the age of majority but for reasons of illness, disability or other, is unable to withdraw from their parents' charge. Section 16.1 sets out the court's jurisdiction to make a parenting order.
Issue before the Motion's Judge
The father sought to return to the shared parenting schedule and obtained a temporary order to restore the parenting schedule to 50/50 parenting. The motion judge made the temporary parenting order for M on the basis that he had jurisdiction to do so. The motion judge found that M met the definition of a "child of the marriage" and could not withdraw from his parents' charge due to his cognitive disability M was not present or represented at the motion. Before the final order was made, the motion judge ordered that M's views and preferences regarding the parenting schedule be ascertained through a social worker or psychologist. M's mother challenged the temporary order with respect to M's residence.
The Court's Analysis
The issue before the Court was whether there was a breach of M's fundamental rights because he was not given the opportunity to participate in proceedings about where, when and with whom he resides.
There is a common law presumption of capacity and the onus of proving incapacity rests on the party disputing or questioning capacity. The Court acknowledged that the concept of capacity is nuanced. Being incapable of making decisions regarding one subject or aspect of one's life does not determine capacity in all other aspects. M's limited abilities with respect to independent living and requiring financial and other support did not necessarily render him unable to decide where and with whom he wanted to live. Since the question of capacity is context-specific, the question of M withdrawing from parental charge should be assessed in relation to the particular order being sought.
A person's fundamental rights include the right to be heard and make decisions about one's own life. Being dependent on others or having incapacity in some or all areas of decision-making does not eliminate the right to be heard and involved in decision-making. There are procedural safeguards in place in litigation to ensure that people whose interests may be affected by proceedings can be heard, such as requiring that service of proceedings is made on all parties and/or those affected by the ultimate decision so that they can exercise their right to retain legal counsel and be heard.
Here, there was no prior capacity assessment relevant to the parenting order sought. Without evidence to rebut the presumption of M's capacity with respect to the order sought and because M was an adult presumed capable and affected by the court order, he should have been served with a notice of the proceeding and been given the opportunity to participate and make submissions through his own legal counsel. Instead, he was presumed incapable of making decisions about his own residence. Making an order which removed M's fundamental rights reversed the presumption of capacity (and the onus on the person who must establish M was a "child of the marriage" under parental charge as defined in the Act). Without evidence to the contrary, M is to be presumed capable of making decisions about his residence (until proven otherwise).
The Court's Finding
The Court found that the legal principle of natural justice and the presumption of capacity were not applied when interpreting the Act. The lower court made an order which infringed on M's autonomy without there having been an inquiry into his actual capacity. Before a court order was made with respect to M's residence, there should have first been a determination as to whether M was unable to withdraw from his parents' charge in the specific context of the parenting order being sought. Significantly, the Court noted that the motion judge's order that M's preferences be ascertained by a social worker or psychologist recognized the need to hear from M on this matter before making a final parenting order. However, it was not enough to simply ascertain M's views. M had the right to be heard and to speak to his ability to withdraw from parental control with respect to his residence. He was denied this right.
The Court allowed the appeal and set aside the motion judge's temporary order with respect to M's residence, noting that if the parties wished to pursue a parenting order under the Act to determine M's residence, he must be a party to that action.
Conclusion
This case is significant because of its intersection of family and health law concepts and principles. Its application to health law is especially important because the Court clarified common confusion about the presumption of capacity and the onus on the person questioning capacity to prove incapacity. These concepts are often misunderstood.
The Court describes the nuance and fluidity of capacity and how it can change over time and depending on the circumstances or context. In its analysis, the Court illustrates how people living with disability may be dependent on others to ensure some or all of their interests are protected, but this does not automatically extinguish their right to be heard before the court and to participate in decisions that directly and fundamentally impact their life. Presuming that adults living with disabilities are incapable of decision making is contrary to the common law presumption that adults have capacity.
In this case, the Court discussed the assessment of capacity in the family law context, which is also reiterated in various legislation such as the Health Care Consent Act, 1996, Substitute Decisions Act, 1992, and Personal Health Information and Protection Act, 2004. Health professionals are expected to understand the ways in which capacity assessments and capacity determinations impact their patients and when they are necessary.
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