NULAW | northtorontolawyers.ca
December 12TH, 2024
Can a court make a parenting order under the Divorce Act for an adult child living with a disability without giving them an opportunity to participate in the proceeding? The Ontario Court of Appeal considered this question while addressing the presumption of capacity and an individual’s right to be involved and heard when the decision will have an impact on them.
One recent case ensured the rights of individuals with a disability are safeguarded while emphasizing that there is a high bar to overturn the presumption of capacity.
The parties’ son, a 26-year-old living with Down Syndrome, could not live independently and was financially dependent on his parents. However, there was no formal assessment of his capacity to make his own decisions about his residence. When the parties separated, they agreed their son, who at the time was still a minor, would reside with each parent according to a parenting schedule. But during the COVID-19 pandemic the parties agreed he would temporarily reside only with his mother. The father (the respondent) later sought to return to that schedule.
The son was not named as a party to the proceedings and did not have an opportunity to make submissions to the court. His mother (the appellant) challenged the order alleging the son’s rights were breached because he did not have an opportunity to be heard when the decision seriously affected his interests.
Key Takeaways:
- A Disability Does Not Rebut the Presumption of Capacity
- Dependence on others does not eliminate the right to be heard
- Capacity is Context-Specific
- Unwarranted findings of incapacity severely infringe upon a person’s right to self-determination
