CONTEXT: ABOUT THE CASE
In J.F.R v K.L.L., the Ontario Superior Court of Justice found that Massey Leach-Rathwell, a 24-year-old adult living with down syndrome, was a ‘child of the marriage’ as defined under the federal Divorce Act, as (in the court’s opinion) he remained in his parents’ charge and could not withdraw from it due to his disability.
As a result, the 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.
Massey’s mother argued that imposing a parenting order for an adult child could set a harmful precedent with the effect of depriving adults who have an intellectual disability of their right to live with dignity, autonomy, and independence.
Massey’s mother has appealed the Court’s decision to the Court of Appeal of Ontario, the province’s highest court.
COMMUNITY LIVING ONTARIO’S ROLE AS INTERVENOR
Community Living Ontario believes that this case will have a direct impact on the equality and autonomy rights of adults who have an intellectual disability across Ontario.
With the expert support of PooranLaw, the Court of Appeal granted CLO intervenor status. This means the court gave CLO permission to share our perspective on the lower court decision, including our concerns and about the negative impact (either directly or indirectly) upholding the decision could have on CLO’s mission of inclusion and the decision-making rights of people with intellectual disabilities.
People First of Canada, Inclusion Action in Ontario, and the Canadian Down Syndrome Society are also intervening in this case.
THE ISSUE AND IMPACT
This appeal raises significant and unresolved questions regarding equality and autonomy rights of adults who have an intellectual disability. Adults living with intellectual disabilities have struggled for decades to have their legal capacity and decision-making rights recognized on an equal basis. They have been fighting against harmful, ableist assumptions that their disability and unique support needs correspond with incapacity.
One key issue in this appeal is 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 are divorced. This section expressly considers a person’s capacity to make decisions about their day-to-day life.
As an intervenor, CLO has an opportunity to provide a useful and unique perspective on this issue. The Substitute Decisions Act (the “SDA”) is the cornerstone of the consent and capacity legal framework in Ontario. While the SDA is far from perfect, it contains important protections of decision-making rights, including the presumption of capacity and the importance of taking a person’s wishes for their life into account.
It is CLO’s position that differences between the SDA and the ‘child of the marriage’ section of the Divorce Act are creating two parallel pathways that can result in the restriction or removal of decision-making rights from adults who have an intellectual disability: one with clear procedural and evidentiary safeguards, and one without.
Ultimately, the lower court’s decision is a step backwards in the fight for equal recognition of the legal capacity of adults with intellectual disabilities. It sets a problematic precedent based on disempowering, narrow views of disability that are contrary to the constitutionally protected rights and values of dignity, equality, liberty, and respect for the autonomy of the person set out in the Canadian Charter of Rights and Freedoms; it also conflicts with foundational principles established under existing consent and capacity laws.
THE APPEAL AND NEXT STEPS
On Thursday, November 9, 2023, PooranLaw lawyers Brendon Pooran and Madison Pearlman will appear at the Court of Appeal for Ontario, to make submissions on behalf of CLO.
The appeal is an opportunity for courts to recognize the decision-making rights of adults living with intellectual disabilities and ensure the equal protection of these rights in the family law context.
PooranLaw will focus on the fundamental importance of upholding the presumption of capacity and safeguarding a person’s right to exercise their decision-making abilities in matters that directly impact them.
PooranLaw will explain that substitute decision-making mechanisms operate on a spectrum of restrictiveness. Guardianship is considered most restrictive, as it removes the decision-making rights of the person under guardianship in the eyes of the law. A parenting order dictating where and with whom a person shall live, and who is responsible for making decisions for that person, results in a de-facto guardianship order within the family law context without the same procedural protections offered to other adults living with disabilities, whose capacity is being called into question.
Community Living Ontario will provide additional updates after the appeal has been heard.
