Case Summary and Analysis: J.F.R v. K.L.L, 2024 ONCA 520
On July 2, 2024 the Court of Appeal for Ontario (ONCA) released a decision which serves to advance the rights of persons labelled with intellectual disabilities. In J.F.R v. K.L.L, 2024 ONCA 520, the ONCA considered whether a court could make a parenting order under section 16.1 of the Divorce Act on an adult with a disability, without the adult taking part in the proceeding. The ONCA made it clear that adults with disabilities should be involved in cases that have a direct impact on them.
ARCH represented the intervener People First of Canada (PFC) at the Ontario Court of Appeal. On behalf of PFC, ARCH argued that it is vital that persons with disabilities be provided with the dignity to make choices that directly impact their lives. Our arguments were centred on the Convention on the Rights of Persons with Disabilities, primarily Article 19, which protects the right of persons with disabilities to choose their living arrangement. This case allowed PFC and ARCH to further their goal in ensuring that persons with disabilities have the rights guaranteed in the Convention.
This decision is important for several reasons. First, it reaffirms the presumption of capacity and the high bar to overturn this presumption. Second, it makes clear that everyone, including persons with disabilities, should have the opportunity to be heard on decisions that affect them, including where to live and who to live with.
Background
The case flows from a divorce proceeding between J.F.R and K.L.L. As part of the divorce proceeding, the parties disagreed about where their 24 year old son, M, would live. Specifically, with which parent M would live with. As a result, M’s father filed an application at the Superior Court requesting for a parenting order to be made under s. 16(1) of the Divorce Act, mandating that M live with each parent 50 percent of the time.
Under s. 16(1) of the Divorce Act, a parenting order can be made on a “child of the marriage” as defined in section 2(1) of the Act. Section 2(1)(b) outlines that a “child of the marriage” can include an individual who, “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.” Despite M not participating in the hearing, the Superior Court was willing to make a parenting order on an interim basis, finding that M was a “child of the marriage”. This decision was appealed to the Court of Appeal for Ontario.
On appeal, K.L.L brought a Charter challenge, arguing that section 2(1)(b) when in conjunction with section 16(1) of the Divorce Act violated section 15 and section 7 of the Charter of Rights and Freedoms. The Court decided that K.L.L did not have standing, as it was not her rights that were being infringed, and further, that she would not meet the public interest standing test set out in Canada (Attorney General) v. Downtown Eastside Sex Workers Unites Against Violence Society, 2012 SCC 45.
Outcome
The ONCA allowed the appeal, quashing the interim parenting order. The Court found that M should have been involved in the proceeding before the Superior Court. The Court ordered that if one of M’s parents wants to proceed in requesting a parenting order, then M must be involved in the case and represented by counsel.
Conclusion 1: Persons with disabilities must be involved in cases that have a direct impact on them
The ONCA based its decision in large part on the principles of natural justice. The main principle used by the Court was the audi alteram partem principle. Under this principle, persons who are affected by a decision must have the opportunity to be heard prior to the court making that decision. The Court emphasized that this principle is especially relevant in cases involving persons with disabilities, who are often not involved in their own decisions due to a false presumption of incapacity.
Conclusion 2: It is a high bar to overturn the presumption of capacity
At paragraph 24 of the decision, Justice Roberts stated, “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.” The presumption of capacity is well-established and is a clearly stated protection in the Substitute Decisions Act, section 2. Despite this, through the application of s. 2(1)(b) of the Divorce Act, the lower court decision puts limits on this presumption. The ONCA used strong language, cautioning that it is a high bar to overturn the presumption of capacity. Incapacity requires direct evidence and is limited to a specific type of decision making, for example financial decisions. The ONCA understood that determining an adult as a “child of the marriage” diminishes the right to be autonomous, and impacts not only the right to decide your living arrangement, but also the decisions that flow directly from this right.
What does this decision mean for persons with disabilities?
Without a doubt, this decision is a significant victory, serving to advance the rights of persons with disabilities. This decision’s impact should extend past the family law context, ensuring the persons with disabilities have the dignity to take part in decisions that have a direct impact on them.
In addition to the right to be heard, this case also advances the law on presumption of capacity. As well put by the ONCA at paragraph 28, capacity is on a spectrum, and is not “an all-or-nothing proposition”. The Court understood that persons with disabilities have often been assumed incapable of making decisions. The ONCA warns against this practice, making clear that adults should not be treated like children because of their disability. Rather, adults with disabilities are guaranteed the same rights as all adults. The Court further underscored the fundamental nature of the presumption of capacity.