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Legal Issues for Minors and Adult “Children” with Disabilities

The Legal Rights of Adult Children with Disabilities: Part Two of a Five-Part Series

As I wrote in Part One of this series, (Guardianship of Property of Minor Children) determining what is best for a child, ensuring their happiness and protecting them when warranted can become a quagmire of issues when the child has a disability and even more complex when that “child” becomes an adult.

This blog series is written for people with disabilities, parents/family members of disabled children, family law lawyers, estate and capacity lawyers, and people acting as substitute decision makers under powers of attorney or guardianship judgments, to highlight some of the many issues that should be considered when the property and personal rights of a minor or adult disabled child are involved.

Amendments to the Ontario Children's Law Reform Act and the federal Divorce Act

Since I first wrote Part One, amendments were made to the Ontario Children’s Law Reform Act (CLRA) and the federal Divorce Act (DA). These amendments do not impact the main substance of what was dealt with in Part One, however, an important amendment should be noted in general before embarking on the rest of this series.

The term “custody and access” of minor children, in the context of a relationship breakdown of the child’s parents, is no longer used. Both the CLRA and the DA now use the term “decision-making responsibility”. The CLRA confirms that the parents of minor children, except as otherwise provided in that Act, are equally entitled to decision-making responsibility with respect to the child.

Separate and distinct from the guardianship of minors’ property provisions of the CLRA discussed in Part One, section 21 of the CLRA deals with decision-making responsibility of minor children and provides that:

21 (1) A parent of a child may apply to a court for a parenting order respecting,

(a) decision-making responsibility with respect to the child; and

(b) parenting time with respect to the child.

(2) Any person other than the parent of a child, including a grandparent, may
apply to a court for a parenting order respecting decision-making responsibility

with respect to the child.

(3) Any person other than the parent of a child, including a grandparent, may

apply to a court for a contact order with respect to the child.

(4) An application under subsection (1) or (2) for a parenting order or subsection (3) for a contact order shall be accompanied by an affidavit, in the form specified for the purpose by the rules of court, of the person applying for the order, containing,

(a) the person’s proposed plan for the child’s care and upbringing;

(b) information respecting the person’s current or previous involvement in any family proceedings, including proceedings under Part V of the Child, Youth and Family Services Act, 2017, or in any criminal proceedings; and

(c) any other information known to the person that is relevant to the factors to be considered by the court under section 24 in determining the best interests of the child.

Importantly, decision-making responsibility under section 21 of the CLRA does not automatically give the parent(s) the authority to make decisions about a child’s property over $35,000 – that is still dealt with under the guardianship of minors’ property provisions in the CLRA and requires a separate guardianship of property judgment.

As the term “child” is currently defined, the provisions for decision-making responsibility of children under the CLRA only pertain to minor children. These types of orders are beyond the scope of this series and outside of my practice area. However, I have raised this here because this series deals with children with disabilities, both minor and adult children, and the legal rights and processes related to their decision-making.

The following blog will discuss the legal rights and processes related to decision-making for adult children with disabilities.

Decision-making for Adult Children with Disabilities

Presently, the CLRA does not include adult disabled children who are unable to withdraw from parental control in its definition of child for the purposes of orders regarding decision-making responsibility or orders for guardianship of minors’ property.  However, the federal Divorce Act (“DA”) does include such adult children. The DA defines a “child of the marriage” as a child of two spouses or former spouses who:

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) 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.

Under the DA, divorced or divorcing parents may apply to the court for child support and parenting decision-making responsibility orders. This applies to all minor children who remain under the charge of one or both of the parents. An adult child with disabilities may also be under the authority of the DA with respect to support and decision-making responsibility if the child fits the above definition. However, the DA does not contain provision for the guardianship of property of a child of the marriage, nor does it pertain to children of common law spouses or children of parents who were never married to each other.

Importantly, the DA defines decision making responsibility of children in more detail than the CLRA as it provides the following definition:

“Decision-making responsibility” means the responsibility for making significant decisions about a child’s well-being, including in respect of

(a) health;
(b) education;
(c) culture, language, religion and spirituality; and
(d) significant extra-curricular activities.

Note that this list does not include decisions about the child’s property (i.e., finances). This list also does not include all personal care decision making categories, such as shelter (i.e., living arrangements), clothing, hygiene, nutrition, and safety. Despite this, in many cases, the property rights and all personal care decision-making categories of adult disabled children of divorced or divorcing parents have gotten scooped into the issues dealt with in the decision-making responsibility dispute, instead of being properly dealt with in an application for guardianship of property or guardianship of the person under the Substitute Decisions Act, 1992 (SDA).

Why does this matter?

Once an adult child is found to be a child of the marriage, they can be subject to decision-making responsibility orders. In this context, there is no legislative distinction between whether the child is a minor or over the age of majority despite there actually being two meaningful differences. First, minors have the option of representation by the Ontario government agency, The Office of the Children’s Lawyer (“OCL”). There is currently no framework for giving adult children the equivalent representation in proceedings under the DA. Under its current mandate, the OCL cannot assist with adult children, and the Public Guardian and Trustee (“PGT”), that looks out for the legal interests of all mentally incapable or alleged mentally incapable adults in the province of Ontario, will only get involved “where necessary”.

Secondly, adult children are afforded legal rights minor children are not. They are presumed to be capable of making decisions about their personal care and property. In DA proceedings with minor children, it is the best interests of the child that is at the heart of the proceeding. The best interests of the adult child remain a primary concern, but there are no procedural or statutory safeguards put in place to protect the autonomy afforded by the SDA, to the adult child.

Third, when child support is ordered pursuant to the DA, the support payments go to the parent. The payments may be made directly to the children only in very unique circumstances, even for adult children. This is because the receiving parent usually has primary decision-making responsibility and must be the one to make the decisions about the child’s expenditures. There is a presumption that that parent will do their best to provide for the child’s immediate and future needs. But this is not always the case, nor does it acknowledge the rights of a mentally capable adult child to make their own decisions about their property and personal care.

In my view, where an adult child is still considered a child of the marriage due to certain illness or disabilities, but has full decision-making capacity, if child support payments are payable, they should be payable to the adult child as the adult child is capable of managing their own funds and using the support payments to meet their needs. Even if the adult disabled child happens to be living with one of the parents, it is a significant infringement on the rights and autonomy of the adult disabled child for these payments to be made to their parent and for the parent to then act as de facto substitute decision maker for a fully capable adult.

What if the child doesn’t want to continue to live with the parent; or wants to manage the payments in a different way than the parent would; or wants to appoint someone they trust, like their grandparent, friend, or sibling, as their attorney under a power of attorney? There may be rare cases where this is envisioned and accounted for. But these seem to be the exception when it should be the rule.

As mentioned above, once a person reaches the age of majority, they are presumed capable of making decisions relating to their property and personal care. This presumption, and the corresponding rights, should not be undermined or disregarded, even in the context of a relationship breakdown of the parents and also where the parents remain together but are dealing with the challenging “cross-over period” between the child’s minority into adulthood.

In the next part of this series, I will discuss key elements of the SDA that are sometimes undermined or disregarded in cases involving adult children with disabilities.