Legal Issues for Minors and Adult "Children" with Disabilities
Substitute Decision-Making for Children with Disabilities – The “Cross-Over Period”: The Conclusion of a Five-Part Series
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.
In Part One of this series, I discussed those issues in the context of the guardianship of property of minor children. In Part Two, I outlined the legal rights of adult "children" with disabilities. In Part Three, l discussed key elements of the Substitute Decisions Act, 1992 (“SDA”) relating to adult children with disabilities. In Part Four, I addressed applications for guardianship of a disabled adult child's property and/or personal care. Here, in Part Five, I will outline the legal complexities of the "cross-over period," when a child with disabilities turns 18 and is no longer a minor.
The Cross-Over Period
In the first part of this series, I discussed the appointment of a guardian of property for a minor child under the Children’s Law Reform Act (“CLRA”). Where such an appointment is made, it is not been made because the child is mentally incapable of managing property. Even if they are a disabled minor child, a guardianship granted for a minor under the CLRA is granted on the basis of the child’s minority, not on their mental capacity. Therefore, one cannot assume that a disabled child who had a guardian of property during their minority will be in need of a guardian of property as an adult.
In some cases, the court order that appoints a guardian of property under the CLRA will include a provision that the guardian shall arrange an assessment of the child’s capacity to manage property under the SDA within six months of the child’s eighteenth birthday if there is a belief that the child may continue to require a guardian on the basis of mental incapacity. If the adult disabled child is in the grey zone with respect to mental capacity, it would be prudent for the guardian to not only seek a capacity assessment regarding capacity to manage property and make personal care decisions prior to the child’s eighteenth birthday, but also capacity to grant powers of attorney for property and personal care.
Where there has been no guardianship order in place during the disabled child’s minority but there are reasonable grounds to believe that the child may be incapable of managing property or making personal care decisions after turning eighteen, then a capacity assessment, as described above, should be arranged within six months of the child’s eighteenth birthday to inform the parents as to whether the child will require a guardian or not after turning eighteen.
One of the practical difficulties during this “cross-over” time between minority and adulthood is to determine who will be the person leading this process. For example:
If the adult disabled child is capable of managing property and making personal care decisions and capable of granting powers of attorney for property and personal care, then it is the adult disabled child who should be leading the process, hiring a lawyer, making powers of attorney (or perhaps establishing a trust in some cases), and ensuring that their attorneys comply with their duties, especially if the adult child is vulnerable to abuse or exploitation as a result of their disability.
Where the adult disabled child is incapable of managing property and making personal care decisions and incapable of granting powers of attorney for property and personal care, then the person applying for guardianship under the SDA is the person leading the process and the adult disabled child has the right to retain their own lawyer to obtain independent legal advice regarding the application and regarding the guardian’s performance of their role and duties as guardian.
Where the adult disabled child is incapable of some tasks and capable of other tasks, which happens in a large percentage of cases, then the parents and adult child may all need separate lawyers, all of whom will play an important role but none of whom are leading the process more than the other. It is imperative in these cases for counsel to provide truly independent advice to each of the respective parties, while also working cooperatively and collaboratively with each other.
There are also challenges during this cross-over time period, and in some cases on-going throughout the adulthood of the disabled child, regarding the child’s eligibility for Ontario Disability Support Program (“ODSP”) benefits. A discussion of the many ODSP legal issues that can arise for children with disabilities is beyond the scope of this blog series, but I wanted to emphasize to readers that the ODSP legal issues, and a child’s eligibility for same, must always be considered in the parents’ planning, the child’s planning, the substitute decision making for that child, and in the context of relationship breakdown of the child’s parents insofar as it relates to the child’s support, income and expenses.
Conflict Between the Divorce Act ("DA") and the SDA
As mentioned in Part Four of this series, in cases involving an adult disabled child of divorced or divorcing parents, there is often a conflict between the application of the DA and the SDA. This places the court in the position to decide which act should apply and how to balance the conflicting statutes and interests at hand.1 This has resulted in inconsistent judgments, several of which undermine the rights of the adult child under the SDA. The following is a non-exhaustive review of some of these cases.
Kingdon v Kramer (2015 ONSC 1193)
The Kingdon v Kramer case involved simultaneous requests for a custody order (as they were then called) by the mother and guardianship appointment by the father. The court noted there were two ways in which it may have jurisdiction over the adult child, Jacob. First, if the parent established that the adult child was subject to the DA as a child of the marriage. Or second, if the presumption of capacity afforded by the SDA had been rebutted.
The court correctly proceeded from the position that Jacob had capacity and that children, in general, are no longer children of the marriage upon reaching the age of majority. However, because of the allegations the mother had made about Jacob’s capacity, the court could not end its analysis here. The court conceded that Jacob was incapable under the SDA for very specific purposes: “to drive a car, to retain and instruct counsel, and to decide where to live and then to live without a great deal of support.” 2 Despite these incapacities, this did not make Jacob a child of the marriage, nor did it necessarily mean he required a guardian under the SDA.
Ultimately, the court would not make a determination that Jacob was a child of the marriage and ordered the parents to instead bring a guardianship application. The court found there was at least a possibility that Jacob was still a child of the marriage and that he needed a guardian. As such, the court treated Jacob as a child of the marriage for the purposes of deciding where he should live in the interim, until the guardianship application could be heard. While the court acknowledged and upheld Jacob’s presumed capacities as a legal adult, Jacob was still subjected to a custody order, which inherently impeded his decision-making authority.
Brown v Rowe (2016 ONSC 5153)
This proceeding was initiated when the child, AJ, turned eighteen and was eligible for ODSP benefits. The parents could not agree on an ODSP trustee, and thus the application was brought. At the same time, the father brought a separate application seeking appointment as guardian of property.
The father submitted that being the ODSP Trustee is not sufficient to manage AJ’s property, citing this did not give him the authority to deal with the funds or manage other matters for AJ, such as signing contracts or income tax returns on his behalf. The mother submitted that the current arrangement (the father as ODSP Trustee and them both as custodial parents) was sufficient to address AJ’s decision-making with minimum intrusion in accordance with the prohibition against a guardianship appointment pursuant s. 22(3) of the SDA.
The court found that AJ was a child of the marriage under the DA, and also found that AJ was not capable of offering informed consent, preparing a power of attorney, or managing his own financial affairs and property under the SDA. The court also agreed with the father that a guardianship appointment was necessary and appointed the father as guardian. This case highlights the conflicts between the DA and the SDA, but also the gaps: a child subject to a DA custody order, now called parenting decision-making order, does not sufficiently address all of the decision-making issues that arise with incapable adult children.
Perino v Perino (2012 ONSC 328)
Perino v Perino involved a custody and access dispute between the parents of Marisa, who was in her mid-twenties and had developmental disabilities. The judge began by acknowledging that much of the four-year litigation was caused by the lacking legislative framework for adult children with disabilities. The court noted the following goals it tried to pursue in its judgment:
to respect an area of autonomy for Marisa, consistent with her cognitive abilities and her potential for future growth, while at the same time protecting her and providing suitable living arrangements for her.3
The case summarized the previous proceedings and each judge’s findings in great detail. At one stage in the proceedings, Marisa was added as a party to have her wishes heard, but she subsequently removed herself when one of the judges suggested a capacity assessment may be required to resolve the issues. Another judge made a point to highlight that the inability of Marisa to withdraw from her parents’ charge does not equate to legal incapacity as set out in the SDA. While this is an important acknowledgement of Marisa’s rights as an adult, the same judge went on to state that minors and disabled adults do not require separate representation in divorce proceedings to have their interests protected as it is the “court’s duty to make a decision in her best interests.” 4
The court accepted that Marisa was a child of the marriage because the parties, including Marisa, agreed to this. This gave the court the jurisdiction to make an order respecting the custody and access, as it was then called, of Marisa. It is worth noting that Marisa made this concession because she knew she had “cognitive limitations” but did not want to be subjected to a capacity assessment. 5
Nevertheless, Marisa was one of the luckier adult children in divorce proceedings, as she was afforded counsel of her own. Marisa’s counsel zealously advocated against “a sweeping custody order that would preclude Marisa from exercising control over many important aspects of her life.” 6 The court agreed and therefore dealt only with primary residence and access, leaving all other decisions up to Marisa. This created an arrangement where Marisa was in a position to exercise her autonomy and her parents still had the option to pursue a guardianship appointment in the future if they had concerns about her decision-making authority.7
This case demonstrates the positive outcomes that may result when the court is mindful of the adult disabled children’s right to autonomy and when the child is given the opportunity to participate in the proceedings with experienced counsel of their own.
Cole v Cole (2011 ONSC 4090)
In this guardianship application, the preliminary question arose as to whether the adult child, Jeremy, was still a child of the marriage, and thus subject to an existing custody order. The court found that the evidence overwhelmingly supported one parent’s conclusion that the child was still a child of the marriage without discussing the evidence.8
The respondent/applicant for guardianship submitted that the guardianship order still be granted, arguing that once a person in Jeremy’s situation reached adulthood, the custody order had to be reviewed. This was because the law and policy have evolved such that adults must be considered capable decision makers and “should not be considered incompetent to make decisions merely because of their disability”.9
In dismissing the respondent’s guardianship application, the court said the following:
While I find the Respondent’s argument most interesting and worthy of consideration, the fact remains that in the face of the Custody Order which I have determined is still in existence, if the present proceedings were allowed to continue, the court might very well be put in the position of coming to a conclusion contrary to the Custody Order.10
This decision is troubling as it highlights the shortcomings of the DA to protect all of the rights of adult disabled children afforded in the SDA, yet it concludes that the custody order under the DA will continue without consideration of the issues, rights and protections that would be examined in the context of an SDA proceeding. The reality is that in many cases involving adult disabled children, both the DA and the SDA will be, and arguably should be, engaged. It is not always an either/or situation and where the outcome of a guardianship application might alter an existing custody order, that is not necessarily an incorrect or bad outcome if it is the outcome of the application of both acts working in concert.
R (M.T.) v R (I.S.) also cited as Ross v Ross (2004 BCCA 131)
In this case, the court was asked to address two issues: whether it has jurisdiction over the adult child, Andrew, and whether it should exercise that jurisdiction because Andrew was an adult capable of decision making. The British Columbia Court of Appeal set aside the lower chamber’s finding that there was no jurisdiction to make an access order which would require Andrew to see his parent against his wishes as it would infringe upon Andrew’s rights as an adult.11
The Court of Appeal held that Andrew was a child of the marriage and, as a child of the marriage, he was under the jurisdiction of the court and the DA. The court did note that an adult child of the marriage is presumed capable of decision making. This presumption, however, does not discharge the court’s obligation to protect the adult child’s best interests under the DA, nor does the child’s presumption of capacity mean the court should decline to exercise its jurisdiction.12 However, the court also stated:
Andrew's physical and mental condition are both relevant conditions under s. 16(8) of the Divorce Act and Andrew's circumstances and his capacity to form and express his wishes are relevant circumstances under s. 16(8) of the Divorce Act, all being matters in issue in these proceedings between Ian Ross and Marjorie Ross.
I would order that orders of the appropriate kind be made to assist the Supreme Court judge who is trying the issue of custody and access. The orders would be made under both Rule 30 and Rule 32A. The orders should be directed to the formation of relevant opinions on the issues underlying the question of what is in the best interest of Andrew, having regard to his wishes and his capacity to formulate and express his wishes in relation to access to Andrew by Ian Ross.13
This judgment recognizes the need for a wholistic and cooperative approach that balances the family law principles regarding the best interests of a child of the marriage with the capacity law principles of what the wishes and decisions are of a capable adult child.
Most parents who I know want what is best for their children and would go to the ends of the earth to protect them and ensure their happiness. Of course, not all parents agree with each other, or with their children, about how to define what is “best”, what is “happiness”, and when “protection” is warranted. In addition to that complexity, unfortunately, not all parents are actually motivated by wanting what is best for their children or wanting their children to be happy, no matter how one defines those two concepts; and sadly, sometimes it is the parents from whom a child requires protection.
This blog series was 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.
1 Schleifer v Schleifer, 2009 CarswellOnt 7157.
2 Kingdon v Kramer 2015 ONSC 1193 at para 24.
3 Perino, supra note 12 at para 169.
4 Ibid at para 51
5 Ibid at para 175.
6 Ibid at para 169.
7 Perino, supra note 12 at para 223.
8 Cole v Cole (Litigation Guardian of), 2011 ONSC 4090 at para 5.
9 Ibid at para 6
10 Ibid at para 7.
11 R(MT), supra note 11 at para 13.
12 Ibid at para 24.
13 Ibid at paras 27 and 28