The OCA noted that adult children with disabilities may not 'age out' of parenting orders
Because an adult with Down Syndrome will never “age out” of a court order that bans his father from having unsupervised, in-person parenting time with him, that court order needs to have a built-in review mechanism, the Ontario Court of Appeal ruled Monday.
The court noted that, unlike minor children who are subject to court parenting orders until they become adults, adult children with disabilities may be subject to parenting orders indefinitely.
“While the trial judge made findings of fact that A. wants to and needs to see his father and that A. would never ‘age out’ of the order, she failed to reconcile these two tensions in imposing an order without any built-in review mechanism,” the OCA wrote in its decision.
“The lack of a review mechanism deprives A. of the opportunity to have unsupervised time with the father for the rest of his life, absent a material change in circumstances,” the appellate court said.
According to the OCA’s decision, A.’s parents permanently separated in 2019. His mother launched divorce proceedings against his father the following year, and a court issued multiple orders to divide their shared parenting time.
In 2022, a motion judge rescinded the father’s right to unsupervised, in-person parenting time after he failed to return A. to his mother’s care and violated multiple family orders. In response, the mother filed for a restraining order. She asked the court to further restrict the father’s parenting time by allowing her to approve any unsupervised parenting time between the father and A.
A trial judge gave the mother sole guardianship, decision-making authority, and primary care of A and banned the father from accessing unsupervised, in-person parenting time with A.
The father appealed, arguing that the trial judge issued a final order without assessing A.’s views or preferences. The father also argued that the trial judge’s order was too restrictive and effectively removed him from his child’s life.
The OCA tossed out the father’s first argument, noting that amicus curiae and a psychologist experienced in working with adults with Down Syndrome had already met with A. to determine his parenting arrangement preferences. The evidence from that meeting established that it was hard to ascertain A.’s preferences, and questioning him further would have risked distressing him.
However, the appellate court accepted part of the father’s second argument. While trial courts’ parenting orders should be given “significant deference,” the OCA said the trial judge erred by failing to incorporate “some form of review mechanism into the order.”
The court added, “Given the fractious relationship between the mother and father, an order that gives the mother sole discretion over supervised access for the father risks permanently severing the relationship between A. and his father.”
The OCA said the trial court’s order should be subject to review and that the matter should be remitted for the trial judge to determine how to structure a built-in review mechanism. This review mechanism should allow for the possibility of future unsupervised access for the father, the OCA said, adding that the review should take place within a year.
However, the OCA emphasized that it agreed with the trial judge’s determination that the father should only be given supervised access to A. at this point. The appellate court encouraged the father to improve his behaviour and “take active steps to engage in educational and therapeutic programs to improve his child-focussed parenting skills and conflict resolution skills.”
Lawyers for the mother and the father did not respond to requests for comment. The amicus curiae in the case declined to comment.
