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When courts make parenting orders for minor children, they are usually only subject to the order until they become adults. But this is not necessarily true for some adult children with disabilities who may be subject to parenting orders indefinitely if they never “age out” of the court order. And if an order places restrictions on a parent’s contact and parenting time with the child, there is a risk of permanently depriving the child of a relationship with the parent unless there is a material change in circumstances justifying a change to the parenting order.
Do courts need to incorporate an automatic review mechanism into the order in these cases?
Order Grants Father Unsupervised Parenting Time at Mother’s Discretion
D.F. v. R.W.F. involved an appeal from a final order that denied the father unsupervised parenting time with his adult child. The child was living with Down Syndrome and could not withdraw from his parents’ care. The order provided that the father’s supervised parenting time could only occur at the mother’s discretion. The order was made according to section 16.1 of the Divorce Act, which enables courts to “make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage”. As the Ontario Court of Appeal noted on review, the case raised issues concerning parenting orders for adult children. Because, while minor children are only subject to the order until they reach the age of majority, for some adult children, their disability could mean that they remain “subject to a final parenting order indefinitely”. For the Court, that concern was “amplified” because of the breakdown in the relationship between the parents.
The father argued that the trial judge made an overly restrictive parenting order that permanently removed him from the child’s life since he only had video and telephone parenting time, and supervised access was only available at the mother’s discretion. He claimed there was no basis for ordering supervised access, challenging the judge’s decision to grant supervised parenting time only at the mother’s discretion and without any built-in review mechanism.
The trial judge concluded that the ongoing conflict and animosity between the parties had a significant effect on the child. Accordingly, the trial judge focused on what the parties had done to prevent conflict and protect the child, since the child needed a peaceful future that protected his relationships with both parties. In assessing the evidence and weighing the child’s best interests, the trial judge determined that two factors were critical: the strength of the child’s relationship with both parents and his siblings, according to section 16(3)(b), and each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent under section 16(3)(c) of the Divorce Act. The judge identified some instances of the father’s non-compliance with court orders and some concerns with the father’s parenting. There was also evidence that the father was unwilling to facilitate the child’s relationship with the mother and did not view the mother as his co-parent. Overall, his conduct demonstrated that he lacked understanding of his responsibilities. On review, the Court of Appeal concluded that the evidence supported the trial judge’s findings and rejected the father’s claim that there was no basis for supervision.
Potential for Indefinite Removal of Parenting Time Justified Built-In Review
The Court moved to the second issue and considered whether there should be a review mechanism to alter the terms of the supervision order in the future. Central to the father’s argument was the fact that the trial judge did not recognize that the child would never “age out” of the order and that it would remain in place with no chance for review. The father further claimed that the appeal should be allowed and that the trial judge’s parenting order should be replaced with an order that enabled in-person unsupervised parenting time. However, the Court of Appeal did not accept the claim that the trial judge ignored that the child would never age out of the order. Instead, the trial judge specifically referred to that fact, finding that the child would “always remain in a child-like state” and that the order “may remain for a very long time because” the child would not develop cognitively to the point where he could “leave home and live on their own”.
Nevertheless, the court accepted that including a built-in review mechanism should have been considered in this case. The court explained that the “potential for the indefinite if not permanent removal of all unsupervised parenting time undermines the relationship” between the child and the father and “does not promote the principle of maximum contact with both parents, consistent with the best interests of the child”. While the trial judge determined that the child wanted to see his father and would never “age out” of the order, the judge “failed to reconcile these two tensions in imposing an order without any built-in review mechanism”. The Court of Appeal concluded that, without a review mechanism, the child was deprived of the opportunity to have unsupervised parenting time with the father for the rest of his life, unless there was a material change in circumstances, where the order could be revisited. The Court explained that a built-in review mechanism was “more consistent with the maximum contact principle” and the child’s best interests. This also better meets section 16(6) of the Divorce Act, which states that when allocating parenting time, courts shall “give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child”.
Built-In Review Mechanism Helps Strike a Balance Between Parenting Concerns
The Court acknowledged that the maximum contact principle is not absolute and looked to Barendregt v. Grebliunas. That case emphasized that the maximum contact principle does not create a presumption in favour of shared parenting arrangements or equal parenting time, and that the focus remains on the child’s best interests. But in this case, where an adult child would remain subject to the order indefinitely, the Court felt a built-in review mechanism should have been considered, as that “strikes a better balance between competing concerns”. Ultimately, that would enable the father to seek to vary the supervision terms and have unsupervised parenting time, if he could establish that the changes would be in the child’s interests. The Court sent the issue back to the trial judge to decide how to structure a built-in review of the parenting order, which would enable future changes to the terms of supervised access. The Court suggested the review should take place within 12 months. After that, the trial judge had discretion to decide whether further periodic reviews were warranted or whether a party would need to establish a material change in circumstances to vary the order. But for the time being, the father would have unsupervised access at the mother’s discretion, ensuring that the parents’ conflict would be set aside, and the child’s best interests in having a relationship with the father could be met.
Windsor Family Lawyers Helping You Navigate Complex Parenting Orders for Adult Children with Disabilities
This recent case highlights the unique importance of parenting issues for adult children with disabilities, suggesting that new considerations arise when a restrictive order may limit contact indefinitely. When navigating these complex legal issues, it’s essential to have experienced counsel. The Johnson Miller Family Lawyers team understands the unique challenges that arise and takes a strategic, child-focused approach to help you navigate these sensitive matters. This includes advocating for review mechanisms that protect your child’s relationship with both parents. To discuss your case or arrange a consultation with our family law team, please complete our online questionnaire or contact us at 519.973.1500.
