D.F. v. R.W.F.: Parenting Orders for Disabled Adult Children

The recent Court of Appeal decision in D.F. v. R.W.F., 2025 ONCA 129 (Heard Oct 31 2024 ; reasons released Feb 24 2025) offers insights into crafting parenting orders for adult children with disabilities. This case involves an adult son, A., who has Down Syndrome and remains unable to withdraw from parental charge, highlighting the unique challenges in applying the Divorce Act to such circumstances.

Introduction

D.F. v. R.W.F. addresses a high-conflict dispute between the mother (D.F.) and father (R.W.F.) over parenting time with their adult son, A. The case involved criminal charges against the father for breaching court orders, findings of contempt, and repeated “overholding” incidents where the father refused to return A. to the mother’s care. The trial judge denied the father unsupervised access and left supervised visits to the mother’s discretion, prompting an appeal. The Court of Appeal partially allowed the appeal, emphasizing the need for procedural fairness, consideration of the adult child’s views, and flexible parenting orders with built-in review mechanisms.

Legal Framework

Under s. 2(1) of the Divorce Act, a “child of the marriage” includes adult children unable to withdraw from parental charge due to disability. For these individuals, parenting orders can be made under s. 16.1, guided by:

• Best Interests of the Child (s. 16(3)): The primary consideration in all parenting decisions
• Maximum Contact Principle (s. 16(6)): Courts should maximize contact with each parent, consistent with the child’s best interests (tempered by Barendregt v. Grebliunas, 2022 SCC 22)

The decision in J.F.R. v. K.L.L., 2024 ONCA 520, further clarifies that adult children are presumed capable of decision-making unless rebutted by context-specific evidence. This presumption shapes how we approach capacity and participation in these cases.

Practice Consideration: Parties cannot simply agree that an adult child lacks capacity. The court has a mandatory gatekeeping role and must independently assess whether the adult meets the s. 2(1)(b) definition for the specific orders sought.

Issues on Appeal

The father raised two key issues:

1. A.’s Views and Preferences

The father argued that the trial judge failed to ascertain A.’s views, a requirement underscored in J.F.R. On appeal, fresh evidence from Dr. Jane Heintz Grove (a psychologist specializing in developmental disabilities) and amicus curiae showed that:

• A.’s speech was mostly mumbling with occasional clear words;
• Direct questions yielded limited responses;
• A. expressed missing his father, but context was unclear; and
• Further attempts to probe would cause frustration or distress.

The Court accepted this as sufficient to rebut the presumption of capacity in this context, satisfying procedural requirements.

2. Overly Restrictive Order

The trial order denied unsupervised access and gave the mother sole discretion over supervised visits, with no review mechanism. The Court found this problematic given:

• A. will never “age out” of the order due to his disability;
• The order could last 35+ years without possibility of review;
• The complete discretion given to the mother in a high-conflict case risked permanently severing the father-child relationship; and
• The lack of review violated the maximum contact principle.

While supervised access was upheld based on the father’s history of breaches, the Court mandated a review process to reassess arrangements over time. Specifically, the panel sent the file back to Justice Swartz to craft a review, to occur within 12 months, without requiring proof of material change in circumstances.

Why Supervised Access Was Justified

The Court upheld supervised access based on compelling evidence:

• Multiple breaches of court orders requiring police enforcement;
• Criminal charges under s. 127 of the Criminal Code for disobeying court orders;
• Repeated “overholding” incidents despite warnings;
• Sending A. home alone on the bus without the mother’s knowledge (creating “very big protection concerns”);
• Failing to protect A. from parental conflict (A. was observed “cowering against the car door” during an exchange); and
• The father’s view of the mother as “his enemy, not his co-parent”.

Procedural Safeguards

Drawing from J.F.R., the Court outlined essential safeguards:

1. Notice and Representation: Adult children must be notified and provided independent legal representation:
2. Context-Specific Capacity Assessments: Evidence must be tailored to the specific order sought. Generic assessments are insufficient: and
3. Court’s Gatekeeping Role: Judges must independently verify the adult’s status even when parties agree.

What Constitutes Context-Specific Evidence?

When assessing an adult’s capacity to make decisions about parenting arrangements, courts require evidence directly related to that specific ability, not general cognitive functioning:

• Acceptable: Assessment focused on ability to express preferences about living arrangements, visitation schedules, or relationship choices;
• Insufficient: Generic cognitive assessments, ODSP eligibility reports, or general disability diagnoses; and
• Best Practice: Retain experts experienced in communicating with adults with the specific disability early in litigation.

Key Takeaways for Family Lawyers

1. Tailor Orders to Long-Term Needs

Parenting orders for adult children with disabilities must account for their indefinite duration. Consider including:

• Graduated steps toward increased access;
• Specific milestones for reassessment; and
• Clear criteria for modifying supervision requirements.

2. Sample Review Provision

“This order shall be reviewed by the court in 12 months without requiring proof of material change in circumstances. At the review, the court may consider: (a) the parties’ compliance with existing orders; (b) participation in recommended therapeutic programs; (c) evidence of improved co-parenting communication; and (d) [A.]’s current needs and preferences to the extent they can be ascertained. Subsequent reviews may be ordered at the court’s discretion.”

3. Strategic Considerations

For parents seeking to improve their position at review:

• Engage in child-focused parenting programs;
• Complete conflict resolution training;
• Document positive interactions during supervised visits;
• Frame supervision as protective of the child rather than punitive; and
• Demonstrate insight into past problematic behaviors.

For parents with primary care:

• Document all breaches meticulously;
• Propose graduated supervision plans showing good faith;
• Focus on the child’s need for stability and protection; and
• Avoid using discretion in ways that could be seen as alienating.

4. Cost Implications

The Court made no costs order on appeal due to mixed success and the novelty of the issues. This signals judicial recognition that these cases involve complex, evolving law where traditional costs approaches may not apply. Consider proposing creative costs arrangements that encourage settlement while protecting vulnerable parties.

Practical Implementation Checklist

• _  Obtain independent legal representation for the adult child early
• _  Commission context-specific capacity assessments (not generic reports)
•  _  Include graduated review mechanisms in proposed orders
• _  Document attempts to ascertain the adult’s views, even if unsuccessful
• _  Frame all proposals around the adult’s best interests, not parental rights
• _  Consider the 20-40+ year lifespan of these orders in all negotiations
• _  Build in flexibility for positive change while maintaining necessary protections

Conclusion

D.F. v. R.W.F. provides a comprehensive framework for handling parenting disputes involving adult children with disabilities. It reminds us to approach these cases with nuance, ensuring orders are protective yet flexible, indefinite yet reviewable. The decision balances the need to protect vulnerable adults from high-conflict situations while preserving their important family relationships. As family lawyers, implementing these principles will help us better serve all family members while respecting the unique challenges these cases present.

The Court’s emphasis on procedural fairness and built-in review mechanisms reflects an evolving understanding that even the most challenging family dynamics can improve over time. By crafting orders that protect while leaving room for positive change, we can help families navigate these complex situations with dignity and hope.

Let’s continue to elevate the practice of family law in Ontario!

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.