COURT OF APPEAL FOR ONTARIO
CITATION: D.F. v. R.W.F., 2025 ONCA 129
DATE: 20250224
DOCKET: COA-23-CV-0247
Lauwers, Brown and Coroza JJ.A.
BETWEEN
D.F.
Applicant (Respondent)
and
R.W.F.
Respondent (Appellant)
Gordon S. Campbell, for the appellant
Jennifer Blackwood, for the respondent
Vasu Naik, appearing as amicus curiae
Heard: October 31, 2024
On appeal from the order of Justice Deborah Swartz of the Superior Court of Justice, dated February 6, 2023.
Coroza J.A.:
I. INTRODUCTION
[1] This is an appeal from a final order denying the appellant (the "father") unsupervised parenting time with his adult child who lives with Down Syndrome and is unable to withdraw from parental charge. The order directs that any supervised parenting time with the father may occur only at the discretion of the respondent (the "mother").
[2] The order is made pursuant to s. 16.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (the "Act"), which permits the court to "make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage". The Act defines "child of the marriage" in s. 2(1) to include someone who at the material time, "is the age of majority or over and under [the spouses'] charge but unable, by reason of illness, disability, or other cause, to withdraw from their charge or to obtain the necessaries of life" (emphasis added).
[3] The appeal raises an issue specific to adult children subject to parenting orders: unlike minor children who are only subject to court-imposed orders until they reach the age of majority, absent a material change in circumstances, an adult child of the marriage by reason of disability remains subject to a final parenting order indefinitely. In this case, the concern is amplified by the complete break-down in the relationship between the parents and a final order that gives the mother sole discretion to permit any supervised parenting time with the father.
II. BACKGROUND
[4] The parties were married in 1983. They temporarily separated for several months between 2016 and 2017 and permanently separated in 2019. They have seven children – the youngest of whom is a son ("A.") who was 22 years old at the time of trial.
[5] In September 2020, the mother commenced divorce proceedings against the father and sought orders relating to decision-making and parenting time with respect to A., a restraining order, child support, spousal support, equalization of property, and exclusive possession of the matrimonial home. Temporary parenting orders were put in place that provided for various degrees of shared parenting time.
[6] I pause here to note that the parties agreed that it was appropriate for the court to make a parenting order for A. under s. 16.1 of the Act since they agreed that A. met the definition of "child of the marriage" as defined above. However, as I will explain, their agreement on this point was insufficient for the court to presume incapacity for the purpose of imposing parenting orders. As this court held recently in J.F.R. v. K.L.L., 2024 ONCA 520, at para. 34, an adult child of the marriage is presumed capable of decision making and the presumption of capacity can only be rebutted on sufficient evidence. That said, the fresh evidence on appeal confirms that it was appropriate for the trial court to make a parenting order under s. 16.1 in A.'s case.
[7] This situation is, as the trial judge aptly put it, a "long-standing and high conflict matter". Prior to trial, the father breached multiple temporary family orders by not returning A. to the mother's care. As a result, the father lost in-person unsupervised parenting time with A. in May 2022 when a motion judge imposed a temporary order ending in-person parenting time between the father and A. and instead set down a schedule for video and phone contact during the week. Consequently, the mother amended her claim to add a restraining order and requested a more restrictive parenting term that would give her the discretion to approve of any unsupervised parenting time between A. and the father.
[8] The parties were able to resolve issues relating to spousal support and property before trial. The issues before the trial judge were: (i) parenting time; (ii) decision-making; (iii) the inclusion of a police enforcement clause in any order made; (iv) child support and extraordinary expenses as per s. 7 of the Child Support Guidelines, O. Reg 391/97; and (v) a restraining order sought by the mother.
[9] The trial judge awarded the mother sole decision-making authority, guardianship, and primary care of A. The schedule of video and telephone parenting time for the father with A. was continued in accordance with the May 2022 temporary order. However, the trial judge also made the following order:
There shall be no unsupervised, in person, parenting time between [A.] and the [father]. Supervised in person parenting time may occur, in the discretion of the [mother], including if and when such supervised contact might occur, and who would supervise. The cost of any supervised parenting time service provider shall be considered a section 7 expense and shall be shared between the parties on a 50/50 basis.
[10] In making her order, the trial judge determined that a Voice of the Child report was not necessary. These reports are not provided for children under the age of seven and given her finding about A.'s cognitive age, the trial judge held that she would not have ordered a report.
[11] The trial judge ordered the father to pay costs of $25,000 to the mother.
III. ISSUES
[12] The only issue on this appeal is the trial judge's orders in relation to parenting time.
[13] The father makes two submissions on appeal. First, he argues that the trial judge improperly made a final order without ascertaining A.'s views or preferences. Second, he contends that the trial judge erred by imposing a parenting order that is too restrictive and effectively removes him from A.'s life.
[14] The father's first submission is supported by this court's decision in J.F.R., which was decided after the trial in this case. In J.F.R., Roberts J.A., speaking for a unanimous court, held at para. 34 that an adult child of the marriage is presumed capable of decision-making and the presumption of capacity can only be rebutted on sufficient evidence. Since capacity is context-specific, the phrase "withdrawal from parental charge" in s. 2(1)(b) of the Act should be too. The trial judge in this case did not have the benefit of this court's decision in J.F.R. at the time of trial. However, once the matter arrived at this court, the case was case-managed and fresh evidence was obtained in an attempt to address whether A.'s views and preferences on parenting arrangements could be ascertained and to respect the presumption of capacity established in J.F.R.
[15] In my view, the fresh evidence on appeal is sufficient to dispose of the father's concern. I would not allow the appeal on this basis.
[16] I do, however, accept part of the father's second submission. He argues that the trial judge erred by prohibiting unsupervised contact with A. and leaving supervised contact only at the sole discretion of the mother with no built-in review mechanism; the father points out that A. will never "age out" of the order and the order will last for the rest of A.'s life.
[17] Trial judges' decisions on parenting orders are entitled to significant deference on appeal and this court should not micromanage specific terms imposed by a parenting order. In my view the trial judge erred in not building some form of review mechanism into the order because it might effectively and permanently end the father's in-person relationship with A. 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.
[18] I am satisfied that appellate intervention is required to honour the maximum contact principle and leave room for the father to put his conflict with his spouse to the side and prioritize his relationship with A. Accordingly, I would remit the matter to the trial judge to craft an order that alters the parenting time to allow the father, to seek an order permitting him to exercise unsupervised parenting time after a review. This review is to be scheduled to take place within 12 months of this court's decision without the requirement that the father demonstrate a material change of circumstances. I would leave it to the trial judge to structure any subsequent reviews of the order at her discretion.
IV. ANALYSIS
[19] The trial judge delivered comprehensive reasons for decision.
A. Standard of Review
[20] I start with the standard of review. This court "must approach the appeal with considerable respect for the task facing a trial judge in difficult family law cases, especially those involving custody and access issues": C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, at para. 4; see also N.S. v. R.M., 2019 ONCA 685, at para. 4. Considerable deference is owed because trial judges are in the best position to determine a child's best interest. To justify interference, an appellate court must be satisfied that the trial judge erred in law, made a palpable and overriding factual error, or unreasonably exercised their discretion: Ursic v. Ursic (2006), 2006 CanLII 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont. C.A.), at paras. 18-19.
B. The Issues
(1) Issue 1: Did the trial judge err by failing to ascertain A.'s views and preferences before making the final order?
[21] As I have already indicated above, the requirement on the court to attempt to ascertain A.'s views and preferences was sufficiently addressed by the fresh evidence from Dr. Jane Heintz Grove and amicus curiae ("amicus") Vasu Naik.
[22] The appeal was case-managed at this court. Roberts J.A., who also authored this court's decision in J.F.R., appointed amicus on September 24, 2024, to assist with the case. She ordered that amicus, along with a psychologist who was experienced in interacting with adults with Down Syndrome, meet with A. The purpose of the meeting was to see whether A. could be given notice of the proceedings and to attempt to ascertain A.'s views or preferences on parenting arrangements. Roberts J.A. also directed that amicus prepare a letter describing the meeting for the appeal panel's consideration.
[23] Evidence about the meeting was put before the panel in the form of a sworn affidavit of Dr. Heintz Grove.
[24] Dr. Grove is a clinical psychologist specializing in Clinical Developmental Psychology. She has been employed as a Psychologist at the Children's Hospital of Eastern Ontario ("CHEO") since February 2000 in a diagnostic service that focusses on clarifying developmental diagnoses for children and youth up to the age of 18. She has expertise in interviewing or assessing clients (children, youth or adults/parents of children and youth) with approaches to allow for the interviewee to express their needs, concerns, wishes, and hopes. She is also experienced in working with people with Down Syndrome.
[25] Dr. Grove's affidavit, in which she reports on her meeting with A., is current and relevant to A.'s best interests. There is no dispute that Dr Grove's affidavit is admissible fresh evidence. It is important for this court to have the most current information possible where that information is directly relevant to the child's best interests: A.C.V.P. v. A.M.P., 2022 ONCA 283, at para. 16.
[26] Dr. Grove and Ms. Naik met with A. in Ms. Naik's office on September 30, 2024. The report of this meeting explained that A.'s speech clarity was poor and mainly consisted of mumbling, save for some clearly articulated words or short phrases. The conversation was assisted by photographs of past activities brought by the mother (who was not present at the meeting, save for the first five minutes). A. was asked "direct questions in terms of his home, parents and his views and wishes in this regard" since open-ended conversations were of limited assistance.
[27] A. spoke about his father and conveyed sad emotions, but the authors of the letter could not relate this emotional tone to his current living circumstances or put it into context. Dr. Heintz Grove concluded that A.'s wishes and preferences were difficult to comprehend:
Dr. Heintz Grove's impression is that while [A.] can express some views and wishes, it is difficult to fully understand/comprehend his verbalizations to a comprehensive degree.
[28] Based on some "clearly understood phrases", the authors of the letter were able to understand that A. "missed his father" and "appeared to fondly reflect on time spent with him." The authors noted, however, that "this was in response to directed and marginally leading questions about whether he wished to live with and/or see his father."
[29] Importantly, the authors concluded that "[g]iven [A.'s] situation, it would be frustrating or, perhaps even distressing for him if either Dr. Heintz Grove or Ms. Naik attempted to review any of the materials filed in these or other legal proceedings." The authors did not think additional meetings would "sufficiently strengthen clarity and understanding of his views and wishes."
[30] Based on the report by Dr. Heintz Grove and Ms. Naik, I am satisfied that the requirement to attempt to ascertain A.'s views and preferences and to rebut the presumption of capacity has been met. This fresh evidence provides a full answer to the father's submission that the trial judge improperly made a final order without ascertaining A.'s views or preferences. While the trial judge did not have the benefit of the direction in J.F.R., the fresh evidence establishes that A.'s views and preferences in relation to parenting orders could not easily be ascertained and that to probe the issue further with him would have risked frustrating or distressing him. It was accordingly appropriate for the court to make a parenting order in this case.
[31] Therefore, I would not allow the appeal on this basis.
(2) Issue 2: Did the trial judge err by imposing a restrictive parenting order that removes the father from A.'s life?
[32] The father argues that the trial judge erred by imposing an overly restrictive parenting order that permanently removes him from A.'s life by allowing only video and telephone parenting time and making supervised access available solely at the mother's discretion. He makes two submissions. First, he submits that there was no basis in the record for supervised access. This submission has no merit.
[33] Second, the father challenges the decision of the trial judge to terminate in-person unsupervised parenting for him and to leave the option of supervised parenting time at the mother's sole discretion without a built-in review mechanism. For the reasons below, I would allow the appeal in part based only on this second ground.
(a) Does the record support supervised access?
[34] The trial judge's reasons begin with an emphasis on what is best for A. She finds that the ongoing high level of conflict and animosity between the parties has had a significant effect on A. She states that it is the court's responsibility to look at "[w]hat [the parties] have done to prevent" conflict and "protect" A. from conflict, because what A. needs is a peaceful future that protects his relationships with both parties as well as with his siblings.
[35] The trial judge faced a very difficult task. She carefully assessed the evidence and attempted to craft an order that, in her view, provided some finality to the parties in this highly litigious, high-conflict case.
[36] In her reasons for decision, the trial judge correctly sets out several provisions of the Act that appropriately guide her analysis. Two factors crucial to her determinations of A.'s best interests are: the nature and strength of A.'s relationship with each of his parents and his siblings (s. 16(3)(b)), and each parent's willingness to support the development and maintenance of A.'s relationship with the other parent (s. 16(3)(c)).
[37] The trial judge finds that A.'s connection with his siblings is "absolutely crucial to him" and that the mother facilitates this connection. In contrast, the father's lack of willingness to facilitate A.'s relationship with the mother is a "substantial basis" for the trial judge's ultimate decision. She finds that the father "made it very clear" to the court that the mother is "his enemy, not his co-parent".
[38] The history of the proceeding relating to parenting issues supports the trial judge's decision to impose supervised access only. During the parties' temporary separation, the parties shared parenting time on an informal basis. After the parties' permanent separation, there were seven interim parenting motions brought in a thirteen-month period. In January 2022, the mother was temporarily awarded primary residence and sole decision-making for A., with scheduled visits for the father. The order included a police enforcement clause.
[39] The father failed to return A. to the mother's care on several occasions. He was criminally charged with disobeying an order of the court contrary to s. 127 of the Criminal Code, R.S.C. 1985, c. C-46, and found in contempt for failing to comply with family court orders.
[40] In March 2022, a motion judge ordered that any further non-compliance would result in termination of the father's in-person parenting time. The father continued to "overhold" A. (a term used to refer to a party refusing to return a child back into the custody of the other parent, contrary to court orders). In May 2022, the father's in-person parenting time was terminated. In its place, the motion judge imposed a schedule of video and phone contact between the father and A. Following these incidents, the mother amended her claim to seek a restraining order and a more restrictive parenting term order that gave her sole discretion to allow parenting time between A. and the father.
[41] In her reasons, the trial judge expresses concern about the father's evidence with respect to both his credibility and the lack of evidentiary support for his claims against the mother. The trial judge finds that the father had "little insight" into not only his continued role in the conflict between the parties, but also his responsibility to A. Two examples are highlighted in the reasons to support this finding.
[42] The first example was a situation wherein A. was in the father's care and needed to retrieve some personal belongings from the mother's house to complete his homework. Instead of communicating with the mother, the father went with A. to the mother's home unannounced. The mother was not home, and A. did not have the code necessary to enter the house. The father claimed that the mother was "at fault" for not providing A. the code "to his own home".
[43] The trial judge rejected the negative inference invited by the father. She held that it was not a concern that a "cognitively age three or four [year-old] child" did not have a key to their home, given that A. would never be entering the home on his own. Further, it was concerning that the father expected to be "able to open the door and walk into [the mother's] home" with A. for any purpose.
[44] The second example referred to by the trial judge was an incident in which A. was sent by the father to the mother's home on the bus without the mother's knowledge. The trial judge found that there would have been "very big protection concerns" if the situation had been brought to the child protection authorities given that A. would be dropped off at the roadside without the mother's knowledge. The trial judge held that the situation was "unacceptable" and demonstrated "inadequate parenting".
[45] In addition to the above examples, the trial judge referred to evidence of A.'s difficulties during an exchange when he was supposed to go from the father's care to the mother's care:
It's very concerning to the Court when I see in evidence the example of [A.] cowering against the car door, not wanting to go to [the mother's], and [the father] standing back and waiting for it to unfold. Waiting for everyone else to notice that [A.] doesn't want to go. Waiting for everyone else to watch the pain and difficulty this child's experiencing, and he doesn't intervene.
[46] The father's conduct in this situation demonstrated a lack of understanding about his responsibilities to foster and protect A.'s relationships with the mother and his siblings.
[47] Based on these examples, among others, the findings of the trial judge are well-supported in the record. The trial judge appropriately considered the evidence of the father's inability to follow court orders and of his lack of insight into A.'s care. In particular, she appropriately drew a negative inference from examples of the father failing to protect A. from parental conflict in the face of A.'s "anxiety and upset".
[48] Accordingly, I reject the submission that there was no basis for a supervised access order, as clearly there was such a basis.
(b) Should there be a review mechanism for altering the terms of the supervision order and/or permitting unsupervised parenting time in the future?
[49] The father argues that the trial judge did not account for the fact that A. will never "age out" of the order and that if A. lives to be over 60 years of age, the parenting order will be applicable for over 35 years with no chance for review. The father submits that the appeal should be allowed and that this court should replace the parenting order made by the trial judge with an order that permits either 50-50 or 30-70 in-person unsupervised parenting time with A. as between the parents.
[50] As described above, the trial judge was not persuaded on the evidence that the father would facilitate A.'s "crucial relationships" with his other family members. For this reason, as well as the history of breaches of family court orders by the father, she concluded that unsupervised parenting time with the father would not be in A.'s best interests. The trial judge concluded:
Unsupervised in-person parenting time will not shield [A.] from this conflict and upheaval. Supervision of [the father's] in-person time with [A.] will ensure that he can transition easily and safely between his time with his mom and siblings, and his dad. Nothing else will do on the evidence before the Court this week. It is clear that [A.] wants to and needs to see his dad. A court order is needed to protect this relationship and ensure that contact may continue. [Emphasis added.]
[51] I do not accept the assertion that the trial judge ignored the fact that A. would never "age out" of the order. In her reasons, the trial judge specifically referred to this fact:
[The father's] quite right when he says things are different for [A.], he won't reach cognitively the age he is now. He will be always a child; he will remain in a child-like state. He may learn, I accept that evidence, but he will always remain in a child-like state, requiring all of you to help him, and that's why this case is so difficult, because the order the Court's going to make may remain for a very long time because this young person does not turn into a 14- or 15- or 16-year-old who can choose to live - leave home and live on their own. He needs all of you in a safe and stable way. A conflict-free peaceful way. This young person needs peace, perhaps more than other children of this age. [Emphasis added.]
[52] At the same time, I am persuaded that the possibility of a built-in review mechanism should have been but was not specifically considered in the circumstances of the case. The potential for the indefinite if not permanent removal of all unsupervised parenting time undermines the relationship that A. has with the father and does not promote the principle of maximum contact with both parents, consistent with the best interests of the child.
[53] 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 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. In my view, a built-in review mechanism would be more consistent with the maximum contact principle in line with A.'s best interests enshrined in s. 16(6) of the Act:
16(6) In allocating parenting time, the court 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. [Emphasis added.]
[54] I recognize that the maximum contact principle is not absolute: Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at paras. 133-35. At the same time, in the circumstances of this case where an adult child will remain subject to the order indefinitely, a built-in review mechanism should have been considered. In my view, it strikes a better balance between competing concerns.
[55] As a result, I would give effect to this ground of appeal.
[56] Accordingly, I would order that the parenting access order be subject to a review. This would permit the father an opportunity to seek to vary the terms of supervision or introduce unsupervised parenting time if he can establish that such changes would be in A's best interests. Supervised access will be in the mother's sole discretion for the time being, which helps ensure that the mother can continue to put her own conflict with the father aside and prioritize A.'s best interests in promoting a relationship with the father, consistent with A.'s best interests overall.
(3) Additional Issues
[57] While amicus does not take a position on the facts of the appeal, they go further and make helpful submissions about the appropriate governing framework where s. 2(1)(b) of the Act is invoked to seek a parenting order for an adult child. This proposed framework responds to this court's clear direction in J.F.R. that "withdrawal from parental charge" for the purpose of making a parenting order under the Act should be assessed in relation to the particular order sought. A person might not be able to withdraw from parental charge for the purposes of financial support or medical decisions but might well be able to make decisions about which parent(s) they spend time with and when: J.F.R., at para. 35.
[58] Given my decision to resolve this appeal on very narrow grounds, it is not necessary to exhaustively deal with amicus' submissions to the court regarding the procedure to be followed in parenting disputes involving adult children who are unable to withdraw from parental care. However, it is important to remind litigants and trial judges that this court in J.F.R. has outlined the approach that must be followed in determining whether an adult child is a "child of the marriage" pursuant to s. 2(1)(b) of the Act for the purpose of making parenting orders for the child. Three points underpin that approach.
[59] First, such orders should never be made without input from, participation of, or independent legal representation for the adult child. In this case, the trial judge did not have the benefit of J.F.R. and the parties appeared to have simply agreed that A. was a "child of the marriage" without his input. J.F.R. highlights that parties cannot agree to apply the definition of a "child of the marriage" to their adult child without input from the adult child and court oversight. If parties come to such an agreement, the court must take on a "gatekeeping role" by inquiring into the adult child's position on the issue.
[60] Second, there must be specific evidence that speaks to the decision-making capacity of an adult child who is unable to withdraw from parental care in relation to the particular order sought. As previously mentioned, this court explained in J.F.R., at para. 35, that an individual with limited abilities might still be able to decide whom they want to see and when. Generic assessment reports obtained for unrelated purposes cannot be relied upon for the purpose of determining whether the adult child remains a "child of the marriage" as contemplated under s. 2(1)(b) of the Act or for entertaining claims for parenting orders regarding the adult child.
[61] Third, in the absence of a prior capacity determination relevant to the orders sought under the Act, an adult whose capacity is called into question and is potentially affected by the order should have the following procedural safeguards:
Notice/service of the pleadings and materials upon the alleged incapable person; and
Independent counsel for the alleged incapable person because legal representation is key to the adult child being on notice of the application.
[62] In this case, Dr. Heintz Grove and Ms. Naik's meeting with A. and their impressions that, "additional meetings would not sufficiently strengthen clarity and understanding of [A.'s] views and wishes" as well as their impressions that "it would be frustrating or, perhaps even distressing for him if either Dr. Heintz Grove or Ms. Naik attempted to review any of the materials filed in these or other legal proceedings", satisfy the court that it is appropriate to make parenting orders for A.
V. DISPOSITION
[63] For these reasons, I would allow the appeal in part. I would remit the matter of the parenting orders back to the trial judge to determine how best to structure a built-in review of the orders that would allow for changes to the terms of supervised access in the future, including the possibility of future unsupervised access for the father. The review should take place no later than 12 months after the release of these reasons. Thereafter, it will be for the trial judge, at her discretion, to determine whether it is essential that the parenting orders contain further periodic reviews or whether a party will have to establish a material change in circumstances to vary the order. However, it must be remembered that any determination of whether there are changed circumstances should be sensitive to the fact that these parenting orders involve an adult child who cannot withdraw from parental charge and age out of the order.
[64] Given my conclusion that the trial judge's determination that supervised access was appropriate, the father would have to demonstrate some improvement in his behaviour. I would encourage the father to take active steps to engage in educational and therapeutic programs to improve his child-focussed parenting skills and conflict resolution skills.
[65] At the conclusion of the hearing of the appeal, the parties made submissions as to costs of the appeal. Given the mixed success on appeal, and the novelty of the issues raised, I would make no order as to costs.
[66] I would also make no order interfering with the costs of the proceedings below. The mother was the substantially successful party at trial, including on the issue of parenting time. The trial judge's costs order reflected the nature of the issues, the various offers to settle, the parties' conduct during the litigation, and the parties' financial circumstances. Based on her discretionary balancing of these factors, I see no reason to interfere with the costs awarded by the trial judge.
Released: February 24, 2025 "P.D.L."
"S. Coroza J.A."
"I agree. P. Lauwers J.A."
"I agree. David Brown J.A."