Court File and Parties

COURT FILE NO.: FC-19-775 DATE: 2024-07-29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carole Allvey-Greiss, Applicant AND Hany Greiss, Respondent

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Ronan Blake, Counsel for the Applicant Cecil J. Lyon, Counsel for the Respondent

HEARD: July 9, 2024

Reasons for Decision

M. Smith J

[1] The Applicant Carole Allvey-Greiss (“Mother”) brings a motion seeking several orders against the Respondent Hany Greiss (“Father”). At the outset of the motion, the parties advised that all issues were resolved except two. First, the Mother seeks a parenting order that the Father parent their adult child, Kevin, who has special needs, on alternate weekends from Friday at 5:00pm to Sunday at 5:00pm. Second, if the Father is unable to do so, the Mother asks that the Father contribute his share of the costs for respite care.

[2] While the Father is prepared to parent his adult child each week on Tuesday and Thursday evenings, he says that this motion cannot proceed until such time as Kevin has been heard. The Father relies upon the most recent Court of Appeal decision, J.F.R. v. K.L.L., 2024 ONCA 520.

[3] For reasons that follow, the motion is adjourned.

Overview

[4] The parties were married for 28 years, ending on December 9, 2015.

[5] Kevin has severe Autism Spectrum Disorder and special needs. He is communicative and incapable of caring for himself. He has no sense of safety, has meltdowns, suffers from anxiety, and panics when there is a change in his routine.

[6] The parties had agreed that the Mother would care for Kevin on a full-time basis. She has held this role for many years during the relationship and she continues to provide daily care to Kevin.

[7] From 2015 to 2022, the Father exercised parenting time with Kevin. During those last few years, the Father would pick up Kevin on Saturday morning and return him on Sunday afternoon.

[8] Since 2022, the Father has not seen Kevin. There is a disagreement between the parties as to the reasons for this breakdown in the relationship.

[9] The Father is prepared to exercise parenting time with Kevin during the week but not overnight during the weekends. The Mother’s proposed parenting schedule is irreconcilable with his work schedule and his health related issues.

[10] The Mother is burnt out. She needs a brief period of relief and rest. She needs the Father’s assistance in this regard. If the Father is unwilling or incapable of exercising his parenting time with Kevin overnight during the weekends, the Mother wishes to hire a respite care provider who would be responsible for Kevin’s care during the periods in which the Father should be exercising his parenting time.

[11] Kevin has not been consulted regarding the Mother’s requests. His views and preferences as to who he sees and when have not been ascertained. He has previously been assessed by the Developmental Services of Ontario Eastern Region but none of the assessments deal with the matter at issue. No guardianship application has been commenced.

Issue

[12] The main issue for this motion is to determine if Kevin should be afforded an opportunity to be present at this motion and have his voice heard with respect to the parenting and child support orders being sought by the Mother.

Analysis

[13] J.F.R. v. K.L.L. deals with parenting orders and the autonomy of adults living with disabilities who remain under parental charge. The motion judge ordered a shared parenting schedule on the adult child, but the Court of Appeal set aside the order. The adult child, presumed to be capable, did not have an opportunity to be heard on a decision that materially affected his interests. The adult child had a right to be heard and he was not afforded the presumption of capacity to make his own decisions. The Court of Appeal set out the principles to be applied in cases dealing with parenting orders made under s. 16.1 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) (the “Act”) and adult children of the marriage. The following is a summary of the principles to consider:

a. Has the child reached the age of majority? If yes, then the child is no longer presumed a “child of the marriage” under s. 2(1)(b) of the Act, meaning that the adult child is presumed to be a capable adult in the proceedings and is presumed to be capable of decision-making. b. Who is alleging that an adult child is a “child of the marriage” under s. 2(1)(b) of the Act? The onus of proof rests with the person who alleges that the adult child is unable to withdraw from the parental charge or obtain the necessaries of life. The burden of proof required to displace the common law presumption of capacity is high. c. Has the adult child’s capacity for personal care and property been determined under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”)? Is there a guardianship order in place under the SDA? d. Is there a formal assessment of the adult child’s decision-making capacity? If yes, is the capacity assessment relevant to the parenting order being sought under the Act, recognizing that “determinations of legal capacity are domain or decision-specific”. e. If the adult child’s capacity relevant to the parenting order sought under the Act has not been obtained, has the adult child been served with the notice of proceeding and been given an opportunity to be heard? f. Before any parenting order is made under s. 16.1 of the Act, if there is a question of capacity of an adult child, has the court formally made a determination regarding the adult child’s capacity with respect to the matter that is before the court?

[14] In the case before me, the Mother is seeking both a parenting and child support order. First, she is seeking a parenting order pursuant to s. 16.1 of the Act that the Father exercise his parenting time, overnight, every second weekend. Second, if the Father is unable to exercise his parenting time on alternate weekends, she is seeking a child support order pursuant to s. 15.1 of the Act, and more specifically a s. 7 expense under the Federal Child Support Guidelines, SOR/97-175, that the Father contribute his share of the costs of respite care.

[15] Regarding the parenting order sought, it falls squarely within the four corners of the J.F.R. v. K.L.L. decision. Kevin has reached the age of majority. It is undisputed that Kevin cannot live independently but it has not yet been established that Kevin is unable to withdraw from parental charge in relation to decisions regarding a parenting arrangement. There is no evidence before me regarding Kevin’s decision-making capacity. He has not been declared incapable of making personal care or property decisions, nor has a guardianship order been made under the SDA. In the absence of a capacity determination relevant to the parenting order being sought in this motion, Kevin is deemed to be capable of voicing his views and preferences, and he should be afforded the opportunity to fully participate in the hearing regarding a parenting arrangement. Consequently, the motion cannot proceed.

[16] When a party is seeking a parenting order in similar circumstances to the case before me or the one in J.F.R. v. K.L.L., it is now incumbent upon that party to ensure that the adult child’s capacity be determined before any further steps are taken in family proceedings. The parties should turn to the SDA because it offers a comprehensive legislative scheme that provides a detailed framework, with all safeguards in place, to determine one’s capacity for personal care and property.

[17] The second order sought by the Mother is contingent upon the determination of the first. Therefore, I am of the view that it is premature to decide if the Father should contribute his share of the costs of respite care until it has been decided which parenting arrangement is in Kevin’s best interest. That said, if the only issue to determine on this motion had been limited to a child support order in respect to an adult child under s. 2(1)(b) of the Act, such as a s. 7 expense, I am of the view that the principles set out in J.F.R. v. K.L.L. would not be applicable. While I recognize that a child support order may potentially affect an adult child, it is not an order that would likely infringe on the autonomy of the affected adult child. A decision regarding the Father’s contribution towards respite care does not affect Kevin’s autonomy. Expanding the interpretation of the Court of Appeal’s decision beyond parenting orders would give it too broad a scope and it would dangerously involve adult children in all financial disputes between the parents.

Disposition

[18] The motion is adjourned, pending the parties obtaining a capacity determination relevant to the order being sought by the Mother, which I assume will proceed on consent of both parties. The outcome of Kevin’s capacity determination will guide the parties as to the next step of this motion, including Kevin’s participation.

[19] I shall remain seized of this motion. If the parties require further direction or wish to discuss the next steps to take following the receipt of Kevin’s capacity determination, they shall contact the trial coordinator’s office to schedule an appearance before me. Otherwise, once the parties are prepared to resume the motion with the additional evidence and notice to Kevin, they shall contact the trial coordinator’s office and seek a new date for the continuation of this motion.

[20] The issue of costs shall be determined at the conclusion of this motion.

M. Smith J

Released: July 29, 2024