In the recent Ontario Court of Appeal decision, D.F. v. R.W.F., 2025 ONCA 129, Justice Steve Coroza addressed the issue of parenting orders concerning an adult “child of the marriage.” This decision follows J.F.R. v. K.L.L., 2024 ONCA 520, where Justice Lois Roberts emphasized that the meaning of “capacity” is context-dependent and that there is a rebuttable presumption of capacity, including for an adult child with a disability.

The parties married in 1983 and permanently separated in 2019. The parties had seven children, the youngest of whom is a son (“A”) who was 22 years old with the cognitive age of a three- or four-year-old child and
had Down syndrome (para. 43). After the mother commenced divorce proceedings against the father in 2020, the father was criminally charged as a result of breaching multiple temporary family orders by failing to
return A. At trial, the mother was awarded sole decision-making authority, guardianship and primary care of A.

The father brought an appeal on two grounds, to which Justice Coroza allowed the appeal only in part. If an adult child falls under the definition of “child of the marriage” in s. 2(1) of the Divorce Act, the court may make a parenting order concerning the child of marriage pursuant to s. 16.1. In doing so, the court must consider the best interests of the child.

Justice Coroza dismissed the first submission that the trial judge made a final order without ascertaining A’s views or preferences. The father argued that since the presumption of capacity is situation-dependent as per the court in J.F.R. v K.L.L., so should the question of withdrawal from parental charge under s. 2(1)(b).

The Court of Appeal, in upholding the presumption, found that the presumption was rebutted by the report prepared by Dr. Heintz Grove, a clinical psychologist, and amicus curiae Vasu Naik. Interestingly, the court also emphasized that the presumption is not rebutted merely because the parties agreed that s. 16.1 applies to the adult child; rather, there must be “fresh” evidence (para. 14).

The father further submitted that the trial judge erred by imposing a parenting order that was too restrictive and effectively removed him from A’s life. The trial judge had ordered a scheduled video and telephone parenting time for the father with A, with no possibility of unsupervised in-person parenting time. Moreover, the father was allowed supervised in-person parenting time but solely at the mother’s discretion, despite the high-conflict relationship between the parties.

The Court of Appeal dismissed the father’s first argument that there was no basis in the record for supervised access. For any child of the marriage, the court must consider the best interests of the child as per s. 16(1)-(3) in the Divorce Act. Given the “long-standing and high-conflict matter,” the trial judge emphasized that the court’s responsibility is to protect A from conflict and safeguard his relationship with both parties as well as with his siblings (paras. 7 and 34).

The trial judge’s decision primarily focused on the nature and strength of A’s relationships 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)). The trial judge found that A’s connection with his siblings was “absolutely crucial to him” (para. 37). While the mother facilitated this connection, the father was not willing to facilitate A’s relationship with the mother.

Furthermore, the father was found to have continuously contributed to the conflict between the parties. The trial judge made specific references to instances where the father expected to be able to walk into the mother’s home unannounced, the father sent A to the mother’s home on a bus unbeknownst to the mother, and the father allowed A to continue to face difficulties during parenting time exchanges. The trial judge found the father’s conduct amounted to an inability to protect A from parental conflict and a lack of insight into A’s care (para. 47).

The court allowed the father’s appeal on his second argument that the trial judge did not account for the fact that A will never “age out” of the order — that is, the order will be applicable for the remainder of A’s life with no chance for review. Although the trial judge acknowledged that A would “always remain in a child-like state,” Justice Coroza stated that the trial judge failed to reconcile this finding with the fact that A wants and needs to maintain a relationship with his father (para. 53). Considering the permanency of the trial judge’s order, the court ordered that the parenting access order be subject to review, allowing the father an opportunity to seek to vary the terms of his parenting time without establishing a material change in circumstances.

The decision in D.F. v. R.W.F. marks a positive step toward addressing parenting issues for adult children with disabilities. While both children under the age of majority and adult children with disabilities fall under the same category in the Divorce Act, the decision recognizes the unique circumstances of adult children with disabilities. Further, by ordering a parenting order with a built-in review mechanism, the court effectively balances the adult child’s best interest and the maximum contact principle, in the context of a high-conflict matter.

Michael Stangarone, partner, Nicole Clyde, articling student and Lisa Chung, summer law student, are with MacDonald & Partners LLP, where they practise exclusively family law.

The opinions expressed are those of the authors) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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