In our ongoing efforts to advocate for the rights of adults with developmental disabilities, Inclusion Action in Ontario (IAO) is pleased to report on the Court of Appeal’s decision, affirming the right of an adult child, M., with Down Syndrome to participate in a hearing about his own living arrangements.
IAO was granted intervener status at the hearing, alongside People First of Canada and the Canadian Down Syndrome Society, our collective goal being to support an adult child’s right to make decisions about their living situation. Although the Court did not hear our Charter arguments, the outcome is still important. The Court allowed the appeal, emphasizing the necessity for an adult child to have the opportunity to be heard regarding his living arrangements. This decision critically addressed the presumption of incapacity that was underlying the initial judgment, reinforcing the principle that adults with developmental disabilities should have their voices and preferences respected.
The lower court made an interim parenting order under the Divorce Act that M. must live with each of his parents in accordance with a shared parenting schedule established when he was a minor. M. was never determined to be incapable, but the lower court made assumptions about his incapacity on this issue; a finding that normally must be made under the Substitute Decisions Act, with all the procedural protections provided to a person who may find their decision-making rights removed.
The Court of Appeal recognized that decision making is not all or nothing, and that being incapable of making a decision in one area of life did not necessarily mean a person could not make decisions in another: persons with disabilities must be afforded the dignity of choice, as People First Canada argued. As an adult with no finding of incapacity relevant to the issues in the hearing, M. had a right to be heard at this stage of the proceeding.
The Court of Appeal’s decision aligns with our “My Home, My Way” series, which challenges the belief that individuals with developmental disabilities are best suited for group homes. Through this series, inspired by work from Australia, we demonstrate that even those with complex needs can live independently.
As we continue to highlight systemic issues that undermine the autonomy of individuals with developmental disabilities, we remain committed to advocating for their right to make choices about their own lives. The Court’s decision is a step forward in this ongoing journey.
We extend our gratitude to Ross & McBride LLP and Kastner Ko LLP for their representation and assistance in this case.
