“On its face, s. 16.1 of the Divorce Act unambiguously gives this court the power to make parenting orders with respect to an adult child who meets the definition of a “child of the marriage”. In Perino v. Perino, 2009 CanLII 41900 (ONSC) (“Perino 2009”), at paras. 8 and 13, Justice Corbett held that a custody and access order could be made under the Act in respect of an adult. In Ross v. Ross (2004), 2004 BCCA 131 (CanLII), 2 R.F.L. (6th) 200 (B.C.C.A.), an application judge held that granting a parenting order in respect of a disabled adult child would infringe his rights as an adult, and that the court therefore did not have jurisdiction under the Divorce Act to make such an order. The B.C. Court of Appeal overturned this decision based on the clear language of the Act.
Ms. L. contends that, even if M. technically meets the definition of a “child of the marriage”, my ability to make orders with respect to him is confined to support orders. She relies on the definitions of children in Ontario statutes governing parenting and support of the children of unmarried couples. Under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), which governs parenting orders, a child must be a minor. Pursuant to 2020 amendments to the Family Law Act, R.S.O. 1990, F.3, which governs support orders, the definition of a child resembles that in the Divorce Act. As a result, if the parties had never married and Mr. R. was applying under the CLRA, M. could not be subject to a parenting order under Ontario law. Ms. L. argues that the more limited definition in the CLRA acknowledges the inappropriateness of making a parenting order with respect to an adult child, and that it should inform my finding on jurisdiction under federal legislation.
The Ontario legislature’s decision to change the definition of child in the Family Law Act, but not the CLRA, does not allow me to disregard the plain language of the federal legislation that governs this application. The Divorce Act does not define a “child of the marriage” differently for the purpose of parenting orders and support orders. This presumably reflects a deliberate legislative choice to give this court the power to make parenting orders with respect to individuals over the age of 18 who remain under their parents’ charge because they are “unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”.
Ms. L. says that there is no firm authority in Ontario to make a parenting order with respect to an adult disabled person, as the caselaw focuses on support orders. This is incorrect. Corbett J. ultimately decided not to make a “general custody order” in Perino v. Perino, 2012 ONSC 32 (“Perino 2012”), a case involving extreme parental alienation. He did however order access between Marisa Perino, a cognitively impaired adult, and her mother, having earlier found, in Perino v. Perino, 2008 CanLII 11048 (ONSC) (“Perino 2008”) that he had the jurisdiction to make such an order.
The court accordingly has the jurisdiction to make a parenting order with respect to an adult child who meets the definition of a “child of the marriage” in the Divorce Act. Based on evidence relied on by both parties, M. is unquestionably such a child. He remains in his parents’ charge and cannot withdraw from it due to his disability.”