Many people may not know that the second day of April each year is designated as “World Autism Awareness Day” in Canada. (This is under federal legislation enacted all the way back in 2012!) For those of us in the Canadian justice system, it’s a chance to spotlight what matters most when families separate: Making sure legal decisions still work for children whose needs, routines, and supports require extra stability.
Let’s start at the beginning. If you’re a separated or divorcing parent of a child with Autism Spectrum Disorder (ASD), the Family Law system may feel especially overwhelming. There’s not just the emotional impact of the relationship breakdown, there may also be therapy, schooling, medical appointments, and strict routines to navigate.
The good news is that Ontario Family courts are sensitive to the needs of all children. Whenever making any orders as part of a Family Law dispute or divorce proceeding, courts are required by law to always foster the best interests of the child.
When this “best interests” mandate is applied to kids with ASD, it means the courts will invite evidence about the child’s individual needs, and will tailor their orders accordingly. They will look closely at each parent’s ability to meet the child’s specific needs, support recommended therapies, and communicate respectfully with the other parent. Stability of care, willingness to cooperate, and attentiveness to professional guidance can all play a significant role.
As just one easy example, a parenting plan for a child with ASD will be more detailed than usual. It may cover things like:
- Daily routines
- Therapy schedules
- Sensory needs
- Communication methods, and
- How parents will share information about appointments or school progress.
Similarly, for a child who needs predictability and consistency the court may factor this in, by minimizing the number of transitions between the separated parents’ homes.
With that said, courts will not treat a child’s ASD diagnosis as an automatic barrier to a parent seeking ordinary legal remedies in the Family Law dispute. Courts still requires evidence – often from qualified experts – to balance the legal and personal considerations at play.
An example of this is seen in a recent Ontario case called Kamil v. Bouchir. The parents of a child with ASD had been separated for several years. The court granted the father’s request to sell their jointly-owned home – even over the objections of the mother, who argued that their child would suffer serious mental health consequences if he was forced to leave the home he’d lived in since birth.
The court listened to the mother’s personal accounts about the child’s need for routine, predictability, and the familiarity of his bedroom – all of which helped him with sensory regulation, she said. It readily accepted that the child had significant ASD-related support needs. But while the mother sincerely believed that moving would have a harmful effect on the child, she did not offer any evidence from qualified professional to prove it – only her own opinions.
While the court sympathized, it had to take a balanced approach. Here, the mother was relying on the child’s ASD to entirely block the father’s legal right to sell the jointly-owned home; this required her to provide compelling evidence given by professionals and experts in support. That threshold had not been met in this case, so the sale of the home could go forward.
However, the court did make some adjustments to accommodate the child’s specific needs: It ordered the home listed for sale immediately, but delayed the closing until the end of the school year. This timing would avoid some of the destabilizing effects on the child, and also give the mother time to work with some of his therapeutic professionals to create a plan for adjusting to the change.
For parents with a child on the Autism Spectrum who are also navigating separation or divorce, it’s important to know two things:
- Courts take neurodiversity seriously, and
- The “best interests of the child” analysis is practical and individualized.
Outcomes turn not only on diagnosis, but on concrete evidence about how decisions will affect the child’s day-to-day life — and on thoughtful planning to support children through unavoidable transitions.
At Russell Alexander Collaborative Lawyers, we champion the legal rights and needs of every unique family. World Autism Awareness Day reminds us that a child with ASD experiences the world differently, and we encourage Canadian courts to remain flexible around that reality.
For the full text of the decision, see:
Kamil v. Bouchir, 2024 ONSC 1298 (CanLII), <https://canlii.ca/t/k3b4j>
