Establishing a parenting schedule and determining decision-making responsibility with respect to children can be difficult. Matters can also be challenging when a parent is dealing with a mental illness. In some cases, the other parent may allege that a mental health condition may negatively impact the children and could impact the parent’s ability to care for the children. So, how do you know whether a mental illness will impact family law proceedings and act as a disadvantage in exercising parenting rights?

Supervised Parenting Time Not a Long-Term Solution

In the case of Khurmi v. Sidhu, the father commenced a motion to increase his parenting time with his daughter. The mother expressed her concerns regarding the father’s mental health conditions and expressed that he may not provide a safe environment for the child. She also highlighted the father’s previous posts on social media where he referenced suicide. The mother unilaterally suspended the father’s parenting time due to the father’s mental health concerns and his alcohol use. In this motion, the judge did not believe that supervised parenting time was necessary, but the father offered to exercise his parenting time in the presence of one of his parents. Subsequently, the father hoped to discontinue the supervision and to have overnight visits with his daughter eventually.

In considering this motion, the judge noted that under section 24 (1)(2) of the Children’s Law Reform Act, the Court must foremost take into consideration “the child’s physical, emotional and psychological safety, security and well-being.” When dealing with supervised access, the case of Young v. Hanson indicated that supervised access is a significant intrusion in the relationship between a parent and a child, and its imposition must be justified.

The judge noted that supervision by a family member in a home setting may be less intrusive but cannot be a long-term solution. Instead, following guidance from ​​Docherty v. Catherwood, it should be a temporary solution, as greater restriction in regular parenting time requires an explanation as to why it is necessary. In this instance, the mother failed to meet the onus of showing that supervised access was necessary. The last incident of any mental health concerns was years prior to the current motion, and there was no evidence to suggest that the mental health concerns and drinking issues persisted. The father offered assessments from a physician, a psychotherapist and a psychologist, all of whom were of the opinion the father was not suffering from a mental health crisis. The judge determined that it was appropriate to gradually increase the father’s parenting time so the child could adapt to the new schedule.

Mental Illness May Not Impact Parenting Orders

A parent’s mental illness on its own will not usually have a bearing on a parenting order, as it is only one factor for the court to consider. The focus is always on the best interests of the child; therefore, mental health may become relevant to the extent that it impacts on parenting abilities or exposes a child to risk.

For example, in B.V. v. P.V., it was argued that the mother’s depression and genetic disease, which she suffered from, were both factors that weighed against her being awarded decision-making responsibility for the parties’ child. The father suggested these conditions had led to the mother’s inappropriate decision-making. However, the Court could not find that these decisions were linked to the mother’s health condition or her depression. No medical evidence supported any link between the conditions or an inability to care for the children.

Justice Hourigan acknowledged that the question of depression impacting the ability of a parent to care for children frequently arises in family proceedings. The Court acknowledged that depression is common in society, but “in the absence of clear evidence that the parent’s ability to effectively parent their children has been adversely impacted by the disease, a diagnosis of depression should have no impact on decisions regarding custody and access.” Justice Hourigan noted that the stigma associated with depression has waned and that individuals are more often receiving treatment to manage these conditions. A practice of limiting parenting time and decision-making responsibility due to a diagnosis of depression could lead to a practice of underreporting the disease.

Courts Encouraged by Extended Period of Stability

Courts can look favourably at parents who seek treatment for mental health illnesses. In J.H. v. L.H., the Court found that it was in the best interests of the children that the father have interim decision-making responsibility for the children while the mother received treatment for a mental health condition. There was credible evidence that over several months the mother demonstrated some disturbing behaviour as a result of her mental illness. While the mother denied most of the allegations against her, in some cases, they could be verified by external sources. In one instance, she admitted to leaving a child alone in a hotel room, which the Children’s Aid Society verified. The mothers’s psychiatrist reviewed affidavit materials that were filed and concluded that some of the behaviour described was consistent with a manic/hypomanic condition that she appeared to have experienced over several months.

For the Court, some of the mother’s inappropriate behaviour was viewed as detrimental to the children’s best interests. While she had made progress in treating her illness, it was still early in the treatment process. There was also concern that the mother might not continue to take her medication. Therefore, the Court found that the mother would need to provide evidence that she could control her behaviour and appropriately care for her children before decision-making responsibility would be awarded to her.

Courts Focus on Best Interests of the Child in Situations of Complex Family Dynamics

The case of Marrello v. Desroches involved a complex family dynamic where the child primarily resided with the father due to concerns about the mother’s mental health and substance misuse. The maternal great-grandparents had contact with the child, and the mother exercised visits with the child at the same time. The mother felt that the maternal grandmother was left out by these arrangements and sought to have a separate contact be granted to her.

In settling parenting time, the Court determined that the maternal great-grandparents should not have been granted contact time with the child as they were not parties to the earlier proceedings. Regarding the mother’s parenting time, the evidence suggested that she did not attend every visit but visited inconsistently during the time the great-grandparents had the child. The Court decided that the long-term plan for the family could not be one where the mother, maternal great-grandparents, and maternal grandmother had separate orders regarding time with the child.

Instead, the parties and their supports, including the great-grandparents, were directed to attend an alternative dispute resolution process to attempt to reach a more permanent parenting schedule. The Court acknowledged that the mother demonstrated insight into her current limitations and capabilities in caring for the child. The maternal grandmother was also honest regarding the mother’s struggles. The evidence from the various family members gave the Court confidence that the extended family could evaluate the situation regarding the child’s care and had the child’s best interests in mind. Going forward, the parties were encouraged to support the various family relationships with the child.

Courts Consider the Child’s Well-Being

A parent’s mental illness can be a relevant consideration when addressing parenting schedules. However, it is only one factor among many that courts will consider. Mental illness alone will not usually impact decisions regarding parenting issues unless there is substantial evidence that it impacts the parent’s ability to look after and care for their child. Overall, courts aim to ensure that any parenting schedule provides stability for the child.

The Family Lawyers at NULaw in Toronto Help Parents Navigate Difficult Parenting-Time and Decision-Making Responsibility Disputes

A relationship breakdown can complicate family dynamics, especially when children are involved. NULaw‘s experienced family lawyers can help you resolve complex parenting time disputes. Our trusted family lawyers have extensive experience resolving various family law issues. We provide realistic, effective advice tailored to each client’s unique issues regarding parenting time and decision-making responsibility issues. To arrange a confidential consultation with a member of our family law team, reach out to us online or call us at 416-481-5604.

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