How Mental Illness Affects Divorce

A topic that often comes up with clients is how mental health can impact a divorce proceeding. Depending on the mental health issue involved, this can complicate how issues such as child custody and spousal support are resolved. This can make it difficult for both parents to reach amicable agreements. It is best to work with experienced family lawyers to help you navigate the court process as smoothly as possible.

Mental Illness and Child Custody

If your spouse has a mental illness, this may help you obtain custody, but this is not so simple. First off, it is important to note whether a professional has properly diagnosed your spouse’s mental illness. You cannot diagnose them yourself. If there is a proper diagnosis, the next question is whether your spouse agrees with the diagnosis, or is in denial. An important question that needs to be asked is whether the mental illness will negatively affect your spouse’s ability to spend meaningful time with your children when they are in your spouse’s care. Moreover, most mental illnesses, when properly treated, may not be a barrier to being an effective parent. So, it is important for your spouse to be proactive and seek out help.

You will also need to know what treatment your spouse has received from his or her physician, and whether they are complying with this treatment. This does not mean self-medicating, unless the doctor has specified otherwise. It is important for your spouse to be serious about their treatment since for some individuals mental illness may be with them for life.

If your spouse is in denial about their mental illness, this could spell trouble. A judge will identify a mental illness as a potential problem. This is why your spouse can benefit from obtaining a proper diagnosis, and treating it accordingly.

Courts will always consider the best interests of a child when making decisions relating to custody and access. As per s. 24(2) of the Children’s Law Reform Act the court must consider all of the child’s needs and circumstances, including:

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.

As you can see, these factors strongly take into account the well-being of the child and each parent’s ability to ensure this well-being. As unfortunate as this may be, mental illness can impact a person’s ability to act as a parent, most importantly their ability to make decisions for the child. While this is not the case for everyone battling mental illness, the courts will take this into account to ensure that the child’s best interests will always be taken care of.

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