One of the many impacts of the pandemic over the past two years has been the increase in mental health issues for both children and adults. In 2020, when lockdown measures were first implemented, there were reports of increased rates of anxiety and depression. With the introduction of vaccines and the loosening of social restrictions, it seemed as though this trend would reverse with more opportunities to socialize and work outside of the home. However, a report released earlier this year by the Centre for Addiction and Mental Health shows that the introduction of the Omicron variant in 2021 caused a new surge in rates of anxiety and depression.

Navigating the management of moderate and severe depression or anxiety can be particularly difficult during a family law dispute. For parents facing litigation relating to parenting time or decision-making ability, those dealing with mental health concerns may wonder if these issues might impact a court’s decision regarding access or custody. The impact of mental health issues on a parenting decision will be different from case to case and will largely depend on several factors specific to the family in question. However, there are steps a parent can take to help preserve their parenting rights, even in the face of moderate or severe mental health issues.

Parental Mental Health & the Best Interests of the Child

Decisions regarding parenting time (access) and decision-making ability (custody) must be based primarily on the best interests of the child as per the federal Divorce Act and Ontario’s Children’s Law Reform Act. This is meant to be a holistic analysis in which a court will consider how the decision could impact a child physically, emotionally, and psychologically. A court’s analysis in any given case will consider a mix of law and fact relating to the specific circumstances involved. One of the factors a court is required to consider when assessing the child’s best interests is each parent’s ability and willingness to “care for and meet the needs of the child”.

Mental health issues in and of themselves will not generally be a barrier to a court’s decision regarding parenting time or decision-making ability. However, if a parent has mental health issues that impact their ability to provide a safe and caring environment for their child (i.e. they are unreliable, violent, or otherwise pose a threat to their child’s wellbeing), this could have a negative impact on the court’s finding in a custody or access dispute.

How Can a Parent With Mental Health Issues Protect Their Parenting Rights?

The most important thing a parent with mental health issues can do to bolster their chances of success in a parenting dispute is to demonstrate that they are taking all possible steps to effectively manage their condition. This includes seeking a diagnosis and actively participating in any prescribed treatment. A court will give a good amount of weight to a parent’s demonstrated commitment to their own well-being and that of their child over the long term.

In cases where one parent’s mental well-being is questioned, a court may seek input from that parent’s doctor or order the parent to undergo a psychological assessment. This can help to provide the court with a professional opinion regarding the parent’s ability to meet their child’s needs and assess any potential threat to the child’s health and well-being.

The Importance of Proactively Addressing Mental Health Concerns in a Parenting Dispute

The mental health issues of a parent were examined by the Ontario Court of Appeal in the recent case of A.C.V.P. v. A.M.P. The case involved a mother’s appeal from a decision in which the father was granted sole parenting time with the couple’s children while the mother was granted supervised access only.

The couple had been married for nine years and shared two children. For approximately six months after the separation, the mother was the primary-care parent while the father had regular access to the children. In November 2014, the father brought a motion to have the children placed with him exclusively while limiting the mother to supervised visits. The father indicated that the mother had been dealing with serious mental health issues, including depression and suicidal ideation. The judge temporarily granted the father’s request pending trial, which took place in 2019.

Psychiatric assessment of mother crucial for assessing children’s best interests

At trial, the judge granted the father’s motion but noted that neither party had requested a psychiatric assessment, which could have shed additional light on the mother’s state of mind and helped to focus the trial. The judge provided the mother with thirty days to obtain and submit a psychiatric assessment setting out her diagnosis and treatment plan, at which point the decision would be reviewed. However, the mother did not comply, and the judge finalized the decision to place the children with the father exclusively with only supervised access for the mother. She appealed the decision, claiming the judge had erred in requesting a psychiatric assessment.

The Court of Appeal dismissed the appeal, noting that the request for an assessment was pertinent to assessing the best interests of the children. While the mother did provide an assessment as part of her appeal, it was given little weight as the father had not had a chance to meaningfully address it or to question the physician who provided it.

Contact the Divorce Lawyers at Bortolussi Family Law in Vaughan for Parenting Time and Access Disputes

At Bortolussi Family Law, our divorce lawyers have over 120 years of combined experience helping clients to navigate parental disputes, including parenting time and decision-making issues. We work to find the best solution for each client’s family to help them move forward productively post-separation, with their children’s best interests in mind. From our office in Woodbridge, we assist clients from across the Greater Toronto Area with all aspects of their separation and divorce process. To discuss your circumstances and learn about the options available to you, please reach out to us online or by phone at 416-987-3300.