By Graeme Kluge
Divorce can be traumatic for everyone involved. Along with the stress of financial issues, the emotional toll can be overwhelming as both sides may feel anger and resentment as they cope with a new reality.
If one person has a mental health issue, the toll may be overwhelming. If you are in this situation, an experienced family lawyer can help you navigate the court process as smoothly as possible.
As a general rule of thumb, couples going through a divorce should not attempt to reach a separation agreement between themselves if one has serious mental challenges. Even if a deal is reached, that person’s ability to give informed consent could later be called into question and may invalidate the agreement. While judges prefer not to set aside separation agreements, they will if it can be shown that a spouse with mental health issues did not fully understand what they were signing.
One solution is to seek a court order, stipulating the division of property and custody rights. In some cases, the court may appoint a guardian, ensuring that the legal interests of the spouse with issues are represented. A judge can also appoint an amicus, or a friend to the court, in such cases.
Mental illness must be diagnosed
A mental-health diagnosis cannot be made by a layperson. But if a professional has reached that conclusion, the next question is whether your former spouse agrees with it or is in denial. There are various levels of mental illness so it is important to establish the degree of impairment it is causing.
If someone is taking antidepressants, for example, that is generally not enough to have them deemed mentally ill. In fact, the court could commend them for taking steps to deal with their health issues. But with more serious mental impairments such as schizophrenia, the court will look at the person’s behaviour and their ability to deal with the impairment.
For instance, the Court of Queen’s Bench of Alberta ruled that a father should be awarded the majority of parenting time with his two children, even though he had earlier been treated for paranoid schizophrenia.
Court documents state that while a psychiatrist indicated he had “ongoing concerns” about the father’s mental well-being, he concluded his chronic mental health condition is “well controlled” and that he had “been an active and willing participant in his treatment.”
The judgment adds, “while there is no doubt that the father has a serious mental health problem, all the evidence before me indicates that he is doing whatever he needs to control the problem.”
In other cases, the court may decide that a mental health issue is severe enough to make someone unfit to be the primary caregiver and decision-maker for their children. As with all legal decisions involving parenting time, the best interests of the child are always paramount.
What is mental illness?
Mental disorders are commonly defined as conditions that cause distress or disability, mental or emotional dysfunction and behavioural issues. Common mental illnesses include anxiety disorders, depression, bipolar disorders, schizophrenia, eating disorders, personality disorders, alcohol and drug addiction and suicidal thoughts or behaviour.
Although people may not admit it, many of us are facing mental challenges. According to information from the Centre for Addiction and Mental Health, one in five Canadians is dealing with a mental illness. “By the time Canadians reach 40 years of age, one in two have – or have had – a mental illness,” the centre states.
According to the Mental Health Foundation of Alberta, mental illness is just as significant in Alberta. “It takes a significant toll on the health of Albertans and the cost of providing health care,” the foundation states, adding it also has “a direct and indirect societal impact.”
For example, a person with bipolar disorder can become volatile and unreliable during their low periods, which can lead to arguments with their spouse over trivial issues. The periods of depression that accompany bipolar disorder can lead them to withdraw emotionally and avoid spending time with their spouse.
Since people with mental health issues can be difficult to live with, it is not surprising that these conditions are a factor in many divorces. After all, marriage is already rife with challenges, even under the best of circumstances. Mix in mental illness and mental health issues can become insurmountable, especially if the person doesn’t want to help themselves.
If you or a spouse are seeking mental health assistance but don’t know where to turn, a good place to start is informAlberta.ca. Its database lists mental health service providers in communities across Alberta.
Contact us for assistance
When dealing with someone with mental health issues in a divorce, it is important that lawyers understand the issues. The team at Demas Schaefer will always treat people with mental issues with respect. We will not damage their pride or take away their dignity. After all, there are many people with mental health issues who still have parenting time and even primary residence with their children. We offer a free 15-minute telephone or video consultation where we can discuss your case and explain your options. Contact us today for an appointment.