Be careful when splitting with spouse with mental health issues

By Tony Poland, LegalMatters Staff • Understanding and caution is needed when making a separation agreement with a spouse who has mental health issues, says Toronto family lawyer A. Julia P. Tremain.

“It can be difficult dealing with the other side when it comes to mental health issues,” says Tremain, a partner with Waddell Phillips Professional Corporation. “We all have to be very aware and very sensitive to it. There can be very difficult conversations that would be necessary.”

Ending a marriage can include division of assets and deciding parenting time, she says, so it is important to take prudent steps when dealing with someone with mental health issues. 

Separation agreement could be set aside

“Judges don’t like to set aside separation agreements. But if you could prove that you signed it without understanding because the other side took advantage of your mental health issues, that is another issue,” Tremain tells LegalMattersCanada.ca. “If you are able to convince the court that you felt pressured into signing the agreement, then it is possible it could be set aside.” 

She says the internet has given rise to “armchair psychologists” and divorcing couples have been known to diagnose each other.

“Words such as gaslighting, narcissism and sociopath are not uncommon in family law, especially because they have become part of the vernacular in the past few years,” Tremain says. “It’s not so much about the presence of a mental health issue, it is more about how that person is dealing with it. Are they getting the right treatment? Are they managing it? Is it affecting the children? There are many people with mental health issues who still have parenting time and even primary residence with their children.”

Still, dealing with a spouse with a diagnosed issue “can make things complicated in terms of what to do,” she says.

‘It can be difficult to negotiate in those circumstances’

“This is especially true when you have a self-represented person who may have mental health issues rising to the level of being incapacitated,” says Tremain. “It can be difficult to negotiate in those circumstances. You have to figure out what they are actually asking for or what they need.”

She says when there is doubt about mental capacity, it is possible to have the court name a guardian or trustee. A judge can also appoint an amicus, or a friend to the court in such cases.

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A ruling last year laid out the considerations as defined by the Ontario Court of Appeal for appointing an amicus in a family law case (other than a child protection case). Some of those considerations include:

• the appointment of amicus is “exceptional” or “rare.” Self-representation, on its own, is an insufficient reason to appoint an amicus;
• trial judges must consider whether they can personally provide sufficient guidance to an unrepresented party, in the circumstances of the case, to permit a fair and orderly trial;
• the court should also consider the availability of alternatives to appointing an amicus, such as legal aid;
• an amicus may be appointed if a judge requires assistance to ensure “the orderly conduct of proceedings”, and “the availability of relevant submissions”;
• an amicus might be warranted where the self-represented party is “ungovernable or contumelious,” where the party refuses to participate or disrupts trial proceedings, or where the party is adamant about conducting the case personally but is “hopelessly incompetent to do so, risking real injustice;”
• a person may not discharge the amicus; only the court may do so; and 
• the assistance of amicus must be essential to the adequate discharge of the judicial functions. The stakes must be high enough to warrant an amicus.

Partner’s mental capacity must be taking into consideration

Failing to take your former partner’s mental capacity into consideration when signing a separation agreement can lead to it later being found unenforceable. For example, an Ontario court was told a man diagnosed with schizophrenia did not receive independent legal advice when he signed three domestic contract agreements. The agreements were later set aside. 

“When it comes to these matters, capacity must be demonstrated and capacity is the ability to enter into any contract or any agreement. It is a pretty serious consideration,” says Tremain. “If someone is out of touch with reality, they would not be able to sign an agreement.”

When dealing with a client with issues it is important that their lawyer understands the circumstances, she says. 

“You need to know what treatment they are receiving, how they are managing, how they manage when there is a crisis or a challenge,” says Tremain. “If the person has an addiction, do they have a safety plan for their children if they backslide?

“It is important to be fully informed. As a lawyer, you do not want to be agreeing to something that your client doesn’t understand or is not capable of understanding because of their mental health challenges.”

Child’s needs are paramount

She says when it comes to deciding parenting time the court will take many things into consideration, including:

• the child’s needs, given their age and stage of development, such as the child’s need for stability;
• the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
• each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
• the history of care of the child;
• the child’s views and preferences, giving due weight to their age and maturity, unless these factors cannot be ascertained;
• any plans for the child’s care;
• the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; and
• any family violence and its impact on, among other things.

“We are right back to the best interests of the child,” says Tremain. “If a parent is able to care for the child, notwithstanding the fact that they may have some mental health issues, then they should have parenting time with the child.”