I Have a Diagnosed Mental Illness – Can That Be Used Against Me in Family Court?

Being a parent is hard enough as is and struggling with mental health can make it even more challenging. Thankfully, society is moving away from the stigmatization associated with mental illness. We are finally starting to recognize the importance of adequately caring for oneself, before having the capacity to care for others.

Unfortunately, however, courts have been historically slow to reflect social change. This begs the question: When a parent has a diagnosed mental illness, such as anxiety or depression, will it prejudice their position in family court?

The answer is no, or at least it shouldn’t, unless there is evidence that the parent’s mental illness is negatively impacting the children. In the Ontario Superior Court Case of B.V. v P.V., 2011 ONSC 2697 Justice Hourigan held that a parent’s mental illness is not, on its own, a reason to vary parenting. Specifically referring to a diagnosis of depression, Justice Hourigan reasoned as follows:

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.  Any practice of denying custody on the mere basis of a diagnosis of depression risks a return to the underreporting of the disease.

Justice Hourigan then awarded the mother, who was the parent experiencing depression, primary care and control of the children. On Appeal, the Court found that the trial judge made an error in law by awarding only minimal access to the father because of the “maximum contact principle” in the Divorce Act (since repealed) but still maintained that the mother, despite her depression, shall have primary care of the children.

This case was a huge step in the right direction, and since 2011 Alberta courts have been following suit. For example, in DJG v SHKG, 2019 ABQB 555 Justice Lema said the following about a parent with mental illness:

[mental illness] does not disqualify … [the mother] from parenting the children. Coping with them has not resulted in materially substandard care for the children or put them at any material risk.

Further, in the recent Alberta Court of Appeal Case of Volkman v Volkman, 2021 ABCA 151. The Court held that the chambers judge made an error in law when requiring that the Applicant father prove his “mental fitness” to the court where it was not one of the issues being contemplated.

Alberta Courts have also refused to even consider a parent’s mental health where there is no evidence regarding an inability to parent (for example MDS v DSM, 2020 ABQB 471).

Where available, Alberta courts will consider evidence from psychiatrists, psychologists, and family physicians. For example, in C.E.M. v R.W.R., 2006 ABQB 628, Justice Veit found that the mother’s mental health did not negatively impact her ability to parent twin boys based on reports from the mother’s psychiatrist and family physician.

As in all family law matters, the best interests of the children will be centered in a determination on parenting. If you want to know more about what factors Alberta Courts will consider in your parenting dispute, contact the Family Law Lawyers at Vogel LLP today.