Mental Health issues in Ontario Family Law

On July 14, 2015, Justice Sherr of the Ontario Court of Justice gave his decision inS.M. v. E.M., 2015 ONCJ 387,, a case illustrating the very difficult mental health issues faced by lawyers, courts, and families.

The father moved to change a 2011 court order and thereby obtain access to his son and terminate a restraining order against the mother.

Sadly, the father had a long history of mental illness exhibited by disturbing and delusional behaviour. He also had ample involvement in the criminal justice system for, among other things, sending threatening letters to the Prime Minister. Children’s Aid Society had prior involvement in the family and the child at the heart of the dispute suffered from Autism Spectrum Disorder and developmental delays. The father’s mental health had stabilized since the 2011 and he enjoyed supervised access to the child. By the time of the present motion, however, his mental health had greatly deteriorated.

Justice Sherr observed that section 29 of the Children’s Law Reform Actempowers the Court to vary custody and access orders where there is a material change in circumstances that affects or is likely to affect a child’s best interests.Gordon v. Goertz 19 R.F.L. (4th) 177 S.C.C. provides the “material change” test:

  1. The party seeking the change in custody or access must meet the threshold establishing a material change in relation to the child.
  2. If the threshold is met, the court must embark upon a fresh inquiry in to the child’s needs and the ability of each parent to meet those needs.

Not surprisingly, the father failed to meet the threshold requirement. His motion was dismissed and Justice Sherr further ordered that the father was barred from bringing any other motion without leave of the Court. This case surely was difficult for everyone involved and is a reminder of mental health issues in family law.

Jeffrey L. Hartman 

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