Mental Health and Parenting Time in Ontario Family Court

Many parents fear that a mental health diagnosis, a hospital stay or a period of treatment will be used against them in a parenting dispute. Others worry about a parent whose condition affects the child's care.

This article explains how Ontario family courts approach mental health, what evidence tends to matter and what options exist short of reducing time. It is general information, not advice for your situation.

The test is the child's best interests

Under the Divorce Act, the court considers only the child's best interests when making a parenting order. It must give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

The court also gives effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests. The Act sets no presumption of a particular schedule. Parents who were never married or are not divorcing need a parenting order under Ontario's Children's Law Reform Act.

How a diagnosis is treated

Past conduct, for example a mental health history, is not considered under the Divorce Act unless it is relevant to the person's exercise of parenting time, decision-making responsibility or contact. In plain words, the question is how, if at all, a condition affects the person's parenting, not whether a label exists. If you were never married, your case falls under the Children's Law Reform Act instead, so how this applies depends on your situation and is worth confirming with a lawyer.

The best-interests factors include each person's ability and willingness to care for the child and to communicate and cooperate, the history of care, and the child's needs including the need for stability. Evidence of how a parent has actually looked after the child is often more useful than a diagnosis alone.

• How the child has been cared for in the past
• Whether the parent is able and willing to care for the child and cooperate
• The child's views and preferences, given due weight according to age and maturity
• Any plans for the child's care
• Whether safeguards can address any real concerns

Options short of reducing time

A parenting order may impose any terms, conditions or restrictions the court considers appropriate, and may provide for any other matter the court considers appropriate, including communication requirements and tailored conditions. A court may order these case by case, so they are options, not entitlements.

Where there are safety concerns, parenting time may be supervised. Justice Canada's Parenting Plan Checklist tells parents dealing with mental health or substance use issues to consider alternative arrangements, including supervised parenting time. Supervision may be provided by a friend or relative both parents agree on, a paid professional or trained staff at a Supervised Access Centre.

A court may refuse parenting time if there is a fear that the parent may harm the children, harm the parent with decision-making responsibility, or not return the children. Plans can also be flexible enough to allow for unforeseen events such as illness, and can change as the children grow.

Evidence and the child's voice

Family motions use Form 14 (Notice of Motion) and Form 14A (Affidavit), which must be sworn or affirmed. In the Superior Court, each party may file one primary affidavit on a motion, limited to 12 pages of narrative for short or regular motions, and exhibits should not exceed 10 pages.

A judge can order the Office of the Children's Lawyer to provide a voice of the child report, typically for children over seven, due within 30 days after a clinician is assigned. A full Children's Lawyer Report takes about 90 to 120 days. A party has 30 days after receiving a clinician's report to serve and file a statement disputing it.

What kind of medical or treatment evidence is appropriate, and whether privacy concerns arise, depends on the facts. A lawyer can help you decide what to include.

Changing an order and next steps

For a parenting order made under the Divorce Act, the court must be satisfied that there has been a change in the circumstances of the child since the order was made before varying it. If your order was made under the Children's Law Reform Act because you were never married or are not divorcing, how it can be changed is worth confirming with a lawyer. On a variation application, the court cannot consider any conduct that could not have been considered when the original order was made. A court order can only be changed by a new decision from the court, while an agreement can be updated by agreeing to the change.

To change a final order when the other party does not agree, you file Form 15: Motion to Change, sworn before a commissioner. It must be served by special service by someone 18 or older other than you, and the other party has 30 calendar days to respond, or 60 calendar days if they were served outside Canada or the United States.

• Gather records showing how the child has been cared for day to day
• Collect treatment or medical information only with advice on what is relevant
• Think about safeguards or a gradual plan that could address concerns
• Do not stop or withhold parenting time without advice, because orders must be followed
• Speak with a family lawyer about your situation

Frequently asked questions