Getting the right legal help when addiction leads to divorce

Getting the right kind of legal help when addiction fractures a family

Addiction haunts families in many ways – alcoholism, drug dependency, gambling and sex addiction are some of the most common. Therapy can be beneficial, but when it fails, or when the addicted spouse does not seek treatment, getting the right kind of legal help is essential. Often spouses reflexively seek out litigation lawyers to battle their case in court. But the adversarial process intensifies the conflict and is likely to increase the damage already inflicted by addiction. The slow pace of a case working its way through the legal system is agonizing. Financial pressures already arising from the family break-up are compounded by high legal expenses.

Fortunately, effective alternatives to the court system are available. Mediation and collaborative law are well suited to family disputes arising out of addiction. In my practice as an accredited mediator and collaborative lawyer, I have found that these methods reduce conflict and assist spouses in crafting solutions which meet their needs. Since mediation and collaborative law are more streamlined than the court process, we are able to reach a resolution in a timely and cost effective way.

For example, in a recent mediation case involving a sex addicted spouse with alcohol issues, I worked with the addict client and the other spouse to customize parameters governing the person’s conduct around the kids, alcohol consumption during access, and restrictions on which people could be present during visits. We achieved a solution that was acceptable to both parties because they participated in developing it. And we accomplished this outcome without going to court.

Lawyers and mediators involved in addiction cases need a firm grasp of mental health matters since the two issues are often intertwined. I mediated a case in which one parent was taking medication for a mental disorder. There was a concern for the children’s safety if the parent stopped taking the medication. We addressed this by drafting a parenting plan which included customized details around parenting time, disclosure of medical issues, and a right to review the parenting plan for medical reasons.

Lawyers, mediators and the parties themselves must grapple with an array of unique legal issues arising out of addiction. Some examples which I have drawn from the case law:

  • Should drug addiction excuse an unemployed parent from child support? In Hutchison v. Gretzinger, the Ontario Court of Appeal decided that it would be wrong to exempt a person from a child support obligation because of a drug addiction.
  • How can the children be safeguarded when a parent has an addiction? In Lawrance v. Lawrance, the judge accepted that the alcoholic mother had reached a stage in her recovery where she could abstain and not relapse, but decided that time was needed before she could prove that she could remain abstinent. To safeguard the children until then, the judge ordered that access be supervised and that the mother take regular blood alcohol tests.
  • What precautions can be taken when a parent has a history of impaired driving convictions? In Atkinson v. Spiridakis, the judge ordered the father not to drive with the children unless his vehicle was equipped with a breathalyser alcohol interlock system which would prevent the car from starting unless the father was alcohol free.
  • Does a sex addiction always have an impact on a parent’s rights? Not necessarily, according to Justice Fryer in J.M.G. v. L.D.G. The father’s fantasies led to poor judgment and inappropriate social behaviour, but the judge found that they did not negatively affect his ability to parent the children and should not limit his relationship with them. On the other hand, in Santor v. Santor, Justice Coats imposed supervised access on a father who was being treated for sex addiction but who continued to have contact with prostitutes.

All of the judges in these cases strove to arrive at a fair result, but they work within a system that can take years to complete while subjecting the parties to constant stress and great expense. Spouses whose relationships are affected by addiction are well advised to look instead, to an experienced mediator or collaborative lawyer for help.

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