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  • Material change question for a friend

    Posting for a friend:

    The background: Divorced with one son. 50/50 with Mom. Relations with Mom are not great but not awful, Kid is fine. At the time the agreement was signed, Mom was a heavy drinker but functional (held a job, looked after Kid well). No reason for anything other than 50/50 at the time. Then Mom remarried and things went off the rails with new spouse. Drinking got worse, symptoms of mental illness got worse (and before anyone jumps on this, I'm talking about genuine mental illness, not "my ex is crazy" - extensive psychiatric record, DSM diagnoses by actual physicians, at least one involuntary hospitalization. Dad is aware of this because Mom granted permission for lead psychiatrist to talk to Dad about safety of Kid). (At least) two 911 domestic conflict calls to Mom's house, no arrests, CAS investigated and closed file. Mom is now in 3rd rehab programme (two inpatient, one outpatient). Mom's psychiatrist has recommended that Kid stay with Dad until Mom completes latest rehab. Kid is living full-time with Dad, short daytime visits to Mom. Mom is on board with this, for the moment.

    The question: At one point does Mom's deteriorating condition meet the standard of a "material change in circumstance" that might merit a long-term change in the parenting agreement? This situation was definitely not foreseen at the time Mom and Dad separated, and Mom is not currently able to care for Kid (and hasn't been for several months). Dad is concerned about the effect on Kid of the revolving-door of Mom getting better, getting worse, relapsing into drinking and fighting, etc and is wondering if establishing that Kid lives full-time with Dad and visits Mom when she's well would provide more stability. And again, before anybody asks, it isn't about CS - Dad has enough money, and has continued to pay Mom offset throughout her deterioration.

    Does anyone know the onset of mental illness or worsening addiction affects the determination of a material change?

  • #2
    Originally posted by stripes View Post
    The question: At one point does Mom's deteriorating condition meet the standard of a "material change in circumstance" that might merit a long-term change in the parenting agreement?
    Previously you admitted to the other parent knowing about the other parent's dependency on alcohol. The problem is that a material change is one that was not known to the party. But, you admitted in contravention of what defines a "material change in circumstance", that the other parent was aware of this disability. (Alcoholism is a recognised disability.)

    Originally posted by stripes View Post
    This situation was definitely not foreseen at the time Mom and Dad separated, and Mom is not currently able to care for Kid (and hasn't been for several months).
    This is the material change in circumstance that you would rely upon. Although I would recommend that you need more than a "couple of months". I would recommend no less than six months and even waiting a year prior to bringing the motion. The material change is not the behaviour of the other parent but, the fact that the children have been residing with the other parent in contravention of the agreement/order for X months.

    I would avoid any talk to the mental health of the other parent and their disabilities. The fact that the children are residing with the other parent for the majority of the time *is* the material change in circumstance. How the children came to be under the care of one parent is not really that important. It is ugly history that won't win any favour with the court if presented.

    Also, if the case is presented properly, the other party will have to reveal this information to address why the children are residing with the other parent hand have been for X months. No need to sling mud when the case and the material change has already happened like this.

    Originally posted by stripes View Post
    Dad is concerned about the effect on Kid of the revolving-door of Mom getting better, getting worse, relapsing into drinking and fighting, etc and is wondering if establishing that Kid lives full-time with Dad and visits Mom when she's well would provide more stability. And again, before anybody asks, it isn't about CS - Dad has enough money, and has continued to pay Mom offset throughout her deterioration.
    My advise to this parent would be to provide a safe environment and to wait out the situation and after a year (or 6 months possibly) to file the application for change. It is always better to have an established situation than to try and create one. The children are residing with the parent now and will be for the foreseeable future.

    Originally posted by stripes View Post
    Does anyone know the onset of mental illness or worsening addiction affects the determination of a material change?
    Heuer v. Heuer, 2016 ONCJ 201 (CanLII)
    Date: 2016-04-12
    Docket: Brampton 1003/10
    Citation: Heuer v. Heuer, 2016 ONCJ 201 (CanLII)
    http://canlii.ca/t/gpdnq

    This case law may be of interest to you.

    [42] Ms. Heuer explained that in 2013 she has had a diagnosis of Borderline Personality Disorder and has struggled with depression and some emotional health issues since she was 19 years old and attending university. She has experienced anxiety and at times suicidal thoughts. Ms. Heuer also described her struggle with her abuse of prescription drugs and at times obtaining these illegally, causing her to receive four criminal charges. When asked by her counsel if this affects her ability to parent Connor, she testified that she felt it did not.

    Source: Heuer v. Heuer, 2016 ONCJ 201 (CanLII), par. 42, http://canlii.ca/t/gpdnq#par42

    ...

    [215] It is this evidence that leads this court to conclude that between the parents Ms. Heuer is not equipped to make decisions in Connor’s best interests and has put her own interest before that of the child. This is quite evident when it comes to her use of prescription drugs in an off-script manner which has led to several criminal charges. If this persists, these charges could become more serious and Ms. Heuer could face greater criminal sanctions. Why she withheld her March 2015 charge is concerning. Further, although she recognizes she has had emotional/mental health struggles, why she is not working with a professional immediately for her own well-being is not clear. Both of these areas in her life have affected her ability to parent, contrary to her evaluation and distract from her ability to focus on Connor’s best interests, placing her interest before that of her son.

    Source: Heuer v. Heuer, 2016 ONCJ 201 (CanLII), par. 215, http://canlii.ca/t/gpdnq#par215
    It has many similar elements to what you are describing. Parent has BPD (diagnosed), addiction to pain medications, was charged with forging prescriptions, been to rehab a number of times, OCL was involved, etc...

    Results are obvious of course. The other parent was given sole custody and majority access. But, pay close attention to how the other parent's case was argued and presented.

    Good Luck!
    Tayken
    Last edited by Tayken; 11-09-2016, 11:36 AM.

    Comment


    • #3
      Thanks Tayken, this is useful. To clarify - at the time of separation, Mom had been a heavy drinker for two decades, but had always been able to hold a job, look after kids, and generally function normally. The line between a heavy drinker and a full-on alcoholic is fuzzy and shifting, depending on which authority you listen to, but the impacts of alcohol on Mom's life became much worse in the last year or so (difficulty at work and in interpersonal relationships because of drinking), and she relapsed repeatedly despite stated intentions to stop drinking.

      The timeframe (wait six months before initiating any legal change) is about what I was thinking of. That also gives Mom a chance to get her life together after her most recent rehab stint, and if she is able to do so, a legal change in residency won't be needed.

      Comment


      • #4
        Originally posted by stripes View Post
        The line between a heavy drinker and a full-on alcoholic is fuzzy and shifting, depending on which authority you listen to, but the impacts of alcohol on Mom's life became much worse in the last year or so (difficulty at work and in interpersonal relationships because of drinking), and she relapsed repeatedly despite stated intentions to stop drinking.
        Rehabilitation makes the line razor sharp now.

        Originally posted by stripes View Post
        The timeframe (wait six months before initiating any legal change) is about what I was thinking of. That also gives Mom a chance to get her life together after her most recent rehab stint, and if she is able to do so, a legal change in residency won't be needed.
        Talk to a lawyer. The matter is complex. You want to give the other parent time to resolve any issues but, no so much time that the material change in circumstance doesn't go unnoticed. Rehabilitation cycles are not one that court is fond of (see case law). If this is not a one-time situation and has repeated the court will move to provide a more stable environment.

        Again, super complex matter. (See case law I provided.) You have to walk around a lot of broken glass and egg shells dealing with one like this.

        Good Luck!
        Tayken

        Comment

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