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Addiction affects families in many ways: alcoholism, drug dependency, gambling and sex addiction are some that advisors may have encountered in their clients. If the addicted spouse does not seek treatment, or the treatment fails, divorce can be the result.

Spouses often reflexively seek out lawyers to battle their case in court. But the adversarial process only intensifies conflict and is likely to increase the emotional damage already inflicted by addiction. Meanwhile, the slow pace of a prolonged court case is agonizing, adding high legal expenses to the financial pressures of separation.

Read: How advisors can support healthier divorces

Fortunately, effective alternatives to the court system are available. Mediation and collaborative law are well-suited to family disputes arising from addiction. These methods reduce conflict and assist spouses in crafting solutions that meet their needs. Since mediation and collaborative law are more streamlined than the court process, the parties are able to reach a resolution in a timely and cost-effective way.

Impact of addiction on legal issues

Divorce cases where addiction is a factor require lawyers, mediators and the parties themselves to grapple with unique legal issues, especially around financial support and child custody. For example:

  • 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 child support be protected from a recipient who is a gambling addict? In Spence v. Spence, the judge ordered that child support payable by the mother would be paid to a trustee instead of to the gambling addicted father. The trustee would administer the support for the benefit of the child.
  • Is an alcoholic spouse entitled to spousal support? In Howe v. Howe, the alcoholic wife couldn’t hold onto a job. The judge decided that the husband did not have to pay support to her because her alcoholism was not his fault and was not related to the marriage.
  • What can be done when an addicted spouse has recklessly depleted assets during the marriage? In most cases, when a married couple separates, the property settlement is based on an equalization between them. However, under the Ontario Family Law Act, when one spouse has been guilty of recklessly depleting assets, the court may order an unequal division in favour of the victimized spouse.
  • What can be done to protect assets from being depleted by an addicted spouse? The Ontario Family Law Act allows the court to grant a “preservation order.” This may be in the form of a restraining order or an order to physically deliver up possession of the property for safekeeping by one of the lawyers or accountants on the file.

Safeguarding the children of addicts

How can the children be kept safe when a parent is an alcoholic or drug addict? Judges typically attempt to minimize the risk to children by measures such as requiring the parent’s access to be supervised by an independent supervision centre or a trusted family member; drug testing; ordering prohibitions on the consumption of alcohol and drugs before and during access; and granting custody to the stable parent. Outside agencies such as Children’s Aid and the Office of the Children’s Lawyer can assist the court in crafting safe solutions for the children.

Read: OSC’s pilot mediation project is now permanent

In Fidani v. Quintieri, the wife was taking treatment for drug addiction, but the treatment was not yet successful. Children’s Aid was involved with the family. The husband was granted temporary custody. The wife’s access had to be supervised initially; she could graduate to unsupervised access if Children’s Aid agreed.

In Lawrance v. Lawrance, the judge accepted that the alcoholic mother had reached a stage where she could abstain and not relapse, but decided that she needed more time 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.

When the courts may be required

While mediation and collaborative law are effective in many cases, there are times when it’s best to resort to court. When there are concerns that the addicted spouse will be dishonest, manipulative or coercive, the case may be better suited for a judge to determine credibility and control bad behaviour during the proceeding.

Read: Prevent problems with bequests

In theory, an agreement negotiated through collaborative law or mediation is a legally binding contract on both parties, but some terms in an agreement may be more difficult to enforce without a court order. For example, if a parent anticipates that the other parent will not comply with access terms, enforcement by the police can be incorporated into a court order but not into an agreement. A spouse who disobeys a court order may also be brought into line by bringing a contempt motion, a remedy that is not available for breach of an agreement. In Ontario, however, agreements for support can simply be filed with the court, making them as enforceable as support orders.

When addiction is an element in a family breakup, the issues become more complicated. Choosing the most appropriate way to tackle the problem, whether by mediation, collaborative law or litigation, gives the parties the best chance of arriving at a successful resolution.

Nathalie Boutet is a family lawyer, mediator and certified Family Enterprise Advisor™ specializing in high-net-worth families and business owners. She can be reached at nboutet@boutetfamilylaw.com.
Originally published on Advisor.ca
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