Addiction is a very real issue that haunts families in many ways. Alcoholism, drug dependency and gambling are the most common, while sex and digital addiction are also driving couples to divorce.

Often, at their wits end, frustrated and desperate spouses will hire lawyers to get protection in court. But litigation, by nature, is an adversarial process that only intensifies conflict and increases the emotional damage already caused by addiction. In addition, financial pressures caused by the family break-up become compounded by the high legal expenses of a slow court case.

But there are effective alternatives to the court system, such as mediation and collaborative law, which can be well-suited to family disputes arising out of addiction, provided the professionals involved have a certain experience dealing with these more complex cases. More streamlined than court, mediation and collaborative law allow spouses to reach a resolution in a timely and cost-effective way, in a private setting. In fact, the government is proposing important amendments to the Divorce Act, one of which is to mandate that lawyers inform clients of the option to choose mediation or collaborative law, since these methods reduce conflict and assist spouses in proactively crafting solutions that meet their needs.

For example, in a recent mediation case involving a sex addicted spouse with alcohol issues, I worked with the addict client and their spouse to customize parameters on the person’s conduct around alcohol consumption, and restrictions on who could be present during visits with the children. Because the parties were invested in the process and they worked together rather than against each other, we were able to achieve a solution that was acceptable to both parties.

I mediated another 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.

Mediated and negotiated cases can only happen if the addict is willing to be open about the addiction and if the other spouse is willing to work with less than perfect circumstances.

But not all families can resort to non-court processes. There is an array of unique legal issues arising out of addiction that have been resolved through the courts. Here are a few examples 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.
  • 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.
  • 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. While the father’s fantasies led to poor judgment and inappropriate social behaviour, 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.

Each of the judges in these cases strived to reach a fair solution. However, the reality is they work within a system that can take years before resolution is reached, while the parties are subjected to constant stress, great expense and legal rulings that are out of their control.

When addiction plays a role in a family breakup, the issues become more complicated. There are some cases where it is best to resort to court, but it’s not the only option. 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

Nathalie Boutet is an experienced family law lawyer, accredited mediator and certified Family Enterprise Advisor™ skilled at providing unique strategies and out-of-court results to the complex legal, financial and human matters related to separation or divorce for high-net-worth families and business owners.

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