The Canadian Bar Association
Family

Mental health strategy needed in family law

Legal Aid Ontario (LAO) is on the right track with a recently-released consultation paper that aims to expand access to justice for clients with mental health issues, which are especially prevalent in family law, says Oakville family lawyer and mediator Cathryn Paul.

The paper speaks to LAO’s objectives and plans for developing a larger Mental Health Strategy, and is designed to encourage participation by stakeholders.

It offers a breakdown of services currently offered in categories including community clinic services, criminal legal aid services, refugee legal aid services and family legal aid services, and outlines improvement ideas across the board.

Mental health issues generally stem from two scenarios in family law, says Paul – a mental health challenge itself can lead to the breakdown of a marriage, or a marriage ending can lead to the mental health issue.

“Sometimes they are temporary issues, and sometimes they are long-term issues, but they are certainly prevalent in family law. You are always looking out for those issues,” she says.

LAO’s establishment of Family Law Service Centres is an important step in the right direction, says Paul.

“The centres should allow for more continuity, with one person who can help people through more steps in their experience with the legal system. It can be really frustrating for anyone to go to court and deal with five different duty counsel on five different days and start all over again explaining their case,” says Paul. “It is even more challenging when the client has mental health issues and may not present the same way each time. If a lawyer is familiar with the client and the context of the case, he or she can provide better service to that client."

Paul says, “It is also important that duty counsel have training in dealing with mental health issues, as often the issues are not exactly as presented by the clients, and the duty counsel needs to decode the underlying issues. This will lead to better client service and earlier resolutions, reducing overall emotional and financial costs."

Very few family law cases go through to trial, says Paul, noting the ones that do often involve high levels of conflict, or there are mental health issues involved.

“If those people can be supported better through the process and helped to understand where a settlement would make sense, then that could help conserve court resources and be better for everybody in the long run because trials really aren’t necessarily going to help people come to a sense of closure, or fix the underlying issues,” she says.

LAO’s role is important, says Paul, noting the organization acts as the “front line” of the court system to provide both guidance and financial support for those who qualify.

The consultation paper mentions expanding access to mediation for those faced with family law challenges – an idea Paul says raises challenges in cases when mental health is an issue. Paul is a mediator who has a private practice and who conducts court-based mediations.

“One of the first things we have to do in mediation is screen each person individually to find out if mediation is appropriate, and whether there are power imbalances that can’t appropriately be dealt with,” she says, noting in a court-based mediation, time dedicated to working with the family is scarce.

“There are not a lot of resources for in-depth work, and sometimes mental health issues are not apparent in a short meeting. You have to consider whether both people can come to the table to speak up for themselves and make decisions that are in their own interests for the long run," says Paul.

"With court-based mediation, which is currently available at no cost to the parties, I would be concerned that a person with a mental illness would be at a power imbalance and the resources are not available to appropriately manage the power imbalance."


More time and better support systems could make mediation a more viable option for parties with mental health issues, says Paul, but with that comes further expenses.

"We have better ability to design an appropriate process to meet these challenges in private mediation than in court-based mediation," says Paul.

It is important that all service providers who assist parties through separation and divorce take pro-active steps to address the growing prevalence of mental health issues, she adds.

“I think it is really important that LAO does come up with a strategy,” she says. “I think it is a very good initiative that they have taken on because lawyers who do this work through LAO need this support so that they can provide the best service possible. They all want to do the best they can for the clients but they need more tools in their box in order to do that.”

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