Access refers to a parent’s time spent with a child. Access arrangements are often made between the parents with the help of a family lawyer or mediator. Where the parents can’t agree, a court may be tasked with determining an arrangement. When dealing with parenting issues the focus is on the children, with determinations made in their best interests.

This article looks at the use by courts of assessments of the ability of parents to satisfy the needs of the child. We also take a look at a recent decision of the Court of Appeal for Ontario in which an order was made requiring a parent to undergo a psychiatric assessment to assist the court to determine whether she could have unsupervised access to the children.

The child’s best interests

When an Ontario court makes a parenting order regarding decision-making responsibility concerning the child or parenting time, according to section 24 of the Children’s Law Reform Act (CLRA), the court is to only take into account the best interests of the child.

In determining the child’s best interests, the court shall consider all factors related to the circumstances of the child and shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.

Assessment of the needs of a child and the ability and willingness to satisfy those needs

Under section 30 of the CLRA, the court may appoint a person who has the technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of a party or the parties to satisfy the needs of a child. This type of order can be made on or before the hearing of the application.

To facilitate the assessment, the court can require the party or child to attend for assessment by the relevant professional. Where the person refuses to undergo the assessment, the court may draw such inferences in respect of their ability to satisfy the needs of the child as it considers appropriate.

The professional files a report of the assessment with the court and it is admissible in evidence in the application. The parties may require the professional to attend as a witness at the hearing.

This process does not prevent the parties from submitting other expert evidence as to the needs of the child or the ability and willingness to satisfy those needs.

Father sought sole custody of children with supervised access for the mother

In A.C.V.P. v A.M.P., the parties married in 2005, had two children and separated in 2014. Until November 2014, the mother had primary care of the children while the father had regular parenting time.

In November 2014, the father brought a motion relevantly seeking sole custody of the children with supervised access for the mother. The father alleged that the mother has serious mental health issues, including suicidal ideation and depression. In response, the mother alleged that the father had physically and verbally abused her during the latter half of their marriage.

Superior Court ordered the mother to obtain a psychiatric assessment

Justice Gordon heard the father’s evidence relating to the mental health of the mother, including “disturbing comments regarding depression and ending her life”, and the mother’s allegations of abuse by the father. His Honour was critical of the father’s conduct regarding the circumstances pertaining to the separation but explained that the focus was now on the best interests of the children going forward.

His Honour awarded sole custody to the father. Regarding access, Justice Gordon noted the absence of evidence regarding the mother’s mental health. His Honour was not prepared to move to unsupervised access until medical opinion evidence was presented. In response to the father’s request for an order requiring the mother to obtain a psychiatric assessment, Justice Gordon said:

Indeed, this is a case where a section 30 CLRA assessment ought to have been requested at the outset. The communications of [the mother] and her conduct are troubling. It is in the best interests of the children to determine if there is an underlying mental health issue or not. The court cannot be asked, in effect, to make a diagnosis. Nor can it ignore the evidence that was presented. In these circumstances, I conclude a psychiatric assessment … is warranted.

His Honour required the mother to obtain a referral to a psychiatrist within 30 days. Rather than finalizing access terms and having the parties potentially litigate a motion to change, Justice Gordon envisaged reviewing the access terms in late 2019 after the psychiatrist’s report had been obtained.

The mother did not comply with the order for psychiatric assessment; Court of Appeal dismisses her appeal

After many post-trial conference calls, the order for psychiatric assessment remained overdue. As a result, Justice Gordon finalized the order of supervised access for the mother. She appealed this decision and sought to introduce fresh evidence including a psychiatric evaluation report.

The Court of Appeal held that it was permissible for the trial judge to order a psychiatric assessment at the end of the trial and deferred to his Honour’s decision that the assessment was reasonably necessary to help determine material issues before the court.

The Court decided to admit the mother’s psychiatric report as it was important for the court to have the most current information possible where it is directly relevant to the children’s best interests. However, because the report did not comply with the trial judge’s order (including a requirement that the psychiatrist be provided with the court’s reasons) and the fact that the father was not given the opportunity to question the psychiatrist as to her opinions, the Court dismissed the mother’s appeal.

The Court noted that the report appeared to support the mother’s submission that she should have unsupervised access. The mother would need to pursue a change to the order by applying to Superior Court.

Contact NULaw in Toronto to Protect Your Custody and Decision-Making Rights

If you are experiencing child access and parenting time disputes, contact the experienced family lawyers at NULaw in Toronto. NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters including custody and access. Contact us online or at 416-481-5604 to book a consultation.

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