The assessment report was pertinent to the analysis of the best interests of the child
The Ontario Court of Appeal has upheld an order for a mother to undergo psychiatric assessment at the end of a custody proceeding since it was directly pertinent to the best interests of the child.
In A.C.V.P. v. A.M.P., 2022 ONCA 28, the couple separated in 2014. In November 2014, the father brought a motion seeking sole custody of their children with supervised access for the mother. He argued that the mother had serious mental health issues. In response, the mother alleged that the father was physically and verbally abusive during their marriage.
After trial in March 2019, the judge granted the father’s motion. He noted that despite the serious allegations by both the mother and the father of each other’s conduct, neither requested an assessment pursuant to the Children’s Law Reform Act, RSO 1990, c c 12 (CLRA), which could have led to a resolution of the parenting dispute. However, instead of finalizing the orders, the judge gave the mother 30 days to obtain the psychiatric assessment and written report of any diagnoses she may have.
In December 2020, the psychiatric assessment order had not been complied with, so the judge finalized his previous order on the mother’s supervised access.
The mother appealed, alleging that the trial judge misapplied the best interest of the child approach by misapprehending evidence and erred in requiring a psychiatric assessment at the end of the trial. She also brought a motion to introduce fresh evidence, a voluminous record comprising of her affidavit and several documents including the psychiatric evaluation report.
The appeal court disagreed.
First, the court ruled that the mother’s argument was tantamount to a request to retry the case, which was not the role of the court on appeal. In addition, the trial judge found that concerns regarding the father’s abusive nature no longer existed, since it had been almost five years since their separation and there was no suggestion that the father showed inappropriate or unfit parenting, said the appeal court.
Second, the court ruled that the trial judge had jurisdiction to order the assessment, since it was directly pertinent to determining the best interests of the child. As to the timing of the order, there is nothing in the CLRA that prohibits an order of assessment at the end of a trial, especially when the judge was willing to revisit his preliminary conclusion, said the court.
Finally, the appeal court found that only the psychiatric report met the test for admitting fresh evidence, since the other documents could have been introduced at trial. However, the report was given very little weight, since the father was not given the opportunity to question the physician or address the report in a meaningful way, said the court. Further, the timing of the report corroborated the judge’s observation of the mother’s inability to follow court orders, the court added in dismissing the appeal.
