A.C.V.P. v. A.M.P., 2022 CarswellOnt 4581 (C.A.) — Trotter, Coroza and Favreau JJ.A.

The timing of Assessments

Background

The parties were married in 2005 and separated in 2014, they had two children together. The mother had primary care of the children and the father had regular parenting time. In November 2014, the father brought a motion seeking sole custody of the children with supervised access for the mother. The father alleged the mother had serious mental health issues, whilst the mother alleged the father had physically and verbally abused her during the latter half of the marriage. The motion judge ordered custody on the father’s terms and requested the Office of the Children’s Lawyer (“OCL”) conduct an investigation and prepare a report pursuant to section 112 of the Court of Justice Act. The report was prepared in 2015, and the temporary custody order stayed in place until trial in September 2018. Following the 30-day trial, the trial judge ordered custody on the father’s terms once again, without finalizing the order of supervised access. The trial judge held that it was appropriate to direct the mother to obtain a psychiatric assessment under section 30 of the Children’s Law Reform Act (“CLRA”), however, the assessment was not completed by 2019, and the trial judge convened six post-trial conference calls. After which, the trial judge finalized the previous order of supervised access for the mother in December 2020.

Analysis

The mother appeals the final order and contends that the trial judge erred by ordering her to obtain a psychiatric assessment at the end of the trial pursuant to section 30 of the CLRA. The mother requests the final order be set aside, and she have unsupervised access every other weekend and one Wednesday evening per week. In the alternative she requests that the children have primary residence with her.

The mother brought a motion to introduce fresh evidence, which consisted of a 441-page document served on the father one week before the hearing of the appeal. The fresh evidence includes a psychiatric evaluation report from Dr. Emily Gavett-Liu, dated January 30^th, 2022. Dr. Gavett-Liu is of the opinion that the mother does not have any mental health issues, does not pose a risk in parenting her children, and does not require a treatment plan.

The father contests the fresh evidence, citing that it is late, it does not indicate that Dr. Gavett-Liu was provided with the OCL report amongst other privileged materials. The test for admitting fresh evidence requires the mother to satisfy four criteria from Palmer v. The Queen 1980 S.C.R.:

1. The evidence could not have been adduced at trial, even with due diligence;
2. The evidence must be relevant, in that it bears on a decisive or potentially decisive issue;
3. The evidence must be credible, in that it is reasonably capable of belief; and
4. The evidence must be such that, if it is believed, and when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result at trial

However, the court has affirmed that the Palmer criteria are more flexible where an appeal involves the best interest of children.

The judge dismissed the motion for fresh evidence, apart from the report of Dr. Gavett-Liu, as it addresses the best interest of the children. The judge finds that the mother should have complied with the trial judge’s direction to obtain a psychiatric assessment prior to 2020, when the judge finalized his order. The judge viewed that the trial judge did have jurisdiction to order an assessment pursuant to section 30 of the CLRA. Where there is sufficient evidence that such an assessment would be directly pertinent to determining the best interest of the child, an assessment can be ordered (Merkand v. Merkand 2006 Ont. C.A. para 6).

The trial judge was faced with the difficulty of timing the order. In the judge’s view, there is nothing in section 30 of the CLRA that would prohibit the trial judge from ordering an assessment at the end of a trial, combined with his willingness to revisit his conclusion about access upon obtaining the assessment results. The judge found the trial judge did not err in ordering the assessment as he was concerned about the direct effect of the mother’s mental health on the children.

Lastly, the judge found that the report of Dr. Gavett-Liu, although accepted as fresh evidence, was not given weight. The timing of the report was concerning, as it was served a week prior to appeal, and the father was not given the opportunity to question Dr. Gavett-Liu in a meaningful way and was not provided the OCL report. The timing of the report displays that the mother is unable to follow court orders, and the proper avenue to pursue this position would be to bring a motion to the Superior Court of Justice.

Conclusion

For these reasons, the judge dismissed the appeal, and the father was entitled costs.

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