Written on behalf of Shariff & Associates
When it comes to determining parenting time and decision-making ability, courts must consider a number of factors. These include the children’s ages, future plans, the role of the extended family, and even the parents’ mental health. If the effect of a parent’s mental health on their child is called into question, judges may order an assessment to help them decide the outcome of a case. In a recent decision at the Ontario Court of Appeal, a parent’s access to her children was limited as a result of failing to comply with an order to undergo a psychiatric assessment.
The mother was initially the primary caregiver
The former spouses married in 2005 and separated in May 2014. Their separation had been contentious, eventually leading to a 30-day trial in 2018. Between May and November 2014, the mother had primary care of their children while the father had regular parenting time.
Report by the Office of the Children’s Lawyer shifts temporary sole custody to the father
In November 2014, the father filed a motion for sole custody of the children He alleged that the mother had serious mental health issues, including suicidal ideation and depression. In turn, the mother accused her former spouse of verbal and physical abuse. The motion judge granted the father’s motion and requested that the Office of the Children’s Lawyer conduct an investigation and prepare a report pursuant to s. 112 of the Courts of Justice Act,
In Ontario, the Office of the Children’s Lawyer is an independent law office in the Ministry of the Attorney General that delivers justice programs on behalf of children. It consists of lawyers and clinicians, including social workers, who act on behalf of children throughout Ontario. Judges can request that the Children’s Lawyer prepare a report to provide the court with an independent evaluation of the situation and the needs of the children involved.
In this case, an investigation was conducted by the Children’s Lawyer in 2015. The report resulting from that investigation supported a temporary custody order for the father until the start of the trial in September 2018. The mother was granted supervised access.
The mother neglected to get a court-ordered assessment
The 2018 trial judge noted that neither party had requested a professional assessment of the other since the 2015 report. An assessment can be useful in situations where there are complex and contentious issues that require a professional evaluation, or where there are serious concerns about mental health. Given the last report obtained by the court was outdated, it was important for the trial judge to know more if the mother wanted unsupervised access. He explained :
“The [previous] judges were concerned with the various emails and other communications authored by [the mother]. Those concerns continue. She made disturbing comments regarding depression and ending her life. Her explanation cannot be compelling in the absence of a medical opinion. It is beyond my ability to reach any conclusion as to the state of her mental health.”
Without the benefit of an independent assessment of her mental status, the trial judge denied the mother’s request to change the custody order that had been in place since 2015. However, he agreed that she should be given the opportunity to present new evidence, and ordered the mother to obtain a psychiatric assessment before he finalized his decision.
After six post-trial conference calls and nearly two years, the mother still had not undergone the ordered assessment. In December 2020, the trial judge finalized his previous order granting supervised access to the mother without the benefit of an updated psychiatric assessment.
Judges need the most current evidence at trial
The mother appealed the decision stating the trial judge should not have ordered an assessment at the end of the trial. The Court of Appeal disagreed. The trial judge was allowed to order the psychiatric assessment and had to do so to carefully consider the mother’s request. However, in so holding, the court noted that:
“It was undeniably important for the trial judge to have the most current information about the circumstances of the parties, their parenting abilities, their overall functioning and well-being, and the particular needs of the children before the court.”
The mother attempted to introduce a new psychiatric report at the appeal, but the court dismissed her motion to do so. The father had not been given enough time to review it, and the doctor conducting the assessment had not been provided with all relevant information. For these reasons, the appeal was dismissed.
This decision underscores the importance of completing court-ordered assessments in a timely manner, and the key role these assessments can play in the outcome of a contentious family law hearing. It is important to note that a failure to update an assessment does not mean that a custody arrangement can never be changed. If you have missed a deadline to complete an assessment, talk to your family lawyer to discuss your options.
Contact the Divorce Lawyers at Shariff & Associates in Stouffville for Assistance with Decision-Making Responsibility
The family lawyers at Shariff & Associates assist clients with separation and divorce, mediation, settlement offers, and understanding their rights and obligations as a party to a parenting dispute. We will review your situation and provide a realistic assessment of the likelihood of successful outcomes and explore your other options. We will advocate for the best possible outcome on your behalf. To review your matter with a member of our team, please reach out to us online, or call us at 905-591-4545.