COURT OF APPEAL FOR ONTARIO DATE: 20220408 DOCKET: C68948

Trotter, Coroza and Favreau JJ.A.

BETWEEN

A.C.V.P. Applicant (Respondent)

and

A.M.P. Respondent (Appellant)

Counsel: Juliet Montes, for the appellant William R. Clayton, for the respondent

Heard: February 15, 2022 by video conference

On appeal from the orders of Justice Donald J. Gordon of the Superior Court of Justice, dated March 11, 2019, with reasons reported at 2019 ONSC 1559, and dated December 3, 2020, with reasons at 2020 ONSC 7499.

Coroza J.A.:

Overview

[1] The parties married in May 2005, had two children, and separated in May 2014. Until November 2014, the appellant mother had primary care of the children while the respondent father had regular parenting time.

[2] In November 2014, the father brought a motion seeking, among other things, sole custody of the children with supervised access for the mother. On that motion, 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. The motion judge ordered custody on the terms sought by the father and requested that the Office of the Children’s Lawyer (“OCL”) conduct an investigation and prepare a report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). That report was prepared in 2015, and the temporary custody order remained in place until the start of the trial in September 2018.

[3] After a 30-day trial, the trial judge released his reasons for decision on March 11, 2019. He ordered sole custody of the children to the father with supervised access for the mother. In his reasons, the trial judge noted that, despite the parties’ serious allegations of each other’s conduct, neither party considered requesting an assessment pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). In his view, a s. 30 assessment may have led to a resolution of the parenting dispute or, at least, a more focused trial.

[4] As a result, the trial judge denied the mother’s request for unsupervised access because he had not been provided evidence about her mental health. However, rather than finalizing access terms and having the parties potentially litigate a motion to change, he held that it was appropriate to direct the mother to obtain a psychiatric assessment under s. 30 of the CLRA and/or s. 105 of the CJA. The trial judge provided the mother with 30 days to arrange a referral from her personal physician to a qualified psychiatrist, to obtain a written report identifying any diagnoses she may have and any treatment plans that may result. As well, the trial judge directed the mother to provide the psychiatrist with a copy of the 2015 OCL report, the trial judge’s reasons for decision, and a written direction to deliver the final report to counsel for the father and to the court.

[5] The trial judge hoped that the assessment could be completed by the fall of 2019. Regrettably, that did not occur. The trial judge convened six post-trial conference calls with counsel. On December 3, 2020, the trial judge found that compliance with his psychiatric assessment order had been long overdue. As such, he finalized his previous order of supervised access for the mother.

Issues on Appeal

[6] The mother appeals from the final orders of the trial judge and makes two submissions.

[7] First, the mother asserts that the trial judge erred by applying a misguided approach to the best interests of the children by ignoring and misapprehending the evidence tendered at trial.

[8] Second, the mother contends that the trial judge erred by ordering her to obtain a psychiatric assessment at the end of the trial pursuant to s. 30 of the CLRA.

[9] The mother requests that the final orders of the trial judge be set aside. In their place, she requests that this court order that she have unsupervised access to the children every other weekend and one Wednesday evening per week. In the alternative, she requests that this court order that the children have primary residence with her.

Fresh Evidence

[10] At the outset of the hearing, the mother brought a motion to introduce fresh evidence. The record is voluminous and consists of 441 pages. It was served on the father one week before the hearing of the appeal. It consists of the mother’s affidavit with several documents attached as exhibits. The mother argues that the fresh evidence is admissible because it establishes that the current orders are not in the best interests of the children and supports her submission that she should have unsupervised access to the children.

[11] Significantly, the fresh evidence record includes a psychiatric evaluation report from Dr. Emily Gavett-Liu, dated January 30, 2022, who assessed the mother two years after the trial judge finalized his orders. 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.

[12] For his part, the father contests the fresh evidence, citing numerous faults: that it is late; that it does not indicate that Dr. Gavett-Liu was provided with the OCL report, the trial judge’s reasons, or all the trial exhibits; and that it contains privileged materials, as well as statements barred by the rule against hearsay.

[13] The test for admitting fresh evidence on appeal requires the moving party, in this case the mother, to satisfy four criteria: (i) the evidence could not have been adduced at trial, even with due diligence; (ii) the evidence must be relevant, in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be credible, in that it is reasonably capable of belief; and (iv) 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: Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775.

[14] This court has repeatedly affirmed that the Palmer criteria are more flexible where an appeal involves the best interests of children, in which case it is important to have the most current information possible “[g]iven the inevitable fluidity in a child’s development”: Bors v. Bors, 2021 ONCA 513, 60 R.F.L. (8th) 36, at para. 58, citing Goldman v. Kudelya, 2017 ONCA 300, at para. 25, citing Children’s Aid Society of Owen Sound v. R.D. (2003), 178 O.A.C. 69 (C.A.), at para. 21.

[15] Apart from the report from Dr. Gavett-Liu, I would dismiss the motion for fresh evidence. Notwithstanding the flexible approach for receiving fresh evidence where an appeal addresses the best interests of the children, the remainder of the fresh evidence does not meet the test for admission. In my view, much of the fresh evidence could have been introduced at the trial. For example, the fresh evidence record mostly consists of medical records, letters, and correspondence describing the mother’s physical and mental health. The mother claims that all of these documents are relevant. Yet, even if that is so, all of these documents could have been introduced at the trial with reasonable diligence.

[16] However, Dr. Gavett-Liu’s 2022 report stands apart from the rest of the fresh evidence. Clearly, the mother should have complied with the trial judge’s direction to obtain a psychiatric assessment before December 3, 2020 when the trial judge finalized his order. She was given from March 11, 2019 to December 3, 2020 to do so. With that said, in light of this court’s jurisprudence that the Palmer criteria are more flexible where an appeal involves the best interests of the children, and in considering the reasons provided by the mother for the delay during oral argument, the report is admitted as fresh evidence because it is important for this court to have the most current information possible where that information is directly relevant to the children’s best interests: Bors, at para. 58; Goldman, at para. 25; R.D., at para. 21. The impact of the admission of the report on this appeal will be addressed below.

Discussion

Issue 1: The trial judge did not err in his application of the best interests of the children test

[17] The mother argues that the trial judge misapprehended and ignored evidence which undermined his conclusion that it was in the best interests of the children for the mother to continue having supervised access. She asserts that the trial judge ignored the fact that the mother was a primary caregiver, that the children desired more time with the mother, and that the father was controlling and was physically and verbally abusive to her; and that the trial judge placed a disproportionate and significant amount of weight on her mental health.

[18] I am not persuaded by these submissions, which are tantamount to a request for this court to retry the case. That is not the role of this court on appeal. The determination of parenting orders involves issues of mixed fact and law, and intervention on appeal is only warranted where there is a material error, a serious misapprehension of the evidence, or an error of law: Bors, at para. 18. In addition, appellate courts must “approach the appeal with considerable respect for the task facing a trial judge in difficult family law cases, especially those involving [parenting] issues”: Bors, at para. 19, citing C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, at para. 4. Finally, it is important to be mindful of the inherently discretionary nature of making parenting orders: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13.

[19] It is worth noting that the trial judge presided over 30 days of trial. He made detailed findings of fact on all of the issues and remained focused on the children throughout his reasons. Contrary to the mother’s assertions, the trial judge did recognize that the mother was the primary caregiver until November 2014. He also engaged with the views of the children. In his reasons, the trial judge summarized the evidence provided in the OCL report, which was prepared by an experienced social worker. The trial judge noted that the report was completed on July 8, 2015, which made it somewhat dated given the growth and development of the children over the past years. The trial judge concluded:

The children’s lives have been subjected to unnecessary turmoil and conflict. Yet they appear to have accepted their situation, perhaps on the realization they have no control. They are still grieving the loss of their mother, resultant from events in November 2014. They want to spend more time with her, as acknowledged by [the father]. In 2015, the children expressed strong views to [a social worker with the OCL] in this regard.

[20] Finally, the trial judge summarized the mother’s allegations of physical and verbal abuse. He described the father as a controlling person who had an anger management problem, and who was determined to have his way.

[21] The hurdle the mother faced was a high one. The trial judge noted that nearly five years had passed since separation. The trial judge found that concerns regarding the father’s abusive nature toward the mother no longer existed. The trial judge also found that there was no suggestion that the father demonstrated inappropriate or unfit parenting.

[22] The trial judge noted the importance of the mother’s conduct since November 2014. Specifically, she had not complied with court orders, frequently misinterpreting them in her favour. By not complying with court orders and not supporting the children’s relationship with their father, the mother has not acted in the children’s best interests.

[23] Although conflict continued between the parties, the trial judge appropriately focused on the children. He found that the father had generally supported the mother in having a parenting role in the lives of the children, but that she had not similarly supported the father. The trial judge determined that this had in the past, and would continue to have, a significant impact on the children. In his view, considering all the evidence before him, including the views and preferences of the children, the best interests of the children in this case demanded that the parents support one another’s involvement in the lives of the children. As a result, the father was given sole decision-making responsibility.

[24] I see no basis to interfere with his assessment of the best interests of the children and I would dismiss this ground of appeal.

Issue 2: The trial judge did not err in ordering a psychiatric assessment

[25] The mother contends that the trial judge erred by ordering her to undergo a psychiatric assessment at the end of trial before determining whether she could have unsupervised access to the children. She argues that the trial judge did not have jurisdiction at the end of the trial to make such an order, and that assessment reports should only be reserved for clinical issues.

[26] In this case, the trial judge held that the best interests of the children required information about the mother’s mental health for the court to assess any affect on the children.

[27] In my view, the trial judge did have jurisdiction to order an assessment pursuant to s. 30 of the CLRA and/or s. 105 of the CJA. A plain reading of these provisions and a review of the case law supports the trial judge’s request for a psychiatric assessment in this case. The cases cited by the trial judge on this point suggest that an assessment can be ordered where there is sufficient evidence that such an assessment would be directly pertinent to determining the best interests of the child: V.S.J. v. L.J.G. (2004), 5 R.F.L. (6th) 319, (Ont. S.C.), at paras. 147-48; Merkand v. Merkand, at para. 6, leave to appeal refused, [2006] S.C.C.A. No. 117; Young v. Young, 2013 ONSC 4423, at paras. 87-89; Kucan v. Santos, 2017 ONSC 6725, at para. 78; Children’s Aid Society of London and Middlesex v. B.(C.C.), at paras. 71, 87.

[28] As for the timing of the order, the trial judge was faced with a difficult situation. The trial judge noted that neither party had requested a s. 30 assessment at trial, although he also noted that the father had initially requested one at the 2014 motion (which request was not pursued further). In my view, there is nothing in s. 30 of the CLRA that would prohibit the trial judge from ordering an assessment at the end of the trial, especially in light of the trial judge’s willingness to revisit his preliminary conclusion about access upon obtaining the results of the assessment. Section 30 of the CLRA is silent as to when assessments may be ordered, so it follows that the trial judge had the discretion at the end of the trial to order an assessment. The trial judge explained clearly why he needed this evidence to determine whether the mother having unsupervised access was in the best interests of the children:

The motions 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.

[29] I would defer to the trial judge’s decision that the assessment was reasonably necessary to help determine material issues before the court.

[30] I do not accept the mother’s submission that the trial judge erred because such reports should only be reserved for clinical issues. The trial judge determined at the outset of his reasons that there were clinical issues identified at trial that had, and may continue to have, a direct impact on the children. In any event, the weight of the jurisprudence suggests that there are no hard and fast rules in determining whether to order an assessment under s. 30 of the CLRA; rather, the inquiry is fact-driven and flexible: see e.g., Glick v. Cale, 2013 ONSC 893, 48 R.F.L. (7th) 435, at para. 48; A.A. v. D.S., 2022 ONSC 1389, at paras. 30-45. See also Kramer v. Kramer (2003), 37 R.F.L. (5th) 381 (Ont. S.C.); Parniak v. Carter (2002), 30 R.F.L. (5th) 381 (Ont. C.J.); Glance v. Glance (2000), 10 R.F.L. (5th) 276 (Ont. S.C.).

[31] The trial judge was justifiably concerned about the direct effect on the children of the mother’s mental health. This was prominent at trial. The author of the OCL report testified at trial that she was more concerned about the mother’s mental health now than she was back in 2015, at which time she recommended sole custody to the father and supervised access for the mother.

[32] In sum, I decline to interfere with the trial judge’s discretionary decision to require the mother to undergo a psychiatric assessment. The trial judge had jurisdiction to direct such an assessment to carefully consider the mother’s request that access to her children be unsupervised. 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 Report of Dr. Gavett-Liu

[33] In December 2020, following numerous conference calls and a change of counsel for the mother, the trial judge found that compliance with his order for the mother to produce a psychiatric assessment had been long overdue. As such, he finalized his previous order of supervised access for the mother. As noted above, in January 2022, Dr. Gavett-Liu completed a psychiatric assessment of the mother. She concluded 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.

[34] Although I would admit the report as fresh evidence, it does not impact on the result of the appeal because I give it very little weight. I have significant concerns with the timing of the report. The report creates a whole new record and was only served on the father about a week before this appeal was to be heard. The father has not been given the opportunity to question Dr. Gavett-Liu as to her opinions, nor has he been able to address the report in any meaningful way. In addition, the father raises the following concerns:

Dr. Gavett-Liu states that she read the order of the trial judge, but it is not clear that she read the reasons, nor whether she was even provided with the reasons.
Dr. Gavett-Liu does not indicate that she was provided with the OCL Report.
Dr. Gavett-Liu makes reference to emails authored by the mother which were exhibits at the trial. She recites a description of the content of the emails provided to her by the mother, but it is not clear that the psychiatrist saw the emails or the note that were exhibits at the trial, and which raised a key concern on the part of the trial judge as to the mental health of the mother.

[35] In the absence of questioning, I share the concerns outlined by the father. To rely on this report without providing the father a meaningful opportunity to test its contents would be unfair and not in the children’s best interests.

[36] More significantly, the timing of the report is consistent with the trial judge’s observation that the mother has shown an inability to follow court orders. The trial judge had evidence before him that the parties’ temporary parenting regime fell apart in September 2015, when the mother did not return the children to the father as scheduled. The father successfully brought a motion without notice, which granted him interim sole custody of the children, ordered the children to be returned immediately, and the mother to have no access until further order. Police officers apprehended the children from the mother and returned them to the father. Again, it bears repeating: the trial judge also found that the mother had not complied with court orders, instead frequently misinterpreting them in her favour. By not complying with court orders and not supporting the children’s relationship with their father, the mother has not acted in the children’s best interests.

[37] I acknowledge that the report appears to support the mother’s submission that she should have unsupervised access. However, the proper avenue for the mother to pursue that position is by bringing a motion to change at the Superior Court of Justice, where the father can be granted questioning and an appropriate time to respond.