Overview

[1] The applicant father brought an urgent motion seeking relief based on concerns about the respondent mother’s mental health. The father sought an order that, on a temporary basis:

a) the parties’ six-month old son reside with the father;

b) the mother’s parenting time be supervised; and

c) that the mother undergo a psychiatric assessment.

[2] I granted the father’s motion with written reasons to follow. These are those reasons.

Discussion

[3] The parties are a recently married couple of Serbian origin. The father is Canadian born. The mother arrived in Canada from Serbia on January 9, 2020. The mother speaks very little English and is in the process of applying for permanent residence status in Canada.

[4] The father operates a restaurant and bar in Toronto. The restaurant is closed due to the COVID-19 pandemic. The father also works at the Toronto Transit Commission (TTC) but, due to the pandemic, is on reduced work hours. On weekdays, he is typically out of the house from 5:40 a.m. to 11:00 a.m.

[5] The mother is a professional singer. The couple met online in late 2019, and their relationship blossomed after the mother’s arrival in Canada. The mother performed at the father’s restaurant before the pandemic related shutdowns.

[6] The parties were married on March 9, 2020. The respondent was already pregnant. The parties’ son, N, was born on October 21, 2020.

The Father’s position

[7] The father claims that, soon after the couple was married, the mother began to exhibit odd behaviour such as going through his cell phone messages, accusing him of cheating on her and having an affair, taking knives and threatening to cut herself, threatening to jump from the couple’s 9th floor balcony, and not eating. The father became increasingly alarmed by the mother’s verbal and physical abuse of him, and threats of self-harm.

[8] On March 26, 2020, the mother sent the father a photo which looked like she had cut her wrist. In the messages leading up to the photo, the mother claimed that she had drunk medicine. She wrote “God forbid I wake up” and “you will see.” As explained below, the mother may not have cut her wrist, but may have applied red hair dye to tissue paper placed over her wrist and taken a photograph.

[9] The father persuaded the mother to seek assistance. She consulted online with Filip Tasic, a psychologist based in Serbia. The mother attended around eight virtual sessions with Mr. Tasic between April and May 2020.

[10] The father provided a professional English translation of Mr. Tasic’s report dated June 30, 2020. The report indicates that Mr. Tasic knew the mother from having a few sessions in Serbia two years earlier, because she was having problems with her former boyfriend. Mr. Tasic’s report states that:

The patient has borderline personality disorder with borderline traits. The patient has paranoid symptoms regarding relationships, as well as high level of distrust in general, tendency to question loyalty and obsessive interest for details regarding the life of the partner. She also has panic attacks, as well as high level of anxiety in certain situations followed by a line of psychosomatic symptoms, such as high blood pressure, difficulty breathing, difficulty sleeping and teeth grinding. The patient has issues with affection and emotion regulation in general.

There are no other psychotic symptoms present. Typical depression symptoms are not present, nor are suicidal thoughts nor thoughts of self-harm.

The client will continue with the psychotherapy alone and with the partner, once a week. It is recommended that she attend individual and couples therapy, and that medication be introduced in consultation with psychiatrist because of her pregnancy.

[11] The father deposed that a serious incident occurred on June 20 to 22, 2020, when the respondent was five months pregnant. He claims the respondent was screaming, yelling and swearing at him, hitting him and threatening to kill herself. She told the father that she could not breathe and was visibly gasping for air. The father called an ambulance which took the respondent to Rouge Valley Centenary Hospital. The nurses told the respondent that she was having a panic attack. After she calmed down, she returned home. The respondent immediately had another panic attack and again claimed that she could not breathe. The father drove the mother again to hospital and, en route, the mother allegedly struck him, and proceeded to try to jump out of the moving car. Ultimately, the couple reached the hospital safely and the mother was kept overnight for observation. Upon release from hospital, the mother was referred to Dr. Krstic, a psychiatrist.

[12] The father deposed that Dr. Krstic conducted a 45-minute assessment and “deduced that the mother was in shock from immigration”.

[13] The mother’s mental health stabilized through the rest of the pregnancy until N’s birth in October 2020. Unfortunately, according to the father, it deteriorated again.

[14] The mother attended counselling with Ruzica Vujcic, a marriage counsellor and psychotherapist and the father attended several of the sessions which were once a week for five months. Ultimately, the mother discontinued counselling with Ms. Vujcic. Given that Ms. Vujcic was a psychotherapist, she could not conduct a psychiatric assessment.

[15] On November 12, 2020, the mother allegedly held a knife to her wrists threatening to kill herself and came at the father with a knife. The father videotaped this incident. I viewed the video and discuss the incident below.

[16] The father reported that the mother also became very forgetful and negligent, leaving everything in the oven and burning whatever, she was cooking.

[17] The within motion was precipitated by an incident that occurred in April 2021. On April 21, 2021 the mother accused the father of talking to a woman online. The mother allegedly screamed so loud that another tenant filed a noise complaint. The father slept the night at his mother’s house, 10 minutes away. The father returned home on the evening of April 22, whereupon the mother started screaming at him again, physically assaulting, punching and kicking him. The father left the residence and went down to the parking lot, the mother followed and allegedly attacked him, grabbing and pulling at his clothes and body. The building security became involved and called the police. The police have laid criminal charges against the mother that remain outstanding. The mother is not to contact the father except for parenting issues.

[18] Relevant, for the purposes of this motion, is the father’s allegation that the mother left the couple’s baby alone in the residence when she followed the father down to the parking lot.

[19] Immediately after the April 22 incident, the parties separated, the mother initially living with the baby in the matrimonial home, with the father living with his mother. On April 23, a friend of the mother’s, DB, acted as an intermediary. On April 24, the father’s mother and sister attended at the matrimonial home purportedly to deliver groceries and cash, which led to another incident where the police were called.

[20] On April 26, 2021, DB allegedly invited the father to attend the matrimonial home to see N while the mother was not present. The father attended with family members and took N back to N’s grandmother’s place where the father was staying. The parties’ lawyers became involved and N was not returned to the mother’s care, all of which led to the present motion.

[21] The father claims he wants the mother to have a full relationship with N in the child’s best interests, but that he is worried about the mother’s mental health and the safety of N in her care. He is seeking an order that, on a temporary basis, N reside with the father, the mother be restricted to supervised parenting of N, and that the mother undergo a psychiatric assessment.

[22] The CAS has been notified and has done an intake concerning the family’s situation. No protection application has been commenced.

The Mother’s Position

[23] The mother strongly disputes the father’s characterization of events.

[24] The mother deposed that she began working at the father’s nightclub as a singer as soon as she arrived in Canada. The couple’s romance, which had begun online, intensified very quickly after the mother’s arrival in Canada. The mother became pregnant a month after arrival.

[25] The mother claims that as soon as she told the applicant that she was pregnant, his behaviour towards her changed. He allegedly became cold, cruel and distant. She was pregnant, alone in a new country, did not speak English, had no friends, and was locked up in quarantine and living with her in-laws. She claims that the father was rarely home, often staying out overnight and refusing to answer her texts. She began to suspect that he was seeing another woman.

[26] The mother deposed that she asked for the father’s love and attention but that he constantly told her that she was crazy and one “for psychiatry”. She claimed that while she wanted to return to Serbia, the father insisted that they wait until they knew the sex of their child. If it was a girl, she could go back; but if it was a boy, she could not leave until she gave birth to the couple’s son.

[27] With respect to the photo of her “slit wrist” she deposed that in a desperate cry for attention she used red conditioning hair dye to mimic blood, and sent a photo of her wrist covered with a Kleenex soaked in the dye. She is not proud of this action.

[28] She acknowledged attending around ten sessions with Mr. Tasic, the psychologist in Serbia, however, she stopped seeing Mr. Tasic because the father refused to pay for the sessions and wanted to find a therapist who could be paid through his employer’s group insurance plan.

[29] The mother disputes the English translation of Mr. Tasic’s letter provided by the father, or Mr. Tasic’s diagnosis of borderline personality disorder. She claims the relevant translation reads:

V was in huge distress: she was pregnant, alone in a country where she does not have friends or family other than her husband Simo, and she was there during the outbreak of the Covid pandemic, and I associate a lot of her symptoms to the situation itself.

[30] On June 1, 2020, when the respondent was six months pregnant, the parties moved into their own apartment. The mother claims this was when the applicant’s verbal abuse escalated to physical abuse. She claims that, on one occasion in July 2020, the applicant got upset and threw her down from a chair she was standing on while trying to reach the top shelf of a kitchen cupboard. She also alleges that, in February 2021, the father grabbed her face and said, “I’m not going to kill you today or tomorrow but when you least expect it.”

[31] The mother denies being forgetful or that she ever left anything in the oven for too long or burned what she was cooking.

[32] The mother also disputes the father’s version of events where she was hospitalized overnight. She claims that when the parties fought, her blood pressure spiked. She asked the father to call an ambulance. When she arrived at the hospital, two midwives asked her if the father was abusive. She lied and said no because she was scared and did not want to make problems for the father. She answered their questions through Google Translate. On the way home, the parties allegedly got into another fight. She acknowledged becoming very scared and telling the father that if he did not stop the car, she would throw herself out the window. She felt coerced into reattending at the hospital. She does not believe that it was the hospital that decided to keep her overnight, but rather the documentation that the father made her sign. She was terrified when she realized she was being admitted to a psychiatry ward overnight in the middle of a pandemic. She was discharged the next day after an interview with a physician where she denied that she was suicidal.

[33] The mother was referred to a psychiatrist, Dr. Krstich, by her family doctor, Dr. Hujic. She claims she had one session with Dr. Krstich who advised her that she was fine and did not need any medication. The mother produced a note from Dr. Krstich’s directed to Dr. Hujic dated July 6, 2020. The relevant excerpts from Dr. Krstich’s letter state:

Mrs. V was seen in assessment on July 1, 2020.

While staying on the psychiatric floor she had a panic attack. She suffered from anxiety even before that. She sleeps well now. She described her mood as having mood swings. She is either happy or is crying for no reason. Her appetite is ok and the baby is also ok.

Mrs. V saw a psychologist twice two years ago. She had a bad experience with her former boyfriend who was physically abusive with her and attempted to rape her. She denied drug and alcohol abuse or legal problems.

Medical Hx: is unremarkable.

She denied positive psychiatric history in the family.

Mental Status: Mrs. V presented as a casually dressed and groomed young woman. She was very elaborative about her problem. She was tearful and apathetic looking. There is no evidence of perceptual abnormality, formal thought disorder, delusional content or suicidal thoughts. Her affect was apathetic. Her cognitive functions were not formally tested, but did not seem to be impaired.

DIAGNOSIS: Adjustment Disorder with Mixed Emotional Features

[34] Dr. Krstich stated that the mother did not require any medication, and that she was hesitant to give medication to any pregnant woman. She stated that the mother has an adjustment problem – adjusting to a new culture without knowing the language and being pregnant at the same time.

[35] With respect to the father’s allegation about an incident in November 2021 where the mother was holding a knife, the mother deposed that she had just found out that the applicant had a child with his first wife who he married in 2006. She was cutting a cake with a knife, and the applicant provoked her so much that she held the knife to her wrist.

[36] I watched the video in question. As the dialogue is in the Serbian language and an English translation was not provided, I could not tell what the parties were saying, however, the video, which lasts 34 seconds, is disturbing. It clearly depicts the mother holding a knife to her wrist and then walking with the knife in her hand towards the father. They appear to be having an argument.

[37] The mother also disputes the father’s version of events of April 21-23, 2021. She alleges that the father came home and told her that he was leaving her. She was crying and begging him to not leave. She alleges that the whole time the father was recording her with a small spy camera. The mother claims that it was the father who told the building security to call the police. She was scared and in shock when the police charged her with assault.

[38] Overall, the mother claims that she never had mental health problems and that, before coming to Canada, she only voluntarily consulted a psychologist, Mr. Tasic, on two occasions five years ago after she left an abusive relationship.

[39] The mother believes that the father plans to have her declared mentally ill so that he can take N away from her. She submits that the father has exercised self-help by attending with others at the matrimonial home on April 26, 2021 and taking N away from her. She has not seen N in person since that time.

Discussion

Should the respondent mother be ordered to undergo a psychiatric assessment?

[40] At the hearing of the motion, the respondent consented to undergo a psychiatric assessment. This aspect of the motion has effectively been decided on consent and I will make an order to that effect. In any event, and despite the heavily contested evidence before me, I would have made that order since I have enough of a concern about the mother’s mental health that I believe such an assessment is warranted.

Should the mother be restricted to supervised parenting time?

[41] Given the urgency with which this motion was brought, I permitted the parties to proceed to the motion without providing facta. Indeed, the responding materials were filed only a few hours before the motion was heard.

[42] In Bell v. Reinhardt, 2021 ONSC 3352, the court summarized the relevant law particularly following the recent changes to family law legislation in Canada:

[10] Significant amendments to the Divorce Act came into effect on March 1, 2021, which are of direct application to this situation. I am required to have regard to these statutory provisions when assessing the present situation.

[11] Subsection 16(1) of the Divorce Act now provides that the court shall take into consideration only the best interests of the child of the marriage in making a parenting order.

[12] Subsection 16(2) provides that, when considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[13] Subsection 16(3) enumerates a number of factors to be considered in determining the best interests of the child. Amongst these are: at s.16(3)(i), the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; at s.16(3)(j), any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and at s.16(3)(k), any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[43] I am also mindful that supervised access is, at best, a short term expedient while a range of other initiatives are explored to regularize a parenting relationship: Smith v. Ainsworth, 2016 ONSC 3575, at para. 24.

[44] The father argues that requiring the mother’s parenting to be supervised makes sense, at least until her mental health challenges are clarified. He suggests that having N reside with him while granting supervised parenting to the mother is the outcome that is the most consistent with the objectives of family law legislation. The father’s mother and sister and extended family are also able to care for N when he is at work.

[45] The mother disagrees and argues that despite the police and CAS involvement, there has been no indication that the mother poses any kind of threat to the couple’s child and that the available medical evidence, from the psychologist Mr. Tasic and the psychiatrist Dr. Krstich, points to there being no concerns whatsoever about the mother’s ability to parent unsupervised.

[46] On balance, I find that it is in the best interests of N that his parenting time with his mother be supervised, at least until there is greater clarity about the nature of the mother’s mental health challenges. I note that Dr. Krstich’s July 6, 2020 assessment was provided before the October 2020 birth of N, and before the November 2020 and April 2021 incidents of concern referenced by the father. It is not clear to me that Dr. Krstich would reach the same conclusion today.

[47] I also acknowledge that the mother attended before Dr. Krstich in February 2021. The mother deposed that Dr. Krstich advised that she was “fine and just under a great deal of stress”, however, the mother did not provide any medical report arising out of her February 2021 visit. Once again, even accepting the mother’s description of Dr. Krstich’s February 2021 assessment at face value, it is unclear to me that Dr. Krstich or some other psychiatrist would arrive at the same conclusion after learning of the further concerning incident in April 2021, or that the mother has allegedly assaulted the father, or left the 6 month old baby upstairs unattended.

[48] I disagree with the mother’s counsel that, since the police and the CAS have not initiated any proceedings with respect to the mother’s care of N, this is sufficient evidence that the mother’s unsupervised parenting of N is in the child’s best interests. It is the court’s job, at the end of the day based on the available evidence before it, to make that decision. Here, I find that there is sufficient evidence of the mother’s concerning behaviour that, at least until the court is presented with better evidence of the mother’s mental health, the mother’s parenting should be supervised.

[49] Even on the mother’s own evidence, her behaviour may be related to an underlying mental health condition that could compromise her parenting while N is in her care unsupervised.

[50] Dr. Tasic reported the mother as having Borderline Personality Disorder. The mother disputed this diagnosis suggesting that Dr. Tasic’s report was wrongly translated. Diagnosis of a Borderline Personality Disorder does not, in and of itself constitute a reason for supervised parenting, however, confirmation or non-confirmation of this diagnosis by a psychiatrist in Canada would be helpful to understand to what extent any mental health challenges are impacting the mother’s parenting of N and relationship with the father.

[51] The mother’s evidence did not cover the circumstances by which she terminated her counselling with Ruzica Vujcic.

[52] Of most concern to me was that the mother did not appear to be receiving any kind of treatment or counselling from any mental health professional, and it appears, at least on the motion material before me, that the mother is in denial that her mental state was or is compromised. Giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being, I cannot permit the mother’s parenting to be unsupervised at this time.

[53] With respect to the order, on consent, for a psychiatric assessment, while there was discussion at the hearing of the motion as to the identity of the assessor and the possibility that Dr. Krstich may not be the appropriate psychiatric assessor, on reflection, I recognize that it may be challenging for the mother to quickly find some other psychiatrist who can assess her in the Serbian language. I also have reconsidered my initial concern that, because Dr. Krstich met with the mother in what I described as “crisis” situations, it should preclude Dr. Krstich from conducting the assessment.

[54] Finally, the parties appeared to consent to the Office of the Children’s Lawyer (OCL) becoming involved as this is a high conflict situation involving a six-month old child, with a very vulnerable mother whose immigration status is uncertain. There are also additional language, cultural and economic barriers in play.

Decision

[55] In light of the foregoing, an order shall go as follow:

a) The mother shall undergo a psychiatric assessment conducted by Dr. Krstich as soon as possible, or if Dr. Krstich is not available to conduct the assessment within three weeks of the release of my endorsement, than the mother shall be assessed by another psychiatrist who can communicate with the mother in the Serbian language.

b) The mother shall provide the psychiatric assessor with a copy of Mr. Tasic’s report(s) and Ms. Vujcic’s report(s), if any.

c) The psychiatric assessor shall be provided with a copy of my endorsement.

d) The cost of the psychiatric assessment shall be paid for by the father, without prejudice to final determination by the court if the parties are unable to reach an agreement on who should pay for the cost of the assessment.

e) N, the parties’ six-month old son, shall reside with the father.

f) The mother’s in-person parenting time shall be supervised.

g) The father shall permit the mother to have liberal, generous and no less than daily virtual parenting time.

h) The parties shall complete the OCL intake forms within 7 days of the date of this endorsement and the OCL shall provide such services as it sees fit.

i) The parties shall make brief written submissions by 4:00 p.m. on Tuesday, May 11, of not more than two (2) double-spaced pages in length, on the issue of who can, on a temporary basis, supervise (or as been supervising) the mother’s parenting time of N, and what in-person and virtual parenting schedule for the mother is being proposed.

j) The parties shall attend an urgent Case Conference within two weeks of the release of this endorsement by contacting the court to schedule the urgent Case Conference.

k) The parties shall attend a regular Case Conference on September 20, 2021 at 10 a.m., which is anticipated to be after the receipt of the psychiatric assessment report and an OCL report.

l) If the parties are unable to resolve costs, if any, of the May 4 motion, including via discussion at the urgent Case Conference, they shall make written costs submissions by May 28, 2021. Such written submissions directed to the Family Law Judicial Assistant Patrizia Generali at Patrizia.Generali@ontario.ca shall not exceed three double-spaced pages, exclusive of Costs Outlines, Bills of Costs, and Offers to Settle. Authorities are to be hyperlinked or forwarded to me via the judicial assistant. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs of the May 4 motion.

m) This parties shall provide forthwith a Draft Order approved as to form and content in respect of this decision.

Pinto J.

Released: May 10, 2021

COURT FILE NO.: FS-21-23026

DATE: 20210510

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.K.

Applicant

– and –

V.V.

Respondent

REASONS FOR JUDGMENT

Pinto J.

Released: May 10, 2021

S.K. v. V.V. , 2021 ONSC 3434

Case Summary

Overview

Discussion

The Father’s position

The Mother’s Position

Discussion

Should the respondent mother be ordered to undergo a psychiatric assessment?

Should the mother be restricted to supervised parenting time?

Decision

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 1