Court File and Parties
Court File No.: FS-22-0016-0000 Date: 2023-12-08 Superior Court of Justice - Ontario
Re: D.W., Applicant And: R.W., Respondent
Before: Mills J.
Counsel: Ryan Aalto, for the Applicant Frances M. Wood, for the Respondent
Heard: December 7, 2023
Endorsement
[1] The Applicant seeks an order to compel the Respondent to undergo a mental health assessment pursuant to s.105(3) of the Courts of Justice Act and to require her consent to the release of her medical records. The Applicant states that he is concerned for the Respondent’s mental health as schizophrenia runs in her family and he wants to be sure she obtains the necessary medical attention. He believes a mental health diagnosis was already made but the particulars of which have not been disclosed. The Applicant submits it is in the best interests of the child to have the Respondent involuntarily subjected to a mental health assessment so that both she and the child may know if the Respondent has schizophrenia. The Applicant is of the view that the child is trapped in her mother’s schizophrenic world of delusions.
[2] Section 105 of the Courts of Justice Act allows the court to order a mental health examination where the condition of a party is in question but, an order shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.
[3] The Applicant submits the assessment is necessary to ensure the child is being properly cared for by the Respondent. The child is just days away from her 16th birthday and she is estranged from the Applicant, having not seen nor spoken to him in over two years. There is no application or request for reunification therapy by the Applicant.
[4] The Applicant’s evidence is founded entirely on conjecture and speculation. He raises several issues which evidently speak to the Respondent’s inability to manage or cope with daily living. Most significantly, the Applicant relies on the child’s frequent absences from school and her recent academic performance to show that the Respondent is suffering with a severe mental health issue. The Applicant fails to acknowledge that perhaps the child is struggling as a result her own longstanding diagnosis of anxiety, one of the physical manifestations of which is debilitating diaphragm spasms. Rather, the Applicant speculates that the child is being forced to stay up all night with her mother and then is unable to attend school in the morning. The child’s recent poor attendance record at school is concerning, but there is no evidence to suggest that it is due to any conduct of the Respondent or related to her mental health and it is certainly not a basis upon which to compel the Respondent to undergo an involuntary mental health assessment.
[5] The Children’s Aid Society have been involved with the family on three occasions. They have not noted any concerns and have closed their file on each occasion after interviewing the Respondent and the children.
[6] The Applicant also relies on late or defaulted utility payments and a notice from the municipality to address the state of the property at which the Respondent and two of the three children reside as being evidence of her inability to cope with the requirements of daily living. She has explained that the lawn mower was broken, and she did not have the funds to have it repaired or to buy a new one. This is a plausible explanation. The Respondent has struggled financially. There is no child or spousal support being paid, although the Applicant does make the monthly mortgage payment on the matrimonial home. Suffering financial struggles and the failure to mow the front lawn do not establish good reason to believe there is any substance to the allegations advanced by the Applicant and they are not sufficient grounds on which to compel the Respondent to undergo a mental health assessment.
[7] The Respondent’s father and uncle file conflicting affidavits on this motion. The text messages exchanged between them are not compelling evidence of the Respondent suffering with a serious mental health issue. They do speak of counselling but that is commonplace in families suffering a breakdown, and particularly so when the parties are engaged in acrimonious litigation. I am unable to draw any meaningful conclusions about the Respondent’s mental health from the disparate affidavit evidence filed by her family members.
[8] The Applicant also relies on the fact that the Respondent vacated the home with the child and moved them both to a women’s shelter for five days in May 2022 as evidence of her paranoia. The Respondent indicated this was done as she feared someone was trying to breach the security measures she has in place at the home. Once the issue was addressed, she and the child returned to the home and continue to reside there. While her decision to move to a shelter may be viewed as extreme in the circumstances, it may also be viewed as a woman taking positive steps to protect herself and her child. The Applicant admits to having been diagnosed with PTSD because of a childhood trauma. This may have influenced her decision to take extreme measures in the circumstances. Temporarily moving herself and the child into a shelter is not compelling to establish there is a good reason to believe there is substance to the Applicant’s allegations of the Respondent suffering with a serious mental health issue.
[9] I fail to see any connection between the Applicant’s request for a mental health assessment and any issue pending before the Court. Rather, it appears to me that the Applicant is attempting without justification to intrude on the Respondent’s significant privacy rights and to undermine her personal dignity. I adopt the words of C.J. Strathy when he stated in Kischer v. Kischer, 2009 CanLII 495 at para. 10 that “[p]rivacy and freedom from coercive interference with one’s physical and mental autonomy are core values of Canadian Society…an assessment should only be ordered where a case has been made out, on reasonable grounds, and the court is satisfied that this intrusive measure is necessary to ensure that a potentially vulnerable person is protected.”
[10] The three children of the marriage have been in the sole care of the Respondent since April 2020, when the Applicant vacated the matrimonial home. The Applicant’s 2021 request for shared parenting and joint decision making has not been actively pursued. It is not raised by the Applicant in the materials filed on this motion. There is no proposed plan of care filed respecting the child. The Applicant fails to identify any issues in the proceeding to which his allegations of schizophrenia are relevant, other than perhaps that the child should know if her mother suffers with the disorder so that she may be aware of her own personal risks.
[11] The Applicant’s motion is dismissed. I am not satisfied there is substance to the allegation of a very serious mental health issue or that the Respondent’s condition is relevant to a material issue in the proceeding. The Applicant has failed to make out a case that it is necessary to compel the Respondent to undergo an intrusive mental health assessment in order to protect the child.
[12] The Applicant also seeks the release of police records which involve the parties and the child. It is unclear why these records are relevant or why they are being sought by the Applicant. He is certainly able to obtain any police records where he is directly involved. There was no indication in the written or oral submissions as to why these records are required for the full and proper adjudication of the matters in issue. In the circumstances, I am not satisfied there is a need for the disclosure of any police records regarding the Respondent or the child. In this respect, the Applicant’s motion is dismissed.
[13] Having been entirely successful on this significant and important motion, the Respondent is entitled to her reasonable and proportionate costs. The Costs Outline submitted by counsel relates only to costs incurred since her retainer on November 22, 2023. This motion was commenced in May 2023 and a prior attendance before Justice Coats resulted in an order on consent which addressed some of the issues raised and reserved the issue of costs.
[14] Following the general principle that parties should be encouraged to engage in the settlement of matters, and therefore no costs should be ordered when a consent order is reached, I am not prepared to order any costs related to the attendance before Justice Coats on May 18, 2023. I see no exceptional circumstances in this case that warrant a cost order in respect of a mutually agreed upon settlement.
[15] Considering the factors raised in Rule 24 of the Family Law Rules, I find that the time spent, and the rate charged by counsel are reasonable and proportionate in the circumstances. Having reviewed the Applicant’s Costs Outline, the amount sought is within the reasonable contemplation of the unsuccessful party. While the motion was not particularly complex, it was very important as the Respondent’s personal privacy and dignity were at issues. I am satisfied the Applicant’s motivation for bringing the motion was not directed at protecting the well-being of his child. Rather, in my view, the motion was brough to intimidate and embarrass the Respondent. This behaviour calls for sanction in the form of a full indemnity cost order.
[16] Therefore, the motion is dismissed with costs payable forthwith by the Applicant to the Respondent fixed in the amount of $7,102.05.
J.E. Mills J.
Date: December 8, 2023