



COURT OF APPEAL FOR ONTARIO

CITATION: A.C.V.P. v. A.M.P., 2022 ONCA 283

DATE: 20220408

DOCKET: C68948

Trotter, Coroza and Favreau JJ.A.

BETWEEN

A.C.V.P.

Applicant (Respondent)

and

A.M.P.

Respondent (Appellant)

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, t
he
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 Childrens 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 others conduct, neither party considered
    requesting an assessment pursuant to s. 30 of the
Childrens 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 mothers 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 judges 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 mothers 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 judges 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 childs 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
Childrens 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 mothers
    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-Lius 2022 report stands apart from the rest of the fresh evidence. Clearly,
    the mother should have complied with the trial judges 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 courts 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 childrens 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 mothers 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 childrens 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 mothers 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 fathers 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
    mothers
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 childrens
    relationship with their father, the mother has not acted in the childrens 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 anothers 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
mothers
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 judges 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
, 2006 CanLII 3888 (Ont. C.A.), 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;
Childrens Aid Society of London and Middlesex v. B.(C.C.)
,
    2007 CanLII 66699 (Ont. S.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 judges
    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 judges decision that
    the assessment was reasonably necessary to help determine material issues
    before the court.

[30]

I do not accept the
mothers
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 mothers
    mental health. This was prominent at trial. The author of the OCL report
    testified at trial that she was more concerned about the mothers 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 judges 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 mothers 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 childrens best interests.

[36]

More
    significantly, the timing of the report is consistent with the trial judges
    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 childrens relationship with their
    father, the mother has not acted in the childrens best interests.

[37]

I acknowledge that the report appears to support
    the mothers 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.

Disposition

[38]

For these reasons, I would dismiss the appeal. The
    respondent father is entitled to his costs in the amount of $13,082.58, all-inclusive.

Released: April 8, 2022 G.T.T.

S. Coroza J.A.

I agree. Gary Trotter
    J.A.

I agree. L. Favreau
    J.A.


