“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.
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.
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), 2004 CanLII 17126 (ON SC), 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; Children’s Aid Society of London and Middlesex v. B.(C.C.), 2007 CanLII 66699 (Ont. S.C.), at paras. 71, 87.
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.
I would defer to the trial judge’s decision that the assessment was reasonably necessary to help determine material issues before the court.
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), 2003 CanLII 64318 (ON SC), 37 R.F.L. (5th) 381 (Ont. S.C.); Parniak v. Carter (2002), 2002 CanLII 45671 (ON CJ), 30 R.F.L. (5th) 381 (Ont. C.J.); Glance v. Glance (2000), 2000 CanLII 20393 (ON SC), 10 R.F.L. (5th) 276 (Ont. S.C.).”