When parents are seeking parenting-time and/or decision-making responsibility over their children in family court, it is important for the court to have an understanding of the party's mental health if there is indication that it might compromise their ability to parent properly. The court can make an order for a parent to get a psychological assessment at any time, even during trial. The authority for this can be found in section 30 of the CLRA:
30 (1) The court before which an application is brought for a parenting order or contact order with respect to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.
This is not terribly surprising given that the court is to make parenting orders in the best interests of the child: In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. It is also important to keep in mind that where a parent refuses to conform to a section 30 assessment as ordered by the court, it can be used against them in the case:
(6) Where a person ordered under this section to attend for assessment refuses to attend or to undergo the assessment, the court may draw such inferences in respect of the ability and willingness of any person to satisfy the needs of the child as the court considers appropriate.
This was demonstrated in the recent decision of ACVP v AMP, 2022 ONCA 283, where the Court of Appeal noted:
…[T]he 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.
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.
Finally, section 30 also discusses the fact that the judge can choose to appoint an assessor if the parents cannot agree on one, and the court can do so without either parent even requesting an assessor. The court also has wide discretion to order that either party pay the costs of the assessor or share the costs. Ideally, the assessor will be cross-examined at trial.
The recent Court of Appeal decision went on to clarify the exact circumstances in which the court has the power or discretion to order one of these assessments, considering that the mother appealed the trial judge’s decision for lack of jurisdiction:
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 effect 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.
…
In my view, there is nothing in s. 30 of the CLRA that would prohibit the trial judge form ordering an assessment at the end of the trial, especially in light of the trial judge’s willingness to resist 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 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.
The case makes apparent that in addressing section 30 of the CLRA, and the prospect of ordering for a parent to undergo a mental health assessment, the main consideration is whether it is in the best interests of the child to get a better understanding of the parent’s mental health, if they are seeking parenting time with the child. Presumably, then, there will have been evidence to suggest that the parent’s mental health was in question. For instance, in the previous case, the court was …concerned with various emails and other communications authored by the mother…regarding depression and ending her life.
Obvious takeaways? When there is evidence to suggest that a parent, who is seeking a parenting order, has problems associated with mental health that may affect the best interests of the child, a court may order a section 30 assessment.
