Porter v. Porter: Assessment and Access

This Ontario Superior Court of Justice decision demonstrates that section 30 of the Children’s Law Reform Act (CLRA) can be used to order a psychiatric/psychological assessment of a party, in this case the father. The intention of ordering the assessment was to determine whether the father should be given unsupervised access to the children given his medical and criminal history. The wife has custody of the 2 children (2 and 4 years old) and the father is the access parent.

On June 12, 2008 a temporary Order was made by Justice Wilson that allowed the father to have unsupervised access. Subsequently, a temporary Order was made on December 19, 2008 suspending for three months the above Order. As the three months for the suspended Order approached, the mother came before the Court in order to prevent the husband from getting unsupervised access to their children.

Basically, the mother was asking the Court for three Orders.

  1. An Order to vary the temporary access Order of Justice Wilson, and this would mean the father would have supervised access at all times;
  2. An Order for a psychiatric/psychological assessment of the husband; and
  3. An Order for disclosure of various medical and criminal records.

The Court decided that it was in the best interests of the children to have supervised access with their father. The Court’s reasoning was based on their concern with the father’s anger management problems, emotional volatility, and criminal charges of theft and breaking and entering.

The Court required a psychiatric/psychological assessment of the father. According to the Court, a proper assessment required appointing a person with professional skill to assess and report to the Court the ability of the father to satisfy the needs of the children. Instead, the father took an online course that did not satisfy the court. The father also disclosed a psychiatric report prepared by a doctor regarding his capacity to have unsupervised access and the Court could not accept this assessment as satisfying s. 30 of the CLRA because the father unilaterally chose the assessor and the report contained inaccurate information. In addition, the father had created a website that was to help father/husbands disprove their wives of mistruths and encourages husbands to post nude pictures of ex-spouses. The website evidenced the deplorable way in which the father was coping with emotional volatility. Thus, the Court granted the mother’s Order for a psychiatric/psychological assessment.

The mother’s request for the disclosure of medical and criminal records was also granted. The Court emphasized that protection of the children is given priority over privacy rights. It is important for the Court to know the father’s medical records in relation to mental health issues in order to determine his ability to care for the children. The Court allowed the disclosure of the father’s criminal records. Although, criminal records typically are irrelevant in family litigation. The Court used its discretion to include the disclosure of the father’s criminal record because the Court decided that the lack of critical information may lead to devastating consequences. The Court considered when dealing with unsupervised access of children and the protection of those children, the Court will consider criminal record evidence in order to come up with an informed decision that serves the best interests of the children.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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