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Old 04-14-2006, 08:13 PM
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Default Medical records? Psych eval?

This has to be a quick question; I don't have the time right now to elaborate, but does one spouse have the right to demand medical records from the other? Or request a psych evaluation? If so, how do you go about doing it? Do you have to have some proof of a problem before you can request? Thanks in advance; sorry, gotta go!
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Old 04-14-2006, 08:58 PM
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I wouldn't think so, that would break the patient/doctor confidentiality. You can always ask for a psych evaluation be done for your ex but I highly doubt the ex would agree, or a Judge would order it.

Not knowing any details. If you had The Office of the Children's Lawyer, (or equivalent) involved they would do an evaluation of both parents and something might come up from that. That may be the best route to go.
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Old 04-16-2006, 07:23 PM
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Yes, Your ex can have their Lawyer ask for a psyche evaluation and they can also claim for medical documentation. However, it will be very costly and very difficult to peruse it.
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Old 04-21-2006, 12:07 PM
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Hi; thanks for the replies! I'm beginning to get really concerned about my ex's mental stability; no mud-slinging here, I really am thinking there's a problem. I've always though he's the biggest liar I've ever known in my life, but now I think he may well be delusional. Sometimes the lies he tells are clearly to paint a false picture, but sometimes he lies about things that are completely irrelevant and can so easily be proved false, often things said or done with witnesses present. He's like a dog with a bone; even after it's proven that what he said is false, he just continues to insist vehemently that it's the truth.

I've been told by several people that he's heavily using cocaine (and likely selling it, too) in addition to his alcoholism, and I'm sure that's some of the problem; maybe all. But one of his siblings is a paranoid schizophrenic, diagnosed and medicated for years, and the more irrational my ex becomes, I have to wonder if this isn't a problem for him, too. What can I do? I don't want appear to be falsely accusing or anything, but how does one go about addressing the issue through the legal system?
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Old 05-10-2006, 11:56 PM
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I meant to reply to the post earlier. I remember reading about a case where the court ordered an examination, Just came across it.

Leblanc v. Leblanc

Jenifer Lynn Leblanc (Corrigan) (Applicant) and Stephen Bernard Leblanc
(Respondent)

Ontario Superior Court of Justice

J.W. Quinn J.

Heard: October 25, 2004; November 19,26,29-30, 2004; December 1-2, 2004
Judgment: December 7, 2004
Docket: St. Catharines 1082/01

Counsel: Daniel Toppari for Applicant

J. Christopher Young for Respondent

Subject: Family

Family law --- Custody and access -- Practice and procedure -- General principles.

Statutes considered:

Courts of Justice Act, R.S.O. 1990, c. C.43

s. 95 -- referred to

s. 105 -- referred to

s. 105(2) -- considered

s. 140 -- referred to

J.W. Quinn J.:

Introduction

1 Parental hostility and conflict are, sadly, commonplace in family proceedings. Here, however, I realized that they had reached rare heights when it was seriously suggested to me by counsel that access exchanges take place in the foyer of the local police station. Concerned that the ills of the parents were rooted more in pathology than in poor judgment, I raised two issues with counsel: whether a mental examination of the parents/parties should be ordered; and, whether Family and Children's Services Niagara should re-open their file, closed two years earlier.

Background

2 The applicant and the respondent married in 1998 and separated three years later. Since then, the litigation has been constant.

3 The applicant is 33 years of age and the respondent is 43. Although now divorced, for convenience I will refer to them as "wife" and "husband," respectively.

4 The parties have one child, a son, Alexander, born September 3, 1999. The wife has another child from a previous relationship who is six years older than Alexander.

5 The wife commenced an application in November 2001, alleging that the husband suffered from depression, obsessive-compulsive disorder and panic attacks. She further contended that the husband was physically and emotionally abusive and "berated the children to tears." Page after page of complaints were set out in the application.

6 The husband, in his answer, countered that the wife "tends to be somewhat rootless in her lifestyle and has moved often which has created a great deal of disruption for the children." He denied any abusive conduct. He said "[my wife] withdrew sexual relations and created a very peculiar situation in our home by always insisting that Alexander sleep in the same bed with us and also by nursing him for the first two years of his life."

7 On a complaint by the wife, Family and Children's Services Niagara ("FACS") became involved with the family in December 2001 but, in February 2002, closed their file, saying that there were no protection concerns and that each of the parties was equally able to parent Alexander.

8 In July 2002, the wife again contacted FACS, complaining that the husband "was aligning the child in the adult conflict." FACS re-opened their file and closed it soon thereafter, despite identifying "adult conflict and the risk of emotional harm" to Alexander. Apparently, FACS felt that the risk existed only when the child was in the presence of both parents.

9 The parties consented to a temporary child-sharing arrangement, with Alexander residing primarily with the wife. Thereafter, motions abounded including contempt proceedings. There were eleven different court appearances in 2003, along with a trial in April.

10 The final order made at trial was largely access-related (the husband had consented to the wife being awarded custody). The husband was given generous access with "access exchanges" to be effected at the premises of Niagara Child Development Centre and, failing that, at the residence of the paternal grandparents. Unfortunately, the trial, rather than serve as the ending to this sorry saga, proved to be the beginning.

11 In August 2004, the office of the Children's Lawyer investigated and prepared a written report. At page 12, it is stated that the parents "continually have exposed their son in the adult conflict."

12 In 2004, there were more than sixteen court attendances by the time the matter reached me in November; and both parties had been found in contempt by different justices.

13 On November 19, 2004, I was confronted with 11 continuing records containing the litigious history of these litigious people. Were I to give the full history of the case it is more likely that I would depress, not inform, the reader. Among the matters I was scheduled to hear were three motions by the husband: the first sought a variation of the trial order; the second asked that the wife be found in contempt; and, the third sought an order under section 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, prohibiting either party from bringing further proceedings without leave of the court.

14 It was not long into the argument of the motions, as the allegations and facts unfolded, that I became extremely concerned about the impact upon the child of being exposed to such high levels of protracted parental conflict. I asked the parties directly whether they were aware that their conduct was emotionally harming Alexander, perhaps permanently. Both replied "yes." I expressed the view that, to be acting as they were, with knowledge of the consequences of their behaviour, the parties must be suffering from some form of mental illness. After giving counsel time to consider the matter, I invited submissions on the authority of the court to order a psychiatric or mental examination of the parties. As well, I asked that a representative of FACS attend to explain why their file had been closed and to explore the wisdom of it being re-opened.

Discussion

Mental Examination

15 Mr. Young, counsel for the respondent, pointed out that it would seem the court has the authority to order a mental examination pursuant to subsection 105(2) of the Courts of Justice Act. I agree. The subsection reads:

105(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

16 Section 95 of the Courts of Justice Act makes section 105 applicable "to civil proceedings in courts of Ontario." Family motions and applications are civil proceedings.

17 The issue of whether the "mental condition of a party to a proceeding is in question" need not be raised in the material filed by the parties or otherwise alleged by them in order to trigger subsection 105(2). That subsection may be invoked on the motion of the court, as occurred at bar, and at any stage of the proceedings.
FACS

18 FACS was good enough to have their counsel and the relevant caseworker present on December 1, 2004. After hearing submissions from that counsel as to the past involvement of FACS with the parties, I apprised her of the latest developments. In particular, I mentioned that the parental conflict had not abated. In the circumstances, counsel for FACS agreed that it would be appropriate to re-open their file.

Result

19 Having been advised by Mr. Toppari, counsel for the applicant, that Dr. Max Wheeler is agreeable to conducting the necessary mental examination, I make these orders pursuant to subsection 105(2) of the Courts of Justice Act:


1. The parties shall undergo a mental examination by Dr. Max Wheeler, Psychiatrist, 145 Queenston Street, Suite 304, St. Catharines.

2. The mental examination shall be at a time or times specified by Dr. Wheeler.

3. Counsel for the parties shall cooperate by together reviewing the Continuing Record and compiling a joint brief of materials for Dr. Wheeler outlining the educational, employment and marital backgrounds of the parties along with representative examples of the nature of their parental conflict.

4. The parties shall make available any other documentation, including medical records, if required by Dr. Wheeler.

5. Dr. Wheeler shall provide one written report regarding both parties outlining his observations, the results of any tests made, his conclusions, diagnosis, prognosis and recommended treatment in respect of the existing high level of conflict between the parties, marked by their extreme mutual hatred.

6. The written report shall be addressed to counsel for both parties and a copy shall be provided by Dr. Wheeler to each counsel.

7. The parties shall:

(a) attend upon Dr. Wheeler on all occasions required by him;

(b) answer all questions put to them by Dr. Wheeler;

(c) undergo all tests required by Dr. Wheeler;

(d) otherwise cooperate fully with Dr. Wheeler.

8. The parties shall:

(a) provide to their respective counsel, within 15 days of this order, the sum of $1,000 (total: $2,000) to be held in trust and applied toward the fees of Dr. Wheeler;

(b) be equally responsible for any fees owing to Dr. Wheeler beyond the sum of $2,000.

20 I order that FACS investigate the protection concerns of the court in respect of Alexander. In this regard, I further order that the applicant and respondent participate in and complete any counselling or programs recommended by FACS and otherwise fully co-operate with FACS.

21 I thank counsel for their able submissions.
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Old 05-11-2006, 12:11 AM
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Moreover; Result of Exam


Corrigan v. LeBlanc

Jenifer Lynn Corrigan (Applicant) and Stephen Bernard LeBlanc (Respondent)

Ontario Superior Court of Justice

J.W. Quinn J.

Heard: March 20 - April 24, 2006
Judgment: April 28, 2006
Docket: St Catherines 1082/01





Counsel: Daniel G.E. Toppari for Applicant

Stephen Bernard LeBlanc for himself

Subject: Family

Family law.

J.W. Quinn J.:

1 Introduction

1 In an application to change a custody and access order, the court was called upon to determine whether all access should be terminated because the access parent has been diagnosed with a serious mental disorder. The application was bifurcated such that if the court were to conclude, in the first stage, that the diagnosis was incorrect and that access could continue, the next stage would involve a consideration of whether the access or access exchanges or both should be supervised. These reasons dispose of the first stage, the result of which is that there will not be a second stage. Two small procedural issues are also addressed.

2 Background

2 The applicant and the respondent married in 1998. The applicant is now 34 years old and the respondent 44. I will refer to them as "mother" and "father," respectively. They have one child, a son, Alexander, born on 3 September 1999. He is six years of age.

3 The parties separated in 2001 and, since then, litigation over custody and access has been unrelenting. The mother commenced an application in November of that year, alleging that the father suffered from depression, obsessive-compulsive disorder and panic attacks. She further contended that he was physically and emotionally abusive and "berated [Alexander] to tears." Page after page of complaints were set out in the application.

4 The father, in his answer, denied any abusive conduct.

5 Between 2001 and 2005, there were 41 court attendances by the parties.

6 On a complaint by the mother, Family and Children's Services Niagara ("FACS") became involved in December 2001 but, by February 2002, had closed its file, saying that there were no protection concerns and that each of the parties was equally able to parent Alexander.

7 In July 2002, the mother again contacted FACS, complaining that the father "was aligning the child in the adult conflict." FACS re-opened its file and closed it soon after, despite identifying "adult conflict and the risk of emotional harm" to Alexander. Apparently, FACS felt that the risk existed only when the child was in the presence of both parents.

8 The parties consented to a temporary child-sharing arrangement, in which Alexander resided primarily with the mother. Thereafter, motions abounded, including contempt proceedings (all related to access). There were eleven different court appearances in 2003, along with a trial.

9 The final order made at that trial was largely access-related (by then, the father had consented to the mother's being awarded custody). The father was given generous access with access exchanges to be effected at the premises of Niagara Child Development Centre (now known as Niagara Child and Youth Services) and, failing that, at the residence of the paternal grandparents. Unfortunately, the trial, rather than serve as the epilogue to this sorry saga, proved to be but another prologue. More litigation followed. The continuing record continued.

10 In August 2004, the office of the Children's Lawyer ("OCL") investigated and prepared a written report. At page 12, it is stated that the parents "continually have exposed their son in the adult conflict." The OCL recommended custody to the mother and unsupervised access by the father.

11 In 2004, there were more than sixteen court attendances by the time the matter reached me in November of that year (and both parties had been found in contempt by different judges).

12 On 19 November 2004, I was confronted with 11 continuing records containing the litigious history of these litigious people, with several motions to be argued.

13 It was not long into the argument of the motions, as the allegations unfolded and the facts surfaced, that I became terribly concerned about the impact upon the child of being exposed to such high levels of protracted parental conflict. I asked the parties directly whether they were aware that their conduct was emotionally harming Alexander, perhaps permanently. Both replied "yes." I expressed the view that, to knowingly harm their son, the father and the mother must be suffering from some form of mental illness. After giving counsel time to consider the matter, I invited submissions on the authority of the court to order a psychiatric or mental examination of the parties.

14 On 2 December 2004, I ordered that the parties be psychiatrically assessed by Dr. Max Wheeler.

15 Also on 2 December 2004, the parties and their counsel (the father had a lawyer at that time), after much negotiation, consented to a temporary order varying and replacing the final order made in April 2003. This varied order gave custody to the mother and specified access to the father. It also provided for supervised access exchanges.

16 Dr. Wheeler produced a written report dated 20 January 2005. The matter was returned before me on 28 January. In his report, Dr. Wheeler expressed no concerns about the mother but, after administering tests and conducting clinical interviews, he concluded that the father suffered from a delusional disorder with paranoid and grandiose features ("Disorder"). Dr. Wheeler stated:

Given the nature of his delusional disorder and his aggressiveness and threats towards his ex-wife, her friends and myself, etc., it is quite possible, in fact probable, that at some time in the future he will present a significant risk to these individuals. That there is an increased risk, in my personal opinion, is certain . . .

Given the extent of his delusional disorder, I think it is fairly reasonable to assume that the quality of his parenting of his son . . . would be diminished by the mental health difficulties.

If [the father] goes without treatment, I predict he will continue to use the court and/or other means to cause difficulties for his ex-wife, her friends and others whom he perceives are standing between him and his goals.

17 The threat to Dr. Wheeler is described in his report in these words:

At one point during the interview, [the father] let me know, in no uncertain terms, with an edge in his voice and with very close eye contact, that if anything negative happened to his access and interaction with [his son] on the basis of my report, that something bad would happen. This was not a veiled threat. It was a threat. I took it that "something bad" would be something significant with regard to my personal welfare and not just a complaint to the medical association.

It is of interest to note that a lawyer representing the father at an earlier stage in these proceedings alleged to the police that he had been assaulted by the father. A charge was never laid.

18 Dr. Wheeler opined that, because of his Disorder, the father is unable to appreciate how his actions impact others.

19 A course of treatment was recommended.

20 On 28 January 2005, based upon the report of Dr. Wheeler, I temporarily suspended all access. At that point, the court was faced with a request by the mother to change the order of 2 December 2004, terminating all access by the father. I treated this request as a "deemed change application," as I did not require the parties to file additional pleadings or affidavits.

21 The father commissioned his own psychiatric assessment, conducted by Dr. Isabelle Cote. She prepared a report dated 29 August 2005 in which she disagreed with the diagnosis of Dr. Wheeler. In the opinion of Dr. Cote, the father suffers from an adjustment disorder with mixed anxiety and depressed mood. Although she found that the father "could be perceived as intimidating at times" she did not believe that he posed "a threat to others."

22 A viva voce hearing was set for 20 March 2006.

23 The mother called two witnesses: Dr. Wheeler and Christine Stark, manager of the supervised visitation program at Niagara Child and Youth Services ("NCYS"). Because of the bifurcated nature of the hearing, the mother did not testify, but was scheduled to do so if the matter proceeded to the second stage.

24 The father gave evidence, as did a brother and the paternal grandfather. Regrettably, no one outside the family came forward to shed light on the day-to-day interaction of the father with others. I allowed him to file letters, but they were in the nature of employment references and unhelpful.

continued
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Old 05-11-2006, 12:12 AM
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continued from previous

3 Discussion

3.1 Written Questions

25 The father conducted a very lengthy, rambling cross-examination of Dr. Wheeler. At one point, because of the inability of the father to frame questions appropriately, I required him to submit his questions in writing so that I might vet them for coherence and relevance. I allowed him a weekend for this task. The result was a much-improved cross-examination.

3.2 The Diagnosis

26 As I expected, the length of his cross-examination afforded Dr. Wheeler the opportunity to observe the father. Indeed, the cross-examination served as a protracted diagnostic interview that, in the end, allowed Dr. Wheeler to strengthen his opinion and testify as follows:

After having attended three days of hearing to date, I am more convinced than ever that the diagnosis of delusional disorder is the correct diagnosis and that I have recommended the correct treatment. Given the intensity of the delusional disorder that [the father] has demonstrated, I . . . agree and concur with the decision . . . to suspend parental visits of [the father] indefinitely. It is my professional opinion that to attempt to have normal parental visitations will result in ongoing abuse and intimidation of [the mother], her friends and relatives and social workers. This intimidation and abuse will expose them to some small but significant risk.

27 Colleen Stark gave evidence about a troubling incident recorded in the notes of NCYS for 16 September 2004:


During a supervised exchange, upon leading [the father] to visit room to wait for child, [the father] stated in a frustrated tone that his brother's wife was murdered, leaving his brother with their children. [The father] proceeds to say that he has always seen [the mother] as an important part of [the child]'s life but that is soon coming to an end, he has no choice . . . Police were contacted . . . It was decided that [the father] would not be charged . . .

28 Dr. Isabelle Cote has an impressive curriculum vitae. However, she was not in court to defend her report and opinion or to respond to the critique of both offered by Dr. Wheeler. In the circumstances, the testimony of Dr. Wheeler made the most sense to me, particularly as I was able to observe, during the hearing, many of the features of the diagnosis made by Dr. Wheeler. I have no reason to doubt his qualifications, professional skills or methodology. His report and testimony were full and comprehensive.

29 The father filed a letter from Dr. Doug Morrison, his family doctor. Dr. Morrison stated in the letter that the father recently had been diagnosed with hypothyroidism and "[s]ince on replacement therapy . . ., which started February 18, 2005, [the father]'s emotional behaviour has settled down." Laboratory test results were filed with the letter showing a thyrotropin value that Dr. Wheeler testified "never causes clinical symptoms." Dr. Wheeler, who, in his psychiatric practice, is very familiar with the diagnosis and treatment of hypothyroidism, stated that there is no correlation between the level of thyrotropin found and the improvements noted by Dr. Morrison. It was the evidence of Dr. Wheeler that hypothyroidism must be "severe and prolonged before it results in any significant mental health changes."

30 In the absence of Dr. Morrison, I accept the uncontradicted opinion of Dr. Wheeler.

3.3 Calling Opposing Party as Witness

31 The father expressed a wish to question the mother (I mentioned earlier that she was not scheduled to testify during the first stage of the hearing). He wanted Mr. Toppari to call his client as a witness in order that he (the father) could cross-examine. I refused the request because I cannot compel a party to testify unless there has been compliance with subrule 23(11.1) of the Family Law Rules, O. Reg. 114/99, as amended:

(11.1) Attendance of opposing party. -- A party who wishes to call an opposing party as a witness may have the opposing party attend,


(a) by serving a summons under subrule (3) on the opposing party; or

(b) by serving on the opposing party's lawyer, at least 10 days before the start of the trial, a notice of intention to call the opposing party as a witness.

The father had done neither.

32 Subrule 23(11) states:

(11) Calling opposing party as witness. -- A party may call the opposing party as a witness and may cross-examine the opposing party.

33 The right under subrule 23(11) is only available where there has been compliance with subrule 23(11.1). However, even with compliance, the right to call an opposing party as a witness is not absolute. There is a discretion in the court to refuse the right. The proposed cross-examination must have a reasonable prospect of revealing relevant information not readily available from another source. Here, I would have exercised my discretion against allowing the father to call the mother as a witness. Anything the mother might possibly say was not relevant on the issue before the court in the first stage of the hearing (that is to say, the validity of the diagnosis of Dr. Wheeler). The doctor did not rely on anything said or done by the mother in reaching his diagnosis; the mother did not possess any information that might alter the diagnosis. Calling the mother would have served only one purpose: to accommodate the agenda of the father who blames the mother for everything that went wrong in their marriage and who seeks out every opportunity to vent his views on the matter.

4 Conclusion

34 The application is allowed. The temporary order of 2 December 2004 (which replaced the final order of 9 April 2003) is changed by deleting all paragraphs with the exception 1, 2, 26(a)-(d), 33, 37 and 38. The order as changed is a final order and it shall further prohibit access by the father to his son. My temporary order of 28 January 2005 is rescinded.

35 In addition, pursuant to subsection 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, I order that the father shall require leave of a judge of the Ontario Superior Court of Justice to commence or continue any litigation involving his son or the mother. This order has a wider scope than one made under subrule 14(21) of the Family Law Rules (wherein the court has the power to curtail only motions).

36 As for costs, the father was fully aware of the potential expense of this litigation. And, by not summoning Dr. Cote or Dr. Morrison to testify, he must be taken to have known that his opposition to the diagnosis of Dr. Wheeler was doomed to failure. His four-day cross-examination of Dr. Wheeler reflected more zealotry in the exercise than optimism in the result. In such circumstances, I think fairness requires that the mother receive full indemnity for her costs. Therefore, the father shall pay costs fixed at $46,764.31, all-inclusive, which is, in large measure, the amount sought by Mr. Toppari. That figure is well supported by the bill of costs filed.
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Old 05-11-2006, 02:15 AM
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LV, thank you again! I haven't read it all yet, but I just wanted to let you know that I really appreciate your keeping my question in mind and posting all of that. A big 'ol hug to you! Thanks!
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Old 05-11-2006, 07:11 PM
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Sasha,
no probelm,

The case I posted is avery sad story and litigation to the extreme. I am thinking that it won't be over as the Judge did still allow the party a window however it has to be made under rules of civil procedure rather than the family law rules.

" 35 In addition, pursuant to subsection 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, I order that the father shall require leave of a judge of the Ontario Superior Court of Justice to commence or continue any litigation involving his son or the mother. This order has a wider scope than one made under subrule 14(21) of the Family Law Rules (wherein the court has the power to curtail only motions).

LV
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Old 05-11-2006, 08:40 PM
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that was exactly what i was coming on here tonight to request myself....and thanks for your previous replies as well...they helped a lot i asked for the child services office to investigate the possibilities...so thanks again.
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