Parents involved in court cases regarding child custody and access usually have their own legal representation. There are also occasions when the court needs to gather independent information about a child’s needs, wishes, and interests. In cases such as this, a court in Ontario may ask the Office of the Children’s Lawyer (OCL) to help. The OCL employs both lawyers and clinicians to represent children and write reports on their behalf. In a recent decision, the Ontario Court of Appeal had to determine what privacy rights the child and the OCL are entitled to.

Are the records “in custody or under control” of the Ministry of the Attorney General?

The issue at trial was whether the child’s litigation records with the OCL were subject to the father’s freedom of information access request. Both the Information and Privacy Commissioner (the “IPL”) as well as the divisional court agreed with the father that since the OCL falls under the Ministry of the Attorney General (the “Ministry”), the records should be considered “in the custody or under control” of the Ministry. As such, they should be made available through freedom of information access requests through the Freedom of Information and Protection of Privacy Act (“FIPPA”).

The hearing dealt with the subject of a dispute between the parents over the custody and access of their two children. The OCL was appointed to represent the children in 2008 when they were nine and eleven years old. In addition to a lawyer, the OCL also appointed a clinical investigator to help on the file.

The father requests access and is denied

The father’s access to the children (including verbal communication) was cut off by a judge in 2010. He brought a motion to change the order in 2012. At this time, the OCL appointed a lawyer but not a clinical investigator. On January 23, 2014, the father requested access to information from the Ministry pursuant to FIPPA. The information he sought included:

  • Privileged and non-privileged reports relating to the children;
  • All documents filed with the court, including settlement reports, medical reports, psychological and educational reports, filed conversations and notes, and transcripts;
  • All notes and information relating to the duties of the lawyers acting for the Children’s Lawyer, including notes, court documents, and assessments; and
  • Social worker notes.

The Ministry denied the father’s request, stating FIPPA does not apply to private litigation files involving services to children. The OCL argued that it prepares and collects information as part of its independent legal representation, and that the information is not actually in custody or control of the Ministry.

The first two decisions come down

The father appealed the Ministry’s decision to the IPL, which determined the sole issue before it was whether the Ministry had custody or control of the records. The IPL noted that even if it ruled the Ministry did have care and control, it would not necessarily follow that the information would be made available to the father. The IPL did not agree with the Ministry and the OCL that the OCL was distinct from the Ministry and that the Ministry did have care and control of the information.  The OCL and the Ministry appealed to the Divisional Court, which upheld the decision of the IPL. The case then went to the Ontario Court of Appeal.

On appeal

In issuing its decision, the court turned to the United Nations Convention on the Rights of the Child to emphasize the importance of children’s rights, concluding “like solicitor-client privilege, the confidential relationship between the Children’s Lawyer and children is ‘fundamental to the proper functioning of our legal system’ and the protection of that relationship ‘has a central importance to the legal system as a whole.’”

The court found that even though the communications between the OCL and the children are privileged, the confidentiality would apply even without the presence of solicitor-client privilege because the safeguarding of children’s rights reaches further than the privilege of a solicitor-client relationship. In its decision, the court wrote:

“To allow a disgruntled parent to obtain confidential records belonging to the child would undermine the Children’s Lawyer’s promise of confidentiality, inhibit the information she could obtain and sabotage her in the exercise of her duties. This would, in turn, impact proceedings before the court by depriving it of the child’s voice and cause damage to the child who would no longer be meaningfully represented. Finally, disclosure to a parent could cause further trauma and stress to the child, who may have divided loyalties, exposing the child to retribution and making the child the problem in the litigation.”

The court determined the records were not in the Ministry’s care and control and should not be produced to the father.

Jason Howie has been a fixture of the family law community of Windsor and Essex County for over 25 years and has built relationships with clients as well as lawyers, accountants, medical professionals, and marriage counsellors in the community. To speak with Jason about any family law issue, including custody of children, phone 519-800-1039 or reach him online.