Court File and Parties

Court File No.: FC-23-00000045 Date: 2024/06/27 Superior Court of Justice - Ontario

Re: Angela Marie Bontes, Applicant And: Kirk Michael Bontes, Respondent

Before: Justice R. Ryan Bell

Counsel: Evan Corey, for the Applicant Cecil J. Lyon, for the Respondent

Heard: June 13, 2024

Endorsement

Overview

[1] The applicant moves for disclosure that she says is relevant to the respondent’s mental health. [^1]

[2] A case conference in this proceeding was originally scheduled for August 24, 2023. A few days before the case conference, the respondent requested an adjournment based on a letter from his family physician outlining the respondent’s “severe anxiety and depressive symptoms” which had worsened between August 3 and August 15, 2023. Over the applicant’s objection, the case conference was adjourned. It ultimately proceeded on November 23, 2023.

[3] Between August 15 and December 15, 2023, the respondent’s family physician, Dr. Cunniffe, and the respondent’s psychotherapist, Mr. Whitton, provided six letters regarding the respondent’s mental health: four from Dr. Cunniffe and two from Mr. Whitton.

[4] On February 6, 2024, the applicant provided the respondent with a list of 71 questions that she wished to put to Dr. Cunniffe and Mr. Whitton. The respondent has agreed to the majority of the questions asked, but objects to the balance, including the request for disclosure of the underlying clinical notes and records in respect of each letter. The applicant argues that the respondent’s mental health is relevant to the parenting issues in this proceeding. She says that the letters presented raise questions regarding the respondent’s mental health and the information provided to Dr. Cunniffe and Mr. Whitton to come to their conclusions. She also says that the letters present opinions as to the respondent’s ability to parent and that she is entitled to the underlying information – that is, the clinical notes and records – in respect of such opinions. In her affidavit, the applicant states that she is “particularly concerned” about Dr. Cunniffe and Mr. Whitton’s conclusions that the respondent has no issues parenting in light of her understanding that neither of them has observed the respondent with the children.

[5] The respondent maintains that he has already agreed to provide relevant and proportionate medical disclosure and there is no objective evidence of ongoing issues with respect to his parenting. The respondent objects to the remaining questions, including the production of the underlying clinical notes and records, on the basis that the requested production is irrelevant, excessively intrusive, based on hearsay, or the question has already been answered.

[6] A combined trial management conference/settlement conference is scheduled for July 18, 2024. Counsel for the respondent advised at the hearing of the motion that he did not intend to call either Dr. Cunniffe or Mr. Whitton as a witness at trial.

[7] For the following reasons, the applicant’s motion is dismissed. The dismissal is without prejudice to the applicant renewing her motion in the event that the respondent advises he intends to lead the evidence of/and or rely on their letters at trial.

The legal principles

[8] In determining parenting-related issues based on a child’s best interests, the court should have the best available information concerning everyone involved in the child’s care and upbringing: Sobieraj v. Karpenko, 2024 ONSC 2874, at para. 19, citing G.L.K. v. C.L.K., 2021 ONSC 5843, at para. 18.

[9] If requested by the opposing party, a party is required to produce any document relevant to any issue in the case and in the party’s control, or available to the party on request, unless it is protected by a legal privilege: Family Law Rules, rr. 19(1)-(4). Disclosure must be relevant, proportional, and enable the court to deal with the case justly: Family Law Rules, rr. 2(2) and (3).

[10] When dealing with sensitive information – including medical records – the court is required to balance the competing interests of a parent’s right to privacy against the interest in pursuing the truth to make an appropriate decision in the best interests of the child in order to make a sound disposition of the matter: Sobieraj, at para. 22. [^2]

[11] Where a party wishes to call a participant expert as a witness at trial or on a motion, the party must serve on any other party, at that party’s request, a copy of any documents supporting the opinion evidence the participant expert plans to provide: Family Law Rules, rr. 20.2(14) and (15).

Application of the legal principles

[12] According to the applicant, she seeks Dr. Cunniffe and Mr. Whitton’s clinical notes and records, and answers to the outstanding questions because Dr. Cunniffe and Mr. Whitton have provided “expert opinions on [the respondent’s] mental health and ability to parent.” The applicant relies on Sobieraj and Children’s Aid Society of the Niagara Region v. S.S. and T.F., 2021 ONSC 8582, where Madsen J., as she then was, observed that where participant experts are permitted to testify, typically the opinions sought to be introduced will be found in the clinical notes and records or in reports: Children’s Aid Society of the Niagara Region, at para. 26.

[13] But because the respondent does not intend to call either Dr. Cunniffe or Mr. Whitton as a witness at the upcoming trial, the disclosure obligations in rr. 20.2(14) and (15) do not apply. I must therefore consider the applicant’s requests, balancing the competing interests of the respondent’s right to privacy against the interest in pursuing the truth to make an appropriate decision in the best interests of the children.

Are the clinical notes and records protected by privilege?

[14] In my view, there is a strong argument to be made that the clinical notes and records underlying the letters written by Dr. Cunniffe and Mr. Whitton satisfy the four-part “Wigmore” test:

(i) the communication must originate in a confidence; (ii) the confidence must be essential to the relationship in which the communication arises; (iii) the relationship must be one which should be “sedulously fostered” in the public good; and (iv) the interests served by protecting the communications from disclosure outweigh the interest in getting at the trust and disposing correctly of the litigation: M.(A.) v. Ryan, at para. 20.

[15] The first three parts of the Wigmore test are easily satisfied in this case: the respondent’s communications with his doctor and his psychotherapist originated in confidence, confidence is essential to the doctor-patient and psychotherapist-patient relationships, and these relationships should be sedulously fostered in the public good. The applicant does not argue to the contrary.

[16] With respect to the fourth part of the test, the respondent argues that the interests served by protecting his medical disclosure outweigh the interest in getting at the truth and disposing of the litigation correctly. He argues that there is no objective evidence of any current issues with respect to the respondent’s parenting or mental health and that the applicant relies on vague and unsubstantiated allegations which he in turn has rebutted in his affidavit. The respondent points to the absence of significant involvement from the Children’s Aid Society or the police with respect to parenting or domestic violence. The respondent also points to the substantial progress he has made, including his return to full-time work, his abstinence from alcohol, his weight loss, his lowered depression symptoms, and his decreased need for medication to regulate sleep and anxiety.

[17] The respondent has consented to the majority of the disclosure sought by the applicant which, he submits, is more than enough to satisfy any legitimate interest with respect to his mental health. He argues anything more amounts to a fishing expedition that would risk setting back his mental health by “exposing profoundly private medical information and jeopardizing his ability to trust future disclosures…will remain confidential.”

[18] Based on the limited affidavit evidence before me, I find that the fourth part of the Wigmore test has been met here with the result that the clinical notes and records are protected by privilege. [^3]

The principle of proportionality does not support further disclosure

[19] Even if the clinical notes and records of Dr. Cunniffe and Mr. Whitton are not protected by privilege, I find that all the disclosure sought by the applicant on this motion offends the principle of proportionality.

[20] A party seeking production from third parties is required to establish that a) the document is relevant to a material issue in the action, and b) it would be unfair to require the moving party to proceed to trial without having discovery of the document. The material issues in the proceeding are the respondent’s mental health, parenting time and decision-making responsibility. The relevant context includes the respondent’s consent to the majority of the disclosure requested.

[21] In the following paragraphs, I address the unanswered disclosure questions as set out in paragraph 18 of the respondent’s factum, which both parties relied on at the hearing.

Disclosure questions sought from Dr. Cunniffe

[22] Question: Have you made any referrals to other professionals in regard to Mr. Bontes’ mental health, and if so, provide names and copies of any communications from those referral sources to you? Ruling: This question has been answered by the respondent. The respondent has provided the name of a psychiatrist to whom he was referred by Dr. Cunniffe and advised that he has not seen the psychiatrist because of the progress he has made. In the circumstances, the communications between Dr. Cunniffe and the psychiatrist are irrelevant and their disclosure would be unjustifiably intrusive.

[23] Question: Are you aware of Mr. Bontes’ criminal charges? If so, to what extent have Mr. Bontes’ criminal charges impacted his treatment; to what extent have the allegations of Mr. Bontes’ conduct leading to the criminal charges impacted your assessment of his self-reported mental health symptoms? Ruling: The respondent has advised that Dr. Cunniffe is fully aware of his criminal charges. It would not be unfair to require the applicant to proceed to trial without having the answers to the further questions posed.

[24] Question: Have you ever observed Mr. Bontes parenting his children at home? Ruling: The respondent has answered this question. Dr. Cunniffe has not observed him parenting the children other than when he has taken the children to their own appointments with the doctor. No further disclosure is required.

[25] Question: Has Mr. Bontes reported to you the conflict he precipitated with multiple employees in December and January? Ruling: This question need not be put to Dr. Cunniffe because it assumes the respondent “precipitated a conflict” when this is contested by the respondent.

[26] Question re Dr. Cunniffe’s August 15, 2023 letter: Please provide your clinical notes for the August 3 and 15, 2023 letters with Mr. Bontes. Ruling: I agree with the respondent that production of the underlying clinical notes and records would be, in the circumstances, unjustifiably intrusive and not proportionate. Dr. Cunniffe is not being called as an expert witness at trial.

[27] Question re Dr. Cunniffe’s August 15, 2023 letter: Did Mr. Bontes report that on or about May 28, 2023, he killed multiple baby mice in from of several children despite other adults advising him not to do so? Ruling: I am not persuaded that this is a relevant question for Dr. Cunniffe in relation to the respondent’s mental health or his ability to parent. This question need not be put to Dr. Cunniffe.

[28] Question re Dr. Cunniffe’s August 15, 2023 letter: Did Mr. Bontes report that he often entered the matrimonial home, which he had moved out of, and where his ex-wife was living, without her knowledge or consent? Ruling: The respondent has provided an explanation. This is not a relevant question in relation to the respondent’s mental health or his ability to parent. It need not be put to Dr. Cunniffe.

[29] Question re Dr. Cunniffe’s August 15, 2023 letter: Did Mr. Bontes report that he regularly missed potential parenting time with his children on Wednesday evenings when they had sporting activities? Ruling: The respondent has agreed that prior to September 2023, he missed some Wednesday parenting time because he was struggling with his mental health. In light of this evidence, there is no relevance to the question the applicant seeks to ask Dr. Cunniffe.

[30] Question re Dr. Cunniffe’s August 15, 2023 letter: Did Mr. Bontes report that although he was not working, he still sought to withdraw funds from the family business Ms. Bontes was operating? Ruling: This question is not relevant to the respondent’s mental health or his ability to parent.

[31] Question re Dr. Cunniffe’s August 15, 2023 letter: Did Mr. Bontes report that he continued to vacation and spend leisure time during this period? Ruling: This question need not be put to Dr. Cunniffe because it assumes facts not in evidence and it is not relevant to the respondent’s mental health or his ability to parent.

[32] Question re Dr. Cunniffe’s September 18, 2023 letter: Please provide your clinical notes from September 5 and 18, 2023. Ruling: I agree with the respondent that production of the underlying clinical notes would be, in the circumstances, unjustifiably intrusive and not proportionate. Dr. Cunniffe is not being called as an expert witness at trial.

[33] Question re Dr. Cunniffe’s September 18, 2023 letter: Is Mr. Bontes self-assessing when he should take medication, consistent with his treatment plan? If so, given the seriousness of the concerns in the August 15, 2023 letter, including missing a court date that had been scheduled for months, why was Mr. Bontes left in charge of his own medication? Ruling: The respondent has advised that he takes his medication as directed by Dr. Cunniffe. No further questions in this regard need be posed to Dr. Cunniffe.

[34] Question re Dr. Cunniffe’s November 7, 2023 letter: On what date did you meet with Mr. Bontes to provide your updated letter? Please provide the clinical notes for that visit. Ruling: The respondent has agreed to provide the date he met with Dr. Cunniffe. Production of the underlying clinical notes would be, in the circumstances, unjustifiably intrusive and not proportionate. Dr. Cunniffe is not being called as an expert witness at trial.

[35] Question re Dr. Cunniffe’s November 7, 2023 letter: Do you have any information, apart from what Mr. Bontes has told you, about how he conducts himself when he goes to the family business? Ruling: The respondent does not object to this question provided that it is restricted to whether Dr. Cunniffe has any independent sources. No further questions in this regard need be posed to Dr. Cunniffe on the basis of relevance and proportionality.

[36] Question re Dr. Cunniffe’s November 7, 2023 letter: Are you aware that he has had conflicts with multiple employees and two of three employees left the business because of his direct conduct. Ruling: This question need not be put to Dr. Cunniffe because it is based on allegations only. It is also not relevant to the respondent’s ability to parent.

Disclosure questions sought from Mr. Whitton

[37] Question: If there are any other letters besides those provided dated September 14, 2023 and November 7, 2023, please provide them? Ruling: This question has been answered by the respondent who advised that Mr. Whitton has not provided any other letters to him relating to his mental health.

[38] Question: Please provide the clinical notes from each session. Ruling: Production of the underlying clinical notes would be, in the circumstances, unjustifiably intrusive and not proportionate. Mr. Whitton is not being called as an expert witness at trial.

[39] Question: to what extent were your conclusions primarily based on self-reports from Mr. Bontes? Ruling: The respondent has agreed to put this question to Mr. Whitton provided that it seeks whether there are other or independent sources. I agree with this limitation. No further questions need be put to Dr. Whitton on the basis of relevance and proportionality.

[40] Question: Have you ever assessed Mr. Bontes’ children’s needs? Ruling: This question has been answered by the respondent who advised that Mr. Whitton has never met the children and does not treat the children. No further information is required.

[41] Question: Has the respondent reported that on or about May 28, 2023, he killed multiple baby mice in front of several children despite other adults advising him not to do so? Ruling: I am not persuaded that this is a relevant question for Mr. Whitton in relation to the respondent’s mental health or his ability to parent. This question need not be put to Mr. Whitton.

[42] Question: Has Mr. Bontes reported that he often entered the matrimonial home, which he had moved out of, and where his ex-wife was living, without her knowledge or consent? Ruling: the respondent has provided an explanation. This is not a relevant question in relation to the respondent’s mental health or his ability to parent. It need not be put to Mr. Whitton.

[43] Question: Has Mr. Bontes reported that he regularly missed potential parenting time with his children on Wednesday evenings when they had sporting activities in the period between separation and September 2023. Ruling: The respondent has agreed that prior to September 2023, he missed some Wednesday parenting time because he was struggling with his mental health. In light of this evidence, there is no relevance to the question the applicant seeks to ask Mr. Whitton.

Conclusion

[44] The applicant’s motion for further disclosure is dismissed, with costs. I encourage the parties to agree on costs. In the event they are unable to agree, they may make written submissions limited to a maximum of three pages, excluding relevant attachments. The respondent shall deliver his costs submissions by July 11, 2024. The applicant shall deliver her responding costs submissions by July 25, 2024. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Justice R. Ryan Bell Date: June 27, 2024

Footnotes

[^1]: At the settlement conference on March 21, 2024, McVey J. granted the applicant leave to bring this disclosure motion. [^2]: Citing Porter v. Porter, at para. 17; Vecchio v. Abdelgawad, 2017 ONSC 5815, at para. 21; Jackson v. Dixon, 2019 ONCJ 870, at para. 27. [^3]: The applicant did not argue that the disclosure of the letters constituted a waiver of privilege in respect of the underlying clinical notes and records.