ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 4834/12
DATE: 2014/05/29
B E T W E E N:
Jim Raso
Patricia Lucas, for the Applicant
Applicant
- and -
Nadia Di Egidio
Joseph E. Sloniowski, for the Respondent
Respondent
HEARD: May 28, 2014
The Honourable Justice J. R. Henderson
DECISION ON MOTION
[1] This is my decision on the motion of the respondent (“the wife”) for production of the notes and records made by Dr. Jacquie Aston, a psychologist, in regard to the marriage counselling sessions that were attended by the wife and the applicant (“the husband”).
[2] The parties attended marriage counselling sessions with Dr. Aston for approximately two months prior to their separation in September 2011. The parties have one child, Sam Gennaro Raso, born September 1, 2010. In this action there are outstanding issues regarding custody, access, child support, and property. The matter is presently scheduled for a five-day trial commencing on June 16, 2014, less than three weeks from today’s date.
[3] The Office of the Children’s Lawyer (“OCL”) was appointed in this case, and the clinical investigator made a request for Dr. Aston’s records during the course of her investigation. At that time the wife consented to the release of Dr. Aston’s records, but the husband declined to do so. Accordingly, the report of the clinical investigator was completed on June 17, 2013, without the benefit of Dr. Aston’s records.
[4] In my opinion, the notes and records of Dr. Aston are privileged documents, and the privilege is that of the client. That is, the notes and records cannot be disclosed by Dr. Aston unless both the husband and the wife consent to the production of the records.
[5] I find that Rule 20(5) gives this court the authority to order the production of privileged documents even in the absence of the consent of the parties. However, that authority should not be exercised lightly. I find that the court should only order the production of privileged marriage counselling notes and records if the documents are relevant to an issue at trial, and it would otherwise be fair to both parties to do so.
[6] In the present case, I accept that Dr. Aston’s notes and records are relevant to the parenting issues in this case. The wife alleges that Dr. Aston witnessed the husband’s explosive conduct during the marriage counselling sessions, and that Dr. Aston commented upon the husband’s controlling behaviour and his lack of involvement with his son. This evidence would be relevant to the issue of whether the parties could cooperate to the extent necessary for a joint custody regime. Further, the husband’s conduct as noted by Dr. Aston may also be relevant to the amount of parenting time that he is granted.
[7] Regarding fairness, I acknowledge that in most cases it is important for a trial judge to have all of the relevant material before him/her so that the trial judge is in the best position to make the most appropriate order. Therefore, in these courts there is a tendency to order production of all records, including privileged records.
[8] However, it must be recognized that marriage counselling is presumed to be a confidential undertaking. That is, when a party enters into marriage counselling that party presumes that the counselling sessions are private and confidential. Based on that presumption, the party is able to participate in an open and frank manner, without fear that whatever is said or done during the sessions would be recorded and disclosed at a later date in a courtroom. Given this underlying presumption, in my view the court should not order the disclosure of the privileged notes and records of a marriage counsellor unless there is a strong reason to do so.
[9] Furthermore, in the present case, I find that the request for the production of these notes and records is made far too late. The wife was aware that the production of Dr. Aston’s records was requested by the OCL, and refused by the husband, in June 2013. Now, 11 months later, three weeks prior to the start of the trial, the wife asks for an order compelling production of the notes and records.
[10] In this case, there is a strong possibility that if the notes and records are produced within the next few days or weeks there will be a need to adjourn the trial. Specifically, the husband may be entitled to an adjournment in order to respond to the material that is disclosed in Dr. Aston’s notes and records. Also, it is quite possible that the OCL report will need to be updated in light of the material contained in the records. Thus, an adjournment of the trial is a strong possibility.
[11] In consideration of these factors I find that an order for the production of Dr. Aston’s notes and records at this point in time would be unfair. Therefore, the wife’s motion is dismissed.
[12] Costs of this motion are reserved to the trial judge.
Henderson J.
Released: May 29, 2014
COURT FILE NO.: 4834/12
DATE: 2014/05/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jim Raso
Applicant
- and –
Nadia Di Egidio
Respondent
DECISION ON MOTION
Henderson J.
Released: May 29, 2014