Superior Court of Justice - Ontario
KINGSTON COURT FILE NO.: 355/15
RE: Steven William Newstead, Applicant
AND
Cynthia Marie Hachey, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Lesley C. Kendall, for the Applicant
No counsel for the Respondent
HEARD: July 19, 2017
PROCEDURAL ENDORSEMENT
MINNEMA J.
1The respondent in the Notice of Motion at Tab 50 seeks an order requiring the Family Services Assistance Program (“FSEAP”) to produce its 2011-2012 file regarding the parties’ marriage counselling sessions. The FSEAP takes no position, but will not disclose the records without the applicant’s consent or a court order. The applicant has not consented, and opposes this Motion on the basis of a confidentiality privilege. A five-day trial is set to commence mid-October 2017.
Law/Issue
2Confidentiality is considered a ‘case-by-case’ privilege where there is a prima facie assumption that the communications are not privileged and are admissible. The party urging the exclusion must establish the privilege applying the four part Wigmore test. It is obvious to me that the applicant has met the initial Wigmore criteria. First, the communications originated in confidence that they will not be disclosed. Indeed, it is conceded by both parties that they signed a confidentiality agreement that precluded subsequent disclosure. Second, the element of confidentiality is essential to the relationship of marriage counselling. Third, marriage counselling is something that the community seeks to foster and should be encouraged. As in many privilege cases, the main issue is therefore the fourth Wigmore criteria which is set out, and explained in the context of psychiatric records, at paragraph 29 in M.(A.) v. Ryan (1997), 1997 403 (SCC), 143 D.L.R. (4th) 1 (SCC):
- The fourth requirement is that the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation. This requires first an assessment of the interests served by protecting the communications from disclosure. These include injury to the appellant's ongoing relationship with Dr. Parfitt and her future treatment. They also include the effect that a finding of no privilege would have on the ability of other persons suffering from similar trauma to obtain needed treatment and of psychiatrists to provide it. The interests served by non-disclosure must extend to any effect on society of the failure of individuals to obtain treatment restoring them to healthy and contributing members of society. Finally, the interests served by protection from disclosure must include the privacy interest of the person claiming privilege and inequalities which may be perpetuated by the absence of protection.
Positions/Analysis – Fourth Wigmore Requirement
3The respondent only focused on the interest of pursuing the truth and disposing correctly of the litigation, in other words on the probative value and benefit to her of disclosure of the communications. She did not address the effect on society or the applicant’s privacy interests. She maintains that the records are needed as in the counselling the applicant conceded the imbalance in parenting responsibilities and his chronic absences during the marriage which he is now denying. She further argues that the records will confirm her complaints related to the relationship, which she feels is important because she did not confide in anyone else. I agree that these might have probative value for the issues at trial, although note that her own assertions would be self-serving evidence.
4The applicant addressed all the interests to be balanced. First, regarding the interest professed by the respondent of pursuing the truth and disposing correctly of the litigation, he argued that this was insincere and that she is simply on a “fishing expedition to continue waging her litigious campaign against me”. He says that the communications are “irrelevant” in that the counselling was over five years ago. However, the parties married in the spring of 2003 and separated in late 2014. I would therefore not agree, particularly in the context of a claim for spousal support, that these communications in 2011-2012 would be irrelevant if they contain admissions relating to the parenting and marital roles during the first eight or nine years of the marriage. Having said that, how relevant they are is certainly questionable. These legal proceedings started in August of 2015 at which time the respondent should have been aware from the pleadings of the applicant’s position on the relationship. The parties have had one Case Conference and two Settlement Conferences. Although representing herself now, the respondent had a lawyer for the first two conferences. Per the Family Court Rules 17(4)(d) and 17(5)(c), one of the purposes of each of those three conferences was to ensure the disclosure of “the relevant evidence”. There is no suggestion that the evidence from the marriage counselling is new or has just recently come to the respondent’s attention.
5As to effect on society, the applicant argues that there would be general long-term injury to the professional relationships within marriage counselling if the communications were disclosed. I agree. When a marriage is having issues the counselling is designed to address them. A reasonable person would be aware that there is at least a possibility of that process failing. Perhaps even the marriage itself. To ensure the free, open and honest discussions necessary to attempt to address the difficulties, some of which may be highly embarrassing or unflattering, the Confidentiality Agreement is signed. It also serves to avoid the risk that the process will be manipulated by either spouse to lay a foundation for a separation should that occur. Marriage counselling is of course voluntary. If a party does not agree to confidentiality, he or she can refuse to sign the agreement, in which case the counselling may not occur. The applicant here insists that without that agreement he would not have participated.
6Lastly, as to the applicant’s privacy interests and inequalities which may be perpetuated by the absence of protection, the respondent’s request simply ignores the expectations of both parties at the time of the counselling. Confidentiality was addressed in an agreement then. While the interests of justice include the objective of getting at the truth, it also includes ensuring that the procedure is fair to all parties (Family Law Rule 2(3)(a)). In weighing these interests, it needs to be considered that it would be unfair if this court permitted the respondent to do what she specifically agreed with the applicant she would not to do.
7In summary, I am not convinced that the benefits to the respondent of the disclosure would be high in the sense that it is probative evidence related to important issues and cannot be otherwise obtained. She waited over a year and a half from the start of the case to seek this disclosure. She can provide her own evidence of the relationship. There is no allegation that the disclosure would impact a child’s best interests. On the other hand, the harm of disclosing could be significant. This is a situation where the profession has an interest, and other partners and spouses have an interest, to see that their marriage counselling communications are protected, so much so that they address it with a Confidentiality Agreement before the process even starts. I find that in this case the injury caused to the relation of marriage counselling by the disclosure and to the applicant’s privacy interests outweigh the respondent’s interest in having the records produced.
Decision
8The respondent’s Motion for the production of the FREASP records is dismissed. If the parties cannot agree on costs I will accept brief written submissions within twenty days. They are also permitted to make a two page reply within five days after receiving the other party’s submissions.
Mr. Justice Timothy Minnema
Date: August 2, 2017
CITATION: Newstead v. Hachey, 2017 ONSC 4699
KINGSTON COURT FILE NO.: 355/15
DATE: 2017/08/02
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Steven William Newstead, Applicant
AND
Cynthia Marie Hachey, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Lesley C. Kendall, for the Applicant
No counsel for the Respondent
PROCEDURAL ENDORSEMENT
Mr. Justice Timothy Minnema
Released: August 2, 2017