Citation: Vecchio v. Abdelgawad, 2017 ONSC 5815

OSHAWA COURT FILE NO.: FC-16-743

DATE: 20170929

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Elizabeth Vecchio Applicant

– and –

Ezzat Mohammed Amin Abdelgawad Respondent

I. Marcovitch, for the Applicant

M. Hickey, for the Respondent

HEARD: September 28, 2017

REASONS FOR DECISION

Woodley J.:

Overview

[1] In this proceeding the central issues in dispute relate to the custody and access provisions for the parties’ seven year old daughter.

[2] The Applicant mother seeks sole custody with supervised access and the Respondent father seeks joint custody with unsupervised expanded access.

[3] The primary considerations to be applied to determine the issues in dispute will be based on the best interests of the child.

[4] By this motion, the Applicant mother seeks production of the Respondent father’s un-redacted ODSP file pursuant to Rule 19(11) of the Family Law Rules.

[5] The Applicant states that production of the file is necessary to aid in the determination of custody and access and to ensure that any decision made regarding the child is made with the best medical information available.

[6] The Respondent father opposes production of the ODSP records on the following grounds:

i. the relief sought is an unnecessary intrusion into his privacy rights;

ii. the information sought is not relevant to the issue at hand, which he states is his ability to act as a parent; and

iii. the Respondent has already provided sufficient medical evidence in the form of three recent medical notes prepared by his treating physician. The Respondent alleges that the request for the OSDP records is a fishing expedition intended to thwart access to the child and his claim for joint custody.

Issue

[7] Should the Respondent’s ODSP records, or any part thereof, be produced to the parties pursuant to FLR s. 19(11)?

Analysis

[8] Rule 19 of the FLR states as follows:

(11) If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,

(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

(b) order that a copy be prepared and used for all purposes of the case instead of the original.

[9] It is acknowledged that the Applicant served notice of the motion on all parties and the third party record holder. It is further acknowledged that the documents sought are not protected by a legal privilege. The issue therefore is whether it would be unfair to a party to go on with the case without the document.

[10] The Applicant submits that the purpose of obtaining the ODSP records is to assist with the truth seeking function of the court in the determination of the issues of custody and access.

[11] The Applicant advises that Respondent has been in receipt of ODSP since at least 2006 but has failed to disclose how he is eligible to receive or continue to receive the benefits.

[12] The Applicant believes that the Respondent suffers from an ongoing diagnosed mental illness which directly affects his ability to parent and is required to be disclosed in the best interest of the child and for the protection of the child. In support of her position the Applicant produced two historical medical notes which indicate that the Respondent suffers from schizophrenic symptoms which disable him from working. The notes are as follows:

a. October 19, 2004: this is a letter written by Dr. Edward, psychiatrist, to Dr. Gindi, reporting on the Respondent father’s referral and examination. By the letter Dr. Edward describes the Respondent father as experiencing psychosis at the time of the interview with a history of severe depression complicated with psychotic symptoms treated by Zyprexa and Effexor.

b. March 9, 2006: this is a note written by Dr. Wu which certifies that the Respondent was seen by his office since February 2005. The note indicates that the Respondent father has “schizophrenic symptoms” and is “currently on antipsychotic medication” and is “unable to work until his illness is well controlled”.

[13] The Respondent denies that he has ongoing mental illness that affects his ability to parent. In support of his position the Respondent produced three recent medical notes that support his claim that his medical condition is controlled by medication and that he is stable. The medical notes, all prepared by his general physician Dr. Zaki, state as follows:

a. January 2, 2017: “under my care he is stable on treatment and there is no concern physically or mentally”.

b. February 17, 2017: “has been under my care for 1 year and he is compliant with medication and stable he will benefit by seeing his kids more frequent”.

c. March 20, 2017: “Ezzat Abdelgawad has been under my care for one year. He suffers from depression and he is compliant with medication and stable. I feel that Mr. Abdelgawad will benefit from seeing his kids more frequently. If there are any further questions, please do not hesitate to contact me”.

[14] In response to these medical notes, the Applicant submits that the Respondent remains on ODSP and has not returned to work. She questions how the Respondent could be “stable” with “no concern physically or mentally” while continuing to qualify for ongoing ODSP benefits.

[15] The Applicant by her affidavit sworn May 29, 2017, states that she has significant concerns about the Respondent’s mental health, and believes that he experiences mental health symptoms that directly affect his ability to parent a child. She notes that the Respondent is on ODSP but refuses to disclose the basis for the entitlement and continuing entitlement. The Applicant further advises that the Respondent has admitted that he continues to be treated with Zyprexa.

[16] The Applicant advises that she is seriously concerned with the apparent discord between Dr. Zaki’s notes and the Respondent’s continued eligibility for ODSP.

[17] In support of her concern and request to obtain the ODSP documents, the Applicant cites the eligibility requirements of ODSP found at section 4 of the ODSP Act, which defines a person with a disability entitled to received OSDP benefits as:

a. someone with a physical or mental impairment that is continuous or recurrent and expected to last one year or more;

b. the direct and cumulative effect of the impairment on the person’s ability to attend to his personal care, function in the community and function in a workplace, and results in a substantial restriction in one or more of these activities of daily living; and

c. the impairment and its likely duration and the restriction in the person’s activities of daily living have been verified by a person with the prescribed qualifications.

[18] With respect to the Applicant’s concerns, I note that even if the ODSP records indicate that the Respondent suffers from schizophrenia this does not mean that his condition is not controlled by medication and or that access/custody requested is not in best interest of the child.

[19] Having said this, I too query the Respondent’s continuing ODSP eligibility in light of the medical information prepared by Dr. Zaki which is before the court.

[20] The court is entrusted with determining the custody and access issues between the parties involving a seven year old child. The allegations raised by the mother are concerning and I am not satisfied that the current medical information is sufficient to ensure that the best interests of the child are determined with any certainty at this time.

[21] In Porter v. Porter, 2009 18686 (ON SC), [2009] O.J. No. 1638 (Ont. S.C.J.) Justice Allen ordered disclosure of the father’s medical records in relation to mental health issues as well as disclosure of his criminal records to aid in determination of custody and access. Justice Allen noted that courts have held that they must balance the competing interests of an individual’s privacy against the interests of pursuing the truth in order to arrive at a sound disposition of the matter. Further, protection of children has been given priority by the courts over privacy rights. [Samson v. Simard, 2008 NSSC 87, 52 R.F.L. (6th) 155 (N.S. Sup. Ct. (F.D.), at para. 36].

[22] In Godwin v. Bryceland, 2008 ONCJ 495, [2008] O.J. No. 4039, 60 R.F.L. (6th) 233 (Ont. C.J.) Justice Penney ordered counselling reports from a parent’s drug rehabilitation centre for the purpose of making custody and access determinations.

[23] Finally, in Bellerive v. Hammond 2003 68735 (ONCJ), Justice Kukurin ordered disclosure of ODSP documents on the basis that the disclosure sought was limited, the father’s mental health was relevant, the father has not denied the substance of the mother’s allegations and there was no evidence that production would be unfair or prejudicial to the party opposing disclosure.

[24] I find that the determination of the best interest of the child and any related protection concerns must have priority over the Respondent’s privacy rights in this matter. While there is some medical information before the court, it is insufficient to provide the court with any certainty as to the Respondent’s ability to parent the child and what order would be in the best interests of the child.

[25] However, the request by the Applicant for production of a copy of all un-redacted ODSP records is overly broad. The issues to be determined do not require production of the financial aspects of the ODSP file only the medical component that deals with eligibility to receive and to continue to receive ODSP benefits.

Order

[26] In the circumstances there will be an Order as follows:

a. The Ministry of Community and Social Services shall produce to the Applicant and the Respondent, delivered to the attention of their lawyers, Ira Markovitch and Matthew Hickey, a photocopy of all medical documentation relating to the Respondent Ezzat Abdelgawad, filed with ODSP to establish eligibility for ODSP benefits and any medical documentation filed to establish or confirm continued ODSP eligibility for benefits to date.

b. The Order for production shall be subject to the following conditions:

i. That any records produced be used only by the parties to this action, for purposes related to the disposition of the action;

ii. That the records not be further disclosed or released to a party not having a direct interest in the action;

iii. That any information that may compromise law enforcement interests and any documents over which privilege is claimed will be redacted prior to production;

iv. That no records containing young person information protected by the Youth Criminal Justice Act shall be produced unless the record can be severed in such a way to protect the identity of the young person, or unless a youth court order is obtained in compliance with the Youth Criminal Justice Act that authorizes the unedited release of such records;

v. The records may include names, addresses and telephone numbers of third parties but will not include any other personal identifiers such as social insurance numbers, employment information, dates of birth or driver’s license information; and

vi. The Order for release of information be faxed to the attention of Mr. J. Scott Ceriko, Ministry of the Attorney General Civil Law Division, facsimile number (416) 327-0588 with a copy also sent to Attn: Freedom of Information, Ministry of Community and Social Services, 340 Dufferin Street, Toronto, ON, M6K 1Z9.

[27] The relief requested by the Applicant’s counsel evolved during argument and differed from the relief sought by motion served. As such, I find the results are mixed and there shall be no order as to costs.

Justice S.J. Woodley

Released: September 29, 2017