W.A.C. v. C.V. F. 2021 ONSC 6894

COURT FILE NO.: FC-16-960

DATE: October 15, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

W.A.C.

Applicant father

– and –

C.V.F.

Respondent mother

Marie G. Michaels and Brandon Daniel, for the Applicant father

On her own behalf, but not in attendance

HEARD: September 24, 2021

RELEASED: October 15, 2021

Justice Alex Finlayson

PART I: INTRODUCTION

[1] This decision addresses the role of amicus curiae to bring to the Court’s attention her concerns that the party she was appointed to assist may be a “special party”. It addresses the kind of evidence needed for the motion to determine the “special party” issue, some of which is also relevant to other issues in this case, how health records in the possession of the party’s doctors should be procured, and whether there should be a different approach to obtaining such evidence when it is sought by amicus as opposed to one of the traditional parties to the case.

[2] This decision addresses confidentiality Orders, and the limits of such Orders, in the unique circumstances of this case. That discussion includes the procedure to be followed at the hearing of the “special party” motion itself, particularly since amicus proposes that the other party should be excluded from the hearing. That engages questions about where there is or should be a privilege, akin to solicitor-client privilege, as between amicus and the person alleged to be a “special party”. That also engages a different discussion about privacy in the health records.

[3] Finally, this decision addresses case management, in the context of a case that has an involved procedural history. The decision concludes by providing some directions for next steps.

PART II: BACKGROUND AND NATURE OF THE MOTIONS BEFORE THE COURT

[4] This litigation has been ongoing for more than 5 years. The core outstanding issue for trial is the father’s parenting time with the parties’ 11 year old boy named E. A temporary Order for his parenting time is in place, but it is not being followed. This case had been scheduled to go to trial several times, most recently on May 25, 2021, but there have been multiple adjournments, principally requested by the mother. Adjournments had sometimes been granted for other reasons, too. Over the 5+ year lifespan of this case, the parties have appeared before a number of different judges, for various conferences and motions.

[5] This case first came before me on May 17, 2021 for a Trial Management Conference. That Trial Management Conference did not proceed. The mother did not attend Court. I rebooked the Trial Management Conference for May 19, 2021. The mother did not attend Court on May 19, 2021 and the Trial Management Conference did not proceed once more.

[6] The mother did attend on May 25, 2021, the first day of trial, to seek an adjournment. For the reasons set out in my written decision of May 31, 2021 (see W.A.C. v. C.V.F., 2021 ONSC 3952), I adjourned trial to the November, 2021 sittings. This was the fourth adjournment of the trial.

[7] Since May 17, 2021 alone, I have presided over 7 appearances in this matter[^1]. I have heard and decided pre-trial motions about the mother’s request to adjourn the May trial, the father’s request to lift a sealing order over portions of the Office of the Children’s Lawyer’s files that had been previously sealed, and whether amicus curiae should be appointed. I have released 9 endorsements and/or written decisions (exclusive of this one)[^2]. The more lengthy written decisions are those dated May 31, 2021 and July 21, 2021: see W.A.C. v. C.V.F., 2021 ONSC 3942 and W.A.C. v. C.A.F., 2021 ONSC 5140 [^3]. They contain a detailed summary of the prior proceedings in this case.

[8] As noted in the written decision of May 31, 2021 (see W.A.C. v. C.V.F., 2021 ONSC 3942 at ¶ 90), the mother filed a medical letter disclosing a brain injury[^4] in support of her request for the fourth adjournment of the trial. When I heard that motion, I inquired of the parties whether the mother’s capacity was in issue. Neither the father nor the mother said that was so, nor that they intended to pursue the issue. In light of the extensive prior proceedings and the other events that have transpired in this case, I informed the parties I was considering appointing amicus curiae. I set July 12, 2021 for argument, on notice to the Attorney General for Ontario and Legal Aid Ontario.

[9] On July 12, 2021, I indicated that I intended to appoint amicus. I rebooked the Trial Management Conference to proceed on September 17, 2021 with the assistance of amicus. I released detailed reasons for those decisions on July 21, 2021: see W.A.C. v. C.A.F., 2021 ONSC 5140.

[10] Following the July 12, 2021 attendance, counsel for Legal Aid Ontario submitted three names of lawyers who would be willing to act as amicus. In the July 21, 2021 decision, I selected lawyer Deborah Stewart from that list. At ¶ 57-66, I mapped out what the role of amicus should be, to the extent possible at the time. I envisioned that the role would have 6 aspects, centered around assisting the mother to complete the Trial Management Conference, assisting her to bring to the Court’s attention any accommodations that she might need to participate in the trial, and assisting her with trial preparation and during the trial. I indicated that the role might involve two other aspects, not solely relating to the presentation of the mother’s case. I invited the parties and amicus to advise the Court if either felt the role should be changed going forward as the case continued. And I asked counsel to be prepared to address any issues about privilege, as between the amicus and the mother, based on the Ontario Court of Appeal’s comments at ¶ 38 of Morwald-Benevides v. Benevides, 2019 ONCA 1023, and also at ¶ 89 of R. v. Imona-Russel, 2019 ONCA 252.

[11] By mid-August, Ms. Stewart had already made a number of efforts to attempt to work with the mother, but without success. She contacted the trial coordinator and requested an earlier date to appear and seek directions from the Court. That proceeded on August 24, 2021. The mother attended Court that day.

[12] On August 24, 2021, amicus first brought to my attention that the mother had sought leave to appeal this Court’s decision of July 21, 2021 to the Divisional Court. I was told that the mother had also filed other motions for leave to appeal past interim Orders of other judges, and that most of those motions for leave to appeal were still pending. Although counsel informed me that no stay of my July 21, 2021 Order had been granted, the mother seemed to suggest otherwise, based on a discussion she said she had with someone working in the Divisional Court.

[13] Amicus also told the Court of her concern that the mother might be a “special party” within the meaning of rule 2(1) of the Family Law Rules, O. Reg. 114/99, as amended. I advised the parties that this important issue should be dealt on motion, with a proper evidentiary record. The father continued to say he would not be bringing such a motion. Amicus said she would do so.

[14] Amicus told the Court that she may need to serve a summons to witness upon the mother’s neurologist, to elicit viva voce evidence as part of the evidentiary record on the motion. She said she may need access to the mother’s health records to prepare. She also advised the Court of her preliminary view, that the hearing should proceed in the absence of the father and his counsel.

[15] The mother became increasingly distressed as she made submissions on August 24, 2021. Towards the end of the appearance, the mother, and a friend who accompanied her, said she was in pain. The Court terminated the appearance. The mother later confirmed to amicus that she had to be taken to the hospital in an ambulance, because the Court appearance had been distressing to her.

[16] In the endorsement of August 31, 2021 subsequently released, I granted leave for motions to be brought on September 17, 2021. Amicus has now served and filed two Notices of Motion dated September 2, 2021. She then served and filed a third Notice of Motion dated September 18, 2021, after the September 17, 2021 date was adjourned for a week.

[17] In one Notice of Motion, amicus asks the Court to determine whether the mother is a “special party”, and if so, whether the Office of the Public Guardian and Trustee (the “PGT”) should provide representation on her behalf. She asks that the affidavit in support of this motion be sealed, including that it not be accessed by the father or anyone on his behalf.

[18] In the other two Notices of Motion, amicus seeks orders pursuant to rule 19(11) of the Family Law Rules for production of the mother’s medical records, testing results, opinions, referrals and recommendations from a chiropractor, Dr. Ian Horseman of the Brain Therapy Clinic; from Dr. Kachooie, the mother’s physiatrist; and from Dr. Jeyarooban Jeyaratnam, the mother’s family doctor. Two of these doctors have authored letters for the mother to aid her in seeking adjournments and one doctor has commented on her capacity.

[19] Amicus seeks only records that are related to the mother’s brain or other injuries, that impact her memory, cognitive functioning, processing functions and that address her need for accommodations in this Court’s process. Amicus seeks similar confidentiality orders, that any such health records be sealed, including from the father. She further asks that the records only be used for the purposes of determining the capacity issue and/or what accommodations for the mother are needed. Her requests for this relief about the health records are tied to her position about how the motion about whether the mother is a “special party” should be heard. I am not certain whether amicus complied with Part F of the Consolidated Provincial Practice Direction respecting notification of the media prior to seeking confidentiality Orders.

[20] On or about September 14, 2021, three days before these motions were scheduled to proceed, the mother launched another motion in the Divisional Court, seeking leave to appeal this Court’s Order of August 31, 2021 by which I granted leave for these motions to be brought. On September 15, 2021, the assistant registrar of the Divisional Court sent an email, written on behalf of Justice Corbett, to the parties and to my attention. Justice Corbett’s email confirms that the Divisional Court refused to stay my Order of July 21, 2021 pending the hearing of the mother’s motion for leave to appeal that Order, and it subsequently refused another stay of my Order of August 31, 2021. The email reveals that the mother had sought relief in the nature of interim stays pending argument of her motions for leave to appeal. She had not taken the necessary steps to have her motions for leave to appeal argued.

[21] On September 16, 2021, the mother filed a 14C: Confirmation of Motion Form, now telling this Court that she was undergoing urgent medical testing of her heart. The mother complained that she had asked amicus to seek an adjournment of the motion, but that amicus refused[^5]. The mother also filed a Trial Management Conference brief on September 16, 2021. Then, the mother did not attend Court on September 17, 2021.

[22] The motions did not proceed on September 17, 2021. Dr. Horseman sought an adjournment to obtain legal advice. I adjourned the matter for a week. Between September 17 and 24, 2021, he advised amicus he was not taking a position on the records motion (nor were the other doctors). He did not reattend on September 24, 2021.

[23] According to amicus’ Amended Confirmation Form dated September 22, 2021, the mother blocked email communication with her, but continued to email her from that same email when it suited her. For example, on September 22, 2021, lawyer Renatta Austin (who is assisting amicus) emailed the mother a copy of this Court’s Endorsement of September 17, 2021, believing that the mother had not received it. The mother responded to Ms. Austin, and copied Ms. Stewart, Arthur Willwerth (counsel with the Office of the Public Guardian and Trustee) and the father’s counsel, telling Ms. Austin not to email any her with information from amicus.

[24] The mother did not come to Court on September 24, 2021. On September 23, 2021, she filed another Confirmation Form. The mother stated that she advised amicus and father’s counsel that she would not be present on September 24, 2021 and that she was advised “not to take part in court process until [she sees] the cardiologist (sic.) for [her] results.” She said she did not have all the motion materials[^6]. She also said she was in the process of looking for a lawyer, and that she had an appointment with someone on September 28, 2021 to discuss her case. She said she was opposed to the motions on their merits[^7].

[25] Ms. Stewart, accompanied by Ms. Austin, attended court on September 17, 2021. Only Ms. Austin reattended on September 24, 2021 on behalf of amicus, as amicus was occupied elsewhere on another matter that day.

[26] Previously, the mother complained that persons working with the Office of the Children’s Lawyer and in the Court system have violated her human rights. The mother has now expanded the ambit of her complaints to include amicus. On September 24, 2021 at 8:28 am, the mother sent an email to amicus, to the father’s counsel, and to counsel for the PGT, to inform all that she has lodged a complaint against amicus with the Law Society of Ontario. She says she did so “after careful consideration, advice, suggestions, legal advice and feedback from many including a response from the Prime Ministers (sic.) office”. In the email, the mother accused amicus of violating her rights under various laws. She said that if this Court orders production of her health records, the Human Rights Tribunal of Ontario and the Law Society Ontario would hold Ms. Stewart accountable. The email suggests the mother is in the process of looking for a disability lawyer. She also said that irrespective of this Court’s orders, she will sue amicus for damages.

[27] At the outset of argument on September 24, 2021, Ms. Austin said there was now a potential conflict of interest. She said amicus required an adjournment, to enable her to bring a motion to be discharged from this case. Ms. Austin was prepared to proceed; in the event the adjournment request was denied. I declined to grant another adjournment.

[28] For brief oral reasons delivered on September 24, 2021, I ordered that the health records of the three doctors be delivered to the Court for my review. Drs. Kachooie and Jeyaratnam have complied with that endorsement and I have reviewed their records. Dr. Horseman has not complied.

[29] On or about September 30, 2021, Dr. Horseman sent an email to the judicial assistant saying he was unsure how to proceed. He said he had emailed amicus, but her email appeared to have been hacked. He asked the judicial assistant if he could hear from “someone direct from your office”, because the mother had sent several letters regarding the issue since “the request”.

[30] On October 1, 2021, the mother prepared another Notice of Motion seeking leave to appeal this Court’s endorsement of September 24, 2021. She sent it to Dr. Horseman, along with a copy of an email that she appears to have sent to the Divisional Court.

[31] On October 2, 2021, Dr. Horseman emailed the judicial assistant again, asking “what is required from [his clinic]”. Attached to his email was the mother’s Notice of Motion for Leave to appeal and her email to the Divisional Court. Dr. Horseman said he was not able to reach his lawyer, and he incorrectly referred to the mother’s latest motion for leave to appeal and email to the Divisional Court as an “order to not release the file”.

[32] On October 4, 2021, the judicial assistant responded to Dr. Horseman’s first email of September 30, 2021 and advised him that his email of September 30, 2021 had been forwarded to my attention.

[33] Dr. Horseman emailed the judicial assistant again on October 6, 2021 saying that he was being “threatened” by the mother not to release the file, and by amicus to release it. He asked whether the judge could “contact [him] directly and tell [him] what is expected at this point in time”. He also said his personal lawyer was away and he had “no way of finding out what [he] should do from [his own] legal point of view”.

[34] On October 7, 2021, I instructed the judicial assistant to send an email to the mother, to the father’s counsel, to amicus, to counsel for the PGT and to Dr. Horseman. In that email, the judicial assistant informed all that the emails had been brought to my attention, that I would issue further directions soon, and to stop emailing the Court.

PART III: THE POSITIONS

[35] Amicus has brought these motions, in part because the mother herself has self-identified as a person with a disability. The mother has stated to amicus, and to the Court, that she has processing and cognitive health issues, among other physical health issues. Amicus says she has been unable to obtain information from the mother about her position for the trial, about what witnesses should be called, about how the child’s views should be made available to the Court, and about what accommodations she needs, other than telling amicus she needs another lengthy adjournment.

[36] The mother has given to amicus (and to the Court and to Legal Aid Ontario) some medical information about herself. The information consists of letters from Drs. Kachooie and Horseman, which state that she cannot participate in this proceeding. The mother has also filed a short letter of Dr. Jeyaratnam, which states the mother “does have mental capacity to make her own decisions”. She attempted to give this letter to the Court only for the August 24, 2021 appearance, without serving the father or amicus. The mother has been unwilling to provide additional medical information, despite requests from amicus, and despite prior direction from the Court.

[37] Amicus has become concerned that the mother may be a “special party”. Amicus wishes to ensure that the mother’s interests in the litigation are protected. Amicus is also concerned about fairness to the father, to the child and about the integrity of the Court’s process.

[38] Amicus says that the mother’s health records should be produced to the Court to aid in its determination about whether the mother is a “special party”. Although both amicus and the PGT point to cases where capacity has been determined without medical evidence, amicus believes that the record before the Court on this important question should be more complete. Amicus says that the medical information that the mother has provided so far leaves unanswered questions, and it is preferable to proceed with more complete medical evidence.

[39] Regarding confidentiality, amicus argues that the mother’s health records should be sealed from the public record, and that an order should be made prohibiting the father from having access to them. Her submission, that the argument of the main motion about whether the mother is a “special party” should be heard in the absence of the public and the father, is based on similar reasoning.

[40] Amicus says the question of who will have decision-making responsibility about E. was resolved early on in the litigation in the mother’s favour[^8]. Amicus says this militates in favour of the Court imposing the particular confidentiality terms that she proposes. Amicus submits that the questions about the mother’s health are not relevant to the outstanding parenting issues in this case, and therefore the father does not need the records or any of the evidence to be used at the motion concerning whether the mother is a “special party”.

[41] During submissions on September 24, 2021, Ms. Austin made alternative arguments about lesser confidentiality terms, if for example, the Court does not order confidentiality as broadly as set out in the principal position.

[42] Despite her absence on September 17, 2021, in addition to the Confirmation Forms she filed on September 16 and 23, 2021, the mother filed a Trial Management Conference Brief for the September 17, 2021 appearance[^9]. The mother’s Trial Management Conference Brief does not assist the Court with trial management. But as a result of her previous statements to the Court, including her submissions to the Court on August 24, 2021, her latest Trial Management Conference Brief, her recent Confirmation Forms, and the contents of the motion material that amicus filed, the Court is aware that the mother is opposing both motions.

[43] The father’s position changed between appearances. On September 17, 2021, counsel initially said the father was not taking a position about whether the mother is a “special party”, and therefore he would not be seeking access to the health records. Counsel said she trusted the Court to refer the matter to the Children’s Aid Society if child protection issues become apparent from any of the productions or the evidence. Counsel also said that she wished to bring a motion for police enforcement if the trial is adjourned because the PGT gets appointed.

[44] But previously, on August 24, 2021, the father’s counsel told the Court he would oppose the mother being found to be a “special party”. At that time, the father maintained that the mother was using her health issues strategically to delay this case, and the father did not want the trial adjourned. The father was already then concerned that if the mother is found to be a “special party”, the trial might not proceed.

[45] Upon hearing the inconsistent position from the father on September 17, 2021, the Court pointed out to counsel the PGT’s position, expressed in its factum, that if appointed it would require/request a 6-month adjournment to prepare for trial. The father then appeared to revert to his initial position that he would oppose the mother being found a “special party”. On September 24, 2021, father’s counsel confirmed the position taken on September 17, 2021 that the father does not oppose amicus’ motions.

[46] Counsel went on to say that the father now wished to bring a motion to claim other relief in the nature of parenting, in addition to or in the alternative to police enforcement, if the mother is found to be a “special party” and the trial gets adjourned. She asked for an extension of page limits for such a motion.

[47] Mr. Willwerth, counsel with the PGT, attended court with an articling student on both September 17 and 24, 2021. The PGT filed a summary of the law about the procedure it says the Court should follow.

[48] The PGT takes no position about whether the mother is a “special party”. If the mother is found to be a “special party”, the PGT will consent to be appointed, but only if the trial is adjourned for 6 months, and only if the Court approves a draft Order containing certain terms. That is because if the PGT is appointed on the first day of the trial, it says it would be unable and unprepared to discharge properly its fiduciary duty to the mother.

[49] If appointed, the PGT says it will gather the necessary material, review the Continuing Record, assess the merits and litigation strategy, canvass settlement opportunities and prepare for trial, if a trial is necessary. The PGT says it will sign the contribution agreement for the mother’s legal aid certificate and retain counsel on her behalf.

[50] The PGT says it does not make substitute decisions about parenting. The PGT would advocate the mother’s position if she communicates it. But the PGT would still make substitute decisions about other matters relevant to the case, including substitute decisions about litigation strategy, about what evidence to lead, and about the choice of counsel.

[51] The PGT agrees with amicus that the affidavit and the exhibits filed in support of the motion about whether the mother is a “special party” should be sealed. The PGT supports amicus’ position that the motion be heard in the absence of the public and the father.

[52] Emily Bruneau, counsel for Dr. Kachooie, attended Court on September 17, 2021, without Dr. Kachooie. Ms. Bruneau advised the Court that Dr. Kachooie takes no position respecting the production of his records. Counsel was then excused. Neither counsel, nor Dr. Kachooie, returned on September 24, 2021. As set out already, Dr. Kachooie’s records have since been sent to the Court, and I have reviewed them.

[53] Dr. Horseman attended Court on his own behalf on September 17, 2021 and obtained an adjournment to September 24, 2021 to seek legal advice. He did not reattend on September 24, 2021. According to amicus’ Amended Confirmation Form dated September 22, 2021, Dr. Horseman stated to her by email, also on September 22, 2021, that although the mother does not consent to the release of the records, he would release the mother’s file if ordered by the Court to do so. As of the date of the release of this decision, Dr. Horseman remains in non-compliance with this Court’s Order of September 24, 2021.

[54] Dr. Jeyaratnam did not come to Court on September 24, 2021 either. According to amicus’ Amended Confirmation Form dated September 22, 2021, Dr. Jeyaratnam told her by email dated September 22, 2021 that he is not taking a position about the release of his records, and he would not be coming to Court on September 24, 2021. As set out already, Dr. Jeyaratnam’s records have since been sent to the Court and I have reviewed them.

PART IV: SUMMARY OF WHAT IS NOW BEING DECIDED

[55] As the PGT says in its written summary of the law, now that the issue of whether the mother is a “special party” is before the Court, this is a threshold question that must be determined before any further steps may be taken in the proceeding. No objection was raised on September 17 or 24, 2021 to the Court deciding the preliminary issues about the production of the mother’s health records or how the motion about whether she is a “special party” should be heard, prior to the hearing the main motion itself[^10]. I do not consider these preliminary issues to be separate “steps” in the litigation, that cannot be decided until the question about whether the mother is a “special party” is first decided.

[56] It would be circular for me to find, for example, that the Court cannot determine the records motions, when those are the very records needed for the main motion. The request that the Court determine these preliminary issues, bifurcated from the main motion, falls within the Court’s powers in the nature of case management. Moreover, I see these issues as being no different than in a case, for example, where a capacity assessment is sought prior to the main motion itself, in order that there may be appropriate medical evidence before the Court. See 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 411 ¶ 40, 41.

[57] Although the Court is not today deciding the main motion about whether the mother is a “special party”, the records motions and the questions about procedure and confidentiality cannot be determined in a vacuum. They must be considered through the lens of the legal test that will ultimately apply when the main motion about whether the mother is a “special party” is heard. They must also be considered in the context of the other circumstances of this case.

[58] In this decision, I first address the test that applies to the Court’s determination about whether a party is a “special party”. Second, I consider the test for production of records pursuant to rule 19(11) of the Family Law Rules or otherwise. Third, I address the confidentiality issues that have been raised on all three motions. I will conclude by issuing directions about how the main motion will proceed on the first day of trial. I will also address three corollary matters at the end of this decision.

[59] In writing this decision, I have found it necessary to refer to earlier endorsements and decisions that have been released by this Court. I have also found it necessary to refer to some of the material the mother has previously filed, particularly for the adjournment motion that I heard in May. I gave the motion participants the opportunity to make submissions about this on September 24, 2021.

[60] In this decision, I discuss some of the contents of the Court’s previous endorsements and written decisions; however, I do not intend to repeat all of the detail comprehensively. Where necessary for further detail, this decision should be read in conjunction with this Court’s two written decisions of May 31, 2021 and July 21, 2021.

PART V: APPLICABLE LEGAL PRINCIPLES CONCERNING “SPECIAL PARTY” STATUS

A. Legal Considerations About Whether A Party is a “Special Party”

[61] Pursuant to rule 2(1) of the Family Law Rules, “special party” means a party, other than a child party, who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992, in respect of an issue in the case and who, as a result, requires legal representation. This definition in rule 2(1) does not define capacity or incapacity. It is necessary to turn to the Substitute Decisions Act, 1992, S.O. 1992, c. 30, as amended for guidance. See Children Aid Society of the Niagara Region v. W. D., 2003 2293 (Ont. S.C.J.) ¶ 11. As well, the definition of “disability” in rule 1.03 of the Rules of Civil Procedure specifically directs this in non-family civil cases[^11].

[62] Section 1(1) of the Substitute Decisions Act, 1992 defines “capable” as meaning “mentally capable”. “Capacity” has a corresponding meaning. “Incapable” means “mentally incapable”, and “incapacity” also has a corresponding meaning. Section 6 states that, “[a] person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”. There is similar wording as it pertains to the management of one’s personal care, in section 45.

[63] With reference to the Substitute Decisions Act, 1992 therefore, the test for finding a party to be a “special party” has been interpreted to mean when, “…one is not able to understand information that is relevant to making a decision regarding the issue or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision regarding the issue”. See Children Aid Society of the Niagara Region v. W. D. ¶ 10-14. At ¶ 40 of Torok v. Toronto Transit Commission, 2007 15479 (Ont. S.C.J.), the Court said “[t]he ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision in the litigation includes the ability to consider a reasonable range of possible outcomes, including those that are unfavourable. This ability is essentially the capacity to assess risk, which requires consideration of a variety of results, both positive and negative”.

[64] The cause of the incapacity must stem from a source of mental incapacity, such as mental illness, brain injury or developmental delay. It is not to be confused with a lack of sophistication, education or cultural difference. See Limbani (Litigation Guardian of) v. Limbani, 1999 CarswellOnt 929 (Ont. Gen. Div.) ¶ 9-11; see also C.(C.) v. Children’s Aid Society of Toronto, 2007 CarswellOnt 9879 (S.C.J.) ¶ 25. A self-represented litigant is not incapable just because they might conduct their case unreasonably, do not understand the legal process, or because they do not have a lawyer.

[65] Other principles are:

(a) A person will be presumed capable to make the decisions in question in litigation;

(b) The onus is on the moving party to establish on a balance of probabilities that the person in issue lacks capacity;

(c) As the definition in rule 2(1) of the Family Law Rules states, a person may be capable of making some decisions, and incapable of making others. Courts have recognized degrees of capacity;

(d) Compelling evidence is needed to rebut the presumption of capacity. The Court must be cautious in coming to a conclusion that would bar the party from having a final say in how the litigation is conducted or resolved; and

(e) The test for incapacity is an objective one, and a determination of capacity must be based on the evidentiary record, not subjective assessments.

See Calvert (litigation guardian of) v. Calvert, 1997 12096 (Ont. Gen. Div.); see Children Aid Society of the Niagara Region v. W. D. ¶ 13, 14; see Torok v. Toronto Transit Commission ¶ 24; and see also Y.S. v. J.Y., 2021 ONSC 5736 ¶ 15.

[66] At ¶ 27-29 of C.(C.) v. Children’s Aid Society of Toronto, Backhouse J. found that a “functional test” of capacity has evolved in the case law. The “functional test” includes a consideration of the person’s ability to understand the nature or context or overall issue in the litigation, the person’s ability to know or understand the minimum choices or decisions required and to make them, and an appreciation of the consequences and effects of his or her choices or decisions. At ¶ 31 and 32, Backhouse J. listed the following factors as ones that the Court should consider as part of the “functional test”, namely:

(a) the nature of the proceedings;

(b) the person’s ability to understand the nature and effect and consequences of what he or she is or may be called upon to participate and decide on;

(c) the person’s inability to choose and keep counsel;

(d) the person’s inability to represent himself or herself;

(e) the person’s inability to distinguish between relevant and irrelevant issues; and

(f) the person’s mistaken beliefs regarding the law or court procedures may be relevant to the issue of appointment, but only if these deficits are a result of a source of mental disability, such as mental illness, head injury or dementia.

B. The Evidence Needed to Make the Assessment

[67] In Barnes v. Kirk, 1968 389 (Ont. C.A.), the Ontario Court of Appeal held that there should be medical evidence. More recently, at ¶ 14 of Winter v. Sherman Estate, 2018 ONCA 379, van Rensburg J.A., sitting in motions Court, said, “…direct medical advice and information about a person’s actual mental condition is key”. See also 626381 Ontario Ltd. v. Kagan, Shastri ¶ 26.

[68] Both the PGT and amicus argue that medical evidence is not necessarily required. For example, at ¶ 34 of C.(C.) v. Children’s Aid Society of Toronto, Backhouse J. found that the evidence necessary for the Court to consider and apply the factors, could include evidence from persons who know the litigant well, the appearance and demeanour of the litigant, the testimony of the litigant, and even the opinion of the litigant’s own counsel, either in addition to or in the alternative to medical evidence. More recently in Y.S. v. J.Y., Charney J. found the Respondent to be a special party based on “the evidence of the Applicant, demeanor, and affidavits of the Respondent himself”: see ¶ 17.

[69] Although medical evidence may not always be required, it will be important to assist the Court with its determination.

C. Legal Considerations About Who May Represent a “Special Party”

[70] If the mother is found to be a “special party”, then the Court may have to appoint a representative for her. Pursuant to rule 4(2), the Court may authorize a person to represent a special party if the person is appropriate for the task and is willing to act as a representative. Rule 4(3) says if there is no appropriate person willing to act as a representative for a special party, the court may, on the consent of the official, authorize the representation of the special party by the PGT.

[71] There is less detail in the Family Law Rules about representation than in the Rules of Civil Procedure. Rule 7.03(2.1)(b) may have some relevance in this case. Rule 7.03(2.1)(b) says that, unless the court orders otherwise, where a proceeding is against a mentally incapable person who does not have a guardian with authority to act as litigation guardian in the proceeding, but has an attorney under a power of attorney with that authority, the attorney shall act as litigation guardian. Pursuant to rules 7.03(2.2) and (10), the attorney must file an affidavit containing certain information relevant to the Court’s determination about capacity and representation, including information about the proceeding, the nature and extent of the disability, residency requirements, the relationship between the attorney and the defendant, the attorney’s consent, information about potential conflicts of interest, and confirmation that the attorney is aware of cost consequences. Rule 7.04(1) of the Rules of Civil Procedure provides for the appointment of the PGT where there is no other proper person, guardian or attorney under a power of attorney with authority to act as litigation guardian.

[72] During argument, I was told that the mother’s adult son holds a power of attorney, although that document has not been filed with the Court. I was also told that the mother’s adult son does not wish to be involved. No information of the kind referred to in Rule 7.03(10) has been placed before the Court.

PART VI: APPLICABLE LEGAL PRINCIPLES CONCERNING THE RECORDS MOTIONS

[73] The Personal Health Information Protection Act, 2004, SO 2004, c 3, Sch A, as amended contains provisions that govern the capacity to consent to the release of health records. If she has capacity in relation to her health records, the mother may consent to the release of her health records. She may also withhold her consent. See for example section 23 of the Personal Health Information Protection Act, 2004.

[74] But it is not the mother’s capacity to consent to the release of health records under the Personal Health Information Protection Act, 2004, that is the question now before the Court. The different questions about her capacity before the Court pertain to her ability to make decisions and understand consequences in the litigation. Therefore, I will approach these records motions assuming that the mother has capacity to consent to the release of her health records under the Personal Health Information Protection Act, 2004, and she is not consenting.

[75] The first issue is what weight should be placed on the mother’s non-consent to the release of her records. The absence of consent is not determinative. Section 41 of the Personal Health Information Protection Act, 2004 states that a health information custodian may disclose records in the absence of consent, for the purpose of complying with an Order of this Court or a procedural rule that relates to the production of information in a proceeding.

[76] Amicus has framed these records motions as motions under rule 19(11) of the Family Law Rules for production of health records in the possession of the non-party doctors. Rule 19(11) reads:

Document in Non-Party’s Control

19(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.

[77] There are a number other threshold issues that must be determined for the Court to decide these motions. Three of them are nuances, which arise out of the unusual circumstances of this case, that it is amicus who has brought this motion as opposed to one of the parents, and neither parent is seeking the productions themselves. The remaining threshold issues relate to the relevance of the records and to privacy considerations.

A. Threshold Issues

(1) Whether Amicus May Bring this Motion

[78] Amicus is not a party to this proceeding; amicus is a “friend of the court”. On a plain reading of rule 19(11), it is not immediately clear whether the rule operates only for the benefit of a party seeking records in the possession of a non-party, or whether, as is the case here, someone like an amicus (or for that matter another non-party) may seek records from a non-party, in a lawsuit in which they are not a traditional party.

[79] However, rule 19(11) also says the court may make an order, “on motion”. “On motion” is defined in rule 2(1) of the Family Law Rules. Those words mean “on motion of a party or a person having an interest in the case”.

[80] Rule 14 is the motions rule. Likewise, rules 14(1)-(3) contain similar wording as the definition of “on motion”. Rule 14 does not restrict the bringing of a motion, only to parties. Rule 14(3) makes a person who is affected by a motion a party for the purposes of the motion.

[81] Amicus has been appointed by the Court for a number of purposes, including now to bring her concerns about the mother’s capacity properly before the Court. It may be that amicus has a sufficient interest in the case, by virtue of her court appointed mandate, to fit within that definition of “on motion”. It may be that amicus is also “affected” within the meaning of rule 14(3).

(2) Whether the Records May Be Produced to Amicus

[82] If that interpretation is correct and amicus may bring these records motions, there remains the question of whether rule 19(11) authorizes any productions to be released to the amicus. Rule 19(11)(a) empowers the Court to order the non-party to allow “the party” to examine the document[s] and to supply “the party” with a copy at the legal aid rate. Rule 19(11)(b), which is conjunctive, empowers the Court to order that a copy be prepared and used for all purposes of the case, as opposed to the original.

[83] Whether amicus is “the party” entitled to receive productions within the meaning of rule 19(11)(a) may very well turn on the Court finding that she qualifies as a party in the first place, either because of the definition of “on motion” in rule 19(11), or because of rule 14(3). But if the above interpretation of these rules is too broad, then rule 19(11)(a) may also pose a limit.

(3) Whether There Is Other Jurisdiction that Governs the Records Motions

[84] In Catholic Children’s Aid Society of Toronto v. S.S., 2021 ONCJ 199, Sager J. had to decide whether to release documents, which were both in the possession of the Children’s Aid Society of Toronto and which had been filed with the Court for the child protection proceeding before her, to the Minister of Public Safety and Emergency Preparedness. A removal order under Canada’s immigration legislation had been made for the removal of members of the family from Canada. The Minister was not a party to the child protection proceedings, but the past and potential further orders of the Ontario Court of Justice in the child protection proceeding either did or might interfere with the enforcement of the removal Order.

[85] The Minister brought a motion in the child protection proceedings to seek access to the documents, to enable it to present evidence and make submissions in the child protection proceeding itself. The Minister’s motion was brought pursuant to section 50(a) of the Immigration and Refugee Protection Act. However, section 50(a) of the Immigration and Refugee Protection Act merely provides that a removal order is stayed if a decision made in another judicial proceeding would be directly contravened by enforcement of the removal order, but only if the Minister was given the opportunity to make submissions in that other proceeding. It does not bestow upon the Minister the right to participate in the child protection proceedings as a party or otherwise, or the right to obtain disclosure in advance to enable it to do so meaningfully. After first determining the scope of the Minister’s right to make submissions in the child protection proceeding, Sager J. went on to consider the authority to make the production order sought for use at that later hearing.

[86] The case before Sager J. is somewhat different than this case before me in at least two respects. First, Sager J. had to address whether the Ontario Court of Justice, as a statutory court, had jurisdiction to order production in the face of what appeared, at first blush, to be an absence of legislative provisions or rules authorizing the production order. Second, the Minister’s motion was not for production of records in the possession of a non-party, since the records were in the possession of the Society (a party) and some of them had already been filed with the Court. The records motion was not brought under rule 19(11).

[87] Nevertheless, many of the underlying principles that Sager J. considered and applied are equally applicable here. After first finding that the Child, Youth and Family Services Act, 2017 neither conferred upon her any express statutory authority to order the productions to the non-party Minister, nor prohibited it, she went on to find that jurisdiction does exist in rule 1(7.2), when interpreted through the lens of rule 2 of the Family Law Rules. Rule 1(7.2) contains broad authority for the Court to make orders giving such directions or imposing such conditions respecting procedural matters as are just for the purposes of promoting the primary objective of the rules as required under rules 2(4) and (5). Rule 1(7.2) contains no restriction on who may bring a motion or make a request for the procedural order or direction. Further, in the disclosure context, it does not restrict to whom the records may be produced.

[88] Alternatively to rule 1(7.2), Sager J. would have found implied jurisdiction to order the productions at common law, as part of the Court’s jurisdiction to control its process.

[89] Penny J. of the Superior Court of Justice upheld Sager J.’s decision in Catholic Children’s Aid Society v. S.K.S., 2021 ONSC 5813 (released on September 13, 2021). At ¶ 68, Penny J. found no error in Sager J.’s conclusion that “she had jurisdiction to order production of relevant documentation to a third party in appropriate circumstances”. He found that the scope of the disclosure order fell within “the exercise of discretion available to the motion judge in a case conference, particularly where she would be hearing the motion”.

[90] In this case before me, just as Sager J. found at ¶ 105 of her decision, regardless of whether the motion may be brought under rule 19(11), there is no specific legislative provision or rule prohibiting amicus from bringing a records motion, nor prohibiting the Court from releasing the records to her for use at the eventual motion about the mother’s capacity. I find both lines of reasoning that Sager J. and Penny J. applied, whether under rule 1(7.2) or as part of the Court’s jurisdiction to control its process, are equally available to this Court on these motions. Therefore, I conclude that even if rule 19(11) does not adequately cover the circumstances now before this Court, the ratio expressed by Sager J. and Penny J. does.

[91] Even if rule 19(11) does not strictly apply, I find the procedure should still be as analogous as possible, since the records are in the possession of a non-party, and since they are health records for which privacy concerns have been raised. Therefore, I would still apply the factors to be considered, as if the motion was brought by a traditional party seeking health records under rule 19(11). I am able to make any necessary modifications to the test, to account for the fact that it is amicus bringing the motions.

(4) From Whose Perspective Does the Court Consider Unfairness?

[92] Another precondition in rule 19(11) (and the case law governing non-party production) requires the Court to consider whether it would be “unfair to a party to go on with the case without the document[s]”. The rule directs that the analysis about unfairness be focused on “a party”. Again, in the more typical scenario, it will be a party to the litigation seeking production of records in the hands of a non-party to enable that party to prosecute his or her claim, or to defend against a claim. In this case, since it is amicus who seeks production of the records, can it be said that there is “unfairness to a party to go on with the case without the document[s]”, when neither parent is seeking the productions?

[93] The father could have raised the question of the mother’s capacity himself, but he has not done so. Had the mother retained counsel, it is possible that her counsel may have done so. Although amicus was appointed for certain purposes, she has now raised legitimate concerns about the mother’s capacity, and the Court must address them. In this case, it is inappropriate for the parents’ positions to constrain the record before the Court and the “unfairness” analysis.

[94] I also find that the Court may still consider unfairness from their perspectives, notwithstanding their positions. I find that it would not be fair to either side (or to the child for that matter) if this Court went on with the case without addressing the “special party” issue, or if it were to potentially addresses the “special party” issue in an incomplete fashion, due to a gap in the evidence. Even if I were to look at the issue from the mother’s perspective alone, her rights in the litigation are in issue. At its core, this motion is fundamentally about protecting her interests.

[95] As Sager J. did in Catholic Children’s Aid Society of Toronto v. S.S., I am also required to interpret the rules liberally, through the lens of rules 2(2) to 2(5). Rule 2(2) says that the primary objective of the rules is to deal with cases justly. The Court must apply the rules to promote the primary objective, and the parties and their lawyers are required to help the Court do so. The determination of the question about the mother’s capacity is a necessary part of this Court’s duty to manage its cases. Deciding these records motions falls within that duty.

[96] The order I will make will ensure the Court is able to consider fully and justly, the question about whether the mother is a “special party”, that has now been put before it. Later in this decision, I discuss why the Court is not bound by the father’s passive position in relation to what should be done with the health records, having regard to this Court’s duty to manage its cases.

(5) The Applicable Threshold of Relevance that Applies to the Records Motions

[97] The penultimate threshold issue pertains to the relevance of the records in this case. Different cases have expressed different iterations of the amount of threshold relevance that must be demonstrated before productions will be ordered. On September 24, 2021, before ordering that the health records should be deposited with the Court for judicial vetting, I gave brief oral reasons that I intended to adopt a higher “likely relevant” test. I indicated I would release written reasons later.

[98] In Children’s Aid Society of Brant v. N.M.P., 2016 ONCJ 266, Baker J. considered whether to order production of records in the possession of the Children’s Aid Society of Brant that concerned both an added party and other proposed kin caregivers. The added party was the child’s current caregiver, but at trial the Society would be advocating for a final placement with the other kin caregivers. Records pertaining to the caregivers were sought for use at the upcoming trial about those competing plans.

[99] Although some of her considerations were unique to child protection litigation, Baker J. balanced the competing interests at stake, including the privacy rights of the various competing caregivers, and the chilling effect that a production order might have on future caregivers from coming forward to offer their assistance in other cases. In the result, Baker J. adopted a two-step approach, drawing from a records application in the criminal law context. She concluded that she must first determine whether the records were “likely relevant”, prior to ordering production. After being satisfied as to “likely relevance”, she found it was necessary for her to review the records before releasing them, to determine the extent of the productions.

[100] Highland Shores Children’s Aid Society v. T.S., 2019 ONSC 5765 is another child protection decision which also involved a motion for production of a kin assessment in a child protection proceeding. Tellier J. cited the approach adopted by Baker J. in Children’s Aid Society of Brant v. N.M.P. In so doing, she stated, in obiter at ¶ 30, that Baker J.’s approach also accords with the approach that applies when production of health records is sought. See for example ¶ 39 of the Supreme Court’s decision in M.(A.) v. Ryan, 1997 403 (S.C.C.).

[101] Even more recently in M.M-A., P.A., M.D. and A.D. v. E.L. v. Kunuwanimano Child and Family Services, Attiwapiskat First Nation, 2020 ONSC 4597, another decision of Tellier J., she considered a motion under rule 19(11) of the Family Law Rules, this time for production of different kinds of records (i.e. the parent’s probation and police records, and records in the possession of a different child welfare agency which was not a party to the proceeding). At ¶ 24, Tellier J. said the following:

…The likely relevant threshold of relevance is appropriate because these records invariably contain highly sensitive, personal, private information. Further, this is the same threshold employed when considering privilege at step two of the inquiry, as set out below. To the extent the records in the hands of the P&PS and the OPP may also contain similar information, the same relevance threshold ought to apply.

[102] In this case before me, the underlying issues are different from those which were before Baker J. and Tellier J., as are the kinds of records sought. But the privacy and other concerns are applicable, and so the same approach to threshold relevance is appropriate.

(6) Whether the Records are Protected by Legal Privilege

[103] The last threshold issue pertains to privilege. In a motion under rule 19(11), the records must not be “protected by a legal privilege” if they are to be produced. Even if rule 19(11) does not strictly apply for the reasons discussed earlier, case by case privilege may still be asserted based on the common law rule of privilege.

[104] Although she did not come to Court when these motions were argued, the mother is asserting a privilege over her health records. If the Court determines a privilege exists, there is no residual discretion to order the production under rule 19(11), or at common law. See M.(A.) v. Ryan ¶ 15-17. I therefore turn to the legal principles about whether there is a privilege in the health records.

[105] Everyone owes a duty to give evidence relevant to the matter before the Court, so that truth may be ascertained. Privileges are an exception to this fundamental duty, where it can be shown that they are required by a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth”. See M. (A.) v. Ryan ¶ 20.

[106] There is no blanket privilege in health records. However, the kinds of privilege that may exist at law are no longer confined to “centuries’ old categories”. The common law permits privilege in new situations, “where reason, experience and application of the principles that underlie the traditional privileges so dictate”.

[107] The four-prong “Wigmore test” applies to determine whether the contents of the mother’s health records are privileged. The test requires the Court to consider:

(a) Did the communication originate in a confidence?;

(b) Was the confidence essential to the relationship in which the communication arose?;

(c) Was the relationship one that must be “sedulously fostered” in the public good?; and

(d) If all the above circumstances are met, do the interests served in protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation?

See M. (A.) v. Ryan ¶ 20.

[108] In applying this test in M. (A.) v. Ryan, the Supreme Court specifically rejected an “all-or-nothing” approach to the production of health records and privilege. Courts will permit production to the extent necessary to avoid an unjust result. An order for partial privilege will often be appropriate in cases where the privacy interest is compelling. The Court may disclose some but not all documents, edit them, and impose conditions about who may see or copy the documents, “…to ensure the highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking the truth”. See M. (A.) v. Ryan ¶ 32-37, 39.

B. The Test for Production of Records in the Possession of a Non-Party

[109] Once those threshold questions are satisfied, there still remain the issues that the records are in the possession of a non-party, and the records are being sought prior to trial. In a motion under rule 19(11), the well-known test from the Ontario Court of Appeal’s decision in Ontario (Attorney General) v. Stavro (1995), 1995 3509 (ON CA), 26 O.R. (3d) 39 (C.A.) governs the exercise of the Court’s discretion to order production[^12]. I will adapt these factors as necessary in this case, even if rule 19(11) does not strictly apply.

[110] Accordingly, this Court will consider:

(a) the importance of the documents in the litigation;

(b) whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness;

(c) whether some other form of discovery is adequate, and if not, with whom does that inadequacy rest;

(d) the position of the non-parties respecting production;

(e) the availability of the documents or their informational equivalent form some other source that is accessible to the moving parties; and

(f) the relationship of the non-parties from whom production is sought to the litigation. Non-parties who have an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true “stranger” to the litigation.

PART VII: ANALYSIS RESPECTING PRODUCTION

A. Why the Court Already Found the Records Were Likely Relevant and Should be Deposited with the Court for Judicial Vetting

[111] The legal considerations that apply to the determination about whether a person is a “special party” have caused me to have little doubt that health records will likely be relevant, in general. Although amicus does intend to rely on other, non-medical evidence about the mother’s litigation behaviour, her demeanour, and her interactions with amicus, it was prudent of amicus to have sought health records. Clearly, recent medical evidence is important and relevant to the Court’s ultimate determination about whether the mother is a “special party”.

[112] In the specific circumstances of this case, I also agree with paragraph 21 of amicus’ factum, that the medical letters supplied by the mother herself leave unanswered questions.

B. Analysis Respecting the Stavro Factors

(1) The “importance of the documents in the litigation”

[113] The reasons why I found the records were likely relevant also form part of the reasons why they are important in the litigation and should be produced. But there are several other reasons that underscore their importance.

[114] The first is the context of this case. The records’ importance must be placed in context of how the prior proceedings have been conducted, what is at stake in these proceedings, and even more narrowly what is at stake at the upcoming motion to determine whether the mother is a “special party”.

[115] I do not intend to repeat again, in any degree of detail, the prior proceedings leading up to the May, 2021 trial, which did not go ahead. Needless to say, the case has been repeatedly delayed, many times as a result of the mother’s behaviour in the litigation.

[116] Even though the issue of decision-making responsibility settled early on, the child’s relationships are at stake. At trial, the Court will still be required to consider, among other things, the myriad of factors related to the child’s circumstances pursuant to section 24 of the Children’s Law Reform Act. Very often, much of the evidence that is relevant to decision-making is also relevant to the Court’s determination about parenting time.

[117] The OCL was appointed some five times to get information about the child’s best interests placed before the Court, to aid it in its fact finding and decision-making at trial. The OCL was then unable to complete its investigations. I have not yet heard the evidence at trial as to why that is, but previously during this case, I was told that it was because of the mother’s behaviour.

[118] The Court is already aware that there will be arguments at trial made by the father, perhaps in accordance with s. 33.1(1) and (2) of the Children’s Law Reform Act, that the mother is not exercising her decision-making authority in a manner consistent with the child’s best interests, particularly as it relates to facilitating his parenting time. There have already been a series of appearances on a prolonged contempt motion, directed at ensuring the father could have parenting time with E. Hughes J. found the mother in contempt and scheduled several appearances to monitor the mother as she purged her contempt. While some parenting time did resume as a result of the Court’s oversight, the father’s parenting time is no longer occurring once again.

[119] There have been several instances of the mother failing to come to Court, both for appearances before me and before other judges. She has repeated this behaviour again when these motions were argued, while simultaneously filing unhelpful information that does not address the issues being raised. These motions raise important questions about her ability to participate in this case. She ought to have attended.

[120] In a similar vein, the mother has launched a number of motions for leave to appeal in the Divisional Court, and then did not pursue them. She has tried to get interim stays improperly by email, and unsuccessfully. She has effectively instructed Dr. Horseman not to comply with this Court’s Order of September 24, 2021, causing more confusion and leading Dr. Horseman to resort to emailing the Court.

[121] Twice that I am aware of, most recently at an appearance before myself on August 24, 2021, and another time in 2018 as reflected in the endorsement of Rowsell J. dated June 30, 2018, the mother became very distressed in Court. The Court needs a proper understanding about why that is.

[122] The Court appointed amicus to assist the Court, in large part by assisting the mother. The mother has not engaged with amicus. The evidence now filed by amicus reveals that the mother told her that she cannot proceed in this matter, at least for another year from November 2021. Were a 5th adjournment request to be granted based on the mother’s inability to participate, that would take this case into its 6th year. For such a request to be made and seriously considered, cogent medical evidence would be required.

[123] The mother should know this. Over the past several years, judges have repeatedly asked her to produce better evidence to support her adjournment requests, but she has not done so. In the absence of that evidence, two other judges in addition to myself, have referred the mother to the Court’s disability coordinator, but there is no indication that she accessed that support.

[124] At certain appearances before me since May, the mother did have a lawyer attend, not to offer her any legal assistance with her case, but to provide her with “disability support”. I have yet to understand what assistance that lawyer offered her respecting her disability. I am told by amicus that the lawyer helped the mother with her legal aid appeal. Even with that lawyer’s assistance, the mother has still not filed anything helpful about accommodations, let alone adjournments. And then, during the argument of these motions, I was told by counsel that the support person/the lawyer is no longer helping the mother for some reason in any event.

[125] The mother views requests for, and orders that she provide information about her health, beyond that which is willing to provide voluntarily, as a violation of her rights. I rejected her argument about this already: see W.A.C. v. C.V.F., 2021 ONSC 3942 ¶ 54-67. Yet the mother continues to take this position.

[126] The evidence now filed by amicus also reveals that she has been unable to ascertain from the mother her position for trial, her proposed witnesses, her position about how the child’s views should be made available to the Court, never mind what accommodations that she might need, other than requesting another lengthy adjournment. Unfortunately, the mother has expanded the ambit of her complaints now to include the amicus.

[127] Even if the mother does not wish to work with amicus, she has had other access to counsel, but so far she has not availed herself of it. When I heard submissions about whether to appoint amicus on July 12, 2021, counsel for Legal Aid Ontario provided an update about the status of the mother’s eligibility for legal aid at the time. He laid out what she would need to do to appeal the denial of her request for another certificate and even said he would expedite the consideration of her appeal if she filed one: [13] (see W.A.C. v. C.A.F., 2021 ONSC 5140 ¶ 8-10, and 29-39).

[128] The mother did subsequently complete her appeal, and a contributory certificate was granted to her, as of August 20, 2021. As of the date these motions were argued, it appears that the mother has either not yet signed the contribution agreement to validate her legal aid certificate, or if she has, she has not retained counsel. In her recent filings with this Court, the mother has said she is searching for a lawyer, and that she would be meeting with someone after the date scheduled for these motions. Meanwhile, the Court now knows, as a result of Dr. Horseman’s post-motion emails to the judicial assistant, that the mother is still self-represented (at least in her most recent motion for leave to appeal to the Divisional Court). It is not clear from her recent filings in this Court, whether she is actually searching for a lawyer to help her with this case, or whether she is searching for a lawyer to help her pursue arguments based on discrimination.

[129] The evidence now filed by amicus further reveals that even though amicus has not been able to ascertain a position from the mother to present to the Court, the mother did articulate her claims in her appeal to Legal Aid Ontario, with the assistance of the disability support person/lawyer referred to above. Amicus says that the mother’s claims to Legal Aid Ontario about what remains in issue in this case, do not correspond at all with the mother’s pleadings, nor do they reflect the state of the orders already made.

[130] In this context, I turn to the medical letters that the mother herself placed before the Court. For the adjournment motion in May, the mother filed two letters from health care professionals; one undated letter from Dr. Kachooie; and a letter dated May 12, 2021, co-authored by Dr. Salomeh Redjvani, a chiropractor, and Srikanth Lahoti, a physical therapist.

[131] The letter from Dr. Kachooie states that the mother was hospitalized in 2018 for blood clots in her lungs. It states that she was involved in car accidents in 2019 and 2020. The first car accident caused a traumatic brain injury and multiple physical injuries. The second one made her “profoundly worse”. It also says that she had surgery in 2020.

[132] The letter goes on to state that the mother relies on multiple pain medications and requires regular therapy. It concludes that due to her traumatic brain injury, the mother is not able to participate in the proceeding “at this time”, and that if she is placed in this position, it will exacerbate her symptoms.

[133] The letter from Dr. Redjvani and Ms. Lahoti “strongly advise[d] that this hearing be postponed due to [the mother’s] inability to participate due to current health circumstances”. It says when she can participate in court proceedings, “please allow her the appropriate disability accommodation”. It made no suggestion as to what an “appropriate disability accommodation” might be.

[134] In the decision of May 31, 2021, I commented on the inadequacy of these letters in the context of the mother’s adjournment request: see W.A.C. v. C.V.F., 2021 ONSC 3942 ¶ 77-78. Meanwhile, I had also observed the mother’s ability to participate in this proceeding at times. For example, in the decision of May 31, 2021, I wrote that the mother was able to prepare and file two adjournment motions and several affidavits, including her response to the father’s motion to lift the sealing order that had been granted in 2019 over parts of the OCL’s files that had been granted in 2019. I observed that she had submissions, typed and uploaded into a teleprompter, from which she read, that she was able to answer questions from the Court and I observed that she had a friend who is a lawyer help her prepare: see W.A.C. v. C.V.F., 2021 ONSC 3942 ¶ 13. I also note the mother has told the Court about her charitable work and her appearance on a television show.

[135] Based on those observations, and in the absence of having better medical evidence, I tried to craft procedures, well in advance of the newly scheduled November, 2021 trial, that would allow the mother to draw on those skills: see for example W.A.C. v. C.V.F., 2021 ONSC 3942 ¶ 86-88. But since that adjournment motion, the mother has seemingly not done anything to prepare. She has filed the two additional medical letters referred to earlier, seeking to further adjourn the case. The letters provide differing views about her abilities.

[136] For the appearance on August 24, 2021, the mother provided the Court a letter from Dr. Horseman dated August 9, 2021. The mother also gave this letter to amicus and portions of it are excerpted in the affidavit amicus filed in support of the records motions[^14]. Among other things, Dr. Horseman described the mother as attending at his clinic with severe pain, and other ailments. In further interviews, she reported concentration and memory issues. Dr. Horseman’s opinion is that the stress of the court process is impeding her recovery. He writes that “[i]t is hard for her to use her cognitive abilities and function appropriately as would be required by the court”.

[137] At the same time, the mother filed the short one line letter from Dr. Jeyaratnam, her family doctor. It merely states that the mother “does have mental capacity to make her own decisions”[^15].

[138] I agree with amicus that the information the mother provided through these most recent letters, does not give the Court a complete picture of the medical issues. There is a lack of specificity about the extent and impact on the mother’s ability to manage issues in the proceeding. The letters do not provide detailed information about the nature of the brain injury, the treatment plan and prognosis, and how each doctor reached their conclusions. As amicus also says there is a lack of detail about the possible accommodations needed for trial.

[139] As a result of this Court’s Order of September 24, 2021, I have now had the benefit of reviewing the records from two of the three doctors. The records contain additional information about the mother’s diagnosis with a brain injury and other injuries, about the pain from which she suffers, about the treatment that she is receiving, and about the medications she takes. There are some records in their files that comment upon her memory, concentration and processing. There are some limited records relating to mental health. There are also recent Court documents in the files, and emails from the mother that reveal the mother has been attempting to interfere with the doctors’ compliance with this Court’s Order of September 24, 2021.

[140] The records corroborate that the mother is suffering from various ailments. They do not draw complete conclusions about the extent to which the mother’s capacity is impaired. The basis upon which Dr. Jeyaratnam concluded that the mother has capacity to make decisions needs to be explored.

[141] I find that the fact that there were unanswered questions based on the letters the mother produced prior to these motions renders the health records important under the Stavro test. I find this to be so, even though there continue to be unanswered questions based on the health records themselves. The fact that there remain unanswered questions does not diminish the records’ importance. The fact that there are continuing questions likely highlights the need for viva voce evidence at the main motion. The records are therefore also important to amicus’ ability to decide who to call to testify, and to decide how to call that viva voce evidence effectively.

[142] When amicus first raised the question of whether the mother is a special party at the August 24, 2021 attendance, she suggested that she might call viva voce evidence from the mother’s neurologist. However, amicus has instead moved for production from Drs. Kachooie, Horseman and Jeyaratnam. On August 24, 2021 and September 17, 2021, she informed the Court that she did not know the identity of the neurologist. I surmised that the mother’s family doctor’s file (Dr. Jeyaratnam) might contain this information. Having now reviewed the records, I see that it does[^16].

[143] In that absence of knowing the neurologist, on September 17, 2021 I asked amicus to turn her mind to the qualifications of the medical professionals from whom records were being sought (including a chiropractor and a physiatrist). I asked amicus to consider whether these health care professionals are able to provide opinions about capacity. And if not, would that diminish the relevance of their records? In response to this question, amicus obtained and supplied to the Court Drs. Kachooie’s, Horseman’s and Jeyaratnam’s curriculum vitae for the further attendance on September 24, 2021.

[144] At the motion about the mother’s “special party” status, the Court will be called on to weigh all of the evidence placed before it. The Court will have to apply the test articulated in the aforementioned cases to the evidence, to arrive at a conclusion about the mother’s “special party” status in these proceedings. In argument on September 24, 2021, Ms. Austin submitted that the doctors’ records may contain medical evidence relevant to the determination about capacity, even if no such specific finding is made in the records, and even if they are unable to comment on capacity in the litigation, per se. Upon further reflection about the question I posed of counsel on September 17, 2021, I agree with her.

[145] The qualifications of any of these doctors to offer an opinion as participant experts may be addressed at the main motion. For the purposes of these records motions, even if it turns out that one or more of the doctors are not qualified to offer an opinion about capacity, their observations and interactions with the mother still have relevance to the Court’s conclusion about whether she is a “special party”, according to the functional test set out in Backhouse J.’s decision in C(C.) v. Catholic Children’s Aid Society of Toronto.

(2) Whether production now as opposed to production at trial is necessary to avoid unfairness

[146] I appreciate that this case has a lengthy procedural history, that there have been many adjournments, and that there is a strong interest, including an interest in the administration of justice, that this trial proceed in November. I also appreciate that if the mother is found to be a “special party”, the trial may not proceed. However, a November start date for this trial may have to yield, depending on the outcome of the main motion. Had the question of the mother’s capacity been raised earlier, it would have been dealt with earlier. Still, the question must be considered fully and decided before the case may proceed to trial, regardless of its late timing.

[147] I have already found that the records are necessary for amicus to prepare for the main motion. Even though these motions are being brought close to the start of the trial, I find that if production was not dealt with in advance of trial, those involved in this case would not be able to determine how to best proceed. The trial may become chaotic and disorganized. My application of this factor militates in favour of making a production order now.

(3) Whether some other form of discovery is adequate, and if not, with whom does that inadequacy rest

[148] If the Court finds, as I do find, that the medical evidence already supplied leaves unanswered questions and pre-trial disclosure is necessary for proper preparation, then the answer to this factor is also that there is no other adequate form of discovery. The mother placed her health and her ability to participate in this proceeding squarely in issue many times. She has been told by different judges to file better medical evidence, but she has not to do so. In the absence of a court order, the mother’s consent to the release of health records would be required, and she has not given it.

[149] The only alternative sources of discovery might be to move to question one of the doctors pursuant to rule 20(5) of the Family Law Rules, prior to first day of trial, or for the Court to order a capacity assessment. As the trial date is rapidly approaching, it is more efficient to just elicit viva voce evidence at the motion, and again, the records are needed to do that effectively anyway. The latter is a more intrusive step than the current request before the Court and may not be necessary. Any assessor would likely need the records too. My application of this factor also militates in favour of making a production order now.

(4) The position of the non-parties respecting production

[150] None of the three doctors ultimately took a position respecting the production of the records in their possession. This factor either militates in favour of making a production order now, or at least it does not weigh against the Court making the order now.

(5) The availability of the documents or their informational equivalent form some other source that is accessible to the moving parties (or Amicus in this case)

[151] Under the circumstances of this case, the answer to this factor is similar to the question about alternate forms of discovery. This factor militates in favour of making a production order now.

(6) The relationship of the non-parties from whom production is sought to the litigation

[152] The persons from whom records are sought are health care professionals. While they have professional duties to the mother, and although two of them have authored letters for her supporting adjournment requests, they still have no interest in the outcome of this litigation. But for the fact their records have been sought for use in this case, they are strangers to the litigation. They are not aligned with the mother such that their position should be viewed with more scrutiny as might a non-party involved in different circumstances.

(7) Conclusion Respecting the Stavro Factors

[153] The Court’s application of the Stavro factors to the evidence before it weighs heavily in favour of ordering that health records be produced at this time.

PART VIII: ANALYSIS RESPECTING CONFIDENTIALITY AND PRIVILEGE

[154] I will now address whether terms in the nature of confidentiality should be imposed. In a nutshell, amicus seeks broad confidentiality orders, not only to seal the file, but to limit the father’s participation at the next step in the case, to limit his access to the evidence, and to limit his access to the health records. Some of these requests are unusual, perhaps even unprecedented.

[155] Amicus relies on the Court’s power to make a sealing order under section 137(2) of the Courts of Justice Act and the Supreme Court’s recent decision in Sherman Estate v. Donovan, 2021 SCC 25, as the legal basis for ordering some or all of these terms. Even though I would find that M.(A.) v. Ryan is the preferable authority to address whether there is any privilege in the mother’s health records and/or whether any terms about those records should be imposed, the issues, argument and analysis respecting the conduct of the “special party” motion and the father’s access to the health records are overlapping.

[156] Despite the father’s passive position on these issues, were the Court to order all of the confidentiality terms requested by amicus, counsel for the father envisions a future scenario in which there may need to be yet another motion to lift some or all of said confidentiality terms in relation to the health records, depending on what they reveal. This is problematic for a few reasons.

A. Whether Confidentiality Orders Should Be Made In Relation to the Motion to Determine if the Mother is a “Special Party”

(1) Applicable Statutory Provisions

[157] Although amicus relies on section 137(2) of the Courts of Justice Act as the statutory authority for this Court to make many of the orders she proposes that section only addresses sealing orders. There are other relevant statutory provisions that apply.

[158] Section 135 of the Courts of Justice Act enshrines into legislation the constitutionally protected open court principle. It states that all court hearings shall be open to the public, subject to subsection (2) and the rules of the Court. Section 135(2) empowers the Court to order “the public”[^17] be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

[159] Section 137 of the Courts of Justice Act addresses access to the documents filed in the proceeding. Section 137(1) provides that on payment of a prescribed fee, a person is entitled to see any document filed in a civil proceeding in a court, unless an Act or an order of the court provides otherwise. Like in section 135, section 137(2) empowers the court to order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record[^18].

[160] Although not referred to by amicus in her factum or in argument, there are also confidentiality provisions in the Children’s Law Reform Act. Section 70(1) states that where a proceeding includes an application under Part III of the Children’s Law Reform Act, the Court shall consider whether it is appropriate to limit access to all or part of the court file, or to restrict the publication of information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file. Section 70(2) states that in determining whether to make either of these orders, the court shall consider the nature and sensitivity of the information contained in the documents and whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents.

[161] If the Court decides to limit access in either of these ways, section 70(1) provides that access be limited to the court and its employees, to the parties and to their counsel, to counsel for the child, and to any other person that the Court may specify. The list is conjunctive. As with sections 135 and 137 of the Courts of Justice Act, the section says nothing about limiting access to one party, but not the other.

(2) Applicable Legal Principles

[162] At ¶1-3 of Sherman Estate v. Donovan, 2021 SCC 25, Kasirer J. said:

(a) The Supreme Court has been resolute in recognizing that the open court principle is protected by the constitutionally-entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy;

(b) As a general rule, the public can attend hearings and consult court files, and the press is free to report on the workings of the courts;

(c) There is a strong presumption in favour of open courts; and

(d) Discomfort is not, in general, enough to overturn the strong presumption of openness.

[163] However, the Court also recognized that exceptional circumstances may arise where competing interests justify a restriction to the open court principle. Kasirer J. went on to recognize that privacy is a fundamental value that may operate as a limit to the open court principle. Where dissemination in open court may result in an affront to a person’s dignity, privacy will be an important public interest relevant to the test for placing discretionary limits on openness.

[164] The more narrow focus on dignity as opposed to privacy in general, focuses the analysis on the impact of the dissemination of sensitive personal information, rather than the mere fact of dissemination. This dignity dimension of privacy must be at “serious risk”. The information sought to be protected must be sufficiently sensitive that it strikes at the biographical core of the individual and that without protection, the affected person will suffer an affront to their dignity. See ¶31-35.

[165] At ¶ 37-38, the Court recast the previous two-part test to obtain a confidentiality order from Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 to now revolve around three “core prerequisites” that the person seeking a limit to openness must demonstrate. The Court indicated that this three-part test applies to all discretionary limits on court openness, subject only to valid legislative enactments. The applicant must establish:

(a) court openness poses a serious risk to an important public interest;

(b) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent the risk; and

(c) as a matter of proportionality, the benefits of the order outweigh its negative effects.

[166] I note that Sherman Estate v. Donovan was an estates case that originated in the Superior Court of Justice in Ontario. Interestingly, the Supreme Court’s decision does not refer to any specific provision in the Courts of Justice Act. Although amicus relied on section 137(2) of the Courts of Justice Act in addition to Sherman Estate v. Donovan, and not section 70 of the Children’s Law Reform Act, I do note some differences in the statutory language.

[167] The Courts of Justice Act provisions contain mandatory presumptions of openness, subject to the exceptions. Section 70 of the Children’s Law Reform Act, however, makes it mandatory for the Court to consider whether a confidentiality order is appropriate in a case involving a child. Section 70(2)(b) requires the Court to consider the impact on a person referred to in documents relating to the court application. Section 70 may be more directed at the personal impact on an individual.

[168] Whether different considerations apply in family law cases concerning children given these differences in the statutory language was not argued. It would not be appropriate for me to consider the extent to which the Supreme Court’s most recent decision is less applicable, or otherwise should be adapted, if at all[^19]. I will therefore decide the issue using the three-part test in Sherman Estate v. Donovan.

(3) Analysis Respecting the Confidentiality Orders Sought

[169] In regards to the first criterion, I am satisfied that the mother’s interest in maintaining privacy about her health information and records, and also over some of the affidavit evidence to be used at the “special party” motion is not only personal to her, but that it also engages an important public interest to which openness poses a serious risk.

[170] It is true that there is a personal component to the privacy interest being asserted. For example, I am aware that the mother says she does charitable work with a foundation and she says she is visible in the community. The mother does not want the father to have access to her health information (presumably beyond that which she has voluntarily disclosed) based on the history of her relationship with him. She also wishes to keep the details of her health private for other reasons, arguably unrelated to this case.

[171] But the privacy interest being asserted by amicus on the mother’s behalf (and by the mother herself via her filings) goes beyond just that personal sphere. Her personal concerns also overlap with an important public interest. See Sherman Estate v. Donovan ¶ 47.

[172] The mother is a person with a disability. Courts have previously recognized and protected from dissemination sensitive information related to stigmatized medical conditions. See Sherman Estate v. Donovan ¶ 77.

[173] Persons with disability should be treated with respect when they access the courts. Persons with disabilities may be understandably distressed at the prospect of having their medical histories revealed in the public domain. The dissemination of personal health information can have unintended consequences. For example, once their health information becomes publicly available, discrimination may occur in other contexts. And “…[t]he loss of control over fundamental personal information about oneself [is] damaging to dignity because [it erodes] one’s ability to present aspects of oneself to others in a selective manner.” See Sherman Estate v. Donovan ¶ 71. The protection of vulnerable persons is deserving of protection. See by analogy M. (A.) v. Ryan ¶ 30. The first part of the test is satisfied.

[174] In my view, the real issue on this motion pertains to the second prong of the test. The issue is not whether there should be a confidentiality Order, but rather what precise confidentiality order is required in this case for the Court to strike the right balance.

[175] Before turning to that, in regards to the proportionality prong of the three part test, I will consider the extent to which information would be disseminated without an exception to the open court principle, to assess the benefits and the negative effects of making some form of an order, or not. See Sherman Estate v. Donovan ¶ 80. I consider three clusters of facts.

[176] First, the nature of this case is once again relevant to the determination of whether there should be a confidentiality Order. This case is a private dispute between two parents about parenting issues. Those aspects of the case are unlikely to attract any public interest.

[177] Moreover, the parenting issues are not complex. From a legal perspective, the Court’s decision on the main parenting issues will require the Court to apply the Children’s Law Reform Act and the well-established legal principles that apply in parenting cases. Those aspects of the decision are unlikely to have much precedential value.

[178] On the other hand, there have been and still are some procedural complexities, relating to the sealing order previously granted in 2019, then lifted this year, relating to the appointment of amicus in the summer of 2021, and relating to these current motions now before the Court. Some persons in the legal community, like other family lawyers, may have some interest in the Court’s decisions about those issues, for use in future cases.

[179] Second, the mother has already filed with the Court (and given to amicus) some medical information in the form of the letters from her health care providers. One might say that information has already been made public by the mother herself.

[180] But to the extent there is already information available in the public sphere, including as a result of the mother’s own filings, that does not mean it has been widely disseminated. The information the mother has already provided has been limited. This Court has already been mindful of the potential confidentiality concerns, even in the absence of a proper request from the mother. On the Court’s own initiative, and proactively, written decisions since May have been released with initials, and without identifying information in their contents, to the extent possible.

[181] Third and again, the mother says she has some public persona. Yet once again, the information the mother has provided about her charitable work and her public persona is quite limited: see W.A.C. v. C.V.F., 2021 ONSC 3942 ¶ 79 for additional details.

[182] Still, the likelihood that the information will be disseminated in the absence of privacy protection going forward is difficult to quantify precisely: see Sherman Estate v. Donovan ¶ 80-83. And the landscape of this case is about to change. Important and sensitive questions about the mother’s capacity to participate in this litigation are now before the Court and will be decided by it. Detailed information about the mother’s health is being sought for use in this new context, and it will perhaps also be used at the trial proper. More health information is being provided that has not been previously produced. The very information needed by the Court to make the upcoming decisions it is tasked to make, is also deserving of protection from the public dissemination that a Court proceeding sometimes entails.

[183] It remains to be seen if the mother will suddenly begin participating in this case, now that a confidentiality Order is being made. I hope she will. But beyond just the mother in this case, the Court should be open to making orders that encourage, not discourage those with disabilities and members of other equality seeking groups from accessing the Court system without fear. Hopefully, my order limiting some aspects of openness will have a salutary effect on that issue.

[184] Therefore, I accept that some confidentiality terms should be put in place going forward. The right balance should ensure that the privacy concerns are addressed, that those who have a direct interest in the case, including the father, are able to participate meaningfully in it, and that any public interest in the case, whatever it may be, is adequately satisfied.

(4) What is the Appropriate Confidentiality Order?

[185] To strike the right balance, it is my view that the appropriate Orders are to seal the Court file other than the Court’s published judgments, to amend the title of proceedings to ensure the parties and the child continue to be identified with the use of initials, including in any published judgments of the Court, to limit access to the Court file to the Court, to the parties, their counsel and amicus, and to prohibit the parties and others on their behalf from making public identifying information. I will deal with some other terms specific to the health records separately.

[186] I am also prepared to order that the motion about whether the mother is a “special party” will be held in the absence of the public. But the father is a party; he is not a member of the public for this purpose. I do not see how section 135(2) of the Courts of Justice Act is applicable in this context. But for the fact that the father has said he will not participate, I would not have extended this Order to bar the father. His non-participation will flow from his choices in the litigation, not an order of this Court. I explain why I say this in more detail below.

[187] I considered granting a more limited sealing order to cover only portions of the file, but that would impose a burden. It would be quite an onerous task to ask counsel or the parties to reproduce a redacted version and an unredacted version of the file, given its size (3 boxes). Descriptions about mother’s health have been interwoven throughout other documents filed in the record. It would impose an administrative burden on court staff, if the Court took on this task. Judges should not be put in the position of having to take on this task themselves. In this case already, I have agreed to engage in the exercise of vetting the health records, a cumbersome task. It is not a good use of judicial resources now to oversee the redaction of a large Court file of this nature.

B. Whether the Mother’s Health Records are Protected by Privilege

[188] I turn now to the questions about whether there is a privilege in the mother’s health records, and to whom the mother’s health records will be released if there is not such a privilege or if there is a partial privilege. Although these confidentiality issues engage similar questions to those raised above, I base my decision principally on the analysis in M.(A.) v. Ryan.

[189] The facts in M.(A.) v. Ryan involved a doctor seeking access to his former patient’s psychiatric counselling records for use as part of his defense in a civil sexual assault brought against him by that former patient. Although the Supreme Court’s application of the first three branches of the Wigmore test focused on the particular nature of those records as counselling records, there is no serious contest in this case that the first three elements of the Wigmore test are also met respecting the mother’s health records.

[190] But more is required to establish privilege. Under the fourth branch of the test, the benefit that inures from privilege must outweigh the interest in the correct disposal of the litigation. See M. (A.) v. Ryan ¶ 31.

[191] On the one hand, the benefits include protecting the mother’s interest in maintaining a confidential relationship with her treating doctors. They include the mother’s fear that the contents of her records will be made public, including to the community organizations with which she is involved. They also include more broadly, guarding against the potential impact from disclosure on other persons similarly situated and whether disclosure might impact their willingness to seek treatment. Finally, privilege is beneficial when it addresses any inequalities that would be perpetuated by the absence of protection, discussed earlier. The Court should ensure that its orders are compliant with Charter values. See M. (A.) v. Ryan ¶ 29, 30.

[192] However, in regard to the competing interest in the correct disposal of the litigation, there are two and possibly more factors relevant to that. While the more narrow focus of the upcoming motion will be on whether the mother is a “special party”, I repeat again that this is a parenting case. In parenting cases, the Court’s mandate to make orders in the best interests of children also militates in favour of disclosure: see for example Godwin v. Bryceland ¶ 19-20; see also of M.M-A., P.A., M.D. and A.D. v. E.L. v. Kunuwanimano Child and Family Services, Attiwapiskat First Nation ¶ 34.

[193] Beyond just parenting cases, M. (A.) v. Ryan has been widely applied for other purposes in family law cases, too. For example, courts have ordered production of clinical notes and records in family law cases where such records were relevant to other issues in the action, like credibility, and even where one party sought to rely upon a physician’s report, such that the notes and records are necessary for cross-examination. See again Godwin v. Bryceland ¶ 19-20; see Hughson v. MacDonald, 2009 CarswellOnt 7491; and see also Porter v. Porter, 2009 ONSC 18686 (S.C.J.).

[194] The mother’s health records are not only needed to decide whether she is a “special party”. The fact that decision-making responsibility is resolved does not mean that the records are no longer relevant to parenting. Without proposing to exhaustively list the other issues to which the records may have relevance, counsel and the parties may find them relevant to the amount of parenting time that the father may have. The records are relevant to accommodations, something the Court has repeatedly been asking about. The records may be relevant to credibility. The records are also relevant to the mother’s ability or willingness to comply with any Orders of this Court, both parenting Orders and others. Counsel and the parties may very well find them relevant to other areas at trial.

C. Why the Court Agreed to Vet the Records

[195] In Children’s Aid Society of Brant v. N.M.P., Baker J. found it appropriate to engage in judicial vetting, whereas in M.M-A., P.A., M.D. and A.D. v. E.L. v. Kunuwanimano Child and Family Services, Attiwapiskat First Nation, Tellier J. did not. At ¶ 49 of the latter, Tellier J. declined to review the records before making the production order, in part because she was not invited to do so. She noted that judicial vetting is extremely time consuming. [^20]

[196] Pursuant to ¶ 39 of M. (A.). v. Ryan, it is not always necessary for the Court to engage in a judicial vetting exercise. McLachlin J. commented on the labour intensive nature of the task. But in this case, I was invited to do so by amicus. How privilege and confidentiality should be addressed was a significant component of the argument of these motions. Under these circumstances, I found it appropriate to do so, despite the time-consuming nature of the exercise.

[197] I have only been able to vet the records of Drs. Kachooie and Jeyaratnam, as Dr. Horseman has not yet delivered his records to the Court as ordered. The records of Drs. Kachooie and Jeyaratnam relating to the mother’s diagnosis with a brain injury, about her other physical injuries and medical conditions, about the pain from which she suffers, about the treatment that she is receiving, about the medications she takes, about her memory, concentration and processing, and other related matters will be released.

[198] The files contain court documents that the mother has supplied to the doctors. Those documents are already in the possession of the parties and need not be redacted.

[199] The files contain a letter written by the mother’s friend containing her description of the appearance on August 24, 2021. They contain correspondence that the mother has written to the doctors instructing them not to comply with this Court’s Orders. Those records will be released.

[200] I have removed or redacted a number of records that deal with certain health issues that I have determined are not relevant. I have removed some material that may be protected by solicitor-client privilege, including privilege that may exist between one of the doctor’s and his counsel. I have also removed certain blood or other tests that did not seem to have much relevance.

[201] It is disappointing that after the I made the Order of September 24, 2021, the mother sent correspondence to the doctors, including to Dr. Horseman in particular, she caused confusion and ultimately interfered with Dr. Horseman compliance with the Order of September 24, 2021. So that it is clear to Dr. Horseman, the mother’s latest motion for leave to appeal is not an “order to not release the file”.

[202] Dr. Horseman was given an adjournment from September 17, 2021 to September 24, 2021 to obtain legal advice. During the adjournment period, he advised the Court, via amicus, that he would comply if so ordered. Yet he has not done so. That said, I will not be overly critical of Dr. Horseman. I appreciate that the mother’s Notice of Motion for leave to appeal was probably confusing. And as Dr. Horseman said in his post-motion emails to the Court, his lawyer was away after the September 24, 2021 endorsement was released.

[203] I am ordering Dr. Horseman, again, to comply with my Order of September 24, 2021. I will do by separate endorsement, as it is not necessary to send this lengthy endorsement to him. I will vet and release his records, if it is appropriate, once I have had the opportunity to review them.

D. Terms Respecting the Productions

[204] Many of the terms that I have otherwise imposed respecting confidentiality generally, are appropriate to protect the mother’s privacy in her health records. But I am prepared to order separate terms to deal with the specific health records themselves, particularly to limit how they will be provided to, and used by the father. The additional terms will be set out at the end of this decision.

E. Waiver

[205] Before concluding this subject, I wish to discuss the role of waiver in the analysis, in light of some of the steps the mother took in the litigation.

[206] If privilege is found to exist, only the mother may waive it. I have found that she expressly and implicitly asserted privilege over her health records. See M.(A.). v. Ryan ¶ 14; see W.A.C. v. C.V.F., 2021 ONSC 3942 ¶ 64, and see my comments earlier in this decision.

[207] Again, the mother filed medical letters with the Court at the time of the adjournment motion in May. Then, as I explained in my August 24, 2021 endorsement, the mother attempted to file material for that attendance, but it was rejected by court staff as it did not comply with the rules. So on August 23, 2021, the mother proceeded to send an email to a court email address, but written to my attention. That email was forwarded to me by Court staff.

[208] Attached to that email was certain documentation, including the letters from Dr. Horseman dated August 9, 2021 and the short letter from Dr. Jeyaratnam. In her email, the mother stated that her “attached medical letters are strictly confidential and not to be disclosed to [the father] in this case and should not be made available to the public.”

[209] In the endorsement of August 24, 2021, I admonished the mother for not filing material properly and then for attempting to send emails to me indirectly. In the absence of first seeking directions from the Court, it was not proper for her both to file documents with the Court in August, and simultaneously assert that they were for the Court’s eyes only. The mother ought to have sought a confidentiality Order from the outset. It was amicus, not the mother, who later advanced such arguments on the mother’s behalf.

[210] In some circumstances, when a litigant files medical information with the Court and places their own health in issue, or discloses it to others[^21], this may amount to a form waiver. But I need not decide the case based on waiver, in light to my ruling respecting the fourth branch of the Wigmore test.

F. Why the Father Should Not Be Excluded From the “Special Party” Motion, At Least Not by Order of the Court

[211] I will now explain further why I would not make an order prohibiting the father’s participation at the “special party” motion, nor would I completely deny him access to the mother’s health records. Although these issues may be partially moot because of his own choices in the litigation not to participate, the Court still feels compelled to provide reasons to explain why it would not have made such Orders. I do so to avoid any confusion going forward. And how the health records should be treated is a specific issue for which there must be complete clarity moving forward, to avoid fueling this litigation.

[212] I am not granting these aspects of amicus’ motions for 5 reasons:

(a) I do not find that the applicable legal principles extend as broadly as amicus says they should, at least not in the circumstances of this case;

(b) There is no evidence being presented by amicus that is protected by solicitor-client privilege and that would justify an order excluding the father from the “special party” motion;

(c) I am already ordering other specific terms to address the mother’s privacy interest in her health records. The additional terms proposed by amicus are not warranted or proportional;

(d) The Court’s need for a proper inquiry into the best interests of the child militates against such orders being made in relation to the health records; and

(e) Such orders run the risk of creating more litigation.

(1) The Applicable Legal Principles Are Not that Broad

[213] Amicus is essentially suggesting that the next phase of these proceedings should go forward on an ex parte basis. In support of this position, amicus cites the policy statement at ¶ 14 of Winter v. Sherman Estate, where van Rensburg J.A. wrote, “a motion to appoint a litigation guardian affects both the personal interests of the individual whose ability to make decisions in a proceeding are affected, and the administration of justice. On such a motion, it is important that those who are concerned about a person’s capacity to participate in the litigation and/or to instruct counsel are able to bring forward appropriate information for the court’s consideration”.

[214] However, a careful review of the decision reveals that the Court in that case was called upon to protect information that is protected by solicitor-client privilege: see ¶ 8-10. It also struck from the affidavits other observation evidence that it felt was irrelevant: see for example ¶ 21. But in the result, the Court declined to order a sealing order, finding, at ¶ 17-19, that the test for a sealing order was not met.

[215] Although amicus relies on section 137(2) of the Courts of Justice Act, neither that section, nor section 135(2), nor section 70 of the Children’s Law Reform Act for that matter, make provision to exclude a party from participating in the proceeding, nor from having access to the evidence to be used in the proceeding. There is no specific rule in the Family Law Rules that deals with excluding a party from a pre-trial motion of this nature, either.

[216] Assuming that there is some other jurisdiction, whether as part of a confidentiality order or as part of the Court’s control over its process, I still note that counsel pointed me to no case in which a court used a confidentiality order like a sealing order, nor the Supreme Court’s decision in M. (A.) v. Ryan, nor the Court’s powers over its process, to completely exclude a party’s participation at a step in the proceeding.

[217] I need look no further than the history of this very case for an example. A sealing order was previously sought by the OCL and granted over portions of its files. But even then, the parties already had in their possession the partial reports being sealed, and both parties had the right to make submissions before that Order was granted. The Court prohibited both parties from using the reports, not just one of them. They were treated equally too at the submissions phase of that motion.

[218] The Court may of course control and limit a party’s behaviour in family law litigation. See for example Rule 1(7.2) of the Family Law Rules. But the father’s right to be present at steps in his own case is almost absolute. Although there is no comparable family law rule, in the civil context, rules 52.06(1), (2) and (4) of the Rules of Civil Procedure say that at a trial, an order excluding witnesses may not be made in respect of a party to the proceeding, unless the party is interfering with the proper conduct of the trial. And in the case of disruptive behaviour, the exclusion of a party is reserved for the most extreme circumstances: see The Honourable Justice Michelle Fuerst and the Honourable Justice Mary Anne Sanderson, “Ontario Courtroom Procedure”, 4th ed., 2016, LexisNexis Canada Inc., at page 287.

[219] The logic behind this rule must be the same for most motions too. An exception may be where a privilege would be interfered with, or breached, were some limit not put in place. For example, a motion to remove a lawyer as solicitor of record. Even then, the opposing party has the right to make submissions, but is just not given a copy of the privileged affidavit.

[220] Where a party’s capacity is potentially an issue, the authors of “Ontario Courtroom Procedure” do state that the judge may sometimes make inquiries in private. At page 115, they write that where a judge suspects an adult party lacks mental capacity and the party is represented by counsel, the judge may decide to make inquiries of counsel and the party in private [my emphasis added].

[221] Yet they also say that where the party is self-represented, the judge may wish to ask some questions of the party directly. By way example, I note in Y.S. v. J.Y., Charney J. allowed the opposing party to cross-examine the self-represented party, whose capacity was called into question.

[222] I acknowledge that amicus and counsel for the PGT did refer the Court to other “special party” cases, in which the motions were heard in the absence of the other party. But in each of the cases referred to by counsel, it was the client’s own lawyer who brought the motion to have the client found to be a “special party”. The protection of solicitor-client privileged information was a concern in each of those cases.

[223] For example, this occurred in Murphy v. Carmelite Order of Nuns, 2004 CarswellOnt 9965. At ¶ 4 and 6, Associate Judge Kelly noted that the affidavit had not been provided to the defendants. While he noted that it contained both sensitive and personal information, it was also “replete with references to solicitor/client communications”. He drew no distinction between the material protected by privilege, versus that which was just sensitive and personal, but the analysis at ¶ 6 in particular, is very much focused on the solicitor-client aspect of the affidavit.

[224] This similarly occurred in Friesen v. Friesen, 2017 CarswellOnt 15221 (S.C.J.). There is discussion of this at ¶ 7-9 of Soriano v. Laberakis, 2006 3973 (Ont. Div. Ct.), too. In both of those cases, it was the lawyer who raised the issue.

[225] At ¶ 3-5 of Fry (Litigation Guardian of) v. Fry, 2016 ONSC 8126, Kiteley J. referred to a similar order that had been made, earlier on in the prior proceedings. However, Kitelely J.’s decision was not the motion about capacity; she just referred to that previous Order in her recitation of the prior proceedings. As such, there is no analysis in this decision as to why the Order was previously made, nor why the procedure employed to make it had been selected. And once again, I note that it was the party’s lawyer who had brought the motion.

[226] Finally, in another decision of Kiteley J. in Chuvalo v. Chuvalo, 2018 ONSC 311, a similar process appears to have been followed previously. Again here, this published decision is not the decision by which Mr. Chuvalo was found to be a special party. Kiteley J. was once more referring to that prior motion as part of her recitation of the prior proceedings in this current judgment. And once again, it was the lawyer for the applicant who brought the motion[^22].

[227] Interestingly, at ¶ 5, Kiteley J. said that that she had previously sealed the lawyer’s material filed in support of the “special party” motion, but not 13 exhibits that were attached to the affidavit. Kiteley J. noted that those exhibits were already in the possession of the opposing party. This passage is some authority for the proposition that a more nuanced approach to the evidence may be appropriate.

[228] Indeed, Kiteley J.’s decision in Chuvalo v. Chuvalo, along with the Ontario Court of Appeal’s decision in Winter v. Sherman Estate, are the only two decisions that counsel supplied to me, where courts delved into the contents of the evidence more deeply, drawing distinctions between the evidence which should be protected because of privilege, the evidence which was problematic for other reasons, and the evidence that was not privileged.

(2) There is No Solicitor-Client Privilege Between the Mother and Amicus, Nor Should It Be Created and Imposed In This Case At This Time

[229] In this case before me, unlike in the above cases, there is no automatic privilege, akin to a solicitor-client privilege, protecting the communications between amicus and the mother.

[230] When I appointed amicus in the decision of July 21, 2021 (see W.A.C. v. C.A.F., 2021 ONSC 5140 ¶ 66), I alerted the parties and amicus to the issue. I invited them to make submissions at the upcoming Trial Management Conference, then booked for September 17, 2021 about whether a kind of privilege akin to solicitor-client privilege should be created by the Court and imposed on the communications between amicus the mother. I invited submissions because the issue about how to deal with communications between a litigation and amicus, to my knowledge, has not been resolved in the case law. For example, at ¶ 53 of Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, Karakatsanis J. wrote that, “… the privilege that would be afforded to communications between the accused and the amicus is muddied when the amicus’ client is in fact the trial judge”.

[231] In R. v. Imona-Russel, 2019 ONCA 252, the Ontario Court of Appeal was faced with this issue. But the Crown undertook to treat the communications between amicus and the accused as privileged. The Court did not need to decide the issue. See ¶ 89.

[232] The Ontario Court of Appeal raised the issue again, when discussing the parameters of an amicus appointment in Morwald-Benevides v. Benevides, 2019 ONCA 1023. The Court found amicus not to be appropriate at all, on the facts of that case. When setting out some parameters that would apply for the appointment of amicus in future cases, it left that privilege issue as one to consider, but ultimately to be decided on another day. See ¶ 38.

[233] Amicus did not have the opportunity to make any submissions about this at the September 17, 2021 Trial Management Conference, as that Conference did not proceed. And already by August, amicus’ relationship with the mother had become problematic.

[234] At the argument of these motions, counsel did not have any additional cases on point. The Court has done its own research. The Court has located two decisions that pre-date the Supreme Court’s decision in Ontario v. Criminal Lawyers’ Association of Ontario (and therefore the Ontario Court of Appeal’s decisions in R. v. Imona-Russel and Morwald-Benevides v. Benevides, too). It also found two others that post-date those decisions. The first is helpful, although it precedes the aforementioned appellate authorities. The latter three cases are not satisfactory or responsive to the issue.

[235] The first decision is R. v. Clarke, 2009 55715 (Ont. S.C.J.). At ¶ 19 and 20, Thorburn J. (as she then was) relied on M. (A.) v. Ryan to create a new category of privilege to cover the communications between Mr. Clarke and amicus. As this decision predated Ontario v. Criminal Lawyers’ Association of Ontario, it does not discuss Karakatsanis J.’s comments at ¶ 53. Nevertheless, at ¶ 40-42 of R. v. Clarke, it is clear that Thorburn J. was imposing a privilege on communications between Mr. Clarke and amicus for the purposes of preparing for trial [my emphasis added].

[236] The second case that predates Ontario v. Criminal Lawyers’ Association of Ontario is R. v. Stilla, 2013 ONSC 2197. R. v. Stilla was an appeal from an Order of the Ontario Court of Justice, to this Court, appointing amicus to assist a defendant in a prosecution under the Income Tax Act. At ¶ 16, Pierce R.S.J. referred to the Ontario Court of Justice’s order as “cast in broad terms”. One of its broad terms included that the communications between amicus and the accused would be privileged. Pierce R.S.J. quashed the amicus appointment on other grounds, without discussing the privilege issue.

[237] The two more recent decisions, both from Quebec, appear to say that R. v. Imona-Russel authorizes the creation and imposition of a privilege on communications between amicus and a party. For example, at ¶ 53 of R. c. Bournival, 2020 QCCQ 5385, the Cour du Quebec cited R. v. Imona-Russel as standing for that proposition. At ¶ 4 of R. c. Milovanovic, 2020 QCCS 4373, the Quebec Superior Court referred to a previous amicus appointment, and in so doing, said “their communications would be privileged, as communications between solicitor and client would be”. There is a footnote that cites R. v. Imona-Russel. Respectfully to the Courts in the Quebec decisions, R. v. Imona-Russel did not decide the issue.

[238] In any event in this case, even were I to assume that the Court may create such a privilege, I would not find it to be appropriate to do so, at least not yet. I say this for two reasons.

[239] First, the issue was not properly argued. Second, the purpose of solicitor-client privilege is to enable the lawyer to render effective legal assistance to the client. That may only be done if the client frankly and candidly discloses all material facts to the lawyer. See Sopinka, Lederman & Bryant, “The Law of Evidence in Canada” 5th. Ed., LexisNexis Canada Inc., 2018 at page 984. Even then, not all communications between a lawyer and a client will privileged. A communication must be made in the course of seeking legal advice, with the intention that it be confidential and for the purpose of obtaining legal advice. As Kiteley J. recognized in Chuvalo v. Chuvalo, records in the possession of the lawyer do not necessarily become privileged, just because they were given to the lawyer after the establishment of a solicitor-client relationship. See also “The Law of Evidence”, at pages 998-999.

[240] In this case, the Court made amicus available to assist the mother. So far, the mother has chosen not to work with amicus. Amicus’ observations and evidence, including the mother’s statements to her, have arisen out of the mother’s non-cooperation and complaints. The mother has not sought much, if anything, by way of advice from amicus, or assistance to prepare. In many respects, the affidavit filed by amicus in support of the “special party” motion is more evidence of the mother’s behaviour in the litigation, which although being engaged in in a different environment, is still of the kind that is already known to the father and to the Court.

[241] If the mother is not found to be a “special party” and she changes her attitude about working with amicus, then the issue about whether the communications between the mother and amicus should be cloaked with privilege may be revisited, after the Court hears proper arguments. Perhaps an agreement will be reached and undertakings given, like in R. v. Imona-Russel. But as I have not yet, and would not afford a privilege at this time, this case is distinguishable from the aforementioned cases in which lawyers launched the motions, because solicitor-client privilege automatically applied in those cases, whereas it does not here.

(3) The Mother’s Privacy Interest In Her Health Records Justifies This Remedy

[242] Although van Rensburg J.A. declined to grant a sealing Order in Winter v. Sherman Estate, I do note that in ¶ 17, she did say that the evidence in question “did not contain any diagnosis or any other opinion of a medical practitioner, nor [did it] refer to communications between Mr. Winter and a medical practitioner, which might give rise to more specific confidentiality concerns.” But as such evidence was not before her, van Rensburg J.A. did not elaborate about how those specific confidentiality concerns should or would be addressed.

[243] Mr. Austin conceded that she was unaware of any cases that have applied M. (A.) v. Ryan in the manner proposed by amicus, to permit production of the health records to Court and to one, but not both of the parties in a case. In M.(A.) v. Ryan, while McLachlin J. did find that that records may be given to counsel only and not to a party for example, in such an instance both sides would still have access to the same material, in some way or another, to permit them to prepare for and to participate fairly in the trial.

[244] And in fact, this Court’s own research found some authority to the contrary of the position of amicus. Although he was dealing with financial records and not health records, Perell J. dealt with a very similar request in Foss v. Foss, 2013 ONSC 1345. In that case, one of the defendants in a civil action sought an order that business records be produced only to the Court, and not to the parties. Alternatively, the defendant said the records should be produced to counsel only.

[245] Regarding the former proposal, at ¶39, Perell J. wrote, “…[i]t is one thing to seal documents from the public; it is another thing altogether to seal documents from the parties to the litigation at the unilateral discretion of one party who fears commercial harm…” And at ¶ 41, he said, “… [t]here is nothing in Sierra Club, supra that suggests that a sealing order should apply to the parties to the litigation and prevent them from seeing their opponent’s documents. In any event, in my opinion, the so-called confidentiality order moves well beyond the concerns of the open court principle, to the fundamental principles of a fair adversarial process in accordance with the fundamental principles of natural justice”. Regarding the alternative argument, Perell J. did note, even in the commercial context, that there was authority to permit disclosure to a party’s lawyer only, albeit he said that would be in rare circumstances. See ¶ 44.

[246] If the mother’s privacy interest in her health records is such that they are completely privileged, they should not be disclosed to the father, or to anyone else, in the absence of waiver. If they are to be produced in the litigation, they must be produced to both sides in some fashion. Even though there may be some mootness given the father’s agreement not to participate at the “special party” motion, I am not prepared to order that the father should not have any access, at all, to the health records. This is rooted in the fact that the health records being produced, while private, are not privileged, and they have broader relevance to other issues in the case, too.

(4) The Best Interests of the Child

[247] I have already found that the health records have relevance to the child’s best interests. This militates against imposing such a confidentiality term on the records.

(5) The Impact of Such an Order on the Litigation

[248] Finally, I wish to address the Court’s concern about how such an order may impact the conclusion of this litigation.

[249] I acknowledge that at ¶ 4 of Murphy v. Carmelite Order of Nuns, Associate Judge Kelly found that a motion to appoint a litigation guardian “does not generally affect” the parties other than the party under a disability and the proposed litigation guardian. At ¶ 22 of Winter v. Sherman Estate, van Rensburg J.A. specifically left open, without deciding, the ability to argue that certain parties may not have an interest in arguing for or against the appointment.

[250] Despite his voluntary position not to participate, the father does have an interest. He is opposed to any more delay in this case. At one point, he even suggested that the mother was exaggerating her health conditions strategically. If the mother is found to be a “special party”, the PGT will be seeking an adjournment. The father’s request to bring a motion about parenting time and enforcement may also be delayed.

[251] The father is entitled to make choices in the litigation. The Court will not force him to participate in the “special party” motion. However, his position not to oppose amicus’ request that he not be given access to the mother’s health records is more problematic, and it may fuel the litigation in a number of ways.

[252] First, the father is concerned that the records may disclose child protection concerns, but counsel wishes to delegate that review and determination to the Court, on its own, without submissions. It is not appropriate to leave it to the Court to decide if “child protection issues” emerge, once the Court reviews the records. I understand the Durham Children’s Aid Society has been involved with this family in the past. I have not yet heard the trial to understand what issues they investigated and what issues they did not investigate. Although I discussed this with the parties on August 24, 2021, I do not know what information was supplied to Durham Children’s Aid Society. Counsel for the father knows this much better than the Court at this point. And while there is obviously a legislated duty to report in the Child, Youth and Family Services Act, 2017, the responsibility to report does not rest solely with the Court.

[253] Second, it is also the father’s counsel’s submission, that if some other relevance emerges from the records, beyond just their relevance to the “special party” motion, then there will have to be another motion to lift a sealing order. This approach would leave the Court in the position of deciding the issue on its own. Normally, the parties are actively involved in setting procedure and in case management.

[254] This proposal leaves much to be desired. For example, when, and under what circumstances, would the Court indicate to the parties that it might set aside its own order? Would I do so now in reviewing the records? Or should I wait until trial until I hear evidence? What if the Court has a different preliminary view about relevance than the father? How would the Court then hear submissions from the father about that?

[255] From the perspective of efficiency and judicial resources, the father’s counsel’s speculation that there could be another motion respecting lifting the sealing Order should not be the default. The last thing this family needs is even more litigation. This is already the third motion about confidentiality in this case, including the two prior motions about the OCL’s files. The Court should set a process that strives to decrease the litigation, not create more opportunities for motions that could have been avoided.

[256] Third, although expressed in a different context, at ¶ 11 of Frick v. Frick, 2016 ONCA 799, Benotto J.A. wrote:

The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

[257] The rules provide that in family law cases, the parties, their lawyers and judges must be active participants when it comes to case management. In the absence of a statute or a rule prescribing a procedure to follow, judges generally have wide discretion to decide what procedure should be followed to best achieve fairness and justice. See also Ontario Courtroom Procedure, pages 22, 33 and 608. But the father should have a say in setting that procedure.

[258] For those reasons, the Court is not persuaded that it should completely limit the father from having any access to the health records. The Court is not bound to accept amicus’ proposal, just because the father has taken a passive position and not opposed the relief amicus has proposed. The father’s counsel will be given a copy of the records on strict terms, in keeping with the above analysis pursuant to M. (A.) v. Ryan.

PART IX: OTHER ISSUES

[259] There remain three other matters to address in this decision.

A. The Mother’s Complaints About Amicus

[260] Ms. Austin sought an adjournment of these motions, on behalf of Ms. Stewart, to enable her to bring a motion to be discharged from her role as amicus. Ms. Austin said amicus’ request to be discharged would be based on a conflict of interest. Ms. Austin was prepared to proceed. I declined to grant the adjournment.

[261] The Court went to some lengths to make amicus available so that the mother may have some assistance, and the parties and their child may have finality. I have reviewed the email communications between amicus and the mother that have been supplied to me, the affidavit material of amicus and the documentary material that the mother filed.

[262] In particular, this evidence reveals that Ms. Stewart tried to implement her mandate as amicus, quickly and in a short period of time. The mother would not work with her. The mother herself placed her capacity in issue, in a manner that concerned Ms. Stewart. Ms. Stewart did not create this issue of her own accord.

[263] One of the mother’s complaints is that by bringing these motions, amicus exceeded the scope of her mandate. But ¶ 66 of my July 21, 2021 decision (see W.A.C. v. C.A.F., 2021 ONSC 5140 ¶ 55) clearly contemplates the role of amicus being changed, if appropriate. It was appropriate for amicus to have contacted the Court for an earlier date under the circumstances.

[264] Amicus took care respecting how she served the motion material. Amicus prepared separate affidavit materials for these motions. The records motions are accompanied by only a short affidavit of amicus’ assistant sworn September 2, 2021. The affidavit refers to information previously disclosed to the Court by the mother herself, or that is otherwise known to the father. Amicus served these Notices of Motion and the affidavit to the parties, but only the Notices of Motion to the three doctors[^23].

[265] The affidavit material in support of the motion respecting the mother’s capacity is more extensive. It includes two affidavits of amicus’ assistant sworn September 2, 2021 and September 14, 2021 that detail amicus’ attempts to engage with the mother, and other information relevant to capacity. That affidavit material has attached to it certain email communications between amicus and the mother. Amicus served this material to both the mother and to the PGT. She only served the Notice of Motion to the father, but not the affidavit, pending argument of the confidentiality issues.

[266] Amicus was thoughtful in the manner that she proceeded. She sought directions from the Court about how to best protect the mother’s confidentiality before disclosing more information than she felt was necessary. The mother does not acknowledge, or even appear to realize, that amicus went to great lengths, to argue for privacy protections on her behalf.

[267] The Court felt it was important to appoint amicus in this case. Ms. Stewart is in the difficult position of trying to do her job to assist the Court, in part by trying to assist the mother, while being accused by the mother of violating her human rights, and now after being reported to the Law Society of Ontario, and under threat of a civil action. Despite the mother’s treatment of her, in deciding whether to proceed with a motion to be discharged from this case, I ask amicus to please be mindful that the Court is in the midst of hearing an important motion that may impact the trajectory of this case, in a case where there has been much delay. And there is still a role for amicus in the trial at this point.

B. The Consolidated Provincial Practice Direction

[268] At the outset of this decision, I indicated I was not certain whether amicus notified the media in accordance with Part F of the Consolidated Provincial Practice Direction. I neglected to ask this of Ms. Austin during argument.

[269] On the assumption that the Consolidated Provincial Practice Direction was not followed, I am certain this was due to inadvertence given everything else that this case has entailed since amicus came on board. In any event, given the confidentiality concerns that have been raised, amicus would undoubtedly have felt compelled to seek further direction from the Court before completing the form in accordance with Part F of that Consolidated Provincial Practice Direction, and triggering the notice to the media.

[270] The Court may dispense with compliance with Part F of the Consolidated Provincial Practice Direction. Normally, it would have been preferable to hear submissions about dispensing with compliance. But I am certain that none of the parties would see any benefit to notification in this case. Given the high tensions that already exist in this case, the limited public interest that exists in this case and the fact that I will make provision for the ongoing release of appropriate information via judgments of this Court, I am exercising my discretion to dispense with compliance with the Consolidated Provincial Practice Direction, nunc pro tunc.

C. The Father’s Request for A Motion to Argue for Police Enforcement or Other Terms Respecting His Parenting Time

[271] When the adjournment motion was argued on May 25, 2021, the father raised the issue of police enforcement without any motion before the Court. I declined to make such an Order at the time: see W.A.C. v. C.V.F., 2021 ONSC 3942 ¶ 101-109. But I also noted at ¶ 109 that the father had previously obtained leave to bring a motion to enforce the Order of Hughes J., dealing with his parenting time, and so I said he could bring a motion prior to trial with a proper record. The father did not then do so. He now says if the trial does not proceed because the mother is found to be a “special party”, then he wishes to bring the enforcement motion.

[272] In the endorsement of September 17, 2021, I granted the father leave to bring a motion for police enforcement on the first day of trial. Upon hearing the submissions on September 24, 2021, the father now wishes to include other terms pertaining to parenting time as part of the relief sought. He may bring these motions if he wishes, but whether or not they will proceed will have to be determined. If the mother is not found to be a “special party”, the father’s motion may be moot, as the trial should just proceed. Alternatively, the PGT may need an adjournment.

[273] Either way, I am specifically directing counsel for the father to review the Court’s comments in ¶ 101-109 of W.A.C. v. C.V.F., 2021 ONSC 3942. Counsel should review the other case about police enforcement that is referred to in those passages. I direct counsel to specifically review the kind of evidence that would be helpful for the Court to receive.

PART X: ORDERS

[274] Based on the foregoing, I make the following Orders:

(a) The title of proceedings in this case shall be amended. The applicant father shall now be referred to as W.A.C., the respondent mother as C.V.F., and the child shall be referred to as E. in the style of cause and in any published decisions of the Court. The parties’ and the child’s full names may be used on Orders as may be needed to give to outside persons, such as parenting Orders;

(b) Other than published decisions of this Court and any Orders that may from time to time need to be given to third parties, such as parenting Orders, and subject to any child protection referrals, the entire Court file in this matter shall be sealed and shall not form part of the public record. Subject to further court order and except for the mother’s health records which shall be dealt with separately (but also subject to any child protection referrals), the parties, their counsel, amicus and/or her agent Ms. Austin, the PGT or other representative for the mother, if appointed, the Court and its employees may have access to the Court file as needed;

(c) The parties, their counsel, or anyone else on their behalf are prohibited from making public any information that has the effect of identifying the parties or the child in any document relating to the application. This does not include Orders that may have to be given to third parties from time to time, such as parenting Orders and for clarity, it is also subject to any child protection referrals;

(d) The motion about whether the mother is a “special party” shall be heard in the absence of the public. The mother, any lawyer on her behalf if she retains counsel, amicus and/or her agent Ms. Austin, counsel for the PGT and court employees may attend;

(e) The father has chosen not to participate in the motion about whether the mother shall be found to be a “special party”. As such, he will not be in attendance as a result of his own position. Amicus need not serve the affidavits she has already filed in support of that motion, nor any further evidence that she may rely upon;

(f) Once amicus reviews the health records being produced, amicus shall decide what oral evidence will be called on the motion, and she shall serve the necessary summons to witness. Amicus shall advise the mother and counsel for the PGT forthwith upon making the decision. She should also be prepared to address any issues about qualifications, even if a witness shall be called as a treating practitioner/ participant expert;

(g) The mother may file an affidavit respecting the “special party” motion if she so chooses. Provided it only addresses that issue, she need not serve it upon the father. It shall be served upon amicus and counsel for the PGT. Alternatively, the mother should testify orally in chief at the motion. There may then be cross-examination;

(h) Dr. Horseman shall comply with my Order of September 24, 2021 and provide a copy of his records to the Court immediately. I will prepare a separate endorsement to send to him, as it is not necessary to send this lengthy decision to him. I will release some, all or none of his records, once I have had the opportunity to review them;

(i) An unredacted copy of the records of Drs. Kachooie and Jeyaratnam, and of Dr. Horseman (once provided to the Court) shall be sealed in the file. The Court and its employees may access these records if needed;

(j) A redacted copy of the records of Drs. Kachooie and Jeyaratnam, and any of Dr. Horseman following the Court’s review of them, shall separately be placed in the file. These redacted records shall be released to amicus and/or to her agent Ms. Austin, to the mother, to any counsel if she retains counsel, to counsel for the father, to the PGT, and/or to another representative for the mother if later appointed. Those persons, plus the Court and its employees may have access to this part of the Court file as needed;

(k) The health records are being released to the father’s counsel only, and not to the father. The father’s counsel may discuss the health records with the father as needed for preparation for trial. The father’s counsel may also discuss appropriate portions of the health records with a witness, if it is necessary to question the witness on some issue raised in them. The father shall not be given a copy;

(l) The father may bring a motion for relief respecting his parenting time and/or for enforcement returnable on the first day of trial. Whether it proceeds will depend for the reasons already expressed. At the request of counsel, the page limits for this are waived, but I ask counsel to please be reasonable with the amount of material to be filed; and

(m) The first day of trial, on which the “special party” motion shall be heard, shall be set for November 16, 2021.

[275] Finally, I wish to thank counsel for their assistance to the Court.

Justice Alex Finlayson

Released: October 15, 2021

COURT FILE NO.: FC-16-960

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

W.A.C.

Applicant father

– and –

C.V.F.

Respondent mother

REASONS FOR DECISION

Justice Alex Finlayson

Released: October 15, 2021

[^1]: Specifically, on May 17, 19 and 25, July 12, August 24, September 17, and September 24, 2021. [^2]: The endorsements and decisions are dated May 17, 19, 25, 31, July 12, 21, August 31, September 17 and 24, 2021. [^3]: There is a typographical error in the style of cause in this second, written decision. I meant to cite this case as W.A.C. v. C.V.F., 2021 ONSC 5140 (not W.A.C. v. C.A.F.). [^4]: The brain injury arose out of two motor vehicle accidents in which the mother was involved. [^5]: As set out at ¶ 20(c) of the written decision of July 21, 2021 (see W.A.C. v C.A.F., 2021 ONSC 5140 ¶ 20(c)), amicus duty of loyalty and integrity is to the Court, not to the mother. Still, so that the record is clear, amicus did bring to this Court’s attention the fact that the mother was seeking an adjournment, even though amicus herself was not seeking one on September 17, 2021. [^6]: Based on the affidavits of service filed, it is not clear to me what material the mother claims she did not have. [^7]: Ms. Austin also brought this Confirmation Form to the Court’s attention. [^8]: The mother obtained a Final custody Order on consent in 2017. Custody is now referred to decision-making responsibility as a result of the 2021 amendments to the Children’s Law Reform Act. [^9]: The mother filed this Trial Management Conference Brief on September 16, 2021. It inaccurately stated that the date of the Court appearance was September 24, 2021. That error must have been a coincidence, as the adjournment for Dr. Horseman from September 17 to 24 was not granted until September 17, 2021. As set out in my written decision of May 31, 2021, the mother has in the past filed material and then not come to Court. [^10]: The mother did object on August 24, 2021, in general, to these motions proceeding at all. [^11]: Rule 1(7) of the Family Law Rules enables the Court to decide an issue with reference to the Rules of Civil Procedure where the Family law Rules do not cover a matter adequately (if it is even necessary in this case to turn to the Rules of Civil Procedure for guidance in this instance). [^12]: The test was developed in a civil case pursuant to the Rules of Civil Procedure, but the test since has been applied many times in family law cases. See for example Godwin v. Bryceland, 2008 ONCJ 495 ¶ 21 as an example of a family law case where this test was applied. [^13]: The mother previously had a certificate but parted ways with her former counsel. She applied for a change of solicitor and was denied. [^14]: The mother did not provide a copy of this letter to the father (nor did amicus) even though the mother filed it with the Court. I addressed the manner in which this letter was brought to my attention in the endorsement of August 24, 2021 and I will do so again later in this decision. [^15]: The mother only provided this letter to the Court. I addressed the manner in which this letter was brought to my attention in the endorsement of August 24, 2021, and likewise I will do so again later in this decision. [^16]: Upon further review of Dr. Horseman’s letter of August 9, 2021, I now see that he also identified a neurologist as one of the referring doctors for the mother. [^17]: As I will explain, the section says nothing about excluding a party. [^18]: Similarly, see the previous footnote. [^19]: As of the date of the release of this decision, the only reported family law case since Sherman Estate v. Donovan is R.F. v. J.W., 2021 ONCA 528. In R.F. v. J.W., the Ontario Court of Appeal cited Sherman Estate v. Donovan, but not on this point. See ¶ 34 and Footnote 7. Harvison Young J. (as she then was), addressed the differences between section 70 of the Children’s Law Reform Act and section 137(2) of the Courts of Justice Act in L.C.F. v. G.F., 2016 ONSC 6732, but her decision was prior to Sherman Estate v. Donovan. She reconciled the language and found that the previous Dagenais/Mentuck test applies in family law. [^20]: Still, Tellier J. left open the possibility for some limited judicial vetting to address specific privilege concerns that may arise. [^21]: See for example St. Onge v. St. Onge, 2017 ONCJ 156 ¶ 75-81. [^22]: However, during submissions, Ms. Austin said that both counsel had been present at the motion in that case to determine whether Mr. Chuvalo was a special party. [^23]: There are typographical errors on the affidavits of service respecting service on the doctors. Ms. Austin clarified that the doctors had only been served with the Notices of Motion. This was done out of an extra abundance of caution, although it would not have been inappropriate had amicus served the short affidavit on the doctors, too.