L.S. v. B.S., 2022 ONSC 5796

COURT FILE NO.: FC-17-1763

DATE: 20221012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

L.S.

Applicant Mother

– and –

B.S.

Respondent Father

Gina Da Fonte, for the Applicant mother

Brian Hall, for the Respondent father

Catherine Bellinger, counsel for the Office of the Children’s Lawyer

Sarah Virani, counsel for Catholic Family Services of Durham

HEARD: September 20, 2022

RELEASED: October 12, 2022

JUSTICE ALEX FINLAYSON

PART I: NATURE OF THIS DECISION

[1] The parties have two teenage children named B. age 14, and E., age 13. Both parties have various family law claims before the Court, but their focus to date has been on the parenting issues. Their litigation has been pending for five years. They are embroiled in a high conflict dispute.

[2] No orders respecting decision-making have yet been made. The children have fractured relationships with their father. On October 29, 2018, Fryer J. made an order for some parenting time between the children and their father, and on consent, she ordered reunification therapy.[^1]

[3] The relationships did not improve in spite of the Order of October 29, 2018. Reunification therapy was terminated in the fall of 2019 under circumstances that are disputed. The children have not seen their father in three years. Subsequent to the failed reunification therapy, the children now receive counselling through Catholic Family Services of Durham (“CFSD”). How this was put in place is not entirely clear.

[4] The father says this is a case of parental alienation. The mother denies parental alienation. She says the father was abusive and controlling, and the children have been traumatized by him.

[5] Both children are vulnerable. There are risk factors for emotional harm. Amongst those are that E. is dealing with issues relating to her gender identity and the parents do not agree about how that should be handled. E. is receiving some form of medical treatment. What that entails, has not been fully shared with the Court.

[6] The father asserts that E. is receiving “hormone therapy” and counselling. He says he never consented to this, and he might now try to block it. But how he knows that E. is receiving these treatments, particularly since he elsewhere says he has received no information from the mother and he has been unable to access information directly from the relevant health care professionals, has not been explained. The mother says she supports what she refers to as E.’s “gender journey”. She objects to the father, whom she says is “anti-trans”, getting access to any information about this.

[7] Although the father denies it, the mother also says that the father seriously assaulted E. twice post-separation, choking her to the point of unconsciousness. The mother says that the father’s lack of acceptance of E.’s gender identity was a contributing factor leading to the assaults.

[8] In this context, the father brings a motion for the production of various of the children’s health and counselling records. Specifically, he seeks orders for production from the following services providers:

(a) Dr. F is a psychologist in Durham. She is the professional that Fryer J. selected to provide reunification therapy. The children also attended a summer camp that she offers;

(b) As explained in its written submissions, CFSD is a not-for-profit charitable agency that provides psychotherapy and counselling services to community members in the Durham Region. Among the services it provides are psychotherapy for individuals, couples and families for a wide variety of emotional, relational and psychological issues, group therapy and wellness programming, domestic violence counselling, trauma therapy, interpersonal/social counselling for adolescents, and young parent support programming. Although not entirely clear, it appears CFSD became involved with the children after Dr. F’s processes ended in the fall of 2019;

(c) Dr. B is a physician. I have been given almost no information about how Dr. B. is involved, other than the father says she is the physician administering the “hormone therapy” to E.; and

(d) The Scarborough Health Network, Centenary Site, Child & Adolescent Shoniker Clinic (“the Shoniker Clinic”) is an outpatient clinic within the Scarborough Health Network that specializes in the assessment and treatment for young people with significant mental health problems. It offers therapy, psychiatric services and medication. The father believes that E. is receiving counselling related to her gender identity through the Shoniker Clinic.

[9] The father did not, in his Notice of Motion dated May 19, 2022, specify the legal basis upon which he seeks these various productions. In his factum, he relied almost exclusively on the right to information in section 20(5) of the Children’s Law Reform Act, R.S.O. 1990 c. C 12, as amended. He also says that the health information custodians are not entitled to issue blanket refusals in response to his request for information under the Personal Health Information Protection Act, 2004, S.O., 2004 c. 3, Schedule A, as amended (the “PHIPA”), yet that is what they did.

[10] In his affidavit material, the father went beyond merely requesting the records under section 20(5) of the Children’s Law Reform Act. There, and also in oral submissions, he tied his request for these productions to the correct disposal of the litigation. Likewise, the mother and the OCL framed many of their submissions within the framework of rule 19(11) of the Family Law Rules, O. Reg. 114/99, as amended, in responding to the father’s motion.

[11] The children are not consenting to the release of their health and counselling records on any basis. They have expressed this position to CFSD, and to their lawyer. The mother opposes the father’s motion too, both because she supports the children’s positions, and also for other reasons.

[12] Dr. F neither attended the motion nor sent counsel, but advised of her position in writing by correspondence to the father’s counsel dated September 19, 2022. Dr. F will release her records upon receipt of a signed consent from the children, or a court order. Dr. F writes that the children are able to make their own decisions under the PHIPA. She takes the position that the parents’ consent on its own, is insufficient for the release of the records in this case.

[13] CFSD appeared on this motion with counsel. CFSD did not take a position per se, but assisted the Court by making submissions about the operation of the PHIPA. In its written submissions, CFSD says its records do pertain to counselling, but the children had capacity to consent to it. It says it specifically determined the children are capable of making decisions about the release of their own personal health information. It says that in declining to release the records to the father, it considered the children’s views. And to the extent that other family law legislation may authorize disclosure without the children’s consent, CFSD has elected to exercise its statutory discretion not to disclose, at least until this Court renders a decision otherwise.

[14] Although CFSD did not strictly take a position, counsel nevertheless asked the Court to be mindful of the fact that the disclosure provisions of the PHIPA are built on autonomy, and children’s mental health and counselling services are premised on trust. In its written submissions, CFSD pointed to the harm that may be occasioned from a disclosure order, not only in this case, but in future cases.

[15] Neither Dr. B. nor the Shoniker Clinic, responded to the motion, attended, nor sent counsel.

[16] To some degree, this motion was argued in absolutes. The father primarily took a rights-based approach to the question of whether he should receive the records. The mother pointed to the conflict in the relationship between the father and the children. But she otherwise took a position aligned with the children’s wishes. Unsurprisingly, the OCL relied heavily on the absence of the children’s consent to disclose. During argument, some of the submissions suggested that the Court’s application of various considerations should result in the same outcome for each type of record sought; in other words, that all of the records merit the same treatment.

[17] None of these approaches are satisfactory. And while it is true that the children withheld their consent to the release of each category of records for the purposes of the PHIPA, the analysis does not end with their consent.

[18] This decision involves questions about the proper scope of a parent’s right to personal health information under section 20(5) of the Children’s Law Reform Act (or the comparable section 16.4 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), as amended [^2]), and what happens when that right conflicts with a capable child’s objection to the release of personal health information. It is necessary to review the interaction between family law legislation, the provisions of the PHIPA, and in at least one respect, the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, as amended (the “HCCA”) to consider those questions.

[19] Separately, this decision also addresses questions about the production of health and counselling records under the Family Law Rules, for the purposes of this case, when that conflicts with a capable child’s objection. In so doing, I attempt to strike the right balance between disclosure under the rules to ensure the correct disposal of the litigation, while still respecting privacy and other values.

[20] Finally this decision attempts to address some questions about whether any right that a parent might have to a child’s personal health information under either family law legislation or the rules should be curtailed, particularly when the records in question are highly sensitive, they include matters relating to a child’s gender affirming care when there is no specific claim before the Court about that medical care, and where the child might experience emotional harm as a result of the disclosure.

[21] For the reasons that follow, I find that the father in the specific circumstances of this case does not have an unqualified right under section 20(5) of the Children’s Law Reform Act to any of the records he seeks from the various health information custodians. Notwithstanding the ruling under section 20(5) of the Children’s Law Reform Act, the Court is still empowered to make an order for production under rule 19(11) of the Family Law Rules. While the children’s views are important and will factor heavily into the outcome of the motion framed under rule 19(11), they are not dispositive. There are different kinds of records in issue in this case, not all of which are of the same import, in relation to the live issues in the case, and not all of which attract the same level of privacy considerations. Those differences must be taken into account when balancing the competing interests at stake.

[22] Therefore, I intend to make an order under rule 19(11) of the Family Law Rules for some, but not all of the disclosure the father seeks. In the result, there will be an order for the production of all of Dr. F’s notes and records, but only for some limited productions from CFSD. Like the outcome being ordered under section 20(5) of the Children’s Law Reform Act, there shall be no order for production of any documentation in the possession of Dr. B. or the Shoniker Clinic at all, under rule 19(11) either.

[23] In specific regards to any records that might exist concerning the gender affirming care that E. is receiving, I accept that a parent has a legitimate interest in their child’s gender identity and treatment. In healthy parent-child relationships, parents will already be involved in these discussions with their children, and they will play a supportive role. But where there is a dysfunctional parent-child relationship, or an unsupportive parent, who is ill-informed yet intent on taking obstructionist steps, emotional damage can be done.

[24] In this case, for whatever reason, the fact remains that the father’s relationship with E. is very problematic. E. does not see her father as a supportive person. E.’s privacy interest in her medical records relating to her gender identity is very high. In the circumstances of this case, I am finding that E.’s records are in fact protected by a case-by-case privilege.

[25] It may be that some limited information about this aspect of E.’s life will be needed for this trial. That will be discussed further below. But the way to get at it is not the wholesale opening up of the child’s private health records, exposing the child to emotional harm in the process. There are other avenues for the necessary information to be procured in a more balanced, limited and less harmful way. And the extent of what, if anything, is needed for a trial in this case can ultimately be decided by the trial judge, once the parties figure out how they intend to present their case at trial, if it doesn’t settle beforehand.

PART II: PRIOR PROCEEDINGS

[26] The Court cannot consider the father’s request for records, without situating the request within the broader context of the case. As such, I provide a brief summary of the prior proceedings.

A. The Post-Separation Status Quo and the Commencement of this Litigation

[27] According to their pleadings, the parties separated in October of 2016, about one year before the commencement of these proceedings. The mother launched this proceeding on October 25, 2017. The father filed an Answer soon thereafter. Between them, the parties have claimed a divorce, various parenting orders, and certain corollary relief, but as I said earlier, the focus of this litigation so far has been on parenting.

[28] The parties disagree as to whether there was an equal parenting schedule post-separation, or whether the mother was the children’s primary parent until these proceedings were under way and the Order of Fryer J. dated October 29, 2018 was put in place.

B. The First Case Conference and the OCL’s “Interim Report” dated April 18, 2018

[29] Soon after the mother launched her Application, she attempted to bring a motion for various relief, in advance of a case conference. On December 14, 2017, Scott J. declined to find the required urgency, but set a date for a case conference instead.

[30] At the case conference that followed on January 5, 2018, Timms J. appointed the OCL for the first time. His Endorsement otherwise indicates that the parents were able to agree on certain items, but they did not agree upon a parenting schedule.

[31] The OCL accepted the Court’s referral following Timms J.’s Order. It agreed to undertake an investigation and prepare a report pursuant to section 112 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended. The clinician later filed a section 112 report with the Court on April 18, 2018. To his supplementary affidavit sworn September 16, 2022 now before me on this motion, the father attached only an excerpt from an appendix to that report. But the full report is filed in the Continuing Record, and a copy of it was provided to me for use at the case conference I heard on April 27, 2022, discussed below. For the purposes of this motion, I need only refer to its recommendations.

[32] The clinician characterized her report as an “interim” one. She did not make recommendations as to “custody” (now referred to as decision-making). She did make various recommendations about a parenting schedule. She also recommended that the father and the children engage in reunification therapy, that the mother engage in individual counselling, and that the children possibly engage in individual counselling, concurrently with reunification therapy, if the reunification therapist determined the latter to be necessary.

[33] On page 15 of the report, the clinician wrote, “once counseling is underway for all individuals involved, an updated Section 112 investigation may be better able to make long-term recommendations for this family”. No such updated report was ever undertaken.

C. The Motion Before Fryer J. on October 29, 2018

[34] Following the release of the “interim” section 112 report, there was another case conference before Timms J. Both parents then brought motions, which Fryer J. heard and which resulted in the aforementioned Order of October 29, 2018.

[35] In his Notice of Motion for that motion, the father sought an expansion of his parenting time and reunification therapy, among other things. The mother sought an order for the updated OCL report, reunification therapy, individual counselling for the children, and child support.

[36] In her Endorsement, Fryer J. noted that the status quo, then in place, was the children resided primarily with the mother, and the father had parenting time twice per week and on alternate weekends. She noted that there was evidence before her to suggest the children were doing well in the mother’s care. And although there were some “challenges” in the children’s relationships with the father, Fryer J. found that the evidence did not suggest they were attributable to the mother. Fryer J. further observed that the children did not then want to have more time with their father; in fact they wanted the schedule curtailed.

[37] Other than adding a right of first refusal, making an order for telephone calls, and setting out a schedule for Christmas that year, Fryer J. determined that the status quo should remain in place pending trial. She noted that both parties had agreed to reunification therapy, and so she ordered it. But the parents did not agree about who would conduct it, so Fryer J. had to decide.

[38] The father proposed Dr. F. The mother proposed others. Fryer J. agreed with the father’s choice. She wrote, “…. there are significant issues affecting these children and their relationship with their father. They have unique challenges and a person with specialized expertise is required to understand the children’s needs and each parent’s ability and willingness to meet those needs.” Fryer J. felt that Dr. F was best qualified to undertake this task.

[39] In making this Order, Fryer J. also acknowledged that the mother objected to Dr. F. As such, she declined to order the mother to participate in Dr. F’s therapeutic process, although she “strongly encourage[d] her to do so if Ms. F so request[ed]”.

[40] Fryer J.’s Order is silent as to any reporting requirement of Dr. F to the Court, or as to the later release of records. Although the parties would have entered into some form of contract or intake with Dr. F for her services that may have also contained terms about the later release of information, no such contract or documentation was put before me on this motion.[^3]

[41] Notably, Fryer J. did not make an order for individual therapy for the children, as asked by the mother.

[42] Finally, Fryer J. ordered the OCL to prepare an updated report,[^4] granted leave for questioning on the parenting issues, and dealt with child support and certain section 7 expenses. On February 5, 2019, Fryer J. ordered the father to pay costs of $7,500.00.

D. The Subsequent 14B Motions Leading Up to this Motion Now Before the Court

[43] This case went dormant for a period after that. Then, in 2021, the father brought a series of 14B Motions asking the Court to schedule dates for contested motions about parenting time and an adjustment to child support.

[44] I am not clear on what transpired with the first two 14B Motions. I could not find any Endorsements relating to them in the Endorsements Record. On August 24, 2021, the father filed another 14B Motion, this time asking for leave to schedule an urgent motion for the resumption of his parenting time. On September 27, 2021, Leef J. granted the motion, but she only allowed the father to proceed on the regular motions list, rather than on an urgent basis.

[45] There is no indication that any such motion was brought after that. The next Endorsements in the file arise out of a different 14B Motion of the father brought in March 2022, and from case conferences, beginning on April 14, 2022.

[46] The father’s next 14B Motion, now dated March 22, 2022, sought to compel the mother to attend the questioning that Fryer J. had ordered on October 29, 2018, and asked the Court to schedule a motion date for the production of records. But around this time two conferences also somehow got booked, one on April 14, 2022, and apparently another in June.

[47] The April 14, 2022 conference did not then proceed. The judge assigned to hear it declared a conflict so it was put over to April 25, 2022 before me. Meanwhile, also on April 14, 2022, Fryer J. dealt with the father’s 14B Motion of March 22, 2022. In her Endorsement, she noted that leave for questioning had been granted 3.5 years ago, that the father had unpaid costs outstanding, and that the disclosure issue now being raised did not appear to be urgent. She dismissed the 14B Motion without prejudice to the April 25, 2022 conference, leaving the issues to me to decide.

E. The Appearance and Case Conference on April 25 and 27, 2022

[48] The parties first appeared before me on April 25, 2022, but they were not prepared to proceed with the conference. Nevertheless, there were a dispute about the scheduling of the motion that the father wanted to bring, some discussions about what it might concern, and a dispute about whether the father should be permitted to bring the motion at all in advance of a further case conference.

[49] As I have said, apparently the next date somehow already booked was for another conference in June. To resolve these procedural issues and a complaint about delay, I offered to hold the conference, two days later, on April 27, 2022. This rendered moot the particular dispute about whether a conference needed to precede a motion because the parties and counsel said they could get ready for the conference very quickly, and they agreed to proceed in this fashion.

[50] To prepare for April 27, 2022, I asked the parties to provide me with a copy of the OCL’s interim report, a history of the prior proceedings, and any other relevant information at least relating to procedural issues. I also asked them to provide a summary of the matters to be pursued on the proposed motion(s), and proposals as to the next steps in the case, to get the matter resolved.

[51] The focus of the discussions on April 27, 2022 revolved entirely around procedural issues. Based on the discussions with the parties, I noted in the Endorsement of April 27, 2022, that Dr. F’s reunification therapy process had ended. I noted that the father may be seeking in the future to proceed with a motion for parenting time and/or reunification therapy, but that at this point he would first proceed only with a motion for production of records. I noted that the children were not consenting to the release of information. I also noted that both parties wanted the Court to appoint the OCL, again. And so I made such an order, in part to ensure that the children’s positions would be represented at the upcoming records motion.

[52] The fact that the father had in the past been charged with an assault on E. was raised. I flagged with the parties that this was relevant to the nature of his relationships with the children, and to the factual dispute about the cause of the termination of reunification therapy. There was a discussion that day about whether there should be a motion for production of records relating to the criminal charges, too. In the end, I thought it was agreed that the mother would bring a motion for those records.

[53] I made a scheduling order for the motions to proceed. I also gave the parties the option that either I could hear the motion(s), or that it could proceed before a different judge. The parties specifically agreed that I would hear them, that I should case manage this case going forward.[^5] As such, I put the matter over to June 22, 2022 in my calendar, in part to ascertain what role the OCL would play, and to the extent possible, to deal with the motions, perhaps for example the production of the criminal documentation were the OCL to get involved, but need more time.

F. The Appearance on June 22, 2022

[54] The mother changed counsel between April 27, 2022 and June 22, 2022. No motion for the criminal documents was brought by her, or by the father either for that matter. The father brought his motion for the production of the records now in issue. The mother’s new counsel sought an adjournment. The OCL had accepted the Court’s referral, but it too needed more time to meet the children, to get instructions and to prepare. Ms. Virani for CFSD, along with the Ms. Pierce, its Executive Director, attended and advised the Court as to their role at the motion.

[55] I made a further scheduling Order and put the matter over to the next date that the Court could accommodate for argument, having regard to the parties’ schedules. The motion was argued on September 20, 2022.

PART III: ANALYSIS

A. [Section 20(5)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html) of the [Children’s Law Reform Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html)

[56] The principal basis upon which the father seeks production of the records is the right to information in section 20(5) of the Children’s Law Reform Act. It reads:

The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.

[57] At first blush, this section conflicts with a number of provisions in the PHIPA. And the children, who are capable of consenting to the release of their personal health information under the PHIPA, have not given it.

B. The [Personal Health Information Protection Act, 2004](https://www.canlii.org/en/on/laws/stat/so-2004-c-3-sch-a/latest/so-2004-c-3-sch-a.html)

[58] The PHIPA governs the collection, use and disclosure of personal health information by health care providers. The provision of counselling services inherently involves the collection of personal health information. So too, would the services being provided by a doctor, or a hospital: see section 4(1)(a) and (b) of the PHIPA.

[59] All parties agreed, and proceeded with this motion, on the premise that the PHIPA applies to all of the records the father seeks.[^6] The parties and the OCL each referred to various provisions of the PHIPA in their submissions. Unsurprisingly, CFSD’s submissions were based almost entirely on the PHIPA, and the mother and the OCL relied on it heavily.

[60] Under section 3 of the PHIPA, health care providers who have care and control of personal health information are known as “health information custodians”. An individual may obtain their personal health information from a health information custodian under the PHIPA’s “access” provisions, contained in Part V of the legislation.

[61] Subject to certain exceptions, that right of access is set out in section 52(1). The right must be exercised by the individual, or the person’s lawfully authorized substitute decision-maker: see section 25(1). But there is no general right to access records of another individual’s personal health information: see PHIPA Decision 128 ¶ 21; see also PHIPA Decision 160 ¶ 9. In this respect, the right of access in the PHIPA is different from the right contained in section 20(5) of the Children’s Law Reform Act. While a parent may have a right to information about a child’s health under family law legislation, that does not in turn provide a guaranteed route to obtain records under the PHIPA.

[62] The right of access in the PHIPA is also different from the concept of disclosure. There are provisions in the legislation setting out when health information custodians may disclose records of personal health information, both to those who have a right of access, but also in other circumstances: see Part IV of the PHIPA. Disclosure is not necessarily restricted to those having a right of access. For example, substitute decision-makers may act on behalf of a person who lacks capacity. A health information custodian also has the discretion to disclose to others, in the absence of consent. The PHIPA recognizes that disclosure, without consent, is permitted, and sometimes required: see section 29(b).

[63] This case involves two teenage children. There is no age at which a person has capacity to make decisions about the disclosure of their own personal health information under the PHIPA. Pursuant to section 21(1), an individual is capable of consenting to the collection, use or disclosure of personal health information if they are able to understand the information that is relevant to deciding whether to consent to the collection, use or disclosure, as the case may be, and they are able to appreciate the reasonably foreseeable consequences of giving, not giving, withholding or withdrawing the consent.

[64] The concept of capacity is fluid. Under section 21(2), an individual may be capable of consenting respecting some parts of personal health information, but incapable with respect to other parts. Pursuant to section 21(3), the capacity to consent may exist at one point in time, and not at another point in time.

[65] The determination of capacity is made by the health information custodian. There is also a presumption of capacity in section 21(4) to aid the health information custodian. Under section 21(5), a health information custodian may rely on the presumption in section 21(4), unless they have reasonable grounds to believe that the individual is incapable of consenting to the collection, use or disclosure of personal health information.

[66] If the person in question has capacity to consent, then it is that person who may give or withhold consent to the disclosure of health information: see section 23(1)(1.). There is an exception to this rule. Where the person is a child under 16, a parent may give or withhold the consent on the child’s behalf, unless the information sought relates to treatment within the meaning of the HCCA, about which the child themself has made a decision on his or her own, in accordance with that Act: see section 23(1)(2.). As counsel for CFSD explained, an example of this is that a parent may obtain immunization records from when the child was an infant and incapable, but not records relating to the prescribing of contraception more recently, if the child accessed and consented to that treatment on their own.

[67] But a “parent” for the purposes of this exception does not include a person who only has a “right of access” to the child: see section 23(2). And section 23(3) states that where the child is capable of consenting and their decision conflicts with that of a substitute decision-maker under section 23(1)(2.), the child’s decision prevails in any event.

[68] Where a child lacks capacity under section 21 of the PHIPA, then a substitute decision-maker may act on their behalf: see section 23(1)(3.). A parent is a substitute decision-maker under the PHIPA. Even a parent with only a “right of access” is a substitute decision-maker. But there is a hierarchy of substitute decision-makers: see section 26(1). And a parent with only a “right of access” is subordinate to a parent with decision-making responsibility: see sections 26(1)(5.) and (6.).

[69] In cases where two parents have joint decision-making responsibility, they are equally ranked. Under the PHIPA, they must agree. A health information custodian need not always canvass the position of both substitute decision-makers before releasing records. But if a health information custodian is made aware that two equally ranked substitute decision-makers disagree as to the release of information, then neither parent can act independently of the other: see PHIPA Decision 160 ¶ 26. They would either have to agree, return to a family Court to alter the arrangement respecting decision-making, or obtain some other kind of relevant order, perhaps under section 28 of the Children’s Law Reform Act. Additionally, there is a discretionary provision in the PHIPA for the Public Guardian and Trustee to decide in their stead: see section 26(7).

[70] Under section 26(2), a substitute decision maker is only entitled to act if certain conditions exist or do not exist. For example, if a court order or separation agreement prohibits someone who might otherwise be the substitute decision-maker from having access to the information, or from giving or refusing consent, then he or she would not be able to act as a substitute decision-maker under the PHIPA: see section 26(2)(c).

C. How to Reconcile the Two Statutes?

[71] How then, does the Court reconcile the right of a parent under section 20(5) of the Children’s Law Reform Act with these provisions of the PHIPA, and the fact that in this case, decisions have already been made under it, not to release the records? One option, advanced by counsel for the OCL, is that section 20(5) is a provision of general application, whereas the PHIPA is more precise, and therefore trumps. But by analogy, at ¶ 55-73 of A.M. v. C.H., 2019 ONCA 764, the Ontario Court of Appeal held that the Children’s Law Reform Act operates for a different purpose and alongside, rather than necessarily in conflict with, other of health legislation like the HCCA. In my view, so too do the Children’s Law Reform Act and the PHIPA co-exist.

(1) The Purposes and Scope of the [Children’s Law Reform Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html) and Section 20(5) In Particular

[72] There are four purposes set out in Part III of the Children’s Law Reform Act, which governs parenting orders. One purpose, set out in section 19(a), is to ensure that all applications to courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children.

[73] Section 20(5) itself has a specific purpose. In Parker v. Parker, [1995] O.J. No. 3071 (Gen. Div.), Leitch J. explained that it recognizes that “…both the custodial and non-custodial parent should be fully informed on issues affecting the welfare of a child in order to ensure that they at all times act in the child's best interests”. She further noted the importance of a “non-custodial” parent being as aware as the “custodial” parent of any issues relating to a child. “Only then can the non-custodial parent assist in resolving those issues for the benefit of the child”.

[74] At ¶ 39 of Daniel-DeFreitas v. Francis, 2012 ONSC 515, Chappel J. explained that section 20(5) operates in two different ways, one by placing responsibility on a parent to provide the other with information about the child, upon request, and separately, it entitles the parent to obtain information and documentation from third party service providers involved with the child.

[75] Section 20(5) does not operate alone, in isolation from the other provisions within the Children’s Law Reform Act itself, or in isolation from the other related pieces of legislation. The right to information in section 20(5) is not absolute.

[76] For example, it is subject to alternation by Court order or separation agreement: see section 20(7). While section 28(1)(c)(vi) empowers the Court to order parents to cooperate with respect to the disclosure of health information, the list of powers in section 28(1)(c) is not exhaustive and the section is worded sufficiently broadly to encompass the power to Order limits on access to information, too. The 2021 amendments to the Children’s Law Reform Act enacted by the Moving Ontario Family Law Forward Act, 2020, codify further the Court’s ability to place limits on the right in section 20(5). New section 28(8) of the Children’s Law Reform Act explicitly makes the right to receive information about a child’s well-being, including in relation to the child’s health, subject both to the Court ordering “otherwise”, and subject “to any applicable laws”.

[77] This new statutory reference to a Court being able to “order otherwise” is a specific reminder that the right in 20(5) is not absolute. Internally, the right must be interpreted through the lens of the best interest principle, as all decisions affecting children are: see again section 19(a) of the Children’s Law Reform Act; see 24(1); and see also Children’s Lawyer for Ontario v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 ¶58-61.

[78] The new, statutory subjugation of the right in section 20(5) externally “to any applicable laws” codifies what was already happening, namely that courts should consider the operation of other laws, like the PHIPA, when considering the scope of the right. Another example of another “applicable law” that can interact with the right in section 20(5) would be the common law of privilege: see M.(A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157.

(2) The Purposes and Scope of the PHIPA

[79] The purposes of the PHIPA, set out in section 1, are different from those in the Children’s Law Reform Act. One purpose is the establishment of rules for the collection, use and disclosure of personal health information about individuals that protect the confidentiality of that information and the privacy of individuals with respect to that information, while facilitating the effective provision of health care. Another purpose is to provide individuals with a right of access to personal health information about themselves, subject to limited and specific exceptions set out in the legislation.

[80] But the PHIPA is not absolute either. In effect, its provisions will sometimes prevail over the right in section 20(5) of the Children’s Law Reform Act. Sometimes it will be subordinate.

[81] In a corresponding fashion to the Children’s Law Reform Act, various provisions in the PHIPA direct decision makers under that legislation, to consider other sources of law, including family law statutes. For example, section 43(1)(h) provides that a health information custodian may disclose personal health information about an individual, “subject to the requirements and restrictions, if any, that are prescribed, if permitted or required by law or by a treaty, agreement or arrangement made under an Act or an Act of Canada.”

[82] Still, section 43(1)(h) is permissive and not mandatory. It does not require a health information custodian to disclose. It only requires the consideration these other sources of law. Read in tandem with section 6(3)(a) of the PHIPA, it bestows upon the health information custodian the discretion to disclose personal health information if they chose to do so, without violating the other obligations under PHIPA.

[83] A second example is section 41(1)(d) of the PHIPA. It authorizes the disclosure of health information for the purpose of complying with a summons, order or similar requirement issued in a proceeding by a person having jurisdiction to compel the production of information, or a procedural rule that relates to the production of information in a proceeding. Read alongside section 6(3)(b), this provision recognizes that there may be legal requirements to disclose, from other sources of law. And nowhere does the PHIPA relieve a health information custodian from the legal requirement to comply with such a court order, if one is made: see also PHIPA Decision 128 ¶ 31.

(3) Who Has the Jurisdiction to Decide?

[84] So what then does a parent do, when a decision unsatisfactory to them denying disclosure of health records is made by a health information custodian under the PHIPA? In his factum, the father complained that the service providers just provided blanket refusals to disclose the records to him. He says that does not accord with their obligations under the PHIPA and they are not entitled to do that: see PHIPA Decision 96 ¶ 90. Yet the father did not make submissions as to how he is able to seek a remedy for that in this Court.

[85] On the one hand, the Family Court does not review the decisions of health information custodians or those of the Information and Privacy Commissioner (the “IPC”) if there is a complaint made about a health information custodian’s decision. There is a process to complain about a health information custodian’s decision to the IPC in Part VI of the PHIPA, with appeal rights to the Divisional Court thereafter. And there is no evidence that the father pursued his right of complaint under the PHIPA. But the father’s complaint about blanket refusals does not need to be resolved for him to claim relief in this proceeding. That is because even where a decision has already been made by a health information custodian under the PHIPA, the Family Court may still make a disclosure Order according to the statutes or rules over which it has jurisdiction.

[86] PHIPA Decision 128 involved the IPC’s reconsideration of an earlier decision to uphold a health information custodian’s decision not to disclose, after a further complaint was made by the person seeking access, alleging that all relevant considerations had not been taken into account in the earlier decision. In the reconsideration decision, Adjudicator Corban analyzed how section 43(1)(h) ought to impact a health information custodian’s decision to disclose, or not. She wrote that a health information custodian must make a decision “in a proper manner, based on proper considerations, in good faith and for a proper purpose”. That may include a consideration of the “best interests of the child”: see PHIPA Decision 128 sets out at ¶ 52, 58-60, 93; see also Re Leon, 2022 CarswellOnt 9843; and see again Children’s Lawyer for Ontario v. Ontario (Information and Privacy Commissioner) ¶ 58-61).

[87] But the scope of any review by the IPC is limited to deciding whether the health information custodian’s decision was properly made or not. The assessment of a child’s best interests by a health information custodian and then the IPC, which may involve different parties and for different purposes, is not necessarily as fulsome as that undertaken in Court. And the IPC cannot, as a remedy, make a production order using family law legislation. If a health information custodian fails to comply with a legal requirement outside the PHIPA, the person’s recourse is to the Court, not the IPC: see PHIPA Decision 128 ¶ 99; see also Re Leon ¶ 55.

[88] This Court is not making a decision under the PHIPA; it is hearing a family case involving the scope of a parent’s right to access children’s health records under section 20(5), or a family law rule. That said, just as the IPC may consider the best interests of the child in making discretionary decisions under the legislation for which it has jurisdiction, so too is there scope for this Court to consider, as a relevant factor in its analysis, any decisions made under the PHIPA. The list of factors in section 24(3) of the Children’s Law Reform Act is not exhaustive, and this can be a consideration related to the child’s circumstances.

(4) Conclusions Respecting the Interaction Between the [Children’s Law Reform Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html) and the [PHIPA](https://www.canlii.org/en/on/laws/stat/so-2004-c-3-sch-a/latest/so-2004-c-3-sch-a.html)

[89] In summary, I conclude the following:

(a) What is before me, is a request for production under section 20(5) of the Children’s Law Reform Act and rule 19(11) of the Family law Rules, not a review of a decision made by a health information custodian. The proper route for the latter is set out in the PHIPA;

(b) I find this Court has the jurisdiction to adjudicate the father’s claim under section 20(5) of the Children’s Law Reform Act, and if appropriate to make a specific order for production of some or all of the records sought;

(c) This Court also has the jurisdiction to consider a request for the production of records in the possession of a non-party pursuant to rule 19(11) of the Family Law Rules, notwithstanding decisions already made under the PHIPA;

(d) The PHIPA does not oust the jurisdiction of this Court to do either;

(e) There is nothing in the PHIPA that relieves a health information custodian from complying with a specific Order compelling them to produce, if made in this proceeding;

(f) The test that applies respecting the father’s claim based on section 20(5) is the best interests’ test; and

(g) While not binding, the Court may nevertheless take into account the health information custodian’s decisions already made under the PHIPA, within the section 20(5) analysis.

D. Analysis Respecting the Children’s Best Interests

[90] For the reasons that follow, I find that it would not be in the children’s best interests for this Court to make a broad order under section 20(5) of the Children’s Law Reform Act requiring the four health information custodians to produce their entire files to the father.

(1) The Status Quo

[91] The overall tenor of the father’s evidence is that he has been excluded from the children’s lives by the mother. But when the parties appeared before Fryer J. on October 29, 2018, she did not find, on the record then before her, that the mother was the cause of the difficulties between the father and the children. While the father will undoubtedly pursue it at trial, on this motion now before me some four years later, there is little additional evidence to demonstrate alienation. In fact, the father filed very little by way of evidence at all to address the best interest factors under section 20(5) of the Children’s Law Reform Act either.

[92] However it happened, the mother has become the children’s de facto primary parent. She is opposed to the productions sought, for various reasons. While the facts underlying her perspective and reasoning for that may or may not be proven at trial, at this stage of the case I find her views are entitled to respect. As Karatkatsanis J. recently wrote at ¶ 120 of Barendregt v. Grebliunas, 2022 SCC 22, “[t]he parent who cares for a child on a daily basis is in a unique position to assess what is in their best interests…” A court always pays attention to those views.

(2) The Children’s Views and Preferences

[93] As a result of my Order of April 27, 2022, Manjula Sharma was assigned as the clinician to work with the children’s new counsel, Ms. Bellinger. Ms. Bellinger and Ms. Sharma have already met with each of the parents, and they have had multiple meetings with both children. Their work to date has focused on the issues raised in this motion. While there is more work to do respecting the broader issues in this case, Ms. Sharma was still able to file an affidavit sworn September 7, 2022 for this motion.

[94] Ms. Sharma describes B. as a “very kind and sweet young person” who was “extremely kind” to their sibling, E. B. uses the pronouns “they/them”.

[95] According to Ms. Sharma’s affidavit, B. does not have good memories of their father. B. reported that they saw the father hurt E., and yell and swear at her. B. worries about E. B. was also of the view that the father treated B. as the favorite child, which upset them.

[96] B. has just started high school. B meets with a counsellor and feels very good about the counselling process. B. feel safe at home with the mother and has a good relationship with her.

[97] B. does not want to see the father at this time. They do not wish to engage in any form of counselling with the father. According to Ms. Sharma, B. especially does not want the father to have access to their health records.

[98] E. uses the pronouns “she/her”. Ms. Sharma describes E. as an especially private person, who was able to express feelings but who did not always elaborate on them. There were some challenges in their communications with one another but Ms. Sharma says E.’s ability to engage did improve over the course of the interviews.

[99] According to Ms. Sharma, E.’s memories of her father are not good either. E. recalled a lot of yelling, swearing and physical discipline.

[100] Additionally, E. experienced a long period of isolation due to Covid. She was bullied at school and is now facing a return to in-person attendance. Most significantly, Ms. Sharma says that E. faces the emotional, physical and mental challenges of a gender transition.

[101] Ms. Sharma says that E. was consistent in her views and preferences. E. does not want to meet with her father, nor to have contact by way of telephone or cards and letters. She especially does not want the father to have access to her personal medical records. It appeared to Ms. Sharma that the process of speaking to the OCL, and the underlying court process, were stressful for E.

[102] It is well known that children’s views and preferences are an important consideration in decisions of this nature: see again Children’s Lawyer for Ontario v. Ontario (Information and Privacy Commissioner) ¶ 62-67. Section 24(3)(e) of the Children’s Law Reform Act directs me to consider these views and preferences and to give them due weight to their age and maturity. Children are also entitled to be heard under section 64 of the Children’s Law Reform Act. This is a right provided for under Article 12 of the UN Convention on the Rights of the Child as well.

[103] But the same evidence of these children’s views and preferences also relates to other statutory factors in this case, which inform the decision I must now make. For example, there is section 24(3)(b), namely the nature of their relationships with each parent. There is section 24(3)(a), which includes the children’s need for stability. And of course, there is section 24(2), that the Court must give primary consideration to the children’s physical, emotional and psychological safety, security and well-being.

[104] So it is not just that the children’s views and preferences that militate against disclosure. What is clear from Ms. Sharma’s affidavit, is the complete absence of a healthy relationship between the children and their father. I am persuaded that the blanket release of documentation will be harmful to them.

[105] Both children are vulnerable; E. is particularly vulnerable. B. is in a good place with high school and their counselling, and that should be protected. Both children need to be protected from the conflict.

(3) Family Violence

[106] Pursuant to section 24(3)(j) of the Children’s Law Reform Act, family violence and its impact on, among other things, the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child, are relevant factors. If the Court finds family violence, it is then to take into account the factors in section 24(4), in considering the impact of the family violence.

[107] Allegations of family violence are at the heart of many of the factual disputes in this case, including why reunification therapy ended and the state of the father-children relationships.

[108] The father denies family violence. He says the mother falsely alleged it as part of her alienating behaviour, which included terminating reunification therapy with Dr. F. Although he admits he was charged with the assault, he says the charges were later resolved by way of a peace bond and he was not found guilty.

[109] By contrast, in her affidavit of June 3, 2022, the mother admits that she terminated reunification therapy, but only after the father had already stopped scheduling additional sessions. And she says she ultimately stopped working with Dr. F due to Dr. F’s failure to report the father’s family violence towards E. Specifically she says the father assaulted E. twice, in May and October 2019, both times choking her to the point of unconsciousness. The mother reported Dr. F to the College of Psychologists for not acting on her duty to report.

[110] The disposition of the father’s criminal case by way of a peace bond is not dispositive, on the civil standard of proof in this proceeding. The affidavit evidence of the parents is conflicting. The Court cannot, at this stage, determine what happened.

[111] But the Court is still left with the children’s own statements to Ms. Sharma, in which they disclosed family violence. The Court is concerned. The children’s statements are relevant to this question about whether there should be disclosure.

[112] At ¶ 33 of Catholic Children’s Aid Society of Toronto v. J.S., 2013 ONCJ 200, Sherr J. considered the fact that a 16-year old child had made allegations of family violence to be relevant in refusing to consent to the production of her health records. Sherr J. wrote:

It is also important for the court to consider the potential impact on the child if it ordered production of the requested records against her wishes. She is now 16 years old. The Family Law Act recognizes that she would have the right to withdraw from parental control. She has made serious allegations of abuse against the mother and stepfather. From her perspective production of the records to the society would be another step down the road to the mother and stepfather receiving details of her private communications with people she trusted to keep confidences. At the very least, a message would be sent to her that her privacy rights are not being valued by the court. At most, it is conceivable that such a decision might be harmful for what has been described as an emotionally vulnerable child.

[113] In conclusion, although Ms. Sharma’s affidavit does not describe it in the same terms as the mother, at this stage of the case, I am not willing to ignore the children’s perspectives, that they experienced family violence.

(4) The Parents’ Abilities and Willingness to Meet the Needs of the Children

[114] Pursuant to section 24(3)(h) of the Children’s Law Reform Act, a parent’s ability and willingness to meet the needs of a child is a factor that is relevant to a child’s circumstances.

[115] In her affidavit of June 3, 2022, the mother says that the father has “proven in the past” that he will publish any material that he obtains, twist them to suit his narrative, and harass her and the children, and discredit her and the children. The mother says that providing the father with access to the children’s sensitive and personal records and medical information would assist the father to perpetuate this mischief, harassment and harm.

[116] The mother has failed to provide any examples to support these statements. I am not prepared to make findings along the lines of what she has said. But for the reasons provided later, I am differently concerned about making a broad disclosure order in this case, based on how the father himself during argument of this motion said he may use the records.

(5) The Decisions Already Made Under the PHIPA in this Case

[117] The two health information custodians who responded by letter or participated in this motion have determined the children have capacity to consent to the release of the records. They have acted in accordance with those wishes in declining to provide any disclosure to date. The other two health information custodians have not responded; no records have been released.

[118] Even if the children lacked capacity, the father does not qualify as a substitute decision-maker under the PHIPA. At best, he is a joint decision-maker, which would make the parents equally ranked substitute decision-makers under the PHIPA. And they don’t agree. That means the father would not be entitled to disclosure under the PHIPA either, short of obtaining an order from this Court.

[119] The provisions of the PHIPA and the decisions already made under it align with my assessment of the children’s best interests in this case. In this case, the two statutes are operating harmoniously.

E. Conclusions Respecting the Children’s Best Interests and the Father’s Request for Records Under Section 20(5) of the [Children’s Law Reform Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html)

[120] In conclusion, I find it is not in the best interests of these children to make the broad disclosure order the father seeks. The request for an order under section 20(5) of the Children’s Law Reform Act requiring Dr. F, CFSD, Dr. B and the Shoniker Clinic to produce their notes and records is dismissed.

[121] The other aspect of section 20(5) of the Children’s Law Reform Act, as explained by Chappell J. in Daniel-DeFreitas v. Francis, is the ability to obtain information from the other parent, and the obligation of a parent to provide information to the other: see also new section 28(8)(a). There is no cross-motion before the Court from the mother seeking to curtail the father’s right to information about the children that she may have in her own knowledge, or relieving her of the obligation to provide it. In fact during submissions, arguments were made by some that such information would not be privileged. But given that there is no motion before me for this, I make no order as to this or any further comments as to the scope of proper questions as between the parents. The discovery stage of this case is not complete. Counsel should sort this out. Any disputes about the level of information to be exchanged between the parents will have to be dealt with in due course once they go through the exercise of formulating questions of each other, and asking them.

[122] While I am not making the broader order the father seeks under section 20(5), there is still rule 19(11) of the Family Law Rules. I find it appropriate to make a more limited production order under the rule, necessary for the completion of this case.

F. [Rule 19(11)](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html) of the [Family Law Rules](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html)

[123] Rule 19(11) of the Family Law Rules reads:

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[^7],

(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.

(1) Threshold Relevance

[124] Rule 19(11) provides a mechanism to obtain documents to which a party does not otherwise have access, but which are needed to prosecute the case. This is different from the more general right of access in section 20(5). It goes without saying that the documents sought must have some relevance to an issue in the proceeding, otherwise no purpose is served in making a production order.

[125] Different disclosure decisions in varying contexts have discussed different thresholds of relevance. In family law cases involving sensitive and private records, courts have generally adopted the “likely relevant” threshold: see for example Children’s Aid Society of Brant v. N.M.P., 2016 ONCJ 266; see G.L.K. v. C.L.K., 2021 ONSC 5843 ¶22-23; see Highland Shores Children’s Aid Society v. T.S., 2019 ONSC 5765 ¶ 30, 39; see 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 ¶ 30, 39; and see also W.A.C. v. C.V.F., 2021 ONSC 6794 ¶ 97-102. That is the threshold for relevance that I intend to apply.

(2) Privilege

[126] Rule 19(11) next requires the Court to consider whether any legal privilege exists that might prohibit the non-party production being sought. In M.(A.) v. Ryan, the Supreme Court analyzed the issue in the context of a request therapeutic records sought for use in a civil sexual assault proceeding. But the analysis in M. (A.) v. Ryan has been widely applied in family law cases, too.

[127] As a starting point in M.(A.) v. Ryan, the Supreme Court noted that everyone owes a duty to give evidence relevant to the matter before the Court, so that truth may be ascertained. But 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.

[128] The Supreme Court set out that there is no blanket privilege in health records. At the same time, 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”: see M. (A.) v. Ryan ¶ 20.

[129] The Supreme Court then used the four-prong “Wigmore test” to determine whether the contents of records in that case were privileged, on a case by case basis: see M. (A.) v. Ryan ¶ 20. That test requires courts 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?

(3) Unfairness

[130] If the Court determines a privilege exists, then there is no residual discretion to order the production under rule 19(11), or at common law, and thus no reason to provide additional information: see M.(A.) v. Ryan ¶ 15-17. But if the records are not privileged, or only partially privileged, the Court must still decide whether it would be unfair for a party to proceed to trial without the documents not cloaked with a privilege.

[131] Unfairness in this context is governed by the test set out by the Ontario Court of Appeal in Ontario (Attorney General) v. Stavro (1995), 1995 CanLII 3509 (ON CA), 26 O.R. (3d) 39 (C.A.). The so-called Stavro factors that govern the exercise of the Court’s discretion about unfairness are:

(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.

G. Analysis Respecting Dr. F’s Records Under Rule 19(11)

(1) The Parties’ Positions

[132] The father says he wishes to have an ongoing relationship with the children. At ¶ 9 of his May 19, 2022 affidavit, the father specifically says, “I am of the firm belief that it is imperative for me to re-commence my care of the children that I have a firm grasp on what has taken place in terms of the re-unification therapy, what was discussed, the progress of such therapy from 2019, and that this will give me information on what further may be needed from my children.” In his affidavit of September 16, 2022, the father also says he is considering whether to bring a motion to seek more elaborate reconciliation therapy, for instance through the Family Bridges program.

[133] In certain respects, the mother’s factum blends all of the records together into one category. She is opposed to the production of all of the records, regardless of any differences amongst them. Like the OCL, she also relies on the children’s views, and broader policy concerns.

(2) Are the Records Likely Relevant to A Material Issue?

[134] I find that these records do have likely relevance to material issues in the case. Very clearly the father’s relationship with the children, the extent to which it is damaged, the likelihood of success that it may be repaired, whether there should be another therapeutic process, and whether the mother is acting in a way to undermine the relationship, are all pivotal issues in this case, that these records will speak to.

[135] Additionally, whether the father stopped attending therapy on his own, and whether he assaulted E. on two occasions are not just isolated questions of fact. Findings about those facts will in turn be relevant to the broader questions about whether there has been alienation or some justified estrangement, which in turn impact the Court’s overall best interests’ analysis and what remedy should be ordered.

[136] In my view, Dr. F’s records are critical to the correct disposal of the litigation.

(3) Are the Records Privileged?

[137] During submissions, counsel agreed that the first three branches of the Wigmore test would be met respecting these records, making the records prima facie privileged. The Court did not explore this reasoning with counsel any further. Having now had a further opportunity to consider the matter further, I am not so certain.

[138] Respecting the first branch of the Wigmore test, there is a paucity of evidence before the Court about whether Dr. F’s process was even intended to be, or actually was in fact, a confidential one. Fryer J.’s Order is entirely silent as to confidentiality. After the Order of October 29, 2018, it is likely that the parties either entered into a contract or intake process with Dr. F, in which the parameters of confidentiality were discussed. The parties should have placed those documents before the Court, but they did not.

[139] In the absence of any evidence as to what the understanding was respecting confidentiality out the outset of Dr. F’s process, I nevertheless observe that it is often inherent in counselling of this nature that there will be a reporting function back to the Court. So likewise, on the second and third branches of the Wigmore test, I am not satisfied that confidentiality is essential to the relationships that exist within this kind of therapy, or that those relationships must be sedulously foster in the community, either. As a matter of practice in the future, it would be prudent for parties to turn their mind to these issues about confidentiality, when entering into such processes in the first place.

[140] If I am wrong, and the first three branches of the Wigmore test are met such that the records are prima facie privileged, I would still not find these records to be actually privileged on the balancing exercise required by the fourth prong of the test. Here, the Court must balance any injury to any ongoing relationship and future treatment, the effect of disclosure on the ability of others to obtain treatment, the effect on society if persons fail to obtain treatment in the future, the privacy interest of the person claiming privilege, and any inequalities that may be perpetuated on them in the absence of protection. And my balancing of these factors does not yield a significant interest in protecting these records from disclosure for two reasons.

[141] First, this particular service has ended. There is no risk that disclosure will damage Dr. F’s ability to work with the parties, since she is no longer working with them. More broadly, it is by no means certain that in other cases litigants should enter into court ordered reunification therapy expecting that there will be no reporting back to the Court. I find ‘chilling effect’ arguments to be less persuasive respecting this kind of therapy.

[142] Second, there is evidence before me that the father participated in some sessions with the children, so he already knows what transpired in some of the sessions. The mother herself says this in her affidavit of June 3, 2022, while simultaneously objecting to production. The mother also referred to what appear to be some of the contents of sessions in her own affidavit material. In her affidavit of September 13, 2022, she says that Dr. F “detailed the [father’s] non-committed attitude towards reunification therapy with the children”. The mother seems to have some knowledge and she has put it directly in issue.

(4) Would It Be Unfair For the Father to Go On With the Case, Without These Documents?

[143] Respecting the Stavro factors, the most important ones that apply to Dr. F’s records are that the issue of disclosure needs to be dealt with now. There has already been considerable delay in this case. The parties either need to settle or move forward to a trial.

[144] I have also considered that some of the information sought and that may be in the files, may exist elsewhere. And unfortunately the parties did not avail themselves of all of the opportunities that have been available, to obtain the information.

[145] For example, although the alleged assaults are central factual determinations that will have to be made, and although on April 27, 2022 I raised the issue with the parties and then gave leave for a separate Wagg motion to be brought on June 22, 2022, no such motion was brought. The affidavit material now before me reveals that there has also been other police, and Society involvement with this family. For example, in his affidavit of September 16, 2022, the father writes that the mother called the police on him on no fewer than 5 times, and the Society on seven occasions. It seems that he has some of the information. He attached four pages/excerpts of police and Society notes, and a letter from the Society dated July 25, 2018, stating the Society was closing its file. So clearly other records exist. I do not know if the parties obtained them all, in unredacted form.

[146] Fryer J. also granted leave for questioning on October 29, 2018. It was then either not pursued or if it was, it is not completed. One of the father’s complaints in his various 14B motions precipitating this motion is that the mother would not submit to it.

[147] The existence of information in some other, accessible form can operate to militate against ordering production under the Stavro test. But the parties’ failure to be better organized or further along in their preparation for trial, is not a strong factor negating the necessity of the records now, particularly when I consider case management principles and Rule 2.

[148] Even though there are other documents and information that exist, Dr. F’s records are still a very important part of the factual matrix. And she will likely be called as an important witness at this trial. Given the numerous contested matters of fact about which Dr. F has relevant evidence, advance disclosure of her file will be important for the parties to be better prepared, for there to be effective cross-examinations, and for the Court to receive relevant evidence about the children’s best interests.

[149] Finally, making a production order for Dr. F’s files is a way to provide fairly important productions relevant to the issues, about which there are far fewer privacy concerns, while protecting the stronger privacy interest the children have in other records. This follows Boswell J.’s approach to a similar problem, in Child and Family Services for York Region v. L.H., 2013 ONSC 5622, [2013] O.J. No. 4188, which I describe below.

H. Analysis Respecting the Notes and Records of Catholic Family Services of Durham Under Rule 19(11)

(1) The Parties’ Positions

[150] At ¶ 10 of his May 19, 2022 affidavit, the father says he wants the records of the children’s counselling with CFSD, “…so that [he has] information on the reasoning for the counselling with them, the progress of such counselling, and information potentially on the wishes of the children to re-commence a relationship with [him].” At ¶ 25 of his affidavit sworn September 16, 2022, the father more generally says that all of the notes and records he seeks, not just those from CFSD, may very well substantiate his claim that the mother interfered with his relationship with the children and that any claim that the children do not have a good relationship with him, or that they never had a good relationship, is “likely directly solely due to the pressure and influence of [the mother]”. Once again, the mother, and the OCL rely on the concept of harm to the children, their views about disclosure, and broader policy concerns in resisting a production order respecting these records.

(2) Are the Records Likely Relevant to A Material Issue?

[151] Although in her Notice of Motion at the time, the mother asked for an order for individual counselling for the children in addition to reunification therapy, I repeat again that Fryer J. only ordered reunification therapy. Moreover, the interim report of the OCL dated April 18, 2018 only recommended individual counselling, if the reunification therapist thought it was necessary. And there is no evidence before the Court, at least not yet, that Dr. F ever recommended this.

[152] Yet it seems that after Dr. F’s process ended in the fall of 2019, the children were somehow put in individual counselling, without the matter returning to Court. It not even fully clear yet when this therapy began. In his affidavit of May 19, 2022, the father says that the mother has had the children attend at CFSD for “several years”. Later in his affidavit of September 16, 2022, the father says that the mother enrolled the children in counselling there in late 2019.

[153] The mother has not explained how the children came to participate in any services at CFSD, for how long, or what services they are receiving there. Nor has the OCL or CFSD itself explained this. But it is safe to assume that the mother did this, since there is no suggestion that the father did it.

[154] Even though I am told that the children now have the capacity to consent to ongoing counselling, how the children’s counselling at CFSD was established in the first place is relevant to the Court’s ultimate determination about decision-making. It may very well be that at the time the mother enrolled the children, she had the legal authority to do so by operation of section 20(4) of the Children’s Law Reform Act and I acknowledge that earlier, I indicated I was prepared to place some weight on the mother’s perspective at this stage of the case when deciding the father’s motion under section 20(5). By the same token, it may be determined that she was not so empowered. If a parent acted unilaterally or without the legal authority to do so, that is a relevant consideration in the eventual best interests’ analysis that will be undertaken at trial: see for example sections 24(3)(c), (h) and (i) of the Children’s Law Reform Act.

[155] Furthermore, the decision not to provide even a general summary of the services being provided through CFSD for this motion is both curious and problematic. At trial the Court will need to determine what the children’s needs are, how they are being met, and the parents’ abilities and willingness to meet those needs. To do that properly, the Court needs to know what services are in place. Knowing what is being provided is not the same as disclosing the contents of sessions. The mother could have and should have explained that, without violating the children’s privacy, and/or a limited consent could have been negotiated to have CFSD provide this.

[156] In regards to the contents of the records of any individual counselling sessions between a CFSD therapist and a child, once again the Court has been put in a very difficult position. The Court has been asked to decide the issue about whether to produce records, without being given the basic information I just referred to. I have been left to draw inferences about what services are being provided.

[157] That said, I am able to do so to a point, given what CFSD has said in its written material, including its general description of the services it provides. And I am prepared to assume at its highest, that the contents of the individual counselling records will have some likely relevance to material issues about to the parent-children relationships in this case. It only makes sense that the children have discussed the family dynamics with their therapists, having lived through this high conflict separation. But that does not end the analysis.

(3) Are the Records Privileged? And Would It Be Unfair For the Father to Go On With the Case, Without These Documents?

[158] I will address the issue of privilege and the Stavro factors for these records, together, as the considerations are overlapping.

[159] At ¶ 39 of M. (A.) v. Ryan, McLachlin J. wrote that Court may examine the documents, if necessary, to determine whether privilege should be accorded and if so, what conditions should attach. On the other hand, she also wrote that courts do not necessarily err, by proceeding on affidavit material that indicates the nature of the information and its expected relevance, either.

[160] As the outcome of the balancing exercise for these records was less immediately obvious than respecting Dr. F’s records, I considered whether to undertake a judicial examination of the CFSD records. But in considering this, I also acknowledge what L’Heureux-Dube J. wrote at ¶ 151 of R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, that even an order for production to the court is an invasion of privacy.

[161] And at ¶ 40 of Child and Family Services for York Region v. L.H., Boswell J. said this regarding a judicial vetting of the records:

A suggestion was made in argument that the Court ought to order production of the therapy records to the Court for the purpose of judicial vetting. The idea is that the Court would review the records to determine what, if anything, may be relevant and what, if anything, ought to be produced to LH. There is something to be said, of course, for the Court actually reviewing the records in dispute. It would certainly put the Court in the best position to know exactly what the records contain and whether they are relevant and ought to be produced. But it is important to note that a judicial vetting also involves an intrusion into the private therapeutic records of the children. It ought not to be lightly undertaken.

[162] In the result, I have decided against engaging in a judicial review of the CFSD records. There are other options. In M.(A.) v. Ryan, the Supreme Court specifically rejected an “all-or-nothing” approach to the production of health records, and privilege. Courts may permit production to the extent necessary to avoid an unjust result. 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.

[163] For the following reasons, I intend to make an order for partial production of the CFSD’s records. I am satisfied “on reasonable grounds that the interests at stake can be properly balanced without individual examination of each document”: see M. (A.) v. Ryan ¶ 39.

(i) Records Relating to the Circumstances Under Which This Counselling Was Put In Place, and A General Description of the Counselling Being Provided

[164] The production of information respecting the circumstances under which this counselling was put in place does not trample on the children’s privacy or other interests at stake. This has more to do with the relationship between the parents than it does with the children. Nor does the release of some general descriptive information about the services being provided through CFSD for these children, needed at trial for the reasons already expressed above.

[165] In regards to the Stavro factors, I observe again that there is an order for questioning in place, so these factual matters could have been differently explored short of this motion. But again, at this point, deferring the matter results in more delay. And even if discovery of this information from the mother is now sought, there may be more arguments about confidentiality, or questions from the father about the credibility of the answers she gives. It makes more sense to make a limited production order to head off these problems.

[166] So in addition to making a limited production order for certain CFSD records, to ensure that the Court at trial has sufficient information about the counselling services that are being provided to these children, I will also order CFSD to write a brief report or reports explaining the date that counselling started for each child, the purpose of counselling in general terms, the frequency of their attendance and written confirmation that counselling is ongoing (which I already understand to be the case).

[167] I rely on ¶ 32-37, 39 of M. (A.) v. Ryan as the authority to make such an Order for a report: see also Jackson v. Dixon, 2019 ONCJ 870 ¶ 45-47. The fact that this motion was on notice to CFSD means that the Court may make an Order compelling CFSD to write the report or reports, rather than merely requesting that it do so: see for example rule 14(3) of the Family Law Rules.

(ii) Records of the Children’s Individual Counselling Sessions

[168] The actual contents of any records involving the children’s individual counselling sessions are a different matter. There is no serious question that the first three prongs of the Wigmore test are met respecting these records. Even if the mother set up the counselling without the legal authority to do so, the first three confidentiality criteria are still met.

[169] In regards to the fourth prong of the test, I would rely on the very same factors already expressed elsewhere in this ruling. Briefly, these records concern two emotionally vulnerable children, who have had little contact with their father in years, who are in the midst of a high conflict separation, and who have reported family violence to their counsel.

[170] Under these circumstances, and given my understanding that their counselling is ongoing, I find that disclosure risks disrupting that ongoing therapeutic support that these children now have in place. Unlike Dr. F’s records, the concern about chilling effect respecting this kind of counselling is also engaged.

[171] I find the circumstances before me to be analogous to those before Boswell J. in Child and Family Services for York Region v. L.H. At ¶ 27-32, Boswell J. relied on the private nature of counselling, the chilling effect that disclosure may have on similar therapy in the future, and the extremely important, strong public interest in protecting and fostering counselling for children who experience high conflict separations.

[172] But then at ¶ 35, Boswell J. wrote that the real issue in the case before him, was the nature of the children’s relationship with the parent and the problems associated with it. And at ¶ 36, he noted that another judge had already ordered therapeutic access and it “failed miserably”. Just like I am doing with Dr. F’s notes and records, Bowsell J. went on to order production of the notes and records of the “psychological associate” who attempted to facilitate that access: see ¶44(ii), but not the subsequent individual counselling that the children were receiving.

[173] Finally, having regard to the Stavro factors applied to the contents of the records of any sessions with the children, there is another source of relevant information. It is not one that existed when the father first said he wanted to bring this motion, but it exists now.

[174] With reference to the father’s specific argument that these counselling records may contain information about the wishes of the children to re-commence a relationship with him, I note that when this case started back up in the spring, the OCL was not yet re-involved. As a result of the events that unfolded and my Order of April 27, 2022, the OCL now is.

[175] I am not saying that the presence of the OCL will always be an adequate substitute to the disclosure of records. Parents are entitled to challenge the OCL’s position and its presentation of the evidence. But in the totality of the circumstances of this case, I find the presence of the OCL to be another factor that tips the balance further against disclosure of these particular records.

[176] The children’s views and preferences will be ascertained by counsel and the clinician, and will be put before the Court, in context. In so doing, the OCL will canvass collateral information as part of its mandate. The Court has no reason at this point to be concerned that the experienced counsel who has been assigned, with a clinical assist, will do anything other than a thorough job.

I. Analysis Regarding the Notes and Records of Dr. B and the Shoniker Clinic Under Rule 19(11) of the [Family Law Rules](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html)

(1) The Parties’ Positions

[177] That leaves the notes and records pertaining to E.’s medical treatment from Dr. B and the Shoniker Clinic.

[178] Like respecting the counselling at CFSD, I have been given only some information respecting what services are being provided to E. That information mostly comes from the father, who at the same time says he has “no information nor specifics regarding treatment”.

[179] While they have not elaborated further about the services being provided for E., nor did the mother (nor the OCL) refute specifically the father’s statements that E. is receiving “hormone therapy” and counselling. In fact it is agreed that some kind of medical service is being provided. The mother has said that the child receives “medical and professional services” under the advice of Dr. B. At paragraph 13 of her factum, in the context of expressing her concern that the father would likely use any records released to “impede or interrupt her treatment”, the mother said that E. is “receiving medical treatment with regards to her gender transition.” The OCL has made a general statement about gender transition in Ms. Sharma’s affidavit of September 7, 2022, too.

[180] Whatever the contents of the records that exist may be, the father maintains that “as a parent, such information is highly relevant” to him.

[181] By contrast, in her affidavit of June 3, 2022, the mother says that the child is on a “gender journey”. The mother says she supports this. The mother says that the child first mentioned the gender journey at the age of five, and the child has been on this journey ever since. The mother says that the father has always been aware of the journey, but was opposed to it.

[182] The mother says the father is prejudiced and he is “anti-trans”. She says he has been vocal not only to the mother, but to health professionals that he will not allow the child to complete the gender journey. Again, the mother believes that the father’s “anti-trans” views contributed to the children being in an unsafe environment, and eventually led him to assaulting the children.

[183] More was then revealed by the father himself during submissions. At first, counsel said that the father only wanted to know about the well-being of his child, and the particular course of treatment. He said that the father is “concerned that he is completely in the dark as to what’s going on”. But then, in response to questions from the Court about whether the father wanted to take further steps if given the records (which is what the mother has been maintaining), the father asked his counsel to ask the Court for a break. Upon resuming, counsel submitted the following:

(a) The father wants information relating to both children and especially with respect to E.;

(b) The father did not provide consent for any course of treatment or therapy with respect to E.; and

(c) “[The father] may, key word is may, take steps upon review of the notes and records to try to interfere or to try to block the course of treatment with respect to [E.].”

[184] The father himself then said the following:

Yeah, my simple point being I’m still a parent that has the right to decision making on my children’s lives. The mother won’t even tell me where they live right now. I know nothing about that. She has court orders on her to have them in counselling, she pulled them. She won’t take the stand in regards to questioning her parenting practices and no one will tell me zero about my children. They’ve been taken places without my consent including medical treatments. Everything, everything, 100 percent I know nothing about my children right now. I don’t understand why this is not a criminal matter, if not a civil matter if not I don’t understand what’s going on here in this country, what this system, maybe somebody can help me out and understand.

(2) Are the Records Likely Relevant to A Material Issue?

[185] Having dismissed the father’s motion for access to these records under section 20(5) of the Children’s Law Reform Act, the only remaining way that the father can get access to the records, is if they have some relevance to the issues in this case.

[186] Except perhaps for records of discussions that E. might have had in any counselling about the extent to which his parents have differently supported her gender journey, the existence of which I would be speculating about, there is no basis for me to conclude that there is anything in the records relevant to the alienation, or to the relationship arguments that the father intends to pursue at trial.

[187] Moreover, I am aware of no reported case in Ontario, in which a parent’s request to restrain a teenage child’s gender affirming treatment has been considered. That said, there are three British Columbia decisions, albeit decided under different statutory regimes. None of those cases have resolved in favour of the parent seeking to intervene.

[188] In A.B. v. C.D. and E.F., 2019 BCSC 254 and 2019 BSCS 604; aff’d in part 2020 BCCA 11, a 14 year old’s decision to engage in treatment prevailed over the opposition of a parent. In A.M. v. Dr. F., 2021 BCSC 32, the Court struck a parent’s claim to interfere in a 17.5 year old’s gender affirming care and in so doing, dismissed a request for access to their medical records. And in G.M.S. v. Dr. Z, 2021 BCSC 1915, the Court dismissed a parent’s application for an injunction to restrain a doctor from performing surgery on her child, although the child was already 18 years old by the time the application was heard.

[189] Even if I assume, without needing to decide, that there is some scope for a parent to take steps in Ontario, whether under the Children’s Law Reform Act, the Divorce Act or on some other legal basis, notwithstanding that the consent provisions of the HCCA might provide otherwise[^8], at this point I have been given no information whatsoever that E. is incapable of consenting to whatever treatment that is being administered. And as it is presently constituted, this case is not about whether E. should be receiving the medical treatment being administered. Nowhere has the father pleaded a claim of this nature.

[190] Given the potential of harm to this child, the father should not be allowed to proceed in a haphazard fashion like this, without even having a specific pleading before the Court. And any treating health care providers may very well need to be put on notice, too. In saying this, I refer in particular to the British Columbia Court of Appeal’s comments at ¶ 90 of A.B. v. C.D., 2020 BCCA 11. The Court noted that the judge below had made some procedural errors in deciding the case at first instance. In so noting, the Court said the following about the context in which those errors were made:

… [the judge below was] faced with a very daunting task. He had multiple applications and many counsel before him. He laboured within a compressed timeframe on a matter of great personal significance to the parties involved. And the hearing progressed, as the transcript indicates, in a haphazard fashion without counsel for the principal parties sufficiently clarifying the precise issues before him.”

(3) Are the Records Privileged?

[191] I also find E.’s records of medical treatment to be privileged. There is no serious debate that the first three prongs of the Wigmore test would be met with respect to these records. Regarding the fourth prong of the test, I repeat and rely upon the same analysis that I applied to the contents of the children’s individual counselling records at CFSD, here too.

[192] In addition, although written in a different factual context at ¶ 30 of M. (A.) v. Ryan, McLachlin J. said the following:

As noted, the common law must develop in a way that reflects emerging Charter values. It follows that the factors balanced under the fourth part of the test for privilege should be updated to reflect relevant Charter values. One such value is the interest affirmed by s. 8 of the Charter of each person in privacy. Another is the right of every person embodied in s. 15 of the Charter to equal treatment and benefit of the law. A rule of privilege which fails to protect confidential doctor/patient communications in the context of an action arising out of sexual assault perpetuates the disadvantage felt by victims of sexual assault, often women. The intimate nature of sexual assault heightens the privacy concerns of the victim and may increase, if automatic disclosure is the rule, the difficulty of obtaining redress for the wrong. The victim of a sexual assault is thus placed in a disadvantaged position as compared with the victim of a different wrong. The result may be that the victim of sexual assault does not obtain the equal benefit of the law to which s. 15 of the Charter entitles her. She is doubly victimized, initially by the sexual assault and later by the price she must pay to claim redress -- redress which in some cases may be part of her program of therapy. These are factors which may properly be considered in determining the interests served by an order for protection from disclosure of confidential patient-psychiatrist communications in sexual assault cases

[193] McLachlin J.’s comments are easily portable into this context. Courts have recognized that children are already among the most vulnerable members of society. When they are the subject of parenting litigation, they are at their most vulnerable: see Children’s Lawyer for Ontario v. Ontario (Information and Privacy Commissioner) ¶ 64.

[194] Add to that E.’s issues with gender identity. The equality provision of section 15(1) of the Canadian Charter of Rights and Freedoms provides that every individual to equal treatment and benefit of the law. It has been applied on the basis of sex in circumstances involving gender identity: see C.F. v. Alberta (Vital Statistics), 2014 ABQB 237 ¶ 36-39. In this case before me, there is specific evidence that E. has been subjected to bullying. Even if that specific evidence was not put before the Court, it is also known to this Court that trans and gender nonconforming persons experience discrimination and even violence: see again C.F. v. Alberta (Vital Statistics) ¶ 46. The rights to liberty and security of the person in section 7 encompass personal autonomy, dignity and privacy respecting decisions about one’s own body: see A.C. v. Manitoba, 2009 SCC 30 ¶ 100.

[195] Outside the Charter, both Ontario and Canada have made policy choices to support and protect persons experiencing issues of gender identity. By way of some examples only, both levels of government prohibit discrimination based on gender identity and gender expression in their human rights legislation: see for example section 1 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended; see section 3(1) of the Canadian Human Rights Act, R.S.C. 1985 c. H-6 as amended.

[196] Ontario’s Education Act, R.S.O. 1990 c. E.2, as amended, includes, as part of the definition of bullying, behaviour that occurs in a context of a real or perceived power imbalance based on factors that include gender identity and gender expression: see the definition of “bullying” in section 1(1). Under section 169.1(1), school boards are required to promote a school climate that is inclusive and accepting of all pupils, including pupils of any gender identity or gender expression. Elsewhere in the legislation, various behaviours require the suspension of a student where that behaviour was motivated by bias, prejudice or hate based on enumerated grounds, including gender identity or gender expression: see section 310(1)(7.2).

[197] Both levels of government have enacted legislation containing prohibitions against conversion therapy: see section 29.1 of the Regulated Health Professionals Act, 1991, S.O. 1991, c. 18; see also example Bill C-4, S.C. 2021, c. 24. Ontario did this years ago. The federal Act is brand new, having come into force earlier this year. It enacts new provisions into the Criminal Code. The preamble to the federal Bill recognizes that myths and stereotypes about sexual orientation, gender identity and gender expression exist, including the myth that heterosexuality, cisgender gender identity, and gender expression that conforms to the sex assigned to a person at birth are to be preferred over other sexual orientations, gender identities and gender expressions.

[198] Counsel for the mother submitted that case law exists, that provides that a parent’s interference in a child’s gender affirming treatment is a child protection issue. While counsel did not have the specific case or cases about this readily available, and while I was unable to find them myself, I do note the preamble to the Child, Youth and Family Services Act, 2017, S.O. 2017 c. 14, Schedule 1, as amended.

[199] The preamble provides that among other things, services provided to children and families should respect their diversity and the principle of inclusion, consistent with the Section 1(2)(3.)(iii.) includes as an additional purpose of the legislation, the recognition that services to children and young persons should be provided in a manner that takes into account a child’s or young person’s gender identity and expression, so long as it is consistent with the best interests, protection and well-being of a child. Section 3 of the legislation contains a number of rights of children to participate in choices about services that affect them.

[200] The Ministry of Children, Community and Social Services’ Guide to Serving LGBT2SQ children and youth in the child welfare system provides that when conducting safety and risk assessments for children, social workers may wish to consider a parent’s attitude or response towards a child’s gender identity. It specifically states that being prevented from accessing gender-affirming health care and transition support, among other parental conduct, is a factor to consider in the determination of whether a child is risk.

[201] As McLachlin J. said in M.(A.) v. Ryan, Charter values are “factors which may properly be considered in determining the interests served by an order for protection from disclosure of confidential communications”. See also this Court’s commentary at ¶ 26-28 of S.S. v. R.S., 2021 ONSC 2137. The exercise of the Court’s discretion to make disclosure orders should be exercised in a way that is consistent with these values.

(4) Would It Be Unfair For the Father to Go On With the Case, Without These Documents?

[202] Even if I had not found that the records were privileged, I would still not order their production according to the Stavro factors.

[203] Although the father did not frame the question of “likely relevance” of these records in this way, it may be, like with respect to the CFSD records, that the trial judge will need to have some understanding of what E.’s needs are relating to her gender identity, in order to consider each parent’s ability and willingness to meet E.’s needs. The mother has already placed in issue that she is the parent with a superior ability to handle these issues.

[204] Like with CFSD, I considered whether to order a limited report from E.’s doctor setting out in a general way the nature of the service being provided. But having heard the submissions, I am left with serious reservations about even doing that. In view of this child’s vulnerability, the extremely heightened privacy interests in these particular records, the broader implications of a disclosure order of this nature on others, and what the father specifically said that he might do with the information, I will not even order a limited report.

[205] If the issue of which party is better able to parent a child experiencing issues of gender identity remains a live issue at trial, the parties will have to determine how they will call that evidence in a way that is respectful of E. Information as between the parents may be obtained at the questioning. If a physician is called to testify as sometimes happens in cases of this nature, it will be up to the trial judge to determine the scope of the testimony. Perhaps the child might agree, with the guidance of her counsel, to providing some limited additional information that might avoid there being any gaps in the needed evidence at trial.

[206] But this will have to be dealt with in due course. In the context of this case, it is my hope that this will be dealt with by way of negotiation, rather than further litigation.

(5) Conclusions Respecting the Father’s Request for Records Relating to E.’s Gender Affirming Care and Other Comments from the Court

[207] I accept that a parent may have concerns or worries about a child’s gender identity. But in this case, the father is too invested in the conflict with the mother, and in establishing that the mother is to blame for a number of matters, to have proper perspective about how what he is asking the Court to order impacts E.

[208] I have serious concerns about the wisdom of the father’s pursuit of these records. Quite apart from the fact that the father has had no relationship with the children for three years, taking this potentially aggressive approach to E.’s gender identity is counter-productive to the ultimate goal that he intends to pursue, being the repair of his relationship. The father risks doing more damage to his relationship with not only E., but also with B., whom the OCL has described as caring and perhaps even protective of E.

[209] The father may also be undermining his chance of success respecting the other parenting issues, for example his claim for joint decision-making. Of the few reported cases that exist, courts generally find that the parent who is best able to act in a supportive manner is acting in the child’s best interests. See for example: Davies v. Murdock, 2017 ONSC 4763 ¶ 190; Ireland v. Ireland, 2007 ONCJ 11 ¶ 11; JPK v. SE, 2017 ONCJ 306 ¶ 184, 185.

[210] The father could have, before making this particular request on this motion, consulted with an expert to educate himself about the issues facing his child and to get some professional medical advice about how to best parent her. There is no evidence that he has done so. By announcing that he may be wanting to block the treatment, without providing any evidence as to the steps he took to learn about the issues the child is experiencing in the first place and how they should be addressed, the father showed poor judgment.

[211] While it may not be a satisfactory answer to the father, I would also observe that if the child’s treating health care providers had reasonable grounds to suspect a protection concern, then they have a duty to report it to the Society: see section 125 of the Child, Youth and Family Services Act, 2017, S.O. 2017 c. 14, Schedule 1. No one has brought to my attention that this has occurred, either.

[212] Going forward, if any information about this at all is to be released, it would be extremely important that a parent’s use of that information be handled with the utmost care and sensitivity. A vulnerable child like E. may easily experience psychological harm if there were any misuse of the records. I wish to caution the parties that the misuse of such information could amount to family violence. Section 18(2) of the Children’s Law Reform Act[^9] makes it clear that conduct need not constitute a criminal offence to be family violence. The section includes a non-exhaustive list of nine kinds of behaviour that constitute family violence. Physical abuse, psychological abuse, threats and harassment, all of which are in issue in this case, are amongst that list in section 18(2). But as Tellier J. found at ¶ 27 of McLellan v. Birbilis, 2021 ONSC 7084, the Court is not precluded from finding that other conduct fits within its meaning, too.

J. Whether There Should Be A Confidentiality Order In this Case?

[213] The concept of privacy and confidentiality has factored heavily in this motion. Based on my review of the BC decisions in particular, there has been some public interest in other cases involving conflicts between parents and children over a child’s gender identity. Yet none of the parties or the OCL have raised whether there should be a confidentiality order in this case, despite the children’s vulnerability and some of the other interests at stake.

[214] The Court intends to make a confidentiality order under section 70 of the Children’s Law Reform Act on its own initiative, subject to later submissions about whether it should stand, or be modified. This can be addressed when the matter returns to Court next.

PART IV: ORDER

[215] I make the following Orders:

(a) On a temporary basis, the father’s motion for an order under section 20(5) of the Children’s Law Reform Act requiring Dr. F, Catholic Family Services Durham, Dr. B and the Scarborough Health Network, Centenary Site, Child & Adolescent/Shoniker Clinic to produce their notes and records concerning the children, B. and E., is dismissed;

(b) Pursuant to rule 19(11) of the Family Law Rules:

(1) Dr. F shall produce her entire file relating to any services provided for this family as a result of the Order of Fryer J. dated October 28, 2019;

(2) Catholic Family Services of Durham shall produce documentation in its possession respecting the children’s enrollment in counselling, respecting any consents that a parent may have given on either child’s behalf, and this also includes any documentation that a parent completed respecting their legal authority to enroll the children in counselling;

(3) The Executive Director of Catholic Family Services of Durham, or her designate(s) having the requisite knowledge of this family needed to undertake this task, shall write a brief report or reports explaining the date that counselling started for each child, the purpose of counselling in general terms, the frequency of the children’s attendance and written confirmation that counselling is ongoing;

(4) The father’s motion for production of any other notes and records of Catholic Family Services Durham, Dr. B and the Scarborough Health Network, Centenary Site, Child & Adolescent/Shoniker Clinic, is dismissed;

(c) On a temporary without prejudice basis, subject to further Order of this Court:

(1) The title of proceedings shall be amended to refer to the Applicant as L.S., the Respondent father as B.S., and the children as B. and E.;

(2) Only the Court and its employees, the parties, their counsel, counsel for the Office of the Children’s Lawyer and Ms. Sharma shall have access to the Court file;

(3) No person shall publish or make public information that has the effect of identifying either parent or the children in this case;

(4) Any issued Orders may refer to the parties and the children by their names, as these Orders may be needed to provide to others, for example outside professionals or schools involved with the children; and

(5) The Court’s published judgments are not captured by these non-publication provisions, but every effort shall be made to anonymize the parties and the children;

(d) There shall be a Settlement Conference before me on February 10, 2023 @ 11:30 AM, to proceed in person. If counsel are not available on that date and time, then I should be contacted immediately through the judicial assistant karen.hamilton@ontario.ca and I will accommodate a reasonable alternative date proximate in time;

(e) I urge the parties to settle costs of this motion. If they are unable to do so, costs may be argued orally on the next date, before the commencement of the Settlement Conference. The parties shall file Bills of Costs, any Offers to Settle, and any case law that either wishes to rely upon;

(f) I ask the parties to be prepared to address the Confidentiality Order on the return date as well; and

(g) I have not been asked to make any other Orders in the nature of case management, so I will not do so. However, for the Settlement Conference to be meaningful, I urge the parties to complete the questioning, exchange the remaining financial disclosure they need to deal with the other claims, take steps, such as signing joint directions for the release of police and CAS records, and reconsider the Wagg motion. If any directions are sought respecting these matters, or if the parties need a motion date to deal with the Wagg motion, I should be contacted before the return date.

[216] I wish to thank counsel for their assistance with this matter. I also wish to thank counsel for CFSD for her submissions respecting the PHIPA.

Justice Alex Finlayson

Released: October 12, 2022

COURT FILE NO.: FC-17-1763

DATE: 20221012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

L.S.

Applicant Mother

– and –

B.S.

Respondent Father

REASONS FOR DECISION

Justice Alex Finlayson

Released: October 12, 2022

[^1]: While reunification therapy was ordered on consent, the parties did not agree to who would provide the therapy. The Court had to select the therapist.

[^2]: The parents have each claimed relief under both the Children’s Law Reform Act and the Divorce Act in their pleadings. The issues raised could be decided under either statute. But because the parents are still married and as the father has pursued the disclosure under provincial legislation and the Rules, I will decide the motion on those bases. The result would not differ had he claimed relief under the Divorce Act.

[^3]: During the motion, the mother orally said there was no contract, but that they completed intake documents.

[^4]: Again, no update was done. I do not know why, given that the clinician had prepared an interim rather than a final report, and had recommended one.

[^5]: The parties also agreed again to my continuing to case manage this case at the end of submissions respecting this motion on September 20, 2022. Their consent was not strictly necessary. Rule 39 provides for case management in the Family Court. A case management judge may hear motions after having conducted a case conference. I did not hear any issue in a Settlement Conference that would have disqualified me: see rule 17(24). Rule 39(9) is the “gold standard” respecting case management: see D.G. v. A.F., 2015 ONCA 290 ¶12.

[^6]: That said, there is at least one decision which found that a reunification program was neither “treatment” under the HCCA, nor was the person providing it a “health practitioner” for the purposes of that reunification program: see E.T. v. L.D., 2017 ONSC 4870 ¶60. No one argued that this decision might apply to the services Dr. F provided in this case before me, or how, if at all, that might impact the applicability of the PHIPA to her records.

[^7]: There are affidavits of service in the file which reveal that special service effected on each of the non-parties.

[^8]: See for example A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30; see again for example A.M. v. C.H. ¶ 55-73.

[^9]: See also the definition of “family violence” in section 2(1) of the Divorce Act.