Ontario Superior Court of Justice
Court File No.: FS-23-00037269-0000
Date: 2025-07-21
Between:
Morgan MacDougall-Milne, Applicant
and
Leigh Alexander Smith, Respondent
Applicant Counsel: Eric Sadvari
Respondent: Self-represented
Heard: July 15, 2025
Reasons for Decision
Mathen, J.
Introduction
[1] This is a long motion in a family law case. The Respondent father, Leigh, believes that the Applicant mother, Morgan, has dementia. Leigh seeks medical disclosure from Morgan as well as a parenting assessment under section 30 of the Children’s Law Reform Act, RSO 1990, c C.12. For her part, Morgan seeks to dispense with Leigh’s consent so that she can: (a) obtain a passport for their daughter, (b) travel with the daughter to Las Vegas, (c) enroll the daughter in French Immersion in September, and (d) obtain Leigh’s medical and the parties’ marital counselling records.
[2] Leigh and Morgan, who are both in their forties, cohabited for a few years, and separated in 2023. The parties’ three-year-old daughter, L., lives with each of them under an interim 50-50 parenting schedule consented to in September 2023.
[3] Leigh and Morgan have a ten-day trial starting January 26, 2026. Among other things, they each seek primary parenting of L.
[4] At a Trial Management Conference in February 2025, Justice Hood granted leave for the motions described in paragraph 1 of these reasons. Hood J. directed that the motions be heard in a single day. In March 2025, the parties executed a consent order for times to exchange and file materials.
[5] In June, Leigh began representing himself.
[6] At the hearing before me, Leigh sought an adjournment, as well as leave to bring additional motions: a motion for an unredacted CAS file, and a motion for what he calls “medical transparency”. Since, among other things, it would not be possible to have another long motion without jeopardizing the parties’ trial date, I declined to adjourn the hearing. In addition, given that (a) the TSEF requires leave from Justice Hood or the family team leads for additional motions, (b) Leigh’s request for an unredacted CAS file is not opposed by opposing counsel, and (c) Leigh’s request for medical transparency is duplicative of his original notice of motion, I did not grant Leigh leave to bring additional motions.
[7] Leigh was concerned about proceeding without a lawyer. However, he acknowledged that he decided to represent himself because he was concerned about the effect, on L.’s future, of spending so much money on this case. Leigh filed several sworn affidavits and other material for the long motion, and, as recently as June 27th, sought an extension of time to file his materials. Leigh made extensive arguments on all the issues in this hearing.
Issues and Brief Conclusion
[8] The issues for decision are:
a. Is there any evidence that Morgan currently suffers from dementia?
b. Should Morgan be ordered to disclose her medical history, including whether she underwent a dementia test in 2023?
c. Should the Court order a section 30 assessment?
d. Should the Court dispense with Leigh’s consent so that Morgan can obtain a passport for L.?
e. Can Morgan travel with L. to Las Vegas in August?
f. Should the Court dispense with Leigh’s consent for L. to be enrolled in French Immersion this September?
g. Should Morgan be able to obtain:
i. The full records from Dr. Miller, the parties’ marital counsellor; and
ii. Leigh’s medical history from March 2020 on, held by his physician, Dr. Thomas?
[9] I decline to award Leigh his requested relief. I am not persuaded that Morgan currently suffers from any form of dementia. I am not persuaded that it is just for Morgan to have to disclose her medical history. I find no evidence that Morgan currently lacks the capacity to parent L. as she has been doing since L.’s birth and, in particular, since the parties’ shared parenting arrangement in September 2023. For that reason, I also decline to order a section 30 assessment.
[10] I have determined that Morgan’s requests shall be granted:
a. Based in part on my findings with respect to dementia, there is no evidence that L. should not have a passport, or that it is contrary to her best interests to travel to Las Vegas with her mother.
b. It is in L.’s best interests to be enrolled in French Immersion.
c. Because Leigh signed the Trial Scheduling Endorsement Form undertaking to authorize the release of the medical and counselling records, he must abide by it. The undertaking holds even if, as Leigh stated at the hearing, he no longer intends to call Dr. Miller or Dr. Thomas as witnesses.
Analysis
Issue One: Is there any evidence that Morgan currently suffers from dementia?
[11] The following analysis contains my findings of fact.
[12] While neither party has raised the question of whether Morgan has dementia as an issue for relief, it is the core question in this dispute. Therefore, I will address it on its own terms.
[13] Leigh is convinced that Morgan suffers from dementia – specifically, frontotemporal dementia. He relies on the following to support his belief:
a. Leigh says that Morgan told him that three of her family members, including her father, suffered from FTD or other form of dementia. Leigh says her family history makes Morgan genetically predisposed to developing FTD;
b. Leigh described several incidents which, he says, indicate a loss of executive function and impaired judgment – both symptoms of FTD. The incidents include:
i. Morgan mismanaging L.’s allergies including failing to ensure that L. had an EpiPen at daycare;
ii. Morgan interacting inappropriately with L’s daycare provider;
iii. Morgan not noticing that L.’s water bottle was moldy, and reacting inappropriately when Leigh pointed this out to her;
iv. Morgan deciding to separate and file a family law claim after Leigh tried to get her to seek medical confirmation of whether she has FTD;
v. Morgan filling out an emergency allergy protocol that did not include alternate emergency contacts for Leigh;
vi. Morgan reacting inappropriately at a June 2025 visit to the allergist, namely, rocking L. back and forth on her lap and repeatedly telling Leigh “Fuck you.”
[14] Several of the above incidents occurred prior to the parties’ 2023 separation. Leigh says he has other examples, but he also acknowledges that the parties have had limited contact since separation – indeed, they only seem to meet at medical appointments.
[15] For the following reasons, I am not persuaded that there is any evidence that Morgan currently has frontotemporal or any other form of dementia.
[16] First, even if Leigh’s account of Morgan’s family history is accurate, that is not evidence that Morgan is currently suffering from dementia. I am prepared to find on a balance of probabilities that Morgan’s father suffered from dementia, but there is no evidence that it was FTD. Morgan appears to have told people that two other relatives may have suffered from dementia, but their diagnoses are not known. In any event, there is no evidence before the court that just because Morgan’s relatives suffered from dementia, including FTD, she suffers from any form of dementia now.
[17] Second, assuming all of Leigh’s observations noted at subparagraph 13b of these reasons are accurate, they are not evidence of dementia. Viewed either separately, or together, Leigh's examples are equally probative of many other things including: the parties’ troubled relationship; a difference of opinion over how to manage a child’s allergy; and a difficult moment with a service provider.
[18] Third, Morgan deposes that she does not suffer from dementia.
[19] Fourth, Morgan’s affidavit includes an expert medical report, prepared by Dr. Joel Sadavoy and dated March 22, 2025, which concludes that Morgan does not exhibit any signs of dementia. Dr. Sadavoy is a full professor of psychiatry at the University of Toronto and a staff psychiatrist at Sinai Health. He acknowledged his duty to provide a “fair, balanced, unbiased opinion” in his areas of expertise.
[20] I am satisfied that Dr. Sadavoy is competent to provide a medical opinion on whether Leigh displays symptoms of dementia.
[21] Leigh does not contest Dr. Sadavoy’s qualifications, but he raised other concerns including that Dr. Sadavoy’s assessment did not include a review of Morgan’s medical file, and did not specifically use the term “frontotemporal dementia”. Leigh says that a test for frontotemporal dementia would be different from the test that Dr. Sadavoy described administering to Morgan.
[22] I am not persuaded that Leigh’s concerns justify rejecting Dr. Sadavoy’s report outright. Leigh is not qualified to opine on the content of Dr. Sadavoy’s report or the testing that Dr. Sadavoy performed. In addition, while the report does not mention frontotemporal dementia, Dr. Sadavoy says that dementia is an “umbrella term” for major disorders that cause the symptoms of dementia which he classifies into six domains. And, given the lack of other evidence that Morgan has dementia, I am not persuaded that Dr. Sadavoy’s observations of Morgan are diminished by the fact that he did not review Morgan’s medical record.
[23] I acknowledge the limitations on accepting Dr. Sadavoy’s evidence in a context where he is not subject to cross-examination. Nevertheless, I find that I can consider whether the report adds weight to Morgan’s own sworn statement. The recent date of the report is also relevant to whether, on a balance of probabilities, Morgan currently suffers from dementia.
[24] Fifth, and finally, having considered the statements and arguments of both parties, I find it more likely than not that Leigh’s notion that Morgan has dementia powerfully influences how Leigh interprets facts. During the hearing, Leigh resisted any evidence tending to show that Morgan does not have dementia – such as her continued employment as a lawyer for the Government of Canada, and her shared parenting of L. for the last two years. I find that Leigh lacks insight into his fixation on Morgan’s health and, specifically, on whether she has dementia.
[25] Therefore, there is no evidence before the court that Morgan currently suffers from dementia.
Issue Two: Should Morgan be ordered to disclose her medical history, including whether she underwent a dementia test in 2023?
[26] I find that there is insufficient basis to order Morgan to make the kind of medical disclosure that Leigh requests.
[27] In his original Notice of Motion filed in March, Leigh sought, among other things:
a. Disclosure of any clinical notes and records from any medical professionals consulted by Morgan with respect to any neurological issues, including genetic testing and whether any testing has been recommended to her;
b. In the alternative, a letter from Morgan’s family doctor summarizing the disclosure requested as it pertains to any neurological issues.
[28] In his support of the above requests, Leigh argues that:
a. At a previous conference, the parties agreed to “mutual mental health assessments”;
b. Morgan told and/or texted Leigh that she had been referred for a dementia test in 2023, and Leigh believes that one was performed;
c. Morgan’s medical file with respect to neurological issues bears directly on L.’s safety; and
d. Morgan’s refusal to disclose her file is itself cause for concern.
[29] I accept that after a conference the parties agreed to mutual mental assessments. For the purposes of analysis I will assume that Morgan did tell Leigh that she had been referred for a dementia test, and I will also assume that a test was done.
[30] Nevertheless, I find that it would be inappropriate to order the disclosure Leigh seeks.
[31] First, while the parties may have agreed to mutual mental health assessments, I am satisfied that they were unable to agree how the assessments would be conducted. In any event, agreeing to a mental health assessment does not waive privilege over one’s medical file. In other words, the existence of such an agreement is irrelevant to the question of disclosure before the court.
[32] Second, even if Morgan was previously assessed for dementia, she is not by virtue of that fact alone compelled to disclose her test results to Leigh.
[33] To understand why, one must consider the standard under which the court may order disclosure of a person’s medical file. Such disclosure must be relevant, proportional and not protected by privilege.
[34] While family law proceedings do require disclosure of highly personal information, when it deals with something as sensitive as medical information the court must balance a person’s right to privacy against the interest in “pursuing the truth to make an appropriate decision in the best interests of the child.” (Sobieraj v. Karpenko, 2024 ONSC 2874, para 22).
[35] Even if Morgan had dementia, there is no reliable evidence before the court that, currently, she exhibits any symptoms of it such that she cannot parent L. appropriately and safely. The parties’ trial is scheduled for six months from now. There is no evidence before the court of how a dementia diagnosis might manifest in the near term. Leigh expresses tremendous fear about such a diagnosis, but that fear alone is not a reason for this court to act.
[36] In any event, I am not persuaded on a balance of probabilities that Morgan is currently suffering from dementia.
[37] Moreover, I find that Morgan’s reluctance to disclose her private information to Leigh is reasonable. In her affidavit, Morgan states that she has felt under psychological attack from Leigh for years. She believes that Leigh’s insistence that she has dementia is a form of abuse. She does not believe that any level of disclosure will satisfy Leigh.
[38] While I decline to make a finding about whether Leigh’s preoccupation with Morgan’s mental health is abusive, I agree that Leigh may well not be satisfied even with the disclosure that he seeks. At the hearing, Leigh acknowledged that he would need evidence of very specific tests having been done on Morgan, such as an MRI. At the same time, Leigh says, FTD is not easily diagnosed even in its middle stages. I find it more likely than not that the only result Leigh will accept is a medical diagnosis that Morgan does have FTD.
[39] Taking all of the foregoing into account, I find that Leigh’s requested disclosure is not proportionate. Given that finding, it is not necessary to consider whether Morgan’s medical file is privileged. For completeness, however, I also find that it is. Applying the four-fold Wigmore test from M. (A.) v. Ryan, I find that:
a. The requested communications originate in a confidence, namely, discussions between Morgan and her doctor or doctors.
b. The confidence is essential to the health care relationship.
c. The relationship between Morgan and her health care providers should be “sedulously fostered”.
d. Because the information Leigh seeks has at most tangential relevance to the issues to be decided, the interests served by protecting Morgan’s confidential information outweigh the interests in getting at the truth. Borrowing from Bontes v. Bontes, 2024 ONSC 3692, para 16, I find that Leigh’s allegations supporting the disclosure are both unsubstantiated, and rebutted by Morgan’s affidavit.
[40] Therefore, I dismiss Leigh’s request that Morgan disclose any part of her medical file to him, or that her doctor prepare a summary of the same.
Issue Three: Should the Court order a section 30 assessment?
[41] Given the lack of evidence that Morgan currently is unable to parent L., it would be inappropriate to order a section 30 parenting assessment.
[42] Section 30 of the CLRA permits the court to order a parenting assessment. Such assessments are not routine: Glick v. Cale, 2013 ONSC 893.
[43] Leigh bears the burden to show that a section 30 assessment is appropriate. I find that he has not done so because:
a. Leigh’s request for a section 30 assessment is inextricably linked to his belief that Morgan currently suffers from dementia. I have already found that claim to be unsupported by the evidence.
b. At the hearing, Leigh made it clear that he wants a section 30 assessment to obtain a third party’s view of what is the best outcome in this case. That is the trial judge’s role.
c. Leigh has not provided the name of an assessor who has consented to act, which is required under section 30(4).
d. At the hearing, Leigh suggested that an assessment could provide confirmatory evidence of Morgan’s dementia. That is not an appropriate use of section 30.
e. Morgan is currently parenting L. on an equal basis. On the long motion before me, Leigh does not seek to change that arrangement. He does ask for primary parenting in his answer to Morgan's application.
f. Leigh raised a concern that CAS’s decision to not verify his complaints had much of the information redacted. While it is unclear why the CAS issued a redacted version of the file to the parties, I am satisfied that most of the redactions concern the intake that Leigh himself provided to CAS. I agree with Morgan’s counsel that Leigh cannot use a complaint he made to CAS, which CAS did not verify, as a reason for a section 30 assessment.
g. I do not accept as reliable Leigh’s concerns about Morgan’s alleged condition or her parenting.
[44] Therefore, Leigh’s request for a section 30 parenting assessment of Morgan is dismissed.
Issue Four: Should the Court dispense with Leigh’s consent so that Morgan can obtain a passport for L.?
[45] I find that Morgan’s request that L. obtain a passport is reasonable, and that Leigh’s objections to that request are unreasonable. Consequently, Leigh’s consent for a passport shall be dispensed with.
[46] While Leigh does not object to L. getting a passport eventually, he does object to her getting one now, because a passport will facilitate travel. Leigh opposes any overnight travel for Morgan and L. because of his concerns about Morgan’s alleged dementia.
[47] As I have found no evidence that Morgan either has dementia, or is unable to parent L., Leigh’s objections to the passport are unfounded.
[48] L. is entitled to a passport.
[49] Morgan’s request is therefore granted.
Issue Five: Can Morgan travel with L. to Las Vegas in August?
[50] Notwithstanding that specific travel was not canvassed during the Trial Management Conference, I will order that Leigh’s consent for Morgan to take a trip with L. to Las Vegas in August be dispensed with.
[51] Morgan deposes that she wants to take L. to a friend’s wedding in Las Vegas over the weekend of August 1, 2025.
[52] I am satisfied that the wedding was not known at the time of the Trial Management Conference in February. Travel, however, is the primary purpose of obtaining a passport. Furthermore, a travel motion is the type of interlocutory relief for which this court routinely grants leave after parties have agreed to a trial date. Therefore, I find it appropriate to consider Morgan’s request.
[53] Absent any concerns about Morgan’s mental capacity, there is no evidence to show that such a trip would be harmful to L. Leigh acknowledges that travel, in general, would benefit L.
[54] When considering a travel request, the question is whether the benefits of the travel outweigh the risks: Verbanec v. Dawson, 2019 ONSC 4473. For the following reasons, I find that here, they do:
a. Morgan’s proposed trip will occur during her parenting time.
b. There is no evidence that Las Vegas is an unsafe location.
c. The evidence suggests that L. will enjoy the trip.
d. The trip is relatively short, and it involves people that Morgan and L. know.
e. As I have rejected the allegation that Morgan currently suffers from dementia, and I have not accepted that Morgan’s parenting raises any concerns, there is no risk to L. going to Las Vegas with her mother.
[55] Therefore, Morgan’s request is granted.
Issue Six: Should the Court dispense with Leigh’s consent for L. to be enrolled in French Immersion this September?
[56] I find that Leigh’s objections to enrolling L. in French Immersion when she begins junior kindergarten at Withrow Avenue Junior Public School do not outweigh the likely benefit to L. of that enrollment.
[57] Based on the parties’ submissions and accompanying materials, I find the following:
a. Before and after separating, the parties had discussions about whether to enroll L. in French immersion.
b. Both parties wish to keep L. enrolled in Withrow.
c. At Withrow, a student must enter French immersion in junior kindergarten.
d. The French immersion program in question is designed for students whose parents do not speak French.
e. Morgan entered L. into a lottery for the French immersion program in the fall of 2024.
f. In January, 2025, Morgan’s counsel advised Leigh’s counsel that L. had received an offer.
g. Approximately one month later, Leigh’s counsel indicated that Leigh objected that enrollment was premature since L. could always enroll in grade 4.
[58] Morgan deposes that she did not understand Leigh to object to French immersion outright, but rather that Leigh thought it preferable to defer the decision.
[59] At the hearing, however, Leigh said he does object to French immersion because:
a. His independent research shows that French immersion is detrimental to students who are not from a French background.
b. He wants to be deeply involved in L.’s education and believes that French immersion would prevent that.
c. Advances in technology greatly reduce the benefits of French immersion.
d. Morgan’s dementia would impair her ability to support L. in French immersion.
[60] For the following reasons, I find, Leigh’s objections cannot be sustained:
a. Ontario courts have recognized the benefits of French immersion for even very young children: Piper v. Hare, 2021 ONSC 2139.
b. If L. does not enter French immersion in September, she will be unable to do so while she remains at Withrow – something both of her parents want.
c. Leigh’s research into French immersion is not evidence. His suggestion that technology can substitute for French proficiency is speculative. Leigh gives little weight to a child’s possible enrichment from learning French.
d. There is no sign that L. has any development challenges that might pose difficulties for her in French immersion. Both parties agree that L. is intelligent and ahead of her milestones.
e. Morgan’s request is for enrollment for September 2025. Enrolling L. now does not prevent future changes.
f. The program is designed for students who do not have a French background. The school board encourages parents who do not speak French to play an important role in their children’s educational development while the children are in the program.
g. Leigh’s fear that he will be unable, or at least much less able, to speak with L. about her school day simply because she is in French immersion, seems overstated.
[61] Therefore, Morgan’s request is granted. For clarity, my order does not address L.’s enrollment beyond the 2025-2026 school year, nor is my order intended to create a status quo that Morgan has sole decision-making with respect to any educational issues. Decision-making is an issue for trial. French immersion is not always beneficial for every child. Parents can have well-founded concerns against such enrollment. It would be inappropriate, at this stage, to preclude Leigh from raising such concerns in the future provided he does so with suitable evidence.
Issue Seven: Should Morgan be able to obtain the full records from Dr. Miller, the parties’ marital counsellor; and Leigh’s medical history from March 2020 on, held by his physician, Dr. Thomas?
[62] Given that Leigh already signed an undertaking promising to authorize both the release of the records held by the parties’ marital counsellor, and part of his medical file, I find that Morgan is entitled to dispense with Leigh’s consent to obtain those documents.
[63] At the Trial Management Conference, Leigh indicated that he would call as witnesses the marital counsellor, Dr. Miller, and his physician, Dr. Thomas. Morgan requested that Dr. Miller provide all her notes on the parties, and that Dr. Thomas provide Leigh’s medical file from March 2020, on. The March 2020 date corresponds to Morgan’s claim that Leigh exhibited conspiratorial thinking and behaviour during the COVID-19 pandemic.
[64] Leigh, who was then represented by counsel, signed the TSEF which includes an undertaking to authorize the release of these documents.
[65] Leigh now refuses to sign the authorization. He says, first, that he no longer intends to call the witnesses – something he decided shortly after the TMC but on which his then-lawyers did not follow up. Second, he objects to the scope of the records being released.
[66] Morgan says that Leigh must be held to his undertakings. I agree.
[67] For clarity, I do not agree with Morgan that Leigh must call every witness he listed on the TSEF. In family cases, this court does not hold parties to that level of exactitude.
[68] However, Leigh made undertakings about his records. Should Morgan wish to question the witnesses, especially Leigh’s physician, she requires access to the records.
[69] Leigh is not entitled to use evidence selectively. Morgan points out that in this motion, Leigh sought to rely on an email written by the counsellor, Dr. Miller. Leigh wanted the court to rely on the email with respect to a very discrete question (whether Dr. Miller had concerns about or talked with Morgan about the possibility that she had dementia). Leigh is not entitled to decide how broadly the counsellor can be questioned, at trial, about additional matters. Morgan is entitled to seek documents to help formulate her questions to the counsellor.
[70] I appreciate that Leigh feels that he is operating under a double standard if he, but not Morgan, must release confidential records. The difference is that Leigh is being held to a prior promise he made, while Morgan has always objected to disclosure.
[71] At the hearing, Leigh raised numerous concerns about his former lawyers. He said, essentially, that he did not fully appreciate what was happening at the Trial Management Conference.
[72] On this motion the court cannot determine whether Leigh received adequate legal representation.
[73] In addition, in family law proceedings, parties, particularly if they have counsel, are responsible to understand what they are doing and what they are signing. The TSEF is written in plain language and is routinely described in detail by conference judges. The parties’ TMC was before a senior jurist: Justice Hood.
[74] Justice Hood included clear instructions about how to seek changes to the TMC. A party could request a further conference either with Justice Hood or, alternatively, through the family team leads: Justice Diamond or Justice Nakonechny. Leigh did not do that – he began filing 14B motions.
[75] I am persuaded that Leigh should be held to his undertakings and, given that he refuses to honour them, his consent may be dispensed with.
[76] I therefore grant Morgan’s request.
Costs
[77] Morgan was entirely successful on this long motion. She seeks costs of $29,078.29.
[78] Under Rule 24(12) of the Family Law Rules, O. Reg. 114/99, the court shall consider among other things whether a party has behaved unreasonably.
[79] I find that Leigh’s behaviour has been unreasonable and has increased the costs of this proceeding. He has filed repeated 14B motions. He sought an extension of time to file his materials, only to argue for an adjournment at the hearing itself. Leigh’s choice to be self-represented does not diminish his obligation to follow the rules.
[80] In the circumstances, I find it appropriate to award Morgan full indemnity.
Order
[81] In conclusion, I make the following order:
a. Leigh’s requests for:
i. An adjournment of this long motion;
ii. Leave to bring additional motions;
iii. A parenting assessment pursuant to Section 30 of the Children’s Law Reform Act;
iv. Disclosure of Morgan’s medical records or, in the alternative, a letter from her family doctor; and
v. Removal of any witness from the trial list (for clarity, this does not require that Leigh himself must call a witness);
are dismissed.
b. Subject to further court order, L. shall be registered for and attend the French Immersion program at Withrow Avenue Junior Public School commencing with the 2025/2026 academic year.
c. Leigh’s consent and signature is hereby dispensed with, with respect to the following:
i. L.’s registration for and attendance in the French Immersion program at Withrow Avenue Junior Public School;
ii. L.’s passport applications, including to renew her passport once she has one;
iii. L. travelling with Morgan to Las Vegas, departing Friday, August 1, 2025 and returning Monday, August 4, 2025 for the purpose of attending a wedding;
iv. The release of Leigh’s medical records, from March 2020 on, that are held by Dr. Laura Thomas (being Leigh’s family doctor); and
v. The release of any and all records held by Dr. Marilyn Miller (being a counsellor whom Leigh and Morgan jointly, and possibly individually, attended counselling with).
d. Leigh shall pay to Morgan costs of $29,078.29 inclusive of disbursements and HST.
e. The parties may submit a draft order for my signature to the Family Trial Office.
Mathen, J.
Released: July 21, 2025