An Ontario court recently considered if the father of a young child had a right to privacy or whether he should be compelled to produce the medical records in relation to his alcohol dependency and mental health issues.
What Happened?
The parties met in September 2014. They cohabited from October 2016 to January 2017, when their relationship ended. The parties had one child, who was born in late 2015.
The father was an alcoholic and had long-standing substance abuse problems. As a result, the mother had assumed primary care and responsibility for the child since her birth (the father had sporadic access).
In April 2017, the mother agreed to a shared parenting plan with the father because the father had been sober since October 2016.
In June 2017, the father grabbed the child out of the mother’s arms and refused to return her to the mother. The mother’s lawyer subsequently sent the father a letter indicating that he could only have access to the child if he agreed not to consume alcohol or drugs before or during access visits, among other things.
The father did not deny his alcohol dependency or that it had affected his ability to care for the parties’ child. However, he stated that he had received regular treatment for 20 years in various ways, including attending weekly sessions with a psychiatrist, Dr. S, since 2011. The father also maintained that the status quo had been in existence for almost one full year, during which the mother had depended on him to care for the child about one-half of the time.
The mother brought a motion for an order requiring the father to produce his medical records related to his alcohol dependency and mental health issues. Specifically, the mother requested copies of the records from Dr. S, as well as any other medical, psychiatric or health professional, and from any hospital and treatment facility in relation to the father’s mental health and/or alcohol dependency issues from January 1, 2015 to date.
The Legal Principles Regarding Disclosure of Documents
The court began by explaining that the Family Law Rules require a party to an application to provide to another party any document relevant to any issue that is in their control or available to them. The exception to this rule is if the document is privileged and therefore protected from disclosure.
The court also indicated that an order for disclosure must be fair and appropriate. The court noted that:
Consideration must be given to the burden of the requested disclosure on the disclosing party, the relevance of the requested disclosure to the issues raised by the Application and the cost and time required to provide disclosure as compared to its importance.
The Court’s Decision
In granting the mother’s motion for production, the court first explained that the records the mother sought were relevant because the father’s mental health and alcohol dependency were central concerns raised in the application regarding custody and access of the child.
The court went on to find that the documents were protected by privilege, as:
- the communications originated in a confidence;
- the confidence was essential to the relationship in which the communication arose; and
- the relationship was one that ought to be “sedulously fostered” in the public good.
The court concluded, however, that the interests served by protecting the communications from disclosure did not outweigh the interest in getting at the truth and disposing of the litigation correctly. It noted that the father had already disclosed some of the communications from Dr. S, which reflected his willingness to put his privacy concerns second to his child’s interests of having information to assess the appropriate terms for custody and access. The court also pointed to the fact that the father had authorized the release of his information to the Office of the Children’s Lawyer (OCL), which supported the view that the interests of getting information regarding his mental health and alcohol dependency issues outweighed his privacy concerns.
Finally, the court found that the scope of the disclosure was fair and appropriate, as long as the medical records disclosed to the mother were limited only to records related to the father’s mental health and alcohol dependency issues (including any medical records referenced in the report prepared for the OCL). The mother and her counsel were prohibited from sharing or communicating any information pertaining to the father’s records with any person, other than for the purpose of the parties’ litigation.
Lessons Learned
When it comes to assessing the best interests of a child in relation to custody and access, in the court’s eyes, a parent’s privacy concerns take a back seat.
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