Disclosure of Documents Pertaining to Court Ordered Assessments of Children

N.H. v. J.H. 2018 ONSC 2658, 2018 CarswellOnt 6774

In NH v JH, the question was posed about whether a court can refuse to order full disclosure of the file and notes of an assessor appointed under section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (such as a therapist) because the court is of the view that such disclosure will likely have a serious impact on the well-being of a child.


The parties were engaged in high conflict litigation relating to the care of their two children, A.K.H. (13 years) and A.S.H (11 years). The proceedings were primarily focused on the parenting arrangements for the children. A licensed therapist, Dr. Leonoff was asked to perform the s. 30 assessment under the Children’s Law Reform Act with the consent of the parents.

During the 4 years he worked with the family, Dr. Leonoff made many suggestions to the parties based on his assessments for how to best protect the interests of their children and reduce stress and adverse psychological impact caused by the ongoing conflict which were ignored by the parents. Part of the doctor’s findings suggested that A.K.H was experiencing mounting distress, anxiety, emotional harm and obsessive-compulsive disorder.

The mother brought forth a motion seeking to suspend the residential order of the trial judge relating to A.K.H’s residence with her father, which the judge granted based on the recommendation of Dr. Leonoff. Subsequently, the father sought disclosure of the entire electronic and paper file, including the material related to his sessions with the children.


The question before the judge was whether the need to protect a child from significant harm outweighs the right of parents to full disclosure. The judge in this case found that the protection of the children did outweigh the right to full disclosure because this was a case where there was a real and substantial risk of harm to the children and that the risk could not be satisfactorily alleviated by any other way, including by imposing strict conditions around its production.

In a leading case with regards to an assessor’s obligation to produce his or her file and notes in the context of a custody dispute called S. (S.) v. S. (D.), 2008 NSSC 8752, the mother sought disclosure of the psychologist’s entire file, including the raw data, answers to test questions, tests results, instructions from test designers and the video of her interviews with the child, to allow her to test the factual foundation upon which the psychologist based her conclusions. This is a similar request to the case at hand made by A.K.H’s father. With regards to the production of the testing materials, in S. (S.) v. S. (D.), the judge decided that the protection of the children ranked far superior to most privacy interests, including the privacy interest of the test designers and publishers, and that the best interests of children far outweighed their desire for secrecy. To ensure that the best interests of the children were protected and properly assessed, the disclosure of the testing material was necessary to allow the mother to understand them, weigh their reliability and validity and determine whether she wished to rely on them.

This case was distinguishable from the case at hand because the judge found that the disclosure of A.K.H’s therapy sessions with Dr. Leonoff would put her at risk of further psychological harm, as well as a possible distrust in Dr. Leonoff who will have an ongoing role in A.K.H’s therapy. Additionally, the judge in Campagna v. Wong, 2002 SKQB 97 was of the view that to properly evaluate the assessor’s conclusions, the parties must have access to everything which played a role in the formation of those conclusions so long as they do not put the child at risk, which would more than likely be the case here.

Moreover, it was noted that the parties demonstrated an ongoing inability to protect their children from their incessant conflict which could be exacerbated by the disclosure of the therapy sessions. The judge found that sharing with the parents more of what the children have said about them through the disclosure of the requested information will inevitably lead to extra harm being inflicted, and create a distrust between A.K.H. and Dr. Leonoff which would adversely impact her health.

The request for disclosure was denied.