Lewis v. Schuck, 2018 CarswellOnt 10262 (Ont. S.C.J.): Privacy vs. Production
Psychiatric Records in Custody Cases Background:
The parties had a brief relationship that produced one child who was two-and-a-half years old at the time of the motion. In the aftermath of the break up, a custody dispute arose. The mother said the father was alcohol dependent and had a long-standing substance abuse problem. The father did not deny that he had a history of alcoholism and had been verbally abusive to the mother on several occasions. Despite this, matters seemed to calm down for a year and the parties agreed to a shared parenting plan.
However, the harmonious relationship did not last long. The police were called over in response to multiple incidents between the parents. The mother subsequently applied for sole custody of the daughter, primary residence, child support, an Order that the father be restrained from leaving the province with their daughter absent her or the court’s approval, and that the father be restrained from harassing or annoying her. In doing so, the mother brought a motion for an Order requiring that the father produce his medical records related to his alcohol dependency and mental health issues from January 1, 2015 to the date of the motion. She further requested a decoded OHIP summary for the same time period.
In the father’s materials, he stated that he has attended weekly sessions with a psychiatrist named Dr. Sutandar at Toronto General Hospital. Dr. Sutandar advised in a series of letters included in the father’s affidavit materials that she had no concerns about the child’s safety while in the care of the father. The judge noted that based on the information before the court, the father did not receive any treatment from Dr. Sutandar during the period from November 2015 (one month prior to the child’s birth) until August 2017 (when the mother's counsel notified the Respondent that this proceeding would be commenced). The letters were appended to an affidavit sworn by Dr. Sutandar on March 1, 2018, which was delivered by the father. Dr. Sutandar was not served with a Notice of Examination, a Certificate of Non-Attendance was issued and she did not attend the motion for questioning.
Justice M.D. Faieta found that the relevance of the father’s psychiatric records had been established. Both parents sought custody of the child and the father's mental health and alcohol dependency were central concerns raised in the Application. The same concerns were addressed by the father in his Answer. Such concerns were also relevant under s. 24(2)(g) of the Children's Law Reform Act in assessing the merits of an application for custody and access. The father disclosed and relied upon the views of Dr. Sutandar to address the Applicant's concerns. Therefore, such records were relevant to the resolution of the issues raised by the parties. However, issues of privilege were raised.
In M. (A.) v. Ryan, a majority of the Supreme Court of Canada held that a document is privileged if:
- The communication must originate in a confidence;
- The confidence must be essential to the relationship in which the communication arises;
- The relationship must be one which should be "sedulously fostered" in the public good;
- The interests served by protecting the communications from disclosure must outweigh the interest in getting at the truth and disposing correctly of the litigation.
Notably, Justice M.D. Faieta stated that with respect to the fourth element of the test, a parent's privacy concerns take a back seat to assessing the best interests of a child. The father authorized the release of these documents to the Office of the Children's Lawyer, which supported the view that information about his mental health and alcohol dependency issues to better determine the custody and access in this case, outweighs his privacy concerns.
As such, the judge ordered the release of the father’s psychiatric records, limited to records related to his mental health and alcohol dependency issues. It was also ordered that the disclosure would include any medical records referenced in the report prepared for the OCL. However, the mother’s request for a decoded OHIP summary was declined as it would amount to a “fishing expedition” if awarded in conjunction with the Order for psychiatric records.
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