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Father and son


The parties had two teenage children, B, aged 14, and E, aged 13. The children had a broken relationship with the father. An Order for reunification was made on the consent for the children and the father but the relationship between them did not improve. After the conclusion of reunification counseling, both children began personal counseling. Both children were considered vulnerable, with E at an elevated risk given her gender transition.

The primary issue facing the court pertained to the father’s motion to have the medical records of the children produced before the court. Although the father did not specify the legal basis behind his request, he tied the production to the correct disposition of the litigation, citing his right to information under section 20(5) of the Children’s Law Reform Act (“CLRA”).

The Father specifically requested that the medical records of the following service providers be produced:

  1. Dr. F, the children’s psychologist that provided reunification counseling to the children;

  2. Catholic Family Services of Durham (“CFSD”), who provided counseling to the children following

    the conclusion of reunification counseling;

  3. Dr. B, a physician who the Father claimed to be administering E’s “hormone therapy”;

  4. The Scarborough Health Network, Centenary Site, Child & Adolescent Shoniker Clinic (“the

    Shoniker Clinic”) which the Father believed to be providing counseling to E regarding her gender identity

The children refused to provide their consent to the production of their medical records.

In his decision, Justice Finlayson assessed the intersectionality of the Father’s right to information under the CLRA, the children’s right to refuse consent for the production of their own medical records under the Personal Health Information Protection Act (“PHIPA”), as well as considerations under the Health Care Consent Act (“HCCA”).


Justice Finalyson’ began by highlighting that there was no general right to another individual’s personal health information under the PHIPA. While a parent may have a right to their children’s health information under family law, this is not a guarantee under PHIPA.

If an individual, even a child, is found to be capable of consenting by their medical service provider, then that individual may give or withhold consent for the disclosure of their health information. However, there are exceptions. If a child is under 16, a parent may give or withhold consent on their behalf, if the treatment is within the meaning of the HCCA, and the child themselves made a decision on their own. Further, a ‘parent’ under this exception does not include a person who only has a “right of access”

to the child. In the event of a conflict between the child’s decision and that of a substitute decision-maker, the child’s decision prevails.

Justice Finlayson noted that however it happened, the mother had become the de facto primary parent for the children. She objected to the production of the children’s medical records. While her views were not determinative, his Honour stated that her position as the parent with the daily care of the children is entitled to respect. Of further importance beyond the children’s own resistance to production was the fractured relationship between the children and their father. Justice Finalyson thoroughly considered E’s vulnerability and privacy interest in keeping her records confidential. Despite the Father’s claims, his Honour found that E’s own view was that her father was not supportive and was consistent in her refusal to meet with him.

In light of the immense privacy concerns highlighted above, Justice Finlayson denied the Father’s blanket request for production.

However, his Honour emphasized that another avenue for production could be found under Rule 19(11) of the Family Law Rules. He proceeded to apply a three-part test to determine whether the specified medical records should be produced:

  1. Does it meet the “likely relevant” threshold?

  2. Are the documents privileged?

  3. If the documents are not privileged, would it be unfair for the party to proceed to trial without

    the documents?

In applying the above test to the medical records held by the four different service providers, his Honour held that a specific production order was warranted. Specifically, Dr. F, who assisted with reconciliation counseling for the children was found to possess highlight relevant information to the material issues in the case. The Father’s relationship with the children, the extent it was damaged, the likelihood that it may be repaired, and whether the mother was undermining the relationship, were all key issues that Dr. F’s records could offer insight towards. Justice Finlayson held Dr. F’s records was not privileged given that the service had been concluded and the father himself was included in some of these sessions.

His Honour further found that the way by which the children began counseling at CFSD was also clouded. It was implied that the mother had arranged the counseling, despite an absence of such an order by the court and the Father being unaware of said services. There was also a distinct absence of a general description of the services provided by the CFSD. The court found that the records were likely relevant to the material issues in the case, and declined to undertake a judicial review of the records to determine privilege. Justice Finlayson reserved the production order to the circumstances in which the counseling was put in place, as well as requiring a brief summary of the purpose behind the counseling for each child, the frequency of their attendance, and written confirmation that counseling was still ongoing.


The case of L.S. v. B.S., is an interesting intersection between a parent's right of access to their children’s health records, and the privacy interests enshrined in personal health information legislation. In the event a child refuses to consent to their medical records being disclosed to their parent, what determines whether the records will be produced? Justice Finalyson analyses the intricacies involved in such a question, with the specific answer being found in the unique family relationship at play and the services provided.