Children's privacy rights in family law litigation upheld
The Ontario Court of Appeal issued a very important family law case last month, which confirmed that the Office of the Children's Lawyer (OCL) are not required to disclose their records and files for their children clients to the children's parents.
Within the context of litigated family law matters, the OCL provides representation to children under the age of eighteen (18). Since they are an independent body within the Ministry of the Attorney General, their involvement in a custody or access litigation matter is at their own discretion and they decide which matters they will consent to become involved, and in which manner (ex. conduct a clinical investigation or provide legal representation).
This recent case, Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), began as a father's freedom of information access request to access his child's litigation records with the OCL under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”). The father argued that the litigation records held by the OCL is "in the custody or under the control" of the Ministry of the Attorney General, and as a result should be disclosed under FIPPA. The Assistant Independent Privacy Commissioner agreed with the father's argument and ordered for the Ministry of the Attorney General to respond to the father's request. This adjudicator's order was appealed to the Divisional Court for judicial review, and the Divisional Court upheld the adjudicator's order. The OCL appealed this Divisional Court decision to the Court of Appeal, with support from the Ministry of Attorney General as well as Justice for Children and Youth.
The Honourable Madam Justice Benotto, writing for all three judges of the Court of Appeal, ruled that the Divisional Court did not identify the appropriate standard of review when reviewing the adjudicator's decision on whether the OCL records are in the Ministry of the Attorney General's custody and control. The Court of Appeal confirmed that the OCL is an independent statutory office and the office holds fiduciary duties to the child, to the exclusion of other interests, including the interests of the child's parents, Crown and/or the Ministry of the Attorney General (para. 68-69). Her Honour further commented that the child has significant privacy interests in the information provided to the OCL, and such rights are entitled to more, not less, protection. Her Honour also confirmed that such records belong to the child, and the records are not created for, or on behalf of the Ministry of the Attorney General. After providing a thorough and detailed legal analysis, the Court of Appeal concluded allowed the appeal and quashed the Adjudicator's order.
So what does this mean?
This decision confirms that the children's rights to privacy and confidentiality in their discussions with their lawyers will be protected, and it sends a message to all parents (disgruntled or otherwise) that the children's litigation records with the OCL are their own and the parents have no right to access such information. This decision further helps to foster and strengthens the child client and lawyer relationship, and hopefully enables lawyers with child clients to provide the Court with a genuine and unbiased view of the child's views and preferences.
Read the full decision here: https://www.canlii.org/en/on/onca/doc/2018/2018onca559/2018onca559.html