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Articles and Publications

June 2018

Secrets Between Children and Parents

Are Litigation Records of a Children's Lawyer subject to Father's Freedom of Information Request?

David Elmaleh
David Elmaleh
Partner

Brittany Rizzo
Brittany Rizzo,
Law Student

By David Elmaleh and Brittany Rizzo

Background

In Ontario (Children's Lawyer for Ontario) v Ontario (Information and Privacy Commissioner) 2018 ONCA 599, the Court of Appeal for Ontario considered the novel issue of whether a child-client's litigation records with the Children's Lawyer should be subject to a father's freedom of information access request. The Adjudicator at first instance determined that the records were “in custody or under the control”1 of the Attorney General (“MAG”) and ordered that MAG respond to the father's request. On judicial review at the Divisional Court, the court upheld the order of the Adjudicator. In a rare move, the Children's Lawyer appealed.

The Court of Appeal allowed the appeal and quashed the Adjudicator's order.

Analysis

Appeal to the Information and Privacy Commissioner

The Children's Lawyer stated that FIPPA should not apply to private litigation files involving services to children. She argued that her office is appointed by the Lieutenant Governor in Council under section 89 of the Courts of Justice Act, and is, therefore, an independent office within MAG that only represents the legal interests of children, not the Crown.2 Among other things, the Children's Lawyer argued the files were not in the custody or control of MAG, and in any event, the office has a fiduciary obligation to the children which trump access under FIPPA.

The Adjudicator rejected the Children's Lawyer's submission, finding that the Children's Lawyer operates as a branch within the MAG structure and is accountable to MAG.

Appeal to the Divisional Court

The Divisional Court dismissed the appeal, noting that the Adjudicator's decision was reasonable. The Court rejected the Children's Lawyer's concern about confidentiality and argued that if the lawyer were concerned, she could address these through the FIPPA exemptions under section 19.3

Court of Appeal

The Court of Appeal applied a contextual analysis, observing that the Children's Lawyer does not receive instruction from MAG, the office does not report to MAG and the fiduciary duties extend only to the child-clients, not to MAG. This separation is especially significant if the child-client wants to pursue legal action against the Crown.

These factors are why the Children's Lawyer's office is so important to the administration of justice.

The Court of Appeal noted that FIPPA in the context of children's records should be considered through a lens where the primary consideration must be the child's best interests because children are among the most vulnerable members of society, which is especially true when exposed to conflict through divorce. These factors are why the Children's Lawyer's office is so important to the administration of justice. They provide a safe, effective way for the child's voice to be heard, which involves promises of confidentiality, especially because children's interests may be adverse to those of their parents. To allow a parent to obtain the confidential records belonging to the child, that were given to the Children's Lawyer under the pretense that they would remain confidential, would undermine the Children's Lawyer's office. The result would be the loss of the child's voice and their sense of safety and privacy since they will no longer trust the system to be meaningfully represented.

After taking the best interests of the children into consideration and the importance of the relationship on the administration of justice, the court concluded that while representing children, the Children's Lawyer's office must be considered a separate entity from MAG.

The Court concluded that the records did not relate to a departmental matter because MAG plays no part in the records of the Children's Lawyer. The appeal was allowed and access to the records by the father was denied.

Conclusion

The Court of Appeal restated the fundamental principle that transparency does not always reign supreme, and there can be legitimate reasons why records should be withheld.

This case bears significance across many industries, not just family law or estate litigation or other agencies or corporations associated with Government. Privacy continues to be a “hot topic” across society generally, and this case is no exception. As family dynamics continue to modernize, as wealth continues to be passed down as the population ages, as individuals and small businesses continue to look for tax-efficient ways to structure businesses, as our communities continue to progress and recognize that children are not merely young people that should be “seen and not heard”, and as the population in Ontario (primarily in the urban centres) continues to increase, there is no doubt that the Children's Lawyer will continue to play a vital role in protecting our children and fighting for their privacy, even at the expense of the children's parents.


1 Freedom of Information and Protection of Privacy Act, RSO 1990, c F-31, s 10(1).
2 Courts of Justice Act, RSO 1990, c C-43, s 89(1).
3 Supra note 1 at s19.


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