Children’s Privacy Rights Reinforced by Court of Appeal
Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 is a very important family law case which was decided by the court of appeal. After losing at both the level of the Information and Privacy Commissioner, and the Divisional Court, the Office of the Children’s Lawyer (“OCL”) was successful in appealing a decision which would have forced the OCL to release information to a litigant.
The litigant, “John Doe”, was a parent in a case in which the OCL represented the child. He sought to use so-called “freedom of information” requests to obtain the file of the lawyer who represented his child in the case. He argued that these records were “in the custody or under the control” of the Ministry of the Attorney General (“MAG”), of which the OCL, he argued, is one branch. Until the court of appeal heard the case, the Information and Privacy Commissioner, and the Divisional Court, agreed with Mr. Doe that the records should be produced.
Appeals Justice Benotto, who has significant family law experience, wrote a very child-focused decision on behalf of the court. Although some of the decision related to technicalities in interpreting the law, Benotto J.A. also cites important principles about children’s rights from the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3 (the “Convention”) and other caselaw. She concludes that, “Like solicitor-client privilege, the confidential relationship between the Children’s Lawyer and children is ‘fundamental to the proper functioning of our legal system’ and the protection of that relationship ‘has a central importance to the legal system as a whole’”.
Interestingly, the Court found that the duty of confidentiality the OCL owes to its child clients is broader that standard solicitor-client privilege. In fact, not only are lawyer-child communications privileged, but confidentiality applies to all records obtained by the OCL even if there was no solicitor-client privilege. The Court essentially stated that safeguarding children’s privacy rights has broader parameters than the normal solicitor-client relationship.
One of the most significant, and important, quotes from the decision, underlying why it was decided this way, is where Benotto J.A. states as follows (at para. 72):
To allow a disgruntled parent to obtain confidential records belonging to the child would undermine the Children’s Lawyer’s promise of confidentiality, inhibit the information she could obtain and sabotage her in the exercise of her duties. This would, in turn, impact proceedings before the court by depriving it of the child’s voice and cause damage to the child who would no longer be meaningfully represented. Finally, disclosure to a parent could cause further trauma and stress to the child, who may have divided loyalties, exposing the child to retribution and making the child the problem in the litigation.
The Court ultimately found that, given the context in which the records were created, and the purpose they serve, the records were not in MAG’s care and control and ought not be produced.
In the end, the case sends a strong message that children’s rights to discuss matters privately with their lawyers will be protected. In balancing the right of a parent unhappy with a result of a case to obtain confidential information against children’s privacy rights in dealing with their counsel, this decision rightly puts the most weight on the latter consideration. In putting high walls around any third-party obtaining access to confidential documents, and communications, surrounding the child-lawyer relationship, the decision implicitly requires all lawyers who act for children to be extra cautious that they are advocating according to their client’s views and preferences, if those views are genuine, independent, and strongly held.
The trend in Ontario, rightfully so, is a heightened awareness of children’s rights and ensuring children’s voices are heard in cases that affect their well-being. This decision cements those principles and preserves the solicitor-clie