Recent case law: Production of therapy records in custody case

In Raso v Di Egidio, 2014 ONSC 3262, the wife brought a motion to have the notes and records of the couple’s marriage counsellor (who they saw for a few months before they separated) produced for use in the custody and access trial.

During the case, the Office of the Children’s Lawyer had been appointed, and the OCL’s clinical investigator had asked the psychologist for his records. The wife consented; the husband did not, so the records were not provided to the OCL, and the report was completed without information contained in them.

The mother wanted that information before the court because, it was her contention, the psychologist had witnessed the husband’s explosive conduct during their sessions and had commented on the husband’s controlling behaviour and lack of involvement with the child. The mother felt this evidence would be relevant to the issue of whether the parties could cooperate enough to support a joint custody arrangement.

Justice Henderson finds that the notes and records of the psychologist are privileged documents, requiring the consent of both parties for their production. He then goes on to say that Rule 20(5) of the Family Law Rules allows a court to order production of privileged documents even where the parties do not consent, but that that authority should not be exercised ‘lightly:’ “I find that the court should only order the production of privileged marriage counselling notes and records if the documents are relevant to an issue at trial, and it would otherwise be fair to both parties to do so.”

He accepts that the psychologist’s notes and records are relevant to the parenting issues in the case, but then talks about the importance of marriage counselling being confidential if it is to have any meaning or possible effectiveness.

He rules against the wife’s motion because of his commitment to maintaining the privileged nature of the notes and records but also because he feels the wife brought her motion too late, waiting more than 11 months from the date the OCL’s request for the records was turned down until just 3 weeks before the trial was scheduled to begin.

This is a classic example of a case that cuts both ways. While no doubt many of us would have liked to see these records produced because they appear to contain evidence that would support the wife’s claim for sole custody, there are also many cases where therapy records contain information that is damaging to women.

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