Case law: Privacy of child’s OCL records

Ontario (Children’s Lawyer) V. Ontario (Information and Privacy Commissioner) 2018 ONCA 559: This case, eventually decided by the Ontario Court of Appeal earlier this year, addresses the privacy of children’s records kept by the Office of the Children’s Lawyer.

A custody and access case between the parents of two children eventually led to the involvement of the OCL, which initially appointed both a clinician and a lawyer and, at a later stage of the proceeding, a lawyer only.

The case began in 2008, when the children were nine and eleven years old. In 2010, the father’s access and all verbal contact with the children were terminated. The father appealed this decision in 2012 and in 2014 requested access to the OCL litigation files.

The OCL opposed this request, and the case eventually made its way to the Court of Appeal.

In deciding that the father did not have a right to access these files, the court found that a child-client’s litigation records with the OCL are not subject to a third party’s freedom of information access request. The best interests of the child must be a primary consideration in interpreting the statutory regime.

In representing the interests of children in custody or access disputes and child protection matters, the OCL provides a safe, effective way for children’s voices to be heard. To do this, the OCL must promise confidentiality.

The child has significant privacy interests in the information disclosed to the OCL. Allowing a parent access to a child’s records would negatively impact the child’s privacy rights. FIPPA’s exemption for records protected by solicitor-client privilege is not sufficient to protect a child’s confidential communications with the OCL: information may be confidential without being privileged.

To determine who has control over the child’s records, the court considered the OCL’s core functions regarding children and held that the OCL is not a branch of MAG and that MAG does not have control of the records.

Providing third parties access to a child’s records would seriously undermine the OCL’s role, sabotage the child’s heightened privacy rights and, by muzzling the child’s voice, seriously limit the court’s ability to address the child’s best interests.

In its decision, the Court of Appeal wrote the following:

“Whenever a child is affected by a court or government process, the primary consideration must be the child’s best interests. . . When children are the subject of a custody dispute or child protection proceedings, they are at their most vulnerable. . . For their voices to be heard, they must be guaranteed confidentiality. . . 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. . . The records in question here belong to the child.”

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