Courts have generally held that both parents should be informed about the issues affecting their child, and that a parent who has contact with a child should be as informed as the parent with decision-making responsibility. However, this does not mean that a parent has an unlimited right to a child’s personal health information. So, what happens if a child does not consent to the release of their health records being disclosed to a parent? Disclosure of a child’s information to a parent may need to balance the right to information with privacy rights, and disclosure will be considered according to the child’s best interests.
In L.S. v. B.S., the parties had two children aged 14 and 13. The children had a difficult relationship with the father, and after failed reunification therapy they received counselling. Additionally, one child was dealing with issues related to her gender identity, and the parents disagreed over how that should be handled. The father brought a motion for the production of the children’s health and counselling records. However, the children did not consent to the release of their records to the father. The father argued that he should receive the records from a perspective that focused on his rights, while the mother argued that he should not, pointing to the conflict in the relationship between the father and children.
For the judge, these approaches were not satisfactory. The case involved the question of the scope of a parent’s right to personal health information under the Children’s Law Reform Act (CLRA), and what happens when that right conflicts with a child’s objection to the release of the information. Therefore, it was necessary to consider the interaction between family law legislation and the Personal Health Information Protection Act (PHIPA). For the Court, this required striking a balance between disclosure and respecting privacy.
The father principally relied on section 20(5) of the Children’s Law Reform Act as the basis for the production of the records, which provides that the entitlement to parenting time with a child “includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.” In contrast, the Personal Health Information Protection Act governs the use and disclosure of personal health information and sets out the right of access under section 52(1). The individual or their substitute decision maker has a right to access records, but there is no general right of access to another person’s information.
Consequently, the judge noted that a parent may have a right to information about a child’s health under family law, but there is no guaranteed ability to obtain records under Personal Health Information Protection Act. Importantly, this case involved teenage children. Further, the Personal Health Information Protection Act does not set an age at which individuals have capacity to make decisions about the disclosure of their health information. The Personal Health Information Protection Act does, however, provide that a person has capacity if they are able to “understand the information that is relevant to deciding whether to consent to the collection, use or disclosure” and can “appreciate the reasonably foreseeable consequences of giving, not giving, withholding or withdrawing the consent.”
The question was how to reconcile the rights under the different statutes. In A.M. v. C.H, the Ontario Court of Appeal determined that the Children’s Law Reform Act operates for a different purpose and will not necessarily conflict with health legislation, but will co-exist, so the judge did not believe this was simply a matter of one statute trumping the other. Justice Finlayson looked at the purpose behind section 20(5) of the Children’s Law Reform Act. Previous case law had found that it was based on the belief that both parents should be fully informed on issues affecting the welfare of a child so that they can act in the child’s best interests. However, that right is not absolute, and courts must consider other laws, such as the Personal Health Information Protection Act when considering the parent’s access, and the right must be interpreted through the lens of the child’s best interests.
The purposes of the Personal Health Information Protection Act differ from those in the Children’s Law Reform Act. The Personal Health Information Protection Act differs from those in the Children’s Law Reform Act that sets rules on the use and disclosure of personal health information that protects privacy and gives individuals a right to access information about themselves. Justice Finlayson noted this was also not an absolute right, and that sometimes it may prevail over the Children’s Law Reform Act, but at other times it may be subordinate. Like the Children’s Law Reform Act, it also directs decision-makers to consider other sources of law such as family law statutes.
In A.M. v. C.H, the father complained that service providers refused to disclose the records, and in his view, they did not meet their obligations under the Personal Health Information Protection Act. The judge determined there was jurisdiction to hear the father’s claim under section 20(5) of the Children’s Law Reform Act and that it could make an order for the production of records held by a non-party under rule 19(11) of the Family Law Rules, even if a health information custodian had already decided not to produce the records under Personal Health Information Protection Act. This was because the Personal Health Information Protection Act did not restrict the court’s jurisdiction. Moreover, a claim under 20(5) was subject to the child’s best interests’ test. Ultimately, a parent does not have an unqualified right under 20(5) to records held by third-party custodians.
The judge concluded that it would not be in the children’s best interests for a “broad order” requiring the production of health records to the father. However, while “the children’s views are important and will factor heavily into the outcome of the motion… they are not dispositive.” The case involved different types of records which were not of the same importance to the issues in the case and did not have identical privacy considerations, and those differences had to be taken into consideration.
Justice Finlayson evaluated the disclosure request by looking at various considerations, including:
In this case, the mother was the children’s primary parent, and she was opposed to the production of the documents. Courts pay attention to those views, and at this stage the judge found her views were “entitled to respect.” In assessing the children’s preferences, previous cases have held that they are important considerations, while the Children’s Law Reform Act also requires courts to consider those views in line with the child’s age and maturity. Importantly, the children lacked a healthy relationship with their father, they were vulnerable, and needed to be protected from conflict. The judge found a wide release of documentation would be harmful to them.
Courts are also directed to take into account the impact of any family violence. Here, allegations had been made, and the judge was not willing to ignore the children’s views on the matter. The mother worried that the father would publish material that he obtained to discredit her and the children. While the mother could not support that allegation, the judge shared a similar concern based on how the father said he may use the records. Ultimately, while Justice Finlayson did not make a broad order for disclosure under 20(5), a more limited production order for certain documents necessary for the resolution of the case was warranted under rule 19(11) of the Family Law Rules.
Determining the scope of a parent’s right to a child’s personal health information requires considering the intersection of family law legislation and privacy rights. Importantly, the right to information about a child is not absolute, and a child’s views will be considered. Courts will also give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.
When there is a breakdown of a relationship, family dynamics can be complicated, especially when there are children involved. The family lawyers at NULaw can assist you in resolving complex disputes over parenting time and decision-making responsibilities. Based on each client’s unique needs, we offer realistic, effective advice on resolving complex parenting disputes and ensure that the children’s best interests remain paramount in any disagreement. To schedule a confidential consultation with one of our family lawyers, contact us online or call us at 416-481-5604.