On October 12th of last year the Ontario Superior Court of Justice considered the interplay between an access parent’s right to information under section 20(5) of the Children’s Law Reform Act and the privacy rights granted by Personal Health Information Protection Act. It held that the right to information is qualified by a child’s best interest, and a privacy right claimed by a child with capacity under PHIPA is a relevant factor.
Section 20(5) of the CLRA says:
The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and 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.
The Court addressed a motion brought by a father for access to his children’s health and counselling files. He had sought access under PHIPA and was denied because the children – both deemed to have capacity – withheld their consent. The father brought a motion in Family Court, relying both on Section 20(5) and seeking production of third-party records under the Family Law Rules, arguing the records were relevant to his claims of parental alienation and other parenting issues to be determined by the Court.
The Court read section 20(5) together with section 28(8), a new provision of the CLRA that qualifies the right information as being “subject to any applicable laws.” It said:
This new statutory reference to a Court being able to “order otherwise” is a specific reminder that the right in 20(5) is not absolute. Internally, the right must be interpreted through the lens of the best interest principle, as all decisions affecting children are: see again section 19(a) of the Children’s Law Reform Act; see 24(1); and see also Children’s Lawyer for Ontario v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 ¶58-61.
The new, statutory subjugation of the right in section 20(5) externally “to any applicable laws” codifies what was already happening, namely that courts should consider the operation of other laws, like the PHIPA, when considering the scope of the right. Another example of another “applicable law” that can interact with the right in section 20(5) would be the common law of privilege: see M.(A.) v. Ryan, 1997 CanLII 403 (SCC),  1 S.C.R. 157.
The reference to “subjugation” is somewhat misleading given the Court affirmed its power to make an order under the CLRA based on the best interests principle and affirmed that such an order would bind health information custodians despite PHIPA. Section 20(5) is only subjugated to PHIPA in that PHIPA rights are a factor (and arguably a strong factor) in the best interests analysis.
On the facts, the Court held there was no basis for an order under section 20(5) but there was a basis for a limited production order (based on fairness considerations) under the Family Law Rules.
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