Jesse Mark and Mary Birdsell are applauding a decision that litigation records from the Office of the Children’s Lawyer for a child client are not subject to freedom of information legislation.
The Ontario Court of Appeal has ruled that all litigation records with the Office of the Children’s Lawyer for a child client are not subject to freedom of information legislation even if it is not material protected by solicitor-client privilege.
“Children’s records do not contain information that could be described as ‘government information,’ nor do they contain any information that would advance the goals of government accountability and transparency,” wrote Justice Mary Lou Benotto in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner).
“The records in question here belong to the child,” Benotto added in the June 18 decision, with justices Lois Roberts and Paul Rouleau concurring.
The Court of Appeal overturned the Divisional Court in a dispute stemming from a records request filed under the Freedom of Information and Protection of Privacy Act by a father involved in a custody and access proceeding.
In addition to finding that the records are not in the custody or under the control of the province for the purposes of that statute, the Court of Appeal disagreed with the Divisional Court’s position on the standard of review of Information and Privacy Commissioner decisions in this area.
“The unique role of the Children’s Lawyer is fundamental to the proper functioning of the legal system. It is thus reviewable on the standard of correctness,” wrote Benotto.
“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,” she added.
The IPC has not yet decided whether to seek leave to appeal to the Supreme Court of Canada.
“This decision is lengthy and complex and may have implications for our office, including as it relates to the standard of review and the scope of the application of the act [FIPPA],” the provincial agency said in a statement.
Advocates for the rights of children within the justice system are applauding the decision.
“The Court of Appeal highlighted the need to consider the best interests of the child in all circumstances,” says Mary Birdsell, executive director of Justice for Children and Youth, which was an intervener in the proceeding.
“It also clarifies that records belong to the child, the same way as in any other confidential file. Children should always have been able to access their files as a client requesting a file from a lawyer. This decision certainly makes that clear,” says Birdsell.
Jesse Mark, a staff lawyer with the organization who was its co-counsel at the Court of Appeal, adds that there are important policy considerations in the ruling.
“We are heartened to see the court’s statement that the voice of the child is crucially important to a determination of what is in the child’s best interests,” he says.
Jessica Gagné, a family and child protection lawyer in Toronto, says the ruling attempts to address a legislative gap in terms of restricting access to records when someone is represented by the Children’s Lawyer.
“I think what is animating the decision is that the Court of Appeal looked at FIPPA and realized the exemptions would not cover litigation privilege,” she says. “The legislation has not kept up with the developments and the role of the Office of the Children’s Lawyer,” Gagné says.
She agrees that the ruling also makes clear that children have the right of access to their own records. “If it belongs to you, it belongs to you. I don’t think the Children’s Lawyer can refuse a request,” says Gagne.
In the case before the Court of Appeal, an adjudicator at the IPC ruled in 2015 that the Children’s Lawyer was wrong to refuse even to issue an access decision on the father’s records request, only some of which were subject to privilege. As well, the adjudicator concluded that FIPPA applied since the Children’s Lawyer is a branch of the Ministry of the Attorney General.
The Divisional Court upheld the IPC findings last year.
“The Order has a narrow focus. It simply directs MAG to issue an access decision to the Requester. The head of MAG delegated this decision making authority to the Children’s Lawyer. The Order does not require the Children’s Lawyer to produce privileged documents to the Requester,” the court said. It rejected arguments that the Children’s Lawyer is not part of the ministry when acting for child clients.
The Divisional Court noted that litigation privilege exemptions from FIPPA are explicitly outlined in statutes such as the Legal Aid Services Act, but the legislature did not grant one to the Children’s Lawyer.
The Court of Appeal, in its ruling, found that a statutory exemption is not necessary.
“When representing children, the Children’s Lawyer operates separate and apart from MAG, does not take direction or obtain input from MAG, does not provide MAG with access to records relating to children and MAG does not have authority to request them,” wrote Benotto.
“Thus, the Children’s Lawyer is not a branch of MAG for the purposes of the children’s records,” she added.
Commentary by the Ottawa Mens Centre
The Law Times is the propaganda of the legal profession where they
try to tell the public what delusions they wish to promote. It represents one of Canada's
largest collection of psychopaths. Take a look at their "surveys"
The voting you see is how the lawyers vote and its enough to make you want to puke.
Now, lets address this bit of propaganda by the some of the worst of
Canadian society.
The Ontario Office of the Children's Lawyer has a few good people, but most are not.
It can be a very corrupt and dangerous organization riddled with bias against fathers.
It's also an organization that is devoid of accountability.
Their accountability is how they can avoid any complaints.
One of their primary ways of avoiding accountability is to refuse to provide information.
Across the province, the lawyers employed to represent children are more often than not hell bent
on supporting mothers or worse still work for or on behalf of the Children's Aid's Aid societies of Ontario.
In Ottawa, one Cheryl Hess wears the hat of the OCL in the morning and in the afternoon is working for the CAS Ottawa.
Its a cess pool of lawyers often with next to no training or specific qualifications who get to
do this job that pays legal air rates.
Note that in this case, it was a father seeking records, and they used the subterfuge that
only some of them subject to privilege.
OCL reports usually have a plan, it goes like this
99% of it is factual, but 1% will be fiction, and its that 1% fiction that is used to
by the OCL to write a report that generally, treats fathers as second class parents
and gives the mother what ever she wants with a veneer of plausability.
When reports to favour fathers, they generally written to be politically correct
and use feminist language to justify what they want to see and not necessarily
what the obvious facts are.
Its enough to make you want to puke.