“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.