Ex-couple embroiled in litigation with issues of decision-making, parenting, child support
A mother’s request for disclosure from the Health Professions Appeal and Review Board was a collateral attack on or was an attempt to circumvent a court order in family law proceedings between her and her ex-husband, a recent ruling said.
The contentious litigation between the former couple involved decision-making, parenting, and child support for their two children. A court order appointed a registered psychologist to assess and report on the daughters’ needs and the parents’ willingness and ability to satisfy those needs under s. 30 of Ontario’s Children’s Law Reform Act, 1990.
The doctor’s report recommended full custody in the father’s favour and reintegration therapy and individual therapy for the parents and their daughters. The report made the following findings:
- Estrangement from the father was not in the children’s best interests
- There was no possibility that the mother would participate in the cooperative working relationship required for joint custody
- She severely damaged the daughters’ relationship and attachment to their father
- She systematically demeaned, unfairly criticized, and undermined his position with the children
The mother filed a complaint with the College of Psychologists. She alleged that the doctor made a racist statement to one daughter, made sexist statements, and distressed one child by saying that the mother was the “bad guy.”
The doctor gave the college her response to the complaint. She asked the college to withhold it from the mother since she was involved as an expert in the ongoing family litigation. She said she was concerned that disclosing her response, which referred to material inaccessible to the parties in the family law case, could harm the daughters and undermine the integrity of the investigation and review process.
The Inquiries, Complaints, and Reports Committee granted the doctor’s request to withhold her response. It found that the doctor met the professional standards for the investigation, formed no premature opinions about the mother, and extended no preferential treatment to the father. The mother asked for a review of this decision.
The Health Professions Appeal and Review Board issued an order to disclose to the mother a redacted version of the inquiry committee’s record of investigation and documents used for its decision. The review board noted that the redacted pages contained the personal health information of the daughters and others who were not parties to the process and did not consent to release the information.
The review board did not change its position even after the mother provided signed consents for releasing the personal health information of her children. The review board then determined that the inquiry committee’s investigation was adequate and that its decision was reasonable.
Redactions reasonable
In Schuur v Sas, 2023 ONSC 2852, the Ontario Divisional Court dismissed the mother’s judicial review application. She received ample procedural fairness since she had opportunities to make submissions in the review board’s hearing and to challenge its decision via a motion to vary, the court said.
Next, the court ruled that the review board reasonably used its discretion under s. 32(3) of the Health Professions Procedural Code when deciding which portions of the record should be disclosed to the mother and which should be redacted. The court applied the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 to reach its decision.
The court agreed with the review board’s concerns that the mother could use disclosure to undermine the integrity of the process under s. 32(3(b) would include personal information and prejudice in the family law proceedings.
The Divisional Court noted that the doctor would be a witness in the family law case and that the court, in the family litigation, restricted the mother’s access to information out of concern that the mother might provide such access to the children.
Beyond what the mother could already access in the family law proceedings, the court also noted the doctor’s file, and the record of investigation, included the assessors’ notes and work product, assessments of the father, and information from him.
