• by Ainsley Doell
Originally published in the OFLM 2024-06 edition
Overview
Where the issue of a parent’s mental health is raised as a challenge to their ability to meet the needs of their children, requests may be made for the disclosure of medical records. In evaluating these requests, proportionality becomes more important than ever, due to the competing interests of full and frank disclosure and a parent’s right to the privacy of their medical information. The tension between the two interests is explored by Justice Howard in his recent decision in Sobieraj v. Karpenko (2024 ONSC 2874).
Introduction
In many family law cases where parenting is an issue, one parent alleges that the other parent is not able to adequately meet the needs of the children. In some cases, this involves raising the issue of a mental health diagnosis or patterns of substance abuse.
Statistics Canada reported that in 2023 18% of Canadians aged 15 and older met the diagnostic criteria for a mood, anxiety, or substance abuse disorder in the previous 12 months.
Courts have made it clear that a mental health diagnosis is not itself a safety concern that warrants placing limitations on a person’s parenting time (see for example Gersimopolous v. Sambirsky, 2024 ONSC 2368). However, where a compelling safety concern has been raised, an inquiry is necessary and courts are going to want to review the best available evidence in order to make a determination regarding the child’s best interests.
In some cases, the party alleging the safety concerns is going to request the disclosure of medical records and therapeutic notes, which is a clear imposition on the privacy rights of the other party. However, courts are going to want to see the best available evidence in order to make a determination about how a mental health diagnosis may impact the child.
The question becomes, how does the court balance their responsibility to review the best available evidence to make a decision in the best interest of a child against a parent’s right to privacy?
As always, the starting point for making parenting orders should be the maximum contact principle – a child should have as much time with each parent as it consistent with their best interests. In this context, when undergoing an assessment of a child’s best interests, it is also important to keep in mind that these kinds of concerns and disclosure requests are often, but not always, informed by the stigma attached to different mental health diagnoses.
While Justice Howard in Sobieraj v. Karpenko notes that an inquiry is needed to assess the potential impact of the Applicant Father’s brief psychotic disorder on his ability to parent, he notes that the incident itself “does not necessarily mean, however, as the mother has apparently concluded, that [the child] will not be safe in the care of his father” (at para. 25).
Recent Decision: Sobieraj v. Karpenko
In Sobieraj v. Karpenko, Justice Howard writes regarding two competing parenting motions brought in the context of the Respondent Mother’s motion to change a final parenting order regarding the parties’ now 8-year-old son who has special needs.
Further to the final order of Justice Hebner, the parties’ son’s primary residence was with the Respondent Mother, subject to a detailed parenting schedule for the Applicant Father. However, in early 2024, the Applicant Father was hospitalized following an episode of a “brief psychotic disorder”, raising concerns for the Respondent Mother that their son may not be safe in his father’s care.
The Respondent Mother sought an order that the Applicant Father’s parenting time be supervised. She also sought the production of all medical records from the facilities where the Applicant Father had been assessed or received mental health treatment in 2024, as well as the clinical notes and records of his treating psychologist. Her position was that any order for the Applicant Father’s parenting time should flow from what was revealed through this disclosure.
The Applicant Father sought the dismissal of the Respondent Mother’s motion and make up parenting time.
Best available information
Justice Howard notes at the outset that when making a determination relating to a child’s best interests and parenting issues, courts “should have the best available information concerning everyone involved in the child’s care and upbringing” (at para.19, citing Noel v. Noel, 2015 ONSC 4561).
He goes on to cite Rules 2(2) and (2(3) of the Family Law Rules, regarding the requirement for full and frank disclosure that is relevant and proportional, such that it enables just decision-making. Further, Rule 19(1)(4) requires the production of relevant records in a party’s control, if requested.
However, there were two competing interests at play:
- Determining whether the Applicant Father’s mental health diagnosis poses a valid safety concern with respect to his parenting ability; and
- The Applicant Father’s interest in maintaining the privacy of his medical records.
In cases such as these, Justice Howard notes that “the court must balance the competing interests of a parents right to privacy against the interests in pursuing the truth to make an appropriate decision in the best interests of the child in order to make a sound disposition of the matter” (at para. 22).
In certain circumstances, it may be necessary for a parent’s right to privacy to “yield in favour of the best interests of the child” (at para. 23).
Lewis v. Schuck (2018 ONSC 3887) is cited to support this proposition, but not discussed. In that case, the Applicant sought similar disclosure to the Respondent in Sobieraj.Justice Faieta noted that the Respondent’s mental health and alcohol dependency were “central concerns” raised in the Application and addressed in the Answer, and that such concerns are relevant to a best interests analysis under section 24 of the Children’s Law Reform Act.
It was also relevant that the Respondent had produced letters from and relied upon the reviews of his psychiatrist in responding to the Applicant’s concerns (at para. 19). A similar ‘waiver issue’ is present in Sobieraj v. Karpenko and discussed below.
Justice Faieta ordered the disclosure of the Respondent’s medical records, including “records from his family physician, psychiatrist … and any other medical, psychiatric or health professional and any hospital and addiction treatment facility solely in relation to the Respondent’s mental health and alcohol dependency issues from January 1, 2015 to date” (at para. 39).
Disclosure of hospital records
In Sobieraj, during oral argument, the Applicant Father agreed to the disclosure of his hospital records, but Justice Howard intimates that he would have ordered this disclosure nonetheless.
As far as Justice Howard was concerned, the relevance of the hospital records from the Applicant Father’s hospitalization was not in question, as they spoke to the nature of his mental health and whether the condition stood to impact his ability to parent.
The Applicant Father had produced a letter from his treating psychologist which concluded that he had no concerns about the Applicant’s ability to care for himself or his child. Justice Howard notes that this is insufficient evidence, and that the matter of whether the child would be safe in his father’s care was “at the end of the day, [a] question for the court to decide, not [the Applicant’s] psychologist” (at para. 25). Among other things, the evidence of the psychologist did not address the potential for re-occurrence or relapse.
There was also a potential waiver issue: The Applicant Father had disclosed and relied upon the discharge summary from his hospital stay. Without the disclosure of the rest of the records, this would be allowing the Applicant Father to cherry pick.
However, the Respondent Mother’s claim for the disclosure of medical records was not entirely successful. Her request for medical records was labelled as “speculative”, as it went beyond the confirmed hospitalization to request “and/or any other medical facility where [the Applicant] has been assessed or received mental health treatment from January 1, 2024”. This portion of her claim was denied.
Clinical notes and records of a treating psychologist
In addition to her request for the disclosure of hospital medical records, the Respondent Mother requested the clinical notes and records of the Applicant’s psychologist from January 1, 2024 to date.
Justice Howard immediately highlights the highly invasive nature of this request, quoting case law speaking to the importance of confidentiality to the maintenance of an effective discourse between a therapist and their patient.
“In short”, he says, “there are medical records, and then there are medical records” (at para. 44).
There are a few additional observations raised by Justice Howard, namely:
- The Applicant Father had been treated by his psychologist for years, and these notes had never been requested before the incident of psychosis;
- It is not clear how these “after-the-fact” notes and records would add to the truth seeking function of the court, especially where there is an order for the disclosure of the hospital records; and
- Counsel for the Respondent had submitted that little weight should be placed on the conclusions of the treating psychologist. If this is the case, then there would be limited merit in ordering the production of the notes.
In summation, ordering the production of these notes stood to be even more invasive than the production of the hospital records, while simultaneously having questionable utility. The request was struck, as it was “overly intrusive and not proportional to the issues before the court” (at para. 51).
Limitations
The Applicant Father raised concerns that if the requested production was allowed, the Respondent Mother might share these records with people outside the context of the litigation, including the parties’ child.
Justice Howard took this concern seriously, and placed restrictions on both the Respondent Mother and her counsel’s ability to use the disclosure that would be produced.
Specifically at paragraph 59, the following restrictions were put in place:
- The records could only be used for the purposes of the litigation at hand;
- The records would remain with counsel, and not be provided to the Respondent Mother, except that:
- Counsel may share the content for the purpose of obtaining instructions, but may not provide a copy of any portion of the records; and
- Counsel may share the records with a qualified medical expert for the purposes of providing an opinion, and the qualified medical expert is subject to the same restrictions on providing the disclosure to the Respondent Mother.
- Leave of the court would be required to share the disclosed records further;
- The Respondent Mother and her counsel are not to disclose the contents to any other person;
- After the expiry of the appeal period, the records shall be destroyed in a secure manner; and
- “Under no circumstances whatsoever” is the Respondent Mother to directly or indirectly disclose the content or even the existence of these medical records to their son, or any information therein.
Now what?
How the disclosure will impact parenting time for the Applicant Father would need to be determined following a review of the hospital records. Counsel for the Respondent Mother noted that an expert would likely be required to review the disclosure and provide an opinion.
In the meantime, Justice Howard ordered regular supervised parenting and contact via phone calls until the return of the motion.
The purpose of requesting and reviewing disclosure is to assess whether there are live safety concerns impacting the parent’s ability to care for their child. Even if there are concerns raised, the question will become whether they are or can be effectively mitigated.
As discussed in the May 2024 edition of the Ontario Family Law Monthly, Justice Kraft’s recent decision in Gersimopolous v. Sambirsky emphasizes that where a parent acknowledges a mental health diagnosis and is following a treatment plan, then the diagnosis itself should not prevent a parent from having meaningful parenting time with their child (2024 ONSC 2368).
Conclusion
When it comes to requesting disclosure relating to a parent’s mental health, whether or not the disclosure should be ordered goes beyond simply determining relevance.
Because of the competing privacy interest at play, the proportionality of the request to the issues at play becomes more important than ever. No costs were awarded in Sobieraj v. Karpenko, because of the dismissal of the Respondent Mother’s request for the disclosure of the psychologist’s clinical notes and records. If her counsel had narrowed their focus to the records relating specifically to the hospital stay following the episode of psychosis, which was the issue precipitating the need for the disclosure, this may have gone differently.
As the party or counsel for the party on the receiving end of such a disclosure request, Sobieraj v. Karpenko acts as a guide for what kinds of medical records should be produced willingly and which kinds of requests you may want to push back on.
However, even if the records requested are relevant and proportional, counsel can and should advocate for limitations being imposed to limit the scope of their use to the litigation at hand.
Sobieraj v. Karpenko also acts as a warning: If you intend to rely on material provided by a medical service provider (in this case, it was the discharge report), be prepared for a court to potentially find that you have waived your right to privacy.