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Children and the Legal System — Appeal Court Rules on Kids’ Privacy and the Role of the OCL

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Children and the Legal System — Appeal Court Rules on Kids’ Privacy and the Role of the OCL

Being involved in the Canadian justice system is never easy on anyone. But especially for children, it can have long-range negative impact.  As the Ontario court observed in a case called Graham v. Bruto:

Children are among the most vulnerable members of society. Courts, administrative authorities and legislative bodies have a duty to recognize, advance and protect their interests. When children are the subject of a custody dispute or child protection proceedings, they are at their most vulnerable. Exposure to conflict has been called the “single most damaging factor for children in the face of divorce.”

Traditionally, the justice system has tried to be sensitive to the vulnerabilities and needs of children.   It features established safeguards around children’s participation in the system, including the protections of the Office of the Children’s Lawyer (OCL), which is an office within the provincial Ministry of the Attorney General.  The role of the OCL, among other things, is to  represent children in various areas of the law, including child custody and access disputes, child protection proceedings, and civil litigation.

A very recent Ontario Court of Appeal decision addresses the parameters around the OCL’s duty toward children, and its ability to release information in its possession that concerns them.

The spark for the analysis was a routine custody and access dispute between a father and the mother of his children.  The OCL had become involved, and appointed the Children’s Lawyer to conduct an investigation, and make a report with recommendations on the issues.   The father wanted to see the notes, records and assessments in the Children’s Lawyer’s files,  including those that had been made by the social worker assigned to the case.

The father made his access-to-information request to the Attorney General for Ontario under the Freedom of Information and Protection of Privacy Act (“FIPPA“), since the OCL is an independent branch of that Ministry.  The OCL claimed that FIPPA did not apply to force disclosure, contending that its role was to independently represent the interests of children.  The Ministry also added that the information was not under its custody or control, so it could not provide the information the father requested.

The Ministry advised the father to seek the information from two different courthouses, where his custody proceedings were being heard.  However, he found that the sought-after information had been removed by the OCL.  The father’s further requests directly to the OCL were refused.

This prompted a legally-complex hearing before an Adjudicator appointed though the Assistant Information and Privacy Commissioner.  The key practical issue was whether a child’s litigation records, held with the Children’s Lawyer, were subject to the father’s freedom of information access request. Legally, the issue hinged on whether the OCL documents were in the “custody and control” of the Ministry (which is the wording in FIPPA that triggers certain safeguards around information privacy).  The Adjudicator ordered that they were, and ordered the Ministry to respond to the father’s disclosure request.  A later court upheld the Adjudicator’s order.

This prompted a further appeal to the Court of Appeal, which engaged detailed consideration of several statutes, of federal privacy policy, and of the scope of the OCL’s fiduciary duty to the children it protects and represents.  The issue also required consideration of the scope of the OCL’s independence in relation to the Ministry itself, and of the interplay between various government department roles.

The Appeal Court ultimately concluded that the Adjudicator had erred; the Adjudicator’s ruling was based on a “fundamental misunderstanding of the role and function of the Children’s Lawyer, her relationship to the [Ministry], and her duty to provide children with the heightened protection the law mandates.”

Specifically, the Court concluded that the Children’s Lawyer must operate separately and distinctly from the Ministry, and that when representing children, the Children’s Lawyer is not a branch of the Ministry per se.  Moreover, the father’s request for the documents was really not about privacy (which was the Adjudicator’s realm), but rather related to issues touching on the OCL’s unique role and its duties towards children, which are “fundamental to the proper functioning of our legal system.”

This was beyond the realm of the Adjudicator’s specialized expertise, and her ruling was “not in the best interests of children.”   It needed to be reviewed for correctness since she had taken the wrong approach.  In the end, the Court of Appeal overturned a prior order, and allowed a full judicial review of the Adjudicator’s previous order to take place.

Although it may be currently mired in legal concepts, the outcome of the Appeal Court’s decision is to underline that the best interests of children remain uppermost in the minds of the courts, and by extension in the workings of the judicial system, at least in theory.

For the full text of the decisions, see:

Graham v. Bruto ; aff’d Graham v. Bruto, 2008

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

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