Information Needed to Assess Children’s Lawyer Function

The involvement of children in our legal system is one that requires particular sensitivity and care, given their own limits of autonomy, but also the long-lasting consequences that the justice system can have on them. Access to information as to how our system works is central to this ability to assess its function.

The Ontario Court of Appeal recently reversed in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner) a decision that would release information held by the Office of the Children’s Lawyer (OCL), which will make any independent review of their function by third-parties more challenging in the future.

The case was initiated by a request by a father, involved in matrimonial proceedings, of the notes and documents used by a social worker to support the opinion that they provided at trial. The request was made under the Freedom of Information and Protection of Privacy Act (“FIPPA“) to the Attorney General for Ontario (“MAG”), of which the OCL is an independent branch of. The position of the OCL was that FIPPA did not apply, as they represent legal interests of children independent of MAG or the Crown by virtue of appointment under s. 89 of the CJA. Based on this position, MAG indicated this information was not under their custody or control, and they could not provide it.

Instead, MAG directed the father to the two courthouses where he could seek the records from the file. On looking for the exhibits in this file, he was informed by court staff that they had been removed by the OCL, even though they had already been used in court proceedings. Despite then requesting these same exhibits that were part of the court record, OCL refused to provide them to him.

MAG’s position was appealed by the father to the Information and Privacy Commissioner of Ontario (“the IPC”), which released its decision in 2015. Assistant Commissioner Sherry Liang ordered MAG to provide this information to the father, noting that for over two decades the OCL has treated FIPPA requests as falling under MAG. The sole issue in this decision was whether OCL documents were in the custody and control of MAG.

The IPC employed the 2-part test provided by the Supreme Court of Canada in Canada (Information Commissioner) v. Canada (Minister of National Defence) (Minister of National Defence) to determine control of records:

They also drew on the Federal Court of Appeal decision in Canada Post Corp. v. Canada (Minister of Public Works) to list the following contextual factors:

• Was the record created by an officer or employee of the institution?
• What use did the creator intend to make of the record?
• Does the institution have a statutory power or duty to carry out the activity that resulted in the creation of the record?
• Is the activity in question a “core”, “central” or “basic” function of the institution?
• Does the content of the record relate to the institution’s mandate and functions?
• Does the institution have physical possession of the record, either because it has been voluntarily provided by the creator or pursuant to a mandatory statutory or employment requirement?
• If the institution does have possession of the record, is it more than “bare possession”?
• If the institution does not have possession of the record, is it being held by an officer or employee of the institution for the purposes of his or her duties as an officer or employee?
• Does the institution have a right to possession of the record?
• Does the institution have the authority to regulate the record’s content, use and disposal?
• Are there any limits on the use to which the institution may put the record, what are those limits, and why do they apply to the record?
• To what extent has the institution relied upon the record?
• How closely is the record integrated with other records held by the institution?
• What is the customary practice of the institution and institutions similar to the institution in relation to possession or control of records of this nature, in similar circumstances?
• If the record is not in the physical possession of the institution, who has possession of the record, and why?
• Is the individual, agency or group who or which has physical possession of the record an “institution” for the purposes of the Act?
• Who owns the record?
• Who paid for the creation of the record?
• What are the circumstances surrounding the creation, use and retention of the record?
• Are there any provisions in any contracts between the institution and the individual who created the record in relation to the activity that resulted in the creation of the record, which expressly or by implication give the institution the right to possess or otherwise control the record?
• Was there an understanding or agreement between the institution, the individual who created the record or any other party that the record was not to be disclosed to the institution? If so, what were the precise undertakings of confidentiality given by the individual who created the record, to whom were they given, when, why and in what form?
• Is there any other contract, practice, procedure or circumstance that affects the control, retention or disposal of the record by the institution?
• Was the individual who created the record an agent of the institution for the purposes of the activity in question? If so, what was the scope of that agency, and did it carry with it a right of the institution to possess or otherwise control the records? Did the agent have the authority to bind the institution?
• What is the customary practice of the individual who created the record and others in a similar trade, calling or profession in relation to possession or control of records of this nature, in similar circumstances?
• To what extent, if any, should the fact that the individual or organization that created the record has refused to provide the institution with a copy of the record determine the control issue?

When dealing with privacy law, context can be a quite exhaustive exercise, examining many different, complex aspects. In applying these factors, Assistant Commissioner Liang concluded,

[53] There is no dispute that the Act applies to “institutions”, which are defined to include provincial ministries. The overriding considerations in this case are:

• the undisputed fact that the OCL is a branch of the ministry and
• all of the records at issue were generated in the course of the OCL fulfilling its core mandate.

…

[57] There is no separate administrative structure for the OCL established under any statute. Its legal counsel and executive, administrative and clinical/investigative staff are all employed by the ministry. The Public Service of Ontario Act (PSOA) governs the appointment and employment of all public servants in Ontario under the general supervision of the Public Service Commission. Ontario Regulation 146/10 under the PSOA lists all “public bodies” and “public commission bodies” which are considered part of the public service in Ontario and which do not otherwise fall within a ministry or a minister’s office. The OCL is not separately listed, consistent with the conclusion that, by law, OCL staff are ministry employees.

…

[60] The OCL is unlike the judiciary, which has a separate existence and constitutionally distinct function from the ministry. It is also unlike the Judicial Appointments Committee considered in Walmsley, above, in that the Committee under consideration in Walmsley consisted of individuals who were neither employees nor officers of the ministry and whose role was to provide arms-length advice directly to the Attorney General independent of the Ministry.

[61] The result urged by the OCL would treat some of its records as excluded from the Act when it is engaged in certain functions, while other records would be subject to the Act. While the Act itself provides for such a result, through the exclusion of some categories of records, the OCL’s submissions would, in effect, amount to indirect recognition of an additional exclusion which has not been explicitly legislated.

The position of the OCL was that FIPPA would create an inherent conflict of interest, because if MAG could obtain these records it would interfere with the independence of OCL. The OCL’s fiduciary duty to its client, the child, also prevents it from exercising any discretion to disclose exempt records where it would be against the client’s interest to do so. This position was not supported by the Privacy Commissioner,

[47] Regarding the OCL’s position that the FIPPA scheme would create an inherent conflict of interest if the ministry was to obtain the records in order to make an access decision, the appellant submits the opposite: that this process would create needed transparency in the event that the Children’s Lawyer failed to represent the interests of the children.

[48] It is the appellant’s belief that the Children’s Lawyer failed to discharge its fiduciary obligations in representing its child clients in this case. He believes that full information about its investigation should be disclosed. The OCL’s clinical agent (named in his request) participated and gave evidence at the trial and it cannot now shield the notes which were the basis of that evidence. The appellant further submits that the judge relied on the evidence submitted by the OCL, that there is now a public record of that proceeding which has been relied on in subsequent proceedings, and yet not all the evidence is in the court record as it should be.

Further comments were made on the need for transparency in the interest of public policy,

[52] The phrase “in the custody or under the control of an institution” is repeated throughout the Act (i.e. s. 24 the access procedure; s. 42 disclosure of personal information; s. 52 (4) the power of the IPC to review records).

[53] The IPC must carry out its mandate and decide if the records are “in the custody or under the control of an institution”. This question is one that “was intended by legislators to be left to the exclusive decision” of the IPC.

[54] Disputes about whether a record is “in the custody or under the control of an institution” are not rare. As part of its mandate, the IPC is called upon to interpret s. 10 on a regular basis. If the head of an institution refuses a request for a record, the Requester may appeal to the IPC. If an inquiry under Part IV of FIPPA is required, s. 54 (1) directs that the IPC “shall make an order disposing of the issues raised by the appeal.”

[55] The exercise of interpreting and applying s.10(1) is no different than interpreting and applying an exclusion in FIPPA as occurred in Ontario (Ministry of Community and Social Services) v. John Doe, 2014 ONSC 239. In this case, the IPC interpreted s. 65(6)3 of FIPPA. This section excluded certain information from the Act. Although pre-Dunsmuir cases had applied a correctness standard to the IPC’s interpretation of this section, the Divisional Court found that this was not a true question of jurisdiction, given Alberta Teachers.

It was this finding on standard of review that gave rise to further grounds of appeal at the Court of Appeal.

Justice Benotto held that the proper standard of review was correctness, in that the interpretation of “custody or control of records” under s. 10(1) of FIPPA to the OCL was outside the expertise of the Privacy Commissioner. The requisition of these documents under the privacy statute was not a decision about privacy, under Justice Benotto’s analysis, but rather a matter of central importance to the legal system as a whole given the unique role of the OCL.

Justice Benotto relied heavily on Justice Coté’s holding in Alberta (Information and Privacy Commissioner) v. University of Calgary, where the majority of the Court held that correctness as the appropriate standard for interpretation of freedom of information that may impact solicitor-client privilege, an area traditionally adjudicated by the courts,

[51] Coté J.’s comments in Alberta v. UC aptly apply to this case. The protection of the relationship between the Children’s Lawyer and her child clients is of central importance to the legal system as a whole. It is a relationship based on confidentiality that extends beyond solicitor-client privilege and requires a heightened degree of protection by the courts. As I will explain, the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3 (the “Convention”), to which Canada is a signatory, requires that children be afforded special safeguards, care and legal protection by the courts on all matters involving their best interests, including privacy.

[52] 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”.

The problem with this interpretation is that at least some of the documents requested here had already been submitted to court, were part of the official court record, and were only deprived from the applicant after an agent of the OCL deliberately removed them from the record.

Although some of the documents requested under the broad requisition included some privileged reports and potentially some confidential information, those documents that were already submitted to court would have any such privilege or confidentiality waived. The blanket conclusion made by Justice Benotto about all documents held by the OCL simply cannot withhold this type of scrutiny.

In applying the correctness standard to the decision of the Privacy Commissioner, Justice Benotto contextualized the question not in the privacy interests and need for transparency by the public, but rather the core functions of the OCL as it relates to the best interests of the child, the voice of the child, and the fact that the records belong to the child,

[56] I determine that the Adjudicator started from the assumption that the Children’s Lawyer is a “branch” or “part of” MAG, and thus MAG had custody or control of the records. In so doing, she failed to give appropriate weight to the Children’s Lawyer’s role and responsibilities. She did not address the impact of her decision on the best interests of the child who is entitled to heightened protections within the law. Nor did she consider the importance of the relationship on the administration of justice.

[57] I conclude that, given the relevant context, the Children’s Lawyer does and must operate separately and distinctly from MAG. When representing children, her office is therefore not a branch of MAG. The Adjudicator was required to analyze whether records held by the Children’s Lawyer – as not part of an institution under FIPPA – are in MAG’s custody or control. She failed to do so. Upon undertaking this analysis, I determine that MAG does not have custody or control of the requested records.

Emphasizing the judicial context in which these documents emerge, rather than the statutory privacy mechanism overseeing the production of these documents, was based on some of the fundamental assumptions that underlie family law for years. Justice Benotto stated,

[64] 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”: per Backhouse J., in Graham v. Bruto, [2007] O.J. No. 656 (S.C.), at para. 65, aff’d 2008 ONCA 260 (CanLII).

[emphasis added]

The OCL has been one of the main societal instruments to insulate children from this conflict and the presumed damage that can occur in family disputes.

However, last year Linda Nielson published an article in Psychology, Public Policy, and Law that directly challenged much of the assumptions that have justified the manner in which family law operates.

She notes that the majority of social science research that has created the foundation for family law across North America is actually not substantiated, using statistically flawed approaches, lack of standardization in measuring key metrics and confounding of much of the data, and use of poor design quality. After criticizing the academic literature on the subject she concludes,

In sum, the best research currently available suggests that the
quality of the parent– child relationship is more closely linked than parental conflict or the quality of the coparenting relationship to children’s outcomes, with the exception of the most extreme forms of conflict to which some children are exposed. Conflict, coparenting, and the quality of the children’s relationships with each parent are all connected to children’s well-being. This is not an “either– or” issue that ignores the role that parental conflict or coparenting play in children’s lives. Still, the data strongly support the idea that the quality of the parent– child relationship is the best predictor of future outcomes for the children. In other words, the role of conflict has too often been exaggerated and should not be the determining factor in child custody decisions or in regard to [joint physical custody] arrangements except in those situations where the children need protection from an abusive or negligent parent. While continuing our efforts to reduce parent conflict and to improve the coparenting relationship, we should be equally— or perhaps even more invested in helping both parents strengthen their relationships with their children and improve their parenting skills.

[emphasis added]

The social workers who often do the majority of the work in the OCL in assessments and recommendations are also subject to the logical fallacies and shoddy scientific conclusions that have permeated this area of social sciences for the past generation.

There is another very important reason to resist a call for completely blind trust in the role and function of the OCL. Earlier this year, the Ontario Human Rights Commission (OHRC) concluded a 2-year inquiry into the child welfare system, finding a disproportionately high indices of Indigenous and Black children in child welfare agencies.

Although this study focused on Children’s Aid Societies, the presence of any bias or stereotyping by those working in the OCL would be expected to be mirrored here as well. The OHRC was only able to obtain this information due to their broad powers under the Human Rights Code, which confirmed anecdotal reports of community members complaining about differential treatment.

The complaints around the OCL around Indigenous and Black children continue to be just as significant by these community members as it is with CAS. An assumption that the OCL, in exercising its fiduciary duty, is automatically doing so in an effective and flawless manner is an application of a parens patriae power that is ripe for abuse. Some would suggest it is exactly the same kind of assumptions that gave rise to abuses under the residential schools.

Lord Acton is quoted as stating in a letter dated January 23, 1861,

Every thing secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.

What Justice Benotto’s decision has the effect of doing is prioritizing s. 89(3.1) of the Courts of Justice Act with other aspects of the same act, most notably the open court principle, in a context where no harm or injustice could realistically be identified. Once again, part of the documents requested had already been submitted and relied upon in open court.

This interpretation completely ignores the balancing that FIPPA itself contains internally. The Act itself states,

Conflict with other Act

67 (1) This Act prevails over a confidentiality provision in any other Act unless subsection (2) or the other Act specifically provides otherwise.

Exceptions to the confidentiality provisions include protections and prohibitions found under the Child, Youth and Family Services Act, 2017, privileged communications under the Legal Aid Services Act, 1998, as well as sealing orders found under the Courts of Justice Act. Extending the exceptions to confidentiality beyond this by relying on s. 89 of the CJA alone constitutes a reading into FIPPA that was certainly not envisioned by the legislature.

If the applicant father here was successful in finding that the records were in the control of MAG and subject to FIPPA, it would not automatically mean that these documents would be provided to him. The Privacy Commissioner could subsequently find that one of the exceptions under the Act applies, which can include personal notes for personal use in a court proceeding.

A number of broad discretionary exemptions exist under ss. 12-22 of FIPPA, which could be further used to deny a request, including a finding under s. 19 that allows for refusal under solicitor-client privilege. Finally, a broad exemption exists under s. 49 that allows for denial of information “where the disclosure would constitute an unjustified invasion of another individual’s personal privacy.” This basis alone would be sufficient to ensure the privacy interests of children are properly protected.

Instead, we have a ruling which creates an absolute and unconditional prohibition of making information requests under FIPPA, and limits any informational requests to Rule 21 of the Family Law Rules, which typically consists of scant evidentiary foundation and little insight into the analytical framework conducted through this mechanism.

In 1964, Senator Edward V. Long discussed the American Freedom of Information Act, stating,

A government by secrecy benefits no one. It injures the people it seeks to serve; it damages its own integrity and operation. It breeds distrust, dampens the fervor of its citizens and mocks their loyalty.

Public confidence in the family law system remains at an all time low. Greater secrecy as to how one of the most central institutions in this area of law functions will certainly not assist it, and potentially serves to exacerbate this distrust even further. No government institution, especially one which so directly impacts the lives of the public, should be completely insulated from such scrutiny.