Parental Access to Child’s Health Records

Case Purpose: Parental Access to Child’s Health Records Where Disclosure May Impact Gender Identity and Safety— Parental Alienation—Family Violence—Best Interest of the Child.

Case Name: L.S and B.S.

Applicant: Gina Da Fonte, Mother

Respondent: Brian Hall, Father

Citation: L.S. v. B.S., 2022 ONSC 5796

Key Facts

The Parties were separated and have two teenage children, B. age 14 and E. age 13. Both Children have a fractured relationship with their Father.

No Order have yet been made on respect to decision making. An Order made on October 29, 2018, granted the Father parenting time with the children, and on consent, reunification therapy. The relationship between the Father and the children did not improve, and reunification therapy was terminated in 2019. Since the children have not seen their Father in 3 years.

The Father exerts this is a case of parental alienation and mother denies parental alienation saying the father was abusive and controlling and the children have been traumatized by him.

Child E. is dealing with issues relating to her gender identity and the parents do not agree about how it should be dealt with.

Father asserts that E is receiving hormone therapy and counselling, and that he never consented to this. The Father moved for production of various medical and counseling records for the children, claiming this information is necessary for litigation.

Mother alleges that the Father is “anti trans” and alleges father had seriously assaulted E. twice post-separation.

The Children refused to consent to disclose their health records; the mother objected to production, asserting privacy and safety concerns.  The Father relied on his right to information under the Children’s Law Reform Act (CLRA).

Issue(s)

1. Does the Father have a right to the production of all the children’s medical and counselling records, as per section 20(5) of the Children’s Law Reform Act?

2. If so, under what circumstances should those records be disclosed, considering the children’s privacy and confidentiality under the Ontario Health Information Legislation (PHIPA and HCCA).

Rule of the Law: A parent does not have an automatic or unfettered right to access a child’s medical or counselling records in family law proceedings.

Analysis: Where a child is capable of consenting to treatment, the child also has a right to consent to or refuse to disclose their personal health information. Any request for such disclosure must be carefully balanced against the child’s privacy and best interests of the child. Particularly, where the records are sensitive and there is a history of family conflict or violence.

Legal Test/ Legal Principle: 

Disclosure of a child’s health records will only be ordered where:

1. Their records are clearly relevant to a material issue in the proceeding.

2. The records are not privileged; and

3. Fairness of the litigation requires disclosure by applying a narrow and tailored approach rather than broad production.

   
   

Consent alone of the child to not release their medical information does not suggest that the analysis ends there. Courts should prefer limited or summary disclosure where possible, to minimize harm to the child.

Ratio: The ONSC confirms that access to information must be reasonable and proportionate, not exhaustive. A parent does not have automatic or unrestricted right to access a child’s medical or counselling records in family law proceedings.

Where a child can consent to treatment and refuses disclosure, the court must balance the parent’s request against the child’s privacy rights and best interests of the child. Disclosure will only be ordered where the records are relevant, non-privileged, and necessary to ensure fairness, and disclosure must be reasonable, proportionate, and narrowly tailored, not exhaustive.

Reasoning/Rationale:

The judge’s reasoning was based on the balance between:

1. A parent’s rights under family law (to information relevant to resolving issues); and

2. Privacy protection of the child under PHIPA and HCCA (especially where the child has refused consent and is capable of making that decision).

The judge also took into consideration the best interests of the children and the difficult and fractured family dynamics.

At para [23] the court accepted that a parent has legitimate interest in their child’s gender and treatment, especially when there is a healthy parent-child relationship. However, the court was also in view of where there is a dysfunctional parent-child relationship, or an unsupportive parent, and who is ill-informed; and yet intent on taking obstructive steps, then emotional harm can be done.

In this case, the Father’s relationship with E. is problematic, thus E.’s privacy interest relating to her gender identity is very high. In this case, E.’s records were considered protected by a case-by-case privilege. The Father’s request for all production of disclosure was considered not in the best interests of the child.

Decision:

The Ontario Supreme Court did not grant the father’s broad request for production of all the children’s medical and counselling records.

It was established that there is no automatic or unlimited right for a parent to obtain a child’s personal health records especially when the children do not consent to disclosure and when privacy and the best interests of the child are paramount.

The court denied the Father’s blanket request for full production of medical records due to privacy interests and the children’s objections.

However, using the test, the judge ordered only certain records to be produced. Particularly, those from a counsellor involved in reconciliation counselling since those records were directly relevant to key issues like the father-child relationship.

Implications of the Decision:

This decision has significant implications for family law disputes involving parental access to a child’s personal health information under Section 20(5) of the Children’s Law Reform Act and the privacy interests of the children protected under The Personal Health Information Protection Act.            

The court confirms that parenting time does not equate to decision making responsibility, and that the parent’s entitlement to information about a child is limited and contextual. Not absolute. Parenting time entitles a parent to involvement in a child’s life, but not to decision-making authority. Especially when access is requested to sensitive health information; those rights remain distinct and are always subject to the child’s best interests and privacy rights.

KM v LGN, 2020 ABQB 197

In KM v LGN, 2020 ABQB 197 applied a similar test as seen in the Alberta case. The decision reviewed the Child, Youth and Family Enhancement Act, its approach to the disclosure of child welfare records is consistent with Ontario’s emphasis on privacy protection balanced against the best interests of the child. The Alberta Court confirms that disclosure of confidential child protection records is not automatic and is limited to information that is relevant, material, and likely necessary, and only when it cannot be obtained elsewhere. In particular, the court stressed that disclosure must be narrowly tailored to the scope of the request, excluding records that do not directly concern the child in issue, and subject to strict confidentiality safeguards. This principle aligns with Ontario’s jurisprudence under the Child, Youth and Family Services Act, 2017 and the general rule that child welfare information may be disclosed only where necessary to adjudicate a parenting dispute, with strong protections for third-party privacy and the child’s best interests.

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