Raso v Di Egidio, 2014 ONSC 3362, 240 ACWS (3d) 685

This case addresses the issue of whether or not marriage counselling records are privileged.

Background

The parties separated in September 2011 and had one child together.  The parties attended marriage counselling sessions with Dr. Aston for approximately two months prior to their separation.  The wife consented to the release of Dr. Aston’s records, but the husband declined.

Analysis

Justice Henderson found that Rule 20(5) of the Family Law Rules gives the “court authority to order the production of privileged documents even in the absence of the consent of the parties” (Paragraph 5).  However, “that authority should not be exercised lightly” (Paragraph 5).

Justice Henderson continues by finding that a court ought only to exercise its discretion to order the production of privileged marriage counselling notes and records if “the documents are relevant to an issue at trial, and it would otherwise be fair to both parties to do so” (Paragraph 5).

When applying the above reasoning with respect to Rule 20(5), Justice Henderson found that although such notes and records pass the first stage of the test (i.e. relevancy), it would be unfair to order the production of such documents.

Justice Henderson found that “when parties enter into marriage counselling that party presumes that the counselling sessions are private and confidential” (Paragraph 8).  Furthermore, “given this underlying presumption, the court should not order the disclosure of the privileged notes and records of a marriage counsellor unless there is a strong reason to do so” (Paragraph 8).

The Court stated that the request for the production of these notes and records is “made far too late” (Paragraph 9).  There would be a strong possibility that if such notes and records were ordered to be produced, the husband would thereby be entitled to an adjournment, and the Office of the Children’s Lawyer report may require updating to reflect the material contained in the notes and records (paragraph 10).

In light of the above factors, Justice Henderson held that an order to produce such material would be unfair and, consequently, dismissed the wife’s motion.