Background

The parties married in 2003 and separated in 2012. Following separation, they have engaged in high conflict litigation involving their children V.K. and J.K. At the time of trial, J.K. was living with the father and V.K. with the mother. The father filed an Application in 2013, and several pre-trial orders were made about the children’s custody. Sole custody was granted to the father based on the finding of a motion judge of parental alienation by the mother. The motion judge relied on the expert evidence of a court-appointed assessor named Dr. Sol Goldstein, who provided evidence of alienation and that V.K.’s mental health was being seriously compromised. He recommended the removal of the children from the mother’s care.

Analysis

The trial occurred on November 13, 2020, where the father intended to call Dr. Goldstein as a witness to testify, however he did not appear for trial. The father sought to admit Dr. Goldstein’s report as evidence and asked the trial judge to give weight to his report. The mother rejected on the admissibility of the report as she had filed a complaint against him resulting in the findings from the College of Physician and Surgeons (CPSO). The mother sought to admit a copy of the decision of the Inquiries, Complaints and Reports (ICR) committee of the CPSO pertaining to one of her complaints. The ICR Committee decision, there were serious concerns about Dr. Goldstein’s approach to the assessment, and he would not conduct any new assessments regarding parental alienation and to terminate nay ongoing practice of such. He further undertook to not provide opinion on evidence about parental alienation to any third party.

The father objected to introducing this material as s. 36(3) of the Regulated Health Professionals Act (RHPA) 1991 makes records of regulatory proceedings at the CPSO and decisions made in them inadmissible in civil proceedings:

No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

The trial judge found that this section does not render the fact that a complaint was issued inadmissible and did not prevent website information referring to Dr. Goldstein’s undertaking from being admitted into evidence.

The trial judge compared family law proceedings and civil proceedings and found that family proceedings involving the best interest of the child were not civil proceedings within the meanings of s. 36 (3) and excluding the IRC findings would lead to delays. The IRC finding was admitted into evidence, which resulted in Dr. Goldstein’s report losing weight.

After a 19-day trial, the trial judge ordered the children’s primary residence be with the mother, and that she would have sole day-to-day decision-making responsibility which reversed the status quo. The Order also addressed child support, section 7 expenses, travel restrictions and restricted contact.

The father appealed and argued that J.K.’s primary residence should be with him, and that the trial judge erred in reversing the status quo. He further argued that the parenting time for both children revert to the status quo before trial. The Court of Appeal contemplated whether s. 36(3) of the RHPA prohibit the admission of the CPSO materials.

The Court of Appeal agreed that the IRC report should have been admitted into evidence as it wasn’t the decision itself, but the fact that there was an investigation, and an undertaking was given. The RHPA leaves no discretion for the following: a record of proceeding, a report, a document or thing prepared for or a statement given at such proceeding, or an order or decision made in such proceeding. However, anything not specifically mentioned is not covered by s. 36(3) of the RHPA. Items in the public domain, such as the fact that there was an investigation, the public undertaking that was taken by Mr. Goldstein and not the board is not confidential and s. 36(3) does not apply. However, the Court of Appeal disagreed that any family law proceeding involving the best interest of the children is not a civil proceeding and evade the reach of s. 36(3) of the RHPA.

Conclusion:

The Court of Appeal found that the confidentiality protections of s. 36(3) of the RHPA does apply to family law proceedings involving children. However, the trial judge’s decision was still justified in including the IRC committee finding as information in the public domain is not confidential under s. 36(3) of the RHPA. The appeal is dismissed.