The Ontario Superior Court of Justice dealt with the question of the disclosure of marriage counselling records in the recent case Raso v Di Egidio.

The parties in this case were dealing with issues regarding custody, access, child support and property. The matter had been set down for a five-day trial. Three weeks prior to trial, the wife brought a motion before the courts to compel production of notes and records made by the couple’s psychologist during their past marriage counselling sessions. The wife claimed that the husband had made comments and exhibited behavior during counselling sessions which suggested that the couple would not be able to share joint custody effectively. The husband opposed the disclosure of the notes.

Justice Henderson noted that while Rule 20(5) of the Ontario Family Law Rules allows courts to order to production of documents that are privileged, even without the consent of the parties, this power should be used sparingly. In regards to counselling records, the court should only order their production where:

1) They are relevant to an issue at trial and;

2) Doing so would not be unfair to either party

The court agreed that the information in the records was likely relevant to the parenting issues to be decided at trial. However, Justice Henderson stated that marriage counselling is assumed by the parties to be confidential, and that this is a requirement of having open and honest communication without fear of potential future disclosure. The court accordingly declined to order the production of the records, as doing so would be unfair to the husband.

This case demonstrates that while it is important that courts have all relevant information with which to make a decision, this must be balanced with the interests of confidentiality. While family courts have wide discretion to order production of records, there are still situations in which individuals can trust that what is said in private, stays private.

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