CAN YOU FORCE THE PRODUCTION OF THE NOTES OF THE MARRIAGE COUNSELOR OR THERAPIST

The answer lies within Rule 20(5) of the Ontario Family Law Rules.  It gives the court the ability to order the production of privileged documents, even if there is no consent.  In the recent decision of Justice Henderson of the Ontario Superior Court in the case of Raso vs. Di Egidio, he weighed carefully whether or not in a custody fight such notes or records should be released.  On one hand, Justice Henderson believed that there could potentially be very important information contained within these notes, but their release must be balanced against an effort to encourage parties to attend marriage counseling and the belief that it is a confidential process.    In that case, the judge balanced one motive against the other and hanging his hat on the basis that the wife in seeking the psychologist reports had waited far too long to make such a request, he refused their production at trial.  So one can ask a judge to force their production, but it is certainly not an automatic result.  So mark another area as discretionary.