Access, Privacy, Children and Joint Legal Custodians (updated)
Commissioner Kruzeniski’s blog Who Signs for a Child? (updated) described the rules under The Freedom of Information and Protection of Privacy Act (FOIP), The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP), and The Health Information Protection Act (HIPA) applicable to legal custodians.
The Commissioner explained that subsections 59(d) of FOIP, 49(d) of LA FOIP and 56 of HIPA give a legal custodian the right to sign on behalf of their child. He added that depending on the terms of any applicable court order, agreement, one or both parents could sign for the child.
Since publishing that blog, our office conducted a privacy investigation involving two parents who had signed an Interspousal Agreement which included a provision that they would have joint custody of the children of the marriage. The parents disagreed about whether one of their child’s information should be disclosed to a stepparent.
In Investigation Report 083-2022, the Commissioner found that where two legal custodians, with equal rights and responsibilities under an Interspousal Agreement, disagreed, the wishes of one legal custodian could not prevail over the wishes of the other.
This raised the question “How does the head of a local authority or institution, or trustee manage access to information requests or consents to collection, use or disclosure involving children where their joint legal custodians disagree?”
There is no requirement for a head or trustee to canvass the views of every legal custodian to satisfy themselves that the custodian making a request or signing on behalf of a child is doing so with the agreement of the other. However, where a head or trustee is aware that one of the joint legal custodians does not agree with a request or consent provided by the other, they should not rely on the direction of one legal custodian, only.
When determining whether legal custodians have equal rights and responsibilities, heads and trustees will need to consider subsection 3(1) of The Children’s Law Act, 2020 (CLA) which provides:
3(1) Unless otherwise ordered by the court and subject to subsection (2) and any agreement pursuant to subsection (3), the parents of a child are joint legal decision makers for the child, with equal powers and responsibilities.
If there is a court order or agreement between the parties, the legal rights and responsibilities of the parents will be determined by the applicable order or agreement.
The rights of joint custodial parents were considered in a recent review of an access decision. In the Commissioner’s Review Report 175-2022, a joint custodial parent (Applicant) sought access to their 17-year-old child’s personal health information from eHealth Saskatchewan (eHealth). There was a court order in place which stated that the Applicant and the child’s father had joint custody of their child. Based on a review of the court order, the Commissioner found that the Applicant was the child’s legal custodian. However, unlike the circumstances in Investigation Report 083-2022, in this case, there was no evidence before the Commissioner or eHealth that the child’s father objected to the disclosure of the child’s personal health information. Therefore, the Commissioner found that there was no obligation on eHealth to canvass the views of the child’s father in making its decision on whether to grant the Applicant access to the requested records.
However, it should be noted that the Commissioner found that the child was a mature minor and was capable of exercising their own rights and powers. Therefore, he found that the Applicant did not have the ability to exercise their child’s right of access pursuant to subsection 56(d) of HIPA.