Court Subpoena in a Child Custody Case

Case

A teacher who has received a subpoena to appear in court to testify in a custody case asks the unit president what his obligations are.

Advice

The teacher who has been subpoenaed must attend court. If the court order also details the documents the teacher must bring, he must comply with the order and bring all his notes about the student. However, once in court, the teacher must ask the judge for another court order before disclosing anything about the student found in those documents. Even if such an order is made, no information from the Ontario School Record (OSR) may be disclosed without the written approval of the custodial parent or guardian if the student is under 18, or of the student involved if he or she is an adult. If the lawyer for either parent requests an interview with the teacher, the teacher is under no obligation to agree, even if the custodial parent gives permission. If the teacher does agree to be interviewed, he cannot reveal anything in the OSR without written permission from the custodial parent or guardian. The teacher may only speak about what he knows to be factual through his own experience and knowledge of the student.

In a private interview or in court, the teacher is not permitted to comment on the physical, mental or emotional state of the child because he is not an expert witness in those areas. The teacher may refer to personal notes, but may not say anything that relates to other students.

Discussion

The information about students that individuals obtain in their role as teachers is covered by the confidentiality provision in section 266 of the Education Act. Information contained in documents such as notes is also protected under the confidentiality provisions in the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA). Teachers appearing in court should advise the judge that because the information they have is confidential under section 266 of the MFIPPA and in light of this legislation, they are asking the judge to make an order requiring them to disclose the pertinent information.