Jocelyn Rivera Espejo-Clarke

This appeal concerns the interaction between a provincial legislative scheme governing child protection (CYFSA) and a federal legislative scheme for removing those without citizenship or immigration status from Canada (IRPA).

Specifically, it addresses a disclosure order granted to the Minister of Public Safety and Emergency Preparedness in a child protection status hearing.

The motion judge granted the disclosure, which was upheld by the Superior Court.

The appellants (the parent, the Children's Aid Society, and the Office of the Children's Lawyer) argued that the disclosure order improperly prioritized the Minister's interests over the children's privacy and best interests.

The Court of Appeal found that while the motion judge had jurisdiction to order disclosure, she erred by not requiring the Minister to establish a prima facie basis for the scope of submissions or the requested disclosure.

The appeal was allowed, and the matter remitted to the motion judge for reconsideration based on a new framework requiring the Minister to justify the scope of submissions and disclosure.

The Minister of Public Safety and Emergency Preparedness brought a motion within ongoing child protection proceedings, seeking disclosure of case documents and the right to make submissions regarding a final supervision order.

This was prompted by an existing deportation order against the mother and one child, which is stayed if the Minister has an opportunity to make submissions under the Immigration and Refugee Protection Act.

The Catholic Children’s Aid Society of Toronto, the mother, and the Office of the Children’s Lawyer opposed the extent of the Minister's requested involvement, arguing for limited submissions and no disclosure.

The court found it had jurisdiction, either explicitly under the Family Law Rules or implicitly, to order disclosure to a non-party.

It ruled that the Minister was entitled to make informed and meaningful submissions on all relevant issues, including whether a genuine lis existed between the parties, and ordered the society to provide past and future relevant documents, with strict conditions on their use to protect privacy.