Court File and Parties

Date: October 5, 2020

Court File No.: F302/19

Ontario Court of Justice

Between:

Crystal Girdlestone Applicant

— And —

David Bentley Respondent

Before: Justice K.A. Baker

14B reviewed in chambers: September 28, 2020

Endorsement released: October 2, 2020

Revised Endorsement released: October 5, 2020

Counsel:

• C. Bruni, for the Applicant
• David Bentley, Self-Represented Respondent

Heard: In Writing

Endorsement

BAKER, J.:

Introduction

[1] This is a Form 14B motion brought by the Respondent father, seeking various orders for production from non-parties, including police, paramedics, Brantford Family and Children's Services, and various hospitals.

[2] The Applicant in turn has brought a cross-motion seeking to amend the Application and to have a settlement conference scheduled or in the alternative, to have the motion that is scheduled for December 9, 2020 converted to a settlement conference. She has also filed an affidavit to respond to the Respondent's motion, which she opposes in totality.

[3] The Respondent has not filed any response to the cross-motion and his time for doing so has now expired.

[4] I am adjudicating this motion remotely and I do not have access to the entirety of the court file.

Applicable Legislation and Legal Framework

[5] I will deal first with the Respondent's motion. The Respondent has cited the Child, Youth and Family Services Act and the case of Lewis v. Schuck, which citation he does not provide but which would appear to coincide with Lewis v. Schuck, 2018 ONSC 3887.

[6] This matter is a domestic family case. It must be decided under the provisions of the Children's Law Reform Act, R.S.O. 1990, c. C-12 and not the Child, Youth and Family Services Act. The latter statute has no application to this motion.

[7] Rather, the authority for this motion derives from the Family Law Rules and particularly, Rule 19(11), which deals with disclosure of a document in a non-party's control.

[8] The Rule provides as follows:

DOCUMENT IN NON-PARTY'S CONTROL — If a document is in a non-party's control, or is available only to the non-party and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,

(a) Order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

(b) Order that a copy be prepared and used for all purpose of the case instead of the original.

Service Requirements

[9] A review of the Rule reveals a preliminary issue with respect to service of the motion on the non-parties. It requires special service. Several of the respondents to the motion, including Hamilton General Hospital, Cambridge Hospital and St. Joseph's Hospital Hamilton were served by email. The Brant County OPP was served by next day courier.

[10] The requirements for special service are set out at Rule 6(3). That Rule does not permit either email or next day courier service.

[11] In the case of Hamilton General Hospital, this may not be problematic as it is apparent from an email forwarded by the Hospital and included in the Respondent's motion materials that the Hospital is aware of the motion and has decided not to take a position in the motion.

[12] The Respondent has not requested approval of the irregular service upon the other respondents to the motion and no basis for such is set out in the evidence. (In various communications with non-party respondents to the motion, the Respondent relies on my endorsement of August 26, 2020, seeming to suggest it permits service by email. It does not.)

[13] I would not be prepared to make an order for production against those non-party respondents without proper service in accordance with the Rule or without a claim for the appropriate relief and a basis for its granting (such as in the case of Hamilton General Hospital).

Applicable Test for Production of Third-Party Records

[14] The case of Lewis v. Schuck is of limited utility to the Respondent in this motion. That case dealt with a motion brought by the Applicant under Rule 19(1-4). The documents sought were within a party's control. The test is different for those documents under the control of a non-party.

[15] That case can also be distinguished on several points. For example, the Applicant was seeking release of records from a named physician who had treated the Respondent. The Respondent had previously relied on various letters from that physician, thus reducing his privacy interest. Further reducing his privacy interest was the fact that the Respondent had previously authorized the release of his medical information to the Office of the Children's Lawyer.

[16] It is also notable that the court in Lewis declined to order production of the decoded OHIP summary as it would, "amount to a fishing expedition" in light of the order otherwise made.

[17] In this case, the onus is on the Respondent on a balance of probabilities, to demonstrate that it would be unfair for him to have to go on with the case without production of the records sought and that the records are not privileged.

[18] In Jackson v. Dixon (2019) CarswellOnt 19981, Justice Lise Parent of the Ontario Court of Justice provided a comprehensive outline of the relevant law in a motion brought under Rule 19(11). Justice Parent started with the recognition that such motions trigger privacy interests. The court further noted that it must consider the issues of proportionality and relevance. Although relevance is important, this is not the test under Rule 19(11): it must be "unfair" for the moving party to proceed without the litigation.

[19] In Bailey v. Bailey, 2012 ONSC 2486, the Ontario Superior Court of Justice set out the six criteria to be satisfied for the production of third-party records to be ordered. The six criteria are as follows:

a) The documents are in a non-party's control

b) The documents are available only to the non-party

c) The documents are not protected by legal privilege

d) It would be unfair for the party seeking the disclosure to proceed without the information sought

e) The documents sought are relevant and necessary; and

f) Notice is provided to the non-party.

[20] In this case, it is logical to think that the first two criteria are met.

[21] In response to the motion, the Applicant has not expressly claimed that the records are privileged. I am mindful however that this matter is being determined by Form 14B as a result of the current court restrictions due to the public health emergency. Accordingly, I have not had the benefit of oral argument.

[22] The Applicant has however complained that the motion seeks disclosure of "very intimate information about my medical records". This assertion certainly seems tantamount to raising the issue of privilege as defined by the Wigmore criteria. Even if I am wrong on that point however, a plain reading of the Rule and the existing jurisprudence demonstrate that the onus is on the moving party to demonstrate an absence of privilege. This makes sense given the inherent and significant privacy considerations at play.

The Wigmore Test and Privilege Analysis

[23] The leading decision regarding the release of medical and/or therapeutic records is A.M. v. Ryan. In her judgment Chief Justice McLachlin stated the following:

1. Everyone owes a duty to provide evidence relevant to a matter before the court so the truth may be determined.

2. Privilege is an exception to the above duty if it can be shown that the privilege is required by a public good which supersedes the general principle that all relevant evidence be produced in order to ascertain truth.

3. The common law will recognize a right of privilege as reflected in the Wigmore test.

4. The law of privilege must evolve to reflect the social and legal realities of the time and must keep Charter values in mind.

5. Charter values under the fourth part of the test include privacy, equal treatment and benefit of the law as per s. 8 and 15 of the Charter.

6. Even where there are compelling reasons to protect the communication from disclosure, it must be shown that the benefit to maintaining the privilege, however great that might seem in fact outweighs correct disposition of the litigation. The balancing of these two elements is an exercise of common sense and good judgment.

7. If a court determines that there should be production of privileged documents in order to get at the truth, the extent of production should consist of what is necessary to obtain that result. The need to get at the truth does not automatically mean that there must be full disclosure. Disclosure of some but not all and restricting who may see the documents are acceptable tools in the balancing of these two competing interests.

8. A judge may conclude that psychiatrist-patient records are privileged in appropriate circumstances. Once the first three Wigmore requirements are met and a compelling prima facie case is made for protection, the task and focus will then proceed to balancing under the fourth head.

9. Fishing expeditions are inappropriate where there is a compelling privacy interest at stake.

10. A civil litigant must be prepared to accept some intrusion on her-his privacy to the extent it is necessary to get to the truth but civil litigation is not a waiver of privacy nor a license to probe into private matters unnecessary to determine the litigation.

11. A judge may, but need not, examine the documents in issue in deciding whether or not to order production.

[24] The Wigmore test is as follows:

1. The communication must originate in a confidence that they will not be disclosed

2. The element of confidentiality must be essential to the full and satisfactory relationship between the parties (to the communication)

3. The relationship must be one which in the opinion of the community ought to be sedulously fostered; and

4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the action.

[25] The Wigmore criteria provide a general framework only. The analysis must be focused on the specific circumstances of the litigation and the issues in the case.

[26] In Godwin v. Bryceland (2008) 2008 ONCJ 495, the court set out the following factors which should be considered in determining whether it is "unfair" to require a party to proceed without the document sought:

a) The importance of the documents in the litigation

b) Whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the appellant

c) Whether the discovery of the defendant with respect to the issues which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the defendant

d) The availability of the documents or their information equivalent from some other source which is accessible to the moving parties; and

e) The relationship of the non-parties from whom production is sought to the litigation and to the parties to the litigation. Non-parties who have an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true "stranger" to the litigation.

[27] As noted in Cojbasic v. Cojbasic, 2008 ONSC 8256:

"There is no blanket privilege for all medical records. Yet it is well known that a fishing expedition is not permitted and orders for production of medical records are not made as a matter of course. Before production will be ordered there must be evidence that connects the contents of the record to an issue in the case. Simply by making a claim for custody the entire medical history of a parent does not become relevant."

Changed Nature of the Litigation

[28] This comment is particularly relevant to the herein case, as the case itself would appear to be in flux. At the outset of the litigation, the Applicant was seeking a change to the child's custody or in the alternative, substantial unsupervised access. In her cross-motion, the Applicant has now indicated that she is substantially limiting her claims for relief, seeking only some form of supervised access and abandoning in totality her claim for custody.

[29] The Applicant must be successful in her claim for relief as the relevant Rule (Rule 11(3)) provides that a court shall give permission for a party to amend a claim unless doing so would disadvantage another party in a way in which costs or an adjournment could not compensate. Here, there is no suggestion that the amendment would disadvantage the Respondent and so permission must be granted.

[30] If the making of a claim for custody does not render the entire medical history of a parent relevant, then certainly the making of a claim for access, especially supervised access, does not do so.

Analysis of Specific Production Requests

1. Request for Release of All Records of Brant Family and Children's Services

[31] Here, the production sought by the Respondent is sweeping. He seeks hospital records relating to "substance abuse, physical health, mental health and any other relevant information to the fitness of (the Applicant) to care for the child." He seeks any records of the Brant OPP that demonstrate "abnormal behavior" on the part of the Applicant. He seeks any relevant police records including records relating to a diversion program the Applicant participated in as a result of being apprehended for shoplifting.

[32] I will deal with each of the claims in turn, although I will group similar non-party records:

[33] The evidence of the Respondent on this point is fairly nonspecific. It does not provide any indication of dates of the Applicant's alleged involvement with this agency. It asserts that the agency has adopted a "position" that the child remain in the custody of the Respondent with professionally supervised visits through Dalhousie Place. The Society is not however involved in this litigation. The Respondent has not offered any corroborating evidence for this assertion, such as a letter from the Society. Neither has he stated any basis for his allegation that the Applicant has "rejected the terms and conditions" of Brant Family and Children's Services.

[34] More importantly, if the Respondent is already privy to this information, it is difficult to see how it would be "unfair" to require him to proceed with the case without disclosure of each and every document ever created or collected by that agency.

[35] Requests for production must be proportionate to the significance, importance and complexity of the issues. Requiring a public agency to search its records, and undertake a review of them with a view to redaction of privilege content is a significant imposition. Given the issues that will henceforth be before the court, it is very difficult to see how this kind of request is proportionate.

[36] Aside from that, there would seem to be other avenues for the Respondent to obtain the informational equivalent of the material sought. For example, the Respondent could request (if he does not already have it) a letter from Brant Family and Children's Services setting out the nature of their previous involvement and setting out its current concerns and/or position, if any.

[37] Even without such a letter however, this information could have readily been made available. This is because the order made August 26, 2020 scheduled the matter for a focused hearing and expressly provided that either party could call a witness from the agency.

2. Request for Hospital Records

[38] Again, the Respondent's evidence for this claim is relatively nonspecific and at times, highly speculative and unsourced. At paragraph five of his supporting affidavit sworn September 16, 2020, the Applicant asserts, "Hospital records from many hospitals contain documentation about substance abuse, physical health issues and mental health issues that highlight child protection concerns".

[39] This is pure speculation.

[40] Although the Respondent goes on to say that "hospital staff" at Brantford General Hospital have informed him that the Applicant has attended "with sometimes significant overdoses", he does not provide any specific identification of the source of this information. Neither does he provide any specifics as to when this information was received or when the events that apparently gave rise to the statements occurred.

[41] Again, the request is extremely broad. It includes all information about "physical health" although the Respondent provides no evidence to support that the Applicant's physical health is relevant.

[42] The evidence to demonstrate that the Applicant has mental health issues is vague and unsourced, consisting of an assertion that "last the Respondent heard" the Applicant's counsellor was no longer going to be involved. Although the Respondent asserts the Applicant has been diagnosed with Dissociative Personality Disorder, he provides no basis for this "knowledge".

[43] There is nothing to indicate that the Applicant has even had contact with Grand River Hospital or St. Joseph's Healthcare. The relief requested in that regard is a pure fishing expedition.

[44] In any case, the Respondent is apparently already in possession of evidence that the Applicant has attended hospitals. He says that the Applicant has made inculpatory statements in that regard. The Applicant acknowledges a cognitive issue. She does not deny having received service from Cambridge Memorial Hospital or from Brantford General Hospital.

[45] The request for production is far too broad for the issues that are now raised by the litigation. It is not proportionate.

[46] It would seem likely from the materials submitted in these motions that there may be a potential for various facts to be admitted, including the fact of hospital attendances and the reasons for them. A much more efficient way for the Respondent to address the allegations would be for him to serve a Request to Admit, so as to identify and/or narrow the factual background issues.

[47] I am not satisfied that at this point in time, it would be unfair to require the Respondent to proceed with the case without the very significant production sought, especially given the changed nature of the issues for determination. The broad sweep of materials sought raises significant privacy and equality interests on the part of the Applicant. Given the Applicant is now only seeking some form of supervised access, it is difficult to see how the competing interests can be resolved in favour of release of highly intimate records.

3. Police Records

[48] I am not satisfied that there is any relevance whatsoever to the records of a diversion program that the Applicant attended for a shoplifting incident.

[49] The evidence in support of police records consists solely of the assertion that records of "different police detachments should (my emphasis) show patterns of abnormal behavior and possible offences".

[50] This is a rather obvious fishing expedition.

4. Records of Brantford Paramedics

[51] The Respondent's evidence for this claim consists of the single unsourced assertion that paramedics have "had to be called numerous times" to deal with the Respondent.

[52] It bears mention that Rule 14(18) requires that the affidavit in support of a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. Rule 14(19) provides that the affidavit may also contain information that the person learned from someone else, but only where the source of that information is identified by name and the affidavit states that the person signing it believes the information is true.

[53] Unfortunately, much of the "evidence" relied upon by the Respondent in this motion falls short of these requirements.

[54] The Respondent has cast his net far too widely and prior to considering whether there is some other less onerous and intrusive manner to get all relevant information before the court.

[55] The manner in which the claims have been pleaded also create difficulty. Any court order imposing obligations upon non-parties (and parties for that matter) should be sufficiently clear that the party affected by the order can clearly understand their obligation. Here, the Respondent has proposed that various service providers, such as police, produce all information about "abnormal behavior" or "issues that might be relevant to identifying issues that might impact (the Applicant's) fitness to parent." It is unreasonable to think that police or paramedics would be in a position to determine what is relevant to the Applicant's ability to parent. Nor is it reasonable to impose on the record keepers the discernment of what constitutes "abnormal behavior".

Applicant's Cross-Motion

[56] Turning now to the motion brought by the Applicant: as I have already indicated, the claim for amendment of pleadings must be granted. The granting of this relief substantially alters the landscape of this litigation. It is reasonable to think that the matter may now benefit by a settlement conference.

[57] Given the new situation, it is reasonable to send the matter to settlement conference so that a fresh look at the current claims can be undertaken. It is no longer tenable to have the matter proceed on to a focused hearing on the scheduled date, given the time required for amendment and response. (I note as an aside that had the Respondent's motion been granted it also would have required a change to the scheduled hearing date as there is no reasonable prospect that such a broad swath of materials could be produced, reviewed and collated for use at the hearing in the time remaining before the date set for the hearing.)

[58] The focused hearing was scheduled as an in-person hearing due to the potential for some viva voce testimony. An in-person settlement conference would be preferable to maximize the potential for narrowing issues or even resolution.

Orders

[59] Accordingly:

1. The Respondent's motion for production from non-party record holders is dismissed, without prejudice to his renewing production requests at a subsequent motion or trial management conference.

2. The focused hearing of December 8, 2020 at 2:30 p.m. shall be vacated. The dates for exchange of material set out in the order of August 26, 2020 shall be set aside.

3. The matter shall be scheduled for settlement conference on December 8, 2020 at 2:30 p.m. scheduled for 90 minutes — to be conducted in person, barring further restrictions being announced by the Ontario Court of Justice.

4. Parties to serve and file Settlement Conference Briefs in accordance with the Family Law Rules.

5. The Applicant shall be permitted to serve and file an amended Application by October 16, 2020.

6. The Respondent may serve and file an amended Answer within the time lines set out in the Family Law Rules.

7. Any party seeking costs may file written submissions not to exceed five pages exclusive of any Bill of Costs by October 9, 2020. Any response to the submissions for costs to be filed within seven days of service of the written submissions.

Dated at Brantford, Ontario

This 2nd day of October 2020

The Honourable Justice K.A. Baker