WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
45.— (8) Prohibition: identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
45.— (9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Court File No.: C57218/12
Date: 2013-04-18
Ontario Court of Justice
Toronto North Family Court
Parties
Between:
Catholic Children's Aid Society of Toronto
Fatima Husein, for the Applicant
Applicant
- and -
J.S., D.D., D.T. and L.J.
Respondents
The Hospital for Sick Children
Respondent to this Motion Only
Counsel
Lauren Israel, for the Respondent, J.S.
Michael E. Freeman, for the Respondent, D.T.
The Other Respondents Not Attending on the Motion
Herbert James Stover, for the Office of the Children's Lawyer, for the child, B.S.
Hearing and Decision
Heard: April 15, 2013
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] The Catholic Children's Aid Society of Toronto (the society) has brought a motion pursuant to section 74 of the Child and Family Services Act (the Act) seeking an order that the Hospital for Sick Children produce and release to them all clinical reports and records in its possession or control (the requested documents), regarding B.S. (the child).
[2] The respondent J.S. is the child's mother (the mother). She supports the society's motion for production of the requested records.
[3] The respondent D.T. (the stepfather) is the child's step-father and father of two of the child's siblings. He took no position on this motion.
[4] The respondent L.J. is the child's father. He has not participated in this case.
[5] The respondent D.D. is the father of one of the child's siblings. He has also not participated in this case.
[6] The Hospital for Sick Children, respondent to this motion only, did not attend at the hearing of this motion.
[7] The child is now 16 years old. She opposes the society's motion. She does not want the society, the mother or stepfather to see the requested records. In submissions, she indicated that she would be willing to sign a consent authorizing the Hospital for Sick Children to release the requested records directly to any of her treatment providers.
[8] The only material filed on this motion was the society's notice of motion and the supporting affidavit of their worker.
Part Two – Background
[9] The society issued this protection application on July 27, 2012[1] seeking a finding that the child and two of her siblings, then ages 6 and 3, be found in need of protection pursuant to clauses 37(2)(c) and (d) of the Act and be made society wards for six months.
[10] On July 27, 2012, Justice Ellen Murray made a temporary order placing all three children in the society's care.
[11] Also on July 27, 2012, York Region Children's Aid Society brought a protection application regarding another of the child's siblings (age 10). This child was placed in the temporary care of the society by the Superior Court of Justice – Family Court in York Region and the case was then transferred to this court.
[12] The children were placed in society care because the child made allegations of ongoing sexual abuse by many men, which she claimed was facilitated by the mother. The abuse disclosed involved her being drugged prior to her being made available for sexual gratification by men who paid her mother for the opportunity. The child alleged being sexually assaulted by the stepfather several years before. The child also alleged that her mother threatened to withhold food and shelter to her if she did not comply with the sexual demands made upon her. The child advised the society that she was afraid to return home to her mother.
[13] At the time of the apprehension, the child disclosed to the society self-harming behaviour. She told the society's intake worker that she was waiting for an appointment to see a psychiatrist and that she was suffering from depression and anxiety. She reported that in March of 2012 she went to the Hospital for Sick Children for three days and was discharged.
[14] The mother was charged with procuring illicit sex, procuring a person to become a prostitute, exercise control, living on avails of prostitution, overcome resistance and administer stupefying drugs. Her bail conditions prevent her from having contact with the child. The criminal case remains outstanding. No criminal charges were laid against the stepfather.
[15] The mother and the stepfather deny all of the child's allegations of misconduct against them.
[16] The mother is the only respondent who has filed an Answer/Plan of Care. She is agreeable that the child remain in society care for six months to obtain treatment. She seeks the return of the child's siblings to her care.
[17] On December 10, 2012, on consent, the child's siblings were placed in the temporary care of their maternal grandparents. They remain in their care.
[18] The child has no contact with any of the respondents.
Part Three – Legal Considerations
[19] The society's motion is framed under section 74 of the Act, which reads as follows:
Record
74. (1) In this section and sections 74.1 and 74.2,
"record" means recorded information, regardless of physical form or characteristics; ("dossier")
"record of personal health information" has the same meaning as in the Mental Health Act. ("dossier de renseignements personnels sur la santé")
Motion or application, production of record
(2) A Director or a society may at any time make a motion or an application for an order under subsection (3) or (3.1) for the production of a record or part of a record.
Order
(3) Where the court is satisfied that a record or part of a record that is the subject of a motion referred to in subsection (2) contains information that may be relevant to a proceeding under this Part and that the person in possession or control of the record has refused to permit a Director or the society to inspect it, the court may order that the person in possession or control of the record produce it or a specified part of it for inspection and copying by the Director, by the society or by the court.
Same
(3.1) Where the court is satisfied that a record or part of a record that is the subject of an application referred to in subsection (2) may be relevant to assessing compliance with one of the following and that the person in possession or control of the record has refused to permit a Director or the society to inspect it, the court may order that the person in possession or control of the record produce it or a specified part of it for inspection and copying by the Director, by the society or by the court:
- An order under clause 51(2)(b) or (c) that is subject to supervision.
- An order under clause 51(2)(c) or (d) with respect to access.
- A supervision order under section 57.
- An access order under section 58.
- An order with respect to access or supervision on an application under section 64 or 65.1. 5.1 A custody order under section 65.2.
- A restraining order under section 80.
Court may examine record
(4) In considering whether to make an order under subsection (3) or (3.1), the court may examine the record.
Information confidential
(5) No person who obtains information by means of an order made under subsection (3) or (3.1) shall disclose the information except,
(a) as specified in the order; and
(b) in testimony in a proceeding under this Part.
Conflict
(5.1) Subsection (5) prevails despite anything in the Personal Health Information Protection Act, 2004.
Application: solicitor client privilege excepted
(6) Subject to subsection (7), this section applies despite any other Act, but nothing in this section abrogates any privilege that may exist between a solicitor and his or her client.
Matters to be considered by court
(7) Where a motion or an application under subsection (2) concerns a record of personal health information, subsection 35(6) (attending physician's statement, hearing) of the Mental Health Act applies and the court shall give equal consideration to,
(a) the matters to be considered under subsection 35(7) of that Act; and
(b) the need to protect the child.
Same
(8) Where a motion or an application under subsection (2) concerns a record that is a record of a mental disorder within the meaning of section 183, that section applies and the court shall give equal consideration to,
(a) the matters to be considered under subsection 183(6); and
(b) the need to protect the child.
[20] The court's authority under subsection 74(3) of the Act is discretionary. The court may order the production of evidence that may be relevant, but it is not required to do so. The case law supports the proposition that, before making a subsection 74(3) order, the court should consider whether there are competing public policy interests or privacy interests that militate against the disclosure of the material being sought. See paragraph 43: Children's Aid Society of Thunder Bay (District) v. D. (S.), 2011 ONCJ 100.
[21] The phrase "may be relevant" is not an onerous test. See: Children's Aid Society of Algoma v. P. (D.). The society requires full disclosure to properly meet its mandate to investigate protection concerns. Some courts have defined the test as meaning a "semblance of relevance". A document may be relevant for production and investigation purposes, but may not be admissible at trial. See: Nova Scotia (Minister of Community Services) v. B.L.C., 2007 NSCA 45.
[22] The test for disclosure in s. 74 of possible relevance is far less stringent than the civil test of disclosure from third parties set out in Ontario (Attorney General) v. Stavro, (1995), 26 O.R. (3d) 39 (OCA). See: Native Child and Family Services of Toronto v. P. (Sherry) et al., 2009 ONCJ 473.
[23] The low threshold for production in section 74 of the Act recognizes that the society will often require third party records for investigative purposes so that they can adequately assess the risk to a child and be in a position to present relevant evidence to the court. See: Children's Aid Society of Algoma v. P. D. [2006] ONCJ 170.
[24] In determining relevance, the court must determine whether the evidence is not only logically relevant, but pragmatically relevant. The probative value of the evidence must outweigh any prejudice to its introduction. See: The Queen v. A.K. and N.K., 45 O.R. (3d) 641, (Ont. C.A.).
[25] The therapeutic records of older children receiving treatment have at times been given more protection than those of a party to a case, since the legislation is designed for their best interests and their need to receive treatment in confidence should be given considerable weight. This is what the court decided in Children's Aid Society of Ottawa v. N.S..
Part Four – Analysis
[26] The main thrust of the society's argument is that the requested records are necessary and relevant to the determination of this hearing to gain a better understanding of the child's health history and to assist in the development of a treatment plan that would best address her needs. The society submits that they want the child to participate in a trauma assessment and that production of the requested documents is necessary for this to take place. The society also argued that as they are now acting in the role of the child's parent, it is essential for them to have the child's medical records to properly plan for her.
[27] The society did not submit that it is seeking the requested records for investigative purposes. Rather, it submitted that it is seeking the requested records to assist them in facilitating treatment for the child.
[28] The society presented no evidence to the court that the requested documents would be required for investigative purposes. The society has already investigated the case, determined that the child is in need of protection and that her best interests require that she remain in their care. The respondents are not disputing that the child should remain in care. While the specific allegations of the child are disputed by the mother (and the stepfather), she does not dispute that her bail conditions prevent her from being available to parent the child, or that the child refuses to have contact with her. There is no need for the society to have the requested records to determine if the child is in need of protection or what disposition order is in her best interests.
[29] The society argued that the child continues to have critical mental health challenges and that they need the requested records to provide appropriate services for her. The evidence submitted did not support this contention. The last stated concern about the child's mental health referred to in the worker's affidavit was at the time of the apprehension (July of 2012). The court received absolutely no evidence about how the child is functioning now – how she is doing in school, in her foster placement or in her social interactions.
[30] The court received some information about the child's current treatment in a piecemeal manner at the hearing by questioning the parties. It appears that the child is seeing a psychiatrist once per month.[2] No evidence was provided to the court about what the society was doing about their concerns about the child's mental health.[3]
[31] The fact that this child has been in care now for over eight months and the society has taken little, if any, action to provide her with services certainly makes the court question how necessary at this time production of the requested documents to the society is to meet her treatment needs.
[32] The low production threshold in section 74 of the Act is designed to facilitate the society's investigation of the risk of harm to the child, not for the purpose of facilitating treatment of the child. If the child was still in her mother's care, the child would have the right to determine who could see her medical records.[4] A child doesn't automatically lose these rights just by virtue of the fact that the society assumes the role of her parent, particularly when there is no need for the society to have the records for the purposes of assessing risk of harm. As Justice Harvey Brownstone wrote in Children's Aid Society of Toronto v. M.M., [2010] O.J. No. 2550 (OCJ):
…regardless of whether the child is a society ward or a Crown ward, the authority of the children's aid society is the same as a parent. The society can have no greater nor lesser rights than a parent who has custody of a child.
[33] The child has made a very reasonable proposal about the requested records. She is prepared to attend for therapeutic treatment and execute a consent for the Hospital for Sick Children to send the requested documents directly to her treatment provider. This will ensure that her treatment provider has the necessary context to properly assist her. She also indicated through her counsel that she is willing to consider having a trauma assessment and having the requested records released to the assessor. The court is confident that the child's therapeutic needs can be adequately addressed without release of the requested documents to the society. If the society wants guidance from the child's treatment provider about what other services can be offered to her, the present indication is that the child would not oppose this, provided that private information is not divulged.
[34] It is also important for the court to consider the potential impact on the child if it ordered production of the requested records against her wishes. She is now 16 years old. The Family Law Act recognizes that she would have the right to withdraw from parental control.[5] She has made serious allegations of abuse against the mother and stepfather. From her perspective production of the records to the society would be another step down the road to the mother and stepfather receiving details of her private communications with people she trusted to keep confidences.[6] At the very least, a message would be sent to her that her privacy rights are not being valued by the court. At most, it is conceivable that such a decision might be harmful for what has been described as an emotionally vulnerable child.
[35] It is agreed that the child requires therapeutic treatment. Such treatment is likely to be more beneficial for her if the communications with her service providers are kept private.
[36] I find that any probative value in releasing the requested documents to the society does not outweigh the potential harm in doing so.
[37] The stepfather argued that the requested records might be necessary in the mother's criminal case to impeach the credibility of the child. This is not a valid reason to order production of the requested documents in this case. The child protection process is not to be used as a backdoor avenue to obtain documents for a criminal case.[7]
Part Five – Conclusion
[38] The society has not met the very low onus of establishing that the requested documents are relevant to this proceeding, or that they should be released to them.
[39] The society's motion is dismissed.
Date: April 18, 2013
Justice Stanley Sherr
Footnotes
[1] The child was 15 years old at the time.
[2] This appears to be the psychiatrist that the mother arranged prior to the child being apprehended.
[3] The society indicated in submissions that they are considering having a trauma assessment done for the child. They provided no specifics about this plan (such as who would do it or when). They had no legitimate explanation about why they have been so passive in arranging services for the child.
[4] See Part III of the Personal Health Information Protection Act, 2004.
[5] See: subsection 31(2) of the Family Law Act.
[6] Production of the requested documents to the society would trigger an argument by the mother and the stepfather that they are equally entitled to disclosure of this information. For instance, see the analysis in Children's Aid Society of Halton (Region) v. B. (T.C.) (2012), 12 R.F.L.(7th) 487 (OCJ).
[7] There is a process in the criminal proceeding to seek disclosure of such documents.