WARNING

The court hearing this matter directs that the following notice 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 48(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.: Municipality of Chatham-Kent 01/08 Date: 2013-10-10 Ontario Court of Justice

Between:

Chatham-Kent Children's Services Applicant,

— AND —

R.T. and H.D.C. Respondents.

Before: Justice Stephen J. Fuerth

Heard on: October 8, 2013

Reasons for Order released on: October 10, 2013

Counsel

• P. Corneil — counsel for the applicant society
• D. Desmond — counsel for the respondent R.T.
• D. Sandor — duty counsel for the respondent H.D.C.
• B. Sands-Kellar — counsel for the Office of the Children's Lawyer, legal representative for the children

Decision

Fuerth, J.:

Motion for Disclosure of Investigator Information

[1] This was a motion for an order pursuant to Rule 20(5) of the Family Law Rules requiring the applicant to disclose the names and addresses of all private investigators hired by the applicant, and copies of all correspondence, retainer agreements and exchanges between the Society and the investigators, since November of 2012.

[2] The affidavit evidence in support of this motion consisted of a request for information, an affidavit of the mother and of her friend C.C.

[3] The tenor of the affidavits was that the mother, and her friend, observed unknown persons watching them, watching the mother's house, and taking pictures of the house, of them, and of the friend's car, particularly on May 8th, 2013.

[4] The mother appeared to be relying on comments by Justice Glenn in making an order in November 2012 granting the mother unsupervised access to the children to the effect that "a drop by by the Society may be appropriate, but that she was being very clear that the visits were not to be supervised."

[5] Her ultimate request in the affidavit was "that the Society cease any form of surveillance that enters into my home". She alleged that the Society was engaging "in what amounts to a search and seizure and surveillance, without a warrant into the confines of my own house".

[6] To that end, the mother's motion sought the requested relief.

Relevant Facts

[7] It is important to note three further facts. The parents have been subject to surveillance in the past, prior to November of 2012, which material was relied upon by the Society on a motion to apprehend the children because the parties were in breach of a court order. Secondly, on this motion, the Society filed no affidavit material and relied on a claim of litigation privilege. Finally, the mother brought a motion seeking to have the children returned to her care in which she alleged the same concerns, which motion was heard by Justice Glenn before the disposition of this motion.

Legal Arguments

[8] The moving party relied on the obligation of the Society to produce all relevant documentation on the basis of R. v. Stinchcombe.

[9] The Society relied on litigation privilege with respect to any alleged surveillance.

Legal Analysis

Disclosure Obligations

[10] The law in these matters is quite clear.

[11] The Society has an obligation to disclose all relevant material in its possession, or available to it through a third party. The Charter values are to be considered in Child Protection matters given the seriousness of the issues to the children, and the parties, and the potential of children being removed permanently from the care of their parents. As said by Justice Keast about the obligation, the bar is low and the net is wide. Children's Aid Society of Algoma v. S.B., 2008 ONCJ 358. The Stinchcombe obligation to disclose were recognized as early as 1993. See Justice Wolder's decision in Children's Aid Society of the Region of Peel v. V.J. as an example.

[12] A number of cases have also dealt with the implication of the obligation to disclose as it related to third party records, such as police investigations, or third party service providers. See Catholic Children's Aid Society of Toronto v. A.S., 2007 ONCJ 596, Catholic Children's Aid of Toronto v. P.A.D., [2008] O.J. No. 5586, and Children's Aid Society of the Region of Halton v. T.C.B., 2012 ONCJ 69.

Litigation Privilege

[13] The solicitor client privilege is alive and well in a post Charter, post Stinchcombe era as well. In the context of a child protection proceeding, this issue was canvassed by Scott, J., in Children's Aid Society of Hamilton-Wentworth v. A.L., in which the privilege was affirmed for discussions between in house counsel and society workers given with a view to offering legal advice.

[14] This was also reviewed in the decision of Mr. Justice Czutrin in C.R. v. Children's Aid Society of Hamilton, [2004] O.J. No. 1634 (OCJ Family Court). In that case, an argument was advanced that the Office of the Children's Lawyer ought to be required to produce its litigation file, and its staff social worker who conducted a social work assessment ought to be compelled to disclose the notes and records obtained during her work. The Court clearly upheld the solicitor client privilege, which extended to the members of the staff, and as well upheld the litigation privilege that extended to the work of the Social Worker.

[15] Child protection litigation is an adversarial process. In the context of this reality, Justice Czutrin said "litigation privilege is aimed at facilitation of the adversarial process. In this way, opposing parties are able to prepare their cases and be confident that the fruits of their preparation would not be turned over to the other side."

[16] He went on to quote paragraph 19 from the decision of the Court of Appeal in General Accident Assurance Co. v. Chrusz, as follows:

"In effect, litigation privilege is in the area of privacy left to a solicitor after the current demands of discoverability have been met. There is a tension between them to the extent that when discovery is widened, the reasonable requirements of counsel to conduct litigation must be recognized."

Surveillance as Work Product

[17] Surveillance is a well known and oft used tool for a party to litigation to obtain some evidence that undermines the assertions of a litigant to a certain state of affairs. It is frequently used in personal injury and worker's compensation cases to obtain evidence as to the extent of injuries, and the abilities of the claimant. In this particular case, the results of the surveillance were used to demonstrate that the parties were associating one with the other, with the children in their presence, in breach of a court order.

[18] The party engaging in a process of surveillance may find nothing, or may for other reasons, not seek to rely upon it. In such cases, the engagement and the resulting work product will not be disclosed. However, it is certainly also irrelevant to the proceedings, as it amounts to no evidence. The fact that surveillance took place at certain times with negative results is in my view irrelevant, and a waste of court's time and resources to be considered.

[19] The right of the parents is to have disclosure of the case they have to meet. Any suspected surveillance is not part of the case they have to meet at this time. I note that the Society has filed a trial management conference brief, and it has not listed any witnesses having regard to any alleged surveillance. I see no prejudice to the parents in this case in preparing their defence on the basis that there may have been surveillance with no appreciable result.

Disposition

[20] In the circumstances and for these reasons, the motion at Tab 77 is dismissed.

Released: October 10, 2013

Justice Stephen J. Fuerth