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 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 prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that the 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) (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

Halton Registry No.: 129/11

Date: 2012-02-10

Cite as: Children's Aid Society of Halton Region v. T.C.B., 2012 ONCJ 69

Ontario Court of Justice

Parties

Between:

Children's Aid Society of the Region of Halton, Applicant

— AND —

T.C.B. and L.T., Respondents

Before the Court

Justice: Sheilagh M. O'Connell

Heard on: 12 January 2012

Reasons for Judgment released on: 10 February 2012

Counsel

• Diane B. Skrow — counsel for the applicant society
• J. Marc Charrier — counsel for the respondent mother, T.C.B.
• Respondent father, L.T. — on his own behalf and assisted by duty counsel
• John O. Grant — counsel for the Office of the Children's Lawyer, legal representative for the child

JUSTICE S.M. O'CONNELL:

1: INTRODUCTION

[1] On January 12, 2012, the respondent mother brought a motion for an order for disclosure of all records relating to the child, N.C.T., born on […], 1997, from the following:

(a) the applicant in this proceeding, the Children's Aid Society of Halton Region;

(b) Dr. Alan Brown, the child's psychiatrist;

(c) Reach Out Centre for Kids (ROCK), a counselling agency; and

(d) Dr. Enas Abuelalaa, the family doctor.

[2] The applicant society, the child and the respondent father opposed the mother's request. Mr. Grant, on behalf of the child, advised the court that his client did not want his mother to read any records regarding him in the society file or in the records of other medical professionals and counsellors, particularly since he has been placed in his father's care. At the outset of the motion, the society acknowledged that the respondent mother was entitled to disclosure of the society's records, although not any third-party records in the society's possession, without the consent of those third parties. The society is prepared to make its file available to mother's counsel, subject to conditions. As I understood the position, the society opposed the production of third-party records, given the child's views.

[3] Dr. Brown, Dr. Abuelalaa and ROCK have advised the mother that they will release their records to the mother but require a court order given that the society, the father and the child are opposed to the release of the records. All of the non-parties were served with the mother's motion for disclosure and chose not to attend the hearing or make submissions. They specifically have not claimed privilege with respect to any of the records in their possession.

[4] This protection application is at the settlement conference stage in the court proceedings. Trial dates have not yet been scheduled. This is the mother's first request for disclosure. The mother recently retained new counsel, as her previous counsel could no longer represent her for personal health reasons.

[5] I previously released my oral ruling granting the mother's request, although with some modifications, with written reasons to follow. These are my written reasons.

2: BACKGROUND

[6] The society commenced this protection application on March 16, 2011 and is seeking a finding that the child is in need of protection pursuant to clause 37(2)(g) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended ("the Act"), namely that there is a risk that the child is likely to suffer emotional harm demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the mother who had charge of the child. The society is also seeking a finding that the mother abandoned the child pursuant to clause 37(2)(i) of the CFSA.

[7] The child, N.C.T., is 14 years old. The society has been involved with the mother and N.C.T. on a voluntary basis since 2003 as a result of the mother's difficulty in managing N.C.T.'s behaviour and the conflict between N.C.T. and his mother. The mother states that her involvement with the society has primarily been an attempt to obtain assistance for N.C.T., whom she describes as having very serious behavioural problems. The mother states that N.C.T has been diagnosed with Asperger's Syndrome, Attention Deficit Hyperactive Disorder (ADHD), and Oppositional Defiance Disorder. She states that she has been trying to get the right support and medication for N.C.T. for several years and that she has repeatedly sought assistance from the society.

[8] The mother reports that, as N.C.T. got older, he displayed very aggressive behaviour in her home, he has not done well at school and he is socially isolated from his peers. The mother states that, while in her care, N.C.T. has destroyed property, punched walls, made threats and has been abusive towards her and other members of the family. On at least one occasion, N.C.T apparently started a small fire in the family bathroom.

[9] The mother has been taking N.C.T to psychiatrists since he was approximately eight years old. Over the years, N.C.T. has been diagnosed with ADHD, ODD and possibly Asperger's Syndrome. He has been placed on a number of different medications. According to the mother, finding the right medication and dosage has been difficult and many of the medications have had awful side effects. Since 2008, the mother has brought N.C.T to the hospital seeking to have him admitted on at least three separate occasions because she was unable to cope with his disruptive behaviours at home.

[10] In 2008, the mother and child's family doctor, Dr. Enas Abuelalaa, who has met with N.C.T. on a number of occasions, referred N.C.T to Dr. Alan Brown. Dr. Brown is a child and youth psychiatrist and he has been treating N.C.T. since that time. According to the mother, Dr. Brown has diagnosed N.C.T. with autism. Dr. Brown has completed a number of psychiatric assessments of N.C.T. over the years, which include diagnoses, recommendations for treatment and recommended medication. Dr. Brown has also provided individual counselling for N.C.T. and apparently continues to do so.

[11] On March 16, 2011, the society apprehended N.C.T. from his mother's care. According to the mother, the child became angry and stormed out of the house and attended the police station. According to N.C.T. and the society, the mother had previously locked him out of their home and contacted the society and requested that N.C.T be placed in society care. The mother denies locking N.C.T. out of the house, although she agrees that she "had hoped that being in care of the society, N.C.T. would receive the care and medication he needed." She states that she was amenable to a temporary care agreement with the society to get N.C.T the services he needed, but the society refused. The mother wants N.C.T returned to her care.

[12] N.C.T.'s mother and father separated when he was very young and the parties have been engaged in a highly conflicted custody and access dispute since approximately 1998. The mother was granted custody of the child and the father was granted access although he states that, for many years, he had limited contact with N.C.T. due to the mother's obstruction and the mother's several moves with N.C.T over the years. The mother denies this and states that the father was violent and physically abusive towards her during their relationship and that N.C.T was traumatised by this abuse.

[13] In June of 2010, N.C.T started living with his father for approximately six months. The father states that the mother dropped N.C.T. off at his home one day and did not want him to return. The mother states that the father refused to return N.C.T after an access visit. In November of 2010, N.C.T went to visit his mother and did not return to the father. The mother states that N.C.T was afraid to return to the father and reported to her that he was very abusive. She produced a letter that N.C.T. wrote after returning to her home in which he describes emotional and verbal abuse by the father. The father states that the mother emotionally manipulated and pressured N.C.T to write the letter and remain with her.

[14] The father states that, during the six months that N.C.T. was living with him, N.C.T. did not display any of the aggressive or difficult behaviour that the mother describes and that he did not need the level of medication that the mother states that N.C.T. needed to control his behaviour. The father filed a number of psychiatric reports prepared by Dr. Brown in support of this position. According to a report dated October 7, 2010, Dr. Brown, reported the following while N.C.T was living with his father:

[N.C.T.] appears to be more stable both at home and at school. He is attending school on a regular basis: i.e.: feedback from school is that he is getting his homework done and in on time. He is also compliant in taking his meds on a regular basis...Overall at the present time I would have to say N.C.T. appears to be quite content and happy in his present environment living with his biological father.

[15] The society supports the father's position that N.C.T does well in his father's care and that he does not demonstrate the difficult behaviour and emotional instability that he experienced while in his mother's care. According to the father, N.C.T. does not need medication at all while he in his care.

[16] On June 2, 2011, after a contested temporary care and custody hearing in which both parents sought an order placing N.C.T. in their care, I granted the father temporary care and custody of N.C.T., subject to a supervision order containing a number of terms and conditions, including that the father shall ensure that he and N.C.T. attend counselling, if the society deems appropriate, and that the mother shall participate in a psychiatric assessment by a mutually agreeably psychiatrist.

[17] At the temporary care and custody hearing, the Children's Lawyer stated that N.C.T. did not express a strong preference for either parent, although he was clear that he did not want to be in foster care. He further stated that N.C.T. expressed that he would be content in the father's care.

[18] N.C.T and his father started counselling together with Dr. Brown in 2011. They had one joint session together followed by individual counselling for both the father and for N.C.T. prior to commencing joint sessions together. Both the father and the society state that N.C.T continues to do well in his father's care, he is doing very well at school, and his mood and behaviour are stable. They rely on the reports of Dr. Brown to support this position.

[19] The mother states that N.C.T. is not safe in the father's home and that he is afraid of his father. In September of 2011, the mother and N.C.T. attended a counselling session together at the Reach Out Centre for Kids ("ROCK"). According to the mother, N.C.T. described several violent incidents in the father's home since he was placed there. He stated that the father constantly yells at him and that he has thought of running away many times. According to the mother, N.C.T. did not report this to society workers because he was afraid that they would discuss it with his father, which would make him even angrier. He was also afraid of returning to foster care. At the end of the sessions, the ROCK counsellor gave N.C.T. the agency's crisis number.

[20] The mother states that since N.C.T. began living with his father, Dr. Brown has focused more on the father's reports about how well N.C.T. is doing in his care rather than on N.C.T.'s views. She believes that disclosure of the records will demonstrate that N.C.T. is not safe in his father's care and that N.C.T. does not wish to be in his father's care.

3: THE LAW

[21] The mother is seeking two different categories of disclosure:

(a) Disclosure from a party in the proceedings, namely the applicant society's records and files, including any non-party records in the society's possession;

(b) Disclosure of non-party records not in the society's possession, but in the control of those non-parties.

3.1: Disclosure of Society Records, Including Non-party Records in the Society's Possession

[22] The case law is clear that the society has the same obligation to provide disclosure to parents as the Crown does to defendants in criminal proceedings. There is no question that the principles established by Supreme Court of Canada in R. v. Stinchcombe, [1991] 3 S.C.R. 326, apply to child protection proceedings. In Children's Aid Society of Algoma v. Shane B., 2008 ONCJ 358, Justice John D. Keast explained the application of R. v. Stinchcombe to child proceedings as follows at paragraph [30]:

[30] It has long been recognized that the principles in The Queen v. Stinchcombe are applicable to child protection proceedings. In the criminal justice system, the disclosure net is cast wide, in part because of the severe consequences of many prosecutions. Child protection proceedings likewise often involve severe consequences for parents and their families. The indefinite removal of children for up to one year or the permanent removal of children are severe consequences. Thus, it is important there be a wide net and low bar for disclosure, in child protection proceedings. There is a parallel between the Crown's role in a criminal prosecution and a society's role involving the welfare of children. See Children's Aid Society of Sudbury and Manitoulin v. Ginette M., Benoit M. and Ernie S., per Provincial Judge André L. Guay; and Children's Aid Society of Peel Region v. Valerie J., per Provincial Judge Theo Wolder.

[23] In Catholic Children's Aid Society of Toronto v. Aldair S., 2007 ONCJ 596, Justice Ellen B. Murray described the society's disclosure obligation to parents as follows:

[17] Disclosure standards expected in child protection hearings, at least from a state agency requesting termination of a child-and-parent relationship, may be higher than those in other civil matters. The Supreme Court has recognized that protection proceedings engage the section 7 Charter rights of parents and held that Charter protection is not restricted to cases of physical restraint but includes any situation "where state compulsions or prohibitions affect important and fundamental life choices", including child protection matters. The court has held that procedural fairness in a child protection case requires that parents be accorded a process that enables them to present their case effectively.

[24] In the case above, Justice Murray extended the society's disclosure obligation to require that the society bring a pre-trial motion under subrule 19(11) of the Family Law Rules, O. Reg. 114/99, as amended, to obtain disclosure from a non-party expert witness that the society was relying upon and to provide that disclosure to the parents in advance of the trial. This case was upheld on appeal. In finding that the society had a duty to obtain disclosure from any expert retained or relied upon by it, Justice Murray stated the following:

[29] The Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, provides that its paramount purpose is to "promote the best interests, protection and well being of children" (section 1). It is in the interests of both children and parents in protection proceedings that disclosure obligations exist that ensure that the parties and the court have not only complete but early disclosure of relevant information and documents. Parents are not always represented and, even if they are, the nature of the retainer of their lawyers is often such that motions for disclosure of information that would be helpful in trial preparation are not brought. An obligation on the society to obtain disclosure from any expert retained by it of the data relied upon by that expert in reaching his or her opinion and to make that disclosure to other parties would promote the paramount purpose of the Act by facilitating earlier settlements and allowing for better trial preparation.

[25] Subject to any claims of privilege or privacy, the society's obligation to provide disclosure to parents extends to all third-party or non-party records in its possession. As the applicant in the child protection proceedings, any document in its possession from a third party flows to the respondents. This is well established by the case law.

[26] The decisions of Justice John D. Keast in Children's Aid Society of Algoma v. Deborah P. and Henry L., 2006 ONCJ 170, and Children's Aid Society of Algoma v. Deborah P. and Henry L. (No. 2), 2006 ONCJ 330 (the "D.P." decisions), affirm the principle that the respondents in the child protection case will receive the same disclosure that the children's aid society has received from third parties, excluding any third-party contact information that would infringe on privacy rights. Although these cases deal with the production of police and Crown records, the principles clearly apply to all third or non-party records in the society's possession. In Children's Aid Society of Algoma v. Shane B., supra, Justice Keast explained the principles he articulated in the D.P. decisions as follows:

[33] . . . The D.P. decisions focused on economy by dealing with the issues of disclosure to a society and also disclosure ultimately to parents and respondents, all under one umbrella, whether the respondents have formally requested disclosure or not. Usually respondents want what the society already has. The D.P. decisions enshrine the principle that respondents will receive the same disclosure as the society has received from the criminal justice system, minus contact information. There is then set up a mechanism by which the contact information may be obtained. Further, the use of the disclosure received by respondents is subject to terms, conditions and restrictions. . . .

[27] Rule 19 of the Family Law Rules sets out the procedure for obtaining documentary disclosure between parties. Prior to the amendments to the Family Law Rules, subrule 19(1) required that every party shall, within ten days after another party's request, give the other party an affidavit of documents listing every document that is relevant to the case and not protected by legal privilege. Subrule 19(1) was recently amended so that it does not apply to children's aid societies or the Office of the Children's Lawyer.

[28] In practice, affidavits of documents were rarely requested or prepared in child protection proceedings, hence the above amendments. This is due to the voluminous number of documents collected by the society during the course of its investigation and the amount of time and expense involved in creating an affidavit listing each document. Society workers are mandated to make a written recording of every telephone call and contact in relation to a family. There can also be numerous notes and reports from doctors, nurses, hospitals, schools and other collaterals. The standard practice that has developed in most agencies is for parent's counsel to make an appointment at the society's office to review the entire file and then to obtain copies of any documents requested at the legal aid rate. Some societies will also simply provide copies or a disc of the entire file at counsel's request at the legal aid rate, without necessitating an appointment at their office, subject to any claims of privilege and privacy. Society counsel usually vets the file first and may redact some third-party information to protect their privacy interests, and any information protected by solicitor-and-client privilege.

[29] This practice is actually a more efficient and comprehensive method of obtaining full disclosure as it enables parent's counsel to review the actual content of each document in the society's files and it enables the society to provide these documents in a timely fashion, rather than spending an inordinate amount of time producing a list of documents in an affidavit.

[30] It is concerning how few parents' counsel obtain disclosure at the outset of the child protection proceedings, and on regular intervals thereafter as the case unfolds. It cannot be emphasized enough how important disclosure is to understanding the case and preparing a proper answer and defence. Given the consequences of these proceedings to parents and children, disclosure should be routinely sought in child protection cases. If the lack of disclosure requests is due to the limited nature of the legal aid retainer, then counsel should be properly funded by Legal Aid Ontario to bring these requests. The society should also ensure that disclosure requests are facilitated in an expedient, efficient and cost-effective manner for parents' counsel, given the often-limited nature of parents' counsel's retainer.

3.3: Disclosure of Non-Party Records Not in the Society's Possession or Control

[31] Subrule 19(11) of the Family Law Rules governs the request for production of documents from a non-party brought by a party other than the children's aid society. Subrule 19(11) provides as follows:

(11) 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 purposes of the case instead of the original.

[32] The moving party must therefore demonstrate:

(1) that the documents are not protected by legal privilege; and

(2) it would be unfair to proceed with the case without the documents.

[33] In turning first to the issue of privilege, the case law has established that there are two broad categories of privilege: "class" privilege and case-by-case or "non-class" privilege. Class privilege is well defined in law and commonly refers to solicitor-and-client communications and settlement discussions between parties in litigation. See Slavutych v. Baker, [1976] 1 S.C.R. 254; and R. v. Gruenke, [1991] 3 S.C.R. 263.

[34] Case-by-case or "non-class" privilege is the communication originating from a special relationship that gives rise to a privileged status, such as the therapeutic relationship between a patient and a psychiatrist. The list of relationships is non-exhaustive and the common law can permit privilege in new relationships. The onus is on the person claiming privilege to demonstrate that the communications should not be disclosed. See Slavutych v. Baker, supra, and R. v. Gruenke, supra.

[35] In Slavutych v. Baker, supra, the Supreme Court of Canada adopted the "Wigmore test" for establishing a 'case by case' or non-class privilege. There are four fundamental requirements for establishing such a privilege:

(1) the communications must originate in a confidence;

(2) the confidence must be essential to relationship in which the communication arises;

(3) the relationship must be one which should be "sedulously fostered" in the public good;

(4) if all of the above requirements are met, then the court must consider whether the interests served in protecting the communication from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.

[36] These principles have been later affirmed in a number of cases. In A.M. v. Ryan, [1997] 1 S.C.R. 157, the Supreme Court of Canada held that the law of disclosure and privilege must be interpreted in light of values in the Canadian Charter of Rights and Freedoms, and that the law of privilege may evolve to reflect the social and legal realities of the times. The court addressed the balancing exercise upon which a court must embark once the first three requirements to establish privilege have been met. In that case, the victim of a sexual assault by a former psychiatrist brought a civil action for damages against him. The former psychiatrist sought disclosure of the victim's new psychiatrist's reports and notes. At the hearing for disclosure, the victim's new psychiatrist consented to the release of her reports, but claimed privilege regarding her notes of her private discussions with the victim.

[37] In A.M. v. Ryan, the court clearly rejected a "blanket" approach to privilege and held that the court must carefully consider the issue of privilege on a case-by-case basis. Justice Beverley McLachlin, speaking for the majority, stated the following:

[37] My conclusion is that it is open to a judge to conclude that psychiatrist-patient records are privileged in appropriate circumstances. Once the first three requirements are met and a compelling prima facie case for protection is established, the focus will be on the balancing under the fourth head. A document relevant to a defence or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential. On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged. The result depends on the balance of the competing interests of disclosure and privacy in each case.

[38] The absence of privilege does not necessarily result in an order for disclosure. Once the issue of privilege has been determined, then the court still must consider the second part of the test under subrule 19(11): whether it would be unfair for a party to proceed to trial without the documents sought.

[39] The factors established by the Ontario Court of Appeal in Attorney General for Ontario v. Stavro, (the "Stavro" test) should be applied when determining the second part of the test under subrule 19(11). See Catholic Children's Aid Society of Toronto v. D.W.; Godwin v. Bryceland, 2008 ONCJ 495. The factors are the following:

(a) the importance of the documents in the litigation;

(b) whether disclosure or production can be postponed until trial: is it necessary to have production at the discovery stage to avoid unfairness;

(c) the position of the non-parties with respect to production;

(d) the availability of the documents or their informational equivalent from some other source; and

(e) the relationship of the non-parties from whom production is sought to the litigation and the parties to the litigation.

4: ANALYSIS

4.1: Disclosure of Society Records

[40] The law is clear that the mother is entitled to all of the records in the society's possession, subject to solicitor-client communications and the redacting of third party information to protect their privacy interests. I will grant the respondent mother's request for this disclosure. This duty to disclose includes all non-party records in the society's possession. If the society is relying on those records in support of its position in this litigation, then the mother is entitled to the production of those records to understand the case against her. Even if the society is not relying upon the third-party records in its possession, the mother is entitled to disclosure of those records to determine their importance. Those records may be relevant and admissible in support of the mother's position.

[41] The society routinely contacts and obtains records from hospitals, schools, the police and other third parties during the course of its investigation and when formulating its position. To insist that it needs the consent of those third parties prior to releasing the records to the parents as part of file disclosure is an incorrect understanding of the society's legal duty to provide meaningful disclosure to parents in child protection proceedings when requested. The obligation to provide full disclosure to permit a full answer is paramount in child protection proceedings.

4.2: Disclosure of Non-Party Records Not in the Society's Possession

4.2(a): Are Any of the Records Privileged?

[42] Although the onus is on the person seeking "case by case" privilege to convince the court that the records should not be disclosed, neither opposing party nor the child, through his counsel, filed evidence to assist the court in determining whether privilege should be recognised in this case. It is possible that the opposing parties and the child are not claiming privilege, but only that the records should not be disclosed to protect privacy interests and to prevent harm to the child. However, there was no evidence led or filed regarding what harm, if any, may come to the child if the records are disclosed. Further, no evidence was filed demonstrating why the privacy concerns of the respondent father and the child outweigh the benefit of disclosure. The society, the respondent father and the child did not file anything in response to this motion for disclosure.

[43] With respect to the records of ROCK, and Dr. Abuelalaa, I find that no privilege attaches to these records. There is no evidence that that any of the communications between N.C.T. and the ROCK counsellor originated in confidence or that there was any expectation of privacy or a need for privacy. The respondent mother was present for the intake appointment with N.C.T., the purpose of which was to gather information from N.C.T. and the mother before the counselling started. No counselling took place between the mother and N.C.T. The mother wishes disclosure of these records to prove her assertion that N.C.T. made statements to the ROCK counsellor about his fear of his father and that is a very relevant issue in these proceedings.

[44] Similarly, there is no evidence of any expectation of privacy or confidentiality regarding the medical records of Dr. Abuelalaa, which presumably contain the records of Dr. Abuelalaa's examination of N.C.T.'s mental and physical status, treatment and the reasons for referral of N.C.T. to Dr. Brown. These records appear to fall well short of any claim of privilege. This court also notes that medical records are routinely introduced in child protection proceedings pursuant to section 52 of the Ontario Evidence Act, R.S.O. 1990, c. E-23, as amended, from treating practitioners or as business records if all of the requirements of the Evidence Act have been met.

[45] Despite the complete absence of evidence to establish that the medical records are privileged, this court recognises that the information contained in medical records is personal in nature and there is some expectation of privacy between an individual and his family doctor. However, the records contain information about the history of N.C.T.'s physical, mental and emotional health, presumably while in his mother's care and in his father's care. The potential importance of this information in arriving at the correct disposition regarding N.C.T.'s future and the correct determination of his best interests far outweighs any privacy interests.

[46] Regarding Dr. Brown's records, N.C.T.'s psychiatrist, I find that, with the exception of any private counselling sessions between N.C.T. and Dr. Brown in which the purpose is solely therapeutic, all of the psychiatric notes, records, examinations and assessments of Dr. Brown, including the joint sessions between N.C.T. and both parents are not privileged.

[47] Again, there was no evidence that the communications made by the respondent father or N.C.T. or both to Dr. Brown in preparation of his numerous assessments and reports were made in confidence. Even if there was privilege, that privilege was waived by the respondent father as all of the reports were filed in these proceedings in support of his position.

[48] One of the issues to determine in this case is whether N.C.T. is more emotionally stable and safe in his father's care after being removed from his mother's care. The society and the respondent father rely upon Dr. Brown's reports, including his joint sessions with both parents and N.C.T. to demonstrate that N.C.T. is doing well and is safe in his care, contrary to how N.C.T. was doing in his mother's care. These records, including the father's joint counselling sessions with N.C.T., are very relevant to the issues to determine in this case and are not privileged. The importance of getting at the truth in this litigation outweighs any interest in protecting these communications from disclosure.

[49] However, the therapeutic records of N.C.T.'s private discussions and treatment with Dr. Brown, if any, are privileged. In my view, if N.C.T. has had any private discussions with Dr. Brown for therapeutic purposes only, and not for assessment purposes, then out of an abundance of caution, these communications should not be disclosed.

[50] Courts have long recognised that the private, therapeutic discussions between a psychiatrist and his patient are generally made in confidence, the element of confidentiality is essential to the relationship and the relationship should be fostered by the community (the first three parts of the Wigmore test). When addressing the balancing of interests required in the fourth part of the Wigmore test, particularly in the context of child protection proceedings, some courts have recognised that the therapeutic records of older children receiving counselling will be given more protection than the records of a party.

[51] In Children's Aid Society of Ottawa v. N.S., Justice Alan D. Sheffield refused the respondent mother's request for disclosure of her 15-year-old daughter's guidance counselling records. After finding that the first three parts of the Wigmore test had been met, with respect to the fourth part of the Wigmore test, Justice Sheffield found that, although the context of a child protection proceeding may support the mother's contention that her right to disclosure should override any possible claim to privilege with respect to the counsellor's notes, the student/child's "best interests" would not be well-served by disclosure of the guidance counsellors records. As he stated:

[26] . . . Indeed, precisely because this is a child protection matter, the child's "best interests" should guide the entire proceedings and all related hearings and applications, since all orders made pursuant to the Child and Family Services Act, including child protection orders, must be made in the best interests of the child.

[52] There is evidence before me that N.C.T. has had a difficult and troubled time. He is 14 years old and his need to receive treatment in confidence regarding his conflictual relationship with either or both parents, the conflict between his parents, and any other issues, outweigh the interests of disclosing this information at this stage in the child protection proceedings, if at all.

4.2(b): The Second Part of the 19(11) Test:

[53] Having found that none of the third party documents are privileged with the exception of N.C.T.'s private, therapeutic counselling sessions with Dr. Brown, subrule 19(11) still requires me to determine whether it would be unfair to the mother to go on with the case without the documents.

[54] In my view, having considered all of the factors in the Stavro test, and as required by the Court of Appeal, these documents should be disclosed as they are very important and relevant to the litigation, their disclosure should not be postponed until trial, keeping in mind the strict statutory timelines in child protection proceedings, the documents are not available elsewhere, and the non-parties do not object to their production.

5: CONCLUSION

[55] In conclusion, for the above reasons, the following order regarding the mother's motion for disclosure is as follows:

1. The respondent mother shall have full disclosure of the society's records, including all third-party records in the society's possession, subject to privilege, and subject to the society's right to redact third-party contact information that would infringe upon privacy rights;

2. The respondent mother shall have full disclosure of all of the assessments, tests, notes and records of Dr. Allan Brown, including all of the notes and records of any and all family sessions or meetings between the child, his parents (the respondents) and stepparent with Dr. Brown, save and except for all notes and records of any private discussions or private individual counselling sessions between Dr. Brown and the child alone;

3. The respondent mother shall have full disclosure of all of the assessments, reports, tests, notes and records of the family doctor, Dr. Enas Abuelalaa regarding the child and the family;

4. The respondent shall have full disclosure of all of the assessments, notes and records of Reach Out Centre for Kids (ROCK) regarding the child and both respondents, including intake appointments and assessments, save and except for any private discussions and private individual counselling sessions between the individual child and counsellor(s) alone;

5. This disclosure is subject to the following restrictions:

(a) the use of the documents shall be restricted to this litigation;

(b) the documents shall not be released to anyone other than the parties and counsel or to professional experts assisting with the litigation; and

(c) the documents shall be sealed in the court file at the end of the litigation.

Released: 10 February 2012

Signed: Justice Sheilagh M. O'Connell

Footnotes

[1] See Catholic Children's Aid Society of Toronto v. Aldair S. (2008), 64 R.F.L. (6th) 219, [2008] O.J. No. 5759, 2008 Carswell Ont 8589 (Ont S.C.).

[2] See subrule 19(1.1) of the Family Law Rules, as added by O. Reg. 383/11.

[3] The society obtains production of non-party records, including police and medical records, through the procedure outlined under section 74 of the Act. The test for production under that section is that the records are "possibly relevant" and therefore establishes a very low threshold given the society's mandate to protect children and carry out a full investigation of any child protection concerns.

[4] See John Henry Wigmore: Evidence in Trials at Common Law (McNaughton rev.) (Boston: Little, Brown & Co., 1961), volume 8.