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.

(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.

(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

Ontario Court of Justice

Date: 2015-01-28

Court File No.: Brampton 20061/14

Between:

The Children's Aid Society of the Region of Peel, Applicant,

— AND —

A.S., Respondent

M.H.P., Respondent

Before: Justice L.S. Parent

Heard on: January 21, 2015

Reasons for Judgment released on: January 28, 2015

Counsel

• Deana DeGrace — counsel for the applicant society
• Lorne Gershuny — counsel for the respondent A.S.
• Shelley Dawn McIntyre — counsel for the Office of the Children's Lawyer, legal representative for the children

PARENT J.:

Introduction

[1] On January 21st, 2015, the Children's Aid Society of the Region of Peel (the Society) brought motions pursuant to section 74 of the Child and Family Services Act seeking orders for the production of records in the possession or control of ten (10) third parties/institutions regarding the children, D.S-H. and P.S-H., and/or the mother, A.S.

[2] The Society's materials requests the production of records from the following third parties or institutions, namely:

(a) The Peel District School Board;

(b) Dr. David Hill;

(c) Community Living Mississauga;

(d) The Ministry of Community and Social Services Ontario Disability Support Program Income and Employment Supports;

(e) Dr. Gerard Kimmons;

(f) Dr. J. M. Dorey;

(g) ErinoakKids Centre for Treatment and Development;

(h) Kerry's Place Autism Services;

(i) Trillium Health Partners; and

(j) Dr. Dominic O'Dea.

[3] The Society filed Notices of Motions and affidavits in support of each of their requests.

[4] Only Dr. Gerard Kimmons responded to the motions brought by the Society. Dr. Kimmons, through a letter from his counsel, indicated his consent to the release of the records in his possession relating to the children D.S-H. and P.S-H. Dr. Kimmons, in compliance with section 183(2) of the Act, provided a letter from his counsel indicating his opposition to releasing the records in his possession regarding the mother, A.S. Accordingly, a hearing has been scheduled on May 27th, 2015, pursuant to section 183(3) of the Act, with regards to these records only.

[5] The respondent, A.S., is the mother of the children. She opposes the requests of the Society. The mother was permitted, on consent of all parties, to file her affidavit opposing the Society's requests at the beginning of the hearing.

[6] The respondent, M.H., is the father of the children. He has not responded to the Society's motions nor did he attend at the hearing of the motions. The father resides in the Philippines.

[7] The children are represented by counsel through the Office of the Children's Lawyer. Counsel for the children consents to the orders sought by the Society. Counsel for the children filed an affidavit in support of her position on behalf of her clients.

Background

A. The child, D.S-H.

[8] The child, D.S-H., is currently fourteen (14) years old. D.S-H. was apprehended from the care of her mother on June 26th, 2014.

[9] On July 2nd, 2014, the Children's Aid Society of Toronto commenced a Protection Application seeking the following orders:

(i) That the child D.S-H. is a child in need of protection pursuant to section 37(2)(b)(i)(ii) and (f) of the Act;

(ii) That the child D.S-H. be made a ward of the Society for a period of six (6) months; and

(iii) Access to be at the discretion of the Society taking into consideration the child's wishes.

[10] On July 2nd, 2014, Sherr, J. granted an order, on a temporary without prejudice basis, placing D.S-H. in the care of the Society with supervised access between the child and the mother twice weekly. The order also transferred the matter to the Ontario Court of Justice in the Region of Peel.

[11] On July 16th, 2014, a temporary care and custody hearing was scheduled to proceed on August 20th, 2014.

[12] On August 28th, 2014, I released my reasons for judgement following the hearing of the temporary care and custody hearing heard on August 20th, 2014. I granted an order placing D.S-H. in the temporary care of the Society with access at the Society's discretion taking into consideration the child's wishes.

[13] The temporary order granted on August 28th, 2014 is the current order in this matter.

B. The child, P.S-H.

[14] The child, P.S-H., is currently eleven (11) years old. P.S-H. was apprehended from the care of the mother on September 24th, 2014.

[15] On September 29th, 2014, the Children's Aid Society of the Region of Peel commenced a Protection Application seeking the following orders:

(i) That the child P.S-H. is a child in need of protection pursuant to section 37(2)(b)(i)(ii) and (f) of the Act;

(ii) That the child P.S-H. be made a ward of the Society for a period of six (6) months; and

(iii) Access to be at the discretion of the Society taking into consideration the child's wishes.

[16] On September 29th, 2014, I granted a temporary order, on a without prejudice basis and on consent of the parties, except regarding the frequency of the access, placing P.S-H. in the care of the Society. Following submissions from counsel, my order granted specified terms of access. The matter was adjourned to a temporary care and custody hearing on December 16th, 2014.

[17] On December 16th, 2014, Hawke, J. granted an order placing P.S-H. in the temporary care of the Society with access at the Society's discretion taking into consideration the child's wishes.

[18] The temporary order granted on December 16th, 2014 is the current order in this matter.

[19] On November 26th, 2014, an order was made, on consent of all parties and the children, consolidating the Protection Applications before the court regarding the children, D.S-H. and P.S-H., and prohibiting the mother from publishing or making public any identifying information regarding the children pursuant to section 45(8) of the Act.

[20] The mother has filed an Answer and Plan of care in response to the two Protection Applications. She seeks the return of both children to her care without the involvement of the Society.

[21] The father has filed an Answer and Plan of Care in response to the two Protection Applications. He seeks the placement of both children in his care pursuant to a supervision order.

Legal Framework

[22] The Society has brought its motions pursuant to 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:

1. An order under clause 51 (2) (b) or (c) that is subject to supervision.

2. An order under clause 51 (2) (c) or (d) with respect to access.

3. A supervision order under section 57.

4. An access order under section 58.

5. 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.

6. 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.

[23] Counsel for the Society submitted two cases for consideration, namely Catholic Children's Aid Society of Toronto v. S.(J.), 2013 ONCJ 200 and Children's Aid Society of London and Middlesex v. R.(J.), 2014 ONSC 4067.

[24] Counsel for the Society highlighted in her submissions the review by Sherr, J. in his decision in Catholic Children's Aid Society of Toronto v. S.(J.) of the case law guiding the interpretation of section 74 of the Act. Counsel referred to paragraphs 20 to 24 of this decision whereby Sherr, J. states the following:

(a) The court's authority under subsection 74(3) is discretionary. Justice Sherr refers to paragraph 43 of the decision in Children's Aid Society of Thunder Bay (District) v. D.(S.), 2011 ONCJ 100 which provides that "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 interest that militate against the disclosure of the material being sought.";

(b) The phrase "may be relevant" is not an onerous test. See: Children's Aid Society of Algoma v. P.(D.);

(c) The test for disclosure in section 74 of possible relevance is far less stringent than the civil test of disclosure from third parties set out in Ontario (Attorney General) v. Ballard Estate (1995), 26 O.R. (3d) 39. See: Native Child & Family Services of Toronto v. P.(S.), 2009 ONCJ 473; and

(d) The low threshold for production in section 74 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.

[25] Counsel for the mother and the children did not object to the submissions made by counsel for the Society regarding the issues the court must consider in determining motions brought pursuant to section 74 of the Act.

Analysis

[26] The focus of the Society's position in support of its motions is that the requested records are necessary and relevant to the determination of the Protection Applications before the court.

[27] The Society submits that the central issues raised in the Protection Applications regarding the children is the mother's ability to adequately protect and care for the children and the appropriate disposition.

[28] Counsel for the Society submitted that the production of the records sought is relevant and necessary for the following reasons:

(a) to assess the level of risk the mother poses to the children given her reliance on numerous community service providers to assist her in the care of the children and the mother;

(b) to assist in determining the children's needs and plans of care that are in accordance with the children's best interest given prior diagnosis and services involving both children and the mother;

(c) to secure material evidence, outside of the control of the Society, relevant to the issues before the court for determination;

(d) to ensure timely disclosure as some of the records sought have yet to be produced despite the record holders being provided with a consent by the children and/or the mother;

(e) to ensure disclosure of the records as there is a pattern of the mother consenting to the release of records and then revoking or limiting her consent thereby preventing the records from being produced; and

(f) to ensure disclosure of the records given the concerns of the Society regarding the mother's ongoing behaviour and mental health issues.

[29] Submissions by the Society submitted that they are seeking the production of the records for investigative and treatment purposes so as to assist in the determination as to whether or not the children are in need of protection as claimed in the Protection Applications filed and the appropriate disposition given this determination. It is for these reasons, counsel submitted, that the records the Society is seeking to be produced are relevant and necessary.

[30] Counsel for the children submitted that the Society has met its onus of satisfying the court, on a balance of probabilities, that the requested records are relevant and necessary for the determination of the matters before the court.

[31] Counsel for the children submitted that the public policy considerations outweigh the privacy considerations in this matter. She submits that the records are needed in order for the issues before the court, namely the finding of need of protection and disposition regarding both children, to be dealt with fairly, justly and in accordance with the paramount purpose of the Act as outlined in section 1(1), namely "… to promote the best interests, protection and well being of children."

[32] Counsel for the children also confirmed that both children are consenting to the release of all records requested by the Society as they relate to each of them. These consents, she submits, confirm that the children are not concerned with the impact on their privacy should the court order the production of these records.

[33] Counsel for the children noted that some of the records sought by the Society were previously ordered to be produced during a prior custody/access proceeding. Counsel submits that if the court found that the threshold of relevancy and necessity were met in that proceeding, the same conclusion should be reached in this matter especially that the current proceedings before the court are within a child protection context.

[34] Counsel also referred to sections 41(1) and (3) of the Personal Health Information Protection Act, 2004 which permits the OCL access to certain records and information. Counsel submitted that the mother consented to the release of some records to the OCL however incorporated an expiration date to her consent thereby making it difficult to obtain the records. Counsel submits therefore that the mother, at the time of her consent, was satisfied that the production of records she consented to were relevant, necessary and did not breach her or the children's right to privacy.

[35] Counsel for the mother submitted, in support of his client's position opposing the production of the records, that the records are not relevant to the issue of harm as plead by the Society in its Protection Applications. Counsel submitted that these records are therefore not necessary to determine the issues before the court.

[36] Counsel further submitted that harm would come to the children should the records be released given the nature of the discussions in the records, which include private discussions with counsellors and references to past bullying of and a suicide attempt by P.S.-H. in 2012.

[37] After a review of the materials filed by the parties and upon hearing submissions from counsel, I find that the Society has met its threshold of establishing that the production of the records they are seeking are relevant and necessary for the determination of the matters before the court. The Society's motions for the production of records as listed in the notices of motion, except the records of Dr. Kimmons regarding the mother, are granted.

[38] In granting these orders, I am satisfied that the information contained in the records are relevant and necessary to the issues before the court, namely whether or not the children are in need of protection and if so, what is the appropriate disposition. The records to be produced will assist the court in determining whether or not the children are at risk to suffer physical harm, whether or not this risk exists from the mother's failure to adequately care for, provide for and protect the children, whether or not a pattern of neglect by the mother exists and whether or not the children have suffered emotional harm. This family has accessed many community resources over a significant period of time. The input of these individuals/institutions is therefore relevant and necessary.

[39] I am not satisfied that the ground raised by the mother in opposition to these motions, namely that harm would come to the children given the content in some of these records is sufficient to limit or deny production. In making this determination, I note the children's consent to the production, without limits, and that the third parties/institutions, except Dr. Kimmons in a limited capacity, did not file any materials opposing or limiting the production sought by the Society. Furthermore, these third parties/institutions did not attend at the hearing of the motions.

[40] I am also mindful of the evidence that the mother initially consented to the release of some of the records sought to be produced to OCL counsel and the Society and then withdrew her consent or made it contingent on a certain time period. By consenting, even with conditions, the mother acknowledges that these records are relevant and necessary.

[41] For all of these reasons, I find that the requested records sought to be produced by the Society are relevant and necessary to the determination of the matters before the court and their production outweighs any potential risk of harm to the children and/or the mother flowing from this order.

Order

[42] For the reasons set out above, the Society's motions are granted on the following terms:

1. The Peel District School Board, Dr. David Hill, Community Living Mississauga, The Ministry of Community and Social Services Ontario Disability Support Program Income and Employment Supports, Dr. J. M. Dorey, ErinoakKids Centre for Treatment and Development, Kerry's Place Autism Services, Trillium Health Partners and Dr. Dominic O'Dea shall produce to the Society any and all records in their possession and control pertaining to the mother, A.S., born […], 1968 and/or the children, D.S-H., born […], 2001 and P.S-H., born […], 2003 within fourteen (14) days of this order;

2. Dr. Gerard Kimmons shall produce to the Society any and all records in his possession and control pertaining to the children, D.S-H., born […], 2001 and P.S-H., born […], 2003 within fourteen (14) days of this order;

3. The Society may disclose to counsel for all parties, and counsel for the child, all information, including copies of all documents received pursuant to the Orders for production granted.

4. In addition to the confidentiality provisions of s. 74(5) of the Child and Family Services Act governing all the parties, all respondents (but not their lawyers) are prohibited from copying any of the information disclosed to them.

5. With the exception of counsel for the Society, all lawyers are prohibited from providing copies of the information disclosed to their clients.

6. In addition to s. 74(5)(b), the information obtained pursuant to this Order may be disclosed to this Court in any document filed with this Court, in this Child Protection Application or any subsequent status review applications, including conference briefs and any motion material including affidavits.

7. The use of the information disclosed to the Society pertaining to D.S-H., born […], 2001 and/or P.S-H., born […], 2003 shall be used in accordance with providing services and/or treatment, ensuring fully informed assessments and obtaining professional opinions.

8. The use of the information disclosed to the Society pertaining to A.S. shall be used in accordance with ensuring fully informed assessments and obtaining professional opinions.

[43] The matter is adjourned to March 4th, 2015 at 10:00 a.m. in courtroom #209 to be spoken to. This appearance is necessary so as to determine whether or not the matters before the court on May 27th, 2015 will be limited to a hearing pursuant to section 183(3) of the CFSA regarding the production of the records in the control and possession of Dr. Kimmons regarding the mother, A.S., or in addition, include a motion for a parenting capacity assessment.

Released: January 28, 2015

Justice L.S. Parent