Court File and Parties

Ontario Court of Justice

Date: 2016-02-08

Court File No.: Halton 325/07

Between:

Terry Frances Beatty, Applicant

— and —

David Paul Sluski, Respondent

Before: Justice Marvin Kurz

Heard on: January 25, 2016

Reasons for Judgment released on: February 8, 2016

Representation

• Terry Beatty: on her own behalf
• David Sluski: on his own behalf
• Diane Skrow: counsel for the Halton Children's Aid Society, non-party to this proceeding

KURZ J.:

[1] Introduction

[1] The Applicant mother, Terry Frances Beatty, moves for disclosure of the records of a non-party under Rule 19(11) of the Family Law Rules. She seeks the complete records of the Children's Aid Society of Halton Region (the "CAS") in regard to the parties' two children, Melissa Sluski-Beatty, born December 30, 2008 ("Melissa"), and James Beatty Sluski, born July 19, 2005 ("James") (collectively "the children"). Ms. Beatty states that the Society has been involved with her family since before Melissa was born.

[2] Ms. Beatty argues that she requires all of these records in order to allow her to prepare for a trial that will focus on the issue of access by Mr. Sluski to the children. [1]

[3] Both Mr. Sluski and the Society oppose the requests, albeit for slightly different reasons.

Background

[4] The upcoming trial in this proceeding is the latest step in over eight years of conflict between the parties over the children. The children have been seen by numerous professionals and appear to have been severely affected by the conflict. In her November 5, 2013 endorsement, O'Connell J., who previously case managed this case, referred to it as "… a very high conflict case". She added that "…both parties have made severe allegations about the other's parenting." In addition, each party has brought at least one contempt motion against the other.

[5] Among the professionals that have been involved with this family is the CAS, which has worked with the family on a voluntary basis since before Melissa's birth. The CAS has never commenced a child welfare proceeding regarding the children, but has investigated a number of allegations that have arisen between the parties.

[6] Most notably, Ms. Beatty has previously alleged that Mr. Sluski sexually abused or committed a sexual impropriety against one or both of the children on at least three occasions. [2] The CAS never confirmed the allegations. O'Connell J. warned in her endorsement of February 20, 2014 that "[t]he Court is becoming increasingly concerned about the number of complaints to the C.A.S. and the police by the mother, all of which to date have not been verified."

[7] More apposite to this motion, Ms. Beatty raised another allegation of sexual misconduct. She claims that the father's oldest child, whom I will call NS [3], sexually abused or behaved in a sexually inappropriate manner towards Melissa. Ms. Beatty adds that James and a third child, Patrick, who is not subject to this proceeding, has been affected by this alleged behavior.

[8] The Society investigated the claims but did not substantiate them. The family was sent to the McMaster Children's Hospital Child Advocacy and Assessment Program ("CAAP") for a "child maltreatment assessment". In its report of July 13, 2015, CAAP reported that "Melissa had not disclosed any information to CAAP to support exposure to sexual maltreatment." [4] However there was evidence that NS had touched Melissa on the bum and that the child had noted this behavior. [5]

[9] CAAP formed the opinion that Melissa's previous disclosure of sexually inappropriate behavior at the hands of her step-sibling was the result of suggestion or leading questions by her mother and maternal grandmother. The CAAP report stated:

It is CAAP's opinion that Melissa's understanding of [NS]'s behaviors towards her has been influenced by the responses of her adult caregivers, particularly Ms. Beatty's and the maternal grandmother's responses and their belief that Melissa was sexually abuse [sic] [6]

[10] While discounting the sexual abuse allegation, the CAAP report did raise a serious concern. It stated that the children "…had been exposed to maltreatment, specifically neglect and emotional harm, which has impacted on their functioning." [7] It also supported the relationship between the children and their half-sisters. [8]

[11] Ms. Beatty does not accept these findings and recommendations. She states that they differ from what she was orally advised by CAAP. She has a recording of her disclosure meeting with CAAP, which she plans to play at the trial.

[12] Ms. Beatty has also sued a number of agencies who failed to confirm her newer sexual abuse/misconduct allegations. She sues on her own behalf and on behalf of her three children. She has prepared a "Proposed New Inclusive Statement of Claim" [9], in which she seeks over $65 million from various agencies, institutions and their employees.

[13] Among the parties that Ms. Beatty seeks to sue are the CAS, a number of its employees, the Halton Regional Police Services, a number of its officers, the Office of the Children's Lawyer, two of its social workers, the McMaster Children's Hospital (which operates CAAP), and two of its employees. Ms. Beatty also includes a claim against Mr. Sluski and his mother (whom she claims to have failed to properly supervise an access visit between Mr. Sluski's four children).

[14] In her 33 page, 104 paragraph draft statement of claim, Ms. Beatty essentially claims that Melissa was sexually abused by her step–sister, that Melissa's two brothers were harmed, and that the rest of the defendants negligently investigated and/or failed to protect those children.

[15] Ms. Beatty has also taken to social media. Using a pseudonym, she has complained, in an often graphic manner, about her child's alleged sexual abuse and the purportedly negligent response of the CAS.

Issues for Trial

[16] The issues for the impending trial of this matter can be summarized as follows:

a. whether Melissa was sexually abused or mistreated by her step-sister in Mr. Sluski's care,

b. if so, whether Mr. Sluski is responsible for that state of affairs, and

c. whether, in consequence, Melissa's contact with her step-sisters needs to be proscribed in some manner.

[17] Ms. Beatty will argue that Mr. Sluski is a negligent access parent who often left the children unsupervised or poorly supervised during his access periods. She will claim that this alleged negligence led Melissa (and by extension all of her children) to be victimized. Mr. Sluski will challenge this allegation and claim that Ms. Beatty is coaching Melissa to make false sexual abuse allegations.

Rationale for Requesting Broad Ranging Disclosure from CAS

[18] Ms. Beatty states that she requires the entire CAS file in advance of the trial. She says that she needs it to prove two alleged facts. First she intends to establish that Melissa was sexually abused by her step-sister. Second she will try to have the court verify that the CAS failed to properly investigate the allegations, and thus that its opinion cannot be trusted.

[19] She also adds that she requires records of every contact between Mr. Sluski and the Society to attack his credibility at trial. She broadly asserts that he has offered differing narratives to the Society and to the court about events that the Society has investigated. She wishes to impeach his credibility using the CAS records.

Response from Mr. Sluski and CAS

[20] Mr. Sluski opposes the release of the records. He is not represented and thus does not have a full appreciation of the legal issues that this motion raises. However he fears that Ms. Beatty, who displays a fixed belief that his eldest daughter, NS, sexually abused his youngest daughter, will violate NS's privacy rights. He also believes that these records will not assist the trial.

[21] The CAS takes a more sophisticated tack, one based on the law and concerns about the manner in which Ms. Beatty will treat the records she seeks.

[22] Ms. Skrow refers first to the applicable rule for the disclosure of third party records in family law proceedings, Rule 19(11) of the Family Law Rules. It reads as follows:

DOCUMENT IN NON-PARTY'S CONTROL

(11) 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.

[23] Ms. Skrow argues that Ms. Beatty failed to prove that it would be unfair to her to proceed to trial on the issue of access without the complete Society file.

[24] Ms. Skrow also refers to the decision of O'Connell J. in The Children's Aid Society of the Region of Halton v. T.C.B. and L.T., (2012) unreported, OCJ file no. 129/11. In that case, O'Connell J. applies the four part test set out for third party disclosure by the Ontario Court of Appeal in Attorney General for Ontario v. Stavro to child welfare proceedings.

[25] The "Stavro" test, as O'Connell J. described it, sets out five factors for the court to consider in a motion for third party disclosure. They are:

1. The importance of the documents in the litigation;

2. Whether disclosure or production can be postponed until trial; is it necessary to have production at the discovery stage to avoid unfairness;

3. The position of the parties with respect to production;

4. The availability of the documents or their informational equivalent from some other source;

5. The relationship of the non-parties from whom production is sought to the litigation and the parties in the litigation.

[26] In applying these points, Ms. Skrow makes the following arguments:

• There is no proof that it would be unfair for Ms. Beatty to go to trial without the records;

• The request for the Society's entire records is not proportional to their utility to the trial process;

• The records are requested for a collateral purpose;

• The court should be concerned about the confidentiality of the records if they are simply given to Ms. Beatty.

[27] Ms. Skrow argues that Ms. Beatty has offered no evidence that she would be prejudiced by going to trial without the CAS records. Any evidence elicited during the Society's investigation of the alleged sexual assault of Melissa will be available to Ms. Beatty and the court in any event. Ms. Beatty has the recordings of the police/CAS interviews of the children and can play them at trial. She can call the appropriate workers to testify as well.

[28] With regard to proportionality, Ms. Skrow speaks of the time and cost of assembling years of records and then going through them to redact confidential third party information.

[29] With regard to collateral purpose, Ms. Beatty has sued the CAS and its workers. She has provided to court with evidence of her desire to use the records to, in her own words, "prosecute" the CAS employees whom she believes let her down. In addition, most of her recent affidavits go to great length to insult and disparage the CAS and its workers.

[30] Finally Ms. Skrow argues that Ms. Beatty has taken it upon herself to disclose information about NS and that child's sexual abuse at the hands of a caregiver. Ms. Beatty has done so in the course of raising her concerns about Melissa's alleged sexual abuse.

Ms. Beatty's Reply

[31] Ms. Beatty replies that she needs the records to show that the CAS investigated her allegations negligently and improperly. She also wishes to compare the CAS and CAAP records. She plans to argue that the CAS's failure to confirm her claim that Melissa was abused by her step-sister should be ignored because its investigation was faulty.

[32] Ms. Beatty denies that her request is disproportionate to the litigation utility of the documentation she seeks. She states that the CAS has already copied some of its records for her review at its office. She adds that NS has a long history of sexualized behavior and that the CAS's records will bring this out.

[33] Further, and this seems to be a key issue for Ms. Beatty, the trial will boil down to a credibility contest between herself and Mr. Sluski. She argues that she needs the records of every contact between Mr. Sluski and the Society in order to impeach his credibility. However she fails to refer to any specific statements which she wishes to rely upon as part of that impeachment process.

[34] Ms. Beatty admits that she had a collateral purpose when she first brought this motion, but has now learned better. She realizes that she must get disclosure for each proceeding she brings from that proceeding's level of court.

[35] Finally she denies having disclosed any confidential information received from the police through her disclosure requests. Any information that she has disclosed regarding NS has not come from the Society. Further she has not revealed NS's full name in her internet postings. Thus the court should trust her enough to release CAS records to her.

Analysis

[36] Any motion such as this balances the rights of a party to present the most robust evidence possible against the interests of persons or bodies who may resist the full disclosure requested.

[37] Full disclosure of all relevant evidence is essential to any set of court procedures. The principle is particularly important to any process that has the best interests of children at its heart. But that cannot be the end of the story. Parties are not entitled to just any documentation they wish, particularly from third parties. They cannot just claim some remote element of potential relevance to justify overly broad disclosure from non-parties. The relevance has to be clear. The disclosure requested (including the cost and effort to produce it) has to be proportionate to the value of the requested evidence to the court's truth finding role.

[38] The Supreme Court of Canada's decision in Hryniak v. Mauldin helps to emphasize these points. Hryniak recognizes and directs a culture shift in litigation in Ontario. The decision calls for courts to resolve disputes in as efficient and proportional a manner as possible. As Karakatsanis J. wrote for the high court at par. 2:

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pretrial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. [emphasis added]

[39] This notion is reflected in Family Law Rule 2(5)(g), which requires courts to consider whether the likely benefits of taking a step justify the cost.

[40] The application of this proportionality analysis to disclosure in family law litigation was taken up by Perell J. in Boyd v. Fields. There he wrote at par. 12:

Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules. A party's understandable aspiration for the outmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact finding process are factors. I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact's attention from the main issues and unduly occupy the trier of fact's time and ultimately impair a fair trial.

[41] Perell J. also referred to Rules (2)(2) and 2(3) of the Family Law Rules. Rule 2(2) sets out that the primary objective of those rules is to deal with cases justly. Rule 2(3) states:

Dealing with a case justly includes,

a) ensuring that the procedure is fair to all parties;

b) saving expense and time;

c) dealing with cases in ways that are appropriate to its importance and complexity; and

d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[42] Perell J. found that the disclosure rights and obligations under the Family Law Rules must also be assessed in the light of Rule 2(3).

[43] Some of the CAS records are relevant to the trial issues I identified above. In particular, the CAS's interviews with the parties and the children meet the test of relevance and proportionality.

[44] However the issue of the Society's purported negligence in investigating the alleged abuse is not relevant to the determination of the issues between the parties. It is literally a matter for another day and potentially another process [13]. To allow that issue to be dragged into this case would not allow the trial court to deal with this case justly, in accord with Rules (2)(2) and 2(3).

[45] Further, the court has reason to be concerned, based on Ms. Beatty's past behavior, about two issues: the collateral purpose to which she would put the CAS records and that their confidentiality may be breached.

[46] It is indisputable that Ms. Beatty has clearly and recently articulated the desire to use the CAS records for purposes collateral to this proceeding. At paragraph 5 of her affidavit of August 5, 2015 she was quite open about her intentions, stating:

I intend to use the information within the Halton CAS file, not only, to support my position with the Family Court proceedings, but also, to support the civil action already initiated, in addition, to support the personal prosecutions against the negligent CAS supervisors and CAS workers.

[47] At paragraph 1 of her affidavit of January 21, 2016, filed just four days before the argument of this motion, Ms. Beatty wrote regarding CAS counsel, Diane Skrow, and CAS protection worker, Meaghan Christie:

You both need to lose your jobs and be in jail for the harm you've caused my children, specifically my daughter, and myself. I made the right decision adding you, Ms. Skrow, into the civil case …

[48] Rightly or wrongly, Ms. Beatty is clearly engaged in a campaign against the CAS. Ms. Beatty now says that she has changed her mind about her collateral use of the CAS records she seeks. Ms. Beatty's purported 11th hour change of heart cannot eliminate the concerns raised by her own recent words and years of scorched earth litigation against Mr. Sluski and now the CAS.

[49] I accept that Ms. Beatty has not publicly disclosed the police records that she received following another disclosure motion. Yet I believe that there remains reason to be concerned about the confidentiality of any CAS documentation produced to her.

[50] In documents available to the public (including in this proceeding), Ms. Beatty has disclosed very private details of NS's sexual abuse by a caregiver. Ms. Beatty attempts to justify this disclosure by claiming that it explains NS's alleged propensity towards sexual abuse. This argument is problematic from many angles, from blaming a victim to making unproven psychological claims. It does not advance this litigation.

Proposed Resolution

[51] At one point during the argument of the motion, I formulated a possible resolution, which I presented to the parties. It would allow Ms. Beatty to access and provide to the trial judge the relevant elements of the CAS's records in a proportional manner. At the same time, it would serve two purposes. First, it would protect the rights of those mentioned in the records. Second it would also save the CAS from going to unnecessary lengths to vet and produce those records.

[52] Both Ms. Beatty and Mr. Sluski originally agreed to the proposed resolution. Ms. Skrow stated that she lacked instructions to accept it, but concurred that it appeared to be a reasonable weighing of all of the parties' interests.

[53] My proposed endorsement called for the following:

a. The CAS will make available to Ms. Beatty a copy of its complete file with regard to its investigation of the allegation that Melissa and James were sexually abused or the subject of inappropriate sexual conduct by a step-sibling. This will include any records of any interviews with any parties and Melissa and James. It will not include, without further court order, any records of any interviews with any children other than Melissa and James. It will also not include any internal emails of the CAS.

b. Ms. Beatty may review a copy of the CAS file as set out above, at reasonable times and on reasonable notice for the Society. The Society may excise any third party information and any children's names in accord with its policy. The CAS will present to this court a copy of all such records requested by Ms. Beatty at the trial of this proceeding. Those records will be sealed unless this Court orders otherwise.

c. Mr. Sluski has indicated that he is not seeking similar disclosure from the CAS. Should he change his mind and not be able to make similar arrangements with the Society, he may move before me for that relief.

d. If Ms. Beatty seeks any records regarding any other children but those subject to this proceeding, she may move before me, with notice to those children's parents, for that relief.

e. Ms. Beatty will not release any information contained in the CAS's records released in accord with my order to any third party (other than any professional treating her children or her counsel). Nor shall she place any such information on the internet, nor use it in any other legal proceedings without further order.

Request to Release All CAS Records of Statements by Mr. Sluski

[54] After originally agreeing to the terms set out above, Ms. Beatty asked me to add a term in which all of the statements made by Mr. Sluski to the CAS would also be released to her in the same manner and under the same terms as those records set out above.

[55] Ms. Beatty again opined that these records were relevant to the determination of credibility at trial. Mr. Sluski may have said one thing to the CAS and another in his affidavits. Ms. Beatty would want to impeach his credibility with those records.

[56] Both Ms. Skrow and Mr. Sluski objected to the release of these records on the grounds of overbreadth. They argue that the records requested do not relate to an issue at trial. The work involved in reviewing the records to find every statement made by Mr. Sluski to the Society is not worth the benefit to the fact finding function of the trial judge.

[57] I agree for two reasons. First, Ms. Beatty does not point to specific statements made by Mr. Sluski to the CAS that she believes to have contradicted any statements that he made to this court. An unsupported assertion that a prior inconsistent statement may be unearthed is not sufficient to show relevance. [14]

[58] Second, the attempt to impeach a witness's credibility using a prior inconsistent statement is limited by the relevance of the statement to the substance of the case. Any attempt to use prior inconsistent statements on matters not material to the trial also runs afoul of the collateral evidence rule and ss. 20 and 21 of the Ontario Evidence Act. [15]

[59] In sum, this request appears to me to be a fishing expedition conducted by Ms. Beatty, using line and tackle that she expects to be supplied by the CAS. I will not grant her the licence to embark on that journey.

Disclosure Ordered

[60] Accordingly I order disclosure of CAS records to Ms. Beatty in accord with paragraph 53 above.

Access Issue Adjourned

[61] The issue of supervised access between the children and the two oldest children of Mr. Sluski was to be reviewed on October 22, 2015. However the review never occurred. No time was allocated and no materials were filed to allow me to deal with the issue when the third party disclosure motion was argued. On consent, I adjourn the issue of whether access between all four children should take place at a supervised access centre over to March 4, 2016 at 9:00 a.m.

[62] I request that the CAS workers who supervised the visits, Ms. Brenda Smith, Ms. Katherine Bennett and Ms. Lynda Dikken, report by affidavit on their observations of the visits. Since Ms. Bennett and Ms. Dikken observed the same visit, I am content to obtain a report from one of them. The affidavit of Ms. Bennett will include the notes of her interviews with Melissa before and after the supervised visit.

Released: February 8, 2016

Marvin Kurz J.

Footnotes

[1] The issue of the proper quantum of support will be also be litigated at trial.

[2] see endorsement of O'Connell J. of February 20, 2014

[3] and to a lesser extent, NS's sister, whom I will call TS

[4] CAAP assessment report, July 13, 2015, p. 40

[5] ibid.

[6] ibid. p. 50

[7] ibid, p. 45

[8] ibid p. 57

[9] This is Ms. Beatty's second suit against the defendants, as the first was dismissed at the pleadings stage.

[10] Attorney General for Ontario v. Stavro, (1995) 26 O.R. (3d) 39.

[11] Hryniak v. Mauldin, [2014] S.C.R. 87

[12] Boyd v. Fields, [2006] O.J. No. 5762 (O.S.C.J.)

[13] whether Ms. Beatty's lawsuit or through the complaint process available under the Child and Family Services Act

[14] see the comment of L'Heureux-Dubé J. about bald assertions of the likely relevance of prior inconsistent statements, made in the context of a request for third party records in criminal proceedings, in R. v. O'Connor, [1995] SCJ No 98 (QL), at par. 142. While dealing with a different legal context, the comment is germane to this case.

[15] Those provisions require that the prior statements must be "relative to the matter in question".

See also Sopinka, Lederman & Bryant, The Law of Evidence in Canada (4th Ed.), Lederman, Bryant and Fuerst, (2014), LexisNexis, at par. 16.171