Ontario Court of Justice

Between:

CHILDREN'S AID SOCIETY OF BRANT

Applicant

• and -

N.M.P.

Respondent

• and -

C.L.

Respondent

• and -

MISSISSAUGAS OF THE NEW CREDIT, BAND COUNCIL

Respondent

• and -

L.H.

Respondent

Reasons for Judgment

Before the Honourable Justice K. Baker

On April 8, 2016, at Brantford, Ontario

Appearances

• Elizabeth Capitano, Counsel for the Children's Aid Society of Brant
• Eliza Montour, Counsel for Mississaugas of the New Credit

Reasons for Ruling

BAKER, J. (Orally):

This is a motion by the First Nation for release of records held by Waterloo and Brant Family and Children Services in relation to the added party, L.H., the current caregiver to the child.

This was brought in the context of an upcoming trial that will pit against one another the competing plans of L.H. and a plan advanced by the Society and First Nations for adoption of the child by paternal kin, D.S. and T.K.

The Brant Society has a historical protection file with respect to L.H. and it is not opposed to that file's release. L.H. agrees that this is relevant and consents to the release. This is being affected through the usual channels and no order is being requested.

The Waterloo Society did not respond to the motion for production of its records, and no one appeared on its behalf. Ms. Montour's office contacted that agency on Friday, and again today, with respect to the motion.

The Waterloo Society apparently denied receipt of the motion. Ms. Montour has confirmed that the documents were sent to the correct fax number for the Legal Department of that Society.

In any case, I am told that Ms. Montour's office made it quite clear to the Waterloo Society that she would be seeking to proceed on the motion when it was before the court for argument. This was also set out on a confirmation that was sent to the parties on the Friday immediately preceding argument of the motion.

An order was therefore made for production of the Waterloo Society Child Protection Record on consent of all parties present.

Motion for Kin Records

The motion as it relates to production of the kin records is opposed by Brant Family and Children Services. L.H. is prepared to consent to the relief requested, but only if the kin records of D.S. and T.K. are released also.

The mother has previously been noted in default, and the father, understandably, does not seem to be taking a position on the motion.

The Society opposes the motion primarily on public policy grounds. It says that kin-care givers provide their information on the understanding that it will be kept confidential. It also questions the relevance of the requested information and notes that the request is predicated on hearsay evidence.

Finally, it argues that the undertaking of such an order would create a "slippery slope," whereby confidential records, of not just kin care givers, but also foster parents could be sought.

In the alternative, the Society takes the position that any production request should be subject to a two-stage process, whereby the court reviews the records to determine relevance and to consider potential privilege claims to some or all of the material.

D.S. and T.K. were present at the argument of this motion, and their position with respect to release of their records was canvassed. After being given an opportunity to consider the matter, they agreed that their kin record could be provided at first instance to the court for determination of relevance and consideration of production.

Legal Framework

Motions of this nature are relatively rare. There is no statutory provision that specifically addresses disclosure of kin records. The provisions of Section 74 of the Child and Family Services Act, dealing with court ordered access to records, relates to motions or applications by the Society to obtain the records of third parties.

Typically, these involve requests for police records. That section does not specifically address the procedure to be adopted in motions by respondents for release of Society kin records about a party or a non-party.

There are few cases that discuss this issue. The Society provided me with two decisions of the Honourable Justice McLaren of the Superior Court of Justice which dealt with motions for production of kin records.

The first of these is Catholic Children's Aid Society of Hamilton v. T.Y., [2007] O.J. No. 5135. This dealt with a situation where a motion was brought in the context of a motion for summary judgment seeking Crown wardship without access. The court found that such records were irrelevant to the issues in the Motion for Summary Judgment and dismissed the Motion for Production. As the court found the requested records irrelevant, it did not need to articulate the procedure to be adopted in adjudicating this type of motion.

The second case is that of Catholic Children's Aid Society of Hamilton v. C.C., [2013] O.J. 4163, another decision of Justice McLaren. Neither does this decision set out a specific process for analysis of such motions. The court does however, comment that this type of ruling should be undertaken on a case-by-case basis. It then went on to review the potential relevance of the kin record sought on the fact of that case. Ultimately, some portions of the kin record were released.

Fundamental Justice and Charter Principles

I begin this analysis with a consideration of first principles. It was unequivocally established in New Brunswick, Minister of Health and Community Services v. G.J., [1999] 3 SCR 46, that child protection proceedings are state actions that engage the protection of Section 7 of the Canadian Charter of Rights and Freedoms.

Accordingly, it is essential that such proceedings be conducted in accordance with the Charter requirement of fundamental justice.

As noted by the Supreme Court of Canada in that decision, Section 7 guarantees every parent the right to a fair hearing when the state seeks to obtain custody of their children. For the hearing to be fair, the parents must have an opportunity to present his or her case effectively.

I do not see why the same right would not accrue to any added party, or any party in a child protection proceeding. Depriving all other parties, other than the Children's Aid Society, of evidence that has the potential to be quite relevant and which is not subject to privilege, is completely contrary to the principles of fundamental justice.

In any case, the paramount objective of the Statute of furthering the best interests, protection and wellbeing of children as set out in Section 1, would require that the best possible evidence before the court. Litigation is an adversarial process. If the Society elects not to produce evidence solely within its purview, then the court would be deprived of the benefit of relevant evidence.

Balancing Privacy Interests

At the same time, however, the Society is quite right that it is important that the privacy interests of the kin be weighed in the balance. This is because the Society records presumably contain some very sensitive information about the kin. Some may be relevant, some may not.

The disclosure of such information could potentially create a chilling effect on individuals willing to put forward a plan for children.

Moreover, there is a potential for the fact finding process to be derailed by spurious, time consuming and unmeritorious fishing expeditions into kin records.

I concur with Justice McLaren that the determination must be made on a case-by-case basis, but the issue is, how are the competing interests to be weighed?

Proposed Two-Stage Test

Although Section 74 does not apply to kin records, it may provide some assistance by way of analogy. Section 74(3) establishes the threshold requirement that the Society demonstrate that the record may be relevant.

In Children's Aid Society of Algoma v. P. (D.), [2007] O.J. No. 3601 (SCJ), the Ontario Superior Court of Justice held that privacy interests are not irrelevant to production under this section. It was held that there may be records which are exceptionally sensitive, and touch upon intensely private matters, and which should be protected from disclosure, even to the Society, on the grounds that they are of marginal utility to an investigation.

The court went on to find, however, that the threshold standards that such records "may be relevant," is not onerous. Accordingly, provided the subject matter is relevant, the documents should be produced, except for particularly sensitive, private material and subject to public policy arguments, and privilege, and controls on further dissemination.

In Children's Aid Society of Algoma v. P.D., O.J. No. 3570, the court also took the view that the standard for ordering disclosure to a Society reflects a low threshold and should be interpreted with a broad a liberal construction in order to achieve its purpose.

Accordingly, it found that the term "may be relevant," was analogous to "possibly relevant." But this Section deals with release of records to the Society, which presumably is seeking them in support of its statutory mandate to investigate child protection concerns. The rationale underlying it must be to provide the agency with the broadest possible access to information while ensuring a mechanism to protect privacy where appropriate.

There are also some situational guarantees of confidentiality when the disclosure is to a state governed agency with its own policies and accountability. A motion for production of kin records opens up the possibility of release to parties that do not have such accountability.

It should also be borne in mind that such records are being sought for the litigation process, specifically for use in trial, as opposed to the much earlier stage of investigation. It seems to me that a higher standard is appropriate in motions by parties for kin records.

Criminal Law Analogy

A further analogy can be made to the criminal process and specifically to applications under Section 278 of the Criminal Code, whereby accused persons seek the therapeutic or other personal records of a complainant. In that forum, the applicant must show, on a balance of probabilities, that the records are "likely relevant." If so, the records are produced to the court for review in consideration of release.

At both the initial and the secondary stage, the court must weigh the probative value of the evidence contained in the record, as against the prejudicial effect of release, bearing in mind the privacy interests of the person about whom the records are being kept.

The case law in the context of Section 278 applications makes it clear that one of the reasons for that threshold standard of likely relevance is precisely to prevent the derailing of the truth seeking process by unmeritorious fishing expeditions.

It seems to me that this slightly higher standard of likely relevance, which has also been described as not onerous in the criminal context, is appropriate for adoption into the context of motions for production of kin records.

This two-stage process is also compatible with the process set out at Section 74 of the Child and Family Services Act, which at Subsection 4, specifically provides that the court may examine the record prior to determining whether to release it to the Society.

Accordingly, I have approached the analysis in this fashion. I must first determine if the First Nation has demonstrated on a balance of probabilities, that the kin records are likely relevant. If so, then the court must examine them with a view to determining whether the record should be produced to the parties in whole, or in part.

In making this determination, the court must weigh the probative value of the records against the potential prejudice to the privacy interest of the person about whom the records are maintained, as well as general public policy interests.

Should the court orders records be disclosed, it has the authority to make orders of terms of release, such as prohibitions on further dissemination.

Application to the Facts

The Society has been involved with the parents in this matter for several years. On July 29th, 2014, the home conditions of the parental home were deemed unsafe for then 11 month old subject child, C. A Protection Service Agreement was signed, whereby C. was placed with her godmother, L.H. Various other agreements were signed subsequently, preserving that kin arrangement.

When the Agreement was revoked by the parents in November, 2014, the Society responded by commencing a Protection Application seeking placement of the child with L.H., subject to supervision.

In February, 2016, the Society amended its application to seek an order of Crown Wardship without access. The amended application notes that the parents had not addressed the protection concerns. By the point of the amended application, there had been a family group decision making meeting and a plan arising from that was for the paternal aunt, D.S. to adopt the child. The Society thus amended its application to affect that plan.

The matter is now scheduled for trial on the sittings of May 16th through 20th, 2016. The court will be required to determine which of the two plans, being Crown Wardship without access, to allow for the adoption by the paternal aunt, or a custody order in favour of L.H., is appropriate.

Each respective placement's ability to care for the child will be the focus of the hearing. The Society had undertaken a kin assessment of both D.S. and her partner, T.K., as well as L.H.

In addition, the kin worker has been assigned to work with L.H. during the time that the child has been placed with her. The kin worker would have attended L.H.'s home at least monthly, to observe the child with the caregiver. The worker may have also obtained information from collateral sources as to the progress of the child in L.H.'s care. Such evidence is clearly likely relevant to the issue at hand in this trial.

Similarly, the kin worker has assessed the ability of D.S. and T.K. to care for the child. This too, obviously meets the threshold of likely relevance.

Accordingly, I find the First Nation has met its onus to demonstrate that the kin records of both potential caregivers are likely relevant, and a copy is to be produced to the court.

The matter will then be adjourned to permit the court to review the records and enter into the second stage of the analysis to weigh the probative value of each record as against the potential prejudice of release.

...FURTHER PROCEEDINGS NOT REQUIRED

...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED