Court File and Parties

Court File No.: C53080/11 Date: August 25, 2016

Ontario Court of Justice

Re: Children's Aid Society of Toronto v. F.D.-S.

Before: Justice Roselyn Zisman

Counsel:

• Karen Freed, for the Children's Aid Society of Toronto
• Matthew Price, for the mother, F.D.-S.

Heard On: August 16, 2016

Endorsement

1. Introduction

[1] This is a motion brought on behalf of F.D.-S., who is the biological mother of the children P.O.-A ("P.") who is 13 years old and A.O.-A. ("A.") who is 11 years old, for disclosure of the children's therapy records in the context of a Status Review application by the mother. In the mother's Status Review Application she seeks supervised access to the children in accordance with the children's wishes and in consultation with their therapist.

[2] Counsel on behalf of the Children's Aid Society of Toronto ("the society") seeks an order dismissing the motion for disclosure and further seeks an order striking the application of the mother, pursuant to subrule 16(12)(a) and (b) of the Family Law Rules ("FLR").

2. Background

[3] The children were apprehended from the mother's care on January 10, 2011 as a result of reports that A. who was then only 6 years old had been left unsupervised and disclosures of physical abuse of P. by the mother. The mother was subsequently convicted of assault with a weapon against P.

[4] On June 20, 2011 P. was found to be in need of protection pursuant to section 37(2)(a) of the Child and Family Services Act ("CFSA") and A. was found to be in need of protection pursuant to section 37(2)(b) of the CFSA.

[5] On November 22, 2013 the society brought a summary judgement motion seeking an order that both children be made crown wards without access.

[6] In granting the motion and finding there was no genuine issue for trial, Justice Paulseth made the following findings of fact:

a) Since January 2011, the mother had an opportunity to see the children twice a week during access visits;

b) Both children have been identified to have special needs;

c) A. was assessed by Dr. Fitzgerald and was diagnosed with a pervasive developmental disorder. It was the opinion of Dr. Fitzgerald that A. requires specialized educational supports, intensive behavioural supports and may require medication to reduce his agitation and volatility;

d) Dr. Fitzgerald met with the mother and the society to review his findings, to attempt to educate the mother about A.'s needs and how those needs could best be met;

e) The society made efforts to educate the mother on how to manage both children through access visits, the therapeutic access program and two separate programs that the mother had to terminate. The mother found the hands on coaching the society provided to be difficult;

f) The mother did not understand how to treat P. despite the attempts of the society workers to individually work with her during the access visits, the therapeutic access program and meetings with the psychologist;

g) The mother was dismissive which led to period of time when P. refused to attend access visits. As of the date of the summary judgement motion, P. had refused to see her mother for the prior 3 months;

h) Although A. never indicated that he would not go for visits, he withdrew from the mother and became anxious due to how the mother responded to him;

i) The access visits were not in A.'s best interests but due to his tremendous needs he was unable to articulate that;

j) The mother was assessed by Dr. DeCunha, pursuant to section 54 of the CFSA. The mother was assessed in the general areas of cognitive, behavioural and psychological functioning;

k) Dr. DeCunha found that the mother had difficulties on all three areas. She is unable to empathize with either of the children. As a way of coping she avoids what she does not understand and also becomes aggressive and hostile;

l) Dr. DeCunha found that the mother had not learnt any psycho-educational coping mechanisms and as a result was unable to care for her children; and

m) Dr. DeCunha found that the mother had very little capacity to change.

3. Court Proceedings

[7] The mother commenced her Status Review Application in December 2015. At the case conference before me on March 3, 2016 counsel for the mother requested disclosure of the children's counselling records on the basis that counsel had become aware that P. would be moving to a new foster home and was having difficulties with anxiety and depression and was receiving counselling. The mother also alleged that P. was contacting her and that P. was telling her that she was unhappy in foster care and wished to return home.

[8] As the society was opposed to the release of any counselling records, a motion date was set. The society was also granted leave to bring a motion to strike the mother's application. Based on the mother's allegations that P. was contacting her, I requested that the society follow up with both children regarding the mother's allegations.

[9] Both motions were heard before me on August 16, 2016. The mother relies on her Notice of Motion and supporting affidavit sworn July 13, 2016, mother relies on her affidavit sworn July 13, 2016 that sets out specific dates that P. contacted her and sets out the information provided orally at the case conference. The mother also filed a Form 20 Request for Information that seeks a letter from the children's therapists and information about how the issue of termination of access was presented to the children by the society staff and what therapeutic interventions the therapists used to help the children with this issue. Counsel for the mother provided the court with a Legal Aid memo with respect to the society's obligation to provide disclosure.

[10] The society relies on its Notice of Motion and the supporting affidavit of Salma Manji the children's service worker sworn August 5, 2016, the transcript of the reasons of Justice Paulseth on the summary judgement motion and its factum and book of authorities.

4. Issues to be Determined

[11] The issues to be determined are:

a) Is the mother entitled to disclosure of the children's therapy reports?

b) Should the mother's application be struck as disclosing no reasonable claim?

5. Is the Mother Entitled to Disclosure of the Children's Therapy Reports?

5.(a) Applicable Legal Principles with Respect to Disclosure in Child Protection Proceedings

[12] The general principles for disclosure of documents including those in the possession of a non-party are set out in subrule 19(1) of the Family Law Rules that provides in part as follows:

19.(1) Subject to subrule (1.1), every party shall, within 10 days after another party's request, give the other party an affidavit listing every documents that is,

(a) relevant to any issue in the case; and

(b) in the party's control, or available to the party on request.

(1.1) Subrule (1) does not apply,

(a) to the Office of the Children's Lawyer or to the children's aid societies;

19.(2) The other party is entitled, on request,

(a) to examine any document listed in the affidavit, unless it is protected by a legal privilege; and

(b) to receive, at the party's own expense at the legal aid rate, a copy of any document that the party is entitled to examine under clause (a).

19.(6.1) The court may, on motion, despite clause 1(7.2)(a), order the Office of the Children's Lawyer or a children's aid society to give another party an affidavit listing the documents that are,

(a) relevant to any issue in the case; and

(b) in the control of, or available on request to, the Office of the Children's Lawyer or the children's aid society.

19.(7) Subrule (2) also applies, with necessary changes, to any document listed in an affidavit ordered under subrule (6) or (6.1).

[13] It is well established that the principles for disclosure as established by the Supreme Court of Canada in R. v. Stinchcombe on the Crown in criminal proceedings apply in child protection proceedings. As explained by Justice Keast in the case of Children's Aid Society of Algoma v. Shane B.:

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. (case citations omitted)

[14] These general disclosure obligations are subject to claims of privilege or privacy and extend to all third party or non-party records in its possession.

[15] With respect to claims of privilege, there are two types of recognized privilege, relationships that are protected by a "class privilege" and relationships that are not protected by a class privilege but may still be protected on a "case-by case" basis. The most common example of a class privilege is the solicitor-client privilege. Examples of other confidential relationships that may be protected on a case-by-case basis include doctor-patient, psychologist-patient, journalist-informant and religious communications.

[16] The Supreme Court of Canada has approved the Wigmore test, setting out the four criteria to govern the circumstances under which privilege is extended to certain communications that are not traditionally recognized class privileges as follows:

1. The communications must originate in a confidence that they will not be disclosed;

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties;

3. The relation must be one which in the opinion of the community ought to be sedulously fostered;

4. The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.

5.(b) Analysis

[17] Counsel for the mother relies on the general principles regarding the obligation of a society to provide disclosure in child protection proceedings. I accept this general principle and agree that there is a very high onus on a society to provide disclosure to parents to ensure that a parent is given a reasonable opportunity to make full answer and defence. However, all of the cases I have reviewed that outline this obligation on the society are in the context of child protection proceedings at the protection stage or stage of disposition where the society is seeking to sever the parent-child relationship. None of the cases deal with the society's disclosure obligation on a Status Review Application by a parent of a crown wardship order where the parent-child relationship is already severed.

[18] I find the submissions by counsel for the society to be more persuasive for non-disclosure as they are based on the significant difference in the role of the society after a child is made a crown ward.

[19] Pursuant to section 63 of the CFSA, when a child is made a crown ward the crown assumes the rights and responsibilities of a parent for the care, custody and control of the child.

[20] Once a child is made a crown ward there is a significant change to the nature of the society's records. Prior to a child being made a crown ward, the society maintains both family and child service files which document the society's involvement with the family. Parents have the right to the information in the society's files regarding themselves and their children and this right extends to any third party records that the society may have in their own files or have the ability to obtain.

[21] However, once a child is made a crown ward, the society no longer provides services to the family and the society closes its file with respect to the family of origin. The society only continues to provide services to the child in foster care and maintains a children's service file. The information in the child's file revolves around the child's life, giving rise to a significant privacy interest for the child. Given that the child-parent relationship has been terminated (unless there exists an access order or an openness order nor agreement neither of which is applicable in this case), the parents' entitlement to disclosure should end. The high standards on the society to ensure a parent has all of the relevant information to defend against the society severing their relationship with their children is no longer applicable.

[22] This is especially important in this case where there has been no contact between the children and the mother since P. stopped seeing her mother in August 2013 and A.'s access to his mother was terminated in November 2013.

[23] The mother's request for disclosure must also be viewed in the context of both children's rights to privacy as P. is now 13 years old and A. is now 11 years old.

[24] Counsel for the society provided the court with the very helpful case of Child and Family Services for York Region v. L.H. in which Justice Boswell considered a mother's motion for disclosure of her children's therapy records in the context of a summary judgement motion brought by the society for a final order placing the children in the care of the father for a further 12 months subject to a supervision order without access to the mother. There was a previous order placing the children with the father after a determination that the mother engaged in extreme parental alienation. In refusing to order disclosure of the therapy records, the court held that the records were covered by a case specific privilege and that the children's privacy interests were significant. I quote at length from that case as it is particularly applicable to the issues before me as follows:

29 I reject LH's submission, which I acknowledge was thoughtful and articulate, that there is a lessened expectation of privacy where counselling takes place in the shadow of a child protection proceeding. The therapy in issue was unconnected to the protection proceedings. A final order had been made in the protection proceeding before Zuker J. A significant and traumatic change had occurred in the lives of the children. They had suffered. They had been put at risk. They were in need of personal therapy and they received it. The children would not reasonably have expected that the thoughts and feelings they shared in private sessions with their therapist would be shared with their mother, or even the Court. In my view, the therapeutic sessions between the children and their counsellors were intended, in the circumstances, to be confidential. Moreover, the confidential nature of the discussions was essential to the relationship between the children and their therapists.

30 If the therapy, in these circumstances, is not acknowledged as private and confidential, it may very well have a chilling effect on similar therapy in the future. Children may be less likely to speak openly and frankly about their innermost thoughts and feelings if they know or might reasonably expect that those thoughts may be exposed through a disclosure order. Counselling may be rendered largely ineffective.

31 Child therapy, particular in acutely dysfunctional circumstances such as the ones that are present here, is extremely important and there is a strong public interest in protecting and fostering such therapy. The long term deleterious effects on children who experience high conflict separations are now well documented in the scientific literature. If left untreated, children who experience such high conflict between their separating parents may well suffer lifelong mental health and relationship issues. As Chief Justice McLachlin noted in Ryan, as above, at para. 27, "The mental health of the citizenry, no less than its physical health, is a public good of great importance."

32 Being satisfied that the first three elements of the Wigmore test have been met, the analysis turns ultimately to the fourth prong of the test, which involves a balancing of the privacy interests of the affected parties (the children in this case) and the fair trial interests of the party seeking disclosure, in this case LH.

33 The nature of the balancing exercise was discussed further by Chief Justice McLachlin in Ryan, at para. 37 where she held,

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. It must be borne in mind that in most cases, the majority of the communications between a psychiatrist and her patient will have little or no bearing on the case at bar and can safely be excluded from production. Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage. Finally, where justice requires that communications be disclosed, the court should consider qualifying the disclosure by imposing limits aimed at permitting the opponent to have the access justice requires while preserving the confidential nature of the documents to the greatest degree possible.

[25] In this case, I have limited information about the nature of the children's therapy or even if there are any reports in the possession of the society or if such information is only in the files of the therapists. However, the child service worker deposes that when she questioned P. about contacting her mother she not only denied doing so but said that she was "shocked" that her mother found out she had been moved to a new foster home. She stated that "I find that very creepy. I'm all creeped." She stated that she was not in agreement with her mother having any information about her and she does not want to share anything with her mother. She also stated that she is especially "creeped out" that her mother would make up all these lies about her having contact with her and questioned if her mother had made changes to improve herself.

[26] I find that in this case, the therapy that the children are receiving is not related to any proceeding before the court but is in place to help them deal with the trauma they faced while in their mother's care and to adjust to their new circumstances. I find that the children would have expected that their thoughts and feelings would be private and not shared with anyone. P.'s statements are uncontradicted that she does not want to share any information with her mother. Although A. only confirmed to the child service worker that he had not been in contact with his mother, I draw the reasonable conclusion that he too would have expected his therapy sessions to remain confidential.

[27] I am therefore satisfied that the first three prongs of the Wigmore test having been met, the analysis then turns to the nature of the balancing of the privacy interests of the children and the fair trial interests of the mother who seeks disclosure.

[28] I find that the privacy interests of the children are significant in this case and they have an expectation that their private communications with their counsellor were made in confidence. There is a strong public interest in protecting the therapeutic relationship between the children and their counsellor. The contents of the counselling records are totally speculative and the mother's request is nothing more than a "fishing expedition" to see if there is anything in the records that will help her case.

[29] Importantly, the mother has not indicated how the information she is seeking is relevant to the issues before the court. Subrule 19 of the FLR and the case law is clear that the disclosure sought must be relevant to the issues in the case. The mother seeks information about how the termination of access was presented to the children and what therapies and interventions were used to help the children cope with the termination of access. Nowhere does the mother explain how this information is in any way related to her request for her access to the children to be reinstated.

[30] The mother did not provide any information as to what steps she has now taken to address the protection concerns that resulted in the children being made crown wards without access. The only statement in her affidavit relating to this issue is that the mother states that she took counselling from 2011 to 2013 with her church for parents who want to improve their parenting. The fact that the mother attended this group would have been before the court when the summary judgement motion was argued. No information is provided as to why access to the children would now in their best interests.

[31] I therefore find that in balancing the children's rights to privacy, the speculative nature of the contents of the records and their dubious relevance that the mother's motion for disclosure for the children's counselling records should be dismissed.

6. Should the Mother's Application be Struck as Disclosing No Reasonable Claim?

6.(a) Applicable Statutory Principles

[32] Subrule 16(12) and (13) FLR provides as follows:

MOTION FOR SUMMARY DECISION ON LEGAL ISSUE

(12) The court may, on motion,

(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;

(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or

(c) dismiss or suspend a case because,

(i) the court has no jurisdiction over it,

(ii) a party has no legal capacity to carry on the case,

(iii) there is another case going on between the same parties about the same matter, or

(iv) the case is a waste of time, a nuisance or an abuse of the court process.

EVIDENCE ON MOTION FOR SUMMARY DECISION OF LEGAL ISSUE

(13) On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission

6.(b) Analysis

[33] It is submitted by counsel for the society that the mother has not set out a reasonable claim in her pleadings. The mother has not demonstrated a prima facie case for a material change of circumstances. There is no information provided that the mother has taken any steps to address any of the protection concerns that led to the making of the crown wardship without access orders.

[34] The mother deposed that P. had telephoned her to state that she was unhappy in foster care, that she changed foster homes and wanted to return to her care. Yet despite the fact that the worker deposed that she interviewed P. who denied any contact with her mother, the mother did not file a reply affidavit providing proof that the telephone calls occurred. The only submission made was that the mother deposed that the calls occurred.

[35] It is submitted by counsel for the mother that the cause of action is whether or not there is a current benefit for the children to have access to the mother.

[36] I find that the mother has not provided any evidentiary basis for her application for access and as a result her pleadings should be struck.

[37] As the legal guardian of the children, pursuant to s. 59(4) of the CFSA in the event that access is deemed to be in the best interests of a crown ward the society still has the discretion to grant such access despite the order of no access.

7. Order

[38] There will be an order as follows:

1. The motion of the Respondent F.D.-S. for disclosure is dismissed.

2. Pursuant to subrule 16(12)(a) and (b) of the Family Law Rules, the motion of the Children's Aid Society is granted striking out the Respondent F.D.-S.'s application as it does not disclose any cause of action.

Justice Roselyn Zisman

Date: August 25, 2016