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 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

Court File No.: CFO-17-15388-00

Date: 2017-04-21

Ontario Court of Justice

Re: Children's Aid Society of Toronto v. C.S. and K.P.

Before: S. O'Connell

Counsel:

• K. Atkinson, for the Applicant Society
• L. Hayes, counsel for the Respondent parents
• J. Hyndman, counsel for the Respondent youth, X.
• A. Calpin, counsel for Kin Caregiver, D.

Heard On: April 13, 2017

Endorsement Released: April 21, 2017

Endorsement

[1] The society has brought a motion pursuant to section 74 of the Child and Family Services Act ("CFSA") seeking an order that Dr. Mary Lilley, a psychiatrist, shall produce to counsel for the Children's Aid Society copies of her psychiatric report and records which may be in her possession and control relating to the young person X. born […], 2001.

[2] The respondent parents support the society's motion for production of the requested records.

[3] Dr. Lilley was served with the society's motion for production. She did not attend at the hearing of this motion nor did she take any position on the order being sought.

[4] X. identifies as gender fluid and is therefore referred to by gender neutral pronouns in this ruling.

[5] X. opposes the release of their private psychiatric records with Dr. Lilley. X will be 16 years old in August of this year.

[6] The society submits that Dr. Lilley's psychiatric assessment and report, which was completed on or about February 1, 2017, is relevant to the society's decision-making regarding the best interests of X. and that it is necessary to inform the society's service plan for X. which must adequately address the risks associated with X.'s mental health and emotional functioning.

[7] The society has also brought a motion returnable on April 26, 2017 seeking an order placing X. in the temporary care and custody of the society. It is the society's position at this time that X. should be in a residential treatment home. The society acknowledged during argument that Dr. Lilley's report was necessary to assist it with respect to the temporary care and custody hearing and the society's position regarding X.'s care.

[8] The society also submits that the report is relevant and necessary to this court's decision making process and its ability to ensure X.'s protection and well-being.

[9] The society's motion is framed under section 74 of the CFSA. The court's authority under subsection 74(3) of the Act is discretionary. 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 section 74(3) order, the court should consider whether there are competing public policy interests or privacy interests that militate against disclosure of the material being sought. See Catholic Children's Aid Society of Toronto v. J.S., 2013 ONCJ 200 at paragraph 20.

[10] The therapeutic records of an older child receiving treatment or psychiatric services have at times been given more protection than those of a party to a case since the legislation is designed for their best interests. An older child's need to receive treatment in confidence should be given considerable weight. See Children's Aid Society of Ottawa v. N.S., [2005] O.J. No. 1070 (S.C.J.).

[11] In their affidavit opposing the release of the records, X. deposes that when they met with Dr. Lilley, it was their clear understanding that the meeting was confidential as a patient/psychiatrist meeting and that X. could speak candidly with Dr. Lilley. If X. had known that there was any possibility that the contents of their records would be disclosed to the society or to X.'s parents, then X. would not have been so open with Dr. Lilley.

[12] In determining whether Dr. Lilley's psychiatric records are relevant to the society's investigation in this case, the court must determine whether the evidence is not only logically relevant but pragmatically relevant. The probative value of the evidence must outweigh any prejudice to its production or introduction.

[13] The court has carefully considered the proposal made in argument that Dr. Lilley's psychiatric records should be produced to the court only for the purpose of 'judicial vetting' in order to determine what, if anything, may be relevant in the report and what if anything ought to be produced to the society and to X.'s parents.

[14] This would certainly put the court in the best position to know exactly what the psychiatric report contains and whether it is relevant and ought to be produced. However, the court was very concerned that a judicial vetting of the record would necessarily involve an intrusion into X's privacy and that this should not be lightly undertaken.

[15] During the course of argument, X. expressed their willingness to permit the court to review Dr. Lilley's report before releasing a ruling in this matter.

[16] After careful consideration, before ruling on the society's motion, the court will review Dr. Lilley's report to determine whether the society has met the onus of establishing that Dr. Lilley's psychiatric report is relevant to this proceeding or that it should be released to the society and the parents.

[17] Accordingly the court directs that counsel for X. deliver the psychiatric assessment of Dr. Lilley to the court in a sealed envelope for the sole purpose of the court's review to determine its ruling on the society's motion.

[18] The temporary care and custody motion brought by the society returns on April 26, 2017. Counsel Ms. Calpin, recently retained by the kin caregiver, is requesting an adjournment of this motion to file responding materials. The court will hear submissions with respect to this request at the return of the temporary care and custody motion and will at that time release its ruling on whether the psychiatric report of Dr. Lilley should be produced to the society and the parents.

Justice Sheilagh O'Connell

Date: April 21, 2017