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 45(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: November 20, 2017

Court File No.: 94/12-00B1

Parties

Applicant Counsel: Windsor-Essex Children's Aid Society — Helen Trentos

Respondents:

• A.R.
• J.C.

Respondents' Counsel:

• Aileen Manalang
• Christina Sweet

Heard: October 17, 2017

Endorsement

Background

[1] On this motion, the Society seeks:

"An order requiring Windsor Regional Hospital to produce to the Windsor-Essex Children's Aid Society copies of any and all records between January 1, 2016 and August 31, 2017 with respect to the Respondent, A.R., born …1989."

[2] The mother, A.R., supported by the father, J.C., opposes the relief sought.

[3] Though served, the Windsor Regional Hospital did not file any material nor did it appear at the argument of the motion.

[4] The Society asks for these records to further its investigation of its theory of this case that the mother is a victim of domestic violence perpetrated by the father, and that she may have attended at the hospital for treatment of domestic violence related injuries.

[5] This motion is made within the child protection application brought by the Society on June 15, 2017. It seeks a finding that the child of the parties, L.R-C. born …2017, is in need of protection and that the child be made a ward of the Crown without access to the Respondents.

[6] The child has been in the temporary care of the Society since his apprehension on June 13, 2017.

[7] On July 27, 2017 a consent hearing was held and I found the child to be in need of protection based upon a Statement of Agreed Facts.

Historical Basis for Society's Theory

[8] The historical basis of the Society's theory that the mother is a victim of domestic violence perpetrated by the Respondent father can be summarized as follows:

(a) In a Statement of Agreed Facts filed July 27, 2017 the Respondents acknowledged that:

• (i) The mother had a history of being a victim of domestic violence;
• (ii) The father had a history of perpetrating domestic violence upon women;

(b) The Respondent father was convicted of domestic violence against women in 2011, 2013 and 2014;

(c) The Respondent father's probation officer advised a Society worker in January 2016 that he was a very high risk domestic violence offender. The father was required to advise the Office of Probation and Parole when he had a girlfriend as the probation officer would then keep in contact with the girlfriend;

(d) In February 2016 the mother disclosed that the father had threatened to kill her children;

(e) The Society received two police reports dated August 4 and August 9, 2016 respectively detailing police involvement due to the Respondent mother and the Respondent father arguing; and

(f) On August 30, 2016 the Respondent mother reported to a Society worker that she was no longer with the Respondent father and that he was a "real bad guy" and that she needs to get away from him.

[9] The parties eventually resumed their relationship and their child was born on June 13, 2017.

Recent Incidents

[10] The next series of incidents relied upon by the Society in support of its request began in June 2017:

(a) During an access visit that took place on June 21, 2017 the Respondent father admitted to the Society worker that he had anger issues but denied being a risk to the child;

(b) When meeting with the worker on June 23, 2017 the Respondent mother was able to articulate that she felt she should end the relationship and do what needed to be done, however, she felt the Respondent father was "a good guy and could make positive changes if he was determined to do so";

(c) On June 29, 2017 the Respondent mother and father advised the worker that they were not cohabiting. The Respondent mother stated that the Respondent father had a long "to-do list"; and

(d) On August 4, 2017 the worker learned from her colleague at the Family Visitation Centre that both parents cancelled their respective access visits that day, and the Respondent mother was highly emotional and crying saying she hated her life. She advised the Family Visitation Worker that she was going to the hospital. The mother acknowledges attending at Hotel Dieu Hospital for a "detox" appointment that day. The attendance for the detox procedure was a requirement for her admission to a substance abuse program.

[11] The Society argues that the Respondent mother may have gone to hospital for medical attention due to her being assaulted by the father.

[12] The mother denies that there has been any assault upon her by the father. She acknowledges that there has been a lot of screaming when they argue, which has occurred on numerous occasions.

Legal Considerations

[13] Section 74 of the Child and Family Services Act allows the Society to move for an order for the production of a record, or part of a record (CFSA s. 74).

[14] Subsection 74(3) which sets out the test to be applied in determining whether a record is to be produced is formulated as follows:

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.

[15] In Children's Aid Society of the District of Thunder Bay v. S.D., 2011 ONCJ 100, at paragraph 43, the Court held:

"The Court's authority under ss. 74(3) is a discretionary authority. 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 ss. 74(3) order, the Court should consider whether there are competing public policy interests or privacy interests that militate against the disclosure of the material being sought."

[16] When the best interests of children are at issue, the Court has a positive obligation to ensure that the most helpful and relevant information is before the Court: Jewish Family and Child Services of Greater Toronto v. H.B.S., 2012 ONCJ 663 at para. 108.

[17] Counsel did not raise as an issue whether the hospital records sought are records within the meaning of s. 74. Subsection 74(1) defines records as "recorded information, regardless of physical form or characteristics." This is a very broad definition. It has been held to include police records. This is consistent with an interpretation that would allow the Society the ability to put before the Court evidence that is relevant and probative to the issues raised. Given the very broad definition of the word 'record' in s. 74(1), I am satisfied that the hospital records are included within this statutory definition.

[18] It is the Society that has the onus of proving, on the balance of probabilities, that the requested records may be relevant for the determination of matters before the Court: Children's Aid Society of Oxford (County) v. M.(D.), [1992] O.J. No. 3093, and Children's Aid Society of the Region of Peel v. A.S., [2015] O.J. No. 1331.

[19] In Children's Aid Society of Algoma v. D.P., 2006 ONCJ 330, at para. 5, the Court held that the standard of possible relevance is a very low threshold. Section 74 should be interpreted with a broad and liberal construction in order to achieve its purpose.

[20] In Children's Aid Society of Algoma v. P.(D.), at paragraphs 33 and 34, the Court held:

"Provided the general subject matter is relevant, the documents should be produced except for particularly sensitive private material…and controls on further dissemination…Section 74(5) of the CFSA contemplates that dissemination of documents disclosed will be controlled by conditions attached to the production order. The motion judge will have to balance privacy interest…the importance of the information to the Society and to the parents and children implicated in the proceeding."

[21] The Court recognizes that in certain circumstances the Society may not be able to tailor its request more precisely in the absence of knowledge of the documents sought. What the Society cannot do is go on a fishing expedition. See Children's Aid Society of Algoma v. P.(D.), 2007 at para. 32.

Analysis

[22] In this case, the Respondent mother argues that the documents sought should not be ordered because it is nothing more than a fishing expedition. She argues that at best, the Society believes that hospital records may contain information that will likely reveal that she received medical treatment in relation to domestic violence perpetrated by the Respondent father. She asks the Court to take into account that this request made by the Society is in the context of there being no incident known to the Society of domestic violence between the Respondent mother and Respondent father.

[23] Counsel did not define or circumscribe what is to be considered as a 'fishing expedition' in the context of a request under s. 74 in this case.

[24] I take a 'fishing expedition' in this case to mean a request for information or documents that does not appear to have relevance to the issues raised in the case. Rather, the request is an attempt to use the discovery or investigative process in an over-broad manner, based upon no more than surmise or suspicion.

[25] In this case, the Society seeks all hospital records from January 1, 2016 to August 31, 2017. It has put no limits on the information it seeks. In its notice of motion, the Society asks for "copies of any and all records" between the dates referred to above. In Bregman v. Bregman, [1985] O.J. No. 1070, Justice Barr stated at para. 17 that:

"Fishing expeditions characterized by the demand for the production of 'any and all documents related to…' are improper and should be prevented by the Court."

[26] I am satisfied that the Society's request as framed is over-broad. The hospital records to the extent they exist may contain sensitive and personal information that has no relevance to the issue of domestic violence, as raised in this case.

[27] I am satisfied however, that a narrower framing of the request will meet the requirements of ss. 74(3).

[28] The Society has established the following:

1. The Respondent father has a history of domestic violence against women;
2. The Respondent mother has a history of being involved in relationships where there has been domestic violence; and
3. The Respondent mother has acknowledged that she and the Respondent father argue but deny any physical conflict.

[29] I also take into account that it is accepted in case law that a child's exposure to domestic conflict can create a risk of emotional harm: see Children's Aid Society of Toronto v. S.A.C., 2005 ONCJ 274.

[30] It is proper and necessary for the Society to investigate possible domestic violence between the Respondents in the circumstances of this case. However, the scope or degree of intrusiveness of the investigation must be balanced with the mother's legitimate privacy interests in her health records.

[31] In the circumstances of this case, the Society's request should be restricted to hospital attendances during the defined period where the mother attended and presented with physical injuries or a complaint about domestic conflict.

[32] This narrowing of the focus of the production request will balance the Society's entitlement – on the basis of a very low threshold – to documents that "may be relevant" to this proceeding with the mother's privacy interests in the hospital records pertaining to her.

Order

[33] For these reasons, an order will issue that:

1. The Windsor Regional Hospital shall forthwith produce to the Windsor-Essex Children's Aid Society a copy of the hospital admission records made by it between January 1, 2016 and August 31, 2017 concerning A.R. where she attended and presented with physical injuries or a complaint about domestic conflict.

2. Within 5 days of the receipt of these records, the Society shall provide a copy of them to counsel for the Respondents.

3. The documents produced may be used only within this child protection proceeding or subsequent status review proceedings.

[34] If there are any difficulties in determining whether a hospital admission record is to be produced under the terms of this order, I may be spoken to with respect to examining the record in question, pursuant to ss. 74(4) of the Child and Family Services Act.

Original signed and released

Tobin, J.

Released: November 20, 2017