WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: July 20, 2018

Court File No.: Sault Ste. Marie File No. 251/13

Parties

Between:

Children's Aid Society of Algoma, Applicant

— AND —

J.R. and D.S., Respondents

Before: Justice John Kukurin

Heard: By written submissions

Reasons for Judgment released: July 20, 2018

Counsel

• Jennifer Mealey — counsel for the applicant society
• Shadrach McCooeye — counsel for the respondent father, D.S.
• Lynn Tegosh — counsel for the respondent mother, J.R.

Decision

KUKURIN J.:

[1] This is a decision on a motion (at Tab 9, Vol 5) brought by the applicant society for production of records of the Sault Ste. Marie Police Service, the Ontario Provincial Police (the OPP), and the Ministry of Community Safety and Corrections (CS&C), probation and parole, with respect to the biological parents who are the respondents in this child protection proceeding. The mother does not oppose the production of the records that relate to her. The father opposes production of records relating to him. The motion is under s. 74 of the Child and Family Services Act (CFSA), now s. 130 of the Child, Youth and Family Services Act (CYFSA).

[2] The relevant portions of the CYFSA dealing with production of records held by non-parties are in s. 130. These are virtually identical to the old s. 74 CFSA:

S. 130 (2) A Director or a society may at any time make a motion or an application for an order under subsection (3) or (4) for the production of a record or part of a record.

S. 130 (3) 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.

[3] The context of this motion has some bearing on the outcome. This is a child protection case stated in November 2015. It is now July 2018 and the case is aged over 2½ years. Trial dates are scheduled for later this year.

[4] The society previously obtained an order for production of records from these same non-party record holders. This was on a motion in 2017 which resulted in an order of Kwolek J. dated February 23, 2017. From the evidence presented, it appears that the records were produced. The order of Kwolek J. limited the records back to the date of birth the child H., born […], 2012, who is the subject of this proceeding. The production ordered was to the date of the prior order. The society wants records since that date to the present as a year and a half has elapsed since that time.

[5] The law relating to non-party record production to a society has heretofore been decided under s. 74 CFSA. That section has been replaced by s. 130 CYFSA. However, the relevant sections in each statute are virtually identical. Accordingly, the case law that has been generated under the CFSA is equally applicable under the CYFSA.

[6] That case law was aptly and succinctly recapitulated by Sherr J. in his 2012 decision Jewish Family and Child Service of Greater Toronto v. H.B.S., at paragraphs [105] to [111], in which he summarizes other authorities that have dealt with this issue. I approve and adopt his comments.

105 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. Children's Aid Society of Thunder Bay (District) v. D. (S.), 2011 ONCJ 100.

106 The phrase "may be relevant" is not an onerous test. Children's Aid Society of Algoma v. P. (D.), [2007] O.J. No. 3601 (SCJ). The society requires full disclosure to properly meet its mandate to investigate protection concerns. Some courts have defined the test as meaning a "semblance of relevance". A document may be relevant for production and investigation purposes, but may not be admissible at trial. Nova Scotia (Minister of Community Services) v. B.L.C., 2007 NSCA 45.

107 The test for disclosure in s. 74 of possible relevance is far less stringent than the civil test of disclosure from third parties set out in Ontario (Attorney General) v. Stavro (1995), 26 O.R. (3d) 39. See: Native Child and Family Services of Toronto v. P. (Sherry) et al., 2009 ONCJ 473.

108 Where the best interests of the child are at issue, the court has a positive obligation to ensure that the most helpful and relevant information is before the court. Children's Aid Society of London and Middlesex v. K. (S.), [2006] O.J. No. 2662, 2006 CarswellOnt 4027 (SCJ); Catholic Children's Aid Society of Toronto v. R. (L.), 2005 ONCJ 19, [2005] O.J. No. 336, 2005 CarswellOnt 376 (OCJ).

109 Police records, notes and incident reports are relevant under subsection 74 (3) of the Act. Children's Aid Society of Thunder Bay (District) v. D. (S.), supra.

110 A person has possession or control of a document if they can obtain the document from a third party by making a request. The court may compel that person to produce that document rather than forcing the other party to make a third party production motion. Michaud v. Cormier, [2009] N.B.J. No. 182 (N.B.Q.B.).

111 The court does not weigh privacy interests in a section 74 hearing other than the privacy interests already provided for in the section. Children's Aid Society of Algoma v. P. D., 2006 ONCJ 170.

[7] Section 130 CYFSA is available only to a society. It is not available to other litigants including parent litigants in child protection proceedings. The purpose of a s. 130 production order is to assist a society in carrying out its mandate, which is primarily the protection of children as well as promoting their best interests and well-being. In pursuing these objectives, a children's aid society is invariably tasked with investigating certain matters. It is given statutory help in its investigation by provisions like s. 130 CYFSA. That such records may also form part of a society's evidence in a case does not change the investigative purpose underlying s. 130.

[8] The society in this case has already met all of the criteria for production of records from these non-parties in 2017. It wants to update the production it did receive to the present date from the date of the previous order. The father has an uphill battle in trying to convince the court that similar records to those ordered to be produced previously should not be produced now.

[9] His arguments are manifold but the only ones worthy of consideration are:

Firstly, that the society is already aware of the events that might be contained in police records for the period in question as it has referred to these in its affidavit filed in support of its motion for production; and

Secondly, that there is no evidence of information that either the society or the mother does not have, that is in a non-party's possession, that has not been disclosed, or is unavailable; and

Thirdly, in weighing the production sought against the privacy interests of the father, the privacy interests should trump; and

Fourthly, the records sought with respect to the mother will provide information which the society is seeking from production of records relating to the father.

[10] It is correct that the society does refer to three incidents that post-dated the order of Kwolek J. dated February 23, 2017. However, the society's evidence says only that it received a police report with respect to those incidents. Police records are not necessarily the same as or equivalent to a police report. Nor is the detail of what the society received in these "reports" necessarily the same detail as will be included in the documents requested.

[11] Two of these included the father as a person involved in the incidents. Until records of the mother are received and reviewed, it is not known if the records will provide full details of the police and father's interactions as a result of these incidents. Accordingly, to say that the records sought of the father are available elsewhere is not necessarily true.

[12] The privacy interests of the father is a factor that may dissuade a court from ordering the production sought. However, the father has not provided any evidence that the protection of his privacy interests outweigh the investigative rights of a society, particularly in this case and at the stage of this case.

[13] I believe that the society has met its onus with respect to the Sault Ste. Marie Police Service. There are clearly incidents in which this service was involved with the mother and father. The standard of the relevance test is a very low one, namely that the information in these records "may be relevant".

[14] Finally, the father and the society seem to be limiting their arguments to production from the Sault Ste. Marie Police Service. In fact, there are two other record holders from whom production is also sought. What records these other record holders may have is not even mentioned in the evidence. Nor is there any mention if these two other record holders provided any records in response to the previous production order. With respect to them, the society has not met its onus of persuading the court that they may have records for the period sought that "may be relevant" to this proceeding.

[15] There will be an order for production to the society by the Sault Ste. Marie Police Service of any and all reports relating to the father from February 23, 2017 to date. This order will contain conditions that are typically contained in such orders of production with this service.

Released: July 20, 2018

Signed: Justice John Kukurin

Footnote

[1] Jewish Family and Child Service of Greater Toronto v. H.B.S., [2012] O.J. No. 5055