WARNING

The court hearing this matter directs that the following notice should 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.

(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.

(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.

ONTARIO COURT OF JUSTICE

CITATION: Halton Children’s Aid Society v. J.T., 2019 ONCJ 39

DATE: 2019·01·28

COURT FILE No.: Halton 75/14

BETWEEN:

Halton Children’s Aid Society,

Applicant,

— AND —

JT

ZB,

Respondents

Before Justice Victoria Starr

Heard on November 1, 2018

Reasons for Decision released on November 6, 2018

Amended Reasons for Decision released on January 28, 2019

D. Skrow, L. Goldfarb, L. Spampinato ............................... counsel for the applicant society

R. Brooks ......................................................................... duty counsel for the respondent JT

D. Skrow .................................................... agent for E. Vine, counsel for the respondent ZB

J. Mountford ............................................................................................. counsel for Assessor

N. Jarvis .................................................................................................... 3^rd party/moving party

VICTORIA STARR J.:

Introduction

[1] This decision addresses the subject of the release of the transcript of evidence given by an assessor at a hearing held under Part V of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the CYFSA” or “the Act”), to persons beyond those ordinarily entitled to be given a copy under s. 87(10) of the CYFSA, including another court presiding over an unrelated matter.

Background

[2] There is an ongoing trial in an unrelated child welfare proceeding presided over by a different judge of this court (hereinafter referred to as “the J.B. case” or “JB’s case”). A voir dire is underway in that trial. The qualifications, scope of expertise, credibility and reliability of the evidence of the assessor who conducted the parenting capacity assessment in that case is being challenged.

[3] It is alleged that the assessor has represented to others, including the court, that she is a clinical psychologist when she may not actually be qualified as such. This particular assessor has conducted many, many assessments over the years. That case intersects with this one because this assessor also conducted an assessment in this court file and her evidence and report formed part of the evidence at the trial held in the prior child protection proceedings involving this family. A voir dire with respect to her qualifications and expertise was held that trial and the court qualified her as an expert. It is clear from the judgment of Kurz J. that he understood her to be a qualified clinical psychologist.

[4] In this court file, counsel for the mother in the other court file and a senior family and child protection lawyer in this region brought a motion. From her perspective the situation is akin to that of the Motherisk scandal. She is of the view that as a result of the assessor’s misrepresentation regarding her qualifications, an injustice may have been done to JB and others, including the mother in this court file. She aims to discredit the assessor in JB’s trial. She also believes that the assessor should be disciplined by the Ontario College of Psychologists. Indeed, JB has made a complaint with their Complaints Committee, already. Ms. Jarvis wants the bar and judiciary to be made aware, at the very least, of the assessor’s misrepresentation as to her qualifications and lack of expertise.

[5] Ms. Jarvis is of the view that there is evidence in the record of the trial held in the prior proceedings in this court file that will assist her in the JB trial and more specifically, that will assist her in challenging the assessor’s qualifications, the scope of her expertise, and the credibility and reliability of her evidence in that trial.

[6] The problem for Ms. Jarvis at the time when she brought this motion is that as a person who is neither a party, nor lawyer for one in this court file, she could not gain access to information, documents and exhibits, and the transcript of the evidence given at the trial that took place in this matter.

[7] Ms. Jarvis’ motion is for an order, among other things, that she be given a copy of the transcript of the evidence given by the assessor at the trial in the prior proceedings in this case, with information that could identify the child, the child’s parents or foster parents, or a member of the child’s family, redacted along with a copy of the exhibited CV of the assessor. She further seeks an order allowing her to:

a) Provide a copy of the assessor’s CV and the transcript of her evidence to the solicitor for the Halton Children’s Aid Society, the applicant in the JB matter;

b) Provide a copy to the Complaints Committee, College of Psychologists, along with a copy of the order made in these proceedings and the publicity ban warning;

c) Include a copy in any request made by her, wherein she is requesting that the transcript and/or CV of the assessor be filed in the JB matter, to file same with in the other matter in support of her request along with a copy of any order made on this motion and the publicity ban.

[8] She initially brought this motion before the court without notice. It was also brought in her name as opposed to JB’s because she could not bring it in JB’s name without revealing the identity of JB and running afoul of the confidentiality and privacy restrictions set out in section 87(8) of the CYFSA.

[9] She brought the motion without notice because she was not permitted to have access to the court file and thus, could not get the names of the parents, the parents’ current counsel, or the Applicant’s instructing client, or an address for service for either of the parents. It is not at all clear to me why she made the motion without notice to the Society since it is the same Society who is the applicant in both this and the JB matter. It is also not clear why she did not seek an order permitting her to serve the parents by way of subservice on the Society.

[10] The motion was brought with some urgency as the trial and voir dire in JB’s matter is on adjournment and scheduled to resume November 7, 2018.

[11] When the motion first came before me on an ex parte basis, I adjourned it for service. I selected November 1, 2018 as the return date because as the case management judge in this matter I was aware that the parties were all scheduled to be here on that date to speak to this matter. Thus, issues of service could be sorted out and the mother, who I knew does not have counsel, would have access to duty counsel.

[12] During the adjournment period Ms. Jarvis served the Society and managed to learn who counsel for the father is in this matter. She was thus able to serve the father. Through the father’s lawyer Ms. Jarvis was able to get a message to the mother to contact her. The mother did so and as a result, she too was served.

[13] The mother attended at Ms. Jarvis’ firm. She authorized Ms. Jarvis to act as her agent for the purpose of obtaining a copy of the transcript of the evidence of the assessor. Acting as the mother’s agent, Ms. Jarvis was able to place the order for the transcript. She received a copy of it the morning on the day this motion was heard.

[14] During the adjournment period the Society provided Ms. Jarvis with a copy of the version of the assessor’s CV that was made an exhibit at the earlier trial.

[15] Thus, when her motion came before the court for hearing on November 1, 2018, Ms. Jarvis already had in her possession, a copy of the assessor’s CV and the transcript of the assessor’s evidence given during the voir dire in the earlier trial.

[16] There was another development during the adjournment period. That is that the assessor found out about this motion and retained counsel, who appeared at the hearing. He requested and was granted standing to make submissions. He argued that the assessor is a person affected by the motion and thus a party entitled to notice and to a copy of the material filed in support of this motion. He asked that the motion be dismissed for lack of service of notice and if it is not, an order that he is to be given a copy of the transcript so that he can properly prepare to represent the assessor on the voir dire in JB’s matter, should the trial judge in that matter grant him standing to do so.

[17] A non-party and in particular, a witness who gives evidence at a child welfare trial has no right of access to a transcript of his or her evidence. At this point, counsel for the assessor does not even have standing to make submission in JB’s matter, let alone the right to represent her at the voir dire. Any argument that she is a party to this motion and should have access to the transcript on the basis that she was the witness, that her counsel might be granted standing to make submission and might be permitted by a different judge or to represent the assessor at a voir dire in another matter, and might need to see the transcript of her evidence given at a trial held some time ago in this court file, does not bring the assessor within the scope of “persons affected by the motion” and thus, she is not a party to the parts of this motion that relate to the release of the transcript or its proposed use in the JB matter.

[18] I did find, however, that the assessor is a party to this motion with respect to Ms. Jarvis’ request for an order permitting her to send a copy of the transcript to the College of Psychologists Complaint’s Committee. Party status on this basis is weak, however, because it is difficult to conceive of the basis upon which she could object to this relief. Nonetheless, I could see how making an order that Ms. Jarvis may give a copy of the transcript to the College, without also authorizing its release to the assessor for the purposes of responding to any complaint to the College, could make it difficult to mount a timely defence in any such complaint, and thus, how the order could affect her personally, professionally, and financially. As party status was granted on this one issue the assessor was entitled to notice of this motion.

[19] The court dismissed Ms. Jarvis’ motion in its entirety. It gave oral reasons for doing so, which included:

a) Lack of notice to the assessor including that she had not been given a copy of any of the evidence filed in support of it[^1];

b) This court’s view that, given the transcript has been redacted any concern the court might have about protecting the identity of those listed in s. 87(8) of the Act, is minimal. As such, decisions that relate to its use in the JB case and its parties, such as: whether to grant the assessor’s request to be represented at the voir dire by counsel; whether and when the assessor should be given a copy of the transcript; are all decisions best left to the trial judge in the JB matter. So too are decisions such as whether and when the College should be given a copy of the transcripts and subject to what terms and conditions. That judge is better positioned than this court to assess the merits of Ms. Jarvis’ allegations regarding the assessor and the assessment. She is the one who will be deciding matters relating to the credibility, reliability, admissibility and weight to be afforded to the assessor’s evidence, and thus, the judge who will be best situated to assess whether a copy of the transcript should be given to the parents and counsel in that case;

c) It is no longer necessary for this court to make any of the orders Ms. Jarvis seeks on this motion because:

(i) She is already in possession of the transcript and CV;

(ii) The mother consents to the proposed use of the CV and transcript by Ms. Jarvis;

(iii) The father is indifferent to the relief sought by Ms. Jarvis and took no position;

(iv) The Society’s position that such orders are no longer necessary now that Ms. Jarvis has the transcript and CV. It expressed the view that Ms. Jarvis is free to give it to whomever she wants so long as in doing so she complies with s. 87(8) of the CYFSA, and with respect to giving a copy to the trial judge in the JB case, subject to that court’s decision on whether it will accept it. This is because, in the Society’s view, the prohibition in s. 87(10) is limited in scope. It submits that it applies only to the Court’s release of a transcript to persons who are not parties to the case or their lawyers.

d) Given all information that could identify the child, parents, or members of the child’s family, in this case has been redacted from the transcript Ms. Jarvis may request to file in the JB case, the trial judge in the JB case is better situated to make decisions about whether and how the transcript should be filed with the court; to give direction to the parties and their counsel, the assessor, and the College; and the terms to govern the filing of the transcript with the court and decisions about its release to the parties, their lawyers, and other third parties such as the assessor, her counsel, and the College.

Reconsideration of Decision on Request to Release of transcripts –

s. 87(10) of the CYFSA.

[20] During the hearing of this motion counsel each referred me to one case[^2], to which I refer below. I specifically asked if counsel had found or was aware of any jurisprudence on point. Ms. Jarvis indicated there was no specific case directly on point given the novel nature of the motion (obtaining a transcript in one matter for use in another totally separate and unrelated litigation matter).

[21] Since the hearing of the motion, the case of R. v. S.S.M., 2018 ONSC 5589, has been released, which is directly on point. In addition, there are actually a number of decisions that are relevant to or address the matter of the release of transcripts in child welfare proceedings[^3]. Most of these either refer to or discuss the release of transcripts pursuant to s. 45(10) of the Child and Family Services Act, RSO 1990, c C.11, (“CFSA”), the former governing legislation, wherein a party or affected person is requesting a copy of a transcript(s). The language of s. 87(10) of the new legislation, the CYFSA, is identical to that of s.45 (10).

[22] Having had time to review the jurisprudence and reflect further on the submissions and my decision and reasons, I have come to the conclusion that an order must be made in this case to enable Ms. Jarvis to give a copy of the redacted transcript to anyone who was not a party or a lawyer for a party in this case, and, that without such an order, she cannot, despite the Society’s submission to the contrary, do so without breaching s. 87(10) of the Act. This includes giving it to the judge presiding in the JB case.

[23] Thus, without an order made first in these proceedings authorizing the use of the transcript in the JB case, the judge in that case will not have the authority to make the decisions I intended and deferred to her by virtue of my dismissal of all of the relief Ms. Jarvis sought in her notice of motion.

[24] As I am not yet functus, I have changed my decision and order so that the transcript of the assessor’s evidence given at the trial held in the prior proceedings in this court file, may be provided to the judge in the JB case, the parties participating in the trial and their lawyers, and the Children’s Lawyers, for use only in that trial and for no other purpose, and that they may not provide a copy of the transcript or CV to any persons not authorized by virtue of this order or s. 87(10) to be given a copy. Any request to use the transcript for any purpose other than in JB’s trial or to give it to another person, must be made by motion made in this court file number, on notice to the parties in this case.

Analysis

[25] The analysis that has led me to this decision begins with section 87 of the CYFSA. That section reads as follows:”

87 (1) In this section,

“Media” means the press, radio and television media.

Application

(2) This section applies to hearings held under this Part, except hearings under section 134 (child abuse register).

Hearings separate from criminal proceedings

(3) A hearing shall be held separately from hearings in criminal proceedings.

Hearings private unless court orders otherwise

(4) A hearing shall be held in the absence of the public, subject to subsection (5), unless the court orders that the hearing be held in public after considering,

(a) the wishes and interests of the parties; and

(b) Whether the presence of the public 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.

Media representatives may attend

(5) Media representatives chosen in accordance with subsection (6) may be present at a hearing that is held in the absence of the public, unless the court makes an order excluding them under subsection (7).

Selection of media representatives

(6) The media representatives who may be present at a hearing that is held in the absence of the public shall be chosen as follows:

1. The media representatives in attendance shall choose not more than two persons from among themselves.

2. Where the media representatives in attendance are unable to agree on a choice of persons, the court may choose not more than two media representatives who may be present at the hearing.

3. The court may permit additional media representatives to be present at the hearing.

Order excluding media representatives or prohibiting publication

(7) 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,

(a) excluding a particular media representative from all or part of a hearing;

(b) excluding all media representatives from all or a part of a hearing; or

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

Prohibition re identifying child

(8) 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.

Prohibition re identifying person charged

(9) 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.

Transcript

(10) No person except a party or a party’s lawyer shall be given a copy of a transcript of the hearing, unless the court orders otherwise.

[26] The Society’s argument that section 87(10) only prohibits the court from releasing the transcript to persons other than the parties and their counsel, requires this court to find that the scope of persons who are prevented from releasing the transcript to non-parties or their lawyers, is restricted to the court and court staff by implication. Reading in such an implied term makes no sense for the reasons set out below.

[27] First, it makes no sense that the subsection is meant solely to govern the conduct of staff who work for the court in various departments (i.e. transcript office) – when the court can and does control decisions made at the departmental level through internal policies, directives, and supervision.

[28] Second, in other parts of the legislation where the Legislature has intended to limit the court’s authority, the phrase “The court shall not…” is used. Thus, if the Legislature intended the subsection to curtail the court’s authority alone it stands to reason that the same phraseology would have been used. It was not and as such, the interpretation that is more consistent with the language and approach used in other sections of the Act is that the persons prohibited from giving a transcript to any person who is not a party or the party’s lawyer in a proceeding, is broad and includes any person who is in possession of the transcript of such proceedings.

[29] Third, to interpret the scope in the way the Society has argued, would mean that there would be stricter controls on the court than on the parties, their lawyers, the media or others who come into possession of a transcript. Such intention is inconsistent with subsection 87(4) which expressly directs that the entire hearing be conducted in private and in the absence of the public. If parties, their counsel, or others in possession of the transcript were at liberty to give the transcript to whomever they like so long as information that could identify the child is redacted, then in doing so, they would be making public the written recording of the hearing. In effect, doing so would have the effect of making public what the Act clearly directs is not to be made public. This is because the transcript is a verbatim written recording of all that is said during the hearing.

[30] Fourth, such narrow application of the prohibition would also be inconsistent with the underlying purposes of the prohibition in s. 87(10). Those purposes go beyond preventing children [and the others referred to in s. 87(4)] who are the subject of such proceedings from being identified. It is also to ensure that what goes on in the hearing is kept private and confidential because of the sensitive subject matter, to protect vulnerable children from further endangerment, and, to protect the integrity of the administration of justice.

[31] Fifth, if all that is required for anyone who comes into possession of a transcript is for that person to remove the identifying information referred to in s. 87(8) in order for the transcript to be given to others there would be no need to include s. 87(10) at all. But it is included, and the Legislature has, by virtue of including a stand-alone subsection devoted solely to the release of transcripts, expressly recognized their unique and special nature. The inclusion of this specific subsection is clear indication that the prohibitions set out in the other subsections are not enough and that transcripts are to be treated differently and safeguarded with even greater care.

[32] The special safeguard when it comes to the release of transcripts is the appointment of the court as the gatekeeper. The court is appointed to decide such matters so as to protect not just the child’s privacy but to prevent situations where the child may be further endangered as a result of the release of the transcript, and, to protect the interests of the administration of justice.

[33] The manner in which the gate keeping function is to be carried out is also clearly set out in the section through the use of the phrase “unless the court orders otherwise”. This means that the court is required to hold a hearing to decide whether a transcript should be released to someone other than the parties or their lawyers, and if so subject to what conditions.

[34] Sixth, my conclusions with respect to the interpretation, application and scope of s. 87(10) is confirmed in the jurisprudence now available to me and which deal squarely with the court’s gate keeping function when it comes to the release of transcripts in child welfare proceedings, either pursuant to s. 87(10) or its predecessor, s. 45(10) of the CFSA. The first is the decision in

[35] In T. (L.A.) v. S. (J.), 2006 CarswellOnt 140 (Ont. S.C.J.), the Society brought to the court’s attention a person who was not a party to an original child protection application had obtained, published, and filed in the continuing record of a subsequent proceeding involving the same child, a transcript of the crown wardship hearing. In that case the Society argued, and the court agreed that in doing so the party did so in breach of section 45(10) of the Child and Family Services Act (see paragraphs 44 and 45): At paragraph 45 of the decision the court wrote:

45 As this court has made the determinations in this matter that neither the application for custody brought by Ms. T. nor the application for family adoption commenced by her pursuant to section 146(2) of the Act can proceed hereafter, this court orders that any copy of the transcript of the proceedings held on the 25^th day of January, 2005 be removed from the continuing record of both noted proceedings. The applicant L.A.T. is hereafter prohibited further from publishing, in any fashion, the transcript or any excerpt thereof, of the proceeding held on January 25^th, 2005 concerning the child L. [emphasis added mine]

[36] I begin with that decision because it supports my conclusion that the scope of persons who are prohibited from giving the transcript to someone other than an original party to the proceedings or that persons lawyer, extends beyond the court. It also supports my conclusion that the prohibited behaviour captured includes filing a transcript in another court proceeding, publishing it, or otherwise making it public.

[37] The more recent decision of Pomerance J. of the Ontario Superior Court of Justice in R. v. S.S.M., supra, is also supportive of my interpretation and conclusions. In that case Pomerance J., was sitting in a non-family court and presiding over a criminal matter that involved the same factual issues, affecting the same family involved in child welfare proceedings before the Ontario Court of Justice. She initially contemplated that she would obtain the transcript of a hearing held in the child welfare proceeding or listen to the digital audio recording. She found that as a Superior Court judge, sitting in a non-Family court, she had no jurisdiction to direct that the transcript be provided for her review.

[38] She confirms that the court with jurisdiction is one with jurisdiction over child welfare matters and thus, as between them, that was the judge of the Ontario Court of Justice presiding over the child welfare proceedings. That judge, however, would not make an order releasing the transcript unless there is a hearing on notice to S.S.M., J.R., and the Children’s Aid Society on the question of whether the transcript should be released.

[39] Justice Pomerance considered whether she should request that such a hearing take place but decided instead to hold her own hearing; one that brought together the various parties, agencies, and lawyers involved with this family unit. She released a written ruling to this effect. At her request, one of the lawyers provided a copy of her ruling and conveyed her request that the Ontario Court Judge consider releasing the transcript to her for the purpose of the in camera hearing she had decided would take place before her. The presiding Justice declined the request for release of the transcripts and advised that the court would make the same ruling if a formal application were brought.

[40] Justice Pomerance expresses some frustration with the decision of the child welfare judge. She could not understand that decision. From her perspective there was no indication of opposition by persons whose interests stood to be affected by release of the transcript.

[41] Further, she did not think there was any risk to the privacy interests of the children who were at the centre of the controversy. This is because the expanded hearing she intended to hold would be subject to all of the CYFSA protections. For example, only those with the direct interest in the matter would be present. Further, had she received the transcripts, they would have been sealed from the public view. From her perspective these measures would have sufficed to ensure that privacy remained intact. Ultimately, she decided to proceed without the transcripts.

[42] The guiding principles I take from this decision can be summed up as follows:

(a) For a transcript of a child welfare proceeding to be released to a judge of another court, a court order is required;

(b) Both judges, one through actions, the other in his decision, confirm that the only judge with jurisdiction to make the order is a judge of the court with jurisdiction over the child welfare proceedings;

(c) The court with jurisdiction should not make an order releasing a transcript, even to another court, unless the judge first holds a hearing on the question of whether the transcript should be released, on notice to the parties and their counsel.

[43] For all of the forgoing reasons, I conclude that the only way Ms. Jarvis can give a copy of the transcript from the trial in this court file number is if a judge of this court holds a hearing on the question of the release of the transcript to those whom Ms. Jarvis has proposed, on notice to the parents and counsel in this court file.

[44] Thus, while the judge in JB’s case has clear jurisdiction to make the orders requested, she will not be able to do so unless she adjourns JB’s trial and voir dire and convenes a fresh hearing in this court file number. While this is possible, it is not a good use of court time and resources and will only cause further delay and expense for the parties in both this court file and in JB’s case.

[45] As the local administration judge for family matters proceeding in this court, I am keenly aware of the court’s interest in bringing the JB trial to an end. That trial has exceeded the original trial time estimate by weeks and the court is not able to offer continuous trial dates due to lack of courtroom availability and the fact that the presiding justice is a visiting justice with limited availability. As a result of this and other difficulties, a further adjournment will mean longer delay in bringing that trial to conclusion.

[46] As the judge who case managed JB’s case, I am also aware that JB’s children are young and have been in society care for a very long time. Their need for finality in terms of their placement is a paramount consideration.

[47] Further, another hearing in this case is not necessary or desirable at this time. It is unnecessary given the positions taken by the parties on this motion, the fact that Ms. Jarvis is already in possession of a redacted copy of the transcript, and, the reality that I have already conducted such a hearing on this question and have the authority to make an order for the release of the transcript.

[48] Given all of these factors, and my own view that I can craft an order that both avoids further delay and unnecessary expenditure of time and resources, it is in the interests of justice that I determine the question of whether the transcript and CV should be released and if so, the terms to govern their release. I

[49] The issue to be decided next is whether I should make an order permitting Ms. Jarvis to give the transcripts to those whom she has proposed. In this regard Ms. Jarvis referred the court to the decision of Justice Templeton of the Ontario Superior Court of Justice, Family Court in in the case of Chatham-Kent Children’s Services v. A.H., 2014 ONSC 1667, which addresses the question of when can an unrelated third party obtain a copy of the transcript of a CFSA matter. The solicitors confirmed that there were no specific cases directly on point given the novel nature of the motion (obtaining a transcript in one child protection matter for use in another totally unrelated separate child protection matter). This, I was told, is the only case counsel could find that deals with the release of transcripts in the child welfare context.

[50] I do not find that case particularly helpful in deciding the issue on this motion. The circumstances, parties, facts, are very different. The case deals with a motion made by the media for the release of, among other things, the transcript of what is referred to by Justice Templeton as an in camera hearing held during the course of an appeal in a child welfare case to address an urgent motion that required the court’s immediate consideration and intervention. Although the decision is about the release of transcripts, Justice Templeton makes no mention of s. 45(10). She also refers to temporary and permanent shields which is not, in my view, consistent with the approach to privacy and confidentiality under the CYFSA or the legislation governing child welfare case both in place at the time of his decision and now. The decision should be read and applied in CYFSA proceedings with caution as there is a presumption in such proceedings that all hearings will be private and confidential and remain so permanently, unless the court orders otherwise.

[51] The decision of Justice J.W. Quinn in the case of Children’s Aid Society of Niagara Region v. N. (R.) 2004 CanLII 29209 (ON SC), 2004 CarswellOnt 1638 (Ont. S.C.J.), referred to by Ms. Skrow in the motion, addresses the question of: under what circumstances may a party in Family Court obtain transcripts of his or her court proceedings in a CFSA matter?

[52] In that case the Society obtained a temporary supervision order pursuant to which the two youngest children were placed in the care and custody of the mother, and the mother’s husband (G.N.) was not to reside with those children or have contact with them except as arranged and supervised by the Society in its discretion. According to a final order made later in the proceedings, the Society was concerned that G.N address “outstanding issues of substance use and domestic violence which pose significant risk to the children.” The parties again were before the court a number of times in 2001 and 2002. In December 2001, a six-month supervision order was made. The concerns of the Society regarding G.N. were much the same. In June 2002, this supervisory order was terminated and there have been no further protection proceedings.

[53] In 2004, G.N. brought a motion wherein he asked for an order directing the preparation of two transcripts. One was the transcript from a case conference that had been held, and the other, also a case conference but according to the endorsement of the presiding judge, “on the consent of all parties . . . was deemed to also be a settlement conference.”

[54] In his supporting affidavit, G.N. deposed that his request of the transcripts was denied. He explained his need for the transcript in this way:

I need these transcripts because I am preparing to file a lawsuit against the Children’s Aid Society and they will be important for me to build my case. I need to prove to the court that my family has been wrongly accused and instead of helping to keep our family together, Children’s Aid Society broke our family apart.

[55] Justice Quinn begins his analysis by referring to the general approach to be taken by judges who are called on to exercise their discretion in the absence of express provision for procedures for its exercise in any Act, regulation or rule. That direction is that the discretion be exercised in any manner consistent with the due administration of justice. At paragraph 10 he writes:

10 The Courts of Justice Act, R.S.O. 1990, c. C.43 is silent on the matter of transcripts. However, the general jurisdiction found in s. 146 is relevant:

146. Jurisdiction conferred on a court, a judge or a justice of the peace shall, in the absence of express provision for procedures for its exercise in any Act, regulation or rule, be exercised in any manner consistent with the due administration of justice.

[56] After a careful review of the definition of hearing and other relevant sections of the CFSA and the relevant rules regarding conferences under the O. Reg. 439/07, s. 1, (“the Rules”), Justice Quinn sets out the questions that the court must ask when making such decisions: (1) is there a legitimate need for them? , and, (2) does their probative value outweigh their possible harm? At paragraphs 24 and 25 he writes:

24 Ours is not a secretive justice system. Generally, those who need to know are entitled to know. Transcripts of proceedings in Family Court should be made available to anyone who was a party to those proceedings upon proof, firstly, of a legitimate need for them and, secondly, that their probative value outweighs their possible harm. Obviously, the cost of transcription must be borne by the requesting party.

25 In this motion, I am unable to ascertain whether G.N. has a legitimate need for the transcripts. As he has not indicated how the transcripts will help him to “build” his planned lawsuit against the Society (his bald statement that they will is not enough), I cannot ascertain their probative value or their possible harm, if any.

[57] Not surprisingly, in the result Justice Quinn dismissed the motion because it was lacking in proof of legitimate need, probative value and possible harm.

[58] The situation Justice Quinn was called to deal with is somewhat different from the situation in this case. There, the person seeking the release of the transcript was a party to the original proceeding for which the transcript was sought. This is not the situation in the case at bar. Further, he dismissed the motion because there was insufficient evidence to answer the two preliminary questions. This is not the situation in the case at bar.

[59] None the less, the test set out in Children’s Aid Society of Niagara Region v. N. (R.), is the appropriate one to apply in this case. I would add to it that when applying the test, the court must pay special attention to the statutory presumptions that apply in child welfare cases as set out in s. 87, such as that all hearings are to be conducted in private, are not open to the public, are confidential, and that information which would identify a child or any others mentioned in s. 87(8) must not be revealed. The court must also be careful to ensure that the release of the transcript will not endanger the child. The interests of the administration of justice (i.e. ensuring that justice is not only done but appear to be done) must also be considered. At the end of the day the exercise of discretion in deciding whether to release a transcript will be one of balancing interests, but should not be the expense of or the protection of children and promotion of their welfare and best interests.

[60] I am satisfied in this case that there is a legitimate need for the transcripts, that they will likely be of probative value in the JB trial, and that any risk of harm consequent to their release can be minimized to the point of being negligible through terms and conditions. In reaching this conclusion, I have applied the legal principles discussed above, considered the evidence before me along with the submissions made, and weighed the various considerations with the presumptions and privacy and child endangerment safeguards set out in s.87 and the Act on the whole, in the forefront of my mind. I turn next to discuss the Key considerations that have led me to make the order I have.

[61] I agree with Ms. Jarvis that the evidence of highly respected, experienced, and established assessors whose expertise the court has recognized, such as the one who conducted the assessments in both the prior child protection proceeding in this court file and in JB’s case, can through their evidence and reports, strongly influence the outcome in child welfare cases.

[62] I also agree in general that where the decision to be made in a child welfare proceeding includes the possibility of permanently terminating the child’s relationship with their parents and family, such as is often the case when a child is placed in the extended care of the society (sometimes referred to as the capital punishment of family law), the stakes for parents and their children are at their highest. In situations where an assessor has been appointed by the court to conduct a parenting capacity assessment, their reports are presumptively admissible as evidence in a trial. At trial they are considered the court’s witness. Thus, the court has an interest in ensuring that those whom it appoints to conduct such assessments are qualified, competent, fair and impartial, and honest. The parents, lawyers who represent them, the court and the public ought to feel comfortable that such authority is being handled properly. Further, assessors ought not to fear reasonable court or public scrutiny of their operations and assessments.

[63] Ms. Jarvis, as I have already noted, is of the view that the assessor in JB and in this case misrepresented her qualifications to the parents, the Society and the court. Ms. Jarvis seeks the transcript of the evidence given at the trial in the prior proceedings in this court file for use in JB’s proceedings. She believes that with it she can bring this misrepresentation to light. She believes that if she is able to do this she will be able to prevent a miscarriage of justice to her client and others in future. If she is right and successful, the granting of the order she requests will ultimately preserve the public’s confidence in the administration of justice.

[64] I am also keenly aware that JB’s Charter rights may be engaged as she faces the possibility of an outcome where her children are placed in the extended care of the Society. She has a right to challenge the Society’s case. Both she and her counsel are of the view that the transcript of the assessor’s evidence and a copy of her exhibited CV from the earlier trial in this court file, are necessary to advance her position and challenge the Society’s case. At this point, however, Ms. Jarvis cannot even attempt to file the transcript without a court order made in these proceedings permitting her to do so in the JB case. It would, in the circumstances, be fundamentally unfair to JB for this court to refuse to make the order given how important she thinks this evidence is to her defense and what is at stake for her.

[65] Any one of the foregoing reasons could serve as a good reason to make an order allowing JB to at least give a copy of the transcript to the trial judge, parties, and lawyers, in her case. Collectively, they are compelling.

[66] Juxtaposed against the forgoing considerations are these others: First, there is the need to protect the privacy rights of the child and parents in this case. While in some cases great weight would be placed on this consideration, in this case, I have not done so given the positions taken by each parent and the Society at the hearing; the fact that Ms. Jarvis is already in possession of a redacted copy of the transcript; and, my confidence that the very experienced trial judge in JB’s matter, is better situated to decide questions relating to its use in the trial and voir dire before her.

[67] If an order is made that the transcript may be given to the parties, lawyers and judge in that case and for the purposes of the trial, I am confident that the child in this case will not be put at risk of further endangerment, that the privacy of the child and his parents will be protected, that the record of the proceeding in this court file will not become public, and thus, that the interests of the administration of justice will be served.

[68] I am not persuaded that the same can be said, at this time, if an order is made permitting Ms. Jarvis to give a copy of the transcript to others such as the assessor or the College of Psychologists. In my view Ms. Jarvis’ request to be able to give it to the College and any request on the part of the assessor for a copy is premature. I say this for these reasons: First, the assessor has no standing in those proceedings. Until an order is made by that judge addressing this and her counsel’s request to represent her on the voir dire, and whether she or her lawyer should have access to a copy of the transcript from this proceeding, the request is premature. Once those decisions are made, the request for this court to permit a copy of the transcript to be given to the assessor or her counsel, may be renewed at a hearing in these proceedings, on notice to the parties and their counsel in these proceedings.

[69] Second, the same applies to Ms. Jarvis’ request to be entitled to give a copy of the transcript to the College. That request is also premature. As it stands right now, no finding with respect to the assessor’s qualifications, scope of expertise, soundness of methodology, or even about the credibility and reliability of her evidence has been made. Until such findings are made, this court cannot fully evaluate the strength of the argument that the interests of the administration of justice and of the public’s right to know and have confidence in assessors and assessments conducted by those whom the court appoints for such purposes, supersedes, the other interests at stake. Once those findings have been made, should Ms. Jarvis wish to renew her request, she may do so on motion made in these proceedings to decide the question of the release of the transcript to the College.

[70] Finally, it is my view that decisions relating to how the transcript will be used, if at all, in JB’s trial, are decisions best left to the trial judge in JB’s matter. As I have made clear, I am now firmly of the view that I cannot delegate my authority and discretion in these proceedings over the release of the transcript and terms thereof to the judge in JB’s case; and, that the trial judge in JB’s case cannot make orders authorizing its release to the other participants in that trial, without adjourning that trial and convening a hearing in this proceeding to decide the question on notice to the parties in this case, first.

[71] To avoid a multiplicity of hearings in each matter, adjournments, delay, and increased time and expense, I have decided to make a wide order with respect to the use of this transcript and the CV but restricted it to the purposes of that trial and restricted access to it to the parties and counsel. Such an order will leave the trial judge with unfettered authority to determine if, when, and how the transcript may be used in that trial, which has always been my intention.

Costs

[72] I have already heard submissions with respect to costs. That decision has been placed on reserve with decision and reasons to follow.

Conclusion and Order

[73] For all these reasons I make the following order:

1. The order of Starr J., dated November 1, 2018 and which dismissed Ms. Jarvis’ motion in its entirety, is set aside;

2. The redacted transcript of the evidence of the assessor given at the trial held in the earlier proceedings in this court file along with a copy of the exhibited CV of that assessor, shall be released to the trial judge, the participating parties, their counsel, the Children’s Lawyers in Court File No. C196/16 (a child protection matter before the Ontario Court of Justice located in Milton, Ontario).

3. Ms. Jarvis shall be responsible for giving a copy of the redacted transcript along with a copy of the exhibited CV of that assessor to those persons authorized to receive it, at her or her client’s expense. She shall ensure that a copy of this decision and reasons and any issued order that flows from it (if available) and the Publication Ban Warning are also given to those authorized persons at the time when she gives them the redacted transcript and CV;

4. The redacted transcript along with a copy of the exhibited CV of that assessor is released to the persons and court authorized by this order, solely for use at that trial and for the purposes of that trial.

5. A copy of the redacted transcript and exhibited CV shall not be given to anyone not authorized by this order to receive it unless the court orders otherwise at a hearing held in future in these proceedings, on notice, to decide the question of the release of the transcript.

6. The balance of the relief sought by Ms. Jarvis in her notice of motion dated October 19, 2018 is dismissed;

7. The oral request of the assessor to be given a copy of the exhibited CV and redacted transcript referred to herein is dismissed.

8. Costs of this motion are placed on reserve with decision and reasons to follow.

9. The Judicial Secretary is requested to forthwith send a copy of this decision to all counsel;

10. Ms. Jarvis shall promptly send a copy of this decision and reasons to the parties or their counsel in these proceedings.

Released: November 6, 2018

Signed: “Justice Victoria Starr”

Amended reasons released: January 28, 2019

[^1]: Ms. Jarvis quite rightly argued that she could not serve the assessor with a copy of the supporting affidavit material because doing so would put her in the position of violating the order in the JB trial excluding witnesses. This is because the affidavit evidence refers to the evidence given by another person who gave evidence at the same trial the assessor is giving evidence in. The court pointed out to Ms. Jarvis that this should not have meant she was given no notice or none of the evidence; and, that there were several alternate ways of handling this such as: do not put the evidence of the witness in the affidavit at all; serve a redacted version of the affidavit; just serve the notice of motion and either walk in the affidavit or file it in a sealed envelope as is done on motions by a solicitor to be removed as solicitor of record.

[^2]: Chatham-Kent Children’s Services v. A.H., 2014 ONSC 1667

[^3]: R. v. S.S.M., 2018 ONSC 5589, Children’s Aid Society of Simcoe (County) v. D. (J.), 2010 ONSC 3542 (Ont. Div. Ct.), see paragraphs 10 and 11; T. (L.A.) v. S. (J.), 2006 CarswellOnt 140 (Ont. S.C.J.) - see paragraphs 44 and 45, Children’s Aid Society of Toronto v. C. (A.), 2016 ONCJ 750 (Ont. C.J.) – see paragraph 23; Children’s Aid Society of Niagara Region v. N. (R.), 2004 CanLII 29209 (ON SC), 2004 CarswellOnt 1638 (Ont. S.C.J.); Children’s Aid Society of Halton (Region) v. R. (A.), 2011 ONCJ 682 (Ont. C.J.); Native Child & Family Services v. N. (A.), 2010 ONSC 4113 (Ont. S.C.J.);