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: August 15, 2019

Court File No.: Sault Ste. Marie 122/18

Between:

Children's Aid Society of Algoma, Applicant

— AND —

T.P., T.M., H.B., Respondents

Before: Justice R. Kwolek

Heard on: July 30, 2019

Reasons for Judgment released on: August 15, 2019

Counsel

• John Rossi — counsel for the applicant society
• Lynn Tegosh — counsel for the respondent T.P.
• Eric McCooeye for Shad McCooeye — counsel for the respondent T.M.
• Lindsey Marshall — counsel for the Office of the Children's Lawyer, legal representative for the children P.P. and D.P.

KWOLEK J.:

Motion for Production of Hospital Records

[1] A motion was brought by the Children's Aid Society for an order for production of Sault Area Hospital (SAH) records pursuant to section 130 of the Child, Youth and Family Services Act with respect to the father T.M. also known as T.L. born […], 1984. Mr. M. is currently 35 years of age.

[2] Counsel for the mother does not oppose the order being sought and counsel for the Office of the Children's Lawyer does not oppose the order being sought.

[3] The father T.M. opposes the order that is being sought.

Opposition to Order Being Sought

[4] Counsel for the father opposes the order being sought on the following basis:

1. The order as it stands, given its wide breadth, violates the father's Charter rights, and should be dismissed on that basis.

2. If the order survives Charter scrutiny, the order requested was too wide and over encompassing and should be dismissed on the basis that it sought the production of information that would clearly not be relevant to child protection proceedings.

3. If the Court found that an order could, in fact, be made under section 130 of the Child, Youth and Family Services Act then the Court should:

   a) Limit the extent of the order temporally – limit it to the year 2010 and information subsequent to that date;

   b) In addition to a temporal limitation, counsel also argued that the order should be limited to mental health records and not disclose other health records that were clearly irrelevant.

4. Finally, counsel for the father argues that if documentation is to be ordered to be provided, then the Court should avail itself of the provisions of the legislation and examine the records before it decides whether they should be produced or not and if they should be produced, should examine such records and produce only documentation that may be relevant excluding other irrelevant documentation.

Summary of Facts Relied Upon

[5] The main issues before the Court as they relate to the father include the risk of sexual harm that the father poses to the children in these proceedings as a result of allegations of sexual abuse by the father against his stepson B.B. in 2011, and his son N.B. in 2014, and on later occasions with the latest allegations made in 2018. In addition, the Children's Aid Society has raised concerns about the parents' ability to adequately raise the five children currently in the mother's care. The Society has also raised concerns about T.M.'s mental health.

[6] The Children's Aid Society material indicated that the father had been previously hospitalized at Sault Area Hospital for mental health issues, had been previously prescribed medication for his mental health and had been treated by a psychiatrist.

[7] The Children's Aid Society has filed an affidavit in support of their motion at Volume 2, Tab 12. That affidavit indicates that the father had previously signed consents in 2012 allowing the child protection worker to communicate with the father's psychiatric case manager B.M., who worked for the community mental health program at Algoma Public Health, and to communicate with his psychiatrist who was employed by SAH.

[8] In 2013, the father advised the child protection worker that he had been diagnosed with schizoaffective disorder and had been admitted to Sault Area Hospital.

[9] The mother historically has not identified serious concerns with the father's mental health but instead has complained that the father was not providing enough assistance with the children. Both the father and the mother advised in 2014 and 2015 that the father's medication was contributing to the father sleeping in.

[10] In May 2018, the psychiatric case manager advised that the father had stopped taking his mental health medication years ago and that the father had been stable as of mid-2018.

[11] On April 9, 2019, the father swore an affidavit that he was falsely labelled and diagnosed with schizoaffective disorder and that although he had been admitted to a psychiatric unit at the hospital in 2007, he has never been an inpatient at any psychiatric hospital since. He also indicated in his affidavit that he had been misdiagnosed by his physician.

[12] The child protection worker spoke with the psychiatric case manager Bill McPherson in April 2019 and confirmed that Mr. M. suffered from a "thought disorder" and that the father was as "well as he could be right now," with no planned intervention and he knew how to utilize resources.

[13] In May 2019, it is alleged that the father entered the home of his previous partner carrying a hammer and a stick and was involved in an altercation with her husband while a number of children, including the father's son N.B., were in the home. The police report noted that the father T.M.'s behavior demonstrated mental health issues and he appeared to be exhibiting psychotic symptoms. The father denies the allegations.

[14] The Children's Aid Society suggests that it requires the hospital records, including the mental health records, to "assist the Society to prepare for trial."

Legislative Provisions

[15] The current provisions of the Child, Youth and Family Services Act that relate to the production of third-party records are found in section 130 which relevant provisions to this motion read as follows:

130 (1) In this section and sections 131 and 132,

"record of personal health information" has the same meaning as in the Mental Health Act.

Motion or application for production of record

(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.

Order on motion

(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.

Court may examine record

(5) In considering whether to make an order under subsection (3) or (4), the court may examine the record.

Information confidential

(6) No person who obtains information by means of an order made under subsection (3) or (4) shall disclose the information except,

(a) as specified in the order; and

(b) in testimony in a proceeding under this Part.

Application of Mental Health Act

(9) Where a motion or an application under subsection (2) concerns a record of personal health information, subsection 35 (6) (attending physician's statement, hearing) of the Mental Health Act applies and the court shall give equal consideration to,

(a) the matters to be considered under subsection 35 (7) of that Act; and

(b) the need to protect the child.

Application of s. 294

(10) Where a motion or an application under subsection (2) concerns a record that is a record of a mental disorder within the meaning of section 294, that section applies and the court shall give equal consideration to,

(a) the matters to be considered under subsection 294 (6); and

(b) the need to protect the child.

[16] Section 130 of the Child, Youth and Family Services Act requires the Court to give equal consideration to the need to protect the children and the specific provisions of the Child, Youth and Family Services Act section 294 when the order being sought relates to a record of a mental disorder and a physician's statement is received. Section 294 of the Child, Youth and Family Services Act reads as follows:

294(1) In this section,

"court" includes the Divisional Court; ("tribunal")

"record of a mental disorder" means a record or a part of a record made about an individual concerning a substantial disorder of the individual's emotional processes, thought or cognition which grossly impairs the individual's capacity to make reasoned judgments. ("dossier relatif à un trouble mental")

Disclosure pursuant to summons, etc.

(2) A service provider shall disclose, transmit or permit the examination of a record of a mental disorder pursuant to a summons, order, direction, notice or similar requirement in respect of a matter in issue or that may be in issue in a court or other body unless a physician states in writing that the physician believes that to do so,

(a) is likely to detrimentally affect the treatment or recovery of the individual to whom the record relates; or

(b) is likely to result in,

(i) injury to the mental condition of another individual, or

(ii) bodily harm to another individual.

Court or body to determine whether to disclose

(3) Where the disclosure, transmittal or examination of a record of a mental disorder is required by a court or body before which a matter is in issue, the court or body shall determine whether the record referred to in the physician's statement should be disclosed, transmitted or examined.

Hearing

(4) Before making a determination under subsection (3), the court or body shall give notice to the physician and, if the court or body holds a hearing to determine whether the record should be disclosed, transmitted or examined, it shall be held in the absence of the public.

Matters to be considered

(5) In making a determination under subsection (3), the court or body shall consider whether or not the disclosure, transmittal or examination of the record of a mental disorder referred to in the physician's statement is likely to have a result described in clause (2) (a) or (b) and, for that purpose, the court or body may examine the record.

Order

(6) The court or body shall not order that the record of a mental disorder referred to in the physician's statement be disclosed, transmitted or examined if the court or body is satisfied that a result described in clause (2) (a) or (b) is likely, unless satisfied that to do so is essential in the interests of justice.

Return of record to service provider

(8) Where a record of a mental disorder is ordered to be disclosed, transmitted or examined under this section, the clerk of the court or body in which it is admitted in evidence or, if not so admitted, the person to whom the record is transmitted, shall return the record to the service provider as soon as possible after the determination of the matter in issue in respect of which the record was required.

[17] The relevant provisions of the Mental Health Act are as follows:

Statement by attending physician

35(6) Where the disclosure, transmittal or examination of a record of personal health information is required by a summons, order, direction, notice or similar requirement in respect of a matter in issue or that may be in issue in a court of competent jurisdiction or under any Act and the attending physician states in writing that he or she is of the opinion that the disclosure, transmittal or examination of the record of personal health information or of a specified part of the record of personal health information,

(a) is likely to result in harm to the treatment or recovery of the patient; or

(b) is likely to result in,

(i) injury to the mental condition of a third person, or

(ii) bodily harm to a third person,

no person shall comply with the requirement with respect to the record of personal health information or the part of the record of personal health information specified by the attending physician except under an order made by the court or body before which the matter is or may be in issue after a hearing from which the public is excluded and that is held on notice to the attending physician. R.S.O. 1990, c. M.7, s. 35 (6) ; 1992, c. 32, s. 20 (14); 2004, c. 3 , Sched. A, s. 90 (8).

Matters to be considered by court or body

35(7) On a hearing under subsection (6), the court or body shall consider whether or not the disclosure, transmittal or examination of the record of personal health information or the part of the record of personal health information specified by the attending physician (a) is likely to result in harm to the treatment or recovery of the patient; or

(b) is likely to result in,

(i) injury to the mental condition of a third person, or

(ii) bodily harm to a third person,

and for the purpose the court or body may examine the record of personal health information, and, if satisfied that such a result is likely, the court or body shall not order the disclosure, transmittal or examination unless satisfied that to do so is essential in the interests of justice. R.S.O. 1990, c. M.7, s. 35 (7) ; 2004, c. 3 , Sched. A, s. 90 (8).

[18] The provisions of the Mental Health Act and the provisions of section 294 of the Child, Youth and Family Services Act are consistent in that they require that there be notice of the proceedings given of the record that is being sought to be disclosed and if a physician provides a letter indicating concerns as set out in the legislation, the record shall not be produced unless there is a hearing to determine whether the documents should be disclosed or not.

[19] The Court is to determine whether or not the provision of such records will result in harm to the treatment or recovery of the patient or injury to the mental condition or bodily harm of a third person, which inquiry is triggered by the production of a statement in writing by the attending physician.

Record of Mental Disorder or Personal Health Information

[20] The service provider is obligated to disclose mental health records unless a letter is received from a physician as set out under the act. If such a letter is received, then the Court is to hold a hearing from which the public is excluded and give equal consideration to the need to protect children and balance that obligation with the negative effects that the production of records would have on the treatment or recovery of the person for whom the record is sought. In fact, if the Court is satisfied that the examination of such a record will detrimentally affect the treatment or recovery of the individual to whom the record relates or will result in injury to the mental condition of another individual or bodily harm to another individual, under 294(6) of the Child, Youth and Family Services Act, the Court shall not disclose such documentation unless the Court is satisfied that to do so "is essential in the interests of justice."

[21] There has been no evidence presented that such harm would occur to anyone if the record would be produced. There was no statement received from a physician that the production of such documentation would adversely affect the treatment of the person for whom the records were sought to be produced. No one appeared on behalf of the hospital opposing the production of the records being sought. The event that triggers the process to be followed is the provision of a letter from a physician as set out in the legislation. It appears that such a letter from a physician may be obtained even after a court order is made for the production of such information.

[22] The Court also appreciates and understands that the order for the production of medical records should not be made if there is no basis in law for their production.

[23] The test for the production of such records is not an onerous one. The Court must be satisfied that such records "may be relevant." See: Children's Aid Society of Algoma v. P. (D.), [2007] O.J. No. 3601 (SCJ).

[24] Kerwin's volume on Child Protection Law indicates that the Court's authority under subsection 130 (3) of the CYFSA and its predecessor under the Child and Family Services 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 subsection 130 (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. See paragraph 43: Children's Aid Society of Thunder Bay (District) v. D. (S.), 2011 ONCJ 100.

[25] "Where the Society demonstrates that mental health records may be relevant to a child protection proceeding, those records will be disclosed without consideration to the patient's privacy if no physician's statement is filed" — Children's Aid Society of London and Middlesex v. R. (T.), 2016 ONSC 430, 2016 CarswellOnt 848 (Ont. S.C.J.).

[26] The low threshold for an order for production of third-party records pursuant to the current section 130 of the CYFSA recognizes that the Society will often wish to obtain third-party records for investigative purposes so that they can properly assess the risk to a child. See: Children's Aid Society of Algoma v. P. D. [2006] ONCJ 170, and Children's Aid Society of Algoma v. J.R., [1998] O.J. No 714 (O.C.J.).

[27] The provisions of section 130 of the Child, Youth and Family Services Act and its predecessor give the Society investigative powers not possessed by the other parties. The section is limited to the Director or the Society.

[28] In order for an order to be made under section 130 of the Child, Youth and Family Services Act certain preconditions must be met:

1. The Court must be satisfied that the record or part of the record may be relevant. The application must not be merely a fishing expedition. There some be some logical nexus or relevance to the documentation being sought. The Court must also balance the relevance of the documents being sought against other privacy considerations including the advisability of protecting against sabotaging an ongoing therapeutic relationship between the service provider and the patient.

2. The person in possession or control of the documents refuses to permit the Society to inspect it. The Children's Aid Society in their affidavit by the child protection worker asserts that "I am aware from my past involvement with these agencies from whom the records are being sought, that such agencies, even with the consent of the party, would still not release the records without a court order." There is no evidence contradicting this statement nor did counsel for the father assert that such records could be produced without the necessity of a court order. The Court has also referred to the provisions of section 294 of the Child, Youth and Family Services Act and section 35 of the Mental Health Act to support the proposition that a court order is required before such a record will be produced by the record holder of Mental Health Records. The Court accepts that part 2 of section 130 has been met in that the records being sought would not otherwise be produced for inspection in the absence of a court order.

[29] The Court finds that the preconditions have been met for an order that mental health records relating to the father may be relevant. The recent alleged incident that occurred in May 2019, involving the father and his former spouse in the presence of one of his children and other children, together with the father's psychiatric history provide the Court with the basis for finding that mental health records or a record of a mental health disorder for the father from the SAH may be relevant. The mental health of the father has been identified as an issue in these proceedings as well as his behaviour around the children and allegations made by a child from a previous relationship of the father sexually abusing that child.

[30] The father's access has been restricted for a considerable period of time and the father's current mental health and the context of his historical mental health and behaviours and current diagnosis are relevant.

Charter Challenge

[31] Counsel for the father argues that the order sought by the Children's Aid Society is so wide that it violates the father's rights under the Charter not to be subject to unreasonable search and seizure. He relies on the Ontario Court of Appeal decision of Kawartha – Haliburton Children's Aid Society v. M.W., 2019 ONCA 316 for the proposition that Charter values are relevant within the confines of child protection legislation. Specifically, counsel refers to the provisions of section 8 of the Charter which indicates that individuals should not be subject to unreasonable search and seizure, I suppose referring to, in this case unreasonable search and seizure of the father's mental health records.

[32] There was no notice of constitutional question filed attacking the validity of the legislation itself, so that I presume it is not the legislation itself that is being attacked, but the nature of the request for the documentation being sought.

[33] There was no formal Charter application brought nor was the basis for such Charter challenge articulated in any detail, nor were any specific cases cited finding a successful Charter breach in similar circumstances.

[34] The CYFSA includes a statutory scheme that limits access to such records and directs the judge to determine whether all or a portion of such records should be produced.

[35] There was no evidentiary foundation presented that would prevent the production of such documentation, some of which was provided in the past, at least indirectly, to the Society previously through the voluntary signing of consents by the father directed to his psychiatric case manager and to his treating psychiatrist. There has been to date no letter filed by a physician objecting to the filing of such documentation.

[36] The Court does not dispute that child protection matters are subject to Charter considerations. The Court was not provided with caselaw supporting the proposition that the request for such information should be denied due to the parties right to privacy. The Courts have supported the production of relevant documentation although they have placed restrictions on the extent of such production. (See Children's Aid Society of Ottawa v. H.D., [2019] O.J. No. 1522)

[37] Justice Deborah L. Chappel in Children's Aid Society of Hamilton v. K.L. 2016 Carswell Ont. 4585 supported the production of documentation as requested by the Children's Aid Society analyzing the competing interests of the state and the protection of children versus the right to privacy:

9 The test set out in section 74(3) for production of records to a Society is whether the record "may be relevant" to a proceeding under Part III of the CFSA. This test is not an onerous one, since there is an interest in ensuring that child protection authorities obtain full disclosure to properly meet their mandate to investigate protection concerns (Children's Aid Society of Algoma v. P. (D.), [2007] O.J. No. 3601 (Ont. S.C.J.); Catholic Children's Aid Society of Toronto v. S. (J.), 2013 ONCJ 200 (Ont. C.J.); Children's Aid Society of the Region of Peel v. S. (A.), [2015] O.J. No. 1331 (Ont. S.C.J.) ; Jewish Family and Child Service of Greater Toronto v. S. (H.B.), 2012 ONCJ 663 (Ont. C.J.); Children's Aid Society of London and Middlesex v. R. (T.), [2016] O.J. No. 325, 2016 ONSC 430 (Ont. S.C.J.) ). In exercising its discretion with respect to disclosure to the Society, the court must consider the paramount purpose of the CFSA, which is to promote the best interests, protection and well-being of children (CFSA, section 1).

10 While the court has a broad discretion to order production pursuant to section 74(3) of the CFSA, the evidence adduced by the Society must establish a reasonable basis for believing that the information may be pertinent to the issues to be determined in the proceeding. Section 74(3) does not permit the Society to embark upon a "fishing expedition." ([Children's Aid Society of Algoma v. P. (D.), Supra.]).

11 In exercising its discretion in the context of a production motion under section 74 of the CFSA, the court must take into consideration any public policy or privacy interests that may militate against ordering production of the documents that the Society is requesting (Children's Aid Society of Thunder Bay (District) v. D. (S.), 2011 ONCJ 100 (Ont. C.J.); Catholic Children's Aid Society of Toronto v. S. (J.), Supra.; Children's Aid Society of the Region of Peel v. S. (A.), Supra.). With respect to privacy interests, the courts have reinforced the importance of protecting personal privacy in various legal contexts, and the Supreme Court of Canada has held that the rights to individual liberty and security of the person as enshrined in section 7 of the Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ) encompasses a right to privacy (Children's Aid Society of Algoma v. P. (D.), Supra.; M. (A.) v. Ryan, [1997] 1 S.C.R. 157 (S.C.C.). In Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841 (S.C.C.), at para. 854, the Supreme Court of Canada emphasized that privacy is "a crucial element of individual freedom which requires the state to respect the dignity, autonomy and integrity of the individual." It added that the degree of privacy that the law will protect will be closely linked to the effect that a breach of the privacy interest would have on the freedom and dignity of the individual in question. Having regard for the importance which the law places on the protection of personal privacy, a judge deciding a production motion under section 74 of the CFSA must balance the importance of ensuring that Societies receive the information they require to complete their work against the potentially harmful effects on a party or a child of disclosing sensitive personal information. As the court noted in Children's Aid Society of Algoma v. P. (D.), Supra., there may be circumstances where the dissemination of personal information is seriously harmful to a party but of little utility to a Children's Aid Society.

12 A party who raises concerns about privacy interests in the context of a production motion brought pursuant to section 74(3) of the CFSA cannot simply raise the specter of possible harm in defence of the motion. The court is not expected to carry out the task of balancing the competing interests that may arise in these motions in an evidentiary vacuum. Concerns about the impact of impinging on privacy interests will only form part of the analysis under section 74(3) if there is an evidentiary basis to support those concerns.

[38] There was no evidentiary basis, nor articulation of the issues that would give rise to a Charter remedy in the circumstances of this case to deny the production of all documentation being sought. The Court can grant or refuse the production of the records being sought or the Court can restrict the nature and the scope of the production of the records being sought.

[39] The Court, therefore, does not find a Charter breach in this case which would necessitate the dismissal of the Society's motion outright. The legislation does empower the judge to review and limit the production of information being sought and the ability of such discretion does ameliorate and lessen Charter concerns.

Should the Information from the Hospital be Restricted in Any Way Including a Temporal Restriction on Documentation that is Required to be Produced?

[40] The legislation itself allows the Court to limit the production of such records to a portion of what is being sought. The Court is able to order the production of all or a part of the documentation being sought. Justice P. MacEachern of the Ontario Superior Court of Justice, as a justice of first instance, in Children's Aid Society of Ottawa v. H.D., [2019] O.J. No 1522, is an example of a judge exercising his/her discretion in limiting the temporal provision of information.

[41] A decision to the contrary was provided by the Society, being an unreported decision of Justice Kukurin dated May 10, 2002, Children's Aid Society of Algoma v. R.P and M.B. where Justice Kukurin found that the Society had established the production of criminal and police documentation as well as hospital records may be relevant and refused to impose a temporal restriction on such documentation, placing the onus on the party seeking such a restriction, to demonstrate why such a restriction was appropriate.

[42] Similarly, in another unreported decision dated July 24, 2012 of Justice Gregson in CAS of Algoma v. C.M. and M.M., the judge found that police records may be relevant and declined to limit the nature of the police records being sought.

[43] In my unreported decision dated July 12, 2017 in CAS of Algoma v. R.G. and B.G. I elected to place a temporal limitation on the documentation sought to be produced.

[44] The affidavit of the father refers to a mental health hospitalization of the father that occurred in 2007. The father also refers to a previous misdiagnosis by another psychiatrist. There appears to be some uncertainty as to the dates of the father's hospitalization. Given that uncertainty and given that the Court believes that some historical context prior to the date of the alleged mental health hospitalization may be relevant, the Court must, in its order, balance the statutory obligation of the Children's Aid Society to investigate child protection issues to ensure the safety and protection of the children, with the father's right to privacy.

[45] The Court feels that an appropriate time frame for the production of such records would therefore be from January 1, 2006. The Court also makes the observation that the older the documentation is, the less relevant it is to the current court proceedings. However, since the evidence presented to the Court, from the father himself, indicates that the father was hospitalized for an extended period of time in 2007 for mental health reasons, that documentation may be relevant, although given its age, of limited relevancy. It does however, cross the low threshold that it "may be relevant."

Limitation to Mental Health Records versus Other Health Records

[46] Counsel for the father also argues that should the Court order that records be produced there should be a restriction on the types of records being produced and non-mental health records should not be produced. The Children's Aid Society opposes such a restriction arguing that a medical record, that on its face, may not appear to be relevant and may not in fact relate directly to mental health records, may in fact be relevant to child protection concerns and mental health issues and given its investigatory powers the Children's Aid Society should be entitled examine such records to evaluate the relevance of such documentation.

[47] The Court agrees that in the context of this proceeding, an attempt to require hospital staff to review what may and what may not be "mental health records" for the father, or what may be seen as relating to mental health records of the father "may unduly limit what documentation should be produced to the Children's Aid Society." As counsel for the Society argued, there may be some medical records provided that would point to mental health problems for the father, that standing alone, may not appear to be mental health records, but within the context of the action would be mental health records or would be clearly relevant in the current child protection proceedings as relating to the father's mental health or his ability to care for the children in a safe manner.

Should the Court Review the Documentation Prior to its Production?

[48] The final issue raised by counsel for the father is whether or not the Court should vet the hospital records to determine what should or should not be produced to the Children's Aid Society. The legislation expressly authorizes the judge to do so both to determine whether any records should be produced and also to review the records to determine if only a portion of such records should be produced.

[49] The Court has an option under section 130(5) of the Child, Youth and Family Services Act to examine the record before determining whether an order should be made for the production of all or any part of the record. There is no reason why the Court should first examine the particular mental health records being sought prior to making any order for their production. There is no evidence before me that there is currently an ongoing therapeutic relationship that would be jeopardized by the production of this information nor is there any indication that certain mental health records should not be disclosed to the Society for any particular reason. There has been no written information from a physician expressing the concern regarding the release of this information. The father in his affidavit does not assert any specific concern relating to the information found in the records. In fact, he alleges that he was in fact misdiagnosed by a previous psychiatrist.

[50] In CAS of London and Middlesex v. J.R., [2014] ONSC 4067, Justice Mitrow declined to review a report for the purpose of determining whether or not portions of the report should be redacted stating that some evidence needed to be provided justifying why he should first examine the report for redactions and ordered the report to be provided to the Society without first requiring him to view it.

[51] The Court is not anxious to review voluminous records to determine whether such records or what portion of such records should or should not be produced to the party seeking their production. However, if it is appropriate to review such documentation the Court will do so. Normally, it is the Society who, as an investigator, reviews documentation produced to it, and determines what evidence is relevant.

[52] In this case, the father is objecting to the Society coming into the possession of the documentation. He does not point to anything specific that causes him concern nor does he allege that such a record contains specific information that should not be produced to the Society.

[53] The Society does not consent to a procedure or process of the Court sifting through such documentation expressing concerns that the Court may find such process to be unduly cumbersome and unworkable and may exclude information that the Society believes is relevant.

[54] Judges and courts are increasingly being placed in a position where the Court is to ask to review documentation in criminal and family court proceedings before such documentation is produced to the parties. (See for example sections 278.4 and 278.5 of the Criminal Code of Canada dealing with the production of third-party records in sexual assault and other related offences as well as the process in vetting information to obtain warrants in criminal proceedings.) If one of the parties raises the issue that it does not wish the Children's Aid Society to review documentation that is irrelevant and potentially embarrassing to one of the parties, when should the Court intervene to review the documentation? Is it simply enough to say that some of the information that will be provided will not be relevant? The Court does not know what is in the medical record. At the same time, the Court is troubled by the lack of an evidentiary basis for the production of non-mental health medical records.

[55] With respect to the argument that the Court may unduly restrict the production of such documentation, the Court is acutely aware of the test that documentation should be provided to the Society if such evidence "may be relevant". At the same time, the Court is aware of the case law that requires the Court to assess, as stated by Justice Chappel in Children's Aid Society of Hamilton v K.L. (supra), "Where the dissemination of personal information is seriously harmful to a party but of little utility to a Children's Aid Society." Who would best know what evidence may be relevant other than the trial judge who is to hear the case and has been appraised by the parties of the outstanding issues and witnesses and evidence to be called?

[56] Had the Society simply requested production of mental health records for the father the Court would have no difficulty in ordering the production of those records. The Society, however, is seeking more than that. The Society is seeking other medical records which ostensibly may point to issues relating to the mental health of the father, but which cast a wide net to include all medical records much of which the Court suspects may be totally irrelevant to the issues placed before it.

[57] The Court acknowledges that some medical records may in fact be relevant. The only way to determine if the records are relevant would be to examine the record. I am left with the options of:

1. Restricting the medical records being produced to those where mental health issues are clearly evident;

2. Ordering the production of all medical records in the possession of the hospital for the father to the Society, whether or not there is a mental health component present; or

3. Ordering copies of the entire medical file to be produced to the Court for review, with the Court releasing to the Society all records relating to:

   a) the mental health of T.M.;

   b) all other health records relating to T.M. that may be relevant to child protection issues.

[58] The Court believes that the third option is the best option available to the court. It allows all of the mental health records and other documentation to be produced to the Society that the Court finds may be relevant, without producing information that is irrelevant. In this way the Court maintains the father's right to privacy regarding medical matters that are not relevant to the Court proceedings, while ensuring the Children's Aid Society is in possession of documentation that may be relevant and necessary in their assessment of the child protection issues relating to this case.

Order

[59] This court therefore orders that:

1. Sault Area Hospital shall produce to the Court, at the expense of the Children's Aid Society of Algoma, within 30 days, pursuant to section 130 of the Child, Youth and Family Services Act, a copy of any and all records, including general medical records and mental health records, including but not limited to all In-Patient Psychiatric Unit Records, Psychiatric Out-Patient Clinic Records, Psychiatric Orphan Patient Clinic Records, Psychological service records, Psychiatric Out-Patient Medication Records, Psychiatry office Records including but not limited to the records of Dr. A.R. relating to T.M. also known as T.L., such records limited to the time period from January 1, 2006 to the present.

2. The Court shall review such documentation and shall produce to the Society all documentation relating to the mental health of T.M., also known as T.L., and such other medical records as may be relevant to the child protection proceeding.

3. The Court grants leave pursuant to section 35(9) of the Mental Health Act to allow the Society to provide copies of such documentation to the other parties to this action and to serve and file such documentation as is necessary and essential in the interest of justice.

4. No person shall disclose such information received to any person or in any manner except in testimony in a proceeding under the CYFSA or as otherwise required for these or any other child protection court proceedings.

Released: August 15, 2019

Signed: Justice R. Kwolek

Ontario Court of Justice