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.

(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.

Court Information

Ontario Court of Justice

Date: 2020-03-25

Court File No.: Toronto CFO-15-13347-00 A3

Between:

Catholic Children's Aid Society of Toronto, Applicant

— AND —

C.D., Respondent mother

R.B. and M.K., Respondent fathers

Before: Justice Sheilagh O'Connell

Heard on: October 21, 2019

Reasons for Decision released on: March 25, 2020

Counsel

Lauren Stringer — counsel for the applicant society

Christine Hugel — counsel for the respondent mother

Krish Chakraborty — counsel for Toronto District School Board

R.B., respondent father — on his own behalf

Sheila MacKinnon — counsel for the Office of the Children's Lawyer, legal representative for the youth, C.

Decision

O'CONNELL J.:

Introduction

[1] The mother in this case has brought a motion regarding her daughter C., who is almost 16 years old.

[2] The mother seeks the following court orders:

1. An order that the mother have specified access to C. at least once per week on weekdays after school for at least three hours; or Sundays from at least 12 noon to 5:00 pm;

2. An order for telephone or Facetime access every Sunday or Wednesday evening at 6:00 p.m., and any further calls or texts to be initiated by C.

3. An order that the mother have access to C.'s school information and records, including school report cards, academic records, discipline history, attendance records and any independent education plans.

4. An order that there shall be no swearing or derogatory language used by either the mother or C.

[3] The mother's motion was also served on the Toronto District School Board (TDSB) because it is the non-party that possesses C.'s school records.

[4] The society and C.'s father oppose the mother's motion.

[5] C. opposes the motion because she does not want to have any contact with her mother at this time and she does not want her mother to have access to her school records for privacy reasons.

[6] Counsel for the TDSB takes no position on the mother's request.

The Issues

[7] The issues on the mother's motion are the following:

1. Is the order for specified access requested by the mother in C.'s best interests?

2. Should the mother be able to have access to C.'s school records? In particular, in determining this issue:

   a. Are C.'s school records protected by legal privilege?

   b. If not, would it be unfair to the mother to proceed with this case without C.'s records?

   c. Are there any other public policy reasons to consider in determining the mother's request for disclosure of C.'s school records?

The Evidence

[8] In determining the issues in this motion, I relied upon the following evidence because the context and history of this case are relevant to the orders being sought by the mother:

a. Affidavit of society worker, Shana Douglas, sworn August 21, 2018;

b. Affidavit of the mother, sworn October 28, 2018;

c. Affidavit of the mother, sworn January 23, 2019;

d. Affidavit of the mother, sworn March 19, 2019;

e. Affidavit of the mother, sworn March 31, 2019;

f. Affidavit of society worker, Rzata Fitzpatrick, sworn April 2, 2019;

g. Affidavit of society worker, Concetta Ianello, sworn June 20, 2019;

h. Affidavit of the mother, sworn June 21, 2019;

i. Affidavit of the mother, sworn August 23, 2019;

j. Affidavit of the mother, sworn October 3, 2019 (first affidavit on that date);

k. Affidavit of the mother, sworn October 3, 2019 (second affidavit on that date)

Background and Past Parenting History

[9] The family consists of the following individuals:

a. C., the youth before the court. C. will be 16 years old in May of this year;

b. B., C.'s half-brother. The society withdrew its protection application regarding B. last year. B. is 12.5 years old;

c. O., C.'s half-brother. The society withdrew its protection application regarding O. last year. O is 9 years old;

d. D., C.'s half-brother. D was made a Crown Ward on January 6, 2016. D. is 19 years old;

e. W., C.'s half-brother. W. is now an adult and is approximately 22 years old;

f. The mother, who is the biological mother of all five children. She resides in Toronto with B. and O.;

g. The father R.B. is the father of C., the youth before the court. He resides in North Bay, Ontario with his partner and their three children;

h. The father M.K. is the father of B. and O. He resides in Toronto, although his address is unknown;

i. The father D.K. is the father of D. He resides in Toronto.

j. J.T. is the father of the oldest child W. He resides in Toronto and is currently the kin caregiver and legal guardian of C., the youth before the court.

[10] There is a significant child welfare history with this family dating back to 1997. According to the evidence filed, the child protection concerns involved the mother's inappropriate discipline of her children, the mother's erratic and volatile behaviours, the mother's issues with anger management, drug misuse, domestic violence between the mother and her partner M.K., and the level of conflict between the mother and the fathers of all of her children.

[11] In 2007, the mother's oldest son W., now an adult, was removed from her care and ultimately placed with his father, J.T., in 2001. The society also initiated a further child protection application regarding D. but then terminated its application and involvement regarding D. in February of 2003.

[12] The society re-opened its file in August of 2003 due to concerns reported regarding domestic violence between the mother and her then partner M.K., the father of B. and O. Since that time, the society continued to have involvement with the mother and her partners.

[13] The society issued a third child protection application in 2006 regarding C., the child in this case, and D., her older brother. C. and D. were removed from the mother's care and placed with J.T. because there were concerns regarding the mother's cocaine use. The mother had also been arrested for threatening the person who reported her to the society.

[14] On May 2, 2006, Justice Harvey Brownstone made an order placing C. and D. in the care and custody of the society for a period of four months. As society wards, the children remained in the care of J.T. and his partner, who had both been approved as a foster home.

[15] In July of 2006, J.T. and his partner advised that they were withdrawing their plan to care for D. and C. The children were then placed in another foster home. The children had access with their mother during this period of time.

[16] In December of 2006, the mother completed a parenting capacity assessment. On January 23, 2007, approximately nine months later, the children were returned to their mother's care, subject to society supervision.

[17] In February of 2008, the society commenced a further protection application following the birth of B. who remained in his mother's care subject to society supervision on a temporary basis.

[18] In August of 2008, the mother was arrested for assaulting M.K., the father of B. and O., in the presence of the children. During the course of the police investigation, the society learned that the children were frequently exposed to domestic violence and both parents accused one another of using drugs. C. and D. were apprehended again on August 13, 2008 and B. was apprehended on August 14, 2008.

[19] On August 6, 2009, approximately one year later, B. was returned to his mother's care subject to society supervision and C. was returned to her mother's care on September 6, 2009, subject to society supervision. According to the mother's affidavit, the children were returned to her following the completion of her probation order. D.'s father presented a plan for him and D. was placed in his father's care subject to society supervision.

[20] The society continued to monitor the progress of the children in the mother's care. The child protection concerns continued to be the mother's issues of anger management, domestic violence, and the level of conflict with the children's fathers.

[21] In 2011, the mother gave birth to O., the youngest child. The society continue to monitor and in May of 2012, the society closed its file regarding C. and B. because the mother and children appeared to be doing well.

[22] In 2015, the society re-opened its file with respect to D., who had been placed in the father's care. D. had been apprehended from the father's care due to his unmanageable behaviours. The mother advised that she was unable to care for D. at the time, as she had three other children in her care. D. was made a Crown Ward in January of 2016.

The Society's Current Involvement

[23] The society re-opened its file in July of 2018 following concerns regarding C. The child protection concerns involved parent-teen conflict and disclosures of physical abuse made by C. against her mother, leading to C. going missing or running away from her mother. C. was 14 years old at the time.

[24] On July 23, 2018, C. went to visit her older brother D. and the mother's ex-partner J.T., who C. had lived with in the past. She did not want to return to her mother's care. The mother reported her as missing to the police after J.T. told the mother that he did not know where C. and D. were. The mother attempted to reach C. but C. had blocked her mother on her cell phone.

[25] D. and C. went to the police station in Pickering after learning that the mother had reported C. as missing. The police returned C. to her mother's home. C. did not want to stay at her mother's home so her father picked her up and she went to stay with him in North Bay for a few weeks. According to the father, the mother called him and told him to pick C. up "right fucking now." He could hear C. screaming in the background.

[26] The mother told the society worker that she agreed to let C. see her father in North Bay for a few weeks because the time away would be good for C. and she wanted to create some space between C. and her brother D.

[27] After C. returned to her mother's home from her father in North Bay, C. ran away again. On August 14, 2018, the mother called the police and the society to advise that C. had left home early that morning and not returned. On August 15, 2018, C. contacted the police and advised that she was with her brother D. at his friend's house. The police contacted the society and a society worker went to the friend's house and met with C. privately.

[28] During that interview, C. disclosed the following:

1. Significant conflict between her and her mother, including an incident where her mother choked her after the first time she went missing a few weeks earlier;

2. C. described her mother "screaming and screaming" at her when she did not take off her shoes, then slapping her on the arm a few times and then grabbing her by the throat with both hands saying, "God I want to kill you." C. described trying to get away, flipping off the bed, and banging her head on the radiator against the wall.

3. C. reported ongoing physical discipline by her mother towards her and her younger brothers.

4. C. also described ongoing conflict and constant screaming between her mother and M.K. the father of her younger brothers, and that her mother misuses alcohol and drugs.

[29] C. stated during that interview that she wanted to live with J.T., the father of W., because she has known him for a long time and he is like a father to her. C. had lived with him in the past during the society's previous involvements and spent alternating weekends with him and her older brother for a number of years. C. did not feel that she knew her biological father very well and that North Bay was too far from Toronto.

[30] The mother denied all of the allegations made by C. and stated that C.'s "false allegations" against her were because her older brother D. was influencing and manipulating her. According to the mother, D. was a very bad influence on C. The mother also stated that C. was upset with her because she temporarily removed C.'s cell phone and iPad as a form of discipline.

[31] The mother did not want C. to live with J.T. because she did not feel it was safe. She described J.T. as an alcoholic who drinks and does drugs excessively and provides little supervision. The mother wanted C. to return home to her or to live with her father in North Bay.

[32] A family centred conference occurred on August 17, 2018. The mother, the father, the youth C., J.T., J.T.'s son W., and three society staff members attended the meeting. The maternal grandmother participated by telephone.

[33] The society reviewed the child protection concerns at the meeting. The mother stated that she wanted C. to live with her or the father or stay in foster care. She was strongly opposed to C. living with J.T. The father expressed his wish to provide a stable home for C. in North Bay.

[34] C. continued to express that she did not want to live with her mother and that she wanted to live with J.T. She did not want to live with her father in North Bay because it was too far from Toronto. J.T. expressed his willingness to care for C.

[35] According to the evidence of the society worker, the mother struggled to meaningfully participate in the meeting. She became defensive and verbally attacked others in the room. The mother eventually left the meeting room and slammed the door on the way out. She did not return.

[36] Following more discussions, it was agreed that C. would stay with her father in North Bay. C. was initially upset about this because of the distance from Toronto, but she eventually left with her father after the meeting.

[37] The society commenced its child protection application immediately afterwards, seeking a finding that C. is a child in need of protection pursuant to section 74 (2) (b) of the Child, Youth and Family Services Act, 2017 and that she be placed in the care and custody of her father, subject to the supervision of the society, with access to her mother at the society's discretion.

[38] The society also sought the same protection finding regarding B. and O., C's younger siblings and an order that they continue to remain in their mother's care subject to the supervision of the society.

[39] The protection concerns identified for all three children were the allegations that the mother used inappropriate physical discipline and the domestic conflict between the mother and her current partner in the presence of the children.

The Current Court Proceedings

[40] On August 22, 2018, Justice Brian Weagant made a temporary without prejudice order placing C. in the care and custody of her father, subject to the supervision of the society. Access between C. and her mother was at the society's discretion, in consultation with the child.

[41] Since that time, the mother has brought four motions for access to C. (including this one) and one motion for temporary custody. What follows is a brief summary of the litigation history.

[42] On November 7, 2018, the mother sought unsupervised overnight access in her home for the week of December 30, 2018 to January 6, 2019 and telephone or social media contact with C. at least three times each week.

[43] Following a contested hearing of that motion on December 19, 2018, for oral reasons, the court made the following order on that day:

1. On a temporary without prejudice basis, the mother shall have Christmas access to the child as follows:

   a. One visit to start, at the society's office, on Thursday, December 27, 2018, fully supervised. The visit may occur in the mall (Dufferin Mall) if requested and with the other children. The visit shall occur at 12 noon to 3:00 p.m.. The first hour shall be at the society's office.

   b. If that access visit goes well, then the society shall explore expanded access at the Saturday access program or the community going forward.

[44] On February 4, 2019, the mother sought unsupervised weekend overnight visits with C. from Friday at 7:30 pm until Sunday at 7:00 pm and every weekend thereafter, as well as one-half of the March break school holiday.

[45] Following a contested hearing of that motion on February 4, 2019, for oral reasons, the court made the following temporary order that day:

1. The mother is granted temporary access to the child, C.D., as follows:

   a. On Saturday, February 9, 2019 at 12 noon to Sunday, February 10, 2019 at 6:00 pm.

   b. On Saturday, March 9, 2019 at 12 noon to Tuesday, March 12, 2019 at 6:00 pm (March Break).

2. The mother's access is subject to the following conditions:

   a. The mother shall not use any physical discipline on C. or any children, nor shall she engage in any verbal abuse.

   b. Mr. M.K. shall not be present for any of the visits not shall he be present in the mother's home.

   c. Society workers will be permitted to enter the home or meet with C. privately or to communicate with her when necessary.

   d. C. shall not attend the home of J.T.

   e. The pick up and drop off shall take place in Barrie at the Georgian Mall at the Bay store entrance.

   f. This access shall be reviewed on March 26, 2019.

3. The father may apply for an Ontario Health Card and any other government issued identification documents for the child without the requirement of the mother's consent.

[46] On March 26, 2019, the mother brought her third motion and sought unsupervised overnight visits in her home from April 9, 2019 to April 13, 2019 (Easter weekend); May 10, 2019 to May 12, 2019 (Mother's Day weekend); and May 24, 2019 to May 26, 2019, and further cellphone and Facetime access.

[47] Following a contested hearing of that motion on April 8, 2019, for oral reasons, the Court made the following temporary order that day:

1. The mother shall have temporary access to C. as follows:

   a. On Easter weekend from Thursday, April 18, 2019 at 7:00 pm to Monday, April 22, 2019 at 12 noon.

   b. From Friday, May 24, 2019 at 7:00 pm to Sunday, May 26, 2019 at 5:00 pm.

   c. Every Sunday evening at 6:00 pm, with the exception of Mother's Day at 11:00 am, and any further Facetime or text between C. and her mother, and any other Facetime or text solely at C.'s discretion and initiation.

   d. This access shall be reviewed at the end of June 2019.

2. The Temporary Order made today shall be subject to the same conditions, including travel and access exchange as the Temporary Order dated February 4, 2019.

[48] On June 20, 2019, the Society brought a motion after C.'s placement with her father in North Bay broke down due to parent-teen conflict. After the placement broke down, C. wanted to return to Toronto and live with J.T. The Society apprehended C. and placed her in a foster home. C. ran away from the foster home and went to J.T.'s home.

[49] On June 21, 2019, the mother sought temporary custody of C., subject to society supervision, or in the alternative access for the "entire summer holidays", minus two weeks for C. and the father.

[50] The Society brought a temporary care and custody hearing on June 24, 2019. J.T. brought C. to court on that day. The mother wanted C. returned to her custody. During the hearing, the Society frankly acknowledged that if the court made an order placing C. in foster care, she would very likely run away again, placing her at further risk. C. made it clear at the hearing that she wished to reman in J.T.'s care and register for school in his area.

[51] Following a contested hearing of those motions on June 24, 2019, the court made a temporary without prejudice order that day placing C. in the care and custody of J.T. subject to society supervision. The temporary care and custody hearing was then adjourned to July 24, 2019 to monitor C.'s placement with J.T.

[52] On July 24, 2019, the matter returned to court. C. had been living with J.T. for the past 30 days and had not run away. The court made the following endorsement on that day, following reports from the Society and OCL counsel:

"C. has been living with J.T. for the past 30 days and it is going well. The kin assessment is going well and the kin assessors, who are here today, have advised that they wish to continue to assess the placement while C. starts school to see how school is going. C. will be starting [..] high school in September. Therefore, this hearing will be adjourned to early October to monitor C.'s placement with Mr. T. after C.'s school starts. If the mother wishes to bring a motion for access or for temporary care [and custody] before that, then counsel can advise of the date through a 14b motion."

[53] On August 23, 2019, the mother brought a 14b motion seeking an early date for a temporary care and custody hearing and an order the Court recuse itself on the basis of a reasonable apprehension of bias. Counsel for the society and the Office of the Children's Lawyer opposed the motion.

[54] On September 9, 2019, for written reasons delivered to the parties, the court dismissed the mother's motion for bias and the mother's motion for temporary care and custody be scheduled before me at a date to be arranged by counsel.

[55] On October 3, 2019, the mother brought this motion before me rather than a temporary care and custody motion. The motions were argued on October 21, 2019 and I reserved my ruling. At the hearing of the motion, counsel for the society advised that the kin assessment had approved J.T. as kin caregiver.

The Mother's Position

[56] The consistent themes throughout all of the mother's affidavits supporting her claims for access or custody of C. are the following:

a. a complete denial of all of C.'s disclosures of physical and verbal abuse;

b. a complete denial of domestic conflict between the mother and her current partner, or that he is even living with her;

c. a denial of inappropriate discipline and substance misuse;

d. C.'s "misbehavior", including running away from her care and the current society involvement is because of the manipulation and negative influence of her older brother D;

e. C.'s current wishes not to have contact with her mother are a result of C. being negatively influenced or poisoned by her father, D., J.T., and others;

f. C. had been doing well "for years" in her care and she is the best parent for her.

The Mother's Conduct During These Court Proceedings

[57] The mother's conduct in court has been challenging. The court has tried unsuccessfully on a number of occasions to control her outbursts. The mother becomes very angry towards the other parties in court, such as the father, the society, the OCL counsel, the kin caregiver, and sometimes even C.

[58] On April 8, 2019, the mother ran out of court yelling and screaming. "I fucking hate court", and "it's not fair" after the court granted the mother unsupervised overnight weekend access in Toronto in both April and May in accordance with C.'s views and preferences. The mother wanted access on the Mother's Day weekend, which was also C.'s birthday weekend. C. wanted to spend that weekend with her father in North Bay. The court tried to explain to the mother that if she wanted to repair her relationship with C., she needed to respect C.'s wishes, give her some time and space, and not put too much pressure on her. The mother became very upset and did not return to court.

[59] On June 24, 2019, when C. was present in the courtroom with her OCL counsel, the mother's behaviour was again out of control. She frequently interrupted everyone in the courtroom, despite being told numerous times by the court to stop interrupting. At one point. the court threatened to remove the mother from the courtroom if she continued, however, this did not stop the mother's behaviour.

[60] When C. tried to speak to the court, after having asked permission, the mother repeatedly interrupted her daughter. The mother was also very critical of C. during this court hearing. She described her daughter as "manipulative", "taking advantage of everyone", "she's a screw-up", "she's just playing everybody." She also called C.'s father and J.T., the proposed kin caregiver, both "a piece of shit." All of these statements were made in C.'s presence.

[61] During this hearing, the mother was seeking that C. be returned to her care or be placed in foster care or a group home. When the court made a 'without prejudice' order permitting C. to remain in the proposed kin caregiver's home, the mother became enraged and called the court "a fucking idiot" and a "a stupid dumb, fucking judge bitch" before storming out of the court. C. was also present when this occurred.

The Last Court Hearing in This Matter and Events That Transpired

[62] During the argument of this motion on October 21, 2019, C. was in the courtroom with her counsel. The mother, J.T. and the father were also present.

[63] At that hearing, the Society advised the Court that the kin assessment of J.T. had been approved.

[64] The mother was very angry and accusatory towards both J.T. and C.'s father during this hearing. She blamed them both for what she described as C.'s behavioural difficulties, allegedly poor school attendance, and refusal to have contact with her. It was difficult to control the mother's conduct in the courtroom. The mother claimed that C. was doing very poorly at school while in J.T.'s care.

[65] Very unfortunately, following the conclusion of legal argument on the motion, a physical incident between C. and her mother occurred in the courtroom. The mother immediately began yelling very loudly, among other statements, in court:

"I am charging you;"; [referring to C.] "I want you charged;" "I want her charged…" "Do you think I am going to allow this fiasco to happen?..." "She's getting charged"… "I'm leaving and I want her charged..."

[66] The mother then stormed out of the courtroom and went to speak to court security, who then came into the courtroom and arrested C., handcuffed her and detained her pending the arrival of the police.

[67] The court has no further information about what occurred after this incident.

C.'s Views and Preferences

[68] C.'s views and preferences regarding access with her mother have evolved and changed throughout these court proceedings, as expressed though her counsel from the Office of the Children's Lawyer (OCL), and by C. herself when she has attended court.

[69] Initially, after C. ran away from her mother's home in August of 2018, she expressed that she did not want to have any contact with her mother. According to OCL counsel during court hearings, these views persisted until November of 2018.

[70] In December of 2018, after having settled in somewhat at her father's home, C expressed that she was open to unsupervised overnight access during the Christmas holidays with her mother in Toronto, however, there was a concern that C. also wished to come to Toronto to spend time with her friends. She also missed her little brothers and wanted to see them.

[71] The first supervised access visit over the Christmas break went well, as did the March break access visit. During the March break access that was ordered, C. expressed that she wished to remain in Toronto for a few extra days.

[72] However, following the March break visit, C.'s views and preferences continued to evolve. After C.'s return to her father's home in North Bay, the mother called the police and the society and reported that C. had run away from the father's home and had been grounded. The mother filed a Missing Persons' Report and repeatedly called C., her friend and the school. The mother was very critical of the father's parenting.

[73] According to the society's evidence, supported by C. and the father, C. had not run away from him, but she had stayed at her boyfriend's home for five hours past her curfew and had been grounded for this. Her father confiscated her cell phone and electronics and wanted C. to write an essay. The mother was very critical of this and expressed this to C. and the society workers. She also continued to call C. and C.'s friend even though C. wanted to initiate the calls with her mother. The evidence also established that the mother repeatedly called C.'s school in North Bay and spoke to the school principal there.

[74] According to her OCL counsel, C. expressed that she wanted to spend some weekends in North Bay, including the Mother's Day weekend, because this was also her birthday weekend and she had never celebrated her birthday with her father.

[75] C. also expressed that she wished to initiate any telephone or social media contact with her mother, and she did not want her mother repeatedly calling her or her friend, or to be compelled to speak to the mother on specific days and times. At one point, C. had blocked her mother's calls. C. also did not want her mother to call her school. During the court hearing on June 24, 2019, C. described this as "harassment".

[76] According to the Affidavit evidence filed by both the society and the mother, the May 24th access weekend did not go well. The mother deposed that C. was rude and disrespectful towards her from the moment that she got into the car.

[77] According to the affidavit evidence, and not disputed by the mother, during the drive to Toronto, C. talked about how many boys in North Bay "liked her". The mother responded by telling C., "Let's not be the town slut."

[78] The mother admitted saying this to C. but claims that C. "took this out of context."

[79] The affidavit evidence also established that C. and her mother argued and were in significant conflict throughout the drive back to Toronto. C. reported that her mother was swearing at her and calling her father's family the "N." word. Once they arrived in Toronto, the mother fell asleep. C. left her mother's home at 11:00 PM that night and did not return.

[80] Since that weekend, C. has made her position very clear that she does not want to have access with her mother.

[81] C. has not had any access with her mother since the May 24th weekend, apart from:

a. contact with her mother at court on June 24, 2019 and on October 21, 2019, which was highly conflictual and emotionally upsetting for C., as detailed earlier in paragraphs 58 to 65 of this decision;

b. negative and derogatory social media and text messages.

[82] C. is open to having contact with her father, but she wishes to remain in J.T.'s care in Toronto.

Legal Considerations and Analysis

The Mother's Motion for Specified Access

[83] This governing legislation is the Child, Youth and Family Services Act ("CYFSA"). The paramount purpose of the CYFSA is "to promote the best interests, protection and well-being of children". The act is remedial legislation and as such should be interpreted broadly with a view to achieving the paramount purposes.

[84] As the mother has brought a motion seeking to vary a temporary access order, subsections 94 (8), (9), (10) and (11) of the CYFSA apply and read as follows:

Access

94 (8) An order made under clause (2) (c) or (d) may contain provisions regarding any person's right of access to the child on such terms and conditions as the court considers appropriate.

Power to vary

94 (9) The court may at any time vary or terminate an order made under subsection (2).

Evidence on adjournments

94 (10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

Child's views and wishes

94 (11) Before making an order under subsection (2), the court shall take into consideration the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained.

[85] In addition, section 74 (3) sets out the factors that a court must consider when determining what access order is in the best interests of the child.

[86] The CYFSA has made significant changes to child protection law in Ontario. The legislation is child focused and there is a new emphasis on the child's wishes.

[87] The first factor listed in section 74(3) that a court is required to consider when determining what order is in a child's best interests is a child's views and wishes. This is now a mandatory consideration. The court is required to give those wishes due weight in accordance with the child's age and maturity, unless they cannot be ascertained.

[88] C. is almost 16 years old. She is intelligent and articulate. She has consistently and clearly expressed for the past several months now that she does not want to have contact with her mother.

[89] The evidence is overwhelming that C. does not want to have contact with her mother for legitimate reasons. There is no evidence in this case that C. has been "poisoned" against the mother, to use the mother's words.

[90] It is clear that C. was initially open to having access with her mother, however the court-ordered access did not go well. Both C. and the mother reported significant conflict. C. reported that the mother was swearing, yelling and verbally abusive towards her. C. also reported feeling harassed by her mother's repeated phone calls to her school, her friends, and the society and the police while she was living at her father's home n North Bay.

[91] The court also had the opportunity to directly observe the mother's volatile, aggressive and angry outbursts in court. The court observed that the mother is an extremely challenging person whose conduct towards her daughter and other people was verbally abusive and difficult to control.

[92] It is not in C.'s best interests to have specified access to her mother. Indeed, forcing C. to have access to her mother against her will may very likely be emotionally harmful to her. C. should be able to initiate access with her mother on her own terms.

[93] It is hoped that C.'s relationship with her mother will improve at some point in the future, but this is largely up to the mother. The mother needs to accept responsibility for her own actions in causing the breakdown in her relationship with her daughter and to seek appropriate counselling.

The Mother's Request for Access to C.'s School Records

[94] The mother's request to have access to C.'s school's records is governed by Rule 19 of the Family Law Rules, Ontario Regulations 114/99, as amended.

[95] Rule 19(11) of the Family Law Rules states the following:

Document in Non-Party's Control

(11) If a document is in a non-party's control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,

(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

(b) order that a copy be prepared and used for all purposes of the case instead of the original. O. Reg. 114/99, r. 19 (11).

[96] The moving party must therefore demonstrate:

1. that the documents are not protected by legal privilege; and

2. it would be unfair to proceed with the case without the documents.

The First Part of the 19(11) Test: Legal Privilege

[97] In turning first to the issue of privilege, the case law has established that there are two broad categories of privilege: "class" privilege and case-by-case or "non-class" privilege. Class privilege is well defined in law and commonly refers to solicitor-and-client communications and settlement discussions between parties in litigation. See Slavutych v. Baker, [1976] 1 S.C.R. 254; and R. v. Gruenke, [1991] 3 S.C.R. 263.

[98] Case-by-case or "non-class" privilege is the communication originating from a special relationship that gives rise to a privileged status, such as the therapeutic relationship between a patient and a psychiatrist. The list of relationships is non-exhaustive and the common law can permit privilege in new relationships. The onus is on the person claiming privilege to demonstrate that the communications should not be disclosed. See Slavutych v. Baker, supra, and R. v. Gruenke, supra, at page 286 [S.C.R.].

[99] In Slavutych v. Baker, supra, the Supreme Court of Canada adopted the "Wigmore test" for establishing a 'case by case' or non-class privilege. There are four fundamental requirements for establishing such a privilege:

(1) the communications must originate in a confidence;

(2) the confidence must be essential to the relationship in which the communication arises;

(3) the relationship must be one which should be "sedulously fostered" in the public good;

(4) if all of the above requirements are met, then the court must consider whether the interests served in protecting the communication from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.

[100] These principles have been later affirmed in a number of cases. In A.M. v. Ryan, [1997] 1 S.C.R. 157, the Supreme Court of Canada held that the law of disclosure and privilege must be interpreted in light of values in the Canadian Charter of Rights and Freedoms, being Part 1 of Schedule B to the Canada Act 1982, c. 11 (U.K.), and that the law of privilege may evolve to reflect the social and legal realities of the times. The court addressed the balancing exercise upon which a court must embark once the first three requirements to establish privilege have been met.

[101] In A.M. v. Ryan, the court clearly rejected a "blanket" approach to privilege and held that the court must carefully consider the issue of privilege on a case-by-case basis. See A.M. v. Ryan, supra, at paragraph 37 of that decision.

[102] The absence of privilege does not necessarily result in an order for disclosure. Once the issue of privilege has been determined, then the court still must consider the second part of the test under subrule 19(11): whether it would be unfair for a party to proceed to trial without the documents sought.

[103] The factors established by the Ontario Court of Appeal in Attorney General for Ontario v. Stavro, 26 O.R. (3d) 39 (the "Stavro" test) should be applied when determining the second part of the test under subrule 19(11). See Catholic Children's Aid Society of Toronto v. D.W.; Godwin v. Bryceland, 2008 ONCJ 495. The factors are the following:

(a) the importance of the documents in the litigation;

(b) whether disclosure or production can be postponed until trial: is it necessary to have production at the discovery stage to avoid unfairness;

(c) the position of the non-parties with respect to production;

(d) the availability of the documents or their informational equivalent from some other source; and

(e) the relationship of the non-parties from whom production is sought to the litigation and the parties to the litigation.

Are C.'s School Records Privileged?

[104] Subsections 266 (2), (3), (7), (9), (10) and (11) of the Education Act, R.S.O. 1990, c. E. 2, as amended, states the following:

Pupil records privileged

(2) A record is privileged for the information and use of supervisory officers and the principal, teachers and designated early childhood educators of the school for the improvement of instruction and other education of the pupil, and such record,

(a) subject to subsections (2.1), (3), (5), (5.1), (5.2) and (5.3), is not available to any other person; and

(b) except for the purposes of subsections (5), (5.1), (5.2) and (5.3), is not admissible in evidence for any purpose in any trial, inquest, inquiry, examination, hearing or other proceeding, except to prove the establishment, maintenance, retention or transfer of the record,

without the written permission of the parent or guardian of the pupil or, where the pupil is an adult, the written permission of the pupil. R.S.O. 1990, c. E.2, s. 266 (2); 1991, c. 10, s. 7 (2); 2006, c. 10, s. 35 (2, 3); 2010, c. 10, s. 18 ….[Emphasis added.]

Right of parent and pupil

(3) A pupil, and his or her parent or guardian where the pupil is a minor, is entitled to examine the record of such pupil. R.S.O. 1990, c. E.2, s. 266 (3).

(7) Nothing in this section prevents the compilation and delivery of such information as may be required by the Minister or by the board. R.S.O. 1990, c. E.2, s. 266 (7) ….[Emphasis added.]

Testimony re content

(9) Except where the record has been introduced in evidence as provided in this section, no person shall be required in any trial or other proceeding to give evidence in respect of the content of a record. R.S.O. 1990, c. E.2, s. 266 (9).

Secrecy re contents

(10) Except as permitted under this section, every person shall preserve secrecy in respect of the content of a record that comes to the person's knowledge in the course of his or her duties or employment, and no such person shall communicate any such knowledge to any other person except,

(a) as may be required in the performance of his or her duties; or

(b) with the written consent of the parent or guardian of the pupil where the pupil is a minor; or

(c) with the written consent of the pupil where the pupil is an adult. R.S.O. 1990, c. E.2, s. 266 (10).

Definition

(11) For the purposes of this section,

"guardian" includes a person, society or corporation who or that has custody of a pupil. [Emphasis added.] R.S.O. 1990, c. E.2, s. 266 (11).

[105] The Education Act does not expressly define the word "parent". The word "guardian" is defined as someone who has custody of the child.

[106] The case law interpreting section 266(3) of the Act is clear that it shall be interpreted to mean that non-custodial, non-access parents are not entitled to disclosure or access to a child's school records.

[107] In Hamilton Wentworth District School Board, Ontario Information and Privacy Commissioner Appeal M111-559, the IPC Appeal Board upheld the decision of the Hamilton Wentworth School Board, which denied a request by a non-custodial, non-access parent for access to a fifteen year old's school records. The Board held the following at paragraph 33 of the Decision:

"33. When section 266(3) is considered in the context of the Education Act and in light of the scheme and object of the Act, I find that the Ontario Legislature did not intend to give a non-access, non-custodial parent the right to examine his or her child's OSR."

[108] The mother is not C.'s custodial parent or legal guardian, nor does she currently have access to C. Neither J.T., the current legal guardian for C. nor the Society consent to the disclosure of C.'s school records to the mother.

[109] More importantly, C. does not consent to the disclosure of her records to the mother. She is adamantly opposed to the mother's request and she does not wish to have contact with her.

[110] C. has a privacy interest in her school records. C. will be 16 years old in a matter of weeks.

[111] In Children's Aid Society of Ottawa v. N.S., Justice Alan D. Sheffield refused the respondent mother's request for disclosure of her 15-year-old daughter's school guidance counselling records. After finding that the first three parts of the Wigmore test had been met, with respect to the fourth part of the Wigmore test, Justice Sheffield found that, although the context of a child protection proceeding may support the mother's contention that her right to disclosure should override any possible claim to privilege with respect to the counsellor's notes, the student/child's "best interests" would not be well-served by disclosure of the guidance counsellors records. As he stated at paragraph 26 of his decision:

[26] ... Indeed, precisely because this is a child protection matter, the child's "best interests" should guide the entire proceedings and all related hearings and applications, since all orders made pursuant to the Child and Family Services Act, including child protection orders, must be made in the best interests of the child.

[112] The mother argues that she is entitled to full disclosure in a child protection case, in accordance with the well-known principles established by the Supreme Court of Canada in R. v. Stinchcombe, [1991] 3 S.C.R. 326.

[113] The case law is clear that the society has the same obligation to provide disclosure to parents as the Crown does to defendants in criminal proceedings. The principles established by Supreme Court of Canada in R. v. Stinchcombe, supra, apply to child protection proceedings. See Children's Aid Society of Algoma v. S.B., 2008 ONCJ 358.

[114] However, the society does not have possession of these records, the Toronto District School Board does, and further, the documents sought must still be relevant to the party's claim.

[115] The fourth prong of the Wigmore test involves a balancing of the privacy interests of the affected party and the fair trial interests of the party seeking disclosure. In balancing the competing interests of disclosure and privacy in each case, the privacy interests of an affected party may far outweigh the disclosure of documents that have questionable relevance to a party's claim or defense. See A.M. v. Ryan, supra, at paragraph 37.

[116] It is acknowledged that in most cases, a student may have no expectation of privacy relating to the production of school records such as report cards, attendance records, discipline records and individualized education plans, which is what the mother is seeking in this case.

[117] But in applying the case by case analysis directed by the court in A.M. v. Ryan, in the very specific circumstances of this case, I have determined that C.'s school records are privileged and should not be disclosed to the mother. In coming to this conclusion, I considered the following factors:

1. The mother is not C.'s custodial parent or legal guardian, nor does she currently have access to C. Under the Education Act, the mother is not entitled to have access to C.'s records without C.'s expressed written consent. C.'s records are privileged under section 266(2) of the Education Act.

2. C. and her mother have a highly conflictual and emotionally harmful relationship.

3. The mother's conduct towards C. has been emotionally harmful and verbally abusive. C. has also made serious allegations of physical against the mother and has run away from her care on a number of occasions.

4. C. have consistently expressed that she does not wish to have contact with her mother and she does not want to return to her mother's care. C. wishes to remain living with her guardian J.T. or live independently when she turns 16 years old.

5. C. will be 16 years old in a matter of weeks.

6. The mother's claim for custody of C. has no reasonable chance of success, regardless of what is contained in C.'s current school records. C. does not want to live with her mother for legitimate reasons.

7. The relevance of C's school records to the central issue in dispute in this hearing is questionable at best. C.'s privacy interests should be respected, and it could be emotionally harmful to C. to release her private school records to her mother against her wishes.

8. C.'s privacy interests far outweigh any benefit to the mother of disclosure of the requested records in this case.

The Second Part of the 19(11) Test

[118] If I am wrong in the above analysis and there is no legal privilege in C.'s school records, the mother still must satisfy the second part of the 19(11) test. Subrule 19(11) (b) requires me to determine whether it would be unfair to the mother to go on with the case without C.'s school records.

[119] The mother submits that she requires C.'s school records to demonstrate that C. is doing poorly in the care and custody of J.T. She alleges that C. has missed many days of school under J.T.'s care and that she is failing many of her classes. It is the mother's position that C.'s school information and records are necessary to advance the mother's claim for custody and that it would be unfair to proceed to trial without these documents.

[120] As stated above, even if the mother is correct, and C. is doing poorly in school in the temporary custody of J.T. (which C. denies), C.'s school records will not be important or relevant to mother's claim for custody.

[121] C. does not want to live with the mother. Her views are independent and consistent. She will be 16 years old at the time that this case proceeds to trial. Once C. is 16 years old she will have the right to withdraw from parental control and to live independently. It is extremely unlikely that a trial judge will grant the mother custody and compel C. to live with her, regardless of what is contained in C.'s school records.

[122] There is no merit in the mother's claim for custody of C. The court has already determined that it is not in C.'s best interests to have specified access to her mother based on credible and trustworthy evidence.

[123] Further, I must consider the potential emotionally harmful impact on C. if the Court orders that her school records should be disclosed to her mother against C.'s clear and consistent wishes. As Justice Stanley Sherr stated in Catholic Children's Aid Society v. J.S., D.D., T.T. and L.J. and the Hospital for Sick Children, 2013 ONCJ 200, "At the very least, a message would be sent to her that her privacy rights are not being valued by the court. At most, it is conceivable that such a decision might be harmful.." [paragraph 34].

[124] I find that it would not be unfair for the mother to proceed with this case without C.'s school records. The records have little, if any probative value to the mother's claims. Any probative value in releasing the records to the mother are far outweighed by the potential harm to C. in so doing, including the failure to protect C.'s privacy rights.

Conclusion and Final Order

[125] The court recognises that the mother loves her daughter and is hurt by her daughter's rejection of her. Very sadly, the mother's conduct throughout this case, including her volatile and uncontrollable behaviour in the courtroom and her blaming of everyone but herself for her daughter's justified rejection of her, demonstrates that she has little or no insight into her own significant parenting deficits.

[126] Until the mother accepts responsibility for her own actions and obtains professional treatment, she will not be able to repair her relationship with her daughter.

[127] For all of the above reasons, the mother's motion for access and for disclosure of C.'s school records are dismissed.

[128] I thank counsel for the helpful submissions and case law provided.

Released: March 25, 2020

Signed: Justice S. O'Connell