WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.—(7) Order excluding media representatives or prohibiting publication.— Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.—(3) Offences re publication.— A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
ONTARIO COURT OF JUSTICE
CITATION: Children’s Aid Society of Algoma v. M.V., 2023 ONCJ 470
DATE: 2023 10 20
COURT FILE No.: Sault Ste Marie 57/23
BETWEEN:
CHILDREN’S AID SOCIETY OF ALGOMA
Applicant,
— AND —
M.V.
Respondents
Before Justice Heather-Ann Mendes
Heard on October 3, 2023
Reasons for Judgment released on October 20, 2023
Ryan Lindenbach........................................................... counsel for the applicant society
Gemma Dingwall......... counsel for the respondent mother M.V. also known as M.A.
MENDES J.:
Background
[1] M.V. also known as M.A., is the mother of the child J.V. born […], 2023. M.V. is the respondent mother in these proceedings.
[2] The father of the child is unidentified. The Children’s Aid Society of Algoma (hereinafter “the Society”) has attempted to identify the father, however the mother refuses to provide any information in this regard.
[3] The Society had historic involvement with the mother in 2008 and then again in 2013, with respect to the mother’s older two children, who are not subject to this proceeding. The Society has been involved with the mother on an ongoing basis since 2019.
[4] The Society has three motions before the court for records in relation to the mother’s mental health struggles and substance misuse.
[5] The motion at Volume 1 Tab11 seeks records from the Group Health Centre and Dr. David Joseph Fera.
[6] The motion at Volume 1 Tab 13 is for records from the Sault Area Hospital including general medical records as well as in-patient psychiatric unit records; psychiatric out-patient clinic records; psychological services records; psychiatric outpatient medication clinic and psychiatry office records, including but not limited to, the mother’s involvement with Dr. Sivaraman Kalaichandran.
[7] The motion at Volume 1 Tab 15 seeks records for the mother from the Canadian Mental Health Association.
Position of the parties
[8] The Society seeks the above noted records so that they can assess the case involving the mother and the child moving forward with respect to the child protection concerns in relation to the mother’s mental health and substance misuse. The Society also seeks that the records be disclosed directly from the service providers given the mother’s lack of cooperation and hostility towards the Society.
[9] The Society acknowledges that the mother is entitled to privacy of her records and that is why they are limiting the scope of the records sought from the Group Health Centre and Dr. Fera from 2019; the records from the Sault Area Hospital and associated clinics from 2012 and the records from the Canadian Mental Health Association be from the child’s birth.
[10] The record holders did not appear at the initial return of the motions on August 30, 2023, nor at the hearing date of the motions on October 3, 2023.
[11] The mother opposes the release of her records. The mother’s position is that the records are private and many of the disclosures made to the service providers captured in the records are made in confidence and in a safe space.
[12] Although the mother did not formally file a Charter application, the mother argues that the release of the records is a breach of her section 8 Charter rights and it is an unreasonable search and seizure. Further, the mother argues that the scope of the records sought are also a violation of her rights.
[13] The mother’s position is that if the court is inclined to order a release of her records, that the records only be ordered from […], 2023 to present, which is the date of the child’s birth in this proceeding.
[14] The mother also seeks that the release of the records be limited to investigation purposes by the Society and that they ought not to be utilized at trial or any hearing in these proceedings. In the alternative, the mother’s position is that if the records are released that an order be made that the records not be disclosed to third parties and that the records be strictly limited for use in these proceedings.
Legislation and Case Law
[15] Pursuant to section 130 of the Child Youth and Family Service Act (hereinafter the “CYFSA”), a child protection agency may obtain third party records on notice to all parties and the third-party record holder.
[16] Section 130 of the CYFSA states:
Production of records
Definition
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.
Order on application
(4) Where the court is satisfied that a record or part of a record that is the subject of an application referred to in subsection (2) may be relevant to assessing compliance with one of the following 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:
An order under clause 94 (2) (b) or (c) that is subject to supervision.
An order under clause 94 (2) (c) or (d) with respect to access.
A supervision order under paragraph 1 or 4 of subsection 101 (1).
An access order under section 104.
An order with respect to access or supervision on an application under section 113 or 115.
A custody order under section 116.
A restraining order under section 137.
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.
Conflict
(7) Subsection (6) prevails despite anything in the Personal Health Information Protection Act, 2004.
Solicitor-client privilege
(8) Subject to subsection (9), this section applies despite any other Act, but nothing in this section abrogates any privilege that may exist between a lawyer and the lawyer’s client.
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.
[17] Section 294 of the CYFSA states:
Records of mental disorders
Definitions
294 (1) In this section,
“court” includes the Divisional Court;
“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.
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.
Conflict
(7) Subsections (2) to (6) apply despite anything in the Personal Health Information Protection Act, 2004.
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.
[18] Section 35(6) and section 35(7) of the Mental Health Act state:
Personal health information
35 (1) In this section,
“patient” includes former patient, out-patient, former out-patient and anyone who is or has been detained in a psychiatric facility.
Statement by attending physician
(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.
Matters to be considered by court or body
(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.
[19] The court's authority under subsection 130 of the CYFSA to make a third-party production order is discretionary. The court may order the production of evidence that may be relevant.
[20] The threshold to establish relevance is very low, in recognition of the child protection agency’s mandate to investigate and assess the safety of children. The test is “some semblance of relevance”[^1].
[21] In determining the issue, the court should consider whether there are competing public policy interests or privacy interests that militate against the disclosure of the material being sought before making a section 130 order[^2].
[22] Requests for personal health information by a child protection agency engages section 8 of the Charter. A search and seizure will be reasonable within the meaning of section 8 of the Charter if: (1) it is authorized by law; (2) the law itself is reasonable; and (3) the search or seizure has been carried out in a reasonable manner[^3].
Analysis
[23] The motions before the court were brought by the Society on notice to both the mother and the three respective record holders. The Society seeks the records from the service providers involved with the mother regarding her mental health and substance misuse, specifically Dr. Fera and the Group Health Centre; Sault Area Hospital, including the Sault Area Hospital Psychiatric Unit and various clinics as well as the Canadian Mental Health Association, in order to evaluate and assess the child protection concerns and to plan for the family moving forward.
[24] The Society has an obligation to evaluate and assess a case and their involvement with a family on a continuous and ongoing basis to promote the paramount purpose of the CYFSA, that being “the best interests, protection and well-being of children”[^4].
[25] The other purposes of the CYFSA recognize that “appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families”[^5].
[26] The CYFSA specifically contemplates the sharing of information with a Society to meet the best interests of the child and for the Society to assess, as well as the court, to consider a return of the child to the care of the mother, as she has claimed in her answer and plan of care.
[27] When a party does not agree to release of their records to the Society on consent, section 130 of the CYFSA permits the release of the records by the court. The court may order the production of the records if the court is satisfied that the records will afford evidence that may be relevant to the child protection concerns, planning for the family and other issues before the court. Section 294 of the CYFSA permits the disclosure of records of mental disorders.
[28] In this case, the child protection concerns regarding the mother relate directly to her mental health wellbeing as well as substance misuse. With the evidence that presently exists, given the mother’s lack of cooperation with the Society and the mother’s general denials in her evidence, neither the Society nor the court have a clear picture of the mother’s mental health challenges, the mother’s level of engagement with service providers regarding her mental health or substance misuse or the degree of substance misuse on the part of the mother.
[29] At the time of the birth of the child in May 2023, the mother’s bloodwork from the Sault Area Hospital had indications of substance misuse as reported by one Sault Area Hospital staff member to the Society. In addition, the child was transferred to the NICU at the London Health Sciences Centre and was observed to be exhibiting symptoms of withdrawal including a high pitched cry, being jittery, being shaky when held and presenting as more irritable.
[30] I find that the motions before the court for records brought by the Society are framed in a concise and specific manner. However, I find that the range of the records sought by the Society in relation specifically to the Sault Area Hospital is overly broad and intrusive. I shall address the appropriate range of records to be released in my reasons below.
[31] The records sought by the Society are specifically in relation to the mother’s substance misuse and mental health. What may be contained in the records sought from the service providers precisely impact the child protection concerns before the court and impact planning for the family.
[32] There is a clear and direct nexus between the protection concerns and the records sought. The mother’s history and current attempts to address the protection concerns is highly relevant for both the Society and the court to consider in this case.
[33] Given the mother’s lack of engagement and cooperation with the Society and in order to allow the Society, as well as the court, to evaluate the mother’s efforts to address the protection concerns, I am ordering the release of the mother’s records from all three service providers, as it is in the interest of justice to do so.
[34] The mother suggests that if the court is inclined to order a release of her records that the court limit the release of the records to investigation purposes by the Society and not for trial or any hearing.
[35] I am not inclined to limit the release of the records in such a fashion as this type of restriction would directly infringe upon the court’s gatekeeping role and function. This sort of limitation would essentially permit the Society to be the sole decision-maker regarding the planning for the family or return of the child to the mother’s care.
[36] The court is entitled to determine the receipt and review of the records and draw conclusions based on the records that are properly put forward at a hearing or trial. As such, I am not prepared to only release the documents to the Society for investigation purposes.
[37] The Society is entitled to review and draw their own conclusions from the records, so that they may meet their mandate to continuously assess and evaluate their position and involvement with a family.
[38] While the court must balance the privacy interests of an individual, in this case the records sought are directly relevant to the protection concerns before the court, and in a child protection proceeding, this outweighs the privacy argument advanced by the mother.
[39] Further, the release of the records does not offend any public policy argument given that the release of the records is specifically contemplated by the CYFSA.
[40] Given that the release of the records is authorized by the CYFSA; the release of the records is reasonable, the release of the records is in the interest of justice and will be subject to limitations that I shall set out below, I find that there is no infringement of the mother’s section 8 Charter rights.
[41] I do not find that this is a fishing expedition on the part of the Society, however, the scope of the records that the Society seeks from the Sault Area Hospital for the past 11 years is excessive, and I am not inclined to release these records for the mother as far back as 2012.
[42] The child in the case before the court was born on […], 2023. The Society was involved with the mother and her older children in 2008 and then again in 2013. The Society once again became involved with the mother as of August 2019 when the mother was charged with assault in relation to one of her older children and a file has remained open by the Society since that time.
[43] I find that the appropriate range of records to be released from the three record holders in this specific case is as of January 2019 to present. I find this time frame to be appropriate as the Society has been involved with the mother on a continuous basis since 2019.
[44] The mother has not been cooperative with the Society during essentially the Society’s entire involvement with the family, to the point that she refuses to even disclose the name of the father of the child.
[45] Given the mother’s lack of forthcomingness with any information, the Society is not able to meet their responsibilities in a child protection case to assess and evaluate the file on an ongoing basis and plan for the family moving forward.
[46] I find that the timeframe of January 2019 to present for the records will allow the Society, as well as the court if the records are appropriately filed and relied upon at a hearing, to examine any pattern and follow through with service providers on the part of the mother in her efforts to address the child protection concerns surrounding her mental health and substance misuse.
[47] I also find that it is appropriate that the release of the records be restricted to this child protection litigation and that the records obtained not be released to anyone other than the parties counsel and the court, again if appropriately filed and relied upon, in course of any hearings, motions or trial, for the purposes of this specific child protection litigation, unless permission is granted by further order of the court.
Conclusion
[48] Given the above, three separate orders shall issue.
[49] In relation to Dr. Fera and the Group Health Centre an order shall issue as follows:
Pursuant to Section130 of the Child, Youth and Family Services Act, the Group Health Centre, David Fera Medicine Professional Corporation and Dr. David Joseph Fera, shall provide to the Children’s Aid Society of Algoma and Gemma Dingwall, counsel for the respondent mother, M.V., also known as M.A, any and all records in relation to mental health and substance misuse, in their possession and control for the timeframe of January 2019, to present, with respect to M.V. born ***, also known as M.A. born ***.
The release of the records to the Children’s Aid Society of Algoma and counsel for the respondent mother, M.V., also known as M.A., shall be restricted to this child protection litigation.
The records obtained shall not be released to anyone other than the parties counsel and the court for the purposes of this child protection litigation, unless permission is granted by further order of the court.
[50] In relation to the Sault Area Hospital, an order shall issue as follows:
Pursuant to section130 of the Child, Youth and Family Services Act, the Sault Area hospital, shall provide to the Children’s Aid Society of Algoma and Gemma Dingwall, counsel for the respondent mother, M.V., also known as M.A., any and all records in relation to mental health and substance misuse, including but not limited to In-patient Psychiatric Unit records; Psychiatric Out-Patient Clinic records, Psychological Services records; Psychiatric Out-patient Medication Clinic and Psychiatry Office, including involvement with Dr. Sivaraman Kalaichandran, in their possession and control for the timeframe of January 2019, to present, with respect to M.V. born ***, also known as M.A. born ***.
The release of the records to the Children’s Aid Society of Algoma and counsel for the respondent mother, M.V., also known as M.A., shall be restricted to this child protection litigation.
The records obtained shall not be released to anyone other than the parties counsel and the court to the purposes of this child protection litigation, unless permission is granted by further order of the court.
[51] In relation to the Canadian Mental Health Association, an order shall issue as follows:
Pursuant to section 130 of the Child, Youth and Family Services Act, the Canadian Mental Health Association shall provide to the Children’s Aid Society of Algoma and Gemma Dingwall, counsel for the respondent mother, M.V., also known as M.A., a copy of any and all records in their possession or control for the timeframe of January 2019, to present, with respect to M.V. born ***, also known as M.A. born ***.
The release of the records to the Children’s Aid Society of Algoma and counsel for the respondent mother, M.V., also known as M.A., shall be restricted to this child protection litigation.
The records obtained shall not be released to anyone other than the parties counsel and the court to the purposes of this child protection litigation, unless permission is granted by further order of the court.
Released: October 20, 2023
Justice H. Mendes
Ontario Court of Justice
[^1]: Nova Scotia (Minister of Community Services v. B.L.C., 2007 NSCA 45.
[^2]: Children's Aid Society of Thunder Bay (District) v. D. (S.), 2011 ONCJ 100 at paragraph 43.
[^3]: T.L. v. British Columbia (Attorney General), 2023 BCCA 167.
[^4]: Child Youth and Family Services Act, 2017 S.O. 2017 c. 14 section 1(1).
[^5]: Child Youth and Family Services Act, 2017 S.O. 2017 c. 14 section 1(2).