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

Date: 2023 02 01 Court File No.: C3111/19

Between:

CHILDREN’S AID SOCIETY OF TORONTO Applicant,

— AND —

V.L. Respondent

-AND-

R.C. Respondent

Before: Justice Melanie Sager

Heard on: January 18, 2023 Endorsement released on: February 1, 2023

Counsel: Katherine Georgious, counsel for the applicant society Emma Byrnes, counsel for the respondent V.L. R.C., on his own behalf Hershel Gold, counsel for the Office of the Children’s Lawyer Lonny Rosen, counsel for third party records holder

Sager, J.:

Introduction

[1] On January 18, 2023, the court heard two motions within a Status Review Application; one by the Children’s Aid Society of Toronto (the society) and the other by father, R.C.

[2] The society is seeking an order for third party production from Boost Child and Youth Advocacy Centre (Boost) of “any records in its possession relating to treatment recommendations made by Boost with respect to the child [G.C.] (born […], 2013) made as a result of a trauma assessment and trauma therapy completed by Boost over the course of their work with the above child.” The society also asks for an order that the recommendations “shall be disclosed to this Honourable Court for judicial vetting prior to being disclosed to the Society, should the court deem such an order fit.”

[3] The father brough a motion for an order requiring Boost to produce a complete copy of Boost’s records relating to G.C. including a complete copy of the trauma assessment report and trauma counselling records.

The Parties' Positions

[4] The society, the OCL and Boost generally agreed that the court could order some limited production of the recommendations as set out in the trauma assessment report, only if the court concludes that the recommendations are relevant to this proceeding. Counsel for Boost brought a clean copy of the entire trauma assessment report and a proposed redacted copy for release to the parties to enable the court to consider the various arguments respecting production. Neither the parties to this litigation, or Boost objected to the court engaging in judicial vetting of the trauma assessment report as part of its deliberations.

[5] The society, the Office of the Children’s Lawyer (OCL) and Boost opposed the father’s request for the release of Boost’s entire file.

[6] The mother did not take a position on whether Boost’s records should be released but submitted that she expected to receive a copy of whatever the court orders released to the society and the father.

Background of the Litigation

[7] The society commenced a Protection Application in August 2019, after the mother left G.C., who was 5 years old at the time and sleeping, alone in their condominium while she used the sauna in the building. A neighbour found G.C. wandering the hallways of the condominium and called the police when the mother could not be found. G.C.’s father brought her from the police station to his home where she has been ever since.

[8] The police charged the mother with and she eventually pleaded guilty to child abandonment.

[9] The society issued a Protection Application on August 23, 2019, seeking orders finding G.C. in need of protection pursuant to clauses 74(2)(b)(i) and (ii), 74(2)(h), and 74(2)(k) of the Child, Youth and Family Services Act (CYFSA) and a dispositional order placing G.C. in the care and custody of her father subject to the society’s supervision for a period of six months, with access by the mother to the child at the society’s discretion.

[10] This was not the society’s first involvement with the family. The society was involved between 2014 and 2019 with respect to several concerns including adult conflict, mother’s mental health and the risk of emotional harm to G.C.

[11] When G.C. was in the care of her father, she told the society worker that she was scared of going back to her mother’s home. She made several disclosures about other occasions when she was left alone by her mother.

[12] On August 23, 2019, Justice Robert Spence made a temporary without prejudice order placing G.C. in the care and custody of her father subject to the society’s supervision and granted the mother access to G.C. fully supervised by the society not less than twice per week.

[13] In approximately October 2019, after G.C. made additional disclosures, the mother was charged with more offences against the child including assault. A term of the mother’s release was that her access must be supervised by a society worker.

[14] On January 31, 2020, the court made the temporary without prejudice order placing the child in the care and custody of her father a with prejudice order and increased the mother’s access to G.C. on a temporary without prejudice basis, from three hours to six hours a week supervised by the society. The mother’s access was increased despite the society expressing concerns about comments made by the mother to G.C. during her access.

[15] On July 30, 2020, the society brought a motion seeking to vary the mother’s access to G.C. from 6 hours per week to entirely at the society’s discretion as to frequency, duration, location and level of supervision. The society’s evidence on the motion was that the mother’s conduct during access was very concerning as she was making extremely inappropriate comments to and in front of G.C. She spoke about the criminal charges and why she left G.C. alone the night she went to the sauna. She questioned G.C. on the allegations that led to the assault charges. She made comments to G.C. as to why they were not living together and told her that if she was living with her, G.C.’s French would be better. She also made negative comments to G.C. about her father.

[16] The society’s evidence on the motion was extensive. The mother showed no insight into her conduct and how it might be harmful to G.C. She refused to follow basic Covid protocols in place at the time and told the society worker to call the police in response to her behaviour. She made negative comments to G.C. about the society workers supervising the access. The society worker also had to terminate supervised telephone calls between the mother and G.C. when the mother was behaving inappropriately and could not be redirected.

[17] On July 30, 2020, the court ordered on consent on a temporary basis that the mother’s access to G.C. shall be at the society’s discretion.

[18] On October 22, 2020, pursuant to a Statement of Agreed Facts in which the mother admits that on August 19, 2019, after she put G.C. to bed, the mother went to the sauna in her building complex leaving G.C. alone in their unit, the court found G.C. to be in need of protection pursuant to clause 74(2)(b)(i) of the CYFSA.

[19] On November 13, 2020, the court made a final order, pursuant to a Statement of Agreed Facts, placing G.C. in the care and custody of her father, subject to the society’s supervision, for a period of five months with several conditions applicable to both parents. The final order provides that the mother’s access to G.C. shall be at the society’s discretion.

[20] On February 18, 2021, prior to issuing the Status Review Application, the court ordered the appointment of counsel through the Office of the Children’s Lawyer (OCL) to represent G.C.

[21] The Status Review Application in which the society requested an order granting the father custody of G.C. pursuant to section 102 of the CYFSA and access by the mother supervised by an agreed upon third party, was first before the court on May 5, 2021.

[22] The court heard a motion brought by the mother on May 5, 2021, for expanded access to G.C. as well as a motion brought by the society to suspend the mother’s access while G.C. participates in a trauma assessment through Boost Child and Youth Advocacy Centre (Boost). The society brought this motion in accordance with the policies and procedures employed by Boost when completing a trauma assessment. Boost’s best practices include the child who is undergoing a trauma assessment not having contact with the offender.

[23] The court was not inclined to make an order suspending the mother’s access to G.C. based on Boost’s policies alone. Evidence was required to demonstrate that such an order was in G.C.’s best interests. The motion was adjourned to June 3, 2021, and the court ordered the mother not to discuss or ask G.C. any questions about her interactions with her lawyer, the family service worker or the clinician at Boost.

[24] The motion was further adjourned to July 13, 2021. The society amended its Notice of Motion to request two in person visits per week supervised by the society or a professional supervision service while G.C. is undergoing the trauma assessment. The parties all consented to the order requested by the society.

[25] The court’s endorsement of July 13, 2021, provides that, “This matter is adjourned to August 17, 2021, at 9:00 a.m. to update the court as to the status of the trauma assessment and what if any recommendations have been made and implemented.”

[26] The parties requested to adjourn the August 17, 2021, court appearance as Boost had not completed the trauma assessment. In the society’s 14B Motion seeking the adjournment on consent, the society provided the following reason for the adjournment:

Reason: At the last court appearance on July 13, 2021, the parties and the court agreed to adjourn the matter to August 17, 2021 for a check in on how the Boost assessment had gone. The Boost clinician completed her assessment of [G.C.] on August 10, 2021. She has also completed the caregiver portion of the assessment with [R.C.]. [V.L.] has asked the clinician’s manager – Heather Gregory - whether she could also be part of the assessment. Ms. Gregory has agreed to speak with [V.L.]. to gather some developmental history of [G.C.] from her. Ms. Gregory said the rest of the caregiver piece is not relevant as [V.L.] continues to deny that the abuse took place . The clinician said that after Ms. Gregory has met with [V.L.] she will write up a full report of her assessment. For now, she has indicated that Boost’s recommendation will be that [G.C.] participate in Boost’s trauma treatment program and that [G.C.]’s access remain supervised during that treatment program . She was unable to say right now how long the treatment program would be. The parties have agreed to seek this adjournment with the hope that the full report will be ready in September and the parties can then consider their next steps. ” ( Emphasis mine )

[27] On September 27, 2021, the society advised the court that Boost had not yet completed the trauma assessment report, but the clinical manager advised the family service worker that the written report would be available soon. The society further advised the court that Boost would be recommending continued supervised access by the mother as she needs to build awareness of the impact of what has occurred on G.C. Boost was also considering requesting the mother to submit to a psychological assessment.

[28] At the September 27, 2021, court appearance, counsel for the mother advised that he had begun discussions with the mother regarding Boost’s recommendations and her willingness to submit to a psychological assessment but that the mother and her lawyer were waiting for the complete written report.

[29] On December 2, 2021, the society advised the court that Boost will not release the details of their recommendations as they are concerned that G.C. will be questioned about the recommendations during access. The parties agreed to community members supervising some of the mother’s access with G.C.

[30] The case was referred to the May 9 - 20, 2022, trial sittings. Prior to trial, the parties executed a Statement of Agreed Facts. On May 13, 2022, the court made a final order pursuant to the Statement of Agreed Facts, granting the father custody of G.C. In addition, the court made a temporary order regarding the mother’s access to G.C. and the issue of a final access order, and other issues including the release of G.C.’s therapeutic records were adjourned to August 9, 2022.

[31] On August 9, 2022, the parties advised the court that they agree to expand the mother’s access to be unsupervised. The society advised that there had been one overnight visit and that it was their hope to expand to regular overnight visits but that there had been conflict between the parents since the visits became unsupervised. The OCL advised that G.C. is enjoying the unsupervised visits including the overnight visit and wanted them to continue.

[32] The father voiced opposition to overnight visits as he said G.C. has said concerning things following unsupervised visits including that her paternal aunt and the society worker had brain washed her to say bad things about her mother. The father also reported that G.C.’s behaviour has changed and that she is behaving in an inappropriate manner towards him which he had not experienced before. He also said that G.C. has called him while with her mother and asked to extend visits and when he said no, G.C. asked him if he is going to call the police.

[33] Despite the concerns noted at the court appearance on August 9, 2022, the society and the mother both advised the court that they intended to bring motions to expand the mother’s access to G.C. on the next court date scheduled for September 28, 2022.

[34] On September 28, 2022, the court heard the society’s motion to expand the mother’s access to G.C. which was supported by the mother and the OCL and opposed by the father.

[35] The court had such serious concerns about the evidence relied upon by the society that it adjourned the society’s motion to allow the society to issue a summons for the child’s therapist to attend in court and give evidence on the return of the motion. In the interim, the court varied the mother’s access on a temporary without prejudice basis to once per week for two hours supervised by the society. The motion was adjourned to November 3, 2022, and then to December 19, 2022, at the request of counsel for the mother.

[36] On December 19, 2022, the parties attended in court along with two therapists who had worked with G.C. through Boost and their lawyer. Counsel for Boost objected to any questions being answered that violated G.C.’s confidentiality. As a result, the court adjourned the motion for the society to bring a motion against Boost for the release of their records in relation to G.C.

[37] The court ordered the mother’s access to G.C. to continue to be supervised once per week by the society and a second visit was scheduled on Saturdays to be supervised by a family friend agreed to by the parents and the society. In addition, the court ordered a video call between the mother and G.C. every Wednesday.

[38] The parties attended in court on January 18, 2023, and counsel made submissions on the motions. The following documents were before the court on the motions:

(a) Society’s Notice of Motion dated January 3, 2023. (b) The affidavit of Rhian Grundy-Evans, society worker, sworn December 29, 2023. (c) The affidavit of Kayla Yama, a clinical director at Boost, sworn January 13, 2023. (d) The affidavit of R.C. sworn January 16, 2023. (e) The affidavit of V.L. sworn January 10, 2023. (f) The affidavit of Allyson Gardner, a social worker providing clinical assistance to counsel from the OCL sworn January 10, 2023.

[39] The father did not serve and file a Notice of Motion. Rather, he made the request for Boost’s file in a 14B Motion. Although the form 14B Motion is used for uncomplicated or procedural motions, which this motion is not, the parties and the court agreed to treat his 14B Motion as a regular Notice of Motion.

Law and Analysis

[40] The society brings this motion pursuant to section 130 of the CYFSA. It reads,

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:

1. An order under clause 94 (2) (b) or (c) that is subject to supervision.
2. An order under clause 94 (2) (c) or (d) with respect to access.
3. A supervision order under paragraph 1 or 4 of subsection 101 (1).
4. An access order under section 104.
5. An order with respect to access or supervision on an application under section 113 or 115.
6. A custody order under section 116.
7. 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 .

[41] The father’s motion is pursuant to subrule 19(11) of the Family Law Rules (the Rules) which provides,

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.

[42] As Boost agreed to release the recommendations that resulted from G.C.’s trauma assessment, only the father’s motion was contested by the society, the OCL and Boost. The mother took no position on the father’s motion.

The Father's Motion

Are the records requested by the father likely relevant to the issue before the court?

[43] Counsel for Boost advised that G.C.’s file is made up of referral notes, the trauma assessment report, trauma therapy records, G.C.’s trauma narrative, and notes of communication with the lawyers on this case. Boost’s interaction with G.C. and the existence of a file with Boost is a direct result of the mother’s treatment of G.C.

[44] The first issue the court must determine is what level of relevance must the documents hold in order to compel disclosure pursuant to subrule 19(11) of the Rules. There is ample authority in child protection and family law case law adopting a threshold requirement on subrule 19(11) motions involving sensitive records, like counselling and health records, that the court should apply the “likely relevant” standard. [1]

[45] The society arranged the trauma assessment for G.C. to better understand the impact of the mother’s conduct on her, what services should be pursed and to inform the society’s choices in structuring and facilitating the mother’s access considering what G.C. has experienced. As a result of the trauma assessment arranged by the society, Boost created a number of documents concerning G.C. which all stem from the mother’s treatment of G.C.

[46] The single issue before the court is the mother’s access to G.C. I only have to find that the documents being requested are likely relevant. After reviewing the affidavit evidence filed in support of the motions, hearing submissions from the parties and reviewing the trauma assessment report, I have no doubt that Boost’s records regarding G.C. are not only likely relevant but are actually relevant to the outstanding issue of the mother’s access to G.C.

Does any legal privilege exist that might prohibit disclosure of the documents being sought by the father?

[47] In L.S. v. B.S., 2022 ONSC 5796, Justice Alex Finlayson set out the approach to determining whether a child’s health and counselling records are privileged as follows:

[126] Rule 19(11) next requires the Court to consider whether any legal privilege exists that might prohibit the non-party production being sought. In M.(A.) v. Ryan, the Supreme Court analyzed the issue in the context of a request therapeutic records sought for use in a civil sexual assault proceeding. But the analysis in M. (A.) v. Ryan has been widely applied in family law cases, too.

[127] As a starting point in M.(A.) v. Ryan, the Supreme Court noted that everyone owes a duty to give evidence relevant to the matter before the Court, so that truth may be ascertained. But privileges are an exception to this fundamental duty, where it can be shown that they are required by a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth”: see M. (A.) v. Ryan ¶ 20.

[128] The Supreme Court set out that there is no blanket privilege in health records. At the same time, the kinds of privilege that may exist at law are no longer confined to “centuries’ old categories”. The common law permits privilege in new situations, “where reason, experience and application of the principles that underlie the traditional privileges so dictate”: see M. (A.) v. Ryan ¶ 20.

[129] The Supreme Court then used the four-prong “Wigmore test” to determine whether the contents of records in that case were privileged, on a case by case basis: see M. (A.) v. Ryan ¶ 20. That test requires courts to consider:

(a) Did the communication originate in a confidence?; (b) Was the confidence essential to the relationship in which the communication arose?; (c) Was the relationship one that must be “sedulously fostered” in the public good?; and (d) If all the above circumstances are met, do the interests served in protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation?

Wigmore Test

(a) Did the communications contained in Boost’s records between G.C. and the therapists originate in confidence?

[48] During submissions, counsel for Boost, the society and the OCL all argued that Boost’s records are privileged but provided no analysis for the court on how they reached that conclusion. Each counsel focused on the fourth prong of the test arguing that G.C.’s interests in protecting her communications from being disclosed is so significant that doing so outweighs the interest in getting at the truth and disposing correctly of the litigation.

[49] I do not share the same conclusion regarding privilege as counsel for Boost, the society and the OCL. I do not agree that the trauma assessment was intended to occur in confidence.

[50] As noted above, the court was provided with an unredacted copy of the trauma assessment report at the outset of the motion. The court reviewed and vetted the complete trauma assessment report to assist in determining whether it is privileged pursuant to subrule 19(11) of the Rules. As a result, reference is made to portions of the report in this decision.

[51] The party whose records are being requested is able to claim or waive privilege. [2] But it was the society who retained Boost to complete a trauma assessment of G.C. as indicated on the first page of the report which states that Kelly Rose-Hurst, Children’s Aid Society of Toronto was the referral source. Secondly, all communication with Boost to arrange for and monitor the trauma assessment was by the society worker, Ms. Rose-Hurst. Ms. Rose-Hurst also worked with Boost to allow for the mother to have access to G.C. while she was undergoing the trauma assessment when it is Boost’s policy that a child undergoing a trauma assessment should have no contact with the offender. [3]

[52] In a previous affidavit sworn by Ms. Rose-Hurst on April 29, 2021, she says about the Boost trauma assessment at paragraph 54, “Hopefully in the future if Boost recommends joint counselling [the mother] will agree to participate in it.”

[53] When G.C. completed the trauma assessment she was 7 years old. While the OCL argues on the child’s behalf that the assessment report is privileged, as a matter of common sense, it cannot sincerely be argued that this 7 year old child had the necessary level of understanding that she was or was not entering into a confidential relationship with service providers at Boost. And it is clear from Ms. Rose-Hurst’s affidavit that the society expected the trauma assessment report containing recommendations to be provided to the society and the parties.

[54] In a letter from Boost provided to the court and attached as an exhibit to Ms. Rose-Hurst’s affidavit sworn April 29, 2021, the clinical manager of Boost writes, “The purpose of the trauma assessment is to identify the impact of the potentially traumatic experience(s) and make recommendations for therapeutic purposes. This assessment is not intended for court purposes.” Just because Boost may have taken the position that the assessment is not intended for court purposes does not impact this analysis. Surely, they must have known that was not the case given G.C. was referred by the society because of an ongoing protection application.

[55] The society and the parents certainly conducted themselves as though they would receive the trauma assessment report regardless of Boost’s claims about the purpose of the assessment. As stated above, in several court documents and on several appearances in court, the parties made submissions that they were unable to proceed with the litigation as they were still waiting for the trauma assessment report and recommendations.

[56] In the Statement of Agreed Facts filed by the parties in support of a section 102 custody order in the father’s favour, the parties agreed at paragraph (u) on page 6 that,

“An All Party Meeting was held with Dr. Felsher from BOOST on April 28, 2022. Dr. Felsher advised that it was best practice for [G.C.]’s access to remain supervised until [G.C]’s trauma narrative was complete. Dr. Felsher also advised that the trauma narrative was almost complete, and could be complete as early as in a month. As such, the parties have agreed that the issue of access cannot be finalized as of yet .” ( Emphasis mine )

[57] The same Statement of Agreed Facts was also filed in support of a temporary access order and at paragraph 10 the parties requested and obtained the following temporary access order:

“The Children’s Aid Society shall have the discretion to change the level of supervision or duration of [the mother’s] access should [the mother] breach term 8 or 9 [4] of this Order, or upon taking into consideration [G.C.]’s views and preferences as expressed to the Society or the OCL and any recommendations made by BOOST ( Emphasis mine ). In this case, access for [the mother] shall be a minimum of once per week. Should the Society reduce [the mother’s] access from what is stated above, [the mother] has leave to bring a motion with respect to her access.”

[58] The Boost trauma assessment report itself provides evidence that the communications between G.C., and the trauma assessor did not originate in confidence as the assessor writes, “[G.C.]’s hope that this therapist will talk to her mother about making changes implies that [G.C.] still has hopes that she and her mother can repair their relationship.”

[59] There is a significant amount of evidence demonstrating unequivocally that there was no expectation by G.C. or any substitute decision maker on her behalf, or any of the other parties for that matter, that her participation in the trauma assessment would be kept in confidence and not shared with the society, the parties and the court. To the contrary, it was absolutely expected by all that the trauma assessment report would be made available to them and be of assistance in finalizing the issue of the mother’s access to G.C. either through negotiations or a trial.

[60] Seeing as the society was involved in a child protection proceeding involving G.C., it only reasonably follows that the society pursued the trauma assessment to assist the society in formulating a position on the only remaining issue before the court of the mother’s access to G.C. All parties involved in this case expected to receive the trauma assessment report and to rely on the report and the recommendations in the court proceeding which refutes the argument that the relationship between G.C. and the Boost trauma assessor originated in confidence.

(b) Was the confidence essential to the relationship in which the communication arose?

[61] For all the reasons set out above, as I have concluded that the communication between G.C. and the trauma assessor did not originate in confidence, I cannot find that the second prong of the Wigmore test is met, specifically that the confidence was essential to the relationship in which G.C.’s communications with Boost arose.

(c) Was the relationship one that must be “sedulously fostered” in the public good?

[62] G.C. was 7 years old when she was referred for a trauma assessment. In the assessor’s report under ‘Clinical Formulation’, the author writes that “the assessment highlighted several clinical concerns including nightmares, difficulties with sleep, symptoms of hypervigilance, avoidance, fear of revictimization, and distressing reminders.” The report makes very strong recommendations for the mother’s access to G.C. “to remain supervised throughout [G.C.]’s treatment and likely beyond if [the mother] continues to demonstrate a lack of understanding of the impact of her behaviour on [G.C].” In fact, the assessor recommends that the mother undergo “a comprehensive psychological assessment as well as her own intensive individual therapy”.

[63] There is a significant amount of concerning information in the trauma assessment report about how G.C. processes the abuse she suffered, her mother’s denials that the abuse took place and the coping mechanisms G.C. must employ to manage her experiences and emotions.

[64] Of particular concern is the assessor’s comments on page 8, where she writes under the heading, ‘Emotional Regulation and Expression’,

“On the questionnaires, [G.C.]’s responses do not suggest that she is currently experiencing a significantly depressed mood. [G.C.] did, however, report a slightly lower self-esteem than the majority of her peers. [G.C.] also reported that she thinks about killing herself though would never do it. When asked in the clinical interview, [G.C.] denied having thoughts of suicide.”

[65] In the recommendations portion of the report, the first heading is ‘Individual’ and the very first recommendation reads as follows:

“Check in frequently and create a safety plan re: thoughts of suicide if necessary. Explore further the reason for the thoughts of suicide.”

[66] Failure to disclose the trauma assessment report to the parties, and specifically the father, who has custody of G.C., resulted in her caregivers being denied critical information about her for over a year. G.C. has been denied the safety plan the assessor recommended be implemented with respect to G.C.’s possible thoughts of suicide. The relationship G.C. had with the therapist who conducted her trauma assessment is not one, based on the evidence on this motion, that can or should be sedulously fostered in the public good. To do so would put G.C. at significant risk of harm.

[67] In terms of the third prong of the Wigmore test, that the relationship between G.C. and the Boost trauma assessor is one that must be “sedulously fostered” in the public good, how could it possibly be in the public good to allow extremely important information about a 7 year old child’s best interests be withheld from the parties and the court when it is germane to the very issue the court is being tasked with deciding? Even more troubling is how it can be in the public good to withhold crucial information about a 7 year old child from her primary caregiver and custodial parent?

[68] In the context of this case, I find that the relationship between G.C. and the Boost trauma assessor is not one that must be sedulously fostered in the public good.

Conclusion Regarding the Issue of Privilege

[69] As I have found that the trauma assessment report is not a privileged document, I do not have to consider the fourth prong of the Wigmore test.

[70] If I am incorrect in my analysis of the first three prongs of the Wigmore test, I still would find based on the evidence set out above, that the communications are not privileged based on the fourth prong of the test, specifically that the interests served in protecting the communications from disclosure do not outweigh the interest in getting at the truth and disposing correctly of the litigation. Nor would I find that some portions of the report should be released while the remainder protected by a partial privilege.

[71] It is noteworthy that the trauma assessment report does not just speak about the child but includes information about the mother relevant to the issue of access. The mother asked Boost if she could be involved in the trauma assessment. The report explains that normally only the child’s primary caregiver is part of the assessment but that the assessor agreed to meet with the mother. There is a significant amount of information in the trauma assessment report about the assessor’s interactions with the mother resulting in the assessor recommending the mother undergo a psychological assessment and that her access to G.C. be supervised for quite some time and specifically until she acknowledges her role in G.C.’s trauma and participates in intensive therapy with an appropriate therapist.

[72] The information contained in the report about the mother is of the utmost importance in this case for many reasons but particularly so since the society is seeking to expand the mother’s access to G.C. to overnight access every other weekend. [5]

[73] In addition, there are opinions in the report about the assessor’s observations of the mother and the impact on G.C. For example, the trauma assessment report says that the mother does not acknowledge the impact of her behaviour on G.C. and that this reality continues to negatively impact G.C. The report details how G.C. has been and is impacted by the trauma she has suffered. It is vital for the parties and eventually the trier of fact, to have this information in order to be able to craft a final order that best meets G.C.’s needs.

[74] Finally, there is a lot to unpack in the trauma assessment report. Were the court to redact or only release portions of this report, it would be an injustice to G.C. as there would be a substantial risk that the court would not receive important information about G.C., that G.C.’s best interests would not be served, and worse, that G.C. would be unnecessarily exposed to risk of harm or ongoing harm. But that is exactly what the parties and the court risk if this matter proceeds without the trauma assessment report being disclosed in full to the parties.

[75] Therefore, I find that if the trauma assessment report meets the first three prongs of the Wigmore test, I would find that based on the fourth prong that the interests served in protecting the communications from disclosure do not outweigh the interest in getting at the truth and disposing correctly of the litigation and as a result there is no legal privilege over this document.

Would it be unfair for the father to proceed to trial without Boost’s records?

[76] Justice Finlayson sets out at paragraphs 130 to 131 of L.S. v. B.S., the next steps in the analysis if the court finds that no legal privilege over the third party records exists. He writes,

[130] If the Court determines a privilege exists, then there is no residual discretion to order the production under rule 19(11), or at common law, and thus no reason to provide additional information: see M.(A.) v. Ryan ¶ 15-17. But if the records are not privileged, or only partially privileged, the Court must still decide whether it would be unfair for a party to proceed to trial without the documents not cloaked with a privilege.

[131] Unfairness in this context is governed by the test set out by the Ontario Court of Appeal in Ontario (Attorney General) v. Stavro (1995), 26 O.R. (3d) 39 (C.A.). The so-called Stavro factors that govern the exercise of the Court’s discretion about unfairness are:

(a) the importance of the documents in the litigation; (b) whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness; (c) whether some other form of discovery is adequate, and if not, with whom does that inadequacy rest; (d) the position of the non-parties respecting production; (e) the availability of the documents or their informational equivalent form some other source that is accessible to the moving parties; and (f) the relationship of the non-parties from whom production is sought to the litigation. Non-parties who have an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true “stranger” to the litigation.

[77] The court finds that it would be unfair for the parties to proceed to trial without the trauma assessment report for many of the same reasons as set out above, and for some additional reasons too, pursuant to the Stavro factors:

(a) The trauma assessment report completed by Boost on the child G.C. is extremely important to the litigation before the court. (b) It is imperative for the trauma assessment report to be disclosed before trial for the parties to understand G.C.’s needs and what court order regarding the mother’s access to her would best meet these needs. In addition, the parties will have to decide prior to trial whether an order for a psychological assessment of the mother should be pursued. (c) Waiting until trial to release the trauma assessment report will likely result in the trial having to be adjourned. (d) There is no other information available to the parties about the child that could replace or be a substitute for the information contained in the trauma assessment report. (e) While some of the information and conclusions about the mother is available through other sources such as the society and other lay witnesses, there is no information available through any other source in relation to the impact the mother’s parenting and behaviour has had on G.C. The extent of the information in the trauma assessment report cannot be found in the society’s or OCL’s evidence. (f) Boost’s position that G.C.’s confidence should not be violated is understandable but protecting her privacy in this case cannot have greater importance then the need to protect G.C.’s safety and promote what is in her best interests. I have already found that the relationship did not originate in confidence. Again, she was 7 years old at the time of the trauma assessment. While expectations of confidence may change as a child ages, G.C. is now still only 9 years old. She cannot communicate her needs to her caregiver in the manner that they are detailed in the trauma assessment report. The court is faced with making an access order by the mother to G.C. and asking the court to do this without extremely sensitive and relevant information is absurd. (g) Boost has no interest in the outcome of this litigation. (h) Boost’s stated goal is to protect the child’s privacy. That cannot be done at the expense of her safety and well being. The society retained Boost to complete a trauma assessment for the purposes of this litigation involving this child. The litigation was ongoing at the time of the retainer. The litigation centres on the potential risk of harm to G.C. of the mother having access. Boost’s desire to protect the child’s privacy is of course admirable but in the circumstances of this case and specifically, the numerous compelling reasons for ordering disclosure of the trauma assessment report, making G.C.’s privacy paramount over all else and denying the disclosure request would be at G.C.’s peril.

Is the father entitled to receive the balance of Boost’s records?

[78] As stated above, the balance of G.C.’s records with Boost are the intake notes regarding Boost’s services, the child’s trauma narrative, trauma therapy notes and notes regarding communications with the various lawyers involved in the litigation.

[79] I am not prepared to release any additional documents to the father at this time. Even if I were to find that the balance of the documents are not privileged, the release of these documents is not necessary at this time. As a result, I do not have to determine currently if the balance of Boost’s records enjoy legal privilege.

[80] A finding that it would not be unfair to the father to proceed with the litigation without the balance of Boost’s records is based in part on my decision to release the entire trauma assessment report. This document is 14 pages long and very detailed. It contains a total of 16 recommendations to support G.C.’s recovery from the trauma she experiences. It is an extremely detailed document.

[81] Because the trauma assessment report is so detailed, it makes the balance of the records in Boost’s possession less important to the litigation. It also makes it unnecessary to release these other documents, if they are not privileged, at this stage of the litigation. The parties should first have access to the trauma assessment report, in part, to assist in determining whether it would be unfair to proceed with the litigation without the balance of Boost’s records.

[82] Leave will be given to the parties to bring further production motions should they determine additional third party documents are needed after receipt and review of the trauma assessment report.

Order

[83] Boost Child and Youth Advocacy Centre shall release unredacted copies of the complete trauma assessment report of G.C. to the Children’s Aid Society of Toronto, the mother’s lawyer, the father and the Office of the Children’s Lawyer.

[84] The mother’s lawyer may review the report with her client but shall not release a paper or electronic copy of the report to the mother. This order shall bind all future lawyers who are retained to represent the mother in this litigation.

[85] No party shall reproduce the report or show it to anyone other than a professional retained to assist a party or G.C. either for therapeutic or litigation purposes.

[86] The mother shall not discuss any aspects of the report with G.C.

[87] The balance of the father’s motion for additional disclosure from Boost is dismissed without prejudice.

[88] The parties have leave to bring a motion for further disclosure from Boost should they determine that to be necessary upon review of the trauma assessment report.

Released: February 1, 2023 Signed: Justice Melanie Sager

Footnotes

[1] Children’s Aid Society of Brant v. N.M.P., 2016 ONCJ 266; Highland Shores Children’s Aid Society v. T.S., 2019 ONSC 5765 paras. 30, 39; see M.M-A., P.A., M.D. and A.D. v. E.L. v. Kunuwanimano Child and Family Services, Attiwapiskat First Nation, 2020 ONSC 4597 paras. 30, 39; G.L.K. v. C.L.K., 2021 ONSC 5843 paras. 22-23.

[2] See M.(A.) v. Ryan at paragraph 14.

[3] See paragraphs 12-22 of Ms. Rose-Hurst’s affidavit sworn June 21, 2021 at Tab 9 of volume II of the Continuing Record.

[4] Term 8 reads , “[The parents] shall not engage in discussions with [G.C.} or ask her questions during her access about her interactions with her lawyer, the Family Service Worker, or the clinicians at Boost, nor shall either parent speak of this litigation to the child [G.C.]. Should [G.C.] approach either parent about this litigation, both parents shall refer [G.C.] to speak to her counsel at the Office of the Children’s Lawyer.” Term 9 reads , “If or when [G.C.]’s access is not fully supervised, the child [G.C.] shall have a cell phone at all times during the above access visits for which she can call [the father] to request the visit end early. Should [G.C.] use this cell phone to call her father, [the mother] shall be cooperative in ensuring the visit ends.

[5] The third party records motion was brought as a result of the society motion to expand the mother’s access first before the court on September 28, 2022. At the hearing of the third party records motion, the society advised the court that they expect to withdraw their motion to expand the mother’s access.