CITATION: Children’s Aid Society of Ottawa v. Attorney General of Ontario, 2023 ONSC 2045

DIVISIONAL COURT FILE NO.: DC-23-2766 FAMILY COURT FILE: FC-21-CP10 DATE: 20230403

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Children’s Aid society of Ottawa, Applicant/Respondent AND: KF, DF, AF, CG, WG, HK, SERPENT RIVER FIRST NATION and HESHEGWANING FIRST NATION, Respondents AND: Attorney General of Ontario, Non-Party Respondent/Appellant

BEFORE: Aston, Lococo and O’Brien JJ.

COUNSEL: Mihaela Ion and Imran Kamal, for the Non-Party Respondent/Appellant Judith Hupe, for the Applicant/Respondent Maureen Bullbrook, for the Office of the Children’s Lawyer Stephen Pender, for the Respondent DF

HEARD at Toronto (virtually): March 23, 2023

ENDORSEMENT

[1] The Attorney General of Ontario (“AG”) appeals the order of Shelston J. made December 22, 2022. The order directed the AG to produce the entire Crown brief from an ongoing criminal prosecution against the father, DF, in the pending child protection case.

[2] An earlier order of October 26 required the Ottawa Police Service to produce all documents in its possession or control that involve, inter alia, DF. It followed a standard format for such orders (commonly referred to as a Wagg order[^1]), containing a provision that affords “the Attorney General, Crown Law – Criminal (Wagg Unit)” an opportunity to review the information and documentation in the Crown Brief to determine what it is willing to produce or not produce. The order reserves to the Children’s Aid Society of Ottawa (“the Society”) the right to then bring the matter back to the court for a determination of whether the Crown is bound to produce documents it objects to producing.

[3] The December 22 Order that is the subject of this appeal was triggered by the Crown’s refusal to provide more than a “Crown Synopsis” as a response to the October 26 order. In its affidavit evidence on the renewal of the original motion, the AG outlined the process for its Wagg Unit, including the fact that it usually takes about 24 weeks to conduct the necessary line by line review of its brief. The Motion Judge quite rightly refused the Crown’s request for an indefinite adjournment, primarily because the child protection case was scheduled for trial in February whereas the criminal case was not trial ready and no date for trial had been set. The protection hearing was already long past the timelines in s.96 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14 and Rule 33 of the Family Law Rules.

[4] The child MF had been interviewed by police on December 28, 2021 in the presence of a Society social worker and the interview had been video recorded. Unfortunately, the other documents or records in the Crown brief were not specifically identified by the Crown in the material before the Motion Judge. The Motion Judge made a broad disclosure order because the Crown did not demonstrate how any particular document should be sheltered by privilege, prejudice or otherwise because of public policy or public interest immunity.

[5] On hearing this appeal, we determined that we were not inclined to accept the Crown’s submission respecting the video recording of the child’s police interview or the other witness statements. We invited counsel to discuss a resolution that would preserve that part of the order while affording the Wagg Unit further time to review the rest of the Crown brief. Counsel were able to reach an agreement and have filed a proposal with the court. We have reviewed and approve their proposed resolution.

[6] On consent, the Order of Shelston J. dated December 22, 2022 shall be varied as follows:

a. Paragraph 1 shall be replaced with the following: The Ministry of the Attorney General (MAGG-Crown Law Office) regarding DF shall produce the video statement of MF and all the witness statements to the Respondents within 7 days.

b. The Ministry of the Attorney General shall screen the remainder of the Crown Brief and provide its position on the production of all the records and/or the production of the balance of the records to the Respondents’ counsel within a timeframe determined by the Court. Redactions of privileged information may be made.

c. The Ministry of the Attorney General shall identify and provide a list of all records held in its possession in relation to DF which it refuses to produce to the Respondents.

d. The Respondents may bring a motion to the Ottawa Superior Court of Justice -Family Branch on notice to the Attorney General for a further determination of production

[7] The parties did not agree on the timeframe in paragraph b. of the proposed resolution. We now fix that time as 30 days from the date this appeal was heard, April 26, 2023.

[8] Although the consent resolution is dispositive of the appeal, we wish to make certain observations about the process that culminated in this appeal, and to voice our views on the process.

[9] In child protection cases, particularly when the application is for extended Society care, a disclosure process that takes six months or more to resolve is unacceptable. That is particularly the case when the Wagg process will delay a child protection trial.

[10] A Children’s Aid Society or a parent should decide at an early stage whether to seek a Wagg Order. There are acceptable reasons not to do so prematurely but there ought to be an explanation for any delay.

[11] A delay of 24 weeks for vetting by the Wagg Unit is too long for child protection cases. Those cases need to be prioritized. Moreover, the vetting process needs to identify a particular reason for withholding or redacting a document. Completion of the criminal process is not always sufficient reason, in and of itself, to delay disclosure. Generic reasons do not allow a motion judge to properly assess the appropriate disclosure and will inevitably result in the kind of broad disclosure that was ordered in this case.

[12] DF is the only party seeking costs on this appeal. Though he vicariously enjoyed some success because of the Society’s success, a costs award in his favour ought to be modest. However, such an award will also signal our conclusion that the Crown needed to do more in this case to meet its obligation under the October 26 Order. DF is entitled to costs from the appellant fixed in the amount of $1,000 all inclusive.

Aston J.

Lococo J.

O’Brien J.

Date: April 3, 2023

[^1]: See D.P. v. Wagg (2001), 71 O.R. (3d) 229 (C.A.).