Superior Court of Justice – Ontario – Family Court

DATE: 20130909

RE: CHILD AND FAMILY SERVICES FOR YORK REGION, Applicant

AND:

L.H. and M.H., Respondents

BEFORE: The Honourable Mr. Justice C. Boswell

COUNSEL:
Anthony W. Snider, Counsel, for the Applicant
Carolyn Leach, Counsel, for the Office of the Children’s Lawyer
L.H., in person
M.H., not appearing
Pasquali Cubellis, vice principal, for St. Jean Vanier Catholic Secondary School
Gabriella Mastrodikasa, principal, for Our Lady Help of Christians CES

HEARD: September 5, 2013

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person, this judgment complies with this restriction so that it can be published.

ENDORSEMENT

Overview

[1] Eight years ago, a husband (MH) and wife (LH) separated. As separations go, theirs went badly. Their struggle continues today. The heart of the struggle has always been about the care, control and affections of the two children, JNH (age 14) and EMH (age 12). Today’s discrete battle, however, is about whether LH is entitled to access to a number of third party records, including school records and the notes and records of therapists who have provided assistance to the children. LH asserts that the records she seeks are necessary to enable her to fully answer and defend the applicant’s summary judgment motion returnable in two weeks’ time. The Office of the Children’s Lawyer opposes much of the disclosure sought, for reasons I will articulate below. It will be helpful to the reader, however, to have some brief background to put today’s motion into perspective.

Background

[2] Given a high level of conflict between LH and MH, the Catholic Children’s Aid Society of Toronto became involved with the family. A protection application was commenced initially in August 2006. The protection proceedings and their aftermath were clearly and succinctly set out by Brownstone J. in his reasons for decision given at an earlier step in these proceedings on February 1, 2010, at paragraphs 2 - 4:

2 The society's involvement in this family was necessitated by parental conflict following the parents' separation in 2005. When the original protection application commenced on 10 August 2006, the children were living with their mother and the society was seeking to have them remain in her care under a supervision order. As the proceeding evolved during the ensuing months, the children's well-being deteriorated because they were being subjected to intense pressure from their mother to fabricate allegations of abuse against their father. The society eventually served and filed an amended protection application seeking to place the children with their father under a supervision order. After an 18-day trial, Justice Marvin Zuker issued a 140-page decision in which he concluded that the mother had engaged in extreme parental alienation in respect of the children's relationship with their father. An order was made on 10 July 2008 finding both children to be in need of protection pursuant to subclause 37(2)(f)(i) (for E.M.Hu.) and clause 37(2)(g) (for J.N.Hu.) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended ("the Act"). The disposition was an order placing the children in their father's immediate care and custody for 12 months under society supervision. The mother's access was to be in the society's discretion.

3 After a harrowing series of events outlined in Mr. M. Hu.'s affidavit sworn on 17 November 2009 (none of which are contradicted by Ms. L.D.Ha. in her affidavits filed in response to this motion), the children were finally delivered into their father's custody on 1 August 2008. They have been residing with Mr. M.Hu. since then, and the uncontradicted evidence is that they have been doing exceptionally well in all respects, particularly since their access visits with their mother ceased in February 2009. The circumstances leading up to the suspension of Ms. L.D.Ha.'s access are set out below.

4 Since Justice Zuker's order dated 10 July 2008, Ms. L.D.Ha. has engaged in a relentless campaign of litigation in the hopes of having the children returned to her. Her motion in Superior Court to stay Justice Zuker's order pending appeal was dismissed, as was her application to the Divisional Court for leave to appeal the order denying a stay pending appeal. Her appeal of Justice Zuker's decision was dismissed on 14 January 2009 by Justice Victor S. Paisley of the Ontario Superior Court after a 4-day hearing.

[3] The proceeding before Brownstone J. was a summary judgment motion brought by the Society in the context of a Status Review Hearing following Zuker J.’s original protection order. Brownstone J. ordered that the children remain with their father for a further period of six months, under Society supervision, upon certain conditions. LH was granted therapeutic access to the children to be supervised by a psychologist. The therapeutic access has not gone well.

[4] At some point after Justice Brownstone made his order, the protection application was traversed to Newmarket and the applicant assumed responsibility for supervision in accordance with the terms of the outstanding order. Before the term of Justice Brownstone’s order expired, the applicant commenced another Status Review application, which is ongoing. They have served a motion for summary judgment, now returnable September 17, 2013, in which the applicant seeks a final order that the children remain with their father, under supervision, for 12 months and that they have no contact with LH. Of course LH opposes the motion.

[5] It is in the context of the summary judgment motion, and the Status Review proceeding more generally, that LH seeks disclosure from third parties.

The Disclosure Sought

[6] LH asks the court to order certain third parties to provide the following disclosure:

(i) York Catholic District School Board is asked to provide the school records (report cards, attendance, discipline records) and any therapeutic counselling records in their possession relating to both children;

(ii) Toronto Psychological Services is asked to provide the clinical notes and records of Jancy King, a psychological associate who was engaged with the family to facilitate the therapeutic access between LH and the children, as ordered by Justice Brownstone;

(iii) Family Service Association of York Region, where apparently the children and MH received therapeutic counselling in 2009, are asked to provide any notes and records created in the course of that counselling.

[7] In an earlier iteration of LH’s motion, she also sought records from New Path Youth and Family Services and Kinark Child and Family Services. Those requests were either resolved or abandoned, such that the only third party records now sought are the ones enumerated in the preceding paragraph.

The Test for Third Party Disclosure

[8] The Family Law Rules, Ont. Reg. 114/99, provide generally for the disclosure of relevant documents between the parties to any litigation in the Family Court. The fulsome exchange of relevant documentation is one of the basic pillars of the Rules. Nowhere is the fulsome exchange of relevant documentation more important than in a child protection proceeding. In this particularly proceeding, the state seeks to terminate all contact between a mother and her children. The stakes are obviously high. LH must be afforded all reasonable opportunities to make full answer to the claim of the state.

[9] The Rules specifically provide for third party disclosure in Rule 19(11), which reads as follows:

(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.

Positions of the Parties

[10] Although served with LH’s motion record, none of the third parties delivered any of the documents sought. The vice principal of St. Jean Vanier Catholic Secondary School appeared on the motion and advised that the school takes no position in terms of providing the documents sought and will abide by whatever order is made. The principal of Our Lady Help of Christians Catholic Elementary School appeared and took the same position. No one appeared from or on behalf of Toronto Psychological Services or from Family Service Association of York Region. The respondent, MH, did not appear on the motion either.

[11] LH argues that the records she seeks are not privileged. She asserts that there is no expectation of privacy in therapeutic records in child protection cases. She cites the Supreme Court’s decision in R. v. Stinchcombe (1998), 1991 45 (SCC), 68 C.C.C. (3d) 1, asserting that its principles apply to child protection proceedings and establish a wide ambit of disclosure to be provided. She argues that without the records she seeks, she will be unable to make full answer to the summary judgment motion brought by the applicant.

[12] The children who are the subject of the child protection proceedings are represented by counsel from the Office of the Children’s Lawyer (“OCL”). OCL counsel does not oppose the production of school records created in the usual and ordinary course, such as report cards, attendance records, and/or discipline records. She does not oppose the production of the clinical notes and records of Jancy King. Those, she submits, were not created in the context of a therapeutic or clinical relationship, but rather relate to the failed attempt at therapeutic access. What she does oppose is the production of notes and records prepared in the course of therapeutic counselling. The basis for the objection is that the records are privileged, and in any event, it would not be unfair to require LH to proceed to argue the summary judgment motion without them.

[13] The applicant joins in the position of the OCL.

Discussion

[14] There being no dispute about production of (1) the children’s academic records, and (2) Jancy King’s clinical notes and records, an order will go that those documents be disclosed to LH forthwith.

[15] The dispute centres around the production of the clinical notes and records of therapeutic counsellors who met with the children, and in some instances, MH, subsequent to 2009.

[16] The specifics of the records sought are quite limited. LH was reprimanded for the lack of detail in her supporting affidavit material by Justice McGee in an endorsement dated June 20, 2013. In response, she filed a more comprehensive affidavit sworn August 9, 2013, which I had the benefit of reviewing.

[17] I was advised during oral argument that there are really two specific instances of therapeutic counselling that are in issue. The first occurred not long after Justice Zuker’s order of July 10, 2008 in the original protection application. That order resulted in the transfer of the children from their mother’s care to their father’s care. On the heels of the finding that LH had engaged in extreme parental alienation behaviour, the children and MH began a course of therapeutic counselling with the Family Service Association of York Region.

[18] I have no information about the exact time frame in which that counselling took place, the number of sessions attended, or the specific issues canvassed during the sessions. It appears that the motion is proceeding on the assumption that clinical notes and records were made during the sessions and exist today.

[19] The second course of therapeutic counselling appears to have involved only EMH. I was advised, during oral argument, that he participated in a counselling program through his school known as the Compass program, the particulars of which have not been provided to me.

[20] LH outlined, in her August 9th affidavit, why the counselling records she seeks are relevant and of significance to her. She said that the records will demonstrate that:

(a) The parameters and context of counselling provided by Aruna Papp (of Family Services Association) was based on falsehoods;

(b) The counselling sought and received failed to adequately address the challenges at hand;

(c) The counselling was so superficial and brief as not to have any marked change at the time; and

(d) The issues intended to be addressed through this intervention have repeatedly re-emerged.

[21] During oral argument she expanded on the relevance of the counselling records. She said that they will reveal two things. First, that the children believe she is mentally ill and that their belief is the result of information they have received from MH and/or others. Second, that MH has ongoing problems with the children and that evidence of neglect and abuse will be found.

[22] The most basic principle involved in production requests is that the documents sought must have relevance to a material issue between the parties. While I certainly appreciate the broad issues that are in play in child protection proceedings, I confess that I am not entirely clear about what specific issues remain between the parties and how the information sought is relevant to those issues. Moreover, it is apparent to me that the existence of the documents sought and the nature and content of those documents is entirely speculative.

[23] LH, as I noted, cited R. v. Stinchcombe, as above, as authority for the test to be applied in disclosure applications in child protection proceedings. While I do not dispute that the principles articulated in Stinchcombe are applicable to protection hearings, they apply to records in the possession of the Society. A different test – as set out in Rule 19(11) – applies where the records sought are in the possession of a non-party.

[24] In the context of the application of Rule 19(11), the OCL raised the primary objection that the clinical notes and records sought are covered by a case-specific privilege. I agree, and in my view, the argument of privilege is dispositive.

[25] In Ontario jurisprudence, privilege may arise in one of two broad categories: see Children’s Aid Society of Halton Region v. T.C.B., 2012 ONCJ 69, at para. 33. It may exist as a “class privilege” such as, for instance, solicitor-client privilege or informer privilege. Alternatively it may exist as a non-class or “case-specific privilege”. In this instance, no class privilege is asserted by the OCL. Instead, the argument is that a case-specific privilege arises essentially due to the nature of the relationship between the children and the counsellors they have met with.

[26] To assess whether a case-specific privilege arises with respect to identified documents, Canadian courts have been directed by the Supreme Court to apply the “Wigmore” test: see A.M. v. Ryan, 1997 403 (SCC), [1997] S.C.J. No 13, [1997] 1 S.C.R. 157, 143 D.L.R. (4th) 1. The Wigmore test has four parts: (1) the communication must originate in confidence; (2) the confidence must be essential to the relationship in which the communication arises; (3) the relationship should be one which should be “sedulously fostered” in the public good; and (4) if all other requirements are met, the court must consider whether the interests served by protecting communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.

[27] As I have noted, there is a very limited record upon which I might make factual findings about the particulars of the counselling associated with the records being sought. But I am satisfied that the first three parts of the Wigmore test are met in the circumstances.

[28] There is no dispute that the disputed records relate to therapeutic counselling. A relationship between a person and his or her therapist is a very intimate and personal one. Effective therapy requires a discourse between therapist and patient that touches upon the private and core thoughts and feelings of the individual. The records in question did not arise from an assessment or clinical investigation relating to the issues in the litigation. They arose in the context of private therapy.

[29] I reject LH’s submission, which I acknowledge was thoughtful and articulate, that there is a lessened expectation of privacy where counselling takes place in the shadow of a child protection proceeding. The therapy in issue was unconnected to the protection proceedings. A final order had been made in the protection proceeding before Zuker J. A significant and traumatic change had occurred in the lives of the children. They had suffered. They had been put at risk. They were in need of personal therapy and they received it. The children would not reasonably have expected that the thoughts and feelings they shared in private sessions with their therapist would be shared with their mother, or even the Court. In my view, the therapeutic sessions between the children and their counsellors were intended, in the circumstances, to be confidential. Moreover, the confidential nature of the discussions was essential to the relationship between the children and their therapists.

[30] If the therapy, in these circumstances, is not acknowledged as private and confidential, it may very well have a chilling effect on similar therapy in the future. Children may be less likely to speak openly and frankly about their innermost thoughts and feelings if they know or might reasonably expect that those thoughts may be exposed through a disclosure order. Counselling may be rendered largely ineffective.

[31] Child therapy, particular in acutely dysfunctional circumstances such as the ones that are present here, is extremely important and there is a strong public interest in protecting and fostering such therapy. The long term deleterious effects on children who experience high conflict separations are now well documented in the scientific literature. If left untreated, children who experience such high conflict between their separating parents may well suffer lifelong mental health and relationship issues. As Chief Justice McLachlin noted in Ryan, as above, at para. 27, “The mental health of the citizenry, no less than its physical health, is a public good of great importance.”

[32] Being satisfied that the first three elements of the Wigmore test have been met, the analysis turns ultimately to the fourth prong of the test, which involves a balancing of the privacy interests of the affected parties (the children in this case) and the fair trial interests of the party seeking disclosure, in this case LH.

[33] The nature of the balancing exercise was discussed further by Chief Justice McLachlin in Ryan, at para. 37 where she held,

My conclusion is that it is open to a judge to conclude that psychiatrist-patient records are privileged in appropriate circumstances. Once the first three requirements are met and a compelling prima facie case for protection is established, the focus will be on the balancing under the fourth head. A document relevant to a defence or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential. On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged. The result depends on the balance of the competing interests of disclosure and privacy in each case. It must be borne in mind that in most cases, the majority of the communications between a psychiatrist and her patient will have little or no bearing on the case at bar and can safely be excluded from production. Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage. Finally, where justice requires that communications be disclosed, the court should consider qualifying the disclosure by imposing limits aimed at permitting the opponent to have the access justice requires while preserving the confidential nature of the documents to the greatest degree possible.

[34] I have a number of comments to make in terms of the balancing exercise in this instance. First, I consider the privacy interests of the children in the records sought to be significant, for the reasons I have outlined above. Second, as I have noted, the content of the counselling records is entirely speculative at this point. Clearly this is a “fishing expedition” to see what is in the records and what might be helpful. Third, even if the records contain the type of information asserted (or suggested) by LH, the relevance of such information to the central issues in dispute is somewhat dubious.

[35] The real issue in the proceeding, it seems to me, is the nature of the children’s relationship with LH and the problems associated with that relationship.

[36] Justice Brownstone ordered therapeutic access in an effort to re-establish a relationship between mother and children. It failed miserably. Why it failed is a matter of dispute. As a result of the order I make today, LH will have full access to the notes and records of the psychological associate who attempted to facilitate such access. There is also a dispute about the quality of care being provided to the children by MH. LH will have full access to the school records, including attendance records, academic report cards, independent educational plans and discipline records. As the content of paragraphs 15 and 16 of LH’s August 9, 2013 affidavit makes clear, she also has access to records that disclose concerns about corporal punishment being used by MH with the children. In other words, she already has access to information and records that can be used to support her position that the current placement of the children is not in their best interests. All of which is to say that on the record before me I am not persuaded that the fair trial interests of LH – her ability to make full answer and reply to the applicant’s case – is significantly impaired without access to the therapy records she seeks.

[37] LH made it clear to me in argument that Justice Brownstone had made a finding that she had been misdiagnosed in terms of alleged mental illnesses. One of her concerns is that the misdiagnosis of mental illness is being perpetuated with her children and that they are being wrongly led to believe that she suffers from illnesses that she does not suffer from. Indeed Justice Brownstone made a finding that LH “may have been unfairly and inaccurately labelled with several personality disorders and mental health diagnoses.” But he went on to find as well, at para 22 of his decision,

[LH’s] behaviour in the 17 months since the trial has only served to confirm the fundamentally important finding made at trial, that she is a person who focusses only on her onn needs and not those of her children. One does not need the labels and diagnoses wrongly applied to [LH] by Dr. Amin to conclude without any hesitation that [LH] has absolutely no insight into the consequences of her behaviour on the children’s well-being.

[38] My impression, again on the limited record before me, is that LH indeed lacks insight into the contribution that her own conduct is making to the dysfunctional relationship she has with her children. It is really her conduct that is at issue in the current proceeding. The counselling records sought will have little, if any, bearing on an assessment of that conduct and/or its impact on the children.

[39] The speculative nature of the existence and nature of the records sought, the high privacy interest in those records, their dubious relevance, and the need to protect the well-being of the children lead inexorably to the conclusion that production of the disputed records ought not to be ordered at this time, particularly where LH’s ability to make full answer and reply to the applicant’s case will not be significantly impaired without the records.

[40] A suggestion was made in argument that the Court ought to order production of the therapy records to the Court for the purpose of judicial vetting. The idea is that the Court would review the records to determine what, if anything, may be relevant and what, if anything, ought to be produced to LH. There is something to be said, of course, for the Court actually reviewing the records in dispute. It would certainly put the Court in the best position to know exactly what the records contain and whether they are relevant and ought to be produced. But it is important to note that a judicial vetting also involves an intrusion into the private therapeutic records of the children. It ought not to be lightly undertaken.

[41] In R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, the Supreme Court of Canada established a procedure to be utilized by defendants seeking production of the private records of complainants, witnesses, or other third parties. With respect to proceedings in the Family Court, the process has been, to a large extent, superceded by the provisions of Rule 19 of the Family Law Rules. Nevertheless, it is instructive in terms of the approach the Court ought to take in terms of vetting third party records in which a reasonable expectation of privacy exists.

[42] O’Connor establishes a two-step process. At the first step, the Court determines whether the records in issue ought to be delivered to the Court for judicial vetting. Before such vetting is undertaken, the moving party must demonstrate a reasonable possibility that the records contain information that is relevant to the testimonial competence of a witness or the issues in the case. The standard is “likely relevance”, which recognizes that a moving party is at a disadvantage when seeking to establish the relevance of records she has not seen. At the same time, the threshold guards against production requests that are “speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming”. (para. 24).

[43] In the case at bar, I am not satisfied that likely relevance has been made out. It is not sufficient to make a bald allegation that the records will likely contain relevant information. It is necessary to justify that claim by pointing to case specific evidence or information suggesting that the records contain information that is not already available to the moving party. LH has been unable to do so. At this stage she has satisfied me only that counselling has taken place and that she hopes that the counselling records might reveal something of interest. In my view, the production request for therapy records is entirely speculative and does not meet the threshold necessary for me to conduct a judicial vetting of the records.

Conclusion

[44] I make the following orders:

(i) York Catholic District School Board, and more particularly St. Jean Vanier Catholic Secondary School and Our Lady Help of Christians Catholic Elementary School shall forthwith provide LH with copies of the school records of JNH and EMH, including but not limited to report cards, attendance records, discipline records, and any independent education plans, but not including any therapeutic counselling records in their possession;

(ii) Toronto Psychological Services shall forthwith provide LH with copies of the clinical notes and records of Jancy King, relating to any counselling sessions and/or therapeutic access sessions occurring between LH and the children; and,

(iii) In all other respects, the motion is dismissed.

[45] If the parties are unable to agree on the issue of costs, they may make written submissions to me, not to exceed two pages in length. The OCL and the applicant shall each serve and file their cost submissions by September 20, 2013 and LH shall file her submissions by September 27, 2013. Submissions should be delivered by email to my assistant, at Jennifer.Beattie@Ontario.ca.

Boswell J.

Date: September 9, 2013