SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: C338/13-01

DATE: July 4, 2014

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

RE: Children’s Aid Society of London and Middlesex, applicant

AND:

J.R., S.C. and T.C., respondents

BEFORE: MITROW J.

COUNSEL:
Ben Leschied for the Society
Edward J. Mann for J.R.
William J. Doran for S.C. and T.C.
Kim Doucett for the Children’s Lawyer

HEARD: June 11, 2014 – Further written material received June 25, 2014

ENDORSEMENT

introduction

1The Society seeks an order pursuant to s. 74(3) of the Child and Family Services Act, R.S.O. 1990, c.C.11 [as amended] (“the Act”), compelling Dr. Sas to produce to the Society “any and all mental health assessments” she has conducted and reports she has prepared regarding the respondent mother, J.R.

RELEVANT FACTS

2The respondent, S.C., and J.R. are the father and mother of the child, W., age 8, who is the subject of this protection proceeding. The respondent, T.C., is S.C.’s partner.

3The child is presently in S.C.’s care and custody pursuant to an interim without prejudice supervision order dated May 9, 2013, and subject to terms and conditions.

4Pursuant to this order, J.R. has reasonable access, supervised by the Society at its discretion.

5Although the Society has discretion as to whether or not the access is to be supervised, the access has in fact been supervised.

6J.R. has a pending motion for interim access set for July 11, 2014. On May 16, 2014, I ordered that, pending the adjournment, J.R. shall continue to have supervised access for 7.5 hours per week, subject to the discretion of the Society to increase the supervised access to 10 hours per week (with no overnights). The supervision is to be by Society staff and/or other persons approved by the Society.

7The uncontradicted Society evidence is that around mid-March 2014 J.R. participated in a psychological assessment conducted by Dr. Louise Sas. The Society had agreed to pay for the assessment with the objective of being better able to understand J.R.’s behaviours and mental health and their impact on J.R.’s parenting. The Society was of the view such a report would assist the Society in supporting J.R. by addressing any mental health issues that, in the Society’s view, appear to be impacting J.R..

8However, in mid-April 2014, J.R. withdrew her consent for the Society to obtain this report.

9The report has been forwarded to Mr. Mann. A copy of the report is in the court file but I had ordered it sealed, pending a ruling on this motion. Mr. Mann urged that I read the report first in case it was appropriate that any portion of the report should be redacted; the report was marked as Ex. #2. It is dated May 4, 2014 and it is signed by Dr. Sas. I did unseal the exhibit, but solely for the purpose of verifying the date of the report and that it was signed. As explained below, I did not read the report.

DISCUSSION

10Section 74 of the Act is relevant and is reproduced in its entirety:

74(1) In this section and sections 74.1 and 74.2,

“record” means recorded information, regardless of physical form or characteristics; (“dossier”)

“record of personal health information” has the same meaning as in the Mental Health Act. (“dossier de renseignements personnels sur la santé”)

Motion or application, 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 (3.1) for the production of a record or part of a record.

Order

(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.

Same

(3.1) 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 51 (2) (b) or (c) that is subject to supervision.

2. An order under clause 51 (2) (c) or (d) with respect to access.

3. A supervision order under section 57.

4. An access order under section 58.

5. An order with respect to access or supervision on an application under section 64 or 65.1.

5.1 A custody order under section 65.2.

6. A restraining order under section 80.

Court may examine record

(4) In considering whether to make an order under subsection (3) or (3.1), the court may examine the record.

Information confidential

(5) No person who obtains information by means of an order made under subsection (3) or (3.1) shall disclose the information except,

(a) as specified in the order; and

(b) in testimony in a proceeding under this Part.

Conflict

(5.1) Subsection (5) prevails despite anything in the Personal Health Information Protection Act, 2004.

Application: solicitor client privilege excepted

(6) Subject to subsection (7), this section applies despite any other Act, but nothing in this section abrogates any privilege that may exist between a solicitor and his or her client.

Matters to be considered by court

(7) 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.

Same

(8) 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 183, that section applies and the court shall give equal consideration to,

(a) the matters to be considered under subsection 183 (6); and

(b) the need to protect the child.

11J.R. filed no material on the motion, despite the fact that the motion was adjourned to give J.R. an opportunity to do so.

12The test for production of records pursuant to s. 74(3) is that the records “may be relevant to a proceeding under this part.”

13In an appeal from the Ontario Court of Justice in Children’s Aid Society of Algoma v. D.P., 2007 39363 (ON SC), [2007] O.J. No. 3601 (S.C.J.), Pardu J. (as she then was) concurred that the test defined in s. 74(3) is “not onerous” (para. 31); Pardu J. also held that the court below erred in concluding that privacy issues were irrelevant in relation to production under s 74, and that there may be circumstances where “dissemination of personal information is seriously harmful to a third party but of little utility to a children’s aid society” (para. 20).

14It was not alleged that the report of Dr. Sas fell within s. 74(7) or (8). Also, Dr. Sas was not conducting a s. 54 assessment.

15Mr. Mann relied on some Supreme Court of Canada jurisprudence, including R. v. O’Connor, [1995] S.C.J. N. 98 (S.C.C.), in urging that I should first examine the report. Also s. 74(4) provides that a court may examine the record.

16In the case at bar, Dr. Sas’ report is relevant to the protection proceeding. Much of jurisprudence relating to s. 74 relates to motions by a society for access to third-party records created for another purpose – for example, police records – that are relevant to a society in its investigation of protection issues.

17In the case at bar, Dr. Sas’ report was prepared expressly for the purposes of assessing J.R.’s mental health in the context of this protection proceeding and its impact if any of her parenting capabilities.

18J.R. has the report. Despite being given an opportunity to do so, J.R. failed to adduce any evidence as to why the report should not be produced to the Society, or the other parties, nor did she adduce any evidence, why, for privacy reasons or otherwise, portions of the report should be redacted. If J.R., for example, felt that certain portions of the report were not relevant for privacy or other reasons, she should have provided some evidence supporting her position. Accordingly I find it is not necessary for the court to examine the report.

19In the circumstances, the report is a relevant and important document that should be produced, as asked.

20It is noted that Dr. Sas was served with the motion but did not file any evidence in response to the motion.

ORDER

21For reasons set out above, I make the following order:

(1) Dr. Sas shall produce to the Society any and all mental health assessments conducted by Dr. Sas, all reports prepared by Dr. Sas, (including all recommendations made by Dr. Sas regarding any further mental health assessment or treatment), in relation to the mother J.R.;

(2) The Society may disclose to counsel for all parties, and counsel for the child, all information, including copies of all documents received from Dr. Sas pursuant to paragraph one of this order.

(3) In addition to the confidentiality provisions of s. 74(5) of the Child and Family Services Act governing all the parties, the respondents T.C. and S.C. (but not their lawyer) are prohibited from copying any of the written information disclosed to them; and

(4) In addition to s. 74(5)(b), the information obtained pursuant to this order may be disclosed to this court in any document filed with this court, in this protection application or any subsequent status review application, including conference briefs and any motion material including affidavits.