A.H. v. Kawartha Haliburton Children’s Aid Society, 2015 ONSC 3477

COURT FILE NO.: 104/15

DATE: 20150529

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.H., Applicant

AND:

Kawartha Haliburton Children’s Aid Society, Respondent

BEFORE: MacDougall, J.

COUNSEL: Applicant; self-represented

Réjean Parisé, Counsel, for the Respondent

HEARD: May 25, 2015

ENDORSEMENT

[1] The applicant, who is self-represented in this application, is the father of two children; ages approximately seven and 7 ½. After a contested trial, the Applicant and the mother of the children were awarded joint custody and they have a “parallel parenting” arrangement for shared parenting.

[2] The Applicant has been the subject of “anonymous” reports to the Court Kawartha Haliburton Children’s Aid Society (the CAS) which were investigated by the CAS. The children were not placed in care nor did the CAS find that there was any substance to the complaints. The CAS worker was of the view that the reports appeared to have been made maliciously.

[3] The Applicant in this application seeks an order for the disclosure of the name or names of the informant(s) in order to proceed with a contemplated civil lawsuit seeking damages against that informant or informants.

[4] The Applicant frames his application as a “Norwich Application” on the basis that his Application demonstrates that the information is needed for a legitimate objective for, among other things, the identity of a “wrong doer” for the purposes of his pleadings in his contemplated civil action.

[5] The Applicant has received redacted disclosure from the CAS but seeks the names and the telephone numbers of the informants that were redacted.

[6] The Applicant was also the Applicant in a matter against the Society which was considered by the Child and Family Services Review Board (CFSRB). The CFSRB issued a confidentiality order pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure that “the parties must not use, share, discuss or disclose any board documents or decisions or any other documents or information provided or used in this Application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings, except with an order of the Court or the Board is appropriate”.

[7] Further, under the provisions of section 72 1.4 of the Child and Family Services Act (CFSA) (not yet proclaimed in force) provides:

Except as required or permitted in the course of a judicial proceeding, in the context of the provision of child welfare services, or otherwise by law or with the written consent of the an informant, no person shall disclose,

(a) the identity of an informant under subsection (1) or )1.1),

(i) to the family of the child reported to be in need of protection, or

(ii) to the person who is believed to have cause the child to be in need of protection…

[8] Sec. 72(7) of the CFSA provides:

This section applies although the information reported may be confidential or privileged, and no action for making the report shall be instituted against a person who acts in accordance with this section unless a person ask maliciously or without reasonable grounds for suspicion.

[9] I am satisfied, on the material before me, based on the results of the CAS caseworker’s investigations and the affidavit of the Applicant, that the Applicant has demonstrated an arguable case that the informant(s) may have acted maliciously and were without reasonable grounds for suspicion in making their reports that the Applicant’s children may be in need of protection as defined in the CFSA.

[10] With respect to whether the Applicant should be entitled to an order for disclosure of the redacted information being sought under a Norwich Application, I find that although this equitable remedy is generally of limited application (See: GEA Group AG v. Ventra Group Co, 2009 ONCA 619), I am satisfied that the Applicant has demonstrated that the disclosure order is the only practicable source of information necessary for the applicant to continue with the civil lawsuit against the informant(s) and that the interests of justice favours granting the relief sought.

[11] I therefore order the CAS to disclose to the Applicant the information contained in the redacted records of the CAS which will provide the sought after information including the names and the telephone numbers of the informant(s).

[12] This order therefore supersedes the provisions of the Confidentiality Orders of the Child and Family Services Review Board.

[13] As a result of this order, the “Sealing Order” of Bale J. dated May 1, 2015 is no longer required.

[14] If there is an issue of Costs related to this Application. I will receive brief written submissions (no longer than 5 pages) within 15 days of the release of this Endorsement with the reply within 7 days thereafter.

MacDougall, J.

Date: May 29, 2015