This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.-(8) 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.
85.-(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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.
COURT FILE NO.: C 1898-11
DATE: 2016-03-24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Catholic Children’s Aid Society of Hamilton, Applicant
AND:
L.K., M.T. and W.T., Respondents
BEFORE: The Honourable Madam Justice Deborah L. Chappel
COUNSEL: Sarah Edwards, Counsel for the Applicant, CCAS of Hamilton
David Walkling, Counsel for the Respondent L.K.
Susan Sullivan, Counsel for the Respondent W.T.
Virginia Mendes da Costa, Counsel for the children
REASONS FOR JUDGMENT
I. INTRODUCTION
[1] These are partial Reasons for Judgment in relation to a motion which the Catholic Children’s Aid Society of Hamilton (“the Society”) has brought in this Protection Application pursuant to section 74(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (the “CFSA”) for the production of records from a number of non-parties. The proceedings involve two children, namely L.G.K. born […], 2008 (now 8 years old) and C.G.O., born […], 2011 (now 4 years old). L.K. is the biological mother of both children, and the biological father is M.T. The father has not participated in these proceedings and he was noted in default on September 8, 2014. The Respondent W.T. is the children’s maternal grandmother. The Society is pursuing an order for crown wardship without access respecting the children. In this motion, it is seeking an order for production of records relating to L.K. in the possession of the following non-party professionals and entities:
Trillium Hospital;
McMaster University Medical Centre;
St. Joseph’s Hospital;
Joseph Brant Hospital;
Hamilton General Hospital;
Juravinski Hospital;
Dr. Nick Kates;
East Region Mental Health;
Dr. Jane Baillie;
Dr. R. Brunner; and
The Ontario Ministry of Health and Long Term Care
[2] This motion was originally before me on February 26, 2016. It was adjourned at that time because the non-parties had not been served personally with the motion materials. The hearing resumed before me on March 22, 2016, at which time Mr. Walkling, counsel for the Respondent mother, raised a number of evidentiary objections. I made an order on that date dealing with various procedural issues. During the course of argument on that date, it became apparent that the mother was consenting to the release of records in the possession of East Region Mental Health and Dr. Kates to the Society (“the records”). She conceded that these records were likely to be relevant to the issues to be determined in the protection application. However, her position was that the records should be vetted by either the court, or by her counsel and counsel for the Society, before they are disclosed to the maternal grandmother and counsel for the children. Issues also arose respecting the terms, if any, that should be included in any disclosure order respecting these records. I directed that the hearing would proceed in part to address these issues. The balance of the motion was adjourned to April 15, 2016.
[3] For the reasons that follow, I have concluded that once the records of East Region Mental Health and Dr. Kates are produced to the Society pursuant to section 74(3) of the CFSA, the Society should produce copies of all of the records to both W.T. and counsel for the child. I have declined to vet the records pursuant to section 74(4) of the CFSA, and I have decided that it is not appropriate for counsel for the Society and for L.K. to conduct a preliminary vetting of the materials before they are produced to Ms. Sullivan and Ms. Mendes da Costa. However, I have included terms and conditions in the disclosure order that are aimed at protecting L.K.’s privacy interests in relation to the records.
II. POSITIONS OF THE PARTIES
[4] Counsel for the maternal grandmother objected to the suggestion that counsel for the mother and the Society should have an opportunity to vet the records before disclosure is made to the other participants in the proceedings. She argued that if the records may be relevant and are produced to the Society, then W.T. and counsel for the children are entitled to receive all of the records that the Society receives, subject to any valid privilege claims. Her position was that section 74(5) of the CFSA gives the court the authority to order production to the other participants in the case in the context of a production motion under section 74 of the Act, and that such an order should issue in this case.
[5] Ms. Mendes da Costa, counsel for the children, and Ms. Edwards for the Society supported W.T.’s position on the motion. Ms. Edwards added that the court’s power to attach conditions to any non-party disclosure order provides a means for alleviating any privacy concerns that L.K. may have relating to disclosure of the records. In addition, she emphasized that any such privacy interests are also protected by the closed nature of child protection proceedings and the restrictions that section 74(5) places on any disclosure of information received from non-parties pursuant to section 74 of the Act.
[6] As noted above, L.K. consented to an order producing the records to the Society, but opposed an order producing the records outright to her mother W.T. Counsel for L.K. emphasized that the records in issue relate to L.K.’s mental health and as such are highly sensitive and personal in nature. He noted that L.K. and W.T. are presenting competing plans for the care of the children, that there is a great deal of hostility between them, and that L.K. has an understandable reluctance about handing over her private mental health records to W.T. without any fulsome screening regarding the relevance of the records. Counsel argued that the records should be first produced to the Society and L.K., or to the court, to allow for a preliminary screening of the records for relevance. He stated that if there are any objections to disclosing all or some of the records to counsel for the children or W.T. after that initial screening, the matter could be returned to court for further argument and direction.
[7] In support of W.T.’s position, Mr. Walkling argued that section 74 of the CFSA is intended to be an investigative tool to assist child protection agencies to carry out their mandate to investigate protection concerns and formulate a position. He argued that in light of that purpose, section 74 should be interpreted as only allowing the court to order production to a Director, a Society, the court or the person to whom the records relate. His position was that the section does not give the court the discretion to order production of non-party records from the Society to other participants in the case. With respect to case-law that discusses the broad obligation of Societies to disclose all relevant documents in its possession to other parties, including non-party records, he asserted that those cases are distinguishable since they did not involve requests for disclosure of sensitive mental and physical health records.
III. THE LAW
[8] The Society relies on section 74 of the CFSA in support of its motion for production from the non-parties in question. That section governs requests by a Society for production of documents from a non-party. The relevant portions of section 74 for the purposes of this motion are as follows:
Record
- (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”) 1999, c. 2, s. 24 (1); 2004, c. 3, Sched. A, s. 78 (3).
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. 1999, c. 2, s. 24 (1).
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. 1999, c. 2, s. 24 (1).
Court may examine record
(4) In considering whether to make an order under subsection (3) or (3.1), the court may examine the record. R.S.O. 1990, c. C.11, s. 74 (4); 1999, c. 2, s. 24 (2).
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. R.S.O. 1990, c. C.11, s. 74 (5); 1999, c. 2, s. 24 (3).
Conflict
(5.1) Subsection (5) prevails despite anything in the Personal Health Information Protection Act, 2004. 2004, c. 3, Sched. A, s. 78 (4).
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. R.S.O. 1990, c. C.11, s. 74 (6).
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. 1999, c. 2, s. 24 (4); 2004, c. 3, Sched. A, s. 78 (5).
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. 1999, c. 2, s. 24 (4).
[9] The test set out in section 74(3) for production of records to a Society is whether the record “may be relevant” to a proceeding under Part III of the CFSA. This test is not an onerous one, since there is an interest in ensuring that child protection authorities obtain full disclosure to properly meet their mandate to investigate protection concerns (Children’s Aid Society of Algoma v. D.P., 2007 CanLII 39363 (ON SC), [2007] O.J. No. 3601 (S.C.J.); Catholic Children’s Aid Society of Toronto v. S.(J.), 2013 ONCJ 200 (O.C.J.); Children’s Aid Society of the Region of Peel v. A.S., [2015] O.J. No. 1331 (O.C.J.); Jewish Family and Child Service of Greater Toronto v. S. (H.B.), 2012 ONCJ 663 (O.C.J.); Children’s Aid Society of London and Middlesex v. T.R., [2016] O.J. No. 325, 2016 ONSC 430 (S.C.J.)). In exercising its discretion with respect to disclosure to the Society, the court must consider the paramount purpose of the CFSA, which is to promote the best interests, protection and well-being of children (CFSA, section 1). In addition, the court must keep in mind when dealing with motions for production under section 74 that “Children’s Aid Societies are not ordinary private litigants” (Children’s Aid Society of Algoma v. D.P., Supra.) As Pardu, J. stated in Children’s Aid Society of Algoma v. D.P., Ibid., at para 14:
The work of children’s aid societies has additional challenges. Children may be vulnerable and unable to articulate concerns about their own welfare. Abuse and neglect may not occur in public. There is a substantial public interest in supporting the work of children’s aid societies.
[10] While the court has a broad discretion to order production pursuant to section 74(3) of the CFSA, the evidence adduced by the Society must establish a reasonable basis for believing that the information may be pertinent to the issues to be determined in the proceeding. Section 74(3) does not permit the Society to embark upon a “fishing expedition.” (Children’s Aid Society of Algoma v. D.P., Supra.).
[11] In exercising its discretion in the context of a production motion under section 74 of the CFSA, the court must take into consideration any public policy or privacy interests that may militate against ordering production of the documents that the Society is requesting (Children’s Aid Society of Thunder Bay (District) v. D.(S.), 2011 ONCJ 100 (O.C.J.); Catholic Children’s Aid Society of Toronto v. S. (J.), Supra.; Children’s Aid Society of the Region of Peel v. A.S., Supra.). With respect to privacy interests, the courts have reinforced the importance of protecting personal privacy in various legal contexts, and the Supreme Court of Canada has held that the rights to individual liberty and security of the person as enshrined in section 7 of the Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11) encompasses a right to privacy (Children’s Aid Society of Algoma v. D.P., Supra.; M. (A.). v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157 (S.C.C.). In Schreiber v. Canada (Attorney General), 1998 CanLII 828 (SCC), [1998] 1 S.C.R. 841 (S.C.C.), at para. 854, the Supreme Court of Canada emphasized that privacy is “a crucial element of individual freedom which requires the state to respect the dignity, autonomy and integrity of the individual.” It added that the degree of privacy that the law will protect will be closely linked to the effect that a breach of the privacy interest would have on the freedom and dignity of the individual in question. Having regard for the importance which the law places on the protection of personal privacy, a judge deciding a production motion under section 74 of the CFSA must balance the importance of ensuring that Societies receive the information they require to complete their work against the potentially harmful effects on a party or a child of disclosing sensitive personal information. As the court noted in Children’s Aid Society of Algoma v. D.P., Supra., there may be circumstances where the dissemination of personal information is seriously harmful to a party but of little utility to a Children’s Aid Society.
[12] A party who raises concerns about privacy interests in the context of a production motion brought pursuant to section 74(3) of the CFSA cannot simply raise the specter of possible harm in defence of the motion. The court is not expected to carry out the task of balancing the competing interests that may arise in these motions in an evidentiary vacuum. Concerns about the impact of impinging on privacy interests will only form part of the analysis under section 74(3) if there is an evidentiary basis to support those concerns.
[13] Considerations relating to privacy interests come into play under section 74 of the CFSA not only in determining whether disclosure to the Society should be ordered, but also in deciding whether a disclosure order should include terms regarding the use of the information, and if so, in formulating those terms. Section 74(5) of the CFSA stipulates that no person who obtains information by means of a production order made under section 74 shall disclose the information except as specified in the order, and in testimony in a proceeding under Part III of the CFSA. This section gives the court a broad discretion to craft an order that is uniquely tailored to the needs of the particular case before it, so as to achieve an appropriate balance between privacy interests, public policy interests, the importance of Societies obtaining important information to carry out their functions, and the importance of the information to the parties and the children involved in the proceeding (Children’s Aid Society of Algoma v. D.P., Supra.).
[14] As I have already noted, L.K. has acknowledged that the threshold test for ordering production to the Society has been satisfied with respect to the records in question, and has consented to those records being produced to the Society. However, her position is that the documents should be carefully vetted by either the court, or by her counsel and counsel for the Society, to ensure their relevance before they are handed over to Ms. Mendes da Costa and W.T. The suggestion that the records in question be subjected to a preliminary vetting by counsel for the Society and the mother’s counsel before considering disclosing to the other participants is not appropriate for several reasons. First, this approach could give the Society and L.K. an unfair advantage in the litigation, in that it allows for the possibility of them reviewing documents that are not ultimately produced to the other participants. Even if they do not rely on the documents not produced to the other parties, their knowledge of the contents of the materials could affect the strategies that they adopt, assist them in preparing their case and witnesses, and influence their preparation for cross examination. Second, the proposed procedure would raise conflict of interest concerns. The parties in child protection proceedings are typically adversaries, and as such, one party simply cannot be entrusted with the task of making decisions about what documents should be disclosed to other parties. Finally, parties to litigation are usually not aware of the other parties’ theories of the case and litigation strategies. Accordingly, regardless of the conflict of interest concern, they are unable to properly determine the relevance of materials to another party’s case.
[15] On a motion for production pursuant to section 74 of the CFSA, the issues of whether materials may be relevant, whether they should be produced, the proper extent of any production and conditions that should attach to disclosure are matters for the judge to decide. If possible, these issues should be determined on the basis of the motion record and submissions of counsel. Counsel for L.K. urges me to consider vetting the documents in question prior to ordering production of same to W.T. and Ms. Mendes da Costa. Section 74(4) opens the door for the judge to examine the records in question to assist in deciding motions for production. However, that procedure should not be adopted as a matter of course. Child protection cases are extremely time sensitive, and it is important that procedural matters such as disclosure do not take the case off the rails by becoming overly burdensome and time consuming. Typically, requests that the judge examine the documents to assist in the decision-making should be reserved to situations where:
the evidence adduced raises genuine questions as to whether the materials may be relevant;
the evidence raises legitimate concerns about whether disclosure would impinge on privacy interests in a manner that could cause a party harm; or
there are challenging issues relating to privilege that need to be resolved.
[16] I do not consider it necessary or appropriate in this case for me to vet the records in question prior to considering an order for production to W.T. and counsel for the children. The evidence does not raise any concerns in my mind as to whether the documents in question may be relevant or not. The Society’s materials document a long-standing history of concerns respecting the mother’s mental health status. The documents relate to recent monitoring and treatment which L.K. has received in relation to her mental health. This information is clearly relevant to the issues of whether the children are in need of protection, and if so, the disposition that is in their best interests. With respect to L.K.’s privacy interests, there is no evidence before me that raises concerns that disclosure of her private information contained in the records would cause her significant harm. The non-parties did not object to the disclosure of the records in question on the basis of concerns about the potential impact of disclosure on L.K. The Society summonsed St. Joseph’s Health Sciences, which maintains the records of East Region Mental Health and Dr. Kates, to bring the records to court, and I am not aware of any physician’s statement having been prepared in response to the summons pursuant to section 35(6) of the Mental Health Act, R.S.O. 1990, c. M-7. I agree with counsel for W.T., the Society and the children that any concerns regarding L.K.’s privacy interests being undermined can be minimized by means of appropriate terms in the production order. There are no other factors in this case that would prompt me to consider vetting the documents in question pursuant to section 74(4).
[17] With respect generally to the scope of disclosure that should be made to W.T. and Ms. Mendes da Costa, they are entitled to receive all of the records in question. Respondents and counsel for children in child protection cases should receive the same disclosure that Societies receive from non-parties pursuant to orders made under section 74 of the CFSA. This principle applies to all non-party records, and not simply to police records (Children’s Aid Society of the Region of Halton v. T.C.B. and L.T., 2012 ONCJ 69 (O.C.J.)). Having regard for this principle, production orders made under section 74 should ideally address the issue of disclosure to the other participants in the litigation, regardless of whether the participants have specifically requested this relief (see for example Children’s Aid Society of Peel v. A.S., Supra; Children’s Aid Society of London and Middlesex v. T.R., Supra.; Children’s Aid Society of the Region of Halton v. T.C.B. and L.T., Supra.; Children’s Aid Society of Algoma v. Deborah P. and Henry L., 2006 ONCJ 170, 2006 CarswellOnt 2974 (O.C.J.); Children’s Aid Society of Algoma v. Deborah P. and Henry L. (No. 2), 2006 ONCJ 330, 2006 CarswellOnt 5412 (O.C.J.); Children’s Aid Society of Algoma v. Shane B., 2008 ONCJ 358 (O.C.J.)). I do not agree with counsel for L.K. that section 74 of the CFSA only allows the court to order production to a Director or Society. The court has the power to require the Society to produce the records in question to the other participants in the case pursuant to section 74(5)(a). The rationale for dealing with disclosure to the other litigants in motions brought by the Society pursuant to section 74 flows from the general law respecting the disclosure obligations of Societies in child protection litigation. The law is clear that the Society’s obligation to provide disclosure to other parties in child protection proceedings is similar to the disclosure obligation of the Crown in criminal cases, as established in the seminal Supreme Court of Canada case of R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.). In both the criminal law context and the child protection arena, “the disclosure net is cast wide” for the Crown and Societies due to the potentially severe consequences of the proceedings (Children’s Aid Society of Algoma v. Shane B. Supra.; Children’s Aid Society of Sudbury and Manitoulin v. Ginette M., Benoit M. and Ernie S., 1992 CanLII 4765 (ON CJ), [1992] O.J. No. 181 (Ont. Prov. Ct.); Children’s Aid Society Peel Region v. Valerie J., 1993 CanLII 5411 (ON CJ), [1993] O.J. NO. 3245 (Ont. Prov. Ct.). The broad obligation of Societies to provide disclosure to other parties in child protection proceedings extends to all non-party records in their possession, subject to claims of privilege and privacy, and the right to redact third party contact information (Children’s Aid Society of the Region of Halton v. T.C.B. and L.T., Supra.
IV. TERMS OF ORDER TO ISSUE
[18] Based on the foregoing, an order shall issue as follows:
The court shall forthwith release the records of East Region Mental Health and Dr. Nick Kates (“the records”), marked as Exhibit E for Identification Purposes on this motion on March 22, 2016, to the Society.
The Society shall within 5 days from the date of this order provide copies of the records to counsel for the children and counsel for W.T.
Unless otherwise ordered, W.T. may inspect the records but shall not be entitled to have possession of any of the records.
Unless otherwise ordered, only L.K., the court, counsel in these proceedings and their authorized representatives may make copies of the records.
The parties and counsel for the children may use the records and any information contained in the records for any purposes relating to the protection application proceedings herein and any subsequent status review application proceedings.
The Honourable Madam Justice Deborah L. Chappel
Date: March 24, 2016