WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — 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.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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 and Parties

DATE: 2019/03/27

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF A.D. (DOB: […], 2005), and E.D. (DOB: […], 2008)

BETWEEN:

Children’s Aid Society of Ottawa Applicant – and – H.D. (Mother) A.R. (Father) Respondents

Counsel: Marie-Josée Ranger for the Applicant Kristen Robins, for the Respondent (Mother) Respondent (Father), Self-Represented, did not attend Emily Comor, Counsel for the children

HEARD: March 18, 2019

Endorsement

Justice P. MacEachern

[1] This is a motion brought by the Society for production of various records from the mother, H.D. The Children’s Lawyer supports the Society’s request for production, as does the father who has advised of his consent by email. The mother consents to certain productions but objects to others on the basis that the Society has not provided an evidentiary basis to satisfy its onus to establish that the records may be relevant to the proceedings.

[2] The motion has been brought on notice to the respective third party record holders.

Child Protection Proceedings

[3] The Society is seeking an order placing the two children in its extended care. The children are now 10 and 14 years of age. The children have a number of special needs. There is a third child that was placed in the extended care of the society in 2015, but who is now over 18 years of age and is not the subject of these proceedings.

[4] The mother seeks the return of the two children to her care.

[5] A trial is scheduled for June of 2019. The Society has also brought a summary judgment motion, to be heard on April 12, 2019.

Legislation

[6] The Child, Youth and Family Services Act provides, at s.130(3), that the court may order the production of records from third parties where it is satisfied that the record may be relevant to a proceeding.

[7] The test is not an onerous one. But there must still be an evidentiary basis to establish that the records “may be relevant” to the proceedings.

[8] The test is also ultimately a discretionary one, to be exercised in a manner that reflects the paramount purpose of the legislation - which is to promote the best interests, protection and well-being of children.

Records Sought

[9] The Society seeks production from the Carlington Community Health Centre of the health records for the children A.D. and E.D. between 2010 and March 2018. The mother consents to this request. An Order will issue for the production of these records as provided below.

[10] The productions that are in dispute relate to the Society’s request for:

1. Police records from the Ottawa Police Services and Ontario Provincial Police that involve the mother. These records are not limited to any time period. In the alternative, the Society proposes that the time period for these productions go back to 2002, which is when the Society states it first became involved with the mother, who would have then been 18 years of age;
2. Medical and health records from the Carlington Community Health Centre for the mother, relating to her mental health, between 2010 and present;
3. Medical and health records from the Ottawa Hospital for the mother, relating to her mental health, between 2010 and present, including but not limited to records in relation to her hospitalization in the summer of 2018; and
4. Medical and health records from the Royal Ottawa Health Care Group for the mother relating to her mental health, between 2010 and present, including but not limited to records related to a possible court mandated assessment on the mother prior to 2015.

[11] These requests will be address separately below.

[12] The evidence before me on this motion is made up of the affidavits filed by the Society worker. The mother has not filed an affidavit in support of her position. She has not raised any specific privacy interests as reasons for the records not to be produced. The mother acknowledges that there is an evidentiary basis for certain records to be produced, but not for the entire time period and scope sought by the Society.

Child Protection Concerns

[13] The Society’s involvements with the mother surround concerns relating to poor conditions of the home, issues of neglect, the mother’s emotional regulation, inadequate supervision of the children, the mother’s ability to meet the children’s physical, medical and dental needs, and the mother’s drug use.

[14] The Society has been involved with the mother since February of 2002. The events leading up to this proceeding began in 2017.

[15] In determining the issues below, and in particular in taking into account the paramount object of this legislation to promote the best interests, protection and well-being of children, it is relevant to observe that the Society already has extensive records in this matter, upon which it states give rise to detailed concerns with respect to the mother’s ability to care for the children. The existence of police and mental health records are not mentioned in most of this detailed history, particularly for periods of time that took place many years ago. These records are also not being sought as part of the Society’s initial investigation, but rather for preparation for trial.

Police Records

[16] The Society seeks production of all police records from the Ottawa Police and Ontario Provincial Police.

[17] The mother has consented to Ottawa Police records being produced for the period from June 2017 to present. These records have been produced. They report a number of interactions between the mother and the Ottawa Police. Most of these interactions relate to a car accident. There is one incident dated September 5, 2017 regarding a report that the mother left the children alone.

[18] The broad scope of the disclosure sought by the Society is concerning. I do not accept that the sole fact that a parent is involved in child protection proceedings means that any police records relating to that parent, for their entire life, or alternatively, since adulthood, may be relevant to the proceedings. Something more is required.

[19] There are many ways to have interactions with the police that are completely unrelated to parenting concerns. The fact that police records may exist, without more, is not a sufficient basis to require full scale disclosure.

[20] When the Society sent the consent for production (for records to June of 2017) to the Ottawa Police, the police disclosure employee asked the Society to narrow its request, stating (by email) that there were voluminous records since 1993. This employee is only identified by her first name, in an email attached to the affidavit of the Society worker. It is apparent from the email that the police disclosure employee did not carefully review the request, which identified the time period for which records were sought. The information from the police disclosure employee, which is hearsay, is also not reliable. The employee made an error in reviewing the consent form. I am not prepared to accept that the employee did not make a similar error in reviewing the police records. I do not find that the information from the police disclosure employee, put forward in the manner as it was before me, provides an evidentiary basis for ordering production of any of the police records.

[21] The Society’s records include reports of previous police involvement with the mother. Given the reports that date back to 2015 regarding charges of possession and growing illegal substances (marijuana) and complaints to the police regarding allegations of assault by the Society worker, I find that there is an evidentiary basis that the police records from 2015 to present may be relevant to these proceedings, and order their production as set out below.

[22] There are references in the Society records to two police interactions in 2013. The only information, however, that is provided on these reports is that one relates to the mother reporting a burglary and the second is a report that “the mother called the Society regarding the Children’s Aid Society of Ottawa.” This information does not provide an evidentiary basis to require production of police records related to the mother for the period prior to 2015.

Mental Health Records of the Ottawa Hospital and Carlington Community Health Centre

[23] The mother has provided medical records related to her hospitalization in the summer of 2018. The Society seeks production of these records directly from the record holder to ensure that it has a complete copy of the records related to this incident. The mother consents to this. The order below includes the period for those records.

[24] The Society seeks broader disclosure, however, of all records related to the mother’s mental health, dating back to 2010. The mother objects to breadth of this disclosure.

[25] Records related to the mother’s mental health may be relevant to these proceedings. The issue is the time period for which these records should be produced. The Society seeks 2010 as the start date for this disclosure because that is when the mother returned to the Ottawa area. I do not find an evidentiary basis to support ordering disclosure back to 2010. I find that there is an evidentiary basis that medical records related to the mother’s mental health from 2015 to present may be relevant to these proceedings, and order their production as set out below.

Royal Ottawa Health Care Group

[26] The Society seeks production of any records related to the mother’s mental health from the Royal Ottawa Health Care Group. The evidentiary basis for this request is a reference in one of the medical reports already provided by the mother that suggests that a court mandated assessment was completed on the mother several years before 2015. The mother states that such an assessment did not take place, but does not object to production of records to confirm whether or not this is the case. I order that there be production related to any such assessment. I do not find an evidentiary basis to support that any other records related to the mother’s mental health exist at the Royal Ottawa Health Care Group.

Alberta and Area Child and Family Services Authority

[27] The Society sought production of all records in the control of the Alberta Child Protective Services/Community and Social Services regarding the involvement of the parents between 2008 and present. This order was made on March 18, 2019, on consent.

Order Made

[28] Given the above reasons:

1. On consent, an order is granted for the production by the Carlington Community Health Center of all health records in its control for the children A.D. and E.D., for the period between 2010 and March 2018;
2. An order is granted for the Ottawa Police Services and Ontario Provincial Police, in the form approved by the police agencies, to produce copies of its records related to the mother for the period from 2015 to present;
3. An order is granted for the production by the Carlington Community Health Center of all records in its control relating to the mother’s mental health for the period from 2015 to present;
4. An order is granted for the production by the Ottawa Hospital of all records in its control relating to the mother’s mental health for the period from 2015 to present, including treatment and attendance of the mother, all notes, files and documentation for medical doctors, nurse or staff, including but not limited to:
   • medical documentation related to the mother’s hospitalization in the summer of 2018, including emergency room notes of Dr. Lorne Wiesenfeld and social worker Jordan MacLaren; and
   • medical documentation relating to the stay of the mother at the ROH (Crisis bed) from June 14 to July 4, 2018.
5. An order is granted for the Royal Ottawa Healthcare Group to produce all records relating to a possible Royal Ottawa Mental Health Center Court mandated assessment completed on the mother several years prior to 2015.

Justice P. MacEachern

Released: March 27, 2019

COURT FILE NO.: FC-12-1778

DATE: 2019/03/27

ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1 AND IN THE MATTER OF A.D. (DOB: […], 2005), and E.D. (DOB: […], 2008)

BETWEEN: Children’s Aid Society of Ottawa Applicant – and – H.D. (Mother) A.R. (Father) Respondents

Endorsement Justice P. MacEachern

Released: March 27, 2019