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 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 NO.: FC-10-1932-11
DATE: 2019/12/17
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 H.B. born […], 2010
BETWEEN:
M.S. (Mother) Applicant
-and-
The Children’s Aid Society of Ottawa Respondent
-and-
E.B. (Father) Respondent
Counsel: Adam P. Newman, for the Applicant (Responding Party) Lois Boateng-Amirikah, for the Society (Moving Party) Cheryl Hess, for the Child
HEARD: December 16, 2019
Endorsement
C. MacLeod J.:
[1] This is a motion by the Society for production of third party records. Specifically, the Society seeks production of records from the Oasis service of the Sandy Hill Community Health Centre, Cornerstone Women’s Residence, Amethyst Women’s Addiction Centre, from the mother’s bail supervisor, Ottawa Withdrawal Management, Wabano Centre and Minwaashin Lodge. The request is for records relating to mental health and addiction issues faced by the mother, her current status and the extent to which she has successfully completed rehabilitation programs and is compliant with treatment.
[2] The context is a status review initiated by the mother by which she hopes to have the child returned to her notwithstanding that the child was placed in Extended Society Care following a trial in 2018.
[3] The mother contends that she has made considerable strides since the trial towards her addiction and mental health issues. She deposes that she has completed various programs and continues to participate in a recovery program as well as regular drug screening. There had been a proposal for the child to be adopted by kin but apparently the adoption has fallen through. The mother therefore proposes the child be returned to her care.
[4] Despite her assertions that she is doing well, the mother was only prepared to provide limited consents for the release of information sought by the Society and she has now withdrawn those consents. Obviously, none of the service providers will release information in relation to the mother’s treatment and compliance without her consent or a court order.
[5] The mother did not file affidavit evidence in opposition to the motion. She does oppose the relief.
[6] The Society seeks the information in order to verify or challenge the evidence put forward by the mother that the addiction and mental health issues that originally triggered the protection application have now been successfully managed. This is the basis for the mother’s position that it is now in the best interests of the child to set aside the order for Extended Society Care and to return the child to her biological mother. The Society seeks the information in time for a currently scheduled Summary Judgment Motion.
[7] All of the service providers were served with notice of the motion. Only Cornerstone appeared and filed an affidavit in opposition to the motion. That affidavit simply underscored the importance of confidentiality to the counselling relationship and the fact that the agency would not voluntarily breach such confidentiality.
[8] The only argument advanced by counsel for the mother is that s. 130 of the Child, Youth and Family Services Act[^1], appears to contain a precondition to such an order. Section 130 (3) provides that where the court is satisfied that a record or part of a record appears to be relevant and that a person in charge of the record has refused to permit the Society to inspect it, the court may make an order for inspection and copying of the records. Counsel for the mother argues that the motion is premature because there is no evidence before the court that any of the service providers have refused to permit inspection.
[9] I cannot accept this argument for two reasons. Firstly, there is evidence that the Society requested release of information and received no response. The failure to respond may be taken as a refusal. It cannot have been the intention of the legislature to insulate records from production simply by the device of failing to respond. Secondly, each of the agencies have notice of this motion and none of them have voluntarily produced records in the face of the motion or indicated their willingness to do so. Finally, the applicant has revoked all of her consents. The court may take judicial notice that the agencies will not produce records without a consent.
[10] If I accept the approach suggested by counsel for the mother, it would be necessary firstly to either order the applicant to obtain and produce the records herself or to order her to provide consents for release of those records. Then if the agencies refuse to honour the consents or fail to respond to the request, this motion could be brought. While that is the approach under Rule 30.10 and 31.10 of the Rules of Civil Procedure[^2], those rules function under a regime where discovery rights are automatic and each side has the obligation to automatically produce all relevant documents by way of an affidavit of documents. That is not an approach which suits itself to the Family Law Rules[^3] or to child protection matter.
[11] I agree with the observation of Sher J. in paragraph 113 of Jewish Family and Child Services of Greater Toronto v. S. (H.B), 2012 ONCJ 663 to the effect that “the protection and safety of the children trumps any privacy interest asserted” by the parent and “it is not acceptable for [the child] that this court make important decisions about [her] future with these gaps in the evidence and unanswered questions”.
[12] In any event, the mother has not asserted any privacy interest or attempted to invoke privilege in the motion before me. She did not file any affidavit evidence.
[13] In conclusion, there will be an order that the Society may inspect the records listed in the notice of motion and take copies of relevant portions of those records pursuant to s. 130 of the Act and pursuant to Rule 19, the copies may be used in evidence in place of the original records.
[14] I do not consider it appropriate to make an order for costs of this motion.
Mr. Justice Calum MacLeod
Released: December 17, 2019
COURT FILE NO.: FC-10-1932-11
DATE: 2019/12/17
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 H.B. born […], 2010
BETWEEN:
M.S. (Mother) Applicant
–and–
The Children’s Aid Society
- and -
E.B. (Father) Respondents
endorsement
Mr. Justice Calum MacLeod
Released: December 17, 2019
[^1]: Child, Youth and Family Services Act, S.O. 2017, c.14, schedule 1, as am. [^2]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [^3]: Family Law Rules, O. Reg. 114/99 as am