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.
FILE NO.: FC-19-CP-08
DATE: 2019/12/27
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
Status Review Application of the Order of Justice MacLeod dated April 8, 2019, with respect to the children, S.K. born […], 2006, and C.K. born […], 2007
BETWEEN:
Children’s Aid Society of Ottawa
Applicant
– and –
D.M. (Mother)
– and –
J.K. (Father)
Respondents
Tara MacDougall, for the Applicant
Gonen Snir, for the Respondent (Mother)
Wade Smith, for the Respondent (Father)
Debora Scholey, Counsel for the Children
HEARD: December 19, 2019
endorsement
Justice P. MacEachern
[1] The Society seeks production of various records relating to the mother’s mental health including records from the Ottawa Hospital, the Queensway Carleton Hospital, the Royal Ottawa Mental Health Centre (ROH), the Montfort Hospital, unredacted records from the Consent and Capacity Board, Dr. Katelyn Perkins and/or Dr. Judy Chow of the Riverside Family Health Team, the Hôpital du Surôit, la Sûreté du Québec, and the Ottawa Police Services. In submissions, the Society agreed that the medical records be limited to those that relate to the mother’s mental health and that the records be limited to a relevant period.
[2] The Children’s Lawyer and the Respondent father support the Society’s request for production. The Respondent mother, D.M., opposes the motion. The Society provided notice of this motion to the respective third-party record-holders, none of whom have filed any material or appeared to contest production.
[3] D.M. brought a motion seeking that the Society refer her to a Parental Capacity Assessment. D.M. adjourned this motion until after her Not Criminally Responsible (NCR) assessment, undertaken as part of the criminal proceedings against her, is complete. If the Court does find that the records should be produced, D.M. seeks production of the records to the Court for examination before their production, that any records be produced only to the Society, and that production be limited to information about her mental health as it affects her ability to parent.
Child Protection Proceedings
[4] This proceeding is a Status Review Application of the Order of Justice MacLeod dated April 8, 2019. Justice MacLeod found the children in need of protection and placed the children in the care of the father under a four-month supervision order. Justice MacLeod also made an order restraining D.M. under s.137 of the Child, Youth and Family Services Act[^1]. D.M. was in default at the time of Justice MacLeod’s Order. The children have been in the father’s care since February of 2019 due to concerns regarding D.M.’s mental health.
[5] In this Status Review proceeding, the Society seeks to place the children in the custody of their father, with their mother, D.M., having access at the father’s discretion.
[6] D.M. filed her Answer and Plan of Care in court on December 19, 2019. She opposes the Society’s Application and seeks to have the children returned to her sole care.
Legislation
[7] The CYFSA 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.
[8] The test is not an onerous one. 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[^2].
Analysis
[9] There is extensive evidence filed in support of this motion that satisfies the Court that the records sought may be relevant to this proceeding. D.M.’s affidavit itself contains a copy of the OCL report, completed in July of 2018, which provides evidence, much of which is based on D.M.’s statements, that she had a psychotic episode in 2013, has had several mental health hospital admissions since 2013, has had several psychiatric diagnosis, has been before the Consent and Capacity Board on two occasions, and been subject to a Treatment Order. D.M.’s affidavit also contains a letter from Dr. Iris Jackson, dated March 27, 2017, that states that D.M. has a mental illness that first appeared in 2013, and has had several related hospital admissions. This evidence is supplemented by the affidavits from the protection worker that relate the Society’s concerns, as well as the affidavit of the father. The affidavits before me include several references to police interventions with D.M. These interventions relate to child protection concerns. There is extensive evidence before the Court that D.M.’s mental illness has impacted the children’s best interests, as well as given rise to the finding that the children are in need of protection.
[10] I do not find that the Society’s request for these records has no merit or constitutes a fishing expedition, as argued by D.M. I find that the records sought, particularly when limited to records relating to D.M.’s mental health and limiting the period from 2013 to present (the time-period supported by the evidence before the Court), may be relevant to this proceeding. D.M.’s position is that the children should be placed in her care. Her mental health, including how her mental illness has impacted her ability to parent and how she has managed her mental health challenges, is very relevant to the assessment of the Society’s plan of care for the children, and her own plan of care for the children.
[11] D.M. argues that the Society’s request is an invasion of her privacy, which must be balanced equally with the need to protect the children. D.M. relies on s.35(6) and (7) of the Mental Health Act[^3] and s.130(9) of the CYFSA. However, D.M. has not provided a physician’s statement that that disclosure of the records sought may result in harm to her treatment or recovery or is likely to result in injury to the mental condition of a third person or bodily harm to a third person. No physician’s statement as contemplated by s.35(6) of the Mental Health Act, or s.294(2) of the CYFSA, has been filed. I do not find D.M.’s privacy interests are a basis to refrain from ordering the disclosure of the records sought, particularly in the absence of a physician’s statement that the disclosure of such records would likely result in harm.
[12] I do not accept D.M.’s arguments that she was not admitted at the Civic Hospital (the request is for records from the Ottawa Hospital, of which the Civic Hospital is one campus) or that she was never seen at the ROH, as a basis to refrain from ordering the disclosure requested. I find that there is an evidentiary basis that these hospitals have records that may be relevant to this proceeding. This evidence includes D.M.’s affidavit, which attaches the OCL report, and references to various hospital admissions, as well as the father’s affidavit. I do not find that this evidentiary basis is displaced by the letter from the ROH that was produced by D.M. That letter states that the ROH does not have any records for D.M.’s name and the birthdate provided, but does not state what birthdate D.M. provided for their search.
[13] D.M. submits that before making an order for production, the records should first be submitted to the Court under s.130(5). I decline to make such an order because D.M. has not provided evidence, or a specific reason, to justify why the Court should first examine the records for redaction. The records being produced are related to D.M.’s mental health. D.M. has not provided a basis for why there is a risk that such records would contain information that falls below the test of “may be relevant” to the issues in these proceedings.
[14] D.M. submits that if the Court orders production of these records, the records should only be produced to the Society, and not to the OCL and the father. I do not agree. For the Status Review Application to be fair and just, the Society is permitted to provide copies of the productions to the father and OCL, and to serve and file such documentation as is necessary and essential in the interests of justice.
[15] Given the reasons above, I make the following orders:
The Ottawa Hospital (all campuses) shall produce to the Children’s Aid Society of Ottawa, at the expense of the Children’s Aid Society of Ottawa, within 30 days pursuant s.130 of the CYFSA, a copy of their records related to the mental health of D.M., born […], 1965, for the period from 2013 to present;
The Queensway Carleton Hospital shall produce to the Children’s Aid Society of Ottawa, at the expense of the Children’s Aid Society of Ottawa, within 30 days pursuant to s.130 of the CYFSA, a copy of their records related to the mental health of D.M., born […], 1965, for the period from 2013 to present;
The Royal Ottawa Mental Health Centre shall produce to the Children’s Aid Society of Ottawa, at the expense of the Children’s Aid Society of Ottawa, within 30 days pursuant to s.130 of the CYFSA, a copy of their records related to the mental health of D.M., born […], 1965, for the period from 2013 to present;
The Montfort Hospital shall produce to the Children’s Aid Society of Ottawa, at the expense of the Children’s Aid Society of Ottawa, within 30 days pursuant to s.130 of the CYFSA, a copy of their records related to the mental health of D.M., born […], 1965, for the period from 2013 to present;
The Consent and Capacity Board shall produce to the Children’s Aid Society of Ottawa, at the expense of the Children’s Aid Society of Ottawa, within 30 days pursuant to s.130 of the CYFSA, a copy of their unredacted records related to D.M., born […], 1965, for the period from 2013 to present;
Dr. Katelyn Perkins and/or Dr. Judy Chow at the Riverside Family Health Team shall produce to the Children’s Aid Society of Ottawa, at the expense of the Children’s Aid Society of Ottawa, within 30 days pursuant to s.130 of the CYFSA, a copy of their records related to the mental health of D.M., born […], 1965, for the period from 2013 to present;
Hôpital du Surôit shall produce to the Children’s Aid Society of Ottawa, at the expense of the Children’s Aid Society of Ottawa, within 30 days pursuant to s.130 of the CYFSA, a copy of their records related to the mental health of D.M., born […], 1965, for the period from 2013 to present;
La Sûreté du Québec shall produce to the Children’s Aid Society of Ottawa, at the expense of the Children’s Aid Society of Ottawa, within 30 days pursuant to s.130 of the CYFSA, a copy of their records related to D.M., born […], 1965, for the period from 2013 to present;
The Ottawa Police Services shall produce to the Children’s Aid Society of Ottawa, at the expense of the Children’s Aid Society of Ottawa, within 30 days pursuant to s.130 of the CYFSA, a copy of their records related to D.M., born […], 1965, for the period from 2013 to present;
The Children’s Aid Society of Ottawa shall be permitted to provide copies of the productions to the Respondent father and OCL, and to serve and file such documentation as is necessary and essential in the interests of justice; and
No person shall disclose such information received to any person or in any manner except in testimony in a proceeding under the CYFSA or as otherwise required for these or other child protection proceedings.
Justice P. MacEachern
Released: December 27, 2019
FILE NO.: FC-19-CP-08
DATE: 2019/12/27
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
Status Review Application of the Order of Justice MacLeod dated April 8, 2019, with respect to the children, S.K. born […], 2006, and C.K. born […], 2007
BETWEEN:
Children’s Aid Society of Ottawa
Applicant
– and –
D.M. (Mother)
– and –
J.K. (Father)
Respondents
Endorsement
Justice P. MacEachern
Released: December 27, 2019
[^1]: Child, Youth and Family Services Act, S.O. 2017, c.14, schedule 1, as am. [^2]: Child, Youth and Family Services Act, S.O. 2017, c.14, schedule 1, as am., s.1 [^3]: Mental Health Act, R.S.O. 1990, c. M.7