COURT FILE NO.: FC-19-000366-0000 DATE: July 28, 2020 ONTARIO SUPERIOR COURT OF JUSTICE, FAMILY COURT
BETWEEN: M. M-A., P. A., M. D. and A.D. Ms. Jessica Brant, for the Applicants Applicants – and – E.L., N.N. Respondents -and- Kunuwanimano Child and Family Services Respondent - and- Attawapiskat First Nation Respondent Office of the Children’s Lawyer
Peter Doucet, for the Respondent, Kunuwanimano Child and Family Services Sarah Clarke, for the Respondent Attawapiskat First Nation Caterina Tempesta, Counsel for the Office of the Children’s Lawyer
HEARD: April 27, 2020; further submissions received April 30; deadline for receipt of parents’ submissions May 20, 2020
Ruling on Motion
NICOLE TELLIER, J.
Overview and Parties’ Positions
[1] This is a non-party production motion brought in the context of a multi-party application under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“the CLRA”), which raises constitutional questions. A summary of the action is necessary to understand the determination of the issues before the court on this motion.
The Nature of this Case
[2] This case concerns the future care of three young siblings, now aged 7, 5 and 4. They are of Cree heritage. The eldest of these three children was placed in the care of the applicants M. M-A. and P. A. under a Customary Care Agreement (“CCA”) entered into with the biological parents, E.L. and N.N. (“respondent parents”) and Kunuwanimano Child and Family Services (“Kunuwanimano CFS”) on March 28, 2019. The younger children were placed in the care of the applicants M.D. and A.D under a nearly identical CCA, also entered into on March 28, 2019. These arrangements were made following the children’s removal from their parents’ care, after they had already been in the applicants’ care for almost three years, and as part of their diversion out of the child protection system. The applicant care-givers have different Indigenous roots.
[3] The children have three older siblings. According to the sworn evidence of applicant M. M-A., the older siblings were previously placed in the care of the applicants, until they were put into the care of kin up north. They were subsequently removed from kin care and returned to the applicants’ care, here in Hastings County. There was a second relocation of the older children back to the same kin placement. The applicants believe that placement was terminated by the kin caregiver. The older children currently reside in foster care in Timmins, having had multiple placements.
[4] The CCAs contemplate a maximum longevity coincident with each child achieving the age of majority at 18, which is the named expiry date on each CCA. The CCAs require the parties, among other things, to “collaborate in the development, implementation and ongoing review of the plan of care for the children that preserves the Child(ren) ’s cultural identity, recognizes and reinforces the children’s unique culture, heritage and tradition, and supports the Child(ren)’s right to a safe, secure, nurturing and permanent home.” The CCAs permit any party to cancel the contract on 15 days’ notice. No provisions exist in the CCAs setting out a process for dispute resolution in the event of a unilateral termination prior to expiry.
[5] On August 15, 2019, Kunuwanimano CFS sent both sets of applicants written notice terminating the CCAs. The notice letter thanked them for their services, which they were informed were no longer needed. It stated the children would be repatriated no later than September 16, 2019. The letter did not propose any transfer arrangement or share the children’s relocation destination.
[6] The genesis of the contract termination appears to be an Attawapiskat First Nation Band Council Resolution (‘BCR”) dated April 9, 2019 in which the Chief and Council “declare that the children of E. L. be moved to Timmins immediately for access between her and her children.”
[7] In response to the termination notice, the applicants commenced this proceeding seeking permanent custody of the children in their care pursuant to section 24 of the CLRA. They brought a motion without notice seeking temporary custody orders pending the return of the motion on notice. I granted those orders on September 12, 2019. I also added Kunuwanimano CFS as a party; as a signatory to the CCAs, this agency clearly has an interest in this litigation. I combined the cases of both applicants under Rule 12 of the Family Law Rules, O. Reg. 439/07, s. 1 (the “FLRs”).
[8] At the case conference held on October 17, 2019, it was agreed the temporary without prejudice orders keeping the children in the care and custody of the applicants would stand until trial, unless the matter settled. The file was sealed on the court’s initiative having regard to the prior child protection history. We embarked on the work of getting the matter trial ready.
[9] Three members of the Attawapiskat First Nation (“Attawapiskat FN”) attended and conveyed their intent to seek leave to be added as a party. They were granted party status that day on consent. The Attawapiskat FN has not yet advanced any plan for the children’s care with any particular individual, or kin or community member, as part of their repatriation.
[10] The Attawapiskat FN seeks declaratory relief under section 35 of the Constitution Act, 1867 (UK), 30 & 31 Victoria, c. 3 (“the Constitution”). They assert that section 35 of the Constitution confers upon it an inherent right to care for, protect and make decisions regarding its member children, to the exclusion of any authority conferred on this court under the CLRA. Kunuwanimano CFS’s Notice of Constitutional Question expands the claimed inherent rights holders to include Indigenous family service agencies.
[11] A referral to the Office of the Children’s Lawyer (“OCL”) was agreed to. The OCL queries whether an agency, that is Kunuwanimano CFS, as opposed to an Indigenous person, community or nation, can be granted an inherent right under section 35 of the Constitution. This is a live issue for trial.
[12] The Attorney General of Canada and the Attorney General of Ontario were served with Notices of Constitutional Question from both the Attawapiskat FN and Kunuwanimano CFS. The intervention of the federal and provincial Attorneys General in this matter remains under consideration. The court expressed its hope that they will receive instructions to participate in the constitutional aspect of this case.
This Production Motion
[13] The applicants bring a motion for production of records in the hands of non-parties pursuant to subrule 19(11) of the FLRs. They seek production of any records from Probation and Parole Services (“P&PS”) and the Ontario Provincial Police (“OPP”) of the Ministry of the Solicitor General which may involve the respondent parents. The order sought specifically provides that such production will include personal health records and directs that these be segregated and sealed when provided to the applicant for further review.
[14] The records of the Payukotayno-James and Hudson’s Bay Family Services (“Payukotayno”) being sought contain information about the parents and the older siblings of the children at the heart of this proceeding. Payukotayno did not defend the motion.
[15] The OCL supports and consents to both production orders. The Ministry of the Attorney General has conveyed that it takes no position on the merits of the motion and will abide by any court order. The objections to production in relation to the P&PS and the OPP and from Payukotayno advanced by the Attawapiskat FN and the Kunuwanimano CFS relate to relevance, proportionality and privacy.
[16] The parents have not filed pleadings; they have not been noted in default. They have not engaged in these proceedings, since they commenced 9 months ago. As reflected in the court’s endorsement of April 28, 2020, the parties present agreed to re-serve the parents with the pleadings and the production motion materials and serve the proposed draft order for production on the P&PS and OPP. In sum, on consent, the respondent parents were afforded another opportunity to advance a position on the production motion, hopefully with the benefit of legal advice.
[17] The position of the Attawapiskat FN is tied to that of the parents. By letter dated April 30, 2020 sent to the court, their counsel confirmed that if the parents do not raise any objection to production from P&PS, and the OPP, then the Attawapiskat FN would withdraw its objections. If the respondent parents oppose production, and specifically oppose paragraphs 2(j) and 2(k) of the draft production order, which relate to health records and on-going criminal investigations or charges, then the Attawapiskat FN would pursue its opposition. In that event, the court is to consider their written submissions of April 23, 2020, and their oral submissions made on April 27, 2020.
[18] A deadline of April 30th was set for attempted personal service on the parents by Kunuwanimano CFS, to be followed by substituted service by the applicants, if personal service was unsuccessful. The parents were given 15 days from service to raise any objections to the draft production order, having regard to the fact they had previously been served with the motion and had not replied. This process for canvasing everyone’s position and making submissions was achieved on consent.
[19] The parents were re-served and served all of the required documents on May 5, 2020. By May 20, 2020, the expiry of the 15-day period, the court had not received any indication the parents objected to the production order sought. They still have not filed any pleadings. Accordingly, the Attawapiskat FN’s opposition to the production of the probation and parole or police records as set out in the draft order, is now withdrawn. This leaves only Kunuwanimano now opposing production from the P&PS and the OPP.
[20] For reasons which follow, I find that these records are relevant and shall be produced with terms and conditions.
Analysis
[21] The determination of non-party production requests entails a multi-step analysis. The governing subrule 19(11) reads:
If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,
(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and
(b) order that a copy be prepared and used for all purposes of the case instead of the original. O. Reg. 114/99, r. 19 (11).
Relevance
[22] The preliminary question to be determined when considering a production order is relevance. Rule 19(11) does not specifically refer to relevance; it is necessarily implied. See Catholic Children's Aid Society of Toronto v. K. (T.), [2004] O.J. No 61, 50 R.F.L. (5th) 285 OCJ. If relevance is challenged, then the inquiry begins there. Since the particular contents of the records are not yet known, the assessment of relevance often entails a degree of speculation, but more than mere speculation is required to prevent unwarranted so-called fishing expeditions. The question then becomes what threshold of relevance pertains?
[23] There is no universally applied expression of the relevance threshold for documentary discovery in the family law context. In Children's Aid Society of Brant v. P.(N.M.), 2016 ONCJ 266, 76 R.F.L. (7th) 245, the court canvasses various approaches including the possibly relevant and likely relevant thresholds. In deciding whether to require a child protection agency to produce a kin assessment, Baker J. concluded the higher threshold of likely relevant was appropriate. The court chose this approach having regard to the sensitive and private nature of the information these records contain and the potential chilling effect their production might have on persons who are possibly putting forward a plan for children.
[24] Child protection records include a multitude of documents generated by the agency, including risk assessments and kin assessments, and an array of non-party records obtained by them such as health records and documents relating to criminal conduct. The likely relevant threshold of relevance is appropriate because these records invariably contain highly sensitive, personal, private information. Further, this is the same threshold employed when considering privilege at step two of the inquiry, as set out below. To the extent the records in the hands of the P&PS and the OPP may also contain similar information, the same relevance threshold ought to apply.
[25] The Attawapiskat FN argues that the Payukotayno documents relating to the older children are irrelevant; they are not the subject children of this litigation and therefore the scope of the order sought is overly broad.
[26] Counsel for Kunuwanimano CFS argues the Payukotayno documents as well as the P&PS and OPP records relating to the parents are irrelevant because all other parties concur that neither parent is currently capable of caring for these children and, based on the nature and chronicity of their struggles, are highly unlikely to be able to do so in the foreseeable future. He also submitted that, in keeping with the primary objective as embodied in Rule 2, perhaps the production should be delayed until after the time for service of their Answer has passed. That time has long passed.
[27] Counsel for the OCL submits the P&PS and OPP records sought are relevant to any consideration of their future role and contact in the children’s lives. She notes that while the parents have not yet engaged in this litigation, they may well advance a plan in the future. OCL counsel made submissions regarding the scope and timing of the disclosure in reference to the proposed draft production order from the P&PS and the OPP. She notes that any health records in their hands are typically limited to involuntary admissions under the Mental Health Act, where police assistance is required and would not include the parents’ health records more generally. She notes that the records referenced at paragraph 2(k) of the draft order are circumscribed and include only information setting out charges currently before the criminal court. This means that while there may be a need to bring a Wagg motion to seek full production in the future, obtaining the bulk of the records now would be more efficient, and minimize unnecessary delay, as the volume of records required by way of update would be substantially reduced.
[28] The OCL acknowledges that the privacy interests of all children are important and should be considered in any proceeding where they are implicated but submits those interests will not be unduly infringed by the disclosure of the Payukotayno records. She notes the already disclosed records from Kunuwanimano contain information about the non-subject children. She also notes the privacy of all the children vis-à-vis third parties are protected by the sealing order.
[29] The OCL argues the Payukotayno records are relevant to the full history of caregiving and child protection involvement with family, including service provision by the agency and alternative care arrangements, involving any or all the children. This information is relevant to any proposed plan advanced by family members should the matter proceed to trial. The records are also relevant to offer a more fulsome understanding of the subject children’s developmental history and special needs and how these issues were addressed. To the extent that the records contain sensitive therapeutic or medical information about the older children, the OCL is content to be made aware of their existence but not have them fully disclosed.
[30] Lastly, the OCL notes that Payukotayno is named in the repatriation BCR as well as the pleadings and the Notice of Constitutional Question of the Attawapiskat FN as the child protection agency of choice. Therefore, the full record of their involvement with the family is particularly relevant as ongoing relationships amongst the siblings is contemplated in both the settlement and court process.
[31] The applicants argue the records are important not just to establish the parents’ history of care and pattern of neglect but to establish “the history of unviable or no kin option; establish the time line of the children’s physical locations in Attawapiskat; and establish a pattern of disruption of placements (the number of kin/groups or foster homes within the Society’s control.” The applicants note that the Payukotayno record contains information regarding the failed kin placement with the maternal grandmother. Essentially the applicants wish to reconstruct the family history, including a residential history for each child, and the specific challenges faced by both agencies in addressing their protection concerns for each member of this family, over time.
[32] Initially Kunuwanimano was advancing a plan whereby all six children would be reunited and placed in a home like setting with live-in, paid care givers in Timmins. The April 2019 BCR was aimed at re-establishing parent/child contact in the north. The applicants argue they cannot assess or counter this plan, or any alternative one, without having the complete family history as well as the agency’s efforts in assisting these children. I agree.
[33] The applicants’ have regularly provided the parents with information about their children. They have tried to promote contact between the parents and their children in the south, contact between the siblings in the south and contact between the older and younger siblings. Prior to the coronavirus pandemic, plans for a visit between family members in the north and those who are the subject of these proceedings, were underway, with the OCL involved in co-ordination. So, while the older siblings are not part of this application, their contact with the siblings who are, is a live issue.
[34] The court’s task under the CLRA is to make a determination that is in the best interests of the subject children. An understanding of their past and current ties to all their family members and their past and current ties to their cultural and linguistic heritage is essential to that analysis. And as the court considers whether it should exercise its jurisdiction under the CLRA or whether to decline to do so on constitutional grounds, this family’s full history ought to form part of the contextual narrative of the intergenerational family separation and the cultural and linguistic alienation experienced by members of the Attawapiskat First Nation. I conclude that the court requires the full family history, including documentation from the P&PS, the OPP and both child protection agencies involved. (Kunuwanimano CFS has already consented to the release of their records). Therefore, the disclosure sought is relevant, on any iteration of the threshold test.
Privilege
The Wigmore Framework
[35] Subrule 19(11) directs a consideration of any legal privilege that might operate to exclude the production sought. The Attawapiskat FN raised privacy concerns for all family members and argued the release of the records would cause prejudice to the parents. Yet none of the parties squarely addressed the question of legal privilege or provided the court with the applicable law.
[36] A legal privilege aimed at protecting a privacy interest in a communication, document or record is well established in the common law. Its principles have been considered and elaborated by the Supreme Court of Canada in several contexts. See: Slavutych v. Baker; R. v. Gruenke; A. (L.L.) v. B. (A.); and M. (A.) v. Ryan (“Ryan”).
[37] In Slavutych v. Baker, supra, the Supreme Court adopts the 4-part Wigmore test to articulate the approach for establishing a case-by-case privilege. The SCC’s expression of this test in Ryan, at para. 20 is as follows:
First, the communication must originate in a confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be “sedulously fostered” in the public good. Finally, if all these requirements are met, the court must consider whether the interests served in protecting the communication from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.
[38] The court in Ryan sets out a number of principles including:
(1) The law of privilege must evolve to reflect the social and legal realities of our time. This means the common law of privilege must be developed in accordance with Charter values, such that existing rules are scrutinized to ensure they reflect the values the Charter enshrines. (See paras. 21 - 22)
(2) Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage. (See para. 37)
(3) It is not essential for the court to examine every document to assess the claimed privilege. (See para. 39); and
(4) An all or nothing approach to production should be rejected in favour of partial privilege and companion tailor-made production orders that include provisions for redaction, and limiting reproduction and dissemination. (See para. 33)
Assessment of Privilege in the Payukotayno Records
[36] In G. (L.) v. B. (P.), the court concludes the first branch of the Wigmore test is not satisfied in relation to child protection records, noting the relationship between a parent and the society is not a confidential one. As Brownstone J. puts it at para. 12:
The relationship and dynamic between parents and the society is complex and can oscillate between one of voluntariness, in which guidance, counselling and assistance are sought and provided, to one in which parents co-operate with the society in order to avoid court proceedings, to a highly adversarial one where the society seeks to remove children from their parents. Given this reality, I cannot see how society workers could give a parent any assurance of confidentiality in respect of communications regarding the children, when at any time such information might be relied upon by the society in a protection proceeding. A parent such as the respondent who has been the subject of investigations by the society could not have any reasonable expectation of privacy.
[37] Relying on a decision which co-incidentally involves Payukotayno, the court noted that these records contains statements made by informants, that is professionals or community members who have a statutory duty to report potential concerns to child protections agencies, and who do so in the expectation their names will not be revealed. Brownstone J. ordered that their identity be redacted. See Payukotayno: James and Hudson’s Bay Child and Family Service v. T. (A.). The court will make a similar order here.
[38] The complete Payukotayno file for this family may well contain health records of various family members. Such records, when initially created, attract the privilege protection under the Ryan analysis; in that case the psychiatric records of the plaintiff in a personal injury case were at issue. The focus of the inquiry then shifts to the fourth branch of the Wigmore test, which requires the court to determine if the interests of protecting the communications from disclosure outweigh the interests of pursuing the truth in disposing of the litigation. The court in Ryan describes this exercise as one of common sense and good judgment. (See para.32)
[39] The case law involving so called custody and access disputes is replete with references to the court’s need to ensure all relevant evidence is considered. Relevant excerpts from health records are commonly admitted in parenting cases, where the health of a parent or child is part of the factual matrix which informs the determination of the issues, including matters of credibility. See for example: Catholic Children's Aid Society of Toronto v. W.D., [2003] O.J. No 626, 48 R.F.L. 488 (6th) (Ont. C.J); Goodwin v. Bryceland, 2008 ONCJ 495, [2008] O.C.J. No. 4039, 60 R.F.L. (6th) 233 (Ont.C.J); Hughson v. Macdonald, 2009 CarswellOnt 7491; and Porter v. Porter, [2009] O.J. No 1638 (Ont. S.C.J.). Here the respondent parents have a history of substance use disorder. Some of the children have special medical needs. Many, if not all, of these health issues are on-going. The privacy interests of the family members in these records must yield to the court’s need to make a fair and just determination on all of the relevant facts.
[40] The parties may take some comfort from the fact that this court file is sealed and the parties and children’s names are initialized. So while there will be disclosure to the parties and to the court, the information contained in the Payukotayno record will not identify family members in the public domain. Other protections will be afforded by imposing terms and conditions for reproduction and dissemination set out below.
Waiver of Privilege
[41] Child protection agencies routinely obtain a broad range of records. In this context, parents are asked to provide written consents and releases enabling the agency to obtain non-party disclosure. The court has no evidence before it about whether the respondent parents signed such consents when they were being serviced by Payukotayno. Nor does the court know whether, if they did, such consents were fully informed, that is to say, that they were procured on their clear understanding that in signing such releases, any privilege they may have in the production is waived. To prevent such mischief in the future, the production orders here shall limit the use of the disclosure to this case.
The Timing of Production
[42] As a final step, subrule 19(11) requires the court to conclude that it would be unfair to a party to go on with the case without the document, before ordering production. This part of the inquiry is informed by the factors set out in Ontario (Attorney General) v. Stavro. The application of these factors to the family law context is discussed in: Catholic Children's Aid Society of Toronto v. W.(D.); Goodwin v. Bryceland, 2008 ONCJ 495; Children's Aid Society of the Region of Halton v. B. (T. C.) and L. T., 2012 CarswellOnt 1477; and Catholic Children's Aid Society of Toronto v. C.D., 2020 CarswellOnt 4394.
[43] The Stavro factors are:
a. the importance of the documents in the litigation; b. whether production at the discovery stage as opposed to trial is necessary to avoid unfairness; c. the position of the non-parties with respect to production; d. the availability of the documents or their informational equivalent from some other sources; and e. the relationship of the non-parties from whom production is sought to the litigation and the parties to the litigation.
[44] This family’s involvement with Payukotayno is an important piece of the familial and cultural history necessary for any determination of the issues in the action. This is discussed in the section on relevance above. They may also play a role in the future.
[45] The Attawapiskat FN requested that the production motion be delayed until after the parties’ settlement discussions, as the need for the documents might well become moot. I rejected this argument during submissions. Production is premised on the notion that each party must know the case they must advance or meet. It serves to contract or expand the contested terrain, preferably the former. Based on what the court knows about this matter, the records sought likely contain information that is relevant to and may assist in those discussions. Early, full and frank disclosure is foundational to the family justice system, precisely to promote settlement.
[46] Production from non-parties, especially of this ilk, takes time to receive. If settlement eludes the parties, then their preparation for the questioning will also be delayed. I directed the parties to collaborate in drafting a Statement of Agreed Facts. The applicants, who brought this motion, have been tasked with preparing the first draft. This too will take time and the production will likely reveal facts that will form part of that agreed factual summary. Delay invariably runs counter to the best interests of children who deserve a timely resolution of their future care. I conclude it would be unfair to the parties and, importantly, detrimental to the children, to delay production until trial.
[47] The applicant’s production motion is supported by the OCL and unopposed by both non-party record holders. This weighs in favour of production. The documents and the information they contain are not accessible by other means. Lastly, Payukotayno, one of the non-party record holders, is not currently in any relationship to the applicants or the subject children. It is a sister agency to Kunuwanimano CFS, in so far as they both service Indigenous families in northern Ontario, including members of the Attawapiskat FN. These relations raise no reasons to delay production until trial.
Terms and Conditions
[48] Ryan confirms that the court has great flexibility when crafting production orders that safeguard privacy concerns while ensuring relevant disclosure is available to the parties. The aim is to fashion a production process that is proportionate and efficient, without sacrificing fairness. This may include provision for redactions, limited reproduction and dissemination and judicial vetting.
[49] I decline to engage in judicial vetting, at this stage. I was not invited to do so. As noted by the Supreme Court, judicial vetting is an extremely time-consuming endeavor, one that is not always the best use of the court’s resources. That said, once the documents are produced there may be a specific privilege concern which warrants further review. The court remains hopeful that once the disclosure process is complete the parties will achieve agreement on the facts the records reveal and also agree on what portions of these records should be submitted into evidence at trial, in a joint documentary brief. If the production gives rise to a specific privilege concern for any party, a request for pre-trial judicial vetting may be brought. Likewise, if the redactions in these or the records already produced by Kunuwanimano CFS give rise to objection, these too can be resolved by judicial vetting, if necessary.
Conclusion
[50] Based on the foregoing I make the following order:
- The records held by the P&PS and the OPP shall be produced in accordance with the circulated draft order.
- Payukotayno shall forthwith produce its entire record in relation to this family, including the respondent parents and any of their six children.
- Payukotayno shall redact the record to remove the identity of any informants.
- If the agency is able to scan the redacted record and provide it electronically to all counsel, without delay, this would be preferable. If the agency is unable to do so then, it shall provide one hard copy, to be delivered by courier to counsel for the applicants. Counsel for the applicants shall immediately either reproduce it in hard copy and courier it to all parties and the OCL or scan and share it electronically with all parties and the OCL.
- If the agency demands a reasonable fee for the service of vetting and copying this redacted production, that cost shall be shared equally by all parties.
- The records shall remain in the possession of counsel only. The applicants and the instructing clients of the other parties shall only examine the records at their counsel’s premises and shall be prohibited from copying or possessing any portion of these records. Given the contact limitations imposed by the pandemic as well as the geographical distances between some parties and their clients, if this stipulation creates an insurmountable obstacle, the court will address it.
- These records shall only be used for the purposes of this case.
- At the final conclusion of the case, and after any appeal period has expired, submissions regarding the possible destruction of this evidence may be made.
Costs
[51] I urge the parties to attempt to settle the issue of costs of this motion promptly on the basis of the applicants’ complete success. If no agreement is reached, then a schedule for submissions shall be made during the tele-conference currently scheduled for September 14, 2020 at 9:30. I appreciate Rule 24 requires a timely disposition on costs at each step and that the applicants have incurred costs to resolve this important issue. But in the circumstances, I decline to impose a schedule for submissions with so many parties, many of whom may be taking time off during the remaining summer weeks, without input from counsel.
