G.L.K. v. C.L.K., 2021 ONSC 5843

COURT FILE NO.: FS-18-110-00

DATE: 2021 08 31

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: G.L.K., Applicant

AND

C.L.K., Respondent

BEFORE: Doi J.

COUNSEL: Jennifer Kirshen, for the Respondent

Shannon L. More, for the Applicant

Geoffrey J. Carpenter, for the Office of the Children’s Lawyer

Roopa Mann, for the Attorney General of Ontario

Jenna Bontorin, for Family Transition Place

Kathleen O’Grady, for Dufferin Child and Family Services

Ian McLeod, for Dr. Brindusa Popa

HEARD: May 31, 2021

SUBJECT TO A PUBLICATION BAN

PURSUANT TO s. 486.4 OF THE CRIMINAL CODE[^1]

ENDORSEMENT

Overview

[1] On this motion, the Respondent father seeks non-party disclosure under Rule 19(11) of the Family Law Rules for various records pertaining to the Applicant mother and the parties’ children that are held by: a) Dufferin Child and Family Services; b) the Suspected Child Abuse and Neglect (“SCAN”) program at the Hospital for Sick Children; c) Dr. Brindusa Popa; d) Dr. Leisha Ostrowski; e) Lindsay Shapiro; f) Family Transition Place; g) Edify Centre; h) The Great-West Life Assurance Company; and i) police and the Crown Attorney. The Respondent claims that the records sought are relevant to the parenting and spousal support issues that will be addressed on an upcoming motion in this family proceeding.

[2] Regrettably, this is a high-conflict case. The Applicant has raised serious allegations of abuse and domestic violence against the Respondent. She claims that the Respondent sexually assaulted their oldest child, B.K., assaulted their youngest child, E.K., and directed extreme abuse including conduct of a sexual nature against her and all three of their children during the marriage. The Respondent flatly denies the abuse and violence allegations, which led him to be criminally charged, and claims that he is entirely innocent of the allegations. He asserts that the Applicant falsely accused him as part of her strategy to alienate him from the children and gain a litigation advantage with respect to the parenting issues in this family proceeding. On this motion, he is seeking the disclosure of various non-party records to rebut the Applicant’s abuse allegations against him and to challenge her ability to parent the children and earn income.

[3] The Applicant consented to have some non-party records produced, but opposed the release of any counselling, family protection or litigation-privileged records for the children or herself.

[4] The Office of the Children’s Lawyer (“OCL”), which represents all three children in this proceeding, opposes the disclosure of any non-party records for the children. The OCL asserts the children’s privacy interests to oppose the release of any child protection, counselling or medical records for the children. The OCL supports the position of the Attorney General of Ontario to resist the disclosure of records from the Crown brief at this time, apart from a limited subset of records that the Crown is prepared to release on consent. According to the OCL, the Respondent has adequate information to address the anticipated parenting and spousal support issues without requiring further disclosure at this time.

[5] Dufferin Child and Family Services (“DCAFS”) opposes the Respondent’s motion for the disclosure of its child protection and therapy records. Noting that it previously provided the Respondent with some disclosure of its child protection records, DCAFS submits that any further disclosure is unnecessary at this time as the Respondent has sufficient information to reasonably argue the parenting and support issues in dispute. Similarly, Family Transition Place (“FTP”), an agency for women and children who have experienced abuse and unhealthy family relationships, opposes the disclosure of its counselling and case records for the Applicant and B.K. by arguing that the release of these records is unreasonable and inappropriate given the privacy interests over this information.

[6] The Attorney General is prepared to release a limited subset of Crown brief records for use in this family proceeding. However, the Attorney General opposes the release of other records from the Crown brief on public interest grounds over concerns with the need to preserve evidence and protect the integrity of the criminal prosecution and the administration of criminal justice.

[7] For the reasons that follow, I have determined that the Respondent’s motion for non-party disclosure should be granted in part.

Background

[8] The parties married on November 1, 1998 and separated on March 5, 2018. There are three children of the marriage: B.K. is 16 years old, S.K. is 14 years old, and E.K. is 6 years old.

[9] On August 22, 2018, the Applicant brought this proceeding. The parties then pursued a med-arb process until their mediator/arbitrator resigned on February 9, 2021. They now agree that this court proceeding is the proper forum for adjudicating their remaining family issues in dispute, namely, decision making, parenting time, child support, s.7 expenses and spousal support.

[10] Following their separation on March 5, 2018, the Applicant reported allegations of abusive conduct by the Respondent against herself and the children to DCAFS and police. Notably, the children initially seem to have refuted these allegations. After conducting an investigation, child protection workers and police did not verify the allegations.

[11] On October 7, 2020, the parties’ eldest child, B.K., disclosed allegations of past abuse by the Respondent that purportedly occurred from 2009 to 2014 (i.e., when B.K. was between 5 and 10 years of age). Following B.K.’s disclosure of abuse, the Respondent was charged with sexual interference contrary to s. 151 of the Criminal Code, sexual assault contrary to s. 271 of the Criminal Code, and assault contrary to s. 266 of the Criminal Code. The Respondent flatly denies the allegations and claims to be innocent of the charges.

[12] Around the time of B.K.’s disclosure, the Respondent was about to share 16 consecutive days of parenting time with the children pursuant to an arbitral award to remedy the Applicant’s earlier non-compliance with a parenting time agreement. The Respondent also claims that B.K.’s disclosure came shortly after a parenting disagreement arose between them over the amount of time B.K. was spending with her boyfriend. According to the Respondent, his parenting disagreement with B.K and his adult conflict with the Applicant were particularly difficult.

[13] As a result of his criminal charges, the Respondent is subject to bail conditions that prevent him from communicating with any of the children except in accordance with a family court order. To date, the Applicant has refused to consent to a parenting order that would allow the children any parenting time with the Respondent. As a result, none of the children have spent any parenting time whatsoever with the Respondent since October 2020.

[14] DCAFS has been working with the family since 2018. As explained earlier, DCAFS did not verify the Applicant’s past abuse allegations against the Respondent. But after investigating the abuse allegations that B.K. raised in October 2020, DCAFS advised the parties by letter dated November 5, 2020 that it had verified that B.K., S.K. and E.K. had suffered abusive sexual activity at the hands of the Respondent. DCAFS also concluded that the children would be at risk of further harm if they spent parenting time with him. DCAFS’ verification letter stated the following:

On October 7, 2020, the Society initiated a subsequent child protection investigation after receiving reports from various community partners regarding the safety and wellbeing of the children while in [the Respondent’s] care. Following a full investigation, the Dufferin Society has verified that [B.K., S.K. and E.K.] sustained abusive sexual activity by their father, [the Respondent] and that they would be at risk of further harm, should they continue to have access with him at this time. The Society is aware that as a result of these concerns criminal charges have been laid against [the Respondent], which has halted all contact. Until [the Respondent] has engaged in treatment and assessment, the Society would not support further access between [the Respondent] and his children due to the significant risk to their wellbeing within his care. Should [the Respondent] desire treatment, the Society would recommend the Sexual Behaviours Clinic at CAMH.

Further, the Dufferin Society has verified that the children suffered physical and emotional harm as a result of being in their father’s care and that they would be at further risk of harm should this contact continue. This information was verified as a result of the direct disclosures from each of the girls and the behaviours observed that demonstrate emotional harm, as well as information gathered from community partners and professionals.

The Dufferin Society will continue to support your family in accessing services and supports to address the challenges that you have faced and it is the Society’s best hope that the family will access the necessary treatment and therapy in order to work towards healing and rehabilitation.

The Society will continue to remain involved through Ongoing Services Child Protection Services, so please contact [your family services worker] should you have any questions about the outcome of the investigation. [Emphasis added]

[15] Having verified harm to the children, DCAFS advised that it would not support the children having parenting time with the Respondent until he underwent treatment and assessment.

[16] Although DCAFS asked the parties to raise any questions about the outcome of its child protection investigation with their family services worker, DCAFS did not respond to inquiries from the Respondent’s former counsel. Later on, the Respondent’s current counsel asked to meet with DCAFS to discuss its child protection findings and its position on parenting, but DCAFS declined to meet.

[17] After B.K. raised her allegations in October 2020, the children received therapy through a DCAFS Child and Youth Mental Health Services program. In addition, B.K. and the Applicant received counselling and other support services from FTP, a local agency that supports women and their children who have experienced abuse and unhealthy relationships.

Legal Principles

[18] In addressing the non-party disclosure motion as it relates to the decision-making and parenting time issues in dispute, I am guided by the underlying requirement to consider the best interests of the children: Divorce Act, RSC 1985, c. 3 (2nd Supp), ss. 16(1); Vecchio v. Abdelgawad, 2017 ONSC 5815 at para 3. In determining the parenting-related issues based on the children’s best interests, the court should have the best available information for everyone involved in the children’s care and upbringing: Noel v. Noel, 2015 ONSC 4561 at para 38.

[19] Rule 19(11) (Document in non-party’s control) of the Family Law Rules provides for the production of documents from a non-party as follows:

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 in stead of the original.

[20] Deciding a motion for non-party production calls for a multi-step analysis.

a. Relevance

[21] The threshold issue for a production order is relevance. As stated in M.M-A., P.A., M.D. and A.D. v. E.L., Kunuwanimano Child and Family Services, Attiwapiskat First Nation, 2020 ONSC 4597 at para 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 Aid Society of Toronto v. K. (T.) 2004 16117 (ON CJ), [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?

[22] As the non-party records at issue contain private or highly sensitive information, I accept that the “likely relevant” threshold should apply in deciding relevance: Kunuwanimano at para 24; Children’s Aid Society of Brant v. P.(N.M.), 2016 ONCJ 266 at para 38.

b. Privilege

[23] Rule 19(11) requires the court to consider any legal privilege that might apply to exclude the non-party production sought.

[24] There are two broad classes of privilege, namely “class” privilege and “non-class” or “case-by-case” privilege. Class privilege is well-established and commonly refers to solicitor-and-client communications and settlement discussions between parties to litigation. Non-class or case-by-case privilege arises from a special relationship that gives rise to a privileged status, such as the therapeutic relationship between a patient and a psychiatrist. The onus is on the person claiming a privilege to demonstrate that the communications should not be disclosed: Children’s Aid Society of Ottawa v. N.S., 2005 7661 (ONSC) at para 19; Children’s Aid Society of Halton Region v. T.C.B., 2012 ONCJ 69 at para 42.

[25] The common law permits the court to consider whether privilege exists where “reason, experience and application of the principles that underlie the traditional privileges so dictate” on a case-by-case basis: M.(A.) v. Ryan, 1997 403 (SCC), [1997] 1 SCR 157 at para 20. In Slavutych v. Baker, 1975 5 (SCC), [1976] 1 SCR 254 at 260, the Supreme Court approved the following four-part criteria set out in Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), §2285 to establish a case-by-case privilege:

a. The communication must originate in a confidence;

b. The confidence must be essential to the relationship in which the communication arises;

c. The relationship must be one which should be “sedulously fostered’ in the public good;

d. If all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correction of the litigation.

[26] If all four (4) of the Wigmore criteria are met, a privilege may be said to exist to prevent the disclosure of the subject records or information.

[27] The Supreme Court of Canada affirmed the Wigmore test in Ryan at para 20. In that case, the victim of a sexual assault by a psychiatrist brought a civil action for damages. The former psychiatrist sought disclosure of the victim’s new psychiatrist’s reports and notes. In describing the Wigmore test, the Supreme Court in Ryan at para 37 rejected a blanket approach to privilege and held that a court may determine that psychiatrist-patient records are privileged in appropriate circumstances by carefully considering the issue of privilege on a case-by-case basis:

My conclusion is that it is open to a judge to conclude that psychiatrist-patient records are privileged in appropriate circumstances. Once the first three requirements are met and a compelling prima facie case for protection is established, the focus will be on the balancing under the fourth head. A document relevant to a defence or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential. On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged. The result depends on the balance of the competing interests of disclosure and privacy in each case. It must be borne in mind that in most cases, the majority of the communications between a psychiatrist and her patient will have little or no bearing on the case at bar and can safely be excluded from production. Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage. Finally, where justice requires that communications be disclosed, the court should consider qualifying the disclosure by imposing limits aimed at permitting the opponent to have the access justice requires while preserving the confidential nature of the documents to the greatest degree possible. [Emphasis added]

[28] A production order should not permit “fishing expeditions” where a compelling privacy interest is at stake, even at the discovery stage: Ryan at para 37.

[29] The law of privilege is applied to reflect the social and legal realities of our time. This includes addressing the concerns over the wrongs perpetrated by sexual abuse, the serious effect of such abuse on victims, and the importance of supporting victims with care and treatment to address the aftermath of such abuse: Ryan at para 21.

[30] The court may flexibly craft production orders to safeguard privacy concerns and ensure that relevant disclosure is available to the parties: Ryan at paras 33 and 37; Kunuwanimano at paras 38 and 48. The goal is to allow for proportionate and efficient production while guarding against the injustice of cloaking the truth. This may be accomplished by disclosing a limited number of documents, removing non-essential materials, limiting the dissemination or copying of records, and otherwise minimizing any damage to protected relationships: Ryan at para 33.

c. Fairness

[31] Once the issue of privilege has been determined, the court must still decide the second part of the Rule 19(11) test, namely whether it would be unfair for a party to proceed to trial without the documents sought.

[32] In determining this second part of the Rule 19(11) test, the factors established by the Court of Appeal in Attorney General for Ontario v. Stavro (1995), 1995 3509 (ON CA), 26 OR (3d) 39 (CA) are considered. These factors include the following:

a. The importance of the documents in the litigation;

b. Whether disclosure or production can be postponed until trial; is it necessary to have production at the discovery stage 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 source; and

e. The relationship of the non-parties from whom production is sought to the litigation and the parties to the litigation.

See also: Kunuwanimano at paras 42-43; Girdlestone v. Bentley, 2020 ONCJ 444 at para 26.

Analysis

The DCAFS Records

[33] The Respondent is seeking disclosure of DCAFS’ entire file for the family, although he is not seeking the disclosure of any records that would disclose any safety plan information for the Applicant or the children. The DCAFS file broadly contains records from two (2) program areas, namely: a) the Child Protection Services records (i.e., from its child protection investigation into the abuse allegations against the Respondent); and b) the Child and Youth Mental Health Services records from the children’s mental health counselling sessions. DCAFS, the Applicant and the children, through the OCL, all oppose the production of any DCAFS child protection records by asserting that they are irrelevant to any disputed issues and unnecessary to ensure trial fairness. They also assert that the DCAFS counselling records are subject to privilege and should not be produced to the Respondent.

[34] For the reasons that follow, I find that the DCAFS child protection file contains information that is likely relevant to the issues in dispute and should be produced to the Respondent so that he may address the abuse allegations and argue his case on the parenting motion. I also find that the DCAFS counselling records for the children are privileged and should not be disclosed.

a. DCAFS Child Protection Service Records

[35] I am satisfied that the DCAFS Child Protection Services records have information that is likely relevant to the parenting-related issues in dispute. In my view, it would be in the best interests of the children for these child protection records to be disclosed so that the court has the best available information in deciding the parenting-related matters: Noel at para 38.

[36] It is apparent that the DCAFS child protection file contains likely relevant information. As set out earlier, DCAFS’ verification letter dated November 5, 2020 advised the parties that its child protection investigation verified the children had suffered physical and emotional harm while in the Respondent’s care. DCAFS also found that the children would be at further risk of harm by having further contact with him. DCAFS confirmed that it verified this information from direct disclosures from each of the children, their observed behaviours that showed emotional harm, and information from community partners and professionals. It follows that its child protection file contains likely relevant information to explain why and how DCAFS verified harm to the children from being in the Respondent’s care, which is critical information for him to have to properly understand the allegations against him and to meaningfully address the parenting issues in dispute.

[37] Without the DCAFS child protection file, I am satisfied that the Respondent’s ability to understand or address the Applicant’s allegations against him will be seriously compromised. Although DCAFS submits that its November 5, 2020 verification letter sufficiently discloses the basis for its assessment and recommendations, I respectfully disagree with its submission. Its letter has only scant or cursory information to explain its assessment without offering any real particulars to allow for a proper understanding of how and why it arrived at its findings. Its letter provides no explanation for its child protection or treatment recommendations, apart from giving largely conclusory statements that are devoid of any meaningful findings or reasons. Having reviewed the DCAFS verification letter, I am unable to understand the abuse allegations against the Respondent beyond the basic assertion that he engaged in abusive sexual activity towards the children who suffered physical and emotional harm in his care.

[38] DCAFS previously produced portions of its pre-February 2019 child protection file to the Respondent. However, it appears that DCAFS did not produce its complete child protection file as some of its productions referred to other file records that were not disclosed. In any event, the virtual absence of any meaningful production by DCAFS about the abuse allegations that B.K. disclosed in October 2020 leaves the Respondent, and ultimately the court, effectively unable to meaningfully address or consider the allegations on the parenting motion.

[39] Importantly, DCAFS’ earlier investigation did not verify the Applicant’s prior allegations of abuse against the Respondent. From the earlier DCAFS records that were produced to him, the Respondent states that the children denied any wrongdoing by him when DCAFS questioned them about the allegations. Following that investigation, the children continued to share equal parenting time with both parties. DCAFS did not seek to limit or restrict the children’s parenting time with the Respondent until after B.K. disclosed her abuse allegations in October 2020.

[40] Relying on the Applicant’s unverified past allegations and other conduct, the Respondent submits that the Applicant’s abuse allegations were part of a parental alienation strategy to gain a litigation advantage on the parenting issues in this proceeding. The Applicant denies that she alienated the children from the Respondent, and states that she always acted in the children’s best interests to protect them from harm.

[41] Although the DCAFS verification letter of November 5, 2020 invited the parties to raise any questions about the outcome of its child protection investigation with their family services worker, DCAFS did not respond to inquiries by the Respondent’s former counsel about the investigation and declined to meet with his current counsel to discuss its child protection findings and parenting position. In the circumstances, the Respondent was unable to obtain any information from DCAFS regarding its investigation and conclusions.

[42] Relying on the limited DCAFS records that are available to him, the Respondent points to an allegation that Dr. Ostrowski made against him that purportedly was based on misinformation. During her interview with DCAFS on July 31, 2018, Dr. Ostrowski shared a concern that E.K. had been sexually abused by the Respondent. It seems that Dr. Ostrowski’s concern was based on an understanding that E.K. had been fully potty-trained by 1 year of age and started wetting herself only after the parties separated. However, the Respondent claims that E.K. had continued to use pull-up diapers overnight until January 2020 which caused the child to regularly experience urinary incontinence and a susceptibility to rashes. He also claims that Dr. Ostrowski may have misinterpreted photographs of E.K. that came from the Applicant. According to the Respondent, Dr. Ostrowski’s apparent concern that E. K. was abused was likely based on a misunderstanding due to false, incorrect or misleading information that the Applicant would have provided. To properly understand and address the abuse allegations against him, the Respondent states that he requires disclosure of the DCAFS child protection file to accurately understand these allegations and meaningfully address Dr. Ostrowski’s concerns.

[43] Quite apart from his concern with Dr. Ostrowski’s allegation, the Respondent has raised concerns about the quality and thoroughness of the DCAFS investigation and claims that it was one-sided or biased as key people in the children’s lives, including himself, were never contacted or interviewed. In contrast, DCAFS interviewed the Applicant, her physician, Dr. Ostrowski, her therapists, Ms. Shapiro and Ms. Smith, and the children. To illustrate his concern that DCAFS’ investigation lacked balance or objectivity, the Respondent notes that the parties’ arbitrator made informed and impartial findings on evidence adduced in the med-arb matter that did not result in any changes to the children’s equal parenting time with the parties. In his submission, DCAFS arrived at incomplete or under-informed findings by conducting a limited investigation with biased or misleading evidence from witnesses and stakeholders who favoured the Applicant’s side.

[44] In its November 5, 2020 verification letter, DCAFS wrote that it would not support further parenting time for the children and the Respondent until he engaged in treatment and assessment, due to the significant risk to the children’s well-being while in his care. If he wished treatment, DCAFS recommended that the Respondent attend the Sexual Behaviours Clinic at the Centre for Addiction and Mental Health (“CAMH”). However, DCAFS did not explain how or why it made its treatment recommendation. To understand the reason for its recommendation, particularly as DCAFS did not contact his physician or psychologist, the Respondent submits that he requires disclosure of the DCAFS’ child protection file to understand the allegations, the basis for DCAFS’ findings, and the rationale for its recommended course of treatment at CAMH.

[45] Based on the foregoing, I am quite satisfied that the DCAFS child protection file contains information that is likely relevant to the parenting issues in this case. In my view, the Respondent should have access to this information to meaningfully understand the allegations, the findings from DCAFS’ investigation, and its conclusions and recommendations. Without this information, I cannot see how the Respondent could properly understand the allegations against him, know whether or not they are true or false, appreciate how or why DCAFS verified the allegations, or identify what evidence is needed to rebut the allegations. Although DCAFS verified abuse to all three children, it did not share any meaningful details of its investigation and gave only limited or conclusory information in its verification letter that lacks particulars to explain the basis for its findings. I also have reservations with how the court could appropriately address the parenting motion without sufficient information about the abuse allegations and the Respondent’s parenting ability which, in my view, is required to address the children’s best interests on the motion.

[46] I accept that the DCAFS child protection records will not satisfy the Wigmore test as a party’s relationship with a child protection service is not confidential: Kunuwanimano at para 36; G.(L.) v. B.(P.) (1996), 1996 8668 (ON CJ), 23 RFL (4th) 323 (ONCJ) at para 12.

[47] In my view, it would be unfair for the Respondent to proceed in this case without having disclosure of DCAFS child protection investigation into B.K.’s abuse allegations. These records are necessary to explain the nature of the abuse allegations against the Respondent and his ability to parent the children, which will be squarely at issue on the parenting motion. Unless he can properly understand DCAFS’ findings from its child protection investigation, the Respondent will be unable to meaningfully address the allegations on the parenting motion. The importance of this information to the parenting issues is particularly apparent given the Applicant’s unverified past abuse allegations, the Respondent’s parental alienation claim against her, as well as his concerns with the adequacy of DCAFS’ child protection investigation. Neither DCAFS nor any of the other non-parties is suggesting that this information or its equivalent is otherwise available to him from other sources, except for the possibility of the Crown Brief which I will address later in these reasons. In the circumstances of this case, I conclude that the children’s best interests would be served by releasing the DCAFS child protection file so the best available record is before the court.

b. DCAFS Child and Youth Mental Health Services Records

[48] The other DCAFS records at issue are its Child and Youth Mental Health Services records, which relate to counselling sessions that the children attended. As explained below, I find that the children’s counselling records should not be disclosed.

[49] I am not satisfied that the DCAFS counselling records for the children are likely relevant to this case. The Respondent is seeking the release of these records to learn what the children may have said about the abuse allegations against him to their therapists, although whether they actually disclosed anything in therapy about the allegations is largely speculative. Even if the counselling records contain some information about the allegations, which is not established on the limited record for this motion, the mere fact that a complainant has spoken with a counsellor about alleged abuse or matters touching on the allegations does not make a record of those conversations relevant to a fact in issue or to the complainant's credibility: R. v. Batte (2000), 2000 5751 (ON CA), 49 OR (3d) 321 (CA) at paras 70-73; R. v. Bradey, 2015 ONCA 738 at para 83. In my view, a complainant’s confidential therapy records should only be likely relevant if the content is shown to potentially offer some additional information not already available, or some impeachment value. Absent any information that the DCAFS counselling records offer any such content, I am not persuaded that these records are required to get at the truth and correctly decide the litigation. Accordingly, I am not persuaded that the Respondent’s fair trial interests outweigh the children’s privacy interests over their counselling records, which includes sensitive and confidential information of a personal nature unrelated to the parenting and support issues between the parties.

[50] DCAFS’ counselling records for the children arose from therapy sessions that were meant to stay private and confidential. Therapeutic relationships are necessarily confidential given the intimate personal topics that are shared in therapy. To properly benefit from therapy, the children must share their innermost thoughts and feelings with their therapists, which requires them to have confidence with the privacy of their therapeutic sessions.

[51] To support the therapeutic nature of the children’s counselling sessions, and to promote their ability and willingness to fully participate in therapy, I am satisfied that the privacy of their therapeutic relationships have transcendent public importance and should be sedulously fostered in the public interest: Ryan at para 28; Child and Family Services for York Region v. L.H., 2013 ONSC 5622 at paras 28-29. To this end, I accept that the children’s therapy records satisfy the first three arms of the Wigmore test, and raise a compelling prima facie case for protecting their privacy: Ryan at paras 20, 24-28 and 37.

[52] Turning to the fourth arm of the Wigmore test, I find on balance that the children’s privacy interests outweigh the Respondent’s fair trial interests in the DCAFS counselling records. Privacy is a cornerstone for any therapeutic relationship given the intimate and highly personal information that a client must share with their therapist to properly benefit from therapy. Accordingly, I accept that the children have significant privacy interests in their counselling records.

[53] From the record on this motion, I accept that much of what the children discussed in therapy is likely not relevant to the issues in this case. Unlike the content of the child protection file, which will answer why and how DCAFS verified physical and emotional harm to the children as a result of being in the Respondent’s care, the likely relevance of the children’s counselling records is speculative and unclear. Both B.K. and S.K. have said that much of what they discussed with their counsellors has nothing to do with the parties or the family conflict.[^2] Although the Respondent suspects that the children may have discussed the abuse allegations against him during therapy, the content of their therapy records is highly speculative at this time. In my view, this motion is largely a “fishing expedition” to examine the therapy records to see what might be useful to the Respondent’s case: L.H. at para 34. Given the children’s compelling privacy interest in their counselling records, this approach is simply not appropriate: Ryan at para 37.

[54] Even if the counselling records contain some information about the abuse allegations as the Respondent suspects, the reliability of any such information is unclear and far from certain. Statements recorded by a therapist are second-hand hearsay used to address therapeutic needs. The therapist does not record the precise words said by a complainant to describe an incident, which makes such records inherently unreliable when used for this purpose in a court proceeding: A.(L.L.) v. B.(A.), 1995 52 (SCC), [1995] 4 SCR 536 at paras 61-62. Having regard to the record on this motion, I conclude that DCAFS’ counselling records for the children likely have only limited, if any, bearing on the abuse allegations or the parenting motion.

[55] In my view, the confidentiality of the counselling records should be preserved. In making this determination, I am strongly influenced by the evidence of the OCL clinician who spoke separately with B.K. and S.K. about the possibility of the court releasing their counselling records to the Respondent on this motion. In response, B.K., who is 16 years of age, candidly advised that the potential disclosure of her discussions with her therapist and other medical professionals had caused her to moderate her behaviour by becoming more guarded in those conversations. This left her feeling unable to fully discuss or address her concerns during therapy and medical sessions. S.K., who just turned 14 years of age, voiced similar views and stated her belief that her therapeutic and medical records were private, which gave her comfort in speaking freely to those professionals. Although the OCL investigator did not speak with E.K. due to her young age, I am satisfied that similar considerations should apply to her as well, particularly as she matures.

[56] As the OCL clinical investigator has observed, all of the children will likely require lifelong therapy and professional support to cope with the impact of the family conflict, regardless of which party should prevail in this proceeding. Given this reality and the record on this motion, I accept that a release of the children’s confidential counselling records could seriously undermine their confidence in the privacy of their therapy sessions and compromise their ability to meaningfully engage in therapeutic relationships and properly benefit from them. In my view, this outcome may be extremely harmful to the children: Catholic Children’s Aid Society of Toronto v. C.D., 2020 ONCJ 160 at para 123; Catholic Children’s Aid Society v. J.S., D.D., T.T. and L.J. and the Hospital for Sick Children, 2013 ONCJ 200 at para 34.

[57] As stated earlier, the DCAFS child protection file will be disclosed to give the Respondent an opportunity to meaningfully understand and address the abuse allegations and the challenge to his parenting ability on the parenting motion. To this end, the child protection records will clearly disclose particulars of DCAFS’ findings and conclusions from its investigation into the allegations. In contrast, the content of the children’s counselling records is highly speculative and potentially unreliable. In my view, any probative value from the release of these counselling records would be far outweighed by the potential harm to the children arising from a breach of their privacy rights. In the end, I do not find that it would be unfair for the Respondent to proceed with the case without the children’s counselling records.

The SCAN Records

[58] The Respondent seeks an order requiring E.K.’s records on file with the SCAN program at the Hospital for Sick Children (“SickKids”) to be disclosed. In my view, SCAN’s assessment file for E.K. should be disclosed in part, but the content of her other support file should not be released.

[59] In 2019, the Applicant reported an allegation to police that the Respondent had touched E.K. inappropriately. The Respondent denies that he acted improperly and notes that DCAFS’ child protection investigation into the allegations did not verify any concerns, restrict the children’s parenting time with him, nor lead to criminal charges. During its investigation, DCAFS referred E.K. to the SCAN program at SickKids for an assessment of the allegation. The Respondent seeks disclosure of SCAN’s records for E.K. to refute the allegation. He claims that SCAN’s records did not verify this allegation against him.

[60] Although the Applicant initially consented to the release of SCAN’s records for E.K., the OCL objected to the records being disclosed by asserting E.K.’s privacy interests over them. In raising its objection, the OCL gave no evidence to explain SCAN’s involvement with E.K. when her records were prepared. However, in its submissions, the OCL characterized SCAN’s records for E.K. as medical records over which the child had a strong privacy interest.

[61] As explained further below, the Attorney General of Ontario has a heightened concern over witness tainting if a SCAN forensic interview report were to be disclosed. A SCAN program social worker prepared this report after a referral from Orangeville Police Service. The Attorney General states that releasing the report may raise serious concerns with tainting, or the appearance of tainting, as witnesses in the criminal prosecution may face criticism that the release influenced their recollection of events that was not based on their own independent knowledge or memory. In turn, the Attorney General submits that the disclosure of this report may compromise the integrity of the criminal prosecution and the administration of criminal justice. As this report was prepared through the SCAN program, E.K.’s file at SickKids likely contains a copy.

[62] From the evidentiary record on this motion, I am satisfied that the SCAN records of its child protection assessment of E.K. are likely relevant to the allegations against the Respondent and the parenting issues. Among other things, the assessment file may well refute the Applicant’s allegation that the Respondent touched E.K. inappropriately.

[63] Given the purpose of SCAN’s child protection assessment of E.K., I find that its assessment records did not originate in confidence and, therefore, do not satisfy the first arm of the Wigmore test: Kunuwanimano at para 37; G.(L.) at para 12. As the SCAN assessment records for E.K. do not arise from a confidential relationship, the second and third branches of the Wigmore test cannot be satisfied: Ryan at para 20. It follows that these records are not privileged.

[64] In any event, under the fourth Wigmore criterion, I would find that the SCAN assessment records for E.K. should be disclosed, without the forensic interview report, in order to get at the truth of the Applicant’s past abuse allegation against the Respondent. From the record, it seems clear that the SCAN assessment records are likely relevant to the past allegation, and may help the Respondent refute the allegation. That said, I am satisfied that the forensic interview report should not be released to avoid the risk or appearance of witness taint in the criminal prosecution. I accept the Attorney General’s cogent and persuasive submissions that disclosing this report may implicate a serious risk or appearance of tainting due to the relationship between the parties and the children, particularly as the parties are witnesses in the ongoing criminal matter. I add my view that it would not be unfair for the Respondent to proceed without the forensic interview report as the balance of the SCAN assessment file would provide sufficient content for him to meaningfully understand and refute this abuse allegation on the parenting motion.

[65] In addition to its assessment records, I understand that SCAN has other support records for E.K. related to care or therapy that the child received. The Respondent seeks disclosure of these records by arguing that they may contain details of the abuse allegations if E.K. mentioned them in therapy, which could help him understand and rebut the allegations. However, like the DCAFS counselling files, the content of the SCAN support records for E.K. is unclear and speculative. The mere fact that E.K. may have discussed the alleged abuse with a therapist does not make a record of the conversation relevant: Batte at paras 70-73; Bradey at para 83. The records may also be unreliable in light of how they were prepared: A.(L.L.) at paras 61-62. In light of this, I am not satisfied that SCAN’s support records for E.K. would provide any likely relevant content beyond what is released from its assessment records for her.

[66] Medical records do not implicate a blanket privilege: Cojbasic v. Cojbasic (2008), 2008 8256 (ON SC), 52 RFL (6th) 191 (ONSC) at para 16. Nevertheless, E.K. has a privacy interest in her care or therapy records due to the confidentiality of the therapeutic relationship in which the records were created: Ryan at para 37; L.H. at para 34. Given the reality that E.K. will likely require lifelong therapy, I have serious reservations about the impact of releasing her therapy records. Doing so may critically undermine her confidence in the privacy of her therapeutic relationships and inhibit her ability or willingness to fully engage in therapy, particularly as she gains insight and maturity. Regrettably, given her siblings’ current experience, this is not a remote concern. Having regard to the best interests of E.K., as well as her siblings, I am mindful of the importance of preserving the confidentiality of their therapeutic relationships to promote the best therapy and health outcomes.

[67] Ultimately, from the limited record on this motion, I find that SCAN’s other support records for E.K. would likely provide only limited, if any, relevant content beyond what will be disclosed from its assessment file for the child. In the circumstances, I am satisfied that it would not be unfair for the Respondent to proceed without SCAN’s other support records for the child.

Medical Records Held by Dr. Popa and Dr. Ostrowski

[68] The Respondent is seeking a complete copy of the family medical records for the Applicant and the children held by Dr. Popa and Dr. Ostrowski, respectfully.[^3] As set out below, I find that the records relating to the Applicant’s mental health are relevant to her ability to parent and should be disclosed. I also find that disclosure of the children’s family medical records is not warranted.

[69] Dr. Popa appeared on the motion through her counsel but did not take a substantive position and limited her submissions to privacy law issues. Dr. Ostrowski did not appear on the motion.

[70] Dr. Popa was the Applicant’s family physician from 2001 to 2016 and the children’s family physician from 2004 to 2016. Dr. Ostrowski has been their family physician since 2016.

a. The Applicant’s Family Medical Records

[71] The Respondent submits that the Applicant’s family medical records are required to properly understand her mental health condition, which he claims is relevant to determining her ability to parent the children and earn income for support purposes. He also claims that the family medical records for the children are relevant to understanding their needs, their overall well-being and their best interests on the parenting-related issues. In addition, as Dr. Popa was the children’s family physician when B.K. disclosed her abuse allegations in October 2020, the Respondent submits that Dr. Popa’s family medical records may have content about the abuse allegations that are relevant to the parenting motion. Furthermore, the Respondent asserts that Dr. Ostrowski may have been involved in the DCAFS investigation, and that her medical records may contain relevant information about the allegations.

[72] As the Applicant’s mental health is relevant to the parenting and support motions, I accept that her mental health records with Dr. Popa and Dr. Ostrowski are likely relevant to the issues in this case. Although the Applicant is willing to disclose her disability insurance file that contains relevant information about her mental health and ability to earn income, I accept that her mental health records with Dr. Popa and Dr. Ostrowski contain information that is also likely relevant.

[73] There is no real dispute that the Applicant’s family medical records satisfy the first three arms of the Wigmore test: Ryan at para 20.

[74] Turning to the fourth criterion under the Wigmore test, I find that the Applicant’s privacy concerns over her family medical records should yield in favour of the best interests of the children. Disclosing her mental health records is necessary to properly consider her parenting ability and the children’s well-being in relation to the decision-making and parenting time issues: Lewis v. Schuck, 2018 ONSC 3887 at paras 24; Vecchio at para 24. However, I accept that only her mental health records with Dr. Popa and Dr. Ostrowski should be released on this motion as the parties have raised no other health matters on the parenting or support motions. Limiting the disclosure of her medical records in this fashion will, in my view, strike an appropriate balance between having necessary information to correctly dispose of this case while respecting the Applicant’s privacy over the balance of her medical information that is not relevant.

[75] Although the Respondent submits that the Applicant’s entire family medical file is relevant to her ability to earn income for support purposes, I am not convinced that the disclosure of her entire family medical file is justified given her willingness to fully disclose her complete disability insurance file. From the record on this motion, I accept that the Applicant’s disability insurance file contains sufficient information about her health to properly assess her ability to parent the children and earn income in addressing the parenting and spousal support issues in this case.

b. The Children’s Family Medical Records

[76] Turning to the children’s family medical records, I am satisfied that the disclosure of these health records is not warranted. The Respondent believes that the children may have discussed the abuse allegations with Dr. Popa and Dr. Ostrowski, and that details of the allegations may have been recorded in their family medical records. However, the Respondent’s belief is speculative and not supported by any evidence. In light of this, I am not persuaded that the children’s family medical records should be released.

[77] The Respondent argues that the family medical records for the children are not privileged. Respectfully, I am not persuaded by this submission. In my view, B.K. and S.K. have a legitimate privacy interest over their medical consultations with Dr. Popa and Dr. Ostrowski and their family medical records. From the evidence on this motion, I accept that their family medical files relate to confidential doctor-patient sessions. This confidence is essential to these clinical relationships, and should be sedulously fostered to safeguard the health of the children: Ryan at para 20. In my view, similar privacy considerations should also guide my consideration of E.K.’s family medical records, despite her younger age. As set out earlier, all three children were impacted by the family conflict and likely will require lifelong therapeutic care for their health and well-being. Given this reality, I am concerned that releasing their family medical records would be contrary to the best interests of the children by undermining their confidence in the privacy of their health care records and their willingness to fully engage in medical or therapeutic discussions with their physicians. This concern may well intensify for E.K. as she matures, as it has for her siblings.

[78] Jurisprudence and international instruments recognize the inherent vulnerability of children and the need for heightened protection to safeguard children’s privacy interests: A.B. v. Bragg Communications Inc., 2012 SCC 46 at para 17; Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at paras 64 and 87, leave to appeal refused 2019 23873 (SCC). I add my view that the best interests of the children should be interpreted in a manner that is consistent with Article 16 of the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, signed by Canada on May 28, 1990 and ratified on December 13, 1991 (“Child Convention”), which provides:

No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, not to unlawful attacks on his or her honour and reputation. The child has the right to the protection of the law against such interference or attacks. [Emphasis added]

Notably, the Child Convention may be applied in interpreting the best interests of a child: A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at paras 92-93.

[79] Based on the foregoing, I find that the children’s family medical records satisfy the first three Wigmore criteria.

[80] In assessing the fourth Wigmore criterion for the children’s family medical files, I find that some of the records may be likely relevant to understanding the nature and context of B.K.’s recent allegations against the Respondent. As stated earlier, Dr. Popa was the children’s physician during the period in which B.K. alleged the Respondent’s abuse. The record shows that Dr. Ostrowski gave information to DCAFS for its child protection investigation into the abuse allegations against the Respondent, including photographs of E.K., that came from her family medical records for the children. But as the DCAFS child protection file will be released, information from the family medical records about the allegations, including the photographs, will be made available through this disclosure. Accordingly, I am satisfied that it would not be unfair for the Respondent to proceed without the children’s family medical files at this time. Given the circumstances of this case, I find on balance that the children’s privacy interests in their family medical records should prevail over any need to release the records to get at the truth. Disclosure from the DCAFS child protection file will provide significant information about the abuse allegations and Dr. Ostrowski’s concerns, permitting the Respondent a fair opportunity to meaningfully address these issues.

Therapy Records for the Applicant and B.K. Held by Lindsay Shapiro

[81] As explained below, I find that the Applicant’s counselling records held by Ms. Shapiro should be disclosed but that the privacy of B.K.’s counselling file should be preserved.

[82] The Respondent seeks disclosure of Lindsay Shapiro’s complete counselling file for both the Applicant and B.K., who jointly oppose this disclosure request.

[83] Ms. Shapiro is a social worker in private counselling practice. She has been the Applicant’s counsellor for several years, including a significant period after the parties separated. According to the Respondent, Ms. Shapiro’s counselling file for the Applicant contains information that is likely relevant to understanding the Applicant’s mental health, her ability to care for the children, her ability to work and her disability claims. He also claims that the counselling file may contain details of the abuse allegations. Importantly, the Applicant is relying on Ms. Shapiro’s letters of September 4, 2018 and March 4, 2019, respectively, which reported the Applicant having symptoms of post-traumatic stress disorder from alleged verbal and sexual abuse by the Respondent. In addition, Ms. Shapiro contacted DCAFS and Dr. Ostrowski to share the Applicant’s abuse allegations against the Respondent and to support her claimed inability to earn income for support purposes.

a. The Applicant’s Counselling Records

[84] I am satisfied that the Respondent has established the likely relevance of Ms. Shapiro’s counselling records for the Applicant. The mental health of the Applicant is a central consideration for the parenting and support issues. In addition, Ms. Shapiro’s evidence about the Applicant’s abuse allegations against the Respondent are important to the parenting-related matters. Given the Applicant’s reliance on Ms. Shapiro’s comments and opinions to support her own narrative and claims in this litigation, I accept that Ms. Shapiro’s counselling records for the Applicant are clearly relevant and important to the issues in dispute.

[85] The parties do not dispute that Ms. Shapiro’s counselling records for the Applicant satisfy the first three criteria under the Wigmore test: Ryan at para 20.

[86] Turning to the fourth Wigmore criterion, I find on balance that the need to pursue the truth outweighs the Applicant’s privacy interest in her counselling records: Ryan at para 29. Although the records arose in a counselling or therapeutic context that generally implies a privacy interest, the Applicant previously disclosed Ms. Shapiro’s above-noted letters to reveal information from her counselling sessions. In doing so, the Applicant effectively opted to yield her privacy interests in favour of adducing evidence of her mental health, her ability to earn income, her ability to parent the children, and the children’s best interests on the parenting issues in this case. In light of this, I am satisfied that the fourth Wigmore criterion favours the disclosure of Ms. Shapiro’s counselling records for the Applicant. Without these counselling records, the Respondent would be unable to meaningfully respond to the Applicant’s evidence about the allegations, including Ms. Shapiro’s letters on these matters, which would clearly put him at an unfair disadvantage on the parenting issues. I also find that the Respondent will require the counselling records to properly address the Applicant’s use of Ms. Shapiro’s comments and views on the support issues.

b. B.K.’s Counselling Records

[87] Ms. Shapiro had only one counselling session with B.K. in March 2018, shortly after the parties separated. B.K. had been impacted by the separation. Based on this, the Respondent claims that Ms. Shapiro’s counselling file for B.K. is relevant to understanding the child’s needs, overall well-being and best interests as it would likely contain information about whether any allegations of abuse were being raised against him at that time. Given his belief that no such allegations were being raised then, the Respondent claims that these counselling records would support his case.

[88] There is no evidence to establish that Ms. Shapiro’s counselling records for B.K. have any information that would be likely relevant to the abuse allegations or the parenting issues. The Respondent’s claim that these records contain likely relevant information is largely speculative, and the mere fact that B.K. may have discussed the abuse allegations with Ms. Shapiro does not, without more, make the therapy records relevant: Batte at paras 70-73.

[89] In any event, I am satisfied that the Wigmore analysis favours upholding the privacy of B.K.’s counselling records. There is no dispute that Ms. Shapiro’s counselling records for B.K. relate to therapeutic counselling and not a child protection assessment. A client’s relationship with a therapist is very intimate and personal and typically requires self-disclosure of highly private thoughts or feelings for the therapy to be effective: L.H. at paras 28-31. In my view, this is particularly true for children like B.K. who attend therapy for clinical help to cope with acutely dysfunctional situations affecting their health. B.K. was impacted by the adult conflict and needed therapy, which she got from Ms. Shapiro. In the circumstances, I accept that B.K.’s therapy session with Ms. Shapiro was intended to be private and confidential.

[90] Given that B.K.’s therapeutic relationship with Ms. Shapiro lasted only one session, the Respondent submits that their therapeutic relationship should attract a lesser expectation of privacy under the Wigmore test than longer or more established relationships.[^4] No authority was cited for this proposition. Respectfully, I am not persuaded by this reasoning. B.K. required therapy and attended a session with Ms. Shapiro to improve her health and wellness. I see no basis to find that B.K. reasonably expected that her private thoughts and feelings shared in therapy would later be disclosed. In my view, B.K.’s therapeutic relationship with Ms. Shapiro was clearly private and confidential regardless of its length or duration.

[91] Therapy is extremely important, particularly for children coping with dysfunction caused by family conflict. On this point, I share the view expressed by Boswell J. in L.H. at paras 30-31 that public interest strongly supports the protection and fostering of therapeutic relationships to help children attend therapy to address their mental health. It is generally understood that children in high conflict family situations who go untreated may well suffer mental health issues that may last a lifetime. Without privacy and confidentiality, children may be less likely to try counselling or therapy, let alone speak openly and candidly about their thoughts and feelings during therapy to properly benefit from therapeutic treatment. Indeed, B.K. herself has candidly acknowledged that she has begun to modify her behaviour to be less open and forthcoming in therapy for fear that her private thoughts and feelings may be revealed by a disclosure order. A failure to uphold the private and confidential nature of therapy may well cause a serious chilling effect for B.K.’s future therapeutic treatment and potentially cause her therapy to become ineffective.

[92] In my view, Ms. Shapiro’s therapy records for B.K. satisfy the first three arms of the Wigmore test. Under the fourth arm of the Wignore test, I am satisfied that B.K.’s privacy interests outweigh any interests in disclosing these records. I accept that B.K. has a strong privacy interest in her therapy records, and that compromising the confidentiality of these records would seriously compromise her future willingness to attend therapy and meaningfully participate. I also find that the likely relevance of B.K.’s counselling records is speculative. Although the Respondent seeks B.K.’s therapy records from Ms. Shapiro to examine them for details about the allegations against him, B.K. explained that her discussions in therapy were largely unrelated to the allegations. Moreover, once the DCAFS child protection file is released, the Respondent will have meaningful information to address the allegations on the parenting motion. Accordingly, I find that it would not be unfair for the Respondent to proceed without B.K.’s therapy records from Ms. Shapiro.

Family Transition Place’s Counselling Records for the Applicant and B.K.

[93] The Respondent seeks disclosure of FTP’s counselling records for the Applicant and B.K.. As explained below, I find that the Applicant’s counselling records are likely relevant and should be disclosed, but that the privacy of B.K.’s counselling records should be preserved.

[94] FTP is an agency in Orangeville that provides shelter, counselling support services, and other support services to women and children who have experienced abuse and unhealthy family relationships. As part of its crisis work, FTP helps women and children prepare safety plans and danger assessments to help mitigate the risk of harm from domestic violence by alleged abusers. FTP also provides legal support services to women accessing the justice system by arranging for legal support workers to facilitate their interactions and communications with legal counsel. As a result, FTP has support records for clients containing safety plan and solicitor-client privileged information. In submissions, the Respondent clarified that he is not seeking the disclosure of any safety plan or litigation support records.

a. The Applicant’s Counselling Records

[95] From October 30, 2018 until February 10, 2021, the Applicant received trauma counselling from FTP. She claims that these trauma counselling records are not relevant to this case, and that producing these files would detrimentally impact her privacy and mental health without providing any likely relevant information to the issues in this case.

[96] The Respondent claims that the Applicant’s counsellor at FTP, Sarah Smith, was heavily involved in supporting the Applicant’s disability claim, frequently provided services with respect to the Applicant’s post-traumatic stress disorder (i.e., that is said to prevent her from returning to work), and had multiple discussions about the Applicant’s health and care with Dr. Ostrowski from October 2018 to March 2021. Ms. Smith also attended a DCAFS case conference on September 29, 2020 along with DCAFS staff, Dr. Ostrowski and Ms. Shapiro. Ms. Smith also attended further DCAFS case conferences on November 13, 2020 and in March 2021.

[97] Having regard to the nature of Ms. Smith’s involvement with the Applicant’s disability claim and family medical care, I find that her FTP records for the Applicant are likely relevant and important to properly understand her health as it relates to the parenting and support motions. Although other health records for the Applicant will be disclosed, it seems that Dr. Ostrowski formed her medical opinion about the Applicant’s health by relying on information from Ms. Smith that, in my view, should be released to allow these matters to be fairly and meaningfully addressed. In addition, I accept that Ms. Smith’s records for the Applicant are likely relevant and important given her involvement with DCAFS at multiple case conferences around the time that B.K. raised the allegations, and afterwards. By directly involving herself in child protection efforts that clearly relate to the parenting issues in this case, Ms. Smith assumed a role for the Applicant that extended well beyond that of a private therapist. In the circumstances, I accept that Ms. Smith’s records are likely relevant to the allegations and the parenting motion.

[98] There is no real dispute that FTP’s counselling records for the Applicant satisfy the first three arms of the Wigmore test: Ryan at para 20.

[99] Under the fourth arm of the Wigmore test, I find on balance that the need to get at the truth outweighs the Applicant’s privacy interest in her counselling records: Ryan at para 29. Although the records were prepared in a therapeutic context that generally implies a privacy interest for the client, Ms. Smith released information from the counselling records at the Applicant’s request to help manage her disability claim and medical care. In addition, Ms. Smith actively participated with the DCAFS’ child protection activities with the Applicant’s apparent knowledge and support. Given these particular circumstances, I am satisfied that the Applicant’s privacy interests in the FTP counselling records should yield to permit the release of these records so the Respondent may fairly understand and meaningfully respond to the parenting and support motions. Unless these records are released, I accept that the Respondent would be at a significant and unfair disadvantage in addressing the parenting and support issues.

b. B.K. Counselling Records

[100] Since the end of March 2021, B.K. has received counselling from FTP. B.K. is asserting a privacy interest over her FTP counselling records and objects to having them disclosed.

[101] In my view, the real underlying reason for the Respondent’s effort to seek disclosure of the FTP counselling records for B.K. is to learn what she may have disclosed about the allegations during therapy. However, his beliefs or assumptions about what she discussed in therapy is highly speculative. In the circumstances, I do not find that FTP’s counselling records for B.K. are likely relevant to the issues in this proceeding.

[102] Regardless, I am satisfied that the FTP counselling records for B.K. are protected by privilege. There is no real dispute that the child’s counselling records satisfy the first three arms of the Wigmore test: Ryan at para 20. The real dispute centres on the fourth Wigmore factor, and whether B.K.’s privacy interests in her counselling records are outweighed by the court’s need to get at the truth and correctly dispose of the litigation.

[103] The Respondent broadly claims that B.K. counselling records may contain information about the abuse allegations, which he submits is sufficiently relevant to his understanding of the allegations to warrant disclosure. Respectfully, I disagree with this submission. In asserting his position, the Respondent does not suggest that FTP’s counselling records for B.K. will differ from or add anything to the content of the DCFAS child protection file to be released. Even if the FTP records contain some information about the allegations, which is not established on the record, this alone does not make them relevant: Batte at paras 70-73; Bradey at para 83. B.K. claims that much of what she has discussed in therapy is unrelated to this case. Having regard to the record on this motion, I am not satisfied that the FTP counselling records for B.K. are needed to get at the truth, or that the Respondent’s fair trial interests should outweigh B.K.’s privacy interests to her counselling records that contain sensitive personal information.

[104] In declining to release B.K.’s counselling records, I am mindful of the potential impact on B.K. if production of her confidential therapy records is ordered against her wishes. B.K. has raised serious allegations of abuse against the Respondent. These events caused B.K. to suffer trauma. She is an emotionally vulnerable child who requires therapy to restore her health and well-being. From her perspective, the production of her confidential therapeutic records would reveal personal and sensitive information and compromise the privacy she values in her therapeutic relationship with her counsellor. To avoid injury to her ongoing therapeutic relationship that may potentially compromise her future therapy and care, I find that B.K.’s interests are best served by preserving the privacy over her FTP counselling records.

[105] In my view, the Respondent would experience no unfairness by proceeding without B.K.’s counselling records from FTP given their questionable relevance, the availability of equivalent information from the DCAFS child protection file to be disclosed, and FTP’s ongoing therapeutic relationship with B.K. who has strong and important privacy interests over her confidential therapy records: Godwin v. Bryceland, 2008 ONCJ 495 at para 21. Although the Respondent prefers to seek and obtain the utmost disclosure possible, this is not the standard to be applied on this motion. I also recognize that excessive disclosure may cause harm by overly complicating the evidentiary record, unduly occupying the parties and the court, and ultimately impairing a fair hearing of this litigation: Boyd v. Fields, [2006] OJ No 5762 (SC) at para 12.

Other Health or Therapy Care Providers

[106] The Respondent seeks an order to require the Applicant to compile a list of any and all health providers, such as doctors, counsellors, therapists, and other treatment professionals, that have treated her or the children since separation. He also broadly seeks an order for any such health providers to produce their treatment records. In my view, the Respondent’s request amounts to a fishing expedition that should not be allowed.

[107] The Respondent broadly asserts that the records of the Applicant’s health providers are relevant to understanding her mental health, her ability to care for the children, her ability to work, and her disability claims. He also broadly claims that the children’s health provider records are relevant to understanding the children’s needs, overall well-being and best interests. However, the Respondent’s main assertion is that these health provider records may be relevant to the parenting issues as they may inform his understanding of the abuse allegations if it turns out that disclosures about the allegations were made.

[108] The Applicant claims that the Respondent has not shown why a list of her professional care providers, or the confidential therapy records for herself and the children, are relevant to this case. She characterizes his production request as being entirely speculative and overbroad, and submits that it constitutes an excessive invasion of their privacy. She concedes that other care providers have treated the children but claims that their records are not relevant to the issues in this case. In view of this, she submits that their confidential care and therapy records should be kept private.

[109] I am not persuaded that the Respondent has shown why or how this requested information is likely relevant. The requested information is broad and speculative, and there is no evidence to establish its likely relevance.

[110] In any event, I am satisfied that the Respondent’s intent is to seek medical information for the Applicant and the children that satisfies the first three arms of the Wigmore test: Ryan at para 20. In my view, the fourth arm of the Wigmore test favours upholding the privacy interests of these records over any implicated fair trial rights.

[111] On balance, I accept that the privacy interests of the Applicant and the children over their health and therapy records are significant, for the reasons set out earlier. In addition, I am satisfied that the actual content and likely relevance of the subject health records is entirely speculative. Absent clear evidence of the relevance of these records, this part of the motion is akin to a fishing expedition. Even if the records were to have the type of information that the Respondent suggests, I find on the record for this motion that the release of the Applicant’s health records from Dr. Popa and Dr. Ostrowski, her therapy records from Ms. Shapiro, and her disability insurance records, will give the Respondent ample information about the Applicant’s mental health to adequately address her ability to parent and earn income. In addition, I am satisfied that the disclosure of the DCAFS investigation file would properly inform the Respondent of the abuse allegations against him by the Applicant or any of the children. Ultimately, I find that the above-mentioned disclosure will provide the Respondent with access to information and records to fairly address the parenting and support issues. In my view, the Respondent’s ability to present his case will not be unfairly impaired without the additional health care records he is seeking.

Edify Centre Records for the Children

[112] The Respondent is seeking to have the Edify Centre disclose its therapy records for the children who are enrolled in a boxing and counselling program at the centre. For the following reasons, I am not satisfied that these records should be produced.

[113] The Edify Centre is a community-based centre that provides mental wellness support for all three children through a program that combines the physical benefits of boxing training with counselling sessions.

[114] As with his earlier requests for disclosure of therapy records for the children, the Respondent broadly claims that the Edify Centre’s boxing therapy records are relevant as they may potentially shed some light on the children’s needs, their overall well-being and best interests, and any disclosures of abuse that they have may raised against him. The Applicant and the children submit that the Respondent’s disclosure request is based on highly speculative assumptions of the content of these records. They claim the records are irrelevant to the parenting issues in this case. As a result, they submit that the Edify Centre records should not be disclosed.

[115] I am not persuaded that the Respondent has established that the boxing therapy records are relevant to this case. Like his disclosure request for the children’s other therapy records, I find that the Respondent’s request is highly speculative and amounts to a fishing expedition to examine records for any helpful information to his case. Absent any indication that the therapy records have actual likely relevance, I am not satisfied that an order for their production is warranted.

[116] In any event, I find on the record for this motion that the children’s boxing therapy records originated from a confidential therapeutic relationship that should be preserved so that the children may continue attending and benefitting from therapy. In my view, it is particularly important for the children to attend this therapy to obtain help in coping with the acute dysfunction and disruption from this family conflict. Failing to uphold the confidentiality of their therapeutic relationships may well have a chilling effect on their therapy, and other future counselling programs they may attend, by making the children less likely to speak openly or freely during therapy knowing that their private thoughts and intimate feelings may be released. To this end, the OCL has confirmed that the older children are moderating their behaviour in therapy by being less forthcoming about their thoughts and feelings to shield them from potential disclosure.

[117] In my view, the Edify Centre boxing therapy records for the children satisfy the first three Wigmore factors: Ryan at para 20.

[118] Turning to the fourth Wigmore factor, I find on the record for this motion that the children’s privacy interests outweigh the Respondent’s fair trial interests. In my view, the Respondent’s ability to address the parenting and support issues will not be unduly impaired by denying him access to the therapy records. As set out earlier, I am satisfied that the disclosure of the DCAFS investigation file and the other released records would give the Respondent ample information to fairly address the parenting and support issues. Given the speculative content of the Edify Centre’s therapy records, the children’s high privacy interest in their therapy records, and the need to preserve their privacy to best promote their health and well-being, I conclude that the Respondent’s ability to fairly argue his case will not be unduly impaired without these therapy records.

The Applicant’s Disability File with Great-West Life Assurance Company

[119] As mentioned above, the Applicant is willing to fully disclose the content of her disability file with the Great-West Life Assurance Company. Accordingly, a consent order for the disclosure of her disability file shall issue.

The Crown Brief

[120] The Respondent seeks an order requiring the Orangeville Police Service, the Ontario Provincial Police and the Crown Attorney to disclose all documentation in the Crown brief for his ongoing criminal prosecution. Subject to some limited disclosure to which the Attorney General consents, as described below, I am satisfied that the confidentiality of the Crown brief should be preserved at this time, and until at least the completion of the preliminary inquiry, if the Respondent elects to have one, to maintain the integrity of the criminal prosecution.

[121] The police and Crown records at issue relate to an ongoing criminal prosecution of the Respondent, and will ultimately be included in the complete Crown brief for that prosecution. The police and Attorney General are required to raise any public interests concerns with the production of Crown brief materials in any collateral proceeding pursuant to the Court of Appeal’s decision in P.(D.) v. Wagg (2004), 2004 39048 (ON CA), 71 OR (3d) 229 (CA). The Attorney General consents to producing a subset of Crown brief documents for use in this family proceeding. However, the Attorney General opposes the production of the complete Crown brief on public interest grounds that disclosing this content may cause evidence from the ongoing prosecution to become tainted and thereby prejudice the administration of criminal justice.

[122] On October 8, 2020, the Respondent was charged with sexual interference, sexual assault and assault after B.K. disclosed abuse allegations against him. As his criminal prosecution is at an early stage, the Respondent has received some but not all of his disclosure in the criminal matter through his criminal defence counsel. The Respondent has different criminal and family counsel, who are unable to share the contents of the Crown brief without an order from the court. Dates for a preliminary inquiry or trial were not set when this motion was argued.

[123] The Attorney General consents to producing two Crown brief documents, namely the Crown Brief Synopsis and an Occurrence Summary, subject to redactions of police codes, personal information for non-party witnesses, police investigative techniques, and other personal information. The Attorney General also consents to producing certain text messages between the parties, should they no longer have these messages, which do not contain content that, in the Crown’s opinion, would jeopardize the criminal prosecution.

[124] The Crown brief contains various categories of records that the Attorney General opposes producing, including criminal court documents (i.e., a draft copy of the Information and a copy of release documents), a letter from B.K. to the family court, and correspondence and a report from DCAFS. As the Attorney General advised in its oral and written submissions, these records can be accessed directly through the courts and DCAFS, respectively.

[125] The Crown brief includes records from the Royal Canadian Mounted Police (“RCMP”), namely Canadian Police Information Centre (“CPIC”) queries and response reports, which the Attorney General for Ontario is not authorized to produce. In addition, the Crown brief contains administrative documents that relate to various procedural matters in the criminal prosecution. These include Crown brief covers and indices, supplementary occurrence reports dealing with administrative matters, an arrest report, victim/witness lists, victim reports, a property list, an audio/video interview caution for the Respondent, correspondence from DCAFS to police, a prisoner custody report, prisoner security checks, a charge sheet, prisoner cell sheets, and a consent to release medical records to police.

[126] The Crown brief further contains documents that the Attorney General objects to producing while the criminal prosecution is ongoing due to the risk that witnesses may be tainted, or may appear to have been tainted, if the documents are made available to individuals who will be testifying in the criminal prosecution. The documents for which the Attorney General has raised this concern include: a) general reports; b) supplementary occurrence reports dealing with non-administrative matters; c) a report from an investigating officer; d) video statement synopses from interviews of the parties and the children; e) video interview scribe reports from interviews of the Applicant and B.K.; f) a letter from B.K.; g) police notes; h) a forensic interview report completed by a social worker with the SCAN program regarding E.K.; and i) audio/visual statements of the parties, the children, and others. Some of these items are still being processed by the Crown for disclosure in the criminal prosecution. Given the Crown’s ongoing disclosure obligation, the Crown brief may include additional records in the future.

[127] Given the limited nature and scope of the criminal court information and release documents in the Crown brief, I find that these particular records will likely not provide any meaningful new information for this family proceeding. In addition, other parts of the Crown brief are entirely irrelevant to this family proceeding, including the CPIC records (i.e., which the RCMP has not authorized the Attorney General of Ontario to release) and other administrative records that are not relevant to the parenting or support issues. Although I accept that the DCAFS correspondence and report in the Crown brief are relevant to this case, these records will be available to the Respondent as part of the DCAFS production order, as set out earlier. I add that the Respondent may seek a copy of B.K.’s letter to the family court by requesting it from the court directly.

[128] From the record on this motion, I am satisfied that the balance of the Crown brief records the Attorney General objects to produce are related to the abuse allegations against the Respondent and, therefore, are likely relevant to the parenting issues in this family proceeding. Although the Attorney General claims to be unable to address whether any such records are subject to a legal privilege at this time, it did not raise any privilege arguments on this motion. I am unaware of any basis to find privilege over any of these records.

[129] Having shown that certain records in the Crown brief are likely relevant, the Respondent is required to establish, on a balance of probabilities, that it would be unfair to proceed with his case without these documents: Girdlestone at para 26; Godwin at para 21; Stavro at pp. 48-49.

[130] As set out below, I conclude that it would not be unfair for the Respondent to proceed in this case without disclosure of the Crown brief records sought on this motion.

[131] To address the parenting issues, the Respondent essentially seeks the Crown brief for the purpose of reviewing and comparing the various statements made to police in order to understand, challenge or rebut the abuse allegations raised by the Applicant or the children against him. He is particularly interested in obtaining the video statements that the Applicant and the children gave to police after B.K. reported the abuse allegations in October 2020.

[132] Having considered the information previously obtained by the Respondent, as well as the additional disclosure that has been ordered on this motion, I am satisfied that a reasonable amount of information about the abuse allegations will be available for the Respondent to meaningfully understand and refute the allegations on the parenting motion.

[133] The Respondent has acknowledged that he already possesses certain documents, including some related to DCAFS and SCAN child protection investigations, which support his position that the abuse allegations against him are unfounded. It is noteworthy that the Respondent also will have the DCAFS child protection file from its investigation into the abuse allegations that B.K. reported in October 2020, as well as SCAN’s records for E.K.’s child protection assessment, which are to be disclosed. In addition, further records pertaining to the abuse allegations raised by the Applicant are to be disclosed from her family medical and therapy files, as explained earlier. Moreover, the Attorney General consents to the disclosure of the Crown Brief Synopsis and Occurrence Summary, which will provide the court with additional information about the criminal charges to assist in determining the best interests of the children on the parenting issues. In light of this, I am not persuaded that it would be unfair for the Respondent to proceed without disclosure of the Crown brief at this time.

[134] In any event, having regard to the circumstances of this case, I am satisfied that the court should exercise its discretion to not order production of the Crown brief at this time as disclosure may compromise the ongoing criminal proceedings and be contrary to the public interest.

[135] In College of Physicians and Surgeons of Ontario v. Peel Regional Police (2009), 2009 55315 (ON SCDC), 98 OR (3d) 301 (Div Ct) at paras 52-53, the Divisional Court highlighted the public interest concerns over the dissemination of the Crown brief, which the Court of Appeal discussed in Wagg, including concerns that disclosure may compromise ongoing criminal prosecutions:

[52] In Wagg, the court recognized that the dissemination of the Crown brief can raise public interest concerns that may be difficult to predict. The court specifically identified police informant privilege, public interest immunity, the privacy interests of third parties (including safety concerns), as well as the concern that disclosure may compromise ongoing criminal proceedings, and recognized that some public interest concerns may not be reflected in the recognized privileges. The decision raises the possibility of new substantive objections to disclosure that may require the weighing of competing private and different public interest considerations to determine whether disclosure of all or part of the Crown brief should be refused in the public interest.

[53] In addition to creating a process in civil proceedings with respect to the production of a Crown brief, Wagg also identified and articulated substantive public-interest grounds on which production could be opposed. As the public interest concerns arise from the nature of the Crown brief itself, the rationale for recognizing and taking into account public interest concerns applies with equal vigour to other proposed collateral uses of a Crown brief. [Emphasis added]

[136] Protecting ongoing prosecutions is such an important public interest that records created for prosecutions are wholly excluded from access under privacy legislation while the prosecution is ongoing: Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c. M.56, ss. 52(2.1); Freedom of Information and Protection of Privacy Act, RSO 1990, c. F.31, ss. 65(5.2). These statutory exclusions are intended to protect an array of vital public interests, including “maintaining the integrity of the criminal justice system and ensuring that the accused and the Crown’s right to a fair trial is not infringed … and controlling the dissemination and publication of records relating to an ongoing prosecution:” Ontario (Attorney General) v. Toronto Star, 2010 ONSC 991 (Div Ct) at para 51.

[137] Revealing the Crown brief to a witness may have the effect of colouring their memory of events and creating an opportunity for evidence to be tailored to fit other evidence. Even where deliberate tailoring may not be an issue, it may become difficult to know what a witness’ evidence may have been had evidence in the Crown brief not been revealed. Recognizing this issue, the Court of Appeal stated in R. v. F.(J.), 2003 52166 (ON CA), [2003] OJ No 3241 (CA) at para 77:

The reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns. [Emphasis added]

[138] The Attorney General raised cogent and persuasive concerns with the need to preserve the integrity of the Respondent’s criminal prosecution. Relying on the following passage from the affidavit sworn by Joanne Stuart, a Crown Counsel who reviews Crown brief records on non-party production motions, the Attorney General submits that the release of Crown brief records for purposes other than full answer and defence in the criminal proceedings may jeopardize the integrity of the criminal prosecution of the Respondent and prejudice the proper administration of criminal justice:

It is vitally important to maintain the integrity of the witnesses’ evidence. In the normal course of a criminal case, a witness would not be exposed to the content of another witness’ anticipated evidence in order to avoid any inadvertent tainting of that witness’ independent recollection. The witnesses are not privy to one another’s statements to police. Should any of the witnesses learn about any evidence, including another witness’ statement, it would expose their evidence to a challenge that it is not in fact the product of the witness’ own independent recollections and knowledge of the events at issue. To ensure the continued preservation of the integrity of this ongoing criminal prosecution, the Crown opposes the release of all documents from the Crown brief except those previously consented to for release including the Synopsis, Occurrence Summary, and text messages with appropriate redactions.

[139] In my view, the risk of evidence being tainted by the influence of witnesses hearing the accounts of others is particularly acute in this case given the relationship between the parties and their children, and the nature of the abuse allegations. Although the Respondent submits that the Attorney General’s public interest concerns may be adequately addressed by imposing strict confidentiality provisions, I am not satisfied that any such measures would be adequate in the circumstances of this case.

[140] Based on all of the foregoing, I find that the confidentiality of the Crown brief should be maintained at this time, and at least until the completion of the preliminary inquiry, should the Respondent elect to have one, in order to preserve the integrity of the criminal prosecution in the public interest. Should complainant evidence be heard at a preliminary inquiry, the likelihood of evidence being tainted may be significantly mitigated: Dixon v. Gibbs, 2003 1921 (ONSC) at para 29; N.G. v. Upper Canada College, [2004] OJ No 950 (Master) at para 29; aff’d 2004 60016 (ON CA), [2004] OJ No 1202 (Div Ct); motion to stay disclosure dismissed (2004), 70 OR (3d) 312 (CA).

Outcome

[141] Based on the foregoing, I order the following:

a. The DCAFS records from its Child Protection Service program area shall be produced, but for any information that would disclose any safety plan information for the Applicant or the children which shall be removed or redacted;

b. The SCAN child protection assessment file for E.K. shall be produced, but without the forensic interview report;

c. The Applicant’s records regarding her mental health that are found in her family medical file held by Dr. Popa and Dr. Ostrowski shall be produced;

d. Ms. Shapiro’s counselling records for the Applicant shall be produced;

e. FTP’s counselling records for the Applicant shall be produced;

f. On consent, the Applicant’s disability file with the Great-West Life Assurance Company shall be produced;

g. On consent, the Crown Brief Synopsis, the Occurrence Summary and text messages between the parties, shall be produced from the Crown brief, subject to redactions of police codes, personal information for non-party witnesses, police investigative techniques, and other redactions of personal information;

h. Records produced pursuant to this order shall remain in the possession of counsel only. Instructing parties or clients may only examine these records at their counsel’s premises and shall be prohibited from making or obtaining copies or possessing any portion of the records, which may only be used for the purpose of dealing with the issues in this family proceeding;

i. The balance of the motion is dismissed.

j. At the conclusion of this case, and after the expiry of any appeal period, the parties shall arrange for the disposal or destruction of these records.

[142] Should any issues arise from these orders, I may be spoken to.

[143] If the parties are unable resolve the issue of costs for this motion, costs may be addressed in brief written submissions on a schedule to be agreed upon by counsel or at a case conference before me, as may be requested if necessary.

Doi J.

Date: August 31, 2021

COURT FILE NO.: FS-18-110-00

DATE: 2021 08 31

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: G.L.K., Applicant

AND:

C.L.K., Respondent

BEFORE: DOI J.

COUNSEL: Shannon L. More, for the Applicant

Jennifer Kirshen, for the Respondent

Geoffrey J. Carpenter, for the Office of the Children’s Lawyer

Roopa Mann, for the Attorney General of Ontario

Jenna Bontorin, for Family Transition Place

Kathleen O’Grady, for Dufferin Child and Family Services

Ian McLeod, for Dr. Brindusa Popa

ENDORSEMENT

Doi J.

DATE: August 31, 2021

[^1]: This motion is subject to an order restricting publication under s. 486.4 of the Criminal Code which shall continue.

[^2]: Due to her age, E.K. was not questioned about her counselling sessions.

[^3]: Due to a misunderstanding, some of the medical information from Dr. Ostrowski’s records were inadvertently disclosed. Subject to my decision on this motion, the records that were inadvertently disclosed are to be returned promptly and any copies of these records shall be disposed of.

[^4]: The Respondent raised a similar argument in respect of a counselling session in 2018 that B.K. and S.K. with a DCAFS counsellor, Gloria Campbell. Applying the same reasoning with respect to B.K.’s single counselling session with Ms. Shapiro, I am not persuaded that B.K. and S.K. had a lesser expectation of privacy over their therapeutic communications with Ms. Campbell during therapy.