WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
87(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO.: FC-16-2381-1
DATE: 2022/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1.
AND IN THE MATTER OF J.W. born xxxxx x, 2020
BETWEEN:
Children’s Aid Society of Ottawa
Applicant
– and –
K.T.
Respondent
– and –
E.M.
Respondent
Mark Hecht and Sakshi Chadha, Counsel for the Applicant
Stephen Pender, Counsel for the Respondent K.T.
Dominique Smith, Counsel for the Respondent E.M.
J.A.H.W.
Respondent
Enoch Anekwe, Counsel for the Respondent J.A.H.W.
HEARD: October 18, 2022
REASONS FOR JUDGMENT
Labrosse j.
Overview
[1] The Children’s Aid Society of Ottawa (“CAS” or the “Society”) bring this motion pursuant to s. 130 of the Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, (“CYFSA”) for an order that the Ottawa Police Service (“OPS”) produce and disclose to the Society, all police reports and records in their control regarding the Respondents K.T. and E.M. (“these Respondents”) from January 1, 2020 and ongoing.
[2] In addition, and also pursuant to s. 130 of the CYFSA, the Society seeks an order that the Primrose Family Medicine Center / Bruyère Academic Family Health Team (“Primrose”) produce and disclose to the Society all medical notes and records in their control regarding these Respondents.
[3] In respect of the records from the OPS, these Respondents consent and as such the parties have provided an approved consent order to the court for signature.
[4] However, these Respondents strongly opposed the release of their medical records.
[5] For the reasons that follow, I agree with these Respondents that the disclosure of their medical records would be prejudicial to them given the particular medical services received by these Respondents at Primrose and also given the absence of a nexus between the broadly requested medical records and the Society’s concerns about mental and emotional health. At this point, there are privacy interests which outweigh the probative value of the disclosure of the medical records. In addition, the parties have yet to receive the police records, and these may shed light the relevance of the medical records. It is not unfair for the Society to proceed to trial without the broadly requested medical records. Medical practitioners from Primrose will be called at trial and the extent to which mental health, anger management or emotional health related treatments have been obtained can be explored at trial. In all the circumstances, disclosure of such broadly requested medical records would not promote the best interest of the child given the impact that it could have on these Respondents’ ongoing medical care. The court will leave it open to the Society to renew its motion to the trial judge depending on the nature of the police records or the evidence at trial. Otherwise, the Society’s motion is dismissed.
Background
[6] The subject of the Society’s Application is J.W. (DOB: *****, 2020). The parents are K.T. and E.M. J.W.’s biological father is J.A.H.W.
[7] K.T. is the biological mother of J.W. K.T. is a transgendered person who self-identifies as male. E.M. is a transgendered person who self-identifies as a female. These Respondents have been in a romantic relationship since 2014.
[8] At the time of commencing the Protection Application, the Society’s primary protection concerns were with E.M. and K.T.’s mental and emotional health. Specifically, that they did not have their mental and emotional health well enough under control and did not engage in meaningful changes. The worry was that they would continue to expose the child to explosive verbal and physical altercations where the child could be physically harmed, and it could affect the child’s sense of safety and security while in these Respondents’ care.
[9] Further, the Society was worried that the arguing between these Respondents and the episodes of “rage” that K.T. had experienced during these times had been occurring more frequently and were impacting the child.
[10] The Society’s supporting affidavits outline the number of involvements these Respondents have had with the OPS. There is a history of domestic conflict that has resulted in both being charged criminally at various times. They were required to complete the “New Directions” program as a condition of their criminal charges. They were also connected to services through community collaterals.
[11] Throughout the Society’s involvement, there have also been multiple reports of domestic violence between these Respondents occurring in the child's presence which led to the involvement of the OPS. Their arguing has escalated at times to yelling, holes being punched into the walls, doors being slammed, and occasionally having furniture being used to barricade areas of the apartment.
[12] In addition, E.M. reported to the Society in December 2021 that K.T. had allegedly punched E.M. in the face. In February 2022, K.T. reported being afraid of E.M and that E.M. reported that K.T. had stopped taking prescribed medications abruptly without consulting the medical provider.
[13] While the Society is concerned with the pattern of domestic conflict, the mental health of both K. T. and E.M. is stated as one of the Society’s biggest concerns, as neither of them appears to be able to manage their anger.
[14] The Society claims that these Respondents have at times been involved with various medical professionals at Primrose, including Dr. Jardine and Dr. Duek, who work primarily with K.T.; Dr. Druce, who works with E.M.; and Tonya Shimizu, a Nurse Practitioner who works with these Respondents and the child.
[15] Both K.T. and E.M. have filed affidavits in opposition to the Society’s motion for production of their medical records. They have both testified that the disclosure of the medial records is highly intrusive and would cause them a significant amount of emotional distress.
[16] Both these Respondents are trans, and their course of care and treatment with their medical team is said to be complex and highly personal in nature. It includes information which is fundamental to their identities.
[17] In addition, they state that piercing the confidentiality of the therapeutic relationship between these Respondents and their medical team would undermine the trust and safety on which that relationship depends. It is fundamental to the maintenance of their mental health that they have a safe and private space where they can feel comfortable discussing their medical issues and treatment options.
[18] K.T. states that both Dr. Jardine and Dr. Duek are endocrinologists, and the course of consultation and treatment with them has not involved significant mental health treatment. The same applies for E.M. in respect of Dr. Druce, also an endocrinologist. Neither has received significant mental health treatment from Ms. Shimizu.
[19] K.T. has identified the primary areas of treatment which has been discussed with the medical team and which has involved blood work, hormone monitoring and treatment, treatment related to cerebral palsy, treatment for asthma, pain management, and treatment related to a central processing auditory disorder.
[20] As for E.M., the primary areas of care have been blood work, hormone monitoring and treatment, treatment for asthma, pain management, and an ankle break.
[21] The evidence is that these areas of treatment comprise the overwhelming majority of the medical history which would be disclosed.
The Law
[22] Subsections 130(3)- (4) of the CYFSA provides for disclosure of third-party records in the following manner:
130(3) Where the court is satisfied that a record or part of a record (...) contains information that may be relevant to a proceeding under this Part and that the person in possession or control of the record has refused to permit a Director or the society to inspect it, the court may order that the person in possession or control of the record produce it or a specified part of it for inspection and copying by the Director, by the society or by the court.
130(4) Where the court is satisfied that a record or part of a record (...) may be relevant to assessing compliance with one of the following and that the person in possession or control of the record has refused to permit a Director or the society to inspect it, the court may order that the person in possession or control of the record produce it or a specified part of it for inspection and copying by the Director, by the society or by the court.
[23] Furthermore, Rule 19(11) of the Family Law Rules, O. Reg. 114/99, states that:
Document in Non-Party’s control
19(11) 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,
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
order that a copy by prepared and used for all purposes of the case instead of the original.
[24] The principles from the case law presented to the court can be summarized as follows:
a. In Jewish Family and Child Service of Greater Toronto v. H.B.S.., 2012 ONCJ 663 at para 105-108, Justice Sherr set out the relevant test as follows:
i. The test for the production of a record is set out in s. 74(3). The court must be satisfied that a record "... contains information that may be relevant to a proceeding under this Part ..."
The phrase "may be relevant" is not an onerous test; a society requires full disclosure to properly meet its mandate to investigate protection.
b. In Children’s Aid Society of Ottawa v. D.M., 2019 ONSC 7509, Justice MacEachern highlighted that the test is not an onerous one but that at the same time, it is discretionary to be exercised to promote the best interest, protection and well-being of children.
c. In considering whether to exercise the discretion to produce medical records, the court must also consider that given their mandate, Children’s Aid Societies are not ordinary private litigants given that they must often articulate concerns that originate from actions that may not occur in public: see Children’s Aid Society of Algoma v. D.P., 2007 CanLII 39363 (ON SC), [2007] O.J. No. 3601 (S.C.), at para. 14.
d. In exercising its discretion in the context of a production motion under s. 74 of the CFSA, the court must take into consideration any public policy or privacy interests that may militate against ordering production of the documents that the Society is requesting: see Children’s Aid Society of Thunder Bay (District) v. D.(S.), 2011 ONCJ 100.
e. Courts have reinforced the importance of protecting personal privacy and this has been applied to child protection disclosure cases: Children’s Aid Society of Algoma v. D.P.
f. A party who raises concerns about privacy interests in the context of a production motion cannot simply raise the specter of possible harm in defence of the motion. Concerns about the impact of impinging on privacy interests will only form part of the analysis under s. 74(3) if there is an evidentiary basis to support those concerns: see: Catholic Children’s Aid Society of Hamilton v. L.K., M.T. and W.T., 2016 CanLII 15148 (Ont. S.C.), at para. 12.
Analysis
[25] I begin my analysis by considering the pleadings in this matter and there is no doubt that the Society has made the mental and emotional health of these Respondents as one of the primary protection concerns. Also, the evidentiary record supports the Society’s concerns that these Respondents may not have their emotional health well enough under control and there may be anger management issues.
[26] In addition, the Society’s concerns extended to episodes of “rage” by K.T. and how these were impacting on the child.
[27] However, a distinction should be made between mental health issues and issues surrounding emotional health or anger management. These are not simply catch phrases that can be put forward in every partner violence case. Here, the OPS records will be produced and the instances where the OPS was involved will shed light on the violence issues. They may also provide insight on the issue of emotional outbursts.
[28] When the court considers these Respondents’ ability to regulate their emotions, there is no evidence that they received specific treatment in the area of anger management. The treatment received from Primrose involves hormone monitoring and treatment. This may be associated with the regulation of emotions but in the context of gender identity, it is more likely associated with the gender identification treatment. There is no evidence that the focus was on anger management or similar emotional health treatment. Essentially, the Society hopes that the medical records may contain something related to emotional health in the hormone treatment which appears to be part of the gender identity process. This is clearly a factor that distinguishes this case from others and that must be considered when weighing privacy interests.
[29] Does the treatment received from an endocrinologist automatically become possibly relevant in a case of partner violence to the extent that medical records must be produced? I think not.
[30] Turning to the issue of mental health, there is no evidentiary basis to suggest that any of the medical practitioners treated these Respondents for significant mental health issues. None of the practitioners have been identified as specialists in the area of mental health. Both these Respondents have stated in their affidavits that they have not received significant mental health treatment from the practitioners at Primrose. It leaves the door open to some mental health treatment being received. However, at best, it would be some mental health treatment from medical practitioners who are not specialists in the field of mental health treatment.
[31] I contrast this factual situation with the facts in two of the cases I have been referred to:
a. In Children’s Aid Soceity of London and Middlesex v. T.R., where the mother in that case had had mental health diagnoses and that she had suffered from depression, anxiety and panic attacks and had been diagnosed with “major depressive disorder, post-traumatic stress disorder and anxiety disorder. She had been seen by a psychiatrist.
b. In Children’s Aid Society of Ottawa v. D.M., the mother had had a psychotic episode and then several mental health admissions. There was a clear diagnosis of mental illness.
[32] Here, issues of mental health have not been identified in the medical history of these Respondents. The evidence does not suggest treatment from a psychologist or psychiatrist or other mental health practitioner. There is no evidence of a mental health diagnosis. The hope is that their endocrinologist or other medical practitioner would have provided some basic treatment for mental health issues or potentially commented on mental health issues. While I am not prepared to label this as a fishing expedition given the negative connotation attributed to the expression, it is a bit of a shot in the dark that is not supported in the evidentiary record in terms of mental health issues.
[33] Returning to emotional health, this issue finds more support in the evidentiary record. The records from the OPS may shed light on this issue and I do not foreclose the possibility that the police records may increase the relevance of the medical records.
[34] I have also considered the possibility of narrowing the relief requested to mental health records as was the case in Children’s Aid Society of Ottawa v. D.M., I have also considered the possibility of treating this motion in a similar fashion as an O’Connor application in a criminal context where the judge reviews the relevant records to determine what ought to be disclosed.
[35] However, having considered all the circumstances, I am of the view that the Society’s disclosure motion should be dismissed for the following reasons:
a. The motion is framed in a manner that is far too broad. To request all the medical records for these Respondents who have a history of seeking treatments surrounding their gender identity is not justifiable. In addition, how can the Society justify requesting records that may relate to an ankle injury or cerebral palsy? Even if the request was solely for mental health records, my view would not change based on the record before me. The Society is seeking records from treatments that are not principally related to mental health or anger management to see if these issues have come up along the way.
b. There is no nexus between the evidentiary record and concerns about these Respondent’s mental health. There is no evidence of a diagnosis. Here, the evidence is surrounding violence, aggressive behaviour and aggressive outbursts. There is no link to diagnosed or documented mental health issues. Not all cases of violence and aggressive behaviour find their roots in mental health issues.
c. In terms of regulation of emotional health, there are more parallels with the issue of hormone therapy, but even there, the link must be stronger to justify such an intrusion into the patient-doctor relationship. The Society hopes to find something to establish that link whereas I am of the view that the evidence of specific treatment for anger management or mental health issues must be established in order to justify revealing the totality of one’s medical records.
d. These Respondents are in a particularly vulnerable position when it comes to the release of their medical records. The process of working with an endocrinologist for the purpose of hormone treatment to allow a person to self-identify as they choose is a particular situation. It is not a common occurrence in our society and the patient-doctor relationship is one that should be protected where possible.
e. I accept the evidence of K.T. that the course of care and treatment with their medical team is complex and highly personal in nature. They have provided a solid evidentiary basis to support their concerns that the disclosure of their medical records will impinge on their privacy interests and cause damage to their therapeutic relationships. These relationships also benefit the child. Damaging the therapeutic relationships may negatively impact the child and these Respondents’ ability to care for the child.
f. The evidence does not suggest that any of these medical practitioners specialise in mental health or anger management. The evidence suggest that the endocrinologists would have provided hormone monitoring and treatment and that there may have been a more limited mental health element. This is far from establishing that there would be evidence concerning mental health or anger management that may be relevant. Even the low threshold of “may be relevant” is not met.
g. The bulk of the evidence surrounding the Society’s concerns turns on incidents of reported physical violence and emotional outbursts. The OPS records will be released and will shed light on these incidents. Also, some of the medical practitioners from Primrose will be called as witnesses at trial. This is an issue that may be explored at trial if the relevance of the medical records becomes more evident. The trial judge may allow the Society to question those witnesses on the mental health or emotional health treatment received.
h. When considering if it would be unfair to have the matter proceed to trial without the medical records, I cannot make such a finding. The police records will shed light on the instances of conflict and the medical practitioners will be able to testify at trial on mental and emotional health treatment. The court is mindful that these practitioners are not mental health experts.
i. At this point, there is not a sufficient link between the instances of violence and aggression reported and mental or emotional health treatment that could warrant disclosing the medical records.
j. I appreciate that the Society would like to know if there are medical records that relate to mental and emotional health treatment. However, given the particular nature of the treatment received at Primrose, and specifically from the endocrinologist, the prejudice to these Respondents outweighs the benefit to the Society of having these issues disclosed in advance. These topics can be explored at trial with the medical practitioners rather than have their full medical records disclosed at this point.
k. Finally, the court considers the need to promote the best interests, protection and well-being of children. I believe that allowing these Respondents to maintain the sanctity of their patient-doctor relationships and continuing to have a transparent relationship with the medical practitioners is essential to their ongoing treatments and is in the child’s best interests. It puts them in the best position to address the Society’s protection concerns and to eventually allow the trial judge to assess their progress, if any.
Conclusion
[36] For all the above reasons, the Society’s motion for production of medical records is dismissed with a right to renew it at trial based on the information received from the police records or the evidence at trial, at the discretion of the trial judge.
Justice Marc R. Labrosse
Released: December 1, 2022
COURT FILE NO.: FC-16-2381-1
DATE: 2022/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017 c. 14, Sched. 1.
AND IN THE MATTER OF AND IN THE MATTER OF J.W. born xxxxx x, 2020
BETWEEN:
Children’s Aid Society of Ottawa
Applicant
– and –
K.T.
Respondent Father
– and –
E.M.
Respondent Mother
J.A.H.W.
Respondent
REASONS FOR JUDGMENT
Labrosse J.
Released: December 1, 2022