WARNING

This is a case under the Child, Youth and Family Services Act, 2017, and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both

WARNING

THIS IS A PROCEEDING WHICH INVOLVES REFERENCE

TO PROCEEDINGS UNDER THE

YOUTH CRIMINAL JUSTICE ACT, 2002, c. 1.

THESE PROCEEDINGS ARE SUBJECT TO S. 110, 111, 118, 129 AND 138

OF THE

ACT WHICH PROVIDE:

110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

118 (1) Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act.

129 No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless the disclosure is authorized under this Act.

138. (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published)…,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court File and Parties

COURT FILE NO.: FC-19-394-001 DATE: 2023-06-05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children’s Aid Society of the Regional Municipality of Waterloo, Applicant

AND:

S.M., Respondent C.A.V., Respondent B.T.W., Respondent

BEFORE: Justice M. Tweedie

COUNSEL: Charu Smith, Counsel for the Applicant Anna Towlson, Counsel for the Respondent S.M. Shuchanna Swaby, OCL for child D.M.W. Phaedra Klodner, OCL for child R.M.V.

HEARD: March 16, 2023

Endorsement

[1] On March 16, 2023, a motion was argued before me relating to certain Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), records and Children’s Aid Society (the “Society”) records of the child, D.M.W.

Background:

[2] The family constellation in this matter is as follows:

a. S.M., mother (“the mother”);

b. D.M.W., child, age 17 at the time of the motion (“D.”);

c. R.M.V., child, age 15 at the time of the motion (“R.”);

d. B.T.W., D.M.W.’s father;

e. C.A.V., R.M.V.’s father;

f. Service upon B.T.W. and C.A.V. was dispensed with by order of the court on September 14, 2021.

g. M.C., kin caregiver to the boys, D. and R. Following a family tragedy, the mother and the children moved in with their male friend, M.C., in or around July 2017. The mother and M.C. were briefly romantically involved, and the mother later left the home in December 2018 while the children have remained in M.C.’s care since then.

[3] On December 15, 2020, D. and R. (“the children”) were found to be in need of protection pursuant to s. 74(2) (f) and (h) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 (“CYFSA”) (child has suffered emotional harm and there is a risk the child is likely to suffer emotional harm) and placed in the care of M.C. subject to Society supervision for a period of nine months. This order was made on the consent of the mother, who signed a Statement of Agreed Facts.

[4] The current application before the court is a Status Review Application originally returnable on September 14, 2021, in which the Society seeks an order pursuant to s.102 of the CYFSA placing D. and R. in the custody of M.C. The mother has served and filed an Answer. In it, she indicates that she did not have knowledge of D.’s criminal charges, information that would be relevant to the proceedings and important for the formulation of her Answer.

[5] The Society served and filed the affidavit of Eileen Radford, ongoing service worker, sworn July 28, 2021, in support of the current Status Review Application. The affidavit contains the following statement: “[M. C.] has been supporting [D.] in a criminal matter that he is dealing with…”

[6] Although D. was arrested on May 25, 2020 (which I note is prior to the final order of December 15, 2020), the statement in Ms. Radford’s affidavit was the first notice that the mother and the court had regarding D.’s criminal charges. After the affidavit was served and filed, the Society advised the mother’s counsel that it had erred in including the statement referring to the youth criminal charges in the affidavit, and ultimately obtained an order to remove that statement from the affidavit filed with the court. The Society and the Office of the Children’s Lawyer (“OCL”) refused to provide any further information to the mother regarding the date(s), nature, number of offences, or any information relating to interactions between the Society, M.C., and the children about the charges.

[7] The mother brought a motion in the Ontario Court of Justice seeking access to D.’s youth court records and records of the Waterloo Regional Police Service’s (“WRPS”) involvement with D. This motion was heard on March 30, 2022, and May 5, 2022.

[8] WRPS did not oppose the motion, provided that a YCJA order be issued together with a Superior Court of Justice Production Order with specific terms. The Crown agreed to disclose the Crown Brief Synopsis, with the right to redact information prior to disclosure and to make submissions on or participate in the drafting of the disclosure order.

[9] The OCL for D. and the Society opposed the motion. The OCL and the Society argued that the mother was not a “parent” within the meaning of the YCJA, that disclosure of the YCJA records was not in the interest of the proper administration of justice, and that the mother had failed to establish a sufficient connection between the material sought and any material issues in the Status Review Application.

[10] The mother argued that she was still a parent within the meaning of the YCJA and CYFSA, and that, to properly respond to the Status Review Application, it was imperative that she have access to information pertaining to major events that occurred in D.’s life while in the care of M.C.

[11] Justice Parry released his decision on May 10, 2022. Justice Parry found that:

a. the mother met the definition of a parent under the YCJA;

b. the records are likely relevant to the issues to be considered in the Status Review Application;

c. the mother, having standing in the Status Review Application, has the right to scrutinize the conclusions and recommendations of the Society;

d. the Society needed to know about D.’s criminal charges to properly assess the care provided to D. by M.C., and therefore the mother is entitled to know the information reviewed by the Society in its assessment of the placement.

[12] Justice Parry’s order is as follows:

1. THIS COURT ORDERS that the Applicant and her counsel shall have access to records kept by the Youth Justice Court in accordance with s. 114 of the Act, including but not limited to the Information, trial transcripts/recordings, any trial and sentencing exhibits and pursuant to s. 119(1)(e) of the Act.

2. THIS COURT FURTHER ORDERS that the Ministry of the Attorney General, Criminal Law Division, will produce to the Ministry of the Attorney General, Crown Law Office Civil, the Crown Brief Synopsis relating to the prosecution of D.M.W., a young person, in respect of the incident which occurred on February 1 or 2, 2020 in the City of Kitchener in the Regional Municipality of Waterloo, a record kept under section 116 of the Act, for the purposes of vetting the Crown Brief Synopsis in accordance with the principles outlined in D.P. v. Wagg, 2004 ONCA 39048, [2004] O.J. No. 2053 (C.A.) (“Wagg”) and sections 110 and 111 of the Act.

3. THIS COURT FURTHER ORDERS that the Applicant and Applicant’s counsel shall gain access to the record described in paragraph 2 once vetted by the Ministry of the Attorney General but may not copy or further disclose the content of the records described in paragraphs 1 and 2 except pursuant to a further order of the Superior Court of Justice in the child protection matter, being Court File No. FC-19-394 (the “child protection matter”), obtained by motion on notice to the Ministry of the Attorney General for Ontario, Crown Law Office Civil, in accordance with the decision of the Ontario Court of Appeal in D.P. v. Wagg, 2004 ONCA 39048, [2004] O.J. No. 2053, in the terms similar to those prescribed by sections 110 and 111 of the Act.

4. THIS COURT FURTHER ORDERS that the Applicant or her counsel may disclose the fact of the existence of the records described in paragraphs 1 and 2 and identify the charges laid against D.M.W. and their disposition to the Superior Court of Justice in the child protection matter for the purpose of bringing the motion referred to in paragraph 3 hereof.

5. THIS COURT FURTHER ORDERS that counsel for the Ministry of the Attorney General for Ontario, Crown Law Office Civil will disclose a copy of the record described in paragraph 2 hereof to the Superior Court of Justice under seal in the child protection matter for consideration of the Superior Court of Justice in the motion referred to in paragraph 3 hereof.

6. THIS COURT FURTHER ORDERS that subject to the provisions of paragraph 3 hereof, and in accordance with Sections 119(1) (s) and 129 of the Youth Criminal Justice Act, the Applicant’s counsel be permitted to copy and produce the records described in paragraphs 1 and 2 only to counsel for the other parties to the child protection matter, counsel for the Child/ren and the Superior Court of Justice hearing the child protection matter, and thereafter, the materials described shall only be possessed by counsel involved in the child protection matter and the Superior Court of Justice hearing the child protection matter and shall only be used by counsel for and in that matter and for no other purposes whatsoever.

7. THIS COURT FURTHER ORDERS that subject to the provisions of paragraphs 3, 4, 5 and 6 above, counsel for the parties and for the Child/ren in the child protection matter shall not disclose the contents or provide a copy of the materials described in paragraph 2 to any other person, including the parties, the Child/ren (other than D.M.W. who has a right to access the materials described in paragraph 2 pursuant to section 124 of the Youth Criminal Justice Act) and any witnesses involved in the child protection matter.

8. THIS COURT FURTHER ORDERS that the conditions set out in paragraphs 7 herein shall remain in full force until the earlier of:

(a) The conclusion of the criminal proceeding referred to in paragraph 2 herein, including any appeals and/or retrials;

(b) The Attorney General provides written consent otherwise; or,

(c) The court orders otherwise, on motion obtained on notice to the Attorney General.

9. THIS COURT ORDERS that a further condition precedent to disclosure of and access to the records in the related child protection matter is that the following warning be inserted into the court file maintained in respect of the related child protection matter:

WARNING

THIS IS A PROCEEDING WHICH INVOLVES REFERENCE

TO PROCEEDINGS UNDER THE

YOUTH CRIMINAL JUSTICE ACT, 2002, c. 1.

THESE PROCEEDINGS ARE SUBJECT TO S. 110, 111, 118, 129 AND 138

OF THE

ACT WHICH PROVIDE:

110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

118 (1) Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act.

129 No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless the disclosure is authorized under this Act.

138. (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published)…,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

[13] This motion first came before me on August 31, 2022. On consent of the parties and the Crown, I granted an order that the mother may share the Crown Brief Synopsis and other documents obtained as a result of the order of Parry J. and that the parties were to secure a date for the argument of the motion once all documents had been received. At that time, the mother had not yet received the Society’s disclosure, and the mother was concerned the Society would redact any reference to D.’s charges and youth court involvement from its records. Consequently, I also ordered that the mother would be able to bring a motion regarding the content of the Society’s disclosure concurrently with the motion regarding use of the YCJA records.

[14] Instead of addressing the CAS disclosure in a motion before this court, the mother made a supplementary application to the youth court for an order that the Society disclose unredacted notes containing D.’s youth court records to counsel for the parties and to the Superior Court for the purposes of review, argument, and a decision before the Family Court on the question of the use of the YCJA information in the child protection proceeding. The Society and the OCL consented to this application and an order was granted on consent by Parry J. on November 3, 2022. For reasons I provide below, this application was unnecessary.

[15] The matter now comes before me to make orders regarding the use of D.’s youth criminal justice information within the child protection proceeding. The Crown and WRPS did not attend and take no position. The Society takes no position. The OCL is opposed to the use of youth criminal justice information.

Need for Fulsome Information Before the Court

[16] The paramount purpose of the CYFSA is to promote the best interests, protection, and well-being of children. See: s. 1(1) of the CYFSA.

[17] Section 1(2) of the CYFSA also provides that an additional purpose of the Act is to recognize that “appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families” so long as it is consistent with the best interests, protection, and well-being of children.

[18] Section 74(3) (c) of the CYFSA provides that, when making an order or determination in the best interests of a child, the court shall consider any other circumstance of the case that the court considers relevant, including:

(i) The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) The child’s physical, mental and emotional level of development,

(viii) The merits of a plan for the child’s care proposed by a society…compared with the merits of the child remaining with or returning to a parent.

[19] To uphold the paramount purpose of the CYFSA and make proper determinations in the best interests of children, it is imperative that the court has all relevant information regarding the children and the individuals who are presenting plans to care for the children. This includes information relating to the youth criminal justice involvement of a child before the court.

[20] Details of a young person’s involvement with the criminal justice system are critical in the provision of services to a child. The information is relevant to understand the child’s needs; whether mental health, other psychological or trauma factors are contributing to the child’s interaction with the criminal justice system; what, if any, services the child should be referred to; what type of parenting is required to meet those needs; whether the child’s caregivers are meeting those needs or require support to meet those needs.

[21] In his May 10, 2022, decision granting the mother access to the YCJA records, Parry J. states, at para. 24:

A child’s criminal conduct is a fundamental metric by which to measure a child’s welfare. A child’s welfare is likely to provide circumstantial evidence by which the parties and the court can gauge the quality of the guardian’s moral and psychological guidance of the child and the quality of the guardian’s supervision of the child.

[22] Further, in the application before Parry J., counsel for the Society agreed that the Society needed to know information about D.’s criminal charges before making an informed decision about the ongoing suitability of the placement with M.C.

[23] Justice Parry then noted at para. 23:

Why, then, should [the mother] be deprived of access to information that F&CS considered necessary to its assessment of D.M.W.’s placement? She is the child’s parent. She has standing in the proceedings. As a result of her standing, she has the right to scrutinize the conclusions and recommendations of F&CS. She cannot do so unless she has access to information relied upon by F&CS to formulate their conclusions and recommendations.

[24] I take the comments of Parry J. to the next logical step: if the mother has a right of access to information about youth criminal involvement because she has the right to scrutinize the conclusions and recommendations of the Society, then she also has the right, as a party to the child protection proceedings, to use that information in the proceedings before the court hearing the child protection matter.

[25] In the case at bar, the original Protection Application was before the court between September 2019 and December 2020. The Statement of Agreed Facts signed by the parties in support of the final order granted on December 15, 2020, at para. 4.1.19 states:

On May 17, 2019, the ongoing worker was informed by the kin home assessor, Tiffany Delsaut, that she had some ‘red flags’ around boundary concerns with M.C. and D., M.C.’s motivation to care for the boys, information that other members of the home have provided (D. sleeping in the same bed as M.C.), and that she requested an internal meeting to discuss concerns before approving the home assessment and M.C. to formally become a kin/kith caregiver. The assessment was approved shortly after, and it was decided that the Society would have ongoing conversations about healthy relationships and body safety with M.C. and the boys.

[26] The mother attests that she also raised concerns about boundaries in the home of M.C. The mother was unaware of the offence D. was charged and convicted of until she received access to the YCJA records.

[27] The YCJA records show that on May 25, 2020, D. was charged with sexual interference under s.151 of the Criminal Code, R.S.C. 1985, c. C-46. While youth criminal involvement is inherently relevant and necessary information in the determination of the best interests of children, in this case, the nature of the offence D. was charged, and ultimately convicted of, is relevant to the assessment of M.C. as an appropriate caregiver, particularly in the context of the concerns voiced by the mother and the kin home assessor. Even though the Society assessed the concerns and determined that the placement was appropriate, that does not negate the mother’s right to challenge that assessment and the court’s obligation to scrutinize it.

[28] To summarize, the details about a child’s involvement with the youth criminal justice system is relevant to the determination of whether a child is in need of or continues to be in need of protection, and to the determination as to what disposition is in the child’s best interests. It is imperative that the information is shared with the parties to the proceedings and is ultimately brought to the court’s attention.

Distinction Between Youth Court Records and Child Protection Records

[29] If an individual seeks access to a YCJA record, there is a very specific legislative scheme setting out who has rights of access, when they are entitled to that access, and the pathway to obtain an order from a youth court granting access.

[30] However, records kept by a child protection agency, and information noted by a protection worker or agent of the Society therein regarding a young person’s youth criminal justice involvement, does not constitute a record as contemplated by the YCJA. Therefore, it is unnecessary to seek an order from a youth court regarding the use of those records.

[31] Section 2 of the YCJA defines a record as follows:

Record includes any thing containing information, regardless of its physical form or characteristics, including microform, sound recording, videotape, machine-readable record, and any copy of any of those things, that is created or kept for the purposes of this Act or for the investigation of an offence that is or could be prosecuted under this Act. [emphasis added]

[32] The records of a child protection agency are not created nor kept for the purposes of the YCJA. They are created and kept for the purposes of the CYFSA.

[33] In fact, the only authority allowing a child protection agency to collect and keep information is pursuant to the CYFSA, its Regulations, and the Ontario Child Protection Standards (2016) (“the Standards”).

[34] There are several reasons there is a requirement to keep these records, some of which are:

a. To keep a fulsome record of services provided to, and interactions with, various family and community members, to which all CAS employees may reference to ensure continuity of service;

b. To have a record of all the information that the Society uses for the provision of its ongoing assessment of services to the individual to whom the record relates;

c. To have a record for ministry oversight purposes;

d. To have a record for court oversight purposes;

e. To have a record for members of the family to access, in order to properly respond to the Society’s intervention, be it through a complaint to the Child and Family Services Review Board, through their Answer to a court Application, or to respond to allegations made regarding parenting during voluntary involvement;

f. To have a record of important events and decisions in the lives of children, so that they may know and understand their life story once they are adults, if they desire.

[35] Pursuant to section G of the Standards, entitled “Standards for All Phases of Child Protection Service Delivery”, a child protection agency must meet the following standard:

Standard

G. Contemporaneous case notes:

The child protection worker documents detailed information about the child and his or family that is relevant to the delivery of child protection services and which is obtained through any contact, either internal or external to the CAS in contemporaneous case notes. At a minimum, contemporaneous case notes must contain:

• The date and time of contact, method of contact, and the names of the individuals involved in the contact;
• Significant events, discussions, and observations related to the particular contact; and
• The name and author of the case note [emphasis mine].

[36] As stated earlier, a young person’s involvement in the criminal justice system is a critical piece of information in the provision of services to that young person. The involvement, and discussions about it (between the Society and any individual), would be “significant”. Accordingly, a Society, pursuant to the CYFSA and Child Protection Standards, must keep detailed records of any youth criminal involvement information received and discussed.

[37] Much of the information of a young person’s youth criminal justice involvement in the Society’s records comes from the child protection workers’ involvement with the family and not from any provisions in the YCJA. Society workers attend youth court with the young person, collaborate with probation officers, meet with the family on a regular basis to obtain updates, and work in partnership with group homes where young people are placed. The information is obtained through CYFSA involvement. Therefore, the use of that information does not require a youth court order for access.

[38] Other courts have found that it is unnecessary to obtain a youth court order for the use of information relating to youth criminal justice involvement found in the records of a child protection agency.

[39] In Children’s Aid Society of Toronto v. C. (A.), 2016 ONCJ 750, Cohen J. considered an application by the Children’s Aid Society of Toronto for access to a young person’s YCJA records. Justice Cohen held that, in the interest of the proper administration of justice, access to the record was unnecessary. Justice Cohen cited that the young person “was in the care of the society throughout the years these records were accumulated, and its own records will provide direct evidence of A.C.’s interactions with the police.” See: C. (A.), at para. 78.

[40] In Native Child and Family Services of Toronto v. K.G., 2019 ONCJ 457, 28 R.F.L. (8th) 492, the OCL applied to strike several paragraphs of a Society worker’s affidavit because no order had been obtained from the youth court. Justice O’Connell did not strike any portions of the affidavit, finding that the youth court information referred to in the affidavit was information that the Native Child and Family Services of Toronto (“NCFS”) already had in its own records, based on the involvement of the Society workers. Justice O’Connell wrote:

[52] Further, NCFS is not seeking access to I.G.’s youth records kept or created under the statutory scheme established in Part 6 of the YCJA. NCFS already has this information in its own records, based on the personal knowledge and involvement of its child protection workers with I.G, as part of their child protection investigation.

[53] As noted earlier, section 2 of the YCJA defines “record” as “anything containing information, regardless of its physical form or characteristics, including microform, sound recording, videotape, machine-readable record, and any copy of any of those things, that is created or kept for the purposes of this Act or for the investigation of an offence that is or could be prosecuted under this Act.” [Emphasis added.]

[54] The information regarding I.G.’s youth criminal involvement in the society worker’s affidavits was created for the purpose of the child protection proceeding and was largely within the workers’ personal knowledge as either one or both child protection workers attended the numerous youth court justice appearances with I.G. as his legal guardian, to act as a support and resource for I.G. and to assist the youth criminal justice in understanding I.G.’s experience of trauma and risk as a child in need of protection. The child protection records are not youth criminal justice records.

[41] The Nova Scotia Court of Appeal in E.M.Y. v. Nova Scotia (Community Services), 2020 NSCA 46, 42 R.F.L. (8th) 23, adopted O’Connell J.’s analysis, as did Finlayson J. in DBCFS v. L.S.K. and B.C.F., 2022 ONSC 6176, 79 R.F.L. (8th) 281.

[42] I am gravely concerned that the Society did not disclose this information to the mother and the court during the Protection Application. The Society is an institutional litigant, seeking intrusion into the autonomy of families. It is a creation of the CYFSA, and its only authority to act comes from the CYFSA, of which the paramount purpose is to promote the best interests, protection, and well-being of children. It is incumbent upon the Society to bring to the court's attention all information relevant to the needs of the children in a timely manner. To do otherwise would belie the paramount purpose. It is my understanding that the Society has recognized and acknowledged this.

[43] Before the youth court, the Society and the OCL submitted that the mother should be limited in her ability to use youth criminal involvement because she was not presenting a plan and the children had been in the care of M.C. for a significant period of time. I disagree. The mother has the right to challenge the assessment of the Society. While she may be unable to present a plan herself, she may still challenge the s. 102 order on the basis that it is not in the children’s best interest.

[44] It is ultimately the court’s decision to determine what disposition is in the children’s best interests. That disposition is not the subject of this motion. The CYFSA requires judicial oversight of the non-consensual intrusion of the Society into the lives of families. Charter rights are at stake. Responding parties have a right, and the court has an obligation, to scrutinize the actions and assessments of the Society to ensure the primary objective of the CYFSA is met. To do this, fulsome disclosure of the Society’s records must be provided.

[45] However, the right to disclosure and use of Society records does not provide a party with unlimited rights to use the information. The information will be subject to the rules of evidence, such as: relevance, reliability, and the weighing of probative value against prejudicial effect.

[46] I do not have a complete copy of the Society disclosure for this file and therefore cannot determine the ultimate admissibility of each piece of information contained therein. Nor would it be practical to have a judge review the entire disclosure package for the purposes of determining what may or may not be used in the proceedings. The determination of proper use and admissibility of the information is a question for the judge presiding over the hearing or motion.

[47] To be clear, however, child protection records do NOT include the criminal Information (Form 2), occurrence reports, criminal undertakings, criminal release orders, assessments ordered pursuant to s. 34(1) and s. 40(1) of the YCJA, or any other documents that are produced within the context of the YCJA proceedings. A party, including the Society, is required to seek an order from a youth court for disclosure and use of those records.

[48] The process to use youth criminal justice involvement information contained in CAS records in child protection proceedings can be summarized as follows:

a. A Children’s Aid Society shall disclose its records to the parties in a proceeding, including information relating to youth criminal justice involvement, subject to its usual policy of redaction, and does not require an order from a youth court to disclose its records.

b. A Children’s Aid Society shall disclose to the court hearing the child protection proceeding relevant information contained it its records regarding a child’s youth criminal justice involvement and does not require an order from a youth court to do so.

c. A Children’s Aid Society shall disclose its possession of YCJA records (such as assessments) to the other parties but shall not disclose the record itself without a youth court order.

d. Parties shall be entitled to use the information obtained through Society disclosure for the purposes of the child protection proceedings and refer to it in their pleadings and affidavits, subject to rules of evidence.

e. Should a party object to the use of specific information in pleadings or affidavits, that party shall bring a motion in the child protection court seeking an order striking those passages.

[49] I am mindful of the submissions of the OCL regarding privacy considerations. Unfortunately, privacy is diminished for children and families once they become involved in the child protection system due to the requirement for rigorous record keeping and due to government and court oversight. This is necessary to meet the objectives of the CYFSA. However, there are significant privacy protections within the CYFSA which balance the need for privacy with the importance of a fulsome record before the court:

a. Part X has very robust provisions regarding the collection, use, disclosure, integrity, and protection of personal information.

b. Section 87 (4) states that any hearing shall be held in the absence of the public unless the court orders otherwise.

c. Section 87(8) prohibits any individual from publishing or making public any information that has the effect of identifying a child who is a witness at, or 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;

d. Section 87(10) states that only a party or a party’s lawyer shall be given a copy of a transcript of the hearing, unless the court orders otherwise.

e. Section 142(3) makes it an offence to contravene s. 87(10).

[50] Accordingly, the importance of the court having fulsome information relevant to the assessment of a child’s best interests outweighs the child’s privacy interests, bearing in mind that the child protection proceedings have privacy protections.

Use of YCJA Records

[51] If information regarding youth criminal justice involvement contained in the Society records is disclosed at the outset of proceedings, then there may be sufficient information available to the parties and to the court to determine the issues. In the event that a party wishes further information that is contained only in the YCJA records, that party may commence an application in youth court for access to the records.

[52] However, in this matter, as the Society did not disclose D.’s youth criminal involvement, the mother was unable to determine whether she had sufficient information for her purposes prior to bringing her application in youth court. As a result, the mother had to also bring her application in youth court before having complete disclosure of the Society file.

[53] As stated earlier, the Society, Crown, and WRPS take no position on this motion. The OCL, in its Statement of Law filed with the court, seeks the following orders:

a. An order dismissing the motion for production.

b. In the alternative, an order permitting the discussion of and use of limited YCJA information for and in a [Statement of Agreed Fact], as stipulated and agreed upon by D.

c. In the further alternative, if an order for production is made, a finding limiting the information produced to specific issues before the court and an order requiring that any documents to be produced, be redacted by the OCL to exclude the details of the offences from any source (witness, D., court, third party, worker, parent, victim).

[54] In his decision granting access to D.’s YCJA records to the mother, Parry J. ordered that the mother could disclose the existence of the YCJA materials to this court for the purpose of seeking leave to use those documents in the ongoing child protection proceedings, as is in accordance with the procedures and principles in D.P. v. Wagg (2004), 2004 ONCA 39048, 71 O.R. (3d) 229 (C.A.).

[55] In Wagg, the Court of Appeal clarified the screening process by which criminal disclosure materials could be obtained for use in civil and family proceedings. The Court, at para. 17, adopted the following process [emphasis added]:

The party in possession or control of the Crown brief must disclose its existence in the party's affidavit of documents and describe in general terms the nature of its contents

The party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely, the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the contents should be produced

The judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally whether "there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information”.

[56] Applying the principles in Wagg, I have already commented about the importance of youth criminal justice involvement being critically relevant to the assessment of the needs of child, and about the use of youth criminal justice information, and determined that proper administration of justice and the paramount purpose of the CYFSA overrides the OCL’s request to prohibit use of this information.

[57] Although the mother already has copies of the YCJA record, the youth court ordered that this court had the final determination as to its use in these proceedings. All parties submitted that the mother also needs to satisfy this court that these third-party records should be produced pursuant to the Family Law Rules, O. Reg. 114/99. I question that this Rule applies to all documents to which the mother has gained access. Justice Parry makes the following comments at paras. 18 and 19 of his decision:

Section 119(1)(e) provides [the mother] an unfettered right of access to all these materials. [The mother’s] Right of access to these items exists while the case against D. remains active and continues for the period of times outlined in s.119(2).

… the crown brief synopsis is not per se a record of these proceedings before the youth court…[the mother] Does not have an unfettered right to that document, pursuant to s.119(1) (e). Instead, s.119(1) Provides the record holder with the discretion to disclose the synopsis.

[58] This suggests that the only third party record contained in the YCJA records before this court is the Crown Brief Synopsis. The balance of the documents are in the mother’s possession pursuant to her unfettered right to access as identified by Parry, J., and are therefore not third party records to which Rule 19(11) applies. Her use of the documents would be only restricted by a threshold evidence test at this motion and further by the rules of evidence.

[59] However, if I am wrong with my interpretation of s.119(e) and the decision of Parry, J., I find that the same result prevails if I apply Rule 19(11) to the admissibility of each document or a threshold relevance test.

[60] Of any of the information, contained in either the Society records or the YCJA records, Rule 19(11) states the following:

Document in non-party’s control

(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,

(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

(b) order that a copy be prepared and used for all purposes of the case instead of the original.

[61] In Children’s Aid Society of Ottawa v. K.F. et al, 2022 ONSC 7269, 83 R.F.L. (8th) 147, Shelston J., at para. 25, adopted a six-part test for the production of third-party records pursuant to r. 19(11), as set out in Bailey v. Bailey, 2012 ONSC 2486:

a. The documents are in a non-party’s control.

b. The documents are available only to the non-party.

c. The documents are not protected by legal privilege.

d. It would be unfair for the party seeking the disclosure to proceed without the information sought.

e. The documents sought are relevant and necessary; and

f. Notice is provided to the non-party.

[62] In Ontario (Attorney General) v. Stavro (1995), 1995 ONCA 3509, 26 O.R. (3d) 39, the Court of Appeal set out the factors to be considered in determining whether it would be unfair to a party to go on with the case without the document. The factors are as follows:

a) the importance of the documents in the litigation;

b) whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness;

c) the position of the non-parties with respect to production;

d) the availability of the documents or their information equivalent from some other source which is accessible to the moving party; and

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

[63] I find it would be unfair for the mother to proceed without the information sought. Applying the Stavro factors, I find the following:

a. For reasons discussed above, I find the YCJA documents to be critical in this litigation.

b. This information should be disclosed at the earliest possible juncture in this litigation to make the best possible decisions in the best interests of the child.

c. The Crown, WRPS, and the Society take no position on this motion. The OCL opposes it.

d. While there may be information equivalent or sufficient in the Society disclosure, that disclosure was not provided in advance of the motion seeking production of the YCJA records. Therefore, the necessary information is not accessible to the mother.

e. The Crown and WRPS are not parties to this litigation. However, both have in their possession information and documents that are not within the possession of any of the parties to the child protection proceedings.

[64] I also find that the mother has satisfied the test under r. 19(11) of the Family Law Rules for most of the YCJA records:

a. The documents are in a non-party’s control.

b. The documents are available only to the non-party.

c. The documents are not protected by legal privilege and the youth court has granted an order declaring that it is open to this court to make a ruling on the use of the documents in these proceedings.

d. As stated above, it would be unfair for the mother to proceed without the information sought, and

e. notice was provided to the non-party.

[65] However, with respect to the consideration as to whether the documents are relevant and necessary, I do not find that all the YCJA records to which the mother was granted access are in fact relevant and necessary for the child protection proceedings.

[66] There were 13 documents in the YCJA records filed with the court for this motion. I will consider the threshold relevance and necessity of each of these documents.

a. Sentence Order and Prohibition Order dated May 18, 2022: this information is relevant as it provides the offence for which D. was convicted, the terms of the deferred custody and supervision order, the length of the deferred custody and supervision order, and terms of the prohibition order imposed on sentencing. It is important that any caregiver for D., and any individual making decisions in the best interests of D., are aware of this information so that D. can be supported in his compliance with these terms.

b. Information: this document is relevant as it sets out the charges and how frequently the matter was before the youth court. The timing of the youth court proceedings is relevant to assess the impact of the Society’s non-disclosure of the charges. The frequency of attendance is relevant to the assessment of the responsibilities of D.’s caregivers and whether a proposed caregiver is able to fulfill those responsibilities and whether M.C. did fulfill them.

c. Exhibit List: the exhibit list from the trial in youth court provides no information relevant to the assessment of the best interests of the children in these proceedings.

d. Class photo: this class photo was an exhibit in the YCJA proceedings. It is not identified and provides no information that would be relevant to the assessment of the best interests of the children in these proceedings.

e. Photograph of a cell phone “notepad”: The note is titled “what [D.] wants me to say” and expresses thoughts and feelings of D. The photo provides no information regarding the owner of the cell phone. It is double hearsay at best. I find that it provides no relevant information to the assessment of the best interests of the children in these proceedings.

f. Agreed Statement of Facts: This Agreed Statement of Facts is undated and only contains facts pertaining to preparation meetings between the Assistant Crown Attorney and the complainant/victim. It provides no information about D. or the charges to assist this court in determining the best interests of the children.

g. Pre-Sentence Report: This report provides relevant information regarding D.’s history, involvement in community services, other community services available to assist D., and recommendations for the engagement in clinical services. It also provides an assessment of D.’s needs and insights into the impact of the offence he committed. This information is directly relevant to assessing D.’s needs, whether M.C. has met those needs, and if he can do so in the future.

h. Victim Impact Statement: As stated earlier, the victim is not a subject of the child protection proceedings. It contains extremely sensitive personal information of a young person. The nature of the offence is known through the other documents I am ordering to be produced. The impact of the offence on the young victim does not provide any information that would assist the court in determining the children’s best interests.

i. Crown Brief Synopsis: while a Crown Brief Synopsis may be relevant and necessary in some cases, this matter has gone to trial, and reasons for judgment and findings of fact made by the youth court judge are available. Facts determined after the Crown’s evidence is tested through a trial are preferred to untested facts outlined in the Crown’s Synopsis.

j. Transcripts of Excerpt of Proceedings at Trial, October 28, 2021, victim’s evidence: as with the Crown Brief Synopsis, the findings of fact made by the trial judge are preferred to excerpts of the victim’s evidence.

k. Transcripts of final submissions at trial of defence counsel and the Crown, February 1, 2023: counsel submissions to a court are not evidence and are irrelevant.

l. Transcripts of Reasons for Judgment, March 25, 2022: The findings of fact made relating to the circumstances of the offence and D.’s involvement and culpability provide insight into the actions of D. and his motivation, which assists the court in assessing his needs.

m. Transcripts of Sentencing submissions by defence counsel and the Crown, and the sentencing decision, May 18, 2022: the submissions are not evidence, are irrelevant, and shall be redacted, but the judge’s sentencing decision is relevant as it provides the judge’s assessment of D.’s circumstances at the time of the offence and sentencing, and details of the sentence imposed. These are all relevant considerations in assessing D.’s needs, and M.C.’s care of D. and R.

[67] The mother also sought an order for the disclosure of the WRPS records. No specific submissions were made by the parties during this motion because all parties focused on the Society records and the YCJA records. Considering that I have ordered disclosure and use of the Society records and many of the YCJA records, I find that the WRPS records are unnecessary for a proper determination of the issues, and it would be fair for the mother to proceed without them. The reasons for judgment provide the findings of facts of the incident giving rise to the charges, and the Society records will provide information regarding discussions with significant individuals during its investigation and assessment.

[68] I am mindful that the privacy interests of the victim and other children witnesses are a consideration. In this matter, the victim was not a family member and did not live with M.C. and the children. The identity of the victim is not relevant to the issues before the court. The victim’s name, any witness other than the subject child R., their parents’ names, and any information which might identify the victim or other witnesses shall be redacted.

[69] I am not prepared to order any further redaction of the relevant documents. For the purposes of this motion, I am provided limited information and am unaware of the full landscape of the family situation. For me to make any determinations regarding the admissibility of any of the evidence, contained in either the Society records or the YCJA records, would improperly tie the hands of a conference, motion, or trial judge, and potentially deny that judge evidence which they might consider necessary for a proper determination.

[70] However, I share the OCL’s concerns regarding the potential overreach in use of the information disclosed and potential impact it will have on the children. D. has undergone a criminal trial, has been sentenced, and is working with a psychiatrist. R. is aware of some information relating to D.’s youth criminal involvement and was interviewed about it. Both children have experienced significant challenges in their lives. This litigation has continued for a significant period. I encourage the mother to be mindful of these considerations when determining what information she chooses to include in her documents.

ORDER

[71] Order as follows:

a. The Society’s disclosure shall not redact references to youth criminal involvement of D. and if not yet provided to the parties, shall be provided forthwith.

b. Any information relating to the youth criminal involvement of D. contained in the records of the Society shall be permitted to be used for the purposes of these proceedings.

c. The following YCJA records, redacted to remove the victim’s name, any witness other than the subject child R., their parents’ names, and any information which might identify the victim or other witnesses, shall be permitted to be used solely for the purposes of these proceedings:

i. The criminal Information

ii. Transcript of Reasons for Judgment

iii. Pre-sentence report

iv. Transcript of the sentencing decision

v. Sentence order and prohibition order

d. The YCJA warning, as ordered by Parry J., shall continue to be placed on this court file;

e. The CAS and YCJA records shall remain in the possession of counsel only. Parties shall only have access to these records in the presence of counsel and are prohibited from copying or possessing any portion of these records.

f. The records from WRPS shall not be produced.

Tweedie, J. Date: June 5th, 2023