WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO.: FC-22-CP52
DATE: 2023/02/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
L.M.J. (Mother)
R.E. (Father)
Respondents
Brian Fisher, for the Applicant
Maryn Marsland, for the Respondent Mother
Respondent Father, Self-Represented
Cheryl Hess, for the OCL
HEARD: February 7, 2023
decision
MacEachern J.
[1] The Children’s Aid Society of Ottawa (the “Society”) brings a motion seeking production under s.130 of the CYFSA of third-party medical records related to the Respondent Mother, L.M.J. The Mother opposes this motion.
[2] The Respondent Father, R.E., supports the Society’s motion. The Office of the Children’s Lawyer (“OCL”) takes no position on the motion but confirms that the child's wish is to return to her mother’s care. The Society’s position is that they seek the records because they are trying to develop an appropriate safety plan so that the child can be returned to the mother’s care.
[3] This motion was originally scheduled to be heard on December 8th, 2022. It was adjourned to January 18th, 2023, to allow the mother more time to file responding material. It was then adjourned to today's date to allow the mother time to retain counsel.
[4] This motion was brought on notice to the third-party record keepers. The record keepers take no position on this motion and did not file any material or make submissions.
[5] I find that the records sought by the Society meet the threshold test that they “may be relevant” to the issues in this proceeding. I find that the records are likely relevant to a central issue in these proceedings – the mother’s mental health and the impact on any risk to the child - and should be produced. I do not find that there is a basis to exercise my discretion to not order the production of these records. I am therefore ordering the production of these records with the exception of two changes. The first is to limit the production of records to the period after April 1st, 2019. The second is to limit the production to records related to the mother's mental health.
[6] I have added these two modifications because the evidence before me speaks to the mother having mental health issues from April 2019 forward and the Society is clear in its request that they are seeking these records because they believe they relate to the mother's mental health. I do not find that there is a basis to order the disclosure of records prior to April of 2019 or records that do not relate to the mother's mental health.
[7] The Society's motion is brought within its Protection Application, commenced on July 19th, 2022, which arises from concerns about the mother's mental health, including whether the mother is taking prescribed medication and has an appropriate safety plan. The Society's position is that there is a risk that the child is or is likely to suffer physical harm (s.74(2)(b)(i) and (ii)) and emotional harm (s.72(2)(h)). The mother opposes the Society's Application and seeks the return of the child to her care.
[8] On August 22nd, 2022, Justice Engelking made a temporary without prejudice order placing the child, now age 7, in the care of her maternal grandmother.
[9] In April of 2019, the mother was hospitalised at the Ottawa Hospital. There is evidence before me that this hospitalization was involuntary and under the Mental Health Act.
[10] The mother acknowledges being diagnosed with bipolar disorder. It appears this diagnosis originated with this April 2019 hospitalization, but this is not clear on the evidence before me.
[11] The mother disputes the bipolar diagnosis. She denies having a mental health episode in April of 2019 and states that she was, rather, having a reaction to a legitimate fear arising from the father’s conduct.
[12] The mother acknowledges being prescribed medication during the April 2019 hospitalization, and at other times, that appear to relate to mental health concerns. The mother acknowledges not taking the prescribed medication after initial periods. Her position is that she did not experiences any benefits from the medication.
[13] The mother has had subsequent hospitalizations related to mental health concerns, which have included concerns that she has not been taking prescribed medication. The mother denies that these hospitalizations related to her having mental health episodes. Her position is that they arose when she was involved in incidents where she experienced anti-black racism and was only hospitalized (apparently on an involuntary basis under the Mental Health Act) because of the incorrect historical diagnosis of bipolar disorder that was flagged by the police.
[14] The mother acknowledges hospitalization related to mental health concerns, which she denies, at the Ottawa hospital, the Montfort hospital, and the Queensway Carleton hospital. Doctor Poitras is the mother's family doctor.
[15] The test for production of records under s.130 of the CYFSA is not an onerous one. All that is required is that the records may be relevant to the proceeding or Society’s investigation, upon which the court may order the production. The evidence before me supports that the records sought by the Society may be relevant to this proceeding and their investigation, in that they may be relevant to the mother’s mental health, and concerns about the mother’s mental health, including prescribed medication.
[16] The records are also relevant to the mother’s position, which is that she does not have mental health issues, has been incorrectly diagnosed, and that further incidents are due to reliance on this historical incorrect diagnosis, and anti-black racism. This may be the case, but these records “may be relevant”, and most likely are relevant, to the assessment of whether this is so.
[17] In response to the specific arguments raised by the mother, I make the following comments:
The mother argues that the April 2019 records (Ottawa Hospital) are not relevant because they are from April of 2019, being almost four years ago. I do not accept this argument. The mother herself argues that the subsequent hospitalizations were related to the April 2019 hospitalization, in that they flowed from what she argues is an incorrect diagnosis related to the April 2019 incident. The April 2019 records meet the threshold of relevancy for production in this proceeding.
The mother argues that I should exercise my discretion to not order the production of these records because there is nothing to be gained from these records and much to be lost. I have weighed that the records being sought contain private information about the mother. I do not accept this argument given the importance of the protection interests at stake in this matter and that the concerns about the mother’s mental health are central to these proceedings.
The mother argues that she has already provided all of the records relevant to the status of her mental health. I disagree. I accept that the mother has provided all of the records that she thinks are relevant to her mental health, but this does not limit the production of other records that “may be relevant” which I find is the case here. This includes, for example, that the mother has only provided two pages from the discharge report from Montfort hospital, when the report notes that it is made up of 4 pages. The missing pages of this report may be relevant to this proceeding and should be produced, as well as the other records ordered below.
I have weighed the mother’s position that the disclosure of these records will dissuade her from seeking professional support. The mother has not provided evidence from a professional that the release of the records would be contrary to any recommended treatment for her, or otherwise cause her harm. I have considered the private nature of these records. But it appears that the mother is already reluctant to engage with professionals, and I do not see that the release of these records will significantly aggravate this reluctance. I do not find that this factor outweighs the interest in ensuring that relevant information regarding the mother’s mental health is available to this proceeding and to the Society’s investigation.
The mother raises concerns about disclosure of these records to the Respondent Father because she believes that he will use this information to damage her reputation in the community. The Respondent Father did not file evidence on this motion but made submissions denying that he had communicated or will communicate such information to the community. I note that at this point, under s.130, the records will only be released to the Society. Whether or not the Society subsequently discloses the records within this proceeding will be based on their obligations under the Family Law Rules and other applicable law. I remind all of the parties that the CYFSA includes provisions restricting publication of information about these proceedings that would identify the child or a parent of a child (section 87(8), 87(9) and (142(3)).
[18] Given the above reasons, I make the following orders pursuant to the Child, Youth and Family Services Act:
Doctor Jacqueline Poitras shall produce to the Society all records and notes in her control regarding L.M.J. (DOB: *1984) for the period from April 1st, 2019, to present, related to L.M.J.’s mental health, including but not restricted to any assessments, notes and summaries
The Ottawa Hospital shall produce to the Society all records and notes in her control regarding L.M.J. (DOB: * 1984) for the period from April 1st, 2019 to present, related to L.M.J.’s mental health, including but not restricted to any assessments, notes and summaries
The Montfort Hospital shall produce to the Society all records and notes in her control regarding L.M.J. (DOB:* 1984) for the period from April 1st, 2019 to present, related to L.M.J.’s mental health, including but not restricted to any assessments, notes and summaries
The Queensway Carleton hospital shall produce to the Society all records and notes in her control regarding L.M.J.’s (DOB: * 1984) for the period from April 1st, 2019 to present, related to L.M.J.’s mental health, including but not restricted to any assessments, notes and summaries
[19] The Society may provide me with an unredacted draft order including the mother’s full name and birthdate for my approval and signature.
Justice P. MacEachern
Released: February 8, 2023
COURT FILE NO.: FC-22-CP
DATE: 2023/02/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
L.M.J. (Mother)
R.E. (Father)
Respondents
decision
MacEachern J.
Released: February 8, 2023