Court File and Parties

COURT FILE NO.: CV-19-149 DATE: 20240118 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tammy Gibson and Shaelyn Gibson, Plaintiffs -and- Firat Beygozlu and Fatma Beygozlu, Defendants

BEFORE: Mr. Justice Graeme Mew

HEARD: 21 December 2023, at Kingston by video conference

COUNSEL: Alexander Hartwig, for the Defendants (Moving Parties) Joseph C. Dart, for the Plaintiffs (Responding Parties)

Endorsement

[1] In this personal injury action arising out of a motor vehicle accident, the defendants seek production of the complete and unredacted file of the Family and Children’s Services of Frontenac, Lennox and Addington (“FCS”) concerning the plaintiffs from 2014 to present.

[2] The subject motor vehicle accident occurred on 10 December 2017. Both of the plaintiffs allege that they have sustained injuries as a result of the accident. Both advance claims for loss of income and/or loss of earning capacity. As mother and daughter respectively, they also claim damages pursuant to the Family Law Act for the loss of care, guidance and companionship arising from the injuries allegedly sustained by them in respect of each other as a result of the accident.

[3] Shaelyn Gibson was born on 23 September 2002. She was fifteen at the time of the accident, and eighteen when she was examined for discovery on 28 April 2021. Her mother, Tammy Gibson, had been examined for discovery on 11 March 2021.

[4] During the course of Tammy Gibson’s examination for discovery, she acknowledged that, in 2016, there had been some involvement on the part of FCS when Shaelyn Gibson was in Grade 9. Tammy Gibson had taken her daughter’s phone away because of, as Tammy Gibson put it, “some embarrassing things on there”, following which Shaelyn Gibson had run away for a couple of days. There was some counselling as a result.

[5] There was another occasion on which Shaelyn Gibson ran away while she was in Grade 9.

[6] When Shaelyn Gibson was examined for discovery, she was also asked about the involvement of FCS. She acknowledged that she and her mother had got into an argument, and that she had packed a bag and left. She said that she had never run away from home up to that point, but her mother had also called FCS on one previous occasion, “for abusing child labour laws, I guess”.

[7] The productions that have already been made include a clinical note from a social worker at the Children’s Hospital of Eastern Ontario, which makes reference to Tammy Gibson’s home-based dog grooming business. According to the note, Tammy Gibson expected Shaelyn to attend to client and business needs before her own needs, including school homework. The same note records that FCS has been involved with the family in the past, but no longer.

[8] The clinical notes of the plaintiffs’ family doctor make reference to tension between mother and daughter which had resulted in the involvement of FCS, as well as Tammy Gibson taking Shaelyn out of the classroom regularly to help her with her business, resulting in Shaelyn missing school assignments.

[9] A request for production of the FCS file was refused by the plaintiffs.

[10] The defendants argue that the FCS files are relevant to the plaintiffs’ claims of loss of income and/or loss of earning capacity as well as their Family Law Act claims. They say it would be unfair for the defendants to proceed to trial without having disclosure of the FCS files.

[11] As an alternative to the production of the FCS records to the parties, the defendants would be content for the plaintiffs’ lawyer to request the records, review them, and provide a summary to the defendants. The defendants would then be at liberty to seek further particulars or disclosure if appropriate.

[12] FCS does not oppose the order being sought, subject to certain conditions.

[13] The plaintiffs characterise the defendants’ motion as looking for nuggets to attack the credibility of the plaintiffs. In other words, a fishing expedition. They point to the fact that there has been full disclosure of medical and educational records. At best, the evidence points to some limited involvement of the family with the FCS, the particulars of which (in terms of what the FCS records contain) are not known.

[14] The accident occurred when Shaelyn was fifteen and living at home. She has long since moved out and is living on her own. Her relationship with her mother is said to be much better now. The plaintiffs state that it would be wrong to dredge up the FCS file now, given the likelihood that its utility in these proceedings will be tangential at best.

[15] Accordingly, to the extent that the FCS file is of any relevance at all, the weighing of any benefit to the defendants against the prejudice that could result from its production militates in favour of denying the defendants’ motion. Rather, the plaintiffs argue that it would be sufficient that counsel for the defendants can question the plaintiffs at trial about the extent to which Shaelyn Gibson may have been pulled out of school by her mother, and to make submissions on how that might be relevant to the assessment of damages.

[16] More significantly, the burden set out in the caselaw on production of Children’s Aid Society (“CAS”) files in comparable circumstances is a high one.

[17] Both parties agree that the leading authority on the principles which should guide a motion judge when deciding whether to order production of records held by a third party, pursuant to Rule 30.10 of the Rules of Civil Procedure, is Ontario (Attorney General) v. Stavro, (1995) 26 O.R. (3d) 39.

[18] The factors to be considered include:

• The importance of the documents in the litigation;
• Whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the moving party;
• Whether the discovery of the plaintiffs with respect to the issues to which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the plaintiffs;
• The position of the non-parties with respect to production;
• The availability of the documents, or their information equivalent from some other source which is accessible to the moving parties; and
• The relationship of the non-parties from whom production is sought to the litigation and the parties to the litigation. Non-parties who have an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true “stranger” to the litigation.

[19] In Finlayson v. Mercanti, [2008] O.J. No. 2295 (ON SC), the Court declined to order the production of CAS records in a personal injury action in which an independent psychological evaluation of one of the plaintiffs revealed that the CAS had become involved in her life because she was unable to get her children to school due to her physical decompensation and pain. The CAS had become involved because of the plaintiff’s abusive ex-husband.

[20] Cavarzan J. refused to order production of the CAS file. In his view, production at the discovery stage was not necessary to avoid unfairness to the defendant. There had only been passing reference to CAS involvement in the examination for discovery. Cavarzan J. made reference to the leading authority for production of third party records in criminal cases: R. v. O’Connor, [1995] 4 S.C.R. 411.

[21] On the question of whether such records are relevant, albeit in the criminal law context, the Supreme Court in O’Connor, at para. 22, stated:

In the disclosure context, the meaning of “relevance” is expressed in terms of whether the information may be useful to the defence…In the context of production, the test of relevance should be higher: the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial…”

[22] Commenting on this, Cavarzan J. wrote that in the civil context something more is required to meet the relevancy threshold than to point to expressions of concern that certain conduct may have possibly had a severe effect on children (which was the basis upon which disclosure was sought in Finlayson).

[23] In M.K. v. Coachman Insurance Company, 2016 ONSC 6630, the defendant sought production of CAS files relating to the plaintiff and her children for a period of five years prior to the subject motor vehicle accident, on the basis that the plaintiff having claimed to have suffered mental and psychological harm from the motor vehicle accident, the defendant should be entitled to fully explore whether other factors had contributed to that condition. On discovery, the plaintiff had confirmed the existence of difficulties and challenges in the relationship with her children and, in particular, that she had seen a counsellor at the request of the CAS due to parent/child conflict. George J. held that the CAS file was not relevant. The request was “vast, expansive and all encompassing”. Quoting Cavarzan J. in Finlayson, the motion for forced disclosure of the CAS records amounted to a speculative and unmeritorious fishing expedition for evidence to assist the defence. The fact that something in the CAS file might touch upon credibility did not equate to relevance.

[24] In Dalcourt-Wilkins v. Gupta, 2021 ONSC 3160, Kurke J. stated at para. 22:

Child welfare involvement is highly intrusive and child welfare files are replete with deeply personal information. Their disclosure is prejudicial in that it will inevitably involve the exposure of personal and irrelevant information about the adult plaintiffs’ or other persons’ lives. Unbounded requests for disclosure such as the ones in this case must therefore cause concern that the moving defendants seek such records for the unstated and irrelevant purpose of finding means of attacking the plaintiffs’ credibility [references omitted].

[25] I find the approaches taken by Cavarzan, George and Kurke JJ. to be compelling. The burden for production of such records is a high one. Given the production that has already been made, it is hard to see how anything which might be in the FCS records will have more than tangential relevance in this proceeding. The prejudicial effect of the production sought greatly outweighs any benefit that could possibly accrue to the party seeking it.

[26] The defendants’ motion is dismissed with costs. If, within ten days of the release of these reasons, the parties have been unable to agree on costs, either party may obtain directions from me via my judicial assistant, Aimee McCurdy (Aimee.McCurdy@ontario.ca) for the exchange of written submissions.

Graeme Mew J. Released: 18 January 2024