K.J.B. v. C.M.C., 2011 ABQB 240

Court of Queen ’ s Bench of Alberta Citation: K.J.B. v. C.M.C., 2011 ABQB 240 Date: 20110411 Docket: FL01 02126 Registry: Calgary Between: K.J.B. Applicant/Plaintiff - and - C.M.C. Respondent/Defendant Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2 . No one may publish any information serving to identify a child or guardian of a child who has come to a Minister ’ s or a director ’ s attention under the Child, Youth and Family Enhancement Act . NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice R.E. Nation

_______________________________________________________ [ 1 ] The father (K.J.B.) applied for the production of the Child Protection Services’ file in relation to the mother (C.M.C.) and the child. [ 2 ] There is currently a dispute in terms of custody and access to the child between the child’s mother and father. [ 3 ] I heard the application for production of the file as I am the case management Justice. Counsel appeared for Child Protective Services and takes no position in relation to the application but provided a copy of the file and a vetted version of the file if production was directed. [ 4 ] This application is made pursuant to

section 126.11 of the Child, Youth and Family Enhancement Act , R.S.A. 2000, c. C-12 (the Act ). It allows a party in a civil matter to apply to this Court for disclosure of a record or part of a record that contains information held under the Act .

Section 126.11(8) sets out eight matters for the Court to consider and is then permissive that the Court may order the record or any part of it to be produced to the Court, if the Court is satisfied that it is relevant material and likely necessary to advance the position of the applicant. [ 5 ] At the hearing on April 4, 2011, I directed that the complete file be produced to the Court. I had reviewed this file as part of an earlier Court application about the child however at that time it was not produced to any party pending this application. [ 6 ]

Section 126.11(9) of the Act requires that after production of the record to the Court, I must reconsider the factors set out in subsection 8, reconsider whether the information is relevant material or likely necessary to advance the position of the applicant and determine whether the record should be disclosed to the applicant. [ 7 ] The applications that I have heard under case management and the issues currently before the Court relate to the terms of any parenting order and the access of the father to the child.

Allegations of sexual abuse have been made against the father leading to a police investigation and Child Welfare involvement. [ 8 ] A bi-laterial assessment is anticipated by the parties, who were both directed to register with the custody mediation project. On February 28, 2011, I granted an order that CLERC shall appoint a lawyer for the child. At the current time CLERC does not have the resources to do so.

An interim order was made in terms of access of the father to the child. [ 9 ] The information contained in the record is likely to be a probative value in terms of the issues between the parties, it has not been disclosed in any other record or form at the current time and would impact on matters which are in issue between the parties in relation to the child. [ 10 ] I have reviewed the original file and a file that is marked “vetted” which is a duplicate with references to names of informants, contact numbers and personal information redacted.

I direct that a copy of the vetted file as produced and reviewed by me is to be provided by the Director of Family Services to counsel for the father and counsel for the mother. It is to be provided on these conditions:

(1) That neither counsel is to provide a copy of that file to their clients. The file may be reviewed by each client in their counsel’s office, but neither client is entitled to have a copy of any part of the file;

(2) A copy of the vetted file may be provided by either counsel to any psychologist who does a bi-laterial assessment in terms of custody and access in relation to the child.

(3) Counsel for the parties are not to provide access to or a copy of the file to any other party except subject to further court order;

(4) Any use of the file by counsel is limited to these proceedings; and

(5) The method of putting any portion of this file before a Judge hearing any application or trial in this matter shall be determined on application by the parties prior to any application or trial where the use of the material is requested by one or both parties. [ 11 ] Either party is at liberty to bring an application under section 34(3) of the Act , if either party wishes testimony in Court in relation to matters in the disclosed file. [ 12 ] If the Director of Family Services or Child Welfare has been involved in relation to the child since the date of the documents in the file as disclosed in this application and up to the current date, copies of that file are to be provided to Justice Nation, to be reviewed under

section 126.11 as to whether any of that further portion of the file shall be provided to either party in this litigation, and under what terms. Heard on the 4 th day of April, 2011. Dated at the City of Calgary, Alberta this 11 th day of April, 2011. R.E. Nation J.C.Q.B.A. Appearances: Julie Anderson, Dunphy Best Blocksom LLP for the Applicant/Plaintiff Ruellen Forsyth-Nicholson, Forsyth-Nicholson Law Office for the Respondent/Defendant

Kim M. Berlin, Alberta Justice, Family Law Branch for the Director of Family Services