Director and L.M.P. / L.M.P. v. K.P. et al. Date:, 2013 BCPC 206

Citation: Director and L.M.P. / L.M.P. v. K.P. et al. Date: 20130723 2013 BCPC 0206 File No: 12831 Registry: Merritt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: J.S.G. , born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: S.P. and K.P. PARENTS File No: 12886 Registry: Merritt AND IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.M.P. APPLICANT AND: M.A.G. and K.P. RESPONDENTS File No: 14147 Registry: Merritt AND IN THE FAMILY MATTER OF

THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.L. and T.L. APPLICANTS AND L.P. RESPONDENT REASONS FOR JUDGMENT ON CRIMINAL RECORD CHECK OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Director: Ms. Carolyn Oien Counsel for the Parents, S. and K.P.: Mr. Graham Kay Counsel for the Applicant, L.P.: Ms. Kim Carter (Ministry file) Mr. Carmen Kane ( FLA file) Appearing on their own behalf: A.L. and T.L. Not appearing but a party to the action: M.G. Counsel for the Respondent: Mr. Graham Kay Place of Hearing: Kamloops , B.C.

Dates of Hearing: June 10 - June 14, June 17 - June 21, July 8 - July 12, 2013 Date of Judgment: July 23, 2013 [ 1 ] There are two Family Law Act files and a child protection file before me for a trial which is expected to proceed for 30 days. All of the matters are heard together, the evidence being taken on one available to be used in all the others, but the trials are not otherwise consolidated. [ 2 ] During the course of the proceedings, the issue of K.P.’s criminal record check arose.

Clearly the criminal record checks conducted both by the Ministry of Children and Family Development, as well as the one obtained by Mr. K.P. pursuant to the Family Law Legislation, do not disclose his criminal history. Thus, the issue arose whether a criminal record check was a mandatory or compellable requirement, what form of criminal record check was to be conducted, and what results are adequate for the purposes.

THE LEGISLATION [ 3 ] A significant contributor to the uncertainty of this issue is the awkwardly drawn legislation respecting applications for guardianship and how they incorporate criminal record checks.

Section 39 of the Family Law Act provides as follows: 39

(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.

(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child's guardian.

(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies: (

a) section 30 [parentage if other arrangement] applies and the person is a parent under that section; (

b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian; (

c) the parent regularly cares for the child.

(4) If a child's guardian and a person who is not the child's guardian marry or enter into a marriage-like relationship, the person does not

become a guardian of that child by reason only of the marriage or marriage-like relationship. [ 4 ] In this case, Mr. K.P. never resided with the child in question, J.S.G., born [DOB]. He had not regularly cared for the child before these proceedings commenced and there are no agreements between Mr. K.P. and the child’s mother or grandmother that he is a guardian. Consequently, Mr. K.P. must apply under s. 51 for guardianship, which provides as follows: 51

(1) On application, a court may (

a) appoint a person as a child's guardian, or (

b) except in the case of a director who is a child's guardian under the Adoption Act or the Child, Family and Community Service Act , terminate a person's guardianship of a child.

(2) An applicant under subsection (1) (

a) of this

section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in

section 37 [best interests of child] of this Act. (3) Subsection (2) of this

section applies regardless of whether there is consent to the application under

section 219 [persons may consent to order being made] .

(4) If a child is 12 years of age or older, a court must not appoint a person other than a parent as the child's guardian without the child's written approval, unless satisfied that the appointment is in the best interests of the child.

(5) A person who has custody of a child under

section 54.01 (5) or 54.1 of the Child, Family and Community Service Act is deemed, for the purposes of this Act, to be a guardian appointed under subsection (1) of this section. [ 5 ] There is nothing in this

section which requires a person to complete a criminal records check in any form. The only inference is the connection between section 51(2) and the Provincial Court (Family) Rules. [ 6 ] Rule 18.1 provides as follows: 18.1(1) When an order is sought appointing a person as the guardian of one or more children, the applicant must (

a) file with the court the original and 3 copies of an affidavit in Form 34 that complies with subrule (4) and serve a copy of that filed affidavit on the other parties and on any other person who may be affected by the orders sought, and (

b) provide to the judge any other evidence the judge considers necessary. [ 7 ] Rule 18.1(4) provides as follows: 18.1(4) Unless a judge otherwise orders, (

a) if the order referred to in subrule (1) is being sought at a hearing, an affidavit referred to in subrule (1) must be filed and served at least 7 days before the date set for the hearing, or (

b) if the order referred to in subrule (1) is being sought without a hearing, (

i) an affidavit referred to in subrule (1) must be sworn not more than 7 days before the date on which the materials in support of the application are filed, and (ii) any records check, criminal records check or protection order records check attached as an exhibit to the affidavit must be dated not more than 60 days before the date on which the materials in support of the application are filed. [ 8 ] Neither Rule 18.1(1) or (4) requires a criminal record check in any form. Rule 18.1(1) only requires the applicant to file an affidavit in Form 34.

The only reference to a criminal record check is 18.1(4)(b)(ii) which does not contain mandatory language and does not relate to a proceeding where there is a hearing. When (

b) is read in isolation, the rule requires “unless a judge otherwise orders, ... if the order referred to in subrule 1 is being sought without a hearing ... any ... criminal records check ... attached as an exhibit to the affidavit must be dated not more than 60 days before the date on which the materials in support of the application are filed”. Not only is there discretion in the court to dispense with filing the affidavit, it also has the discretion to vary the timing of both filing of the affidavit and the date of the criminal records check. [ 9 ] Family Law Act Regulation BC Reg. 347/2012 deals primarily with child support but includes

Part VI which prescribes forms 1 to

Section 27 of those regulations provides as follows: 27 The forms in Appendix A must be used if applicable, with variations as the circumstances require, and each of those forms must be completed by including the information required by that form in accordance with any instructions included on the form. [ 10 ] Form 34 came into effect by way of Order in Council 66-2013 which regulation only provides at s. 6, “the following form is added:”. The form then follows. It does not have the same mandatory language as in BC Reg. 347/2012 requiring completion. Rule

18.1(4) merely requires that the Form 34 affidavit be filed and served within a certain period of time. It does not mandate that all sections must be completed. It makes sense that the affidavit be completed in full but nothing precludes an affiant striking out the criminal records check paragraph. Certainly, where there is no hearing and the affidavit is not completed, it is likely the application will be denied. The same may not be said for an application with a hearing. This seems to defeat the purpose stated by Dr.

Turpel-Lafond. [ 11 ] Overriding all of this is Rule 1 which provides that proceedings shall be just, speedy, inexpensive and simple. CRIMINAL RECORD CHECK FORMATS [ 12 ] The adequacy of criminal record checks is a significant issue flowing from Form 34. [ 13 ] Form 34 itself is an affidavit. Among other things, it contains at paragraph 11 the following: Attached to this affidavit and marked as Exhibit ____ is a copy of a criminal records check dated ________ obtained from the ____________. [ 14 ] There are notations in the

section which direct a person how to complete the blanks and providing that if there is no hearing then the records check contemplated must be dated within 60 days of filing the affidavit. [ 15 ] Paragraph 12 of Form 34 makes it clear that the criminal records check must be one that indicates what entries have been found, if any.

It provides: (check which ever paragraph is correct) • There are no criminal offences, other than those, if any, specified in the criminal records check referred to in paragraph 11 of this affidavit, of which I have been convicted and not pardoned. [emphasis added] • In addition to the convictions, if any, specified in the criminal records check referred to in paragraph 11 of this affidavit, I have been convicted of, and not pardoned for, the following criminal offences: [emphasis added] (provide details of any criminal convictions, not referred to in the criminal records check, for which you have not received a pardon). [ 16 ] These are not the criminal record checks a person may obtain from a police agency.

Nothing like this information is obtained. [ 17 ] In this case, the Ministry of Children and Family Development had Mr. K.P. complete a Consent for Disclosure of Criminal Record Information which is its form of request for criminal record checks. It includes a vulnerable sector search. It was submitted to the Merritt Detachment of the Royal Canadian Mounted Police.

Section 2 of that form consents to the following disclosure: Pursuant to s. 8(1) of the Privacy Act of Canada, I hereby authorize the Royal Canadian Mounted Police (RCMP) to disclose my personal information, based solely on a match between the information that I have provided in

Section 1 of this form with any information located on police computer systems and information located throughout local police indices – this will include all police involvements, all information related to non-convictions and all charges regardless of disposition. The disclosure will be provided by a member of the RCMP without confirmation of identity through a finger print check.

I further authorize the RCMP to disclose this information directly to the Ministry of Public Safety and Solicitor General (PSSG) which will forward the information to the following delegate of a Director, Child, Family and Community Service Act or Adoption Act or administrator of a BC Licensed Adoption Agency: .... [ 18 ] This is a considerably more fulsome disclosure than individuals obtain and is likely of the nature contemplated by the legislature. [ 19 ] What the Ministry received by return was a letter from Corporal K.R. Ecklund of the Merritt Detachment which purported to contain a

summary of information held at the Merritt Detachment through PIRS/PRIME/CPIC: 1. Criminal Record – Criminal convictions relevant to your enquiry: No 2. Other files held at Merritt Detachment were reviewed and may have relevance to your enquiry: 2007 – Merritt RCMP Passenger in a vehicle where a small amount of crack cocaine was seized. 2008 – Merritt RCMP received information that K.P. had a handgun in his possession. (police seized his cell phone in another investigation and a photograph on the phone showed K.P. holding it.) Police did not get search warrant approval.

There are other files involving K.P. outside of Merritt such as: Abbotsford file #2007-19220- K.P. charged with trafficing [sic] Cocaine. [ 20 ] Even though the disclosure request is for all information, this appears to be only a sampling. I know from the evidence at trial that it is not at all complete. [ 21 ] Mr. K.P. also obtained his own criminal record check for the purposes of his Form 34 affidavit. It is a different kind of form

which the Applicant completes by filling out all the personal information at the top of the form. At the bottom of the form, the Applicant consents to the following kinds of searches: Records of criminal convictions found in the Identification Data Bank attainable through the Canadian Police Information Centre (CPIC) for which a pardon has not been granted. Records of criminal convictions attainable through CPIC for which a pardon has not been granted plus records of outstanding criminal charges which the RCMP are aware of or indicated within the investigative Data Bank of CPIC. Records of criminal convictions and

summary of police information (including records of outstanding criminal charges which the RCMP are aware of or indicated within the Investigative Data Bank of CPIC) attainable through CPIC for which a pardon has not been granted plus records of discharges which have not been removed from the Identification Data Bank in accordance with the Criminal Records Act. This will include all charges regardless of disposition. Police information located on computer systems (e.g. Police Information Retrieval System (PIRS), CPIC, PROS, PRIME, LEIP) and information located through local police indices checks.

This will include all information related to non-convictions and all charges regardless of disposition. [ 22 ] When the RCMP completes this criminal record check it does not confirm that there is a record but merely that there may be a record if there is a positive hit in any of these categories. This begs the question of the adequacy of such a criminal record check for the purposes of s. 51 of the Family Law Act or Rule 18.1.

If there is a positive hit, a second fingerprint search must be conducted to verify those hits. [ 23 ] Certainly it is open to the court to hear viva voce evidence and dispense with the Form 34 affidavit or the criminal record check. The question becomes whether there is a more appropriate form in which to obtain a criminal record check. [ 24 ] I was also provided with the excerpt from the Hansard Issue No. 26 for Tuesday, May 29, 2012 which publishes Dr. Mary Ellen Turpel-Lafond, Representative for Children and Youth’s address to the legislature in the passing of this legislation.

It is clear that the excerpt highlights the purpose of the criminal records check requirement: to prevent caregivers from circumventing the concerns of the Ministry of Children and Families by obtaining guardianship orders in family court. She acknowledges that s. 51 of the Family Law Act does not provide details of how guardianship applications would be dealt with, deferring the procedure to the Rules Committee.

She addresses the then proposed affidavit model which would allow someone seeking an application to become a guardian to have at least a criminal record check and a “known to the Ministry” check completed. Obviously, it was intended that the Rules Committee address how to implement the criminal records check component of guardianship applications. POLICE POLICIES [ 25 ] Counsel produced information off the internet respecting the RCMP, Abbotsford Police Department and Vancouver Police Department procedures. The RCMP excerpt is from their “Civil Fingerprinting Screening Services” page.

It sets out how to obtain a full set of fingerprints to be taken at a local police station or through a private accredited fingerprinting agency. Notably, under the lists of reasons for such a request, applications under the Family Law Act have not been included. This does not mean to say that a fingerprint search would not be conducted for these reasons. It simply is not contemplated by the forms on the website.

There was a confusing set of links to connections to determine what fees would be applicable for criminal records check and fingerprint checks, as well. [ 26 ] The Vancouver Police Department Police Records Check page direct the readers to the Cambie Street Detachment where record checks are done. The fees are set out which list $70.00 for a police record check or, if a fingerprint check is also required, an additional $25.00.

There is no fee set for obtaining criminal record checks for guardianship applications under the Family Law Act . [ 27 ] The page further advises readers that they must complete a Request and Consent for Records Check and Disclosure Form and advise what documentation is needed to complete such a check.

The website also asks that the applicants provide a document from the government or an organization requiring the check that clearly explains whether a fingerprint search or a name search of the National Repository and local criminal record check are the type of search required. [ 28 ] Under the FAQ’s, it is explained that a police records check is a “criminal record check as well as a search of the records held in the information database of a police agency”. The FAQ’s indicate where the Vancouver Police Department conducts its criminal records checks including Legacy RMS, Versadex, LEIP, JUSTIN, CPIC, and PIRS.

If the person is applying for a vulnerable sector search, he or she must pay an additional $25.00 to the Receiver General for Canada. This

section notes “please be aware that due to RCMP policies, we are unable to complete a vulnerable sector search if you are applying for a police records check for personal reasons”. It appears, then, that applicants may not be able to receive any more than the basic criminal record check for personal reasons such as guardianship applications under the Family Law Act . Of course, the whole tenor of this

section of the Act is to protect children who are members of a vulnerable sector of people. Given its purpose, a vulnerable sector search must be what is contemplated. [ 29 ] Unlike the RCMP search released to the Director and the form returned to Mr. K.P., the Vancouver Police Department includes criminal convictions for which no pardon has been granted; outstanding charges pending disposition; outstanding warrants; records of discharges, stays of proceedings, and peace bonds; local police records from any law enforcement agency; and pardoned sex offence convictions.

This seems to be more like the legislation contemplates. Fingerprint searches are additional. [ 30 ] The web page for the Abbotsford Police Department also distinguishes between police information checks intended for applicants seeking volunteer work or employment with agencies requiring a record check. A separate search is also required for the vulnerable sector if the person is going to be working with vulnerable individuals. The website has an important disclaimer indicating that the police agency cannot guarantee the information is complete.

It also warns that the police information check discloses convictions, investigations, and circumstances where charges were recommended but not approved. The vulnerable sector search will

also disclose any criminal entries with respect to sex offences. It seems a criminal record check in Abbotsford may also be along the same line as contemplated by the legislation. In Abbotsford’s case, the charge is $65.00 for employment related searches and $27.00 for volunteer positions. There is no fee set for Family Law Act applications for guardianship. This does not include any fees for fingerprint searches that may be required. [ 31 ] The inconsistency and lack of clarity in the web pages as well as the results received by the Director and by Mr. K.P. served only to complicate the inquiry. Mr.

K.P. gave evidence of charges, convictions and police encounters which were not disclosed in either form of check. [ 32 ] After all the parties made submissions with respect to what must have been intended by the legislators, the issues to be addressed by requiring a criminal records check, and speculation about the various forms of checks and procedures required, Mr. Kay was able to arrange for a witness to come from the local Kamloops Detachment of the RCMP.

Alicia Statsman, who is the client support supervisor for the RCMP in Kamloops, attended as a friend of the court and provided invaluable information. [ 33 ] She advised that individuals can go online and apply for a criminal history. This search is based out of Ottawa and has its own set of fees indicated online. Alternatively, an individual can go to their local detachment and complete a Form to Disclose Criminal History for $40.00. If the applicant refutes the responses that come back, he or she can apply to Ottawa for a fingerprint verification search through their local detachment.

The applicant must provide his or her fingerprints and a further $25.00 fee which is paid to the Receiver General. The initial $40.00 is a municipal fee and so it varies from municipality to municipality. [ 34 ] Ms. Statsman advised that the local detachment has Live Scan so the fingerprinting is digital. It takes 10 to 14 days to receive a response. Only a few detachments have digital fingerprinting. The traditional ink pad method takes 8 to 12 weeks, depending on how busy the Ottawa department is at the time.

It is clear from this timing that significant delays can arise in time sensitive guardianship applications if a party must wait for the initial criminal record check to return; and where there is a positive hit, wait 8 to 12 weeks before receiving their criminal record back. [ 35 ] The vulnerable sector check is an additional form that is completed at the time the criminal records check is completed if the person is going to be working in the vulnerable sector. If there is a positive hit, there is an additional form that must be filled out to disclose the information.

This is all included in the initial fee of $40.00. It seems to me this additional search is essential to the purpose of this legislation but apparently cannot be conducted for personal reasons. [ 36 ] There is an additional cost of $25.00 if the fingerprint check is required. The fingerprint search does not find additional charges, but only verifies what has been found by the local detachment. The Ottawa department sends a verification letter directly to the applicant, which discloses everything found in the queries.

The actual CPIC result is not disclosed even to the applicant. [ 37 ] There is no indigent fee waiver application. Municipal fees are only waived for volunteer work. [ 38 ] Ms. Statsman also advised that although the policy is the same throughout all of “E” Division of the RCMP, the processes and procedures vary from detachment to detachment. [ 39 ] As to the thoroughness, Ms. Statsman advised that the query is conducted through all available databases. Additionally, the individuals are asked to go to their local detachment so that they can verify what is going on locally for that person.

If they have had an additional address in the previous five years, a message is sent to that detachment to check and disclose the check to the local RCMP. Detachments for addresses prior to that time period are not consulted. The CPIC search provides the detachment with information regarding warrants and charges throughout Canada. ARGUMENT [ 40 ] Mr. Kay sought to submit the criminal record check attached to Mr. K.P.’s affidavit. Mr. Kane argued that because it was clearly incomplete the further step of obtaining a fingerprint check must be required.

He initially argued that the first criminal record check was inadequate to the purposes contemplated by the Family Law Act and therefore all parties seeking to apply for guardianship who complete a Form 34 affidavit should obtain the fingerprint criminal record check. I believe he has resiled from that position where a criminal record check comes back noting that no records have been found. Both he and Ms.

Carter argued that it is a logical conclusion if a criminal record check comes back noting there may be a record, then the second step of the criminal record check process, being the fingerprint check, must be engaged. Certainly this seems a logical and practical conclusion. [ 41 ] However, it appears that the fingerprint check only confirms “hits” identified by the initial record check. Consequently, while such a fingerprint check could confirm the nature of the person’s criminal record, it will not find any further entries not discovered by the detachment doing the initial check.

Arguably, if there is a positive result on a criminal record check, then the evidence from the applicant should suffice to provide the clarification needed. This does not take into account those who are less than forthcoming about their criminal history or a person such as Mr. K.P. who struggles with memory in some aspects of that history. [ 42 ] If such a record check as requested by the Director on its forms were done, a more fulsome disclosure might result. This, however, seems to be a Merritt RCMP Detachment procedure rather than a policy adopted by any other police agencies or detachments.

Even the disclosure from the Merritt Detachment is incomplete, given the evidence that Mr. K.P. disclosed in his testimony. [ 43 ] In the end result, it does not appear that an initial criminal record check, whether it is done in the form used by Mr. K.P. through his local RCMP Detachment or the form used by the Director in obtaining its searches, produces anything remotely reliable for the purposes contemplated by Rule 18.1, s. 51 and Form 34. While a positive hit might result in more detailed information if a fingerprint check is engaged, it will not find anything missed by the initial check.

A fingerprint check cannot be done as an initial record check, but only as verification of one. There does not seem to be a procedure by which a person applying for guardianship under the Family Law Act can obtain a criminal record check which confirms whether there is any criminal history of any nature be it convictions, investigations or pardons; or any reliable disclosure of that criminal history. The most fulsome criminal record check cannot be guaranteed for accuracy.

[ 44 ] There is also the question of the expense. A good number of the people who appear in provincial court are of limited means. The initial criminal record check has a fee which is set by each municipality. As a result, the fee varies from place to place. In Kamloops, the cost is $40.00. In Vancouver, it is $70.00. If there is a positive hit and a fingerprint check is required, there is a further $25.00 fee. While $65.00 or $95.00 may not seem much, it can mean a week’s groceries for a small family. [ 45 ] As Ms.

Oien argued, the requirement for a criminal record check is a departure from the Family Relations Act . It is a positive obligation to do something that was not previously required. Where there is a positive obligation and a cost attached to that obligation, there should be mandatory language in the legislation or regulation. In this case, the criminal record check requirement is simply part of a form without proper reference to Rule 18.1. As Ms. Oien said, access to justice trumps the obligation imposed by a form. [ 46 ] Ms. Oien also raised the other prospect of circumstances such as Mr. K.P. finds himself in.

He is not a guardian under the Family Law Act but the child has lived with him for some time. It begs the question of what practical sense there is in requiring him to get a criminal record check. As Ms. Oien said, access to justice trumps the obligation imposed by a form. RULING [ 47 ] It is clear that in order to meet the purpose and requirements of the legislation, the criminal record check to be performed must include a vulnerable sector search.

While the police agencies do not perform these searches for personal reasons, they do perform them when mandated by legislation such as the Adoption Act and the Child, Family and Community Service Act . [ 48 ] It seems to me this issue can be resolved by language in the Act , the Rule or the Regulation which uses similar mandatory completion language to that found in

section 27 of BC Reg. 347/2012. An additional form for the request for the criminal record check could be prescribed to require the vulnerable sector search and to include information setting out criminal convictions for which no pardon has been granted; outstanding charges pending disposition; outstanding warrants; records of discharges, stays of proceedings, and peace bonds; local police records from any law enforcement agency; and pardoned sex offence convictions. That would meet the legislative intent and direct the police agencies conducting the searches to complete them in the matter that meets that intent.

That is not what I have before me. [ 49 ] I am not satisfied that the existing legislation is sufficient to compel a person to obtain a criminal record check, much less the secondary fingerprint search. Where there is such a positive obligation upon an applicant to disclose such sensitive information, there ought to be mandatory language in some part of the legislation, be it the Family Law Act , the rules, or the regulations bringing the form into force. [ 50 ] Furthermore, I am not satisfied that Form 34 contemplates any more than the preliminary criminal record check such as the one obtained by Mr. K.P.

Paragraph 12 of that affidavit form provides a

section for the applicant to complete where the criminal record check omits some part of a person’s criminal history. It recognizes that the criminal record check may not be complete. The affiant is only required to disclose convictions for which there is no pardon. Presumably if a person were convicted of a sexual offence for which they were pardoned, there would be no obligation to disclose it.

This defeats the whole apparent intention of protecting children who are members of a vulnerable sector. [ 51 ] I cannot tell from the evidence before me whether a person can obtain a vulnerable sector search for themselves through any other police agency, but it certainly cannot be obtained from the Vancouver Police Department for personal reasons. It appears this is based on RCMP policy.

If applicants cannot obtain a vulnerable sector search, it seems to defeat the whole purpose of having the criminal record check done for a guardianship application. [ 52 ] Finally, there is the issue of the fees charged by each municipality. There is discretion in the court to dispense with the necessity of a criminal record check. It seems that an applicant who is indigent would have to make an application for that exclusion. However, given the intent of the section, it seems unlikely that such an application would succeed where the only reason for the exclusion is financial need. [ 53 ] In the meantime, Mr.

K.P. has already completed his Form 34 affidavit with an initial criminal record check. It has, as we expected, produced positive results on his name. Only some disclosure is provided in the record check conducted by the Director. Mr. K.P. has been able to provide some further details relating to those results as well as disclose further engagements with various police agencies during the years he was in the throes of his drug addiction. Some of those interactions did not result in criminal charges but may be relevant to Mr. K.P.’s suitability as a guardian. Certainly, Mr. Kane and Ms.

Carter ought to have the opportunity to explore that information. [ 54 ] I am not satisfied that I have the authority to order the secondary fingerprint search absent any legislation empowering me to do so. There is no inherent jurisdiction in this court to make such orders. This goes beyond matters of procedure over which this court does have some inherent jurisdiction. It goes to the heart of the evidence before the court. [ 55 ] Nor am I satisfied, however, that the criminal record check produced by Mr. K.P. or by the Director are a fulsome disclosure of Mr.

K.P.’s criminal history which is directly related to the Family Law Act and child protection issues before me. I cannot compel disclosure from known or unknown police agencies of all their records relating to Mr. K.P. Such an application must be made on notice by a party seeking disclosure. This, given Mr. K.P.’s history, would be cumbersome and time consuming, if not futile. [ 56 ] The most practical procedure would be for Mr. K.P. to attend the detachment where he obtained his initial criminal record check and request a fingerprint search.

While I cannot order him to do so, it is more practical than he or any other party trying to determine all of the detachments with which he had any engagements and make applications for disclosure of their records. If Mr. Kane and Ms. Carter require anything more than what the fingerprint check divulges, they will have to make an application for disclosure of police records on notice to the relevant detachment or police agency.

_____________________________ S.D. Frame Provincial Court Judge