C.E.L. v. D.C.A. Date:, 2016 BCPC 147

Citation: C.E.L. v. D.C.A. Date: 20160519 2016 BCPC 0147 File No: 1444135 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.E.L. APPLICANT AND: D.C.A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.K. KEYES Counsel for the Applicant: M. Chiu

Counsel for the Respondent: R. Craig Place of Hearing: Prince George , B.C. Date of Hearing: August 10, 2015 Date of Judgment: May 19, 2016 INTRODUCTION: [ 1 ] This is my decision with respect to D.C.A.’s application for disclosure of third party records in the possession of the Ministry for Child and Family Development (MCFD) and the RCMP, as well as Pharmaceutical and Medical claims records. [ 2 ] D.C.A. and C.E.L. (C.E.C.) are the parents of N.A., born [omitted for publication].

The parties separated in 2006, when the first order between the parties concerning parenting time and responsibility for N.A. was made. N.A. has always lived primarily with his mother, C.E.C. and it is undisputed that D.C.A. chose not to have contact with N.A. for approximately 5 years between 2008 and 2013. However, for the past few years, D.C.A. exercised parenting time with N.A. 2 or 3 times per year, generally in Calgary where D.C.A. resides. [ 3 ] Prior to N.A.’s planned visit to his father at Spring break in 2015, C.E.C. applied to the court to suspend D.C.A.’s parenting time.

She testified that she believes that D.C.A. had sexually abused N.A. during parenting visits. She also alleged that she had been physically, sexually, and psychologically abused by D.C.A. during their relationship 10 years before. [ 4 ] In response, D.C.A. has applied to vary the existing order so that N.A. will live primarily with him. The Court granted an application to have a full s. 211 report prepared to assist the court with respect to N.A.’s views and parental capacity. Until that report was prepared, D.C.A.’s parenting time with N.A. was suspended.

This application for disclosure of records is brought in preparation for the hearing on the parenting applications. Evidence Pertaining to Disclosure Application: [ 5 ] C.E.C. has alleged that D.C.A. sexually abused her during their relationship and that more recently he has been sexually abusing their son N.A. during N.A.’s visits with D.C.A.

She has also alleged that he perpetrated other family violence over her and N.A. during their relationships which included confinement and violent rape by D.C.A. and other men at his instigation and controlling behaviour including withholding of financial support, with the result that she was obliged to perform sexual services for other men in order to obtain money for food. [ 6 ] D.C.A. flatly denies her allegations.

He attests that during their relationship she told him that when she was a child, her parents held her down and beat her, and he argues that that incident is relevant because it is “similar” to the allegations she has made against him.

He attests that she told him she was “taken advantage of” by the boy who took her to the prom, and on another occasion, June 2, 2006, that she was “taken advantage of” by men at a club she had attended during their relationship, and that he took her to the police station and she made a report which the police refused to pursue. [ 7 ] D.C.A. also alleges that during their relationship C.E.C. had had mental health problems and saw a clinical counsellor in the company of D.C.A., and that he had taken her to see a family doctor on one occasion when she stopped eating and talking for a period of time after N.A.’s birth, and that he took her to a psychiatrist on one occasion.

He says that C.E.C. told him she had a history of self-harm and had “borderline personality disorder”. [ 8 ] In the light of the allegations she has recently made, D.C.A. now questions C.E.C.’s mental health, and therefore her parental capacity. [ 9 ] At the time the submissions were made to me on this notice of motion, the s. 211 report previously ordered was not yet prepared, and therefore no expert opinion or other evidence existed to provide a basis for D.C.A.’s submission that C.E.C. is making false allegations against him as a result of mental health issues. However, since that time Dr.

Elterman has provided a full report to the Court. [ 10 ] In his report, Dr. Elterman states that during his interview with C.E.C., she described not only serious allegations of sexual abuse perpetrated on her by D.C.A. and co-workers of his, and threats made by D.C.A. that he would harm N.A., but also a history of being sexually abused as a child by many family members. She described repeated trips to the Psychiatric ward as a teenager and having made many complaints to MCFD during that time. She also described MCFD involvement when N.A. was a baby due to her expressed fears of harming N.A.

C.E.C. says that after she and D.C.A. separated, he said she was crazy, with the result that MCFD did a Parenting Capacity Report on her. [ 11 ] C.E.C. also told Dr. Elterman that she has had a number of psychiatric hospitalizations as an adult, including after the births of N.A. and S.C. (a child from her current marriage). One of these episodes was after S.C. was born which involved C.E.C., while in a psychotic state, mistaking her husband, D.C., for D.C.A. and mistakenly believing he was about to harm her which was treated with antipsychotic medication.

She said various professionals have diagnosed her as having Borderline Personality Disorder, which she disputes. [ 12 ] Dr. Elterman wrote in his report, at p. 36, that: …this is a difficult case for a number of reasons. One of the reasons is that I have not had the benefit of the RCMP, Ministry and psychiatric records of C.E.C.

He goes on to question: …whether or not she has fabricated an allegation [of sexual abuse of N.A.] or whether she is delusional in her belief that the sexual abuse occurred, because the evidence she presents does not point to this conclusion. and he concludes, …once I have the conclusions of official investigations I will be in a better position to make more specific recommendations regarding guardianship and primary residence.

POSITION OF THE PARTIES: D.C.A. [ 13 ] D.C.A. seeks, in addition to police and MCFD records pertaining to the parties and to C.E.C.’s childhood, disclosure of C.E.C.’s medical claims history and pharmaceutical records, going back to a period more than a year before N.A.’s birth. D.C.A. seeks the records on the basis that they are relevant to C.E.C.’s credibility. He submits that the RCMP and MCFD records, might afford evidence that C.E.C. has a history of making false complaints, and would therefore be relevant to her credibility.

He seeks the medical and Pharmanet records for a similar purpose, arguing that they would afford evidence with respect to the identity of the medical professionals who have treated her and the pharmaceuticals prescribed to her, which would be relevant to whether C.E.C. has suffered from mental health issues throughout the time period in question which might adversely affect her credibility with respect to the current sexual abuse allegations she is making against D.C.A.. [ 14 ] Specifically, D.C.A. seeks production of: 1. all MCFD records pertaining to both parties, which will necessarily include records pertaining to C.E.C.’s childhood, with a variety of exceptions; 2. all Kelowna, Vernon, and Prince George RCMP Detachment records pertaining to the parties, with standard exceptions; 3. a Medical Services Plan claims history report for C.E.C. from July 3, 2004 to the present; 4. the Pharmanet Patient Record for C.E.C. since July 3, 2004; and, 5. all similar records pertaining to N.A.

C.E.C. [ 15 ] C.E.C. does not oppose the production of any of these records in so far as they pertain to N.A. [ 16 ] C.E.C. opposes the production of such records pertaining to herself, with the exception of RCMP and MCFD records pertaining to matters she has complained of in her testimony.

C.E.C. resists the production of the MCFD records from her childhood on the basis that her privacy interests, and particularly those of her parents, will be infringed by the disclosure MCFD records that predate their relationship with D.C.A., and that her privacy interests will be infringed by the production of the medical records sought.

ISSUES [ 17 ] The issues before me are, firstly, which of the records sought are sufficiently relevant to the application and cross-application regarding parenting time and responsibilities for N.A. to warrant disclosure, and secondly, whether any records disclosed should be subject to a Halliday or other order permitting the documents to be vetted by C.E.C.’s counsel to redact irrelevant material prior to disclosure to D.C.A. LAW [ 18 ] Counsel have directed me to a number of authorities, as follows: 1. S.R.M. v. N.G.T.M., 2013 BCSC 719 , a decision of Master Baker.

In that case the mother had reported to MCFD her concerns that her children were being sexually abused by their father. The matter was investigated and determined to be unfounded. Nevertheless the mother persisted in her concern and made another complaint to the police. In that case Dr. Elterman had provided a report under s. 15 of the Divorce Act , which expressed concern about the mother’s persistence in perceiving risk to her children despite the lack of a foundation for it, and whether she was delusional.

In that case the court ordered the disclosure of therapeutic records in the possession of the mother’s doctor pertaining to the mother’s therapy on the basis that “the record of S.’s involvement with Dr. Krause would go a long way to giving Dr. Elterman or the court greater psychological detail, context and answers to these concerns and questions.” 2. Callan v. Cooke, 2013 BCSC 142 , in which production of police records pertaining to the investigation of the plaintiff’s complaint of sexual assault by the defendant were ordered, because they were clearly relevant to the civil suite regarding the same facts.

The Defendant resisted unvetted production, and sought instead that the production be made under the terms of a Halliday order, which would permit the defendant to redact the materials pertaining to his private life and the complaints of other alleged victims. The Court found that a Halliday order was not justified because the entire contents were clearly relevant and third party privacy concerns could be addressed by a publication ban regarding their identities.

3. T.E.K. v. B.V.S., [1994] B.C.J. No. 439 BCPC. In that case the father was alleging that the children had been sexually and physically abused while in the mother’s care. The Court ordered 3rd parties to produce medical records pertaining to the complaints ofsexual abuse and other medical records indicating injuries suffered by the children, but not records prior to the separation of the parties. The Court noted, at para 5, that only relevant records ought to be produced - that is, relevant to the suitability of the party in question tocontinue her parental responsibilities for the care of the children.

Rule 9 of the Family Court Rules is not to be used “as a “fishingexpedition” with the privacy of parties being exposed and third parties put to unnecessary expense and inconvenience.” 4. Gorse v. Straker, 2010 BCSC 119 in which the defendants sought production of a variety of a broad array of the plaintiff’smedical and employment records. The Court in that case noted at para 16 that the applicant must satisfy the court that the document inquestion relates to a matter in issue, and adds that it may relate directly or indirectly.

This case reviews the methods by which irrelevantor privileged material may be edited out of the material so produced, on either Jones or Halliday formats. However, the court held thatthe court must be satisfied on the evidence that the record is likely to contain irrelevant, private information, before making a Hallidayorder permitting plaintiff’s counsel to vet the documents prior to disclosure to the party seeking disclosure. The mere possibility that thematerial may contain irrelevant or privileged information is not enough.

With respect to the production actually sought in that case,however, the court found that the applicant was engaged in a fishing expedition in seeking medical records that pre-existed the accidentin question. 5. Morvay v. Warke, 2012 BCSC 303 - this case is about production of financial documents pertaining to property division andsupport claims in a very high value divorce case.

Production of documents was ordered as requested except for “native” copies(presumably this means “original documents” of various document already produced.) The court declined to order the productionbecause the documents were sought for a collateral issue, (solely on the issue of credibility) and because the application offended Rule 1-3(2) regarding proportionality. I find this case of little relevance to the case at bar. 6. Hyvarinen v. Burdett, 2012 BCSC 1034 , 2012BCSC 1034 - this was an application for medical records that longpredated the injury resulting from a motor vehicle accident.

The Court held the applicant had to demonstrate a connection between thedocuments sought and the facts alleged, not a mere possibility (para 14) and that the Court must be careful not to infringe upon theprivacy interests of the party to whom the records pertain. DECISION I have considered the evidence before me on this hearing, the case law provided and the arguments made. I will address the recordssought with respect to N.A. separately from those pertaining to the parties. RECORDS FOR N.A. [19] C.E.C. consents to the production of such records pertaining to N.A.

No objection to the production of those records is madeand I therefore order the disclosure of all RCMP and MCFD records pertaining to N.A. and his parents since N.A.’s birth and MedicalServices Plan Claims history reports and Pharmanet Patient Records for N.A. from his birth. RECORDS FOR C.E.C. AND D.C.A.

RCMP Records: [20] I find the records regarding complaints made to the RCMP during the relationship between D.C.A. and C.E.C. are relevant tothe issues before me, because whether family violence has been perpetrated by a parent has direct relevance to the best interest of thechild in determining parenting time and responsibility.

Thus, the police records including statements made by C.E.C., N.A., and D.C.A.regarding the recent allegations of sexual assault against N.A. are obviously relevant. [21] Given that C.E.C. testified that D.C.A. locked up N.A., raped her, confined her and induced other men to rape her and that hiscontrolling conduct toward her forced her to have sexual relationships with other men to obtain money for food for her and N.A., anystatement made by her to the police with respect to D.C.A. or complaints regarding sexual activities with other men during herrelationship with D.C.A. are relevant and ought to be produced. [22] The application for production of RCMP records pertaining to D.C.A. and/or C.E.C. from July 3, 2004 is granted.

MCFD Records: [23] C.E.C. opposes the production of such records pertaining to herself, with the exception of RCMP and MCFD records pertainingto matters she has complained of in her testimony. She says that the remaining documents are not relevant and their production wouldinfringe her privacy interests. [24] If the evidence before me included only an allegation by D.C.A. that C.E.C. complained her parents held her down as a childand beat her, that material would not be sufficiently relevant, in my view, to issues of current parental capacity to warrant disclosure. However, C.E.C. told Dr.

Elterman she was sexually abused by family members throughout her childhood, that she made repeatedsuicide attempts and that she repeatedly complained to MCFD that she was being abused. She also told him that she was investigated byMCFD regarding her parental capacity after N.A. was born. Dr.

Elterman indicated that his inability to review MCFD records posed adifficulty for him providing an opinion to assist the court, as his opinion was necessarily based only on the report of the parties withoutcollateral records for comparison. [25] I find that the allegations of childhood sexual abuse (that her mother “loaned her out” to family members for sex) are peculiarlysimilar to C.E.C.’s current claims of her sexual abuse at the hands of D.C.A. (which included that he gave her to his co-workers to besexually abused, and starved her into offering herself to other men for sexual activity for money).

It seems to me that if C.E.C. did not infact make the complaints to MCFD as she now claims she that she did, that would be relevant to her credibility. If she made thesecomplaints at that time, but they were investigated and found to be groundless, that material might also be relevant to whether her

complaints today are fabricated or delusional - which is very much a fact in issue. On the other hand, if such complaints were made, investigated and substantiated, it might go a long way to explaining C.E.C.’s current level of anxiety for her son, which is relevant to parental capacity - another fact in issue.

Thus, any records in the hands of MCFD pertaining to C.E.C.’s complaints as a child and a teenager and the investigation of those complaints are relevant to the issues, not only of C.E.C.’s credibility, but also to the issue of her parental capacity. [ 26 ] I recognise that these records will contain private, intensely personal information pertaining to C.E.C., but the existence of, and contents of this material has been placed squarely in issue by C.E.C.’s comments to Dr. Elterman. Dr.

Elterman states that the conclusion of such official investigations will place him in a better position to assess C.E.C. and make recommendations regarding guardianship and parenting responsibility - which I find will assist me in the deliberations I must make on these issues and the consideration of N.A.’s best interests. [ 27 ] I therefore order the production of MCFD records as sought by D.C.A. Medical Claims History and Pharmanet records: [ 28 ] D.C.A. seeks C.E.C.’s medical and pharmaceutical records on the basis that her mental health is relevant to her parenting capacity, which is in issue.

C.E.C. argues that D.C.A.’s concern regarding her mental health (and therefore parental capacity) is not genuine in that he was apparently content with her parental capacity until now. However, she told Dr. Elterman that D.C.A. had in fact complained to MCFD about her mental health in terms of her parental capacity when N.A. was an infant, as a result of which MCFD investigated and prepared a parental capacity report. Moreover, it is only recently that C.E.C. has alleged that D.C.A. has been sexually abusing N.A. during parenting time and that he sexually abused her historically. [ 29 ] C.E.C. told Dr.

Elterman that she repeatedly attempted suicide in her teens, had repeated admissions to the psychiatric ward of the hospital throughout her teens and thereafter into adulthood. She said that while in a psychotic state after the birth of her son S.C., she imagined her current husband was D.C.A. and was doing or about to do to her the same things she now alleges D.C.A. did to her after N.A. was born. That history clearly indicates long term struggles with mental health, and in particular, to having suffered from admittedly delusional beliefs while in a psychotic state. Dr.

Elterman’s express concern is that C.E.C.’s persistence in believing N.A. has been sexually abused despite the lack of evidence to support it and N.A.’s denial of it, and her long history of mental health issues, places her mental health squarely at issue with respect to her parenting capacity. Without the ability to review her psychiatric records, Dr. Elterman’s ability to assess her mental health in terms of parental capacity is limited to her self-report.

I find that the Medical Claims History Report and Pharmanet records are relevant to the issue of C.E.C.’s mental health which is in turn relevant to her parental capacity and credibility in the circumstances of this case. [ 30 ] I realize that C.E.C. has a privacy interest in her Medical Claims History Report and Pharmanet printout. Such records will obviously contain material relevant to her physical health as well as her mental health.

However, I understand that these printouts do not contain substantive material - rather, they will contain only the names of physicians and dates of attendance, and prescriptions claimed. Such material carries little information of a personal nature. I find that it is not necessary that these records be redacted prior to production and disclosure. [ 31 ] I order that these records be produced as sought. S.K. Keyes, PCJ