B.R. v. S.F., 2020 BCPC 212

Citation: B.R. v. S.F. 2020 BCPC 212 Date: 20201102 File No: 1650162 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: B.R. APPLICANT AND: S.F. RESPONDENT REASONS FOR JUDGMENT RE: DISCLOSURE OF DOCUMENTS OF THE HONOURABLE JUDGE M.J. BRECKNELL Counsel for the Applicant: P.D. LeBlanc Counsel for the Respondent: G.R. Pugh Place of Hearing: Prince George , B.C.

Date of Hearing: October 9, 2020 Date of Judgment: November 2, 2020 INTRODUCTION [ 1 ] O.J.M. (or “O.”), born [omitted for publication], is the child of B.R. (or “Mr. R.”) and S.F. (or “Ms. F.”). O.’s parents have been locked in litigation since soon after her birth. This decision deals with a small component of that litigation. [ 2 ] Mr. R. applies in two Notices of Motion filed on February 14, 2020, and August 27, 2020, for disclosure of documents held by third parties with regard to Ms. F.’s health history (the Records). [ 3 ] Mr.

R. submits that the disclosure he is seeking is relevant and necessary in order for the Court to properly determine the trial issues of parenting time and parenting responsibilities. [ 4 ] Ms. F. opposes the disclosure on the basis that it interferes with her privacy interests and that the Records sought are not necessary for the Court to make the necessary determinations set out in the pleadings. [ 5 ] There is some urgency to the applications before the Court because if disclosure is ordered, it will have to be obtained quickly to preserve the trial date set for the December 2020 assize.

BRIEF HISTORY [ 6 ] The background information concerning the present application before the Court is gleaned from the pleadings and from the report prepared by Dr. Ronald LaTorre Ph.D. (Dr. LaTorre) pursuant to an order of the Court and

Section 211 of the Family Law Act. [ 7 ] Mr. R. was born on [omitted for publication], and is [omitted for publication] years old. He was born and raised in Prince George, BC. Ms. F. was born on [omitted for publication], and is [omitted for publication] years old. She was born and raised in Abbotsford, BC. [ 8 ] The Parties met in March 2015 when they were both residing in Fort St. John and they moved in together soon after. At the time Mr. R. was working in his occupation as a concrete finisher and Ms.

F. was working as a dispatcher at a taxi company. [ 9 ] During the early part of the relationship the Parties often consumed a number of illegal drugs including marijuana and cocaine. There is considerable disagreement between them as to who used which drugs and in what circumstances before Ms. F. became pregnant and whether or not such drug use continued by each of them after the separation. [ 10 ] By the fall of 2015, Ms. F. was pregnant with O. Ms. F. has Type 1 diabetes since childhood and her pregnancy was high risk so she returned to Abbotsford in April 2016, where specialized medical care was available.

Mr. R. remained in Fort St. John for several months after but did attend O.’s birth. O. was approximately five weeks premature and delivered by Caesarean section. [ 11 ] By the early autumn of 2016, the Parties moved to Prince George and resided with Mr. R.’s mother. There was a great deal of strain between Ms. F. and Mr. R.’s mother over the next several weeks. [ 12 ] In mid-October 2016, Ms. F. and O. left Prince George for Abbotsford. Ms. F. has resided in Abbotsford ever since. [ 13 ] Since 2016 there have been several orders concerning the Parties parenting time with O.

The present alternating two-week parenting time regime has been in place since December 8, 2016.

There have been cross allegations by each of the Parties that the other has been in breach of the Court’s direction which have resulted in additional orders concerning parenting time and the Parties conduct. [ 14 ] On several occasions during the Parties relationship there were reports made to the Ministry of Children and Family Development (MCFD) concerning cocaine use. [ 15 ] In 2017 allegations of illegal drug use jointly by the Parties while caring for O. in a local hotel caused the MCFD to again become involved with the Parties resulting in a safety plan for O.’s care. [ 16 ] Each of the Parties alleges the other has, or attempted to have, witnesses provide false evidence to the Court in the course of the litigation. [ 17 ] This matter was set for trial on three previous occasions prior to the trial scheduled for December 2020.

FACTS ALLEGED [ 18 ] The facts alleged by Mr. R., in support of his application for disclosure of documents from third parties, concerning Ms. F.’s physical and mental health include the following:

a) Ms. F.’s admission in paragraph 13 of her October 27, 2016 affidavit: … Along with my Type I diabetes, I have a diagnosed depression disorder for which I’ve taken medication for years. I suffer from extreme mood swings and I have periods of depression.

b) Ms. F.’s admission during her evidence in the March 18 and 19, 2019 hearing that she has suffered from mood swings since the age of 16 and takes medication to control that condition prescribed by her family doctor, Dr. Broncyn Mussell (Dr. Mussell);

c) Ms. F.’s statements to Dr. LaTorre regarding her psychiatric history as set out in Pages 44 and 45 of the

Section 211 report;

d) information Dr. LaTorre received from Dr. Mussell, concerning Ms. F.’s mental health history and her present circumstances and treatment set out on page 76 of the

Section 211 report;

e) information Dr. LaTorre received from Dr. Heywood Choi (Dr. Choi), Ms. F.’s endocrinologist concerning her physical health history as it pertains to her Type 1 diabetes and her present circumstances and treatment as set out on pages 76 and 77 of the

Section 211 report;

f) information Dr. LaTorre received from Ms. F.’s mother about Ms. F.’s hospitalization for diabetes related issues in July 2020;

g) conclusions and recommendations made by Dr. LaTorre on pages 83 and 87 of the

Section 211 report concerning Ms. F.’s present mental health and diabetes;

h) references made by Dr. LaTorre on page 45 of the

Section 211 report regarding Ms. F.’s attendances for mental health and grief counselling in June 2019. SUBMISSIONS AND DISCLOSURE SOUGHT [ 19 ] In

summary, Mr. R. seeks in the Notices of Motion disclosure of the Records for the period of time from January 1, 2014 until the present; all documents including all handwritten notes in the possession or control of:

a) Dr. Broncyn Mussell, her family doctor;

b) the Abbotsford Addiction Centre;

c) the Abbotsford Regional Hospital and Cancer Centre;

d) Gateway Healthcare;

e) Abbotsford Mental Health and Substance Use Centres. [ 20 ] There is no request in either of the Notices of Motion for any documentation from Dr. Choi although he was referred to both in counsels’ submissions and in the

Section 211 report prepared by Dr. LaTorre. [ 21 ] Mr. R. seeks to have the Records sent to his counsel and then provided to Ms. F.’s counsel. [ 22 ] Mr. R.’s counsel’s submissions can be summarized as:

a) the timeframe for requested documents was amended to 2017;

b) there is already extensive evidence before the Court demonstrating that Ms. F.’s mental health and diabetes have manifested themselves in years of troubling behaviours;

c) Ms. F.’s health issues are central to her ability to provide full time parenting to O.;

d) Ms. F.’s documented history concerning her mental health and diabetes appear to be continuing given what is documented in Dr. LaTorre’s

Section 211 report based on his communication with Dr. Mussell, Dr. Choi and Ms. F.’s mother and Ms. F.’s recent hospitalizations;

e) Dr. LaTorre will be cross examined about the

Section 211 report at the trial and Ms. F.’s health records would assist him in expanding on his report;

f) it is important to have the records sought in order for the Court to determine O.’s best interests;

g) Counsel will ensure, and Mr. R. agrees, that he will not receive copies of any records disclosed but will only review them in counsel’s office;

h) Ms. F.’s privacy interests are important but the best interests of O. outweigh those privacy interests when it comes to the Court’s duty in determining the issues of parenting time and parenting responsibilities in O.’s best interests (see R.C.T. and K.A.P. ). [ 23 ] Ms. F.’s counsel’s submissions can be summarized as:

a) disclosure of Ms. F.’s medical records are a serious invasion of her privacy rights;

b) some of the disclosure sought by Mr. R. are duplications of information available from other sources;

c) some of Ms. F.’s recent medical attendances have nothing to do with the present litigation;

d) it is not the role of the Court to seek to diagnose any party to the proceeding;

e) the trial has been adjourned on three occasions. The Court should conclude that Mr. R. has accepted that Ms. F. has the ability to parent O. despite her health issues particularly when he agrees that Ms. F. will have some parenting time even if he is granted the majority of the time;

f) Mr. R. wants to drag out historic issues to further torment Ms. F.;

g) Mr. R.’s behaviour in this litigation by passing on private information concerning Ms. F. to other parties demonstrates his

improper motives for seeking this further information (see Kalsi, Gorse, and B.F.). He is on a fishing expedition. [24] If disclosure of any or all the documents sought by Mr. R. is granted; Ms. F.’s counsel urges the Court to make the followingalternative orders:

a) require Dr. Mussell and Dr. Choi to provide letters regarding Ms. F.’s diagnosis, prognosis and compliance with regard to themedical care they provide to her;

b) any disclosure concerning Ms. F.’s health be limited to one year of historical information;

c) any disclosure be made by way of a Halliday order to permit Ms. F.’s counsel the opportunity to excise irrelevant informationto protect her privacy. THE LAW The Family Law Act [25] The relevant provisions of the Family Law Act (FLA) include:

a) Best interests of child 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, theparties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including thefollowing: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parentingtime or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward thechild or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to carefor the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, includingwhether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical,psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out insubsection (2), and only to the extent that it affects that factor. Caselaw [26] Counsel submitted and/or referred the Court to the following cases:

a) A.M. v. Ryan (SCC), [1997] 1 S.C.R. 157;

b) Jones v. Nelson (1980) (BC CA), 24 B.C.L.R. 109 (B.C.C.A.);

c) Halliday v. McCulloch (1986) (BC CA), 1 B.C.L.R. (2d) 194 (B.C.C.A.)

d) H.V.G. v. L.E.T. 2017 BCSC 791;

e) Callan v. Cook 2013 BCSC 142;

f) L.C.T. v. R.K. 2013 BCSC 1437;

g) K.A.P. v. K.A.M.P. 2012 BCSC 811;

h) Hyvarinen v. Burdett 2012 BCSC 1034;

i) Gorse v. Straker 2010 BCSC 119 ;

j) Kalsi v. Kalsi 2009 BCSC 513 ;

k) C.K.M. v. L.O.S. 2020 BCPC 75 ;

l) B.F. v. J.A.L.F. 2019 BCPC 240 ;

m) C.E.L. v. D.C.A. 2016 BCPC 147 ;

n) S.R.M. v. N.G.T.M. 2013 BCSC 719 ;

o) T.E.K. v. B.V.S. [1994] B.C.J. No. 439 BCPC;

p) R.C.T. v. M.T.T. [1997] BCJ No. 1239 . DISCUSSION Case Law [ 27 ] The cases referred to by counsel deal with various types of disclosure including financial, medical health and mental health in a variety of legal contexts including personal injury and family law. [ 28 ] The case-law describes a number of factors, some contradictory, that the Court must consider in dealing with private, personal information held by third parties. [ 29 ] Starting point in any analysis is the four-part Wigmore test described in A.M. :

a) the communication must originate in a confidence that will not be disclosed;

b) the element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties;

c) the relationship must be one which in the opinion of the community ought to be sedulously fostered; and

d) the injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the action. [ 30 ] The various cases delineate numerous other factors to be considered by the Court in an application for disclosure including:

a) the Court must exercise care to ensure the protection of the privacy interests of a party to whom the records pertain (see Hyvarinen );

b) privacy interests may be supplanted in favour of the best interests of the child and the interests of justice (see R.C.T., K.A.P. )

c) an applicant for disclosure must demonstrate a clear connection to the issues before the Court beyond a mere possibility;

d) evidence in support of a disclosure application must be detailed and persuasive and not either sparse in nature or contradictory (see L.C.T. , Kalsi );

e) disclosure of documents must relate to the issues set out in the pleadings. Disclosure will only be ordered, and maybe circumscribed, if they are relevant, not a fishing expedition and not sought for an improper purpose (see B.F .,T.E.K., Gorse );

f) a previous history of treatments or hospitalizations for symptoms or illnesses similar to recent treatments or hospitalizations may make the records more relevant to the issues before the Court;

g) disclosure of documents may be limited or refused if the requesting party has previously disclosed confidential, private or embarrassing information about the other party in the past;

h) where disclosure may seriously damage an ongoing counselling or therapeutic relationship with the record holders it may be denied (see B.F .);

i) disclosure may be topic or time limited (see H.V.G. , K.A.P., B.F .);

j) the records to be produced may be expansive and include those “relative to any assessment, treatment or counselling contained in clinical records, interview notes, testing results, medical consultation reports and assessment materials” (see K.A.P .); or

k) the records should be limited in scope to those dealing with diagnosis, prognosis and treatment compliance (see H.V.G. , B.F .);

l) a disclosure order, if granted, may be wide ranging or limited by Jones or Halliday orders (see C.E.L. , Callan );

m) if a Halliday order is made and counsel fulfils their obligations to the Court there is no prejudice to the opposing party’s discovery rights. They may apply to the Court to make a determination if they feel that relevant information has not been disclosed ( Gorse );

n) disclosure of relevant documents is extremely important in order to enable a party to prepare for the for the litigation and to assist the Court in discerning the truth and rendering a just decision ( A.M. ).

Section 37 [ 31 ] Although the orders being sought in this application do not directly deal with parenting arrangements, the decision here will have a direct impact on the evidence that will be available to the Court at the trial of those issues. [ 32 ] In particular, in considering O.'s needs and circumstances the wording of Section 37(2)(

f) as it pertains to Ms. F.'s ability to "exercise" her responsibilities in light of her health situation must be carefully considered. [ 33 ] The Court must also consider Section 37(3) to ensure that it protects, to the greatest extent possible, O.'s physical, psychological and emotional safety, security and well-being that might be impacted if Ms. F.'s health interferes with her capacity to parent O. on a full- time basis. [ 34 ] Finally, the Court must insure that the direction in Section 37(4) is respected so that Ms.

F.'s "conduct" in maintaining her health is only considered if it substantially affects her ability to exercise parental responsibilities. Requested Disclosure [ 35 ] Based on what is contained in the Court file and the submissions of counsel there is evidence that both Parties have attempted to manipulate the Court's process to their own ends with little regard for O.'s best interests. [ 36 ] That raises suspicions about Mr. R.'s genuine intent in wanting to obtain Ms. F.'s medical records. However, it also raises suspicions about Ms.

F.'s blanket refusal to provide information from her treating medical providers about her ability to parent O. on a full-time basis. This is particularly worrisome in light of the information provided by those medical providers and her mother concerning her recent health circumstances as detailed in Dr. LaTorre’s

Section 211 report. [ 37 ] Considering the evidence presented there are legitimate reasons to require Ms. F. to provide some of the disclosure sought in order for the Court to assess her capacity to provide full-time care to O.; the very result she seeks in this litigation. [ 38 ] How the records are produced and vetted requires a process to ensure that Ms. F.'s privacy is only intruded upon to the minimum amount required to allow the Court to assess O.'s best interests. [ 39 ] The Records will be subject to a Halliday order. They will be delivered to and vetted by Ms.

F.'s counsel before the redacted version is provided to Mr. R.’s counsel. Any issues concerning the redacted Records can be addressed either by application prior to trial or by the trial Judge. [ 40 ] The period of disclosure will also be time limited. The retroactive dates sought by Mr. R. in both the Notices of Motion and counsel submissions are excessive in the circumstances. The disclosure will be time limited to records maintained from January 1, 2018 to September 30, 2020. [ 41 ] The initial breadth of the disclosure needs to be quite encompassing to allow Ms.

F.'s counsel the appropriate background information to decide whether portions of the Records may be unrelated to the aspects of Ms. F.'s medical history relevant to determining her ability to carry out her parental obligations in O.'s best interests. [ 42 ] Without the benefit of examining all the Records maintained by the various entities concerning Ms. F., it is difficult for the Court to determine exactly what might be relevant but some direction is necessary. At a minimum, the Records detailing Ms.

F.'s obtaining medical services for her mental health and Type I diabetes must be disclosed. [ 43 ] The Records must include information related to any assessment, treatment or counselling regarding the two topics at issue and must include records, notes, test results, consultation reports, assessment materials and medications prescribed to her. [ 44 ] They must also include any records detailing Ms. F.'s diagnosis, prognosis and compliance with treatment including any record of non-attendance for any ongoing prearranged treatment or counselling. [ 45 ] Once Ms.

F.'s counsel has vetted and provided the redacted Records to Mr. R.'s counsel there must be further safeguards implemented to protect Ms. F.'s privacy. Mr. R.'s counsel shall not provide to him any originals or copies of the Records concerning Ms. F. in any format including hard or electronic copies. Mr. R. is free to examine the Records in his counsel's office in order to provide instructions and prepare for trial. [ 46 ] In addition, Mr. R. and his counsel are prohibited from disseminating the Records to anyone by any means, including hard or electronic copies.

An exception will be that the Records may be disclosed to Dr. LaTorre and any expert retained by Mr. R. to provide expert evidence concerning Ms. F.'s mental health and Type 1 diabetes. [ 47 ] Mr. R.'s counsel will be required to immediately return the Records in his possession to Ms. F.’s counsel in the following circumstances:

a) the conclusion of any appeal period or decided appeal after the trial of this matter; or

b) within 21 days of the entry of a final consent order resolving the litigation, or

c) immediately, if he is discharged as counsel by Mr. R. [ 48 ] Having reviewed the list of entities from whom the Records are sought, the affidavit material filed on behalf of Mr. R. and counsel submissions there are some requests that amount to "fishing.” There has to be some demonstrated connection between Ms. F.'s relevant health issues and those entities beyond a mere possibility. That applies to requests for documents from:

a) the Abbotsford Addiction Centre. [ 49 ] Although Mr. R. has raised the issue of Ms. F.'s past and ongoing substance abuse, the same allegations have been raised against him by Ms. F. Given the cross allegations, denied by both Parties, there is insufficient evidence on that matter to compel disclosure. [ 50 ] Although Dr. Choi was served with the August 27, 2020 Notice of Motion and there was extensive reference to his treatment of Ms. F.’s Type 1 diabetes there is no application before the Court requiring him to produce records.

It is possible that due to his association with Gateway Healthcare the information concerning Ms. F.'s Type 1 diabetes history and treatment will be contained in the records they disclose. [ 51 ] Ms. F.'s counsel also suggested that medical/legal letters or reports be prepared by her treating doctors regarding her diagnosis and prognosis concerning her mental health and Type 1 diabetes. That is an excellent suggestion but there is no application regarding that matter before the Court and no order will be made. There is nothing to stop Ms. F. from seeking such evidence directly from her treating doctors.

DECISION [ 52 ] The following Records will be disclosed to Ms. F.'s counsel pursuant to a Halliday order for the time period January 1, 2018 to September 30, 2020:

a) All Records related to any assessment, treatment or counselling for Ms. F. regarding her mental health and Type 1 diabetes including records, notes, test results, consultation reports, assessment materials and medication prescribed to her; and

b) All records detailing Ms. F.'s diagnosis, prognosis and compliance with treatment including any records of non-attendance for any ongoing prearranged treatment or counselling;

c) in the possession or control of: i. Dr. Broncyn Mussell, her family doctor; ii. the Abbotsford Regional Hospital and Cancer Centre; iii. Gateway Healthcare; iv. Abbotsford Mental Health and Substance Use Centre also called the Abbotsford Mental Health Team. [ 53 ] All documents provided to Ms. F.'s counsel will be provided, in redacted form, within 14 days of receipt to Mr. R.'s counsel on the following terms and conditions:

a) Mr. R.'s counsel shall not provide to him any of the Records, in any format including hard or electronic copies. Mr. R. is free to examine the Records in his counsel's office in order to provide instructions and prepare for trial;

b) Mr. R. and his counsel are prohibited from disseminating the Records to anyone by any means, including hard or electronic copies with the exception that the Records may be disclosed to Dr. LaTorre and any expert retained by Mr. R. to provide expert evidence concerning Ms. F.'s mental health and Type 1 diabetes;

c) Mr. R.'s counsel will be required to immediately return the Records in his possession to Ms. F.’s counsel in the following circumstances: i. at the conclusion of any appeal period or decided appeal after the trial of this matter; or ii. upon the entry of a final consent order resolving the litigation, or iii. if he is discharged as counsel by Mr. R. [ 54 ] The standard terms for payment of the expenses of any third party providing the Records and copying costs for same will apply. ______________________________ The Honourable Judge M.J. Brecknell Provincial Court of British Columbia