2011 BCPC 469, 2011 BCPC 469

Citation: K.K., F.K. and Y.K. v. A.F. and L.S. Date: 20110207 2011 BCPC 0469 File Nos: 18262; 18449;18295 Registry: Dawson Creek IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 K.K., F.K. AND Y.K. AND A.F. AND L.S. RULING (RE APPLICATION FOR DISCLOSURE AND S.15 REPORT) OF THE HONOURABLE JUDGE R. R. BLASKOVITS Counsel for the Director of MCFD and North Peace Community Resources Society: G. Makepeace Counsel for L.S.: B. Coller Counsel for A.F.: M. Katerberg Counsel for K.K.: I. Henderson Appearing on his own behalf and on behalf of Y.K. F.K.

Place of Hearing: Dawson Creek , B.C.

Date of Judgment: February 7, 2011 [ 1 ] THE COURT : This is my ruling on five motions, which I heard this morning in the actions between the following parties. [ 2 ] K.K. and A.F., under action number 18262; Y.K. and F.K. versus A.F. and K.K., under action 18449 and L.S. versus K.K. and A.F., under action number 18295. [ 3 ] My sister judge, Bowry, made two orders in the past joining these actions, not necessarily for purposes of hearing, but for purposes of pre-trial motions and notices among parties in respect of competing motions that might be made before hearing of the actions.

These five motions are as follows. [ 4 ] Firstly, the motion of L.S., which are for residual items that have not yet been ruled upon on a motion of L.S., filed on August 17th, 2010, vis-à-vis K.K. and A.F.

L.S. applies by way of motion for copies of counselling records, which at the time she filed her motion was unclear to her in whose hands those counselling records lay, and she sought and seeks today a direction that those parties, K.K., Y.K. and F.K. prepare authorizations to release such counselling records. [ 5 ] It is now evident to L.S. through proceedings in respect of all matters that the counselling records she seeks are in the hands of the North Peace Community Resources Society. [ 6 ] The second motion is that of A.F., filed on November 3rd, 2010, whereby A.F. seeks the counselling records of the North Peace Community Resources Society, as they may relate to all of K.K., A.F., the child G.F. and the child M.F. [ 7 ] The third motion is that of A.F. as well, filed December 16th, 2010, whereby he seeks production of RCMP records in the hands of the Dawson Creek Detachment and RCMP records in the hands of the Chetwynd Detachment, respecting K.K. and A.F. in both cases. [ 8 ] The fourth motion is that of A.F., filed January 7th, 2011, whereby A.F. seeks copies of the Director's records as they relate to K.K., A.F., G.F. and M.F. [ 9 ] Finally, although not chronologically finally, is the motion of K.K., filed January 4th, 2011.

K.K. seeks a s. 15 report be ordered with respect to the Views of the Children, so far as they pertain to L.S.'s access to those children. [ 10 ] I will deal firstly with the motions of A.F. in respect of records in the hands of the North Peace Community Resources Society, that motion was defended and opposed by counsel for the Director, who is also de facto counsel for the Community Resources Society today, as it was explained to the court that such records in the hands of the society are there by virtue of a contractual arrangement between the Director of Family and Child Services and the Resources Society, and that motion was the most contentious under the circumstances. [ 11 ] In support of the Director's position I had the opportunity to read the affidavit of Stacey Lee, clinical manager of the North Peace Community Resources Society, which set out some of the background and the reasons for the Director’s and the society's opposition to disclosure of these records to A.F., and by virtue of A.F.'s drafting of his motion, a release of those records to all of the parties in the actions. [ 12 ] Counsel for A.F. spent some time arguing to me the following position, that I should either strike the affidavit or disabuse my mind of it, chiefly on grounds that the status of Stacey Lee as an expert was not set out.

A number of the points she avers to in her affidavit can be characterized as double hearsay evidence, reporting to the court the contents of reports she has read and conversations she has had with other persons who have had dealings with the two children while in the care of the North Peace Community Resources Society and engaged in counselling with that society. [ 13 ] To support his position three cases were cited to me. That of J. (K.F.) v. J. (D.F.) a decision of the British Columbia Supreme Court, BCJ [1986] No. 672; a decision of Webber v.

Wallace [1994] BCJ No. 1894 , also a decision of the British Columbia Supreme Court and Kennedy v. Kennedy [2006] BCJ No. 509 , also a decision of the British Columbia Supreme Court. [ 14 ] These cases dealt with the circumstances under which a court should proceed in the absence of affidavits, which A.F. argues here were drafted upon the same dubious grounds that A.F. says the affidavit of Stacey Lee was advanced. [ 15 ] I will note and distinguish the three cases for the following reasons. [ 16 ] J. (K.F.) v.

J (D.F.) was a consideration of the content of affidavits which the petitioner sought to have the court rely upon in her application for an order cancelling access. [ 17 ] The case of Webber v. Wallace was one in which affidavits were advanced in an application for sole custody of the children. [ 18 ] The case of Kennedy v. Kennedy was one in which the affidavits were impugned in an application for a

summary trial. [ 19 ] The chief distinction among those cases, and the affidavit I am considering here, is the support of an interlocutory motion alone, and not in support of the very issues on which I might be called upon to decide as they lie between the parties, namely custody and access.

[ 20 ] This is K.K. and A.F.'s application and cross application for custody, or joint custody, as the case may be, Y.K. and F.K.'s application for custody vis-à-vis the parents, A.F. and K.K., and L.S.'s application for access, as against K.K. and A.F.. [ 21 ] In my view, I can consider the content of this affidavit, and I do not strike its content. [ 22 ] Common sense suggests to me that counselling records should not be in the hands of the parties in this litigation, not on the grounds that the disclosure of those documents would jeopardize any police investigation, but on the grounds that the children themselves are entitled to privacy.

It is in the best interests of the children that I must decide this motion, as I would any hearing, upon the merits. [ 23 ] The children themselves, who are aged 10 and nine, were enrolled in counselling at the society I am told as a result of the actions of the Director in respect of some child protection concerns which existed earlier on among the parties, and those children were entitled to enter into counselling on the assurance that the things they said to their counsellors would not find their ways into the hands of their parents. [ 24 ] A s. 15 report was ordered nearly two years ago in respect of these actions and has yet to be prepared, and it is my understanding that those counselling records are not in the hands of the expert preparing that report either. [ 25 ] Counsel for the Director and Society also points me in the direction of s. 19 of the Freedom of Information and Protection of Privacy Act , an Act which is not in issue in respect to this motion, but which guides public bodies in the disclosure of information in applications made under the Act . [ 26 ]

Section 19 authorizes the head of a public body to refuse disclosure of personal information which could reasonably be expected to threaten anyone's safety or mental or physical health, or interfere with public safety. I am reasonably sure, based upon Stacey Lee's affidavit here, that a disclosure of counselling records would threaten the mental health of the two children, based upon the information that I read in that affidavit. [ 27 ] Now, the Royal Canadian Mounted Police have not opposed A.F.'s application for disclosure of records in their hands, as they relate to K.K. and A.F.

It became apparent to me, however, in the submissions here that the Chetwynd Detachment of the RCMP obtained production orders on November 25th, 2009 and March 31st, 2010, as against the North Peace Community Resources Society for case notes relating to counselling received by the children, M.F. and G.F.. [ 28 ] Therefore, I am going to proceed on the assumption that one or both of the RCMP detachments are in possession of counselling records, which A.F. seeks today as well. [ 29 ] In making my orders today, I am also cognizant of the fact that counselling records sought here are in respect to the Family Relations Act proceeding and not the criminal proceeding, and it would be open to A.F. to make an O'Connor application for disclosure of those records, were this a hearing following eventual charges. [ 30 ] In respect of the application for a s. 15 Views of the Child Report, K.K. has advanced the argument that the children will have views about the nature of their relationship with L.S. and are old enough to report those views to persons. [ 31 ] L.S., being the paternal grandmother of the children, complains she has not had access to the children in approximately two years. [ 32 ] A s. 15 report is sought to be prepared by the Family Justice counsellor.

The Family Justice counsellor will require several months to prepare a report under s. 15 for the benefit of the court, but it is my view that the views of the children will assist the court. [ 33 ] I am also aware now that the three actions have not yet been scheduled for hearing, one or more of them was scheduled for hearing on the Family assize of January 17th, 2011 and did not proceed.

It is very likely the parties will not have a hearing date before September of 2011. [ 34 ] Accordingly, my orders are going to be as follows in respect of these five motions. [ 35 ] The applications of A.F. and L.S., to produce the counselling records of the North Peace Community Resources Society, are denied. [ 36 ] The application of L.S., to compel the authorization of Y.K., F.K. and K.K. to sign releases for these counselling records, is denied. [ 37 ] The application of A.F., of two RCMP detachments to provide their records in respect of K.K. and A.F., is granted, except insofar as those police bodies hold counselling records of the North Peace Community Resources Society, and those shall not be disclosed.

This order is subject to the conditions set out in A.F.'s motion. [ 38 ] The application of A.F., for the Director to produce its records regarding all of K.K., A.F., G.F. and M.F., is granted, except insofar as any counselling records of the North Peace Community Resources Society may be in the hands of the Director, and that order is subject to the conditions set out in A.F.'s motion. [ 39 ] The application of K.K., for a s. 15 Views of the Children Report to be prepared by a Family Justice counsellor, is granted.

I will say that s. 15 report should not only include the views of the children, but be an access report vis-à-vis L.S.'s access generally. (RULING CONCLUDED)