DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2014 BCPC 40

Citation: Director of Child, Family and Community Service Date: 20140129 2014 BCPC 0040 File No: F21090 Registry: Port Alberni 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 CHILDREN: Q.I.J. , born [deleted for publication] Q.P.J., born [deleted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: M.J. PARENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY

Counsel for the Director: S. Dick Counsel for the mother : R. Johnson Place of Hearing: Port Alberni , B.C.

Date of Hearing: January 29, 2014 Date of Judgment: January 29, 2014 [ 1 ] THE COURT (orally): The matter before me is an application brought by M.J. who is the biological mother of two children, Q.P.J., birthdate [deleted for publication] and Q.I.J., birthdate [deleted for publication], hereinafter referred to as "the children". [ 2 ] The application by the mother seeks disclosure contemplated by s. 64 of the Child, Family and Community Service Act ( CFCSA ). [ 3 ] The issue about disclosure of the Director’s file had previously been arranged as between legal counsel for the Director and legal counsel for the mother, in connection with an application by the mother to set aside a continuing care order with respect to the two children. [ 4 ] The evidence before me and the submissions I have received from counsel clearly indicate that there was no disagreement between counsel as to the necessity for disclosure.

Counsel had reached an agreement that such disclosure would be full disclosure of all relevant materials contained within the Director's files. [ 5 ] The matter apparently came before the court on October 9, 2013. The order that was made by the presiding judge at that time, in the presence of all counsel, dealt with issues of interim access and directions with respect to the application to overturn the continuing custody order.

What was purportedly missing from the interim consent order granted was any indication that disclosure would be made by the Ministry. [ 6 ] Notwithstanding the absence of a precise order to that effect contained within the document prepared by counsel for the mother, the correspondence subsequently exchanged between counsel indicates that such a provision was intended to have been included and that, notwithstanding the absence of that provision, counsel for the Ministry was prepared to abide by the original agreement reached between counsel and to provide the necessary disclosure. [ 7 ] I have had the opportunity of briefly reviewing the court

summary sheet contained within the record, and there is reference in the clerk's notes to the effect that the Director is to provide full disclosure prior to the family case conference. [ 8 ] I draw the conclusion that that topic was raised before the presiding judge, and that counsel is correct that the form of that order was actually made, but not reduced to writing in the form of order prepared by the mother's counsel. [ 9 ] This matter has been complicated by a number of issues. The Ministry is opposing the application of the mother to overturn the continuing custody order.

What has become more important in the mind of the Ministry is the fact that it has now been determined that the eldest child has been diagnosed as being HIV positive. This is a disease with which the mother has also been diagnosed. There is an issue with respect to how the eldest child became HIV positive.

The suggestion is that, given historical testing of the children, that there was a narrow window of opportunity for the child to be infected with HIV; that window of opportunity would have been during the period of time that the mother was having unsupervised access to the children. [ 10 ] Based on the concerns of the Ministry, they suspended the unsupervised access and proceeded to take both children into custody, and then to place them in a new foster care home outside of the local community.

As I understand the evidence and the submissions, that all occurred following the mother's discovery of the child's diagnosis of being HIV positive, and the steps that she took (and now regrets) in making public disclosure of the child's condition on Facebook. [ 11 ] Faced with the discovery, through a report of the child's HIV-positive condition made by the child's general practitioner to the Ministry, and faced with the discovery of the mother's unfortunate public disclosure of the child's condition, the Ministry was of the view that they had no recourse other than to interrupt the mother's unsupervised access and to take the children back into care. [ 12 ] It is noteworthy that at the time that this decision was made in April of 2013, the family was in a family treatment centre on a six-week program.

The interruption of that program occurred during the fifth week. [ 13 ] The matter is before me to deal with seeking a court order for disclosure. The counsel for the Ministry has made it clear that there is a recognition on the part of the Ministry of a duty of disclosure, and that a high level of disclosure is required under s. 64 of the CFCSA . However, balanced against that obligation of disclosure is a concern that there must be protection of the privacy of the child and there must be protection of the child's best interests.

Therefore, any disclosure that is made must address these Ministry concerns. [ 14 ] The Ministry is specifically concerned about the risk of emotional harm to the child, based on the mother's past conduct.

Given the nature of the application that she is bringing to overturn the continuing custody order and also the implication that she may be the source of the child's HIV infection, possibly through sexual interference, the mother's position is that: it is absolutely necessary, in addition to the disclosure of the usual documents, that there must be made available not only medical reports, but also the medical records of the child. Furthermore the ability to access medical records is now fully in the hands of the Ministry as the guardian for the child.

[15] The late former Chief Judge Stansfield in the decision indexed as British Columbia (Director of Family and Child Services) v.T.L.K., [1996] B.C.J. No. 2554, canvasses the duty and the necessity of full disclosure. At paragraph 5 of his decision, Chief JudgeStansfield describes the requirement for a fair hearing, which has been recognized by the Court of Appeal, and notes that a fair hearingmust be conducted according to the law. Judge Stansfield relies on J.P.G. v.

Superintendent of Family and Child Services (1993), (BC CA), 25 B.C.A.C. 116 at 118 in support of that proposition. [16] At paragraph 6 of his decision, Judge Stansfield then says as follows: I trust by now it goes without saying that reasonable disclosure is an integral component of fairness. As Mr. Justice Sopinka of theSupreme Court of Canada said in R. v.

Stinchcombe (SCC), [1991] 3 S.C.R. 326, in respect of civil, not criminal,practice: justice (is) better served when the element of surprise (is) eliminated from the trial and the parties (are) prepared to address issues on the basis of complete information of the case to be met... and, in respect of Crown investigations, which I suggest are equivalent to the Director's investigation: the fruits of the investigation... (are) property of the public to be used to ensure that justice is done. 7 Regrettably, in protection proceedings frequently there is inadequate, untimely disclosure, causing unfairness to parents, and lossof valuable court time.

These directions will address disclosure in this case, and indirectly will provide parameters for other cases. [17] I am satisfied on the basis of the information that is before me that full disclosure is necessary, both in the interests of thefairness of the court proceeding, and for the benefit of the presiding judge who will be asked to make a very important decision withrespect to these two children. [18] The absence of full disclosure, as contemplated by s. 64, will not assist in a fair trial and will certainly not assist in permittingthe judge to have a full range of evidence necessary to assist in determining whether the order sought by the mother can be granted. [19] Accordingly, I will make an order that the Director will provide full disclosure of the contents of the Director's file, including,without limitation, the running record which will also include the social worker's notes, as well as any notes or reports of the accesssupervisor, any medical reports, and any clinical notes which are available to the Ministry by way of application or by way of writtenconsent to any medical practitioners who have treated either of the children. [20] The intention of my order is to ensure that all relevant documents are disclosed by the Ministry, including those records whichmay be adverse to the Ministry's interest.

The intention of my order should not be construed as being limited to the parties' intendedevidence. [21] I will direct that the full disclosure by the Ministry will be made to counsel for the Ministry, Sandra Dick, for the purposes ofreview in order to ensure that all issues relating to the privilege within those documents or any other issues of privilege have beenadequately dealt with. [22] I am going to make a further order that in the event that any issues of privilege may arise, that counsel for the Ministry willinform counsel for the mother of both the nature and the description of the documents over which privilege is being claimed. [23] In addition to the medical reports, any other third party reports will also be disclosed, subject to the same terms and conditionsthat relate to privilege concerns. [24] The documents subject of this disclosure order will be provided to counsel for the mother by February 14, 2014, on the basisthat those documents will not be subject to further public disclosure or public dissemination without further court order, except thatcounsel for the mother will be entitled to release the information so obtained to (

a) experts retained by the mother's counsel for thepurposes of the hearing of the mother's application, or (

b) any other expert as may be agreed upon by legal counsel for the parties. [25] I am going to pause for a moment. Is there any further order I should be making with respect to disclosure or have I covered it? [26] MS. JOHNSON: No, I think that's everything on the disclosure. We had asked for penalties or costs. [27] THE COURT: All right.

With respect to the issue of penalty being sought by the mother, which -- [28] THE CLERK: Does this form part of the order that you just -- [29] THE COURT: Yes, with respect to the application for a penalty in the amount of $3,000, which counsel for the mother says isinferentially available under s. 64 of the CFCSA, I agree with the Ministry's position that it may be premature at this point to deal withmaking such an order.

Accordingly, I will not make the order at this time. [30] However, I will allow or grant liberty to the mother's counsel to bring forward such an application if there is a failure to complywith the provisions of this order, and further liberty to bring the issue of penalty to the trial judge in the hearing of this matter, todetermine whether, given the whole of the circumstances of this case, the actions of the Ministry should be subject to some penalty orsome other sanction as a result of the position they have taken following the disclosure agreement reached as between counsel. [31] MS.

DICK: Can I also go one step further with that, so when I report back and say -- and part of that -- part of the considerationmay be the sort of evidence that -- expert evidence that is led at the hearing, i.e., if there is a joint report, that --

[ 32 ] THE COURT: Yes, all right, and so in other -- [ 33 ] MS. DICK: That would help. [ 34 ] THE COURT: In other words, I will further indicate that any determination as to the appropriateness of a penalty or sanction will bear in mind what steps have been taken by the Ministry or the Director, subsequent to today's hearing, in order to provide additional evidence to the court in terms of parenting capacity and risk assessment or such similar types of reports. (RULING CONCLUDED)