Director v. K.S. Date:, 2013 BCPC 100

Citation: Director v. K.S. Date: 20130115 2013 BCPC 0100 File No: F27388 Registry: Surrey 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: A.S. , born [D.O.B.] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: K.S. PARENT RESTRICTION ON ACCESS S. 3.2 OF THE PROVINCIAL COURT ACT RULING OF THE HONOURABLE JUDGE J.W. JARDINE

Counsel for the Director: N. Kinsman Counsel for K.S. : J. Cohen Place of Hearing: Surrey , B.C. Dates of Hearing: January 11, 14, 2013 Date of Judgment: January 15, 2013 [ 1 ] THE COURT : This hearing pursuant to the Child, Family and Community Service Act commenced on Friday, January the 11th, 2013. The Director is seeking a Continuing Custody Order for the child A.N.S. (A.S.) born (d.o.b.). Present initially at the commencement of these proceedings were Ms. Kinsman for the Director and her instructing social worker Erin Henderson, as well as Mr. K.S., the father of the child, and his counsel Ms. Jeanette Cohen. [ 2 ] As counsel were introducing the case and outlining in

summary form what the proceedings would look like and what applications would be made, the mother of A.S., one A.R., walked into court. A.R. told the court that she was appearing in person. She also told the court that she was applying for an adjournment to get counsel. She indicated to the court that she had been estranged from her spouse and in a relapse position over the course of the previous seven months.

As the court was trying to get information and to become informed of the timing and the record of proceedings and the role of A.R. in the proceedings, she became upset and she left abruptly at approximately 10:01 a.m. Essentially, she made a submission with her feet such that the court determined that her application for an adjournment was dismissed. It should be noted that A.R. returned to the door of the courtroom at courtroom 311 at approximately 11:34 a.m. She looked through the glass windows but did not come in. She has had no further role in these proceedings. [ 3 ] Ms.

Cohen then commenced her reapplication for a further order of disclosure pursuant to s. 64 of the Child, Family and Community Service Act . She made her application for this disclosure orally, as well as indicating she intended to apply for an adjournment of the hearing. No written application setting out the order sought or the reasons therefore were filed in the course of either the application before the Honourable Judge Bond or the application before this court. An outline of references pulled together in several sheets was presented before Judge Bond and filed as Exhibit A in these proceedings.

This application has proceeded orally. [ 4 ] Ms. Kinsman for the Director has maintained throughout the application that this was an identical application to that which went before my colleague the Honourable Judge Bond on December the 20th, 2012 and January 2nd, 2013. Going straight to the issue, Ms. Kinsman in her direct way said this is a delaying tactic and an attempt to reargue the same points brought before Judge Bond. I permitted Ms.

Cohen to proceed, relying on her assertions that she was not going to make an identical application or resubmit her application for disclosure, but that she intended to raise fresh issues and present fresh evidence. There is no question that she has provided different information to me than that which was provided to the Honourable Judge Bond. Moreover, although the presentation of the facts was not organized nor the exhibits listed, sequenced or copied and although it took a full day to present the factual context, we now have in Exhibits A to J in this application.

Through counsel's recitation of the facts as well as the record of proceedings and the court filings of the Director (including the presentation report, the court plan of care, all of the matters which were exhibited to the applications), we now have a factual context which informs this matter such that I can entertain the application and come to what in my view is a proper conclusion. BACKGROUND [ 5 ] The pertinent dates for the setting of this hearing date are contained within the record of proceedings.

Essentially, the matter was before my colleague the Honourable Judge Raven on June the 7th of 2012 for the purposes of establishing a trial date. In addition to that trial date there was, with respect to the matter, a confirmation of the dates before the Honourable Judge Lenaghan on June the 28th, 2012, a proceeding on November the 29th of 2012 before the Honourable Judge Bond, and a conclusion that Judge Bond would conduct the pre-trial conference on December the 6th, 2012. At the pre-trial conference there was Ms. Cohen for Mr. K.S., Mr. K.S. and Ms.

Kinsman for the Director. [ 6 ] During the time span from the 29th to the 6th and including a case conference which had been set in 2013, and was called ahead to proceed on December the 13th, 2012 before the Honourable Judge Hicks. The case conference went ahead. On December the 20th, 2012 before the Honourable Judge Bond, Ms. Cohen made an application for further disclosure pursuant to s. 64 of the Child, Family and Community Service Act and indicated she was seeking an adjournment.

That proceeding continued January the 2nd, 2013 and I have the benefit of the reasons of the Honourable Judge Bond that day as well as the obvious proceedings on January the 11th, 2013. [ 7 ] All of that is informed as well by the history as it relates to the mother A.R. and the half-siblings of A.S. that have been the subject of previous proceedings. The previous orders relating to the children are set out in the court plan of care which was filed with the court May 31st, 2012 and refers to what I will call the historical

summary of the removals and the subsequent Continuing Custody Orders: Occurring from 1998 to 2002 in the case of the child G.D.R.; from the 8 th of July of 2000 to a Continuing Custody Order of the 6th of December of 2002 with respect to the child G.M.R.; the removal on the 1st of April 2006 to the interim order and the Continuing Custody Order pursuant to s. 41(1)(

d) on the 11th of August of 2006 of the child G.W.R.; the removal on the 11th of August of 2007 immediately after birth of the child I.R.R. and the subsequent Continuing Custody Order pursuant to s. 49(4) and (5) on the 18th of October of 2007 of I.R.R. [ 8 ] These proceedings deal with the child A.S., as outlined above. The parties to this application are K.S., parent and the Director. We have no other parties present who are part of this application. THE POSITION OF MS. COHEN

[ 9 ] I have attempted to during the course of argument have Ms. Cohen summarize her application. That was done for the purposes of focusing the submissions and enabling the court to ascertain how the items sought impacted both from a relevance and materiality perspective on her ability to respond to the case of the Director. In

summary, there are some 14 points in the submission of Ms. Cohen that she wishes and she says that she requires in the form of an affidavit from the instructing social worker and in the form of a certified written document from Ms. Kinsman. For ease of reference, they include the following, and I have not summarized it extensively because otherwise I would go all day with this set of reasons and I have no intention of being overly long. 1. She wished to know the intended evidence to be called on behalf of the Director. 2. She wanted a list of witnesses to be called on behalf of the Director. 3. She wanted a

summary of the evidence of each witness to be called. It seems to me that the intended evidence and the

summary of evidence are duplications. 4. She wished copies of documents, any documents in the file of the Director relating to K.S. or A.R. or A.S. In other words, copies of all documents. 5. She wished the running records of social workers and she wished as well, the clinical records pertaining to the child A.S. at the Surrey Memorial Hospital as well as Children's and Women's Hospital of British Columbia for the months of September and October of 2011. 6.

She wanted copies of all correspondence to foster parents between the Director and any foster parent or caregiver to the child during the course of the Director's having her in the Director's care. 7. In addition, she was seeking correspondence between the social workers and caregivers particularly as she related it to the third party caregiver around November the 3rd of 2011. 8. She wished as well the black book notes from September the 4th, 2011 to the present. It became clear that there were two pages and those two pages were provided on January the 14th late in the day, having been copied and produced by Ms.

Kinsman in court to Ms. Cohen. 9. She wished as well e-mail communication between social workers and supervisors, all of it. 10. She wanted as well, the background and report of the general paediatrician, Dr. Jia, as reflecting the contents of the neurological follow-up and recovery and observations following the neurosurgery in October 2011. 11.

She was seeking as well, copies of all x-rays in the Director's file from September the 4th, 2011 to the present, as well as all correspondence between social workers and the Ministry of Children and Family Development and any interviews conducted by the Royal Canadian Mounted Police of K.S. or other persons relating to the police investigation, such interviews conducted by either Cst. Comia or Cst. Roberts. 12. She wished as well, printouts of any electronic records pertaining to A.S. not already disclosed. I do not know how anyone could ascertain that in any file context, but that is the request. 13.

Finally, she sought the notes between the social worker, any interviews of third parties or caregivers of A.S. from September the 4th, 2011 to the present including any interaction with babysitters, daycare providers, access providers or people to transport the child for the purposes of access to K.S. or anyone else. [ 10 ] In sum, it is the position of Ms.

Cohen that pursuant to the provisions of s. 64 of the Act and pursuant to the guidelines of the Honourable Judge Stansfield from 1995 as reported in 1996 and based on s. 7 of the Canadian Charter of Rights and Freedoms that in order for there to be a fair hearing she has need of all of those items before she could properly respond to the case for the Director or properly prepare cross-examination and formulate her strategy and tactics on behalf of her client, Mr. K.S. [ 11 ] In particular, Ms. Cohen relies upon the language of the Honourable Judge Stansfield in The Director v.

T.L.K. , and I will deal with the legislation and the law in a moment, but she says that given that we are here dealing with a continuing custody order, that in the circumstances of a permanent order being sought and in the circumstances of there being unexplained injuries, that since the burden of proof and the test on the Director is of a lesser amount, that full disclosure of all file material is required, and in order for her to be confident about that she is asking the court to require an affidavit be prepared by the social worker and to require a certification by counsel for the Director in the circumstances of this case.

THE POSITION OF MS. KINSMAN AND THE DIRECTOR [ 12 ] It is Ms. Kinsman's submission that there has been substantial if not complete compliance with the guidelines provided by the honourable judge, as is reflected in the course of the proceedings, the numerous disclosures prepared to each of the counsel for K.S. as well as the list of documents compiled and linked in Exhibits I and J in this application. It is Ms. Kinsman's submission that we are dealing here with an identical application by Ms.

Cohen to that presented before the Honourable Judge Bond and that although there were additional references provided as well as an additional case provided to this court, that there has been nothing additional, nor have there been any reasons provided pursuant to s. 64 of the statute such that the court should make any further order for disclosure. [ 13 ] In addition, Ms. Kinsman draws on the fact that there have been no detailed requests in writing. There has been a nebulous, overarching broad request in the form of an ongoing request that disclosure of all relevant and material matters be provided to Ms. Cohen.

Ms. Kinsman says the Director's case was disclosed at the pre-trial conference, the Director's case was disclosed at the case

conference before Judge Hicks, and the Director's case has been disclosed during the course of the proceedings before Judge Bond aswell as this court. She intends to call three witnesses. She had intended to proceed on the basis of the doctors' reports, although she wasgiven strict notice yesterday that they would now be required as witnesses. So we have gone from a three-day-estimate proceedings tonow something which would look closer to eight days. [14] In such a circumstance it is the position of Ms.

Kinsman that no further order should be made under s. 64, that the court shouldnot order an affidavit and that the court should look to the reasons of the Honourable Judge Bond as well as the guidelines of JudgeStansfield, and should look to the conduct of counsel in respect of this matter and should not make any further order for disclosure unlessthere are solid reasons provided.

In particular, as it relates to what I will call the police investigation of K.S. conducted by Comia andRoberts, it is the position of the Director that they do not have copies of police reports, they do not have witness statements, they do nothave from the police the course of their continuation reports or any police reports compiled, but they have disclosed all materialsreceived from the police, although requests might be made should the court so direct. [15] In respect of the historical volumes, some six of them which relate to the intakes from 1998 through 2007, it is the position ofMs.

Kinsman that they are not material to the case as it relates to K.S. unless it has some impact to K.S. wanting to take the view thatA.R. is responsible for these injuries, a position not anticipated by Ms. Kinsman and one which may well not assist him if the tack isbeing taken in the context of him putting A.S. at risk by leaving her with someone who is otherwise incapable of parenting because of arelapse. [16] Finally, in Ms.

Kinsman's submission she says the conduct of counsel for the parent is such that having regard to thepresentation of the matter and having regard to all of the disclosures contained within the filings of the Director, that Ms. Cohen has beenfully apprised of the course of the Director's case and the theory that the Director is going to be presenting at this hearing. In such acircumstance it is Ms. Kinsman's submission there should be no further disclosure ordered.

THE APPLICABLE LEGISLATION [17] The provisions which govern the scope of a trial judge's discretion to order disclosure in Child, Family and Community ServiceAct hearings is found in several statutes. For ease of reference I will commence with the most general and then I will move to thespecific provisions which govern and guide the principles and analysis of this test. We start with the Canadian Charter of Rights andFreedoms, The Constitution Act 1982, in particular s.

Section 7 provides that: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [18] It has been found and has been referenced in a number of the authorities that s. 7 has application to child protectionproceedings. The leading authority which commenced all of that is New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC), [1999] 3 S.C.R. 46 (S.C.C).

It is to be noted that the court did not require that there be appointment ofcounsel in all cases but said that where there were circumstances where the capacity of the parent may be overwhelmed by theseriousness and complexity of the proceedings that counsel may be appointed by the sitting jurist.

It is trite to say that the CanadianCharter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by lawas can be demonstrably justified in a free and democratic society. [19] That is set out in s. 1, and it is that test which of course establishes the nature of the reasonable limits which are provided by thechild protection legislation of each of the provinces or the territories. It is to be noted that those reasonable limits which are provided inthat legislation is governed and informed by the nature of child protection proceedings.

Child protection proceedings do not comewithin s. 11 of the Charter. The parent is not charged with an offence, nor are the proceedings purely adversarial in nature. Therefore, s.11 and the aspects of disclosure contained within s. 11 as it relates to what we call the meeting of a case and the capacity of a chargedperson to make full answer and defence in criminal proceedings have no application in child protection proceedings. The Child, Familyand Community Service Act rules have application.

Rule 2(3) provides: When a judge directs a case conference under subrule (1) the judge must review the extent of the disclosure made and requested under s.64 of the Act and may make any order for disclosure consistent with the Act. I note that was not done by Judge Hicks on December the 13th, 2012. [20] We are also governed when one looks at the rules of the statute, we are governed by Rule 4(1) which provides under theheading "Hearings How Evidence Is Given":

(1) At a hearing evidence may be given orally on oath or affirmation or if the judge allows (

a) by affidavit subject to Rule 5; (

b) bystatements of facts agreed to by the parties; or (

c) as permitted under s. 68(2)(

b) of the Act. While we're with the rules, we are also governed by Rule 8. Rule 8 provides that the judge may adjourn the hearing.

(1) Whether or not the parties consent, a judge may adjourn a hearing to a specific date. Under Rule 8(9): Subject to subrule (8), a judge who has heard any evidence at a hearing... Such as me with respect to this matter. ...must finish the hearing unless the judge dies or is otherwise unable to act. Rule 8(11): A judge may give a direction on any procedural matter that is not provided for in the Act or these rules. So there is substantial discretion given to the jurist hearing the proceedings to look at that. [ 21 ] Now, all of that of course must be subsumed within the general principles of the statute itself.

When we are dealing with the statute itself we're dealing with the Child, Family and Community Service Act , R.S.B.C. 1996, c. 46 as amended to the S.B.C. 2011 c. 17, s. 32 . There are subsequent rules amendments and regulation amendments which have taken place in

Section 8 is applied within the context of s. 2 of the Act. For this application we must have regard to s. 2 of the Act and in particular the direction that with respect to these types of proceedings the guiding principles are that this Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles. The two applicable principles, in my view, of this application are (

a) the children are entitled to be protected from abuse, neglect and harm or threat of harm; and (

g) the decisions relating to children should be made and implemented in a timely manner. The timely manner question comes into play in this matter given the age of the child, the time of removal and the passage of time to today. [ 22 ] We must consider as well, in dealing with the guiding principles under s. 2 that the best interests of a child are outlined in the statute in s. 4(1)(a), (

b) and (g). I will not read all of that, but I am in the view that there must be some timeliness to these types of proceedings in order to properly deal with the issues and provide for the child some sense of consistency and permanency. [ 23 ] The legislation also provides specifically for disclosure. Section 64(1) provides: If requested, a party to a proceeding under this Part, including a director, must disclose fully and in a timely manner to another party to the proceeding (

a) the orders the party intends to request, (

b) the reasons for requesting those orders, and (

c) the party's intended evidence. [ 24 ] Throughout all of this application I have heard nothing from Ms. Cohen that would indicate the orders she is seeking in the hearing itself. Nor have I heard anything from Ms. Cohen with respect to the reasons that she is requesting such an order, or (

c) what the evidence that she intends to lead will entail. Section 64(2) provides that, "The duty to disclose under subsection (1) is subject to any claim of privilege." Section 64(3) provides that: Evidence may be excluded from a hearing under this

Part if no reasonable effort was made to disclose the evidence in accordance with this section. [ 25 ] We are, of course, directed to consider s. 65 with respect to circumstances of court orders should the Director be denied a record which is relevant and material; we are dealing with s. 66 as to the nature of the hearings and that is what particularly informs the difference between this application and a criminal proceeding, because it is made clear in the legislation in 66 that the hearings are civil in nature and may be informal. It is a completely different circumstance from a criminal trial. S. 66 provides, 66(1): A hearing under this Act (

a) is civil in nature, (

b) may be as informal as a judge may allow, and

(

c) must be held at a different time or at a different place from the usual time or place for sittings of the court relating to criminal matters. In 66(2): No order under this Act may be set aside because of any informality at the hearing or for any other technical reason not affecting themerits of the case. That goes to what evidence may be permitted. [26] In s. 68 it provides that: Before ordering that a child be placed in or returned to the custody of a person other than a director, the court may consider the person'spast conduct toward any child who is or was in that person's care.

(2) In a proceeding under this Act, the court may admit as evidence (

a) any hearsay evidence that the court considers reliable... I have permitted counsel to outline facts during the course of this hearing because I expect counsel to be accurate in their recitation offacts and the presentation of matters involving background and records of proceedings; and I may consider: (

b) any oral or written statement or report the court considers relevant, including a transcript, exhibit or finding in an earlier civil orcriminal proceeding. Now, that may have some impact with respect to the reports that we could call the clinical reports in this matter, however, I do not thinkthat that would impact on opinion evidence from an expert witness which would be governed by other specific provisions. THE CASE LAW [27] Counsel provided two cases. I have really only focused on one of them.

I am of the view that with all due respect to theQueen's Bench of the province of Alberta, that the decision of the learned justice has little and no application to the proceedings beforeme, that the circumstances of that case are of no assistance to me and accordingly although I have considered S.D.K. v. Alberta (Directorof Child Welfare) 2002 ABQB 61 , 2002 ABQB 0061, I have not followed it and I do not intend to refer to it.

I am of the viewthat the provisions within that legislative scheme are significantly different and that for the purposes of British Columbia I am guided bymy colleague Judge Stansfield's decision as well as the Court of Appeal decision of Madam Justice Proudfoot. I will turn to those next. [28] In K. (T.L.), [1996] B.C.J. No. 2554 Stansfield PCJ (as he then was) came to a conclusion with respect to the disclosureprovided as at the first day of the hearing.

At the first day of the hearing the Director's counsel proceeded to put one of the grandparentsin the witness stand, and then during the course of that day's proceedings 130 pages of further disclosure were provided to counsel forthe parents. It is in that contextual matrix that the language of the Honourable Judge Stansfield bears significant weight to theseproceedings. [29] I do not share the perspective of the case submitted by Ms. Cohen. It was not a case argued in full by Ms. Kinsman; she hassaid that in simple terms she has complied with the case.

I am of the view that although we have the decision before us, that we are invastly different circumstances in the case at bar than that which my colleague found himself in in 1995 in T.L.K. But the guidelinesoutlined by Judge Stansfield are particularly informative and the rationale for "why" is also of significant importance to my analysishere. [30] We are dealing here with the best interests of a child in circumstances where there were significant injuries, such that she hasbeen left blind in her left eye and there are substantial challenges to her sight in her right eye.

There were injuries such that she had to gothrough brain surgery in October of 2011. One can understand that everyone wants the materials surrounding the admissions to hospital,the medical treatments in hospital and the discharges at hospital. All of that is governed by s.

Section 64 is directed not at theDirector, but at all counsel, counsel for K.S., counsel for A.R., counsel that has ever been instructed in this matter, as well as counsel forthe Director. Because when one looks at paragraph 14 of T.L.K. that is clearly delineated by His Honour.

He said: All parties (that is, parents as well as the Director) at a minimum are required to comply with the disclosure requirements of s. 64. (2)Disclosure must be timely, preferably by the date set within 45 days of the presentation for "commencement" of the hearing, in no caselater than a few days prior to the case conference (failure to disclose before the case conference functionally sabotages the settlementobjective of that process).

[31] Now, I understand what he was talking about. What he was talking about is substantial disclosure of the case to meet for eitherparty. But there is an ongoing need for disclosure, so it is not final; it is not a circumstance where at some point the gate comes down. So to some extent, point (2) needs to be modified to include the ongoing nature of disclosure. Sometimes during the course of interviewsand trial preparation, even given up to the days or days before, further material is disclosed which by its very nature needs to be disclosedto all other parties.

So it is not a matter involving a sense of finality. [32] Then we get to guideline (4) that: The minimum standard of disclosure is wholly inadequate where the Director is seeking a permanent severance of the child/parentrelationship. That is where we are at here. There is a significantly heavier onus on the social worker and Director's counsel in a case where acontinuing custody order is being sought because of the permanency of the order being sought. [33] Now, (5) and (6) and (7) and (8) all provide responsibility for seeking further disclosure to be done in a timely fashion withsuitable notice.

It is my view that the guidelines set out in (5), (6), (7), (8) provide for parallel responsibility in counsel for the parentsuch that the whole of the case they have to meet must be provided by the Director and they should provide from the oppositeperspective all documents which may be relevant to matters in issue, including the necessity to withhold or edit documents or todetermine what scope of disclosure is appropriate given the best interests of the child, or other ongoing criminal investigations whichmay or may not have impact on either the parent or any other opposing party's case. [34] I am mindful that in "unexplained" injury cases that the whole of the case that they have to meet must be provided to the parentby the Director.

That is provided for in Superintendent M. (B.) (BC SC), 28 R.F.L. (2d) 278 at 287 (B.C.C.A.) byMadam Justice Proudfoot as she then was. But the guidelines are set out by Judge Stansfield in the context of counsel's responsibility,not just the Director's responsibility. He makes that clear in that there is not a need for all materials to be photocopied and passed over,but that disclosure may be provided by attendance to the Director's office for a review of file materials and a request of review of suchdocuments.

The way I read T.L.K. it is only where there has been a significant and substantial failure by the Director or Director'scounsel or the social worker to properly disclose in a case that the court would require an affidavit from the social worker or acertification from counsel that counsel has reviewed the whole of the file and has produced or made available to the other parties allrelevant documents. In the context of T.L.K. that was apparent.

Director's counsel had simply failed in the obligation of the state toprovide disclosure. [35] That is the applicable law which I have utilized for the purposes of determining the analysis made by me. I am also guided bythe language of my colleague the Honourable Judge Bond in her reasons of January the 2nd of 2013. There are several paragraphs whichare applicable and which inform the issue similar to the issue before me.

Paragraph 3: The Ministry disclosed their documents on November the 28th, 2011 to K.S.'s first counsel, on April the 2nd, 2012 to K.S.'s secondcounsel and on June the 11th, 2012 duplicates of the prior disclosure were provided in response to Ms. Cohen's request in her two lettersmarked C and D in this exhibit hearing. Judge Bond continued: On December the 11th, 2012 further disclosure was made to Ms. Cohen and it is that disclosure of which she complains. Ms. Cohensays that her client is prejudiced by the late production of records.

In particular, she states that the documents she received on Decemberthe 11th include some documents dated prior to her request on June 6th, 2012 and these include medical documents relating to the firsthospitalization of the child in September 2011. She says the documents provide information which is adverse to the Director's positionbecause they concluded the injury to the child does not indicate abuse. She also submits that the documents include details of analtercation at an access visit which had not been previously provided. [36] Her Honour then reviewed Ms. Cohen's submissions, she reviewed Ms.

Kinsman's positions, and she made her finding atparagraphs 9, 10 and 11. For ease of reference I will quote them: [9] I cannot agree that K.S. has been prejudiced by a disclosure of documents that are helpful to his case one month prior to trial. This is particularly so where the Ministry is not demanding that Ms. Cohen produce her experts for cross-examination and is offering toproduce the documents in the Ministry's book of documents. The documents which Ms.

Cohen particularly complains of related to aperiod of time when the child was in her client's care and he was dealing directly with the medical professionals. However, I note thatsome of the material which Ms. Cohen has summarized in the document called Relevant Dates re A.S. born (d.o.b.) and the two-pageattachment to that document are documents which are supportive of the many medical reports which had already been produced to Ms.Cohen and are also referred to in summaries of social workers which the Director had provided to Ms. Cohen. [10] I note as well that the discharge

summary which seems to contain the most specific comments of concern to Ms. Cohen wasactually included in a draft form in the original documents that she was provided and in any event, those opinions expressed in those

documents which are helpful to Ms. Cohen's case arose at a time again when her client was caring for the child and was in direct contact with the medical professionals involved with the child and so he would have known who had professional care of the child and generally what their views were.

The information contained in the medical documents is consistent with the further information that was provided and does not contradict it; and as I said, while it is not information that the Ministry intends to rely on specifically, the Ministry does not say that it is harmful to their case in any event. [11] In the result, I am going to dismiss the application to adjourn the trial. At this point I do not agree that it is appropriate in this case to order an affidavit and certification of documents.

It does appear that the Ministry has made reasonable efforts to provide disclosure to K.S., first by providing them to his initial counsel, by repeating the disclosure to his second after his first counsel was discharged, and by repeating that disclosure yet again to Ms. Cohen and following up with additional disclosure a month before the trial date. [12] I am not going to make the further order for certification and affidavit. The application to adjourn the trial is dismissed.

DISCUSSION [ 37 ] It is in that context that I turn to a discussion of the evidence before me and the exhibits and the factors which would militate either for or against further disclosure being ordered having regard to the applicable legislation. I have reviewed the recitation of facts of counsel and I have considered the exhibits filed as Exhibits A through to J in this hearing. The document entitled Relevant Dates is a document which is a general outline, but it is not particularly informative or helpful. It makes reference to a number of the argument points of Ms. Cohen.

It is not from a chronological perspective completely accurate, and I place little weight upon it. [ 38 ] The January 22nd, 2012 request for disclosure from Mr. Clokie reflected in Exhibit B, as well as the ongoing basis of his request for disclosure for K.S. is of some significance and importance that it reflects a request prior to Ms. Cohen being engaged, and in any event Ms. Cohen made no request of Mr. Clokie that Mr. Clokie provide his file to her. It may well have contained notes of assistance and help to her. Ms.

Cohen's request came on May the 19th, 2012 in Exhibit C and there was a follow-up by facsimile on June the 6th, 2012 with a handwritten note June 6/12, "May I have a response?" from Ms. Cohen which led to the response from Ms. Rowbotham which is referred to in Exhibit I on June the 11th, 2012. In that June the 11th, 2012 letter from Ms. Rowbotham of Ms.

Kinsman's office, the letter informs the question this way: Please find enclosed partial disclosure of the Ministry files provided to you pursuant to s. 64 of the Child, Family and Community Service Act and pursuant to the suggested guidelines of the Honourable Judge Stansfield, citation given. [ 39 ] She also provided a list of documents listing the documents which are included with the disclosure. That list of documents included materials listed as at November the 28th, 2011.

There were in respect of that list of documents for that date 26 documents provided and a significant number of the documents were the reports from the Children and Women's Health Centre as well as Langley Child Development Centre, the Centre for Child Development, doctors' notes and doctors' reports, the discharge instructions dated October the 16th, 2011 After Neurosurgery instructions, the report prepared by Dr. Paul M.A. Korn of October the 13th, 2011, the report of the Child Protection Service Unit prepared by Dr. Paul M.A.

Korn dated September the 15th, 2011, as well as the paediatric neurological surgery letter from Dr. Khalid Al-Kharazi dated October the 14th, 2011, as well a letter/report prepared by D.S.G. Kelleher dated September the 17th, 2011 and a fax from Dr. Kelleher dated September 26, 2011. [ 40 ] There were as well, Ministry of Children and Family e-mails for the period of September the 16th, 2011 to November the 16th. There was a reference to supported visitation family feedback form and the open transfer

summary recording. I note that there was as well a list of documents referred to as a second and separate list, some seven items which included black book notes from November the 10th, 2011 to March 8, 2012, as well as Ministry e-mails from September the 16th, 2011 to February the 15th, 2012, reports from the supported visitation program at Kla-how-eya from September 2011 to March 5, 2012, as well as the Fraser Region initial assessment and plan of care and letters from named persons. That was a significant amount of disclosure provided in the context of the previous disclosures made to Messrs.

Boyd and Clokie, the initial two counsel. [ 41 ] Subsequently, in Exhibit J there was significant disclosure made by the Director to Ms. Cohen in a list of documents dated December the 11th, 2012 which makes reference to a significant number of interactions between K.S. and A.R. to social workers, as well as black book notes from March the 15th, 2012 to November the 16th, 2012, as well as e-mails relating to prescriptions, eye doctors, Surrey Memorial Hospital medical records, the neurosurgical clinic letter to Dr.

Susan Kelleher from Ashutosh Singhal dated November 17, 2011 and the diagnostic radiology consultations in respect of what they found, as well as the discharge summaries of numerous doctors from the Children and Women's Health Centre of British Columbia in the months of September and October of 2011. [ 42 ] The other particularly significant portions of material which went to Ms. Cohen involved the outline of the intakes from 1998 through 2007 of the historical materials.

There were three intakes in 1998, two in 1999, one in 2000, one in 2002, one in 2006 and one in 2007, as well as the intakes with respect to the instant commencement of the proceedings on September the 3rd, 2011 and September the 7th, 2011. [ 43 ] There is one exhibit which is particularly of some significance to the disclosure being sought and that is Exhibit G. Exhibit G is an e-mail from Cst. Roberts to social worker Erin Henderson. It reflects the contents of a ten-minute interaction at the door of the basement suite with K.S.

It is in the context of a police investigation as it relates to K.S. and it would appear that Cst. Roberts in company with another officer attended to the door. There are portions of the e-mail which reflect conclusory statements of opinion of the

officers which would not be permissible in evidence.

Those conclusory statements of opinion must of course be reflected by some aspect of a police report or investigation, either a form known as a continuation report within the context of the Royal Canadian Mounted Police or a police notebook or some form of investigative report and documentation in a particular case file. [ 44 ] I am not of the view that the court, since there is either a criminal case going or a Criminal Code investigation going or a proposed criminal proceeding, should order disclosure of any part of that police report in the context of complete disclosure such as would be provided in a criminal proceeding.

However, it is the intention of the Director to call Cst. Roberts to give evidence of K.S.'s interaction with her. In such a circumstance, it would be appropriate before Cst. Roberts testified that there be timely disclosure of the aides-memoires to be utilized by the officer in the giving of her testimony. It is not a circumstance where I am making an order pursuant to s. 65 of the Act because I have no application. It is a recognition by the court by way of discussion and by way of analysis that this is material which should be disclosed in a timely fashion so that Ms.

Cohen may prepare her cross-examination of Cst. Roberts and take instructions from her client as it relates to all of the other evidence in the case, as well as the timing of the interaction between the officer and K.S. So while I am not making an order for disclosure of the police file, what I am seeking that the Director do is request of Cst.

Roberts that she provide her notes or redacted portions of any continuation report of her investigation as it relates to her interviews or interactions with K.S., not in relation to any other matter which may be of privilege or would impinge on either the impact of a criminal investigation as it relates to other matters. [ 45 ] There are factors militating against further disclosure in this case, as outlined by my colleague the Honourable Judge Bond in the reasons which I have related. The disclosure already made has been extensive. There was disclosure to Mr. Boyd, Mr.

Clokie as well as the extensive disclosure to Ms. Cohen. Moreover, Ms. Cohen did not seek materials from either Mr. Boyd or Mr. Clokie. Ms. Cohen did not write to counsel to inform Ms. Kinsman why she wanted what it was she said she was asking for. She did not explain what she intended to do with the historical files relating to A.R. which are part of the six historical volumes. There are no applications to the court in writing and no reasons have been applied in the course of why those items are being sought.

There were no applications made orally prior to December the 20th and there are vague references to disclosure issue potential in the materials and documents.

The letter to Director's counsel as reflected in Exhibits C and D do not provide a foundation for the court to order that there should be an affidavit or certification in this matter given the lack of specificity in the request. [ 46 ] The factors in favour are as follows: The police references in Exhibit G to reports, continuation reports or notes which I have already outlined should be provided before Roberts testifies, and some reasonable time before Roberts testifies. This is a continuing custody application where there are unexplained injuries of a serious nature.

The September and October materials may be of some significance to the presentation of positive natures because it would appear that there is no direct evidence, nor is there evidence from which a medical practitioner can formulate an opinion of abuse. In such a circumstance I am sure that that is something which counsel could discuss and agree, admissions could be made. It was my understanding from Ms.

Kinsman's perspective that she was trying to do that with the document brief or the common document book with her friend, but it is one which requires that there be clarification. [ 47 ] Finally, I am of the view that the file disclosure must be sufficient to advance any defence available for K.S. as disclosed in the evidence. It would appear from Dr. Korn's opinion and the other references made in the exhibits that that has already been passed over by the Director to Ms. Cohen. As to whether or not there are other things there, just as Ms.

Cohen said during the course of her submissions, we do not know if there is anything else. We will never know whether we have everything. CONCLUSION [ 48 ] Having considered Judge Bond's reasons as read, having considered the timing and the fact that Ms. Cohen has not pursued investigations on behalf of her client at either Surrey Memorial Hospital or at Children's and Women's Hospital of British Columbia, the fact that there is a scope and breadth and timing to this request of being an eleventh hour request for further disclosure without specificity, as well as the lack of notice or communication with Ms.

Kinsman asking for specific items, as well as what I find to be a misunderstanding of the development of the common document binders is such that the court, without an application pursuant to s. 64 prior to the hearing is placed in the circumstance that s. 2 and s. 4 of the Act require that this matter proceed in a timely fashion. [ 49 ] As Judge Bond did, I decline to formally order further disclosure by affidavit or certification at this time. Cst. Roberts' materials should be requested by Director's counsel and obtained and disclosed to Ms. Cohen in a timely fashion.

That does not preclude further orders for disclosure or adjournments for the purposes of ascertaining disclosure.

Should the flow of these proceedings and the nature of examination by way of either chief or cross-examination require disclosure of further materials and a necessary adjournment to ensure that counsel have an opportunity to prepare and to ensure the ultimate responsibility which I have as the hearing judge of conducting a fair hearing, I will make such an order without hesitation, but not on the materials presented to me on this application. [ 50 ] For those reasons the application is dismissed. (RULING CONCLUDED)