MF v RM, 2022 ABKB 721

Court of King’s Bench of Alberta Citation: MF v RM, 2022 ABKB 721 Date: 20221101 Docket: 1701 00019 Registry: Calgary Between: MF Plaintiff - and - RM, His Majesty the King in right of the Province of Alberta, and Aspen Family & Community Network Society Defendants Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2 . No person shall publish the name or photograph of a child or of the child’s parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Memorandum of Decision

of L.A. Mattis , Applications Judge _______________________________________________________ [ 1 ] MF has sued RM, Her Majesty the Queen in right of Alberta (now His Majesty the King in right of the Province of Alberta [1] ) (“Alberta”), and Aspen Family & Community Network Society (“Aspen”) for damages arising out of serious sexual abuse MF alleges he suffered while in foster care in the home of RM and his spouse (the “Foster Home”). MF asserts that Alberta and Aspen failed to protect him from this abuse. [ 2 ] MF applies for production of the following records from Alberta for: (

i) the names and last-known contact information of eight foster children who were placed in the Foster Home; and (ii) the complete, unredacted child care file relating to a foster child who made allegations of sexual abuse against RM for the period of time from when he was placed in the Foster Home until he turned 18 years old. I. Overview [ 3 ] In around 2001 or 2002, MF received respite care in the Foster Home when he was approximately nine or ten years old. He was placed in the Foster Home on a full-time basis between June 2003 and November 2008.

MF pleads he was sexually abused by RM beginning in around 2001 and continuing until the fall of 2008. However, on questioning, MF states that the abuse started right away when he moved into the Foster Home on a full-time basis, but that nothing happened during the time he was there for respite care. There was no other evidence on this Application about when the alleged abuse began. [ 4 ] Between September 15, 2001 and January 5, 2010, 18 children were placed in the Foster Home, including MF. This does not include children placed in the Foster Home for respite care.

In its documentary production, Alberta disclosed a case note from RM’s file dated September 30, 2013 that refers to a historical allegation of sexual abuse by a child previously in care. The note indicates the allegation was not substantiated at that time. [ 5 ] MF seeks the names and last-known contact information for eight of the other foster children, as well as the complete, unredacted child care file for the child who made the allegation of sexual abuse from the time that child was placed in the Foster Home until he turned 18 years old.

MF applies for production under s 126.11 of the Child, Youth and Family Enhancement Act , RSA 2000, c C- 12 [ CYFEA ]. That

section applies to civil litigation matters and permits a party to apply for disclosure of records that contain information protected under the CYFEA . [ 6 ] Alberta opposes the production requests based on an analysis of the factors set out in s 126.11(8) of the CYFEA , and says that MF has not established that the requests are relevant, material and likely necessary to advance the claim as required under s 126.11(8). [ 7 ] Aspen did not appear on the Application, and RM took no position. II. Issues [ 8 ] The issues to be determined on this Application are: (

i) Whether the requirements of s 126.11 of the CYFEA have been satisfied to compel the disclosure of the names and last-known contact information for eight children who had been placed in the Foster Home; and (ii) Whether the requirements of s 126.11 have been satisfied to compel the production of the complete child care file for one foster child placed in the Foster Home from the time of his placement until he turned 18 years old. (iii) Framework for Disclosure of Records [ 9 ] MF brings this Application pursuant to Rule 5.11 of the Alberta Rules of Court , Alta Reg 124/2010 [ Rules ], and s 126.11 of the CYFEA . [ 10 ] Rule 5.11 permits the Court to order production where a relevant and material record under the control of a party has been omitted from an affidavit of records. [ 11 ] The records sought on this Application contain information created or obtained in the course of Alberta’s administration of the CYFEA .

Their disclosure is governed by the CYFEA .

Section 126 of the CYFEA mandates that personal information received through the administration of the CYFEA is confidential, and sets out limited circumstances when information may be disclosed or communicated.

Section 126.2 imposes a publication ban against publishing “the name or a photograph of a child or of the child’s parent or guardian in a manner that reveals that the child is receiving or has received intervention services.” Adoption records are further protected under the CYFEA .

Section 74.1 requires that all documents possessed by the Court or the Minister relating to an adoption be sealed, subject to limited exceptions including where a Court orders otherwise.

[ 12 ] The authorities provided by the parties generally involve a parent, other family member or former guardian seeking disclosure of a child’s records to use as evidence in a matter involving that child, and not in litigation to which the child is a stranger.

Section 126.11 sets rules for when production may be ordered in civil litigation matters and there is no dispute that it applies to this matter. [ 13 ] Caution is needed when dealing with child welfare records under the CYFEA because of the highly personal nature of the information they contain, and the potential harm that could result from their disclosure: JE v Alberta ( Child, Youth and Family Enhancement Act , Director) , 2017 ABPC 145 at paras 12-14 [ JE ].

As noted by Judge Cornfield in JE , at para 14 : The information in the Director’s file often contains private and intimate details of the lives of parents and children. It often deals with any addiction they may have, mental health concerns, sexual preferences and other highly personal information involving their lives. I agree whole heartedly with Judge Lloyd that this information must be “carefully protected”. [ 14 ] At the same time, disclosure and production of relevant and material records is an important part of the adversarial system.

Indeed, subject to privilege and other statutory exemptions, it is fundamental to trial fairness that all parties receive complete disclosure of records: RAB (Re) , 2020 ABPC 75 at para 15 . [ 15 ] MF has made detailed allegations of sexual abuse that occurred in private over many years. The Court will likely be faced with assessing credibility and resolving contradictory versions of events from MF and RM. MF argues that the records sought relating to other foster children may result in information that will assist the Court in deciding this matter and may be necessary for him to prove his claim.

He seeks names and last-known contact information so that his counsel can try to speak with former foster children. He seeks the complete child care file for one foster child to assess if there is further information about that child’s sexual abuse allegations against RM and the resulting investigation. [ 16 ] The framework set out in s 126.11 guides the Court in its analysis, establishing a two-step process for the Court in determining whether the records ought to be produced: JE at paras 35-38 .

The Court has been cautious about disclosure, and has emphasized the need to strictly comply with the requirements of s 126.11: JE at para 15 , citing Re HMA , 2015 ABPC 29 . [ 17 ] In the first step, the Court conducts a preliminary review to satisfy itself that the requirements in ss 126.11(4)-(7) have been met, and then analyzes the evidence with reference to s 126.11(8): JE at para 20 .

If the Court is satisfied that the applicant has met the onus for production of the records, the second step of the process is engaged. [ 18 ] In the second step, the Court privately reviews vetted and unvetted versions of the records provided by the Director of Children’s Services (here, Alberta). As set out in s 126.11(9), if the Court is satisfied that the records are clearly relevant, material and likely necessary after reconsidering the criteria in s 126.11(8), the Court may order the records be disclosed, and may set appropriate conditions for disclosure. (iv) Preliminary Review for Disclosure of Records A.

Records Sought [ 19 ] Alberta provided to MF a list of 17 other foster children who had been placed in the Foster Home between September 2001 and January 2010. The list of 18 foster children (including MF) disclosed foster children in order of date of placement, and they were identified as Foster Children #1-#18, with their names redacted, except for MF who was identified as Foster Child #4. The list identified their genders and dates they were placed in the Foster Home. All, including MF, were young boys.

Alberta also provided information from electronic databases reviewed about Foster Children #1-3 and #5-18 including whether there had been any disclosures of sexual abuse in relation to their placements in the Foster Home. [ 20 ] In the course of documentary production and preparing for questioning, Alberta disclosed that Foster Child #3 had made allegations of sexual abuse against RM.

Alberta produced database records detailing the allegations and the investigation conducted, with names redacted that would identify Foster Child #3. [ 21 ] Based on the information provided by Alberta, MF narrowed the request for records to disclosure of the names and last- known contact information for eight foster children identified on the list as #1, 3, 6 and 14-18. MF also requests disclosure of the complete, unredacted child care file of Foster Child #3 from the time he was placed in the Foster Home. [ 22 ] Alberta identified the following information about Foster Children #1, 3, 6 and 14-18: (

a) Foster Child #1 was placed in the Foster Home for approximately seven months between September 2001 and April 2002 when he was nine years old. There was no disclosure of sexual abuse in the Foster Home. This was during the time when MF was in the home for respite care. A March 2010 Ongoing Case Assessment Report noted that Foster Child #1 was exposed to inappropriate sexual touching while in foster care in a previous foster home, likely relating to sexual touching allegations between another child and Foster Child #1 in 1998/1999. (

b) Foster Child #3 was placed in the Foster Home for approximately two weeks in January and February 2003 when he was 12 years old. Foster Child #3 made allegations of sexual abuse against RM. There was an investigation by Children’s Services, who found the allegations were unsubstantiated. Alberta has disclosed records regarding the allegations with names redacted. Just prior to the hearing, Alberta advised that Foster Child #3 passed away in the summer of 2021. (

c) Foster Child #6 was placed in the Foster Home for approximately five months between 2005 and April 2006 when he was between the ages of seven and eight years old. Alberta’s review noted no disclosure of sexual abuse in the Foster Home. MF was in the Foster Home during that time.

(

d) Foster Child #14 was placed in the Foster Home for approximately one year between November 2006 and November 2007 when he was between the ages of five and six years old. Alberta’s review noted no disclosure of sexual abuse in the Foster Home. MF was in the Foster Home during that time. (

e) Foster Child #15 was placed in the Foster Home for approximately 19 months between December 2007 and July 2009 when he was between the ages of five and six years old. MF was in the Foster Home during that time. Adoption proceedings relating to Foster Child #15 have concluded, and as a result, no electronic database information was available for Alberta’s review, including whether there were any disclosures of sexual abuse in the Foster Home. (

f) Foster Child #16 was placed in the Foster Home for approximately five-and-a-half months between October 2008 and March 2009 when he was between the ages of 10 and 11 years old. Alberta’s review noted no disclosures of sexual abuse in the Foster Home. MF was in the Foster Home until November 2008. (

g) Foster Child #17 was placed in the Foster Home for approximately three months between September 2009 and January 2010 when he was five years old, after MF left the Foster Home. Alberta’s review noted no disclosures of sexual abuse in the Foster Home. (

h) Foster Child #18 was placed in the Foster Home for approximately three months between September 2009 and January 2010 when he was 10 years old, after MF left the Foster Home. Alberta’s review noted no disclosures of sexual abuse in the Foster Home. [ 23 ] Children’s Services first became involved with Foster Child #3 in 1996. Counsel for Alberta estimates that the entire child care file for Foster Child #3 is thousands of pages, and the child care file for the period from when Foster Child #3 was placed in the Foster Home to the date Foster Child #3 turned 18 is approximately 1,700 pages.

It includes caseworker reports and communications, school records, and medical and other treatment records. B. Test for Disclosure [ 24 ] The first step of the analysis is to conduct a preliminary review of the Application. The Court must be satisfied that the procedural requirements set out in ss 126.11(4) to (7) of the CYFEA have been met.

The Court must then consider the factors set out in s 126.11(8) and whether the information contained in the records is relevant, material and likely necessary to advance the applicant’s position. [ 25 ] If the Court is satisfied that the applicant has met the onus for production of the records on preliminary review, the second step of the process is engaged whereby the Court reviews the records privately, following which the application for disclosure may be dismissed, allowed, or allowed on terms. [ 26 ] This decision focuses on the preliminary review and whether to order production of the records to the Court for private review. (

i) Procedural Requirements [ 27 ] The Court must be satisfied that the procedural requirements set out in ss 126.11(4) to (7) have been met. Here, there is no issue that MF has satisfied the procedural and notice requirements set out in ss 126.11(4) and (5). This Application has been brought in writing, supported by an affidavit. Further, the Application identifies the records that contain the information, sets out that Alberta has the information, and identifies the grounds for disclosure. The Application was served on the defendants, including Alberta.

Section 126.11(6) permits the Court to adjourn the Application. [ 28 ]

Section 126.11(7) provides that certain assertions are not sufficient on their own to establish that the record is relevant, material and likely necessary to advance the position of the party seeking disclosure. These assertions are: (

a) that the record exists; (

b) that the record relates to intervention services the family has received or is receiving; and (

c) that the record may relate to the credibility of any witness. [ 29 ] The basis for MF’s request for disclosure of the names and last-known contact information for eight former foster children is that these individuals could serve as potential witnesses about issues including contemporaneous observations about the layout of the Foster Home and house rules, the treatment of children in the Foster Home, the supervision of the Foster Home and foster parents by Alberta and Aspen, and any interactions between MF and RM in the Foster Home. [ 30 ] The basis for the request for disclosure of Foster Child #3’s complete, unredacted child care file is to permit MF to determine the particulars of the sexual abuse and what investigation and conclusions resulted.

MF asserts that this information is relevant to the supervision of the Foster Home and how Alberta and Aspen treated allegations of sexual abuse. [ 31 ] Alberta points to MF’s argument that this is a classic “he said / he said” case, and submits that the basis asserted for both disclosure requests relate to MF’s and RM’s credibility, which is insufficient on its own to support an order for disclosure. MF argues that the records sought go beyond credibility as the former foster children are potential witnesses of fact.

I agree that MF’s arguments about the potential evidence to be gleaned from the former foster children go beyond issues of credibility. The requirement under s 126.11(7) is satisfied. [ 32 ] I conclude that the Application satisfies the procedural requirements set out in ss 126.11(4) to (7). Alberta’s other arguments as to why this evidence is not relevant, material and likely necessary are considered next in the discussion of the factors under s 126.11(8).

(ii) Substantive Requirements [ 33 ] The parties’ principal arguments on the Application relate to whether the criteria under s 126.11(8) have been satisfied.

Section 126.11(8) of the CYFEA provides:

(8) The court, on considering (

a) whether the information contained in the record or the part of the record has or is likely to have probative value and has not been disclosed in another record or in another form, (

b) the potential prejudice to the dignity and right to privacy of any person to be affected by the disclosure of the record or the part of the record, (

c) the rights of the parties to a fair hearing, (

d) the public interest in facilitating and supporting the care of children under the guardianship of or in the custody of a director, (

e) the need to not unduly delay matters affecting a child, (

f) the potential danger to the physical, mental or emotional health of a child or another person, (

g) the size of the requested record or the requested part of the record, and (

h) any other factor that the court may consider relevant, may order that the record or the part of the record be produced to the court, if the court is satisfied that it is relevant, material and likely necessary to advance the position of the applicant. [ 34 ] The Court does not have to find that each factor under s 126.11(8) mandates disclosure before ordering that a record be produced for review. Considering the factors under s 126.11(8), the Court may order that the records be produced to the Court for a secondary review if it is satisfied that the records are relevant, material and likely necessary to advance MF’s position. 1. Review of factors in s 126.11(8) (

a) Probative Value [ 35 ] Pursuant to s 126.11(8)(a), the Court must consider whether the names and last-known contact information (which would potentially permit MF to contact the former foster children) is likely to have probative value and have not been disclosed in another form. [ 36 ] MF argues that the records have substantial probative value.

Each of the individuals are potential witnesses as to the general supervision of the Foster Home, children and foster parents by the institutional defendants; RM’s behaviour in the Foster Home, both in the presence and absence of other adults; any observations of interactions between MF and RM; the layout of the Foster Home and house rules that could lead to opportunities for abuse; and communication with and intervention by the other defendants. [ 37 ] With respect to disclosure of the unredacted child care file for Foster Child #3, MF says he should be afforded the opportunity to review the investigation made by Alberta.

MF also originally sought the ability to contact Foster Child #3 after his child care file was reviewed, which is no longer an option given that Foster Child #3 is deceased. It remains that there may be other information in Foster Child #3’s file that is probative. [ 38 ] Alberta acknowledges that the names and last-known contact information of the Foster Children are not otherwise available to MF. However, Alberta submits that the purpose of obtaining this information is for MF to gather evidence that Alberta argues is otherwise available from other sources: (

i) Evidence regarding the roles of the institutional defendants is available from MF, RM and his wife, employees of the institutional defendants, the records kept by the institutional defendants that have been provided, and the policies and general practices of the institutional defendants; (ii) Evidence regarding RM’s behaviour in the Foster Home is available from MF and RM; and (iii) Evidence regarding the layout of the home and the rules in the house is available from MF, RM and his wife, and employees of the institutional defendants who visited the Foster Home. [ 39 ] Not all evidence may be available from these sources, including any evidence the former foster children may have about interactions between MF and RM.

Also, the sources identified by Alberta are all defendants or are otherwise associated with the defendants and MF seeks to locate other witnesses. [ 40 ] Foster Child #3 is deceased and cannot be interviewed as a potential witness, so his name and last-known contact information are not relevant. Foster Children #17 and 18 did not overlap with MF’s time in the Foster Home. It is not clear what, if any, probative evidence they can provide that applies to the period of time of MF’s allegations. [ 41 ] Foster Children #1, 6, and 14-16 overlapped with MF at the Foster Home and may have probative evidence.

I consider the relevance, materiality and likely necessity of this evidence below.

[ 42 ] There is no dispute between the parties that Foster Child #3’s allegations of sexual abuse by RM are relevant and material to the litigation, and any further records relating to those allegations are likely to have probative value. (

b) Prejudice to dignity and right to privacy [ 43 ] Pursuant to s 126.11(8)(b), the Court must consider the former foster children’s privacy rights to have their identities and last- known contact information kept confidential. [ 44 ] MF says this factor must be considered in light of MF’s counsel’s 15 years of experience in representing victims of sexual abuse and knowledge in broaching difficult topics with vulnerable individuals. Further, the information sought only relates to the time they were in the Foster Home.

Finally, MF notes that the Court may impose protections to limit any infringements on privacy and prejudice to dignity. [ 45 ] Alberta submits that there are strong statutory privacy protections for the personal information being sought, and, more generally, for information about a child’s involvement with the child welfare system. Regardless of how sensitive counsel’s approach is or terms the Court may impose, Alberta argues that the former foster children’s rights to privacy are prejudiced.

It submits that this is an especially strong consideration when weighed against the marginal relevance, if any, of the evidence that the other foster children may be able to provide. [ 46 ] I agree that regardless of protections in place, any disclosure would violate the privacy rights of the former foster children who do not have any opportunity to argue against disclosure in these circumstances. With respect to Foster Child #3 (who is deceased), his on-going privacy and health concerns are not factors but on-going concerns about his dignity remain. (

c) Right to fair hearing [ 47 ] Pursuant to s 126.11(8)(c), the Court must consider the rights of the parties to a fair hearing. [ 48 ] MF emphasizes the importance of contacting potential witnesses to his ability to establish his claim and for a fair hearing in what is largely a circumstantial case. This Application relates to non-parties who may provide evidence that permits MF to put forward his best possible case.

MF argues that his right to a fair hearing should be the focus of this analysis. [ 49 ] Alberta argues that the rights of the parties to a fair hearing is at most a neutral consideration because the evidence regarding the identities of former foster children being sought by MF is available elsewhere. Accordingly, Alberta suggests that MF’s right to a fair trial is not compromised by not having a second source for this information. [ 50 ] There are protections in the civil litigation process to facilitate disclosure and promote a fair hearing.

This includes Rule 5.33 of the Rules , which requires that records disclosed in litigation be treated as confidential and used only in the action in which they are produced. In addition, the Court can set out conditions for disclosure.

However, records protected under the CYFEA should only be ordered disclosed if the Court finds the factors in s 26.11(8) weigh in favour of disclosure, and the records sought are relevant, material and likely necessary to advance MF’s position. [ 51 ] The probative value of records relating to another sexual abuse allegation against RM is significant in weighing it against the potential prejudice to the dignity and right to privacy of any person to be affected by the disclosure. MF’s right to a fair hearing is an important consideration to be taken into account with all of the factors in s 126.11(8). (

d) Public interest in facilitating and supporting children in care (

e) Need not to unduly delay matters affecting a child [ 52 ] Pursuant to s 126.11(8)(

d) and (e), the Court must consider the public interest in facilitating and supporting the care of children under the guardianship or in the custody of the director, and must consider whether denying the application would unduly delay matters affecting a child. These factors do not apply in the circumstances of this case. This is not a case where disclosure would facilitate and support the care of those children whose records are sought. The former foster children and MF have long reached the age of majority and are no longer receiving child welfare services. (

f) Potential danger to physical, mental or emotional health [ 53 ] Pursuant to s 126.11(8)(f), the Court must consider the potential danger to the physical, mental or emotional health of a child or another person. [ 54 ] Here, MF notes that the former foster children have long since reached the age of majority with no direct involvement in the litigation. He argues that discussing their experiences within the Foster Home should not be an overly troubling venture.

MF submits that it is in his best interests for disclosure, as it would permit MF to resolve this case one way or the other and move on with his life. [ 55 ] Alberta argues this factor is particularly strong weighing against disclosure given the marginal relevance of the information, especially as it relates to Foster Children #1 and 18 where there is a veiled suggestion that they may have been sexually abused by RM.

Alberta suggests that broaching such subjects and any discussion of their time involved in the child welfare system more than a decade ago has the potential to negatively impact their mental and emotional health. [ 56 ] As has been set out in other decisions and discussed above, protections exist in the CYFEA for public policy reasons to protect personal information of children involved in the child welfare system. These protections do not expire when those children become adults. There are good reasons for this. People may not want others to know they were involved in the child welfare system as children

and may not want to discuss that time in their lives. There is a risk that such discussions could harm their mental or emotional health. [ 57 ] A further consideration relating to Foster Child #6 is that he has been adopted, resulting in additional statutory protections including that the adoption file is sealed. Also, this factor does not apply to Foster Child #3, as he is deceased. (

g) Size of requested record [ 58 ] Pursuant to s 126.11(8)(g), the Court must consider the size of the requested records. With respect to the first request, it is not disputed that these records (names and last-known contact information) are not voluminous. [ 59 ] With respect to the second request, Alberta notes that the complete, unredacted child care file of Foster Child #3 is approximately 1,700 pages. (

h) Other relevant factors [ 60 ] MF argues that another relevant factor for the Court to consider is that unless disclosure of the records is ordered, MF has no ability to identify these potential witnesses through an alternate process. [ 61 ] Alberta submits that other relevant factors include that the information related to the last-known contact information is likely to be dated, which impacts upon its relevance. Further, there are strong public policy considerations favouring protection of the personal information of children currently or previously involved in the child welfare system. 2.

Further requirements under s 126.11(8) [ 62 ] Upon consideration of the above factors, the Court may order that the record or the part of the record be produced to the Court if the Court is satisfied that it is relevant, material and likely necessary to advance the applicant’s position. I have reviewed the factors, and now turn to whether the records sought are relevant, material and likely necessary to advance MF’s position. [ 63 ] The meaning of “relevant, material and likely necessary to advance” an applicant’s position was discussed by this Court in KM v LGN , 2020 ABQB 197 at paras 14-22 [ KM ].

There, the Court considered JE and other authorities. [ 64 ] In KM , the Court noted that the meaning of “relevant and material” is set out in Rule 5.2(1) of the Rules , with relevance determined by the pleadings: at para 14, citing JE at para 22 . Rule 5.2(1) states that a record or information will be relevant and material only if the record or information could reasonably be expected: (

a) to significantly help determine one or more of the issues raised in the pleadings, or (

b) to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings. [ 65 ] Relevance is primarily determined by the issues raised in the pleadings, while materiality relates to whether the information or records sought can help, directly or indirectly, to prove a fact in issue in the dispute: Dow Chemical Canada Inc v Nova Chemicals Corp , 2014 ABCA 244 at para 17 . [ 66 ] KM raises additional considerations in determining relevance and materiality in the context of an application under s 126.11.

The Court should adopt a flexible and generous approach where a child’s best interests are central, but a flexible approach does not displace the requirements of relevance and materiality: KM at para 15 , citing PT v Alberta , 2019 ABCA 158 at para 61 .

In addition, the currency of the information sought may affect its relevance: KM at paras 23-24 . [ 67 ] The onus is on MF to show that the records sought are more than relevant and material: KM at para 21 , citing JE at para 27 . “Likely necessary” means “that the record contains evidence not available elsewhere”: KM at para 21 , citing JE at para 28 . [ 68 ] As has been noted, Alberta argues that the records are not likely necessary to advance MF’s position on any issues in the litigation, as information on these issues is available from other sources.

Alberta also disputes that several of the individuals will be able to provide relevant or material evidence, given the timing of their placements and other considerations. Alberta argues that the evidence is irrelevant as it relates to each of the Foster Children, as follows: (

a) Foster Child #1 resided in the Foster Home for approximately seven months during the period when MF was receiving respite care. MF’s evidence at questioning was that the alleged abuse did not take place during the period of respite care. Further, Foster Child #1’s exposure to inappropriate sexual touch while in a different foster home is irrelevant. Finally, MF’s assertion that this previous incident may have made Foster Child #1 vulnerable to abuse is insufficient to ground this Application for disclosure, and it is speculative to suggest that because Foster Child #1 may have been vulnerable to abuse that RM may have abused him. (

b) Although Foster Children #6, #14, #15 and #16 resided in the Foster Home with some overlap with MF, Alberta asserts that MF has not established that these Foster Children can provide evidence that is “likely necessary” to advance MF’s position. (

c) An additional consideration for Foster Child #15 is that adoption proceedings have concluded and personal information, including last-known contact information, is sealed. Alberta argues that there should be compelling reasons for the disclosure of this information, given the added privacy protections that are applied to adoption proceedings and records, that do not exist in this case. (

d) Foster Child #17 resided in the Foster Home for approximately three months beginning almost a year after MF left the Foster Home. Given the time between their placements, Alberta argues any evidence about the Foster Home or supervision by the institutional defendants is irrelevant. Further, Alberta asserts that MF has not established that Foster Child #17 can provide evidence that is “likely

necessary” to advance MF’s position. (

e) Foster Child #18 also resided in the Foster Home for approximately three months beginning almost a year after MF left the Foster Home. Alberta submits that there seems to be a veiled suggestion that Foster Child #18 may also have been abused by RM, but this is speculative. [ 69 ] MF is essentially seeking the opportunity to contact and interview these former foster children to determine if they have relevant and material evidence that would be likely necessary to advance his position.

He is not able to provide evidence to the Court of what their information may be in the absence of being able to reach out to them. I have considered this challenge in making my decision. [ 70 ] I now turn to my conclusion on the parties’ substantive arguments on the two disclosure requests. (iii) Conclusion [ 71 ] There are two requests I must decide: disclosure of the names and last-known contact information of Foster Children #1, 3, 6 and 14-18, and disclosure of Foster Child #3’s complete, unredacted child care file from when he was placed in the Foster Home until he turned 18 years old. 1.

Disclosure of Names and Last-Known Contact Information [ 72 ] MF seeks the names and last-known contact information of Foster Children #1, 3, 6 and 14-18 so that his counsel can have an opportunity to interview them as potential witnesses relating to their knowledge about the layout and rules in the Foster Home, the supervision by and communication with the institutional defendants, RM’s behaviour in the Foster Home, and any observations of interactions between MF and RM. [ 73 ] Alberta argues that to order disclosure of the former foster children’s names and last-known contact information effectively creates a presumption of disclosure of a child’s personal information to unrelated parties if the tenuous connection is made out that they were placed in the same foster home that is the subject of litigation.

I agree that this is a concern, and that is one reason why s 126.11(8) must be applied rigorously and disclosure ordered with caution. [ 74 ] Here, disclosure is sought of the names and last-known contact information of former foster children who are not involved in the action in any way in the hope their evidence will assist MF to advance his case. [ 75 ] MF asserts that some of the foster children were vulnerable to abuse, either because they alleged abuse in a prior foster home or because they were present at a time of transition shortly after MF left the Foster Home.

These suggestions are speculative and cannot be a basis that disclosure is ordered. [ 76 ] Also, much of the background evidence that MF hopes to obtain from the former foster children may be available from other witnesses and sources. However, that is not the case for all evidence sought, specifically evidence that the former foster children may have about interactions between MF and RM.

In my view, it is this evidence – regarding observations the former foster children may have made about interactions between MF and RM during the time MF says he was sexually abused – that is relevant, material and likely necessary. More general contextual and background evidence sought, such as information about the layout of the home and the rules of the house, is not material or likely necessary to advance MF’s position. [ 77 ] MF received respite care in the Foster Home in around 2001 or 2002, and was placed in the Foster Home on a full-time basis between June 2003 and November 2008.

MF’s evidence on questioning was that nothing happened in the Foster Home when he was there for respite care. [ 78 ] Foster Child #1 only overlapped with MF when MF was in the Foster Home for respite care. He will not have information about interactions between MF and RM during the time that MF alleges he was sexually abused. There is also a suggestion that Foster Child #1 may have been vulnerable to abuse, and it is implied that he may have been sexually abused by RM, but as I have already noted, this is purely speculative.

I therefore find Foster Child #1’s name and last-known contact information cannot lead to evidence that would be material or likely necessary for MF to advance his claim. [ 79 ] Foster Child #3 is deceased and cannot be interviewed as a potential witness, so his name and last-known contact information are not relevant.

MF suggests his counsel may want to contact Foster Child #3’s family members regarding anything he might have told them, but I find that suggestion is speculative at this time and is not sufficient for disclosure of Foster Child #3’s name and last-known contact information. [ 80 ] Foster Child #6 was placed in the Foster Home for approximately five months during the time when MF alleges he was being sexually abused.

He may have evidence regarding interactions between MF and RM that could be material and likely necessary for MF to advance his claim. [ 81 ] Foster Child #14 was placed in the Foster Home for approximately one year during the time when MF alleges he was being sexually abused. He was between the ages of five and six years old. This may impact on his ability to recall what happened in the Foster Home accurately.

Weighing the probative value of any evidence a five- or six-year old child may have against the need to protect his privacy and dignity rights, I decline to order disclosure of Foster Child #14’s name and last-known contact information. [ 82 ] Foster Child #15 was in the Foster Home during the time when MF alleges he was being sexually abused. Foster Child #15 has since been adopted and the adoption proceedings are sealed. This additional statutory protection is a significant factor under s 126.11(8)(

b) and (f). Also relevant is that Foster Child #15 was between the ages of five and six years old. This may impact on his ability to recall what happened in the Foster Home accurately. It could be very disruptive to his life should his name and last-known contact information be disclosed by unsealing his adoption file. It could also be disruptive to his family. In weighing the factors in s

126.11(8) and considering the likelihood that Foster Child #15 would have evidence that is material or likely necessary for MF to advance his claim, I decline to order disclosure of his name and last-known contact information. [ 83 ] Foster Child #16 was placed in the Foster Home for approximately five-and-a-half months during the time when MF alleges he was being sexually abused. He may have evidence regarding interactions between MF and RM that could be material and likely necessary for MF to advance his claim. [ 84 ] Foster Children #17 and 18 did not overlap with MF’s time in the Foster Home.

They cannot provide evidence about interactions between MF and RM during the time that MF alleges he was sexually abused, and I decline to order disclosure of their names and last-known contact information. 2. Disclosure of Unredacted Child Care File [ 85 ] MF’s second disclosure request is for Foster Child #3’s complete, unredacted child care file from the time of his placement in the Foster Home until he turned 18 years old.

As has been noted, Foster Child #3 was in the Foster Home for approximately two weeks in January and February 2003 when he was 12 years old, during which time he made an allegation of sexual abuse against RM. This allegation was investigated and it was found to be unsubstantiated. [ 86 ] Documents outlining the allegation, investigation and conclusion have been disclosed.

It is not disputed that these documents include the investigative steps taken, the opinions reached, and the reasoning for those opinions, and that they identify the Children’s Services employees involved in the investigation. [ 87 ] MF seeks additional disclosure of Foster Child #3’s file to determine whether Foster Child #3 made any later disclosures about the sexual abuse allegations against RM.

MF argues that Foster Child #3’s child care file ought to be subject to further review, as there could be subsequent records in the file that are relevant and material to the allegations. [ 88 ] Alberta opposes this relief on the basis that it has already disclosed all relevant and material records relating to the sexual abuse allegation against RM. Further, the records are voluminous, comprised of approximately 1,700 pages, containing many irrelevant records including caseworker reports and communications, school records, and medical and other treatment records.

If a secondary review is directed, Alberta argues that the request is overly broad, and suggests that only those documents that specifically mention Foster Child #3’s allegations or the subsequent investigation should be ordered to be produced to the Court for secondary review under s 126.11(9).

Further, Alberta argues that any identifying information relating to Foster Child #3 should be redacted from any records produced from his child care file. [ 89 ] There is no dispute that records related to Foster Child #3’s allegation of sexual abuse against RM, the subsequent investigation and any further steps taken, the opinions reached, and disclosures made about the abuse are relevant, material and likely necessary to advance MF’s position.

The issue is whether it is necessary for the Court to review the entire child care file of Foster Child #3 from when the allegations of abuse arose to when he turned 18 to determine if there are any other records that are relevant, material and likely necessary to advance MF’s position. [ 90 ] It is not clear that Foster Child #3’s entire child care file was reviewed for disclosure and production, or if only portions directly relating to the allegations and investigation were reviewed. There may be other relevant disclosures, for example, contained in medical records in the file.

For that reason, I direct that Foster Child #3’s entire child care file from the time of his placement in the Foster Home until he turned 18 years old be produced for secondary review by the Court. (

v) Decision [ 91 ] The Application for disclosure of the names and last-known contact information of Foster Children #1, 3, 14, 15, 17 and 18 is dismissed. [ 92 ] For Foster Children #6 and #16, the second step of the review process is engaged. [ 93 ] The second step of the review process is also engaged in respect of Foster Child #3’s complete, unredacted child care file from the time of his placement in the Foster Home until he turned 18 years old. [ 94 ] As set out in JE at para 38 , in the second step of the process: 1.

The Court will provide Alberta with a reasonable period of time to produce vetted and unvetted copies of the records to the Court; 2. The Court will conduct a “secondary review” and order only those records that are clearly relevant, material and likely necessary, as identified by the pleadings and the supporting affidavit, to be produced after reapplying the criteria in ss 126.11(8) and (9). The Court may also place conditions on their viewing under s 126.11(10). 3.

The records will be sealed and retained on the Court File until the appropriate appeal period has expired under 126.11(11). [ 95 ] The names and last-known contact information for Foster Children #6 and #16 (including the dates of that information) must be produced to the Court for review and further direction. [ 96 ] Alberta is to provide both vetted and unvetted copies of Foster Child #3’s complete child care file from the time of his placement in the Foster Home until he turned 18 years old.

The vetted records may indicate which records Alberta submits are not relevant, material and likely necessary for MF to advance his position. As I have found Foster Child #3’s name and last-known contact information does not have to be disclosed, that information may be redacted in both the vetted and unvetted copies of the records. The

vetted and unvetted records will then be reviewed by the Court with reference to the criteria in ss 126.11(8) and (9), and the Court will provide further direction on disclosure and production. [ 97 ] In accordance with the procedure set out in JE , the records provided to the Court shall be sealed and retained on the court file until the expiry of any appeal period, at which time they shall be returned to Alberta (if provided in paper form) or deleted (if in electronic form). [ 98 ] The parties may agree on a deadline for the provision of records from Alberta, as well as additional ancillary terms to be included in the Order.

If the parties cannot agree, they may seek further direction, if necessary. [ 99 ] Any correspondence regarding the form of order or the records may be made by email through the Calgary Applications Judges Coordinator. Heard on the 1 st day of September 2021. Dated at the City of Calgary, Alberta this 1 st day of November, 2022. L.A. Mattis A.J.C.K.B.A. Appearances: Dallas Lee / Jordan Sharpe for the Plaintiff, MF Christopher Ghesquiere for the Defendant, His Majesty the King in right of the Province of Alberta