MBH v CKI, 2023 ABKB 284

Court of King’s Bench of Alberta Citation: MBH v CKI, 2023 ABKB 284 Date: 20230515 Docket: 4801 181012 Registry: Calgary Between: MBH Plaintiff (Respondent/Cross-Applicant) - and - CKI Defendant (Applicant/Cross-Respondent) _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ I. Introduction [ 1 ] Following a rule 4.10 case conference, Justice Eamon directed that certain disputed matters would be set over to be determined in family chambers on April 3, 2023: (

a) Whether MBH must disclose redacted portions of her medical records she has previously produced to CKI in this matter ( Redactions ); (

b) Whether MBH must produce the medical (EMS and hospital) records of the attendance of August 7, 2022, and the record of any blood alcohol test taken from MBH on August 7, 2022 ( August 7 Records ); and (

c) Directions concerning CKI’s access to or possession of MBH’s medical records previously disclosed or to be disclosed.

[ 2 ] Justice Eamon provided directions for the filing of applications and affidavits in respect of these issues. CKI filed an application in respect of the Redactions, the August 7 Records, and also in respect of financial disclosure matters. MBH filed an application (which I refer to as a cross-application) for an order in respect of MBH’s medical records, including a restricted court access order. These are my reasons on those applications. II. Background [ 3 ] The parties married in 2010 and separated in 2019. There are two children of the marriage ( Children ).

The Statement of Claim for Divorce and Division of Matrimonial Property was filed in February 2019. [ 4 ] On February 24, 2021, Justice Bensler ordered, among other things, that the parties continue their shared parenting arrangement of alternating weeks. A.

The January 21, 2022 Incident and the February 2022 Emergency Application [ 5 ] On February 16, 2022, CKI filed an Emergency Application for Interim Parenting seeking, among other things, that he have primary care and control of the Children with specified parenting for MBH. [ 6 ] CKI’s affidavit provided evidence of, among other things, an incident on January 21, 2022 in which MBH keyed his car, was aggressive toward him and one of the Children, and then appeared impaired (and passed out) while waiting to pick the other child up from an activity. Children’s Services was contacted.

CKI asserted that MBH had a substance abuse problem. He also gave evidence of an upsetting phone call MBH made to one of the Children on February 13, 2022. CKI asserted that MBH’s behaviour was severely affecting the Children’s physical, psychological and emotional safety. [ 7 ] In her February 25, 2022 response affidavit, MBH denies passing out. She advised that she suffered a concussion in April 2021 when “I tripped over the dog during the night and fell down the stairs, breaking several bones and puncturing my lung”. She swore that, on January 21, 2022, she struck her head again after slipping on ice.

After the incident on January 21, 2022, she sought medical assistance and advised she has been diagnosed with post concussive syndrome. She denied any substance abuse problem, denied some of CKI’s evidence, but admitted to keying CKI’s car (which led to criminal prosecution), although she does not recall doing so. Her evidence was that CKI was yelling at her and that she felt humiliated, frightened, and unwell on January 21. She was regretful for her behaviour that day. [ 8 ] On March 7, 2022, Justice de Wit ordered that CKI’s counsel was entitled to question MBH on her February 25, 2022 affidavit.

On April 19, 2022, Justice Hartigan adjourned CKI’s application to a half-day domestic special application to be scheduled following completion of questioning of MBH. [ 9 ] On May 9, 2022, Children’s Services indicated no concerns regarding CKI or MBH in relation to alcohol, drugs and/or prescription abuse/addiction. [ 10 ] On June 6, 2022, CKI’s counsel questioned MBH. It does not appear that CKI has caused the transcript of this questioning to be filed as required by rule 6.7(b). Only a portion of the transcript attached to an affidavit is before the court on this application.

CKI is directed to file this transcript. [ 11 ] At the June 6, 2022 questioning, CKI’s counsel requested MBH to undertake to produce MBH’s prescription medication records from 2020 to present from two pharmacies ( Prescription Records ). MBH’s counsel took the undertaking request under advisement. [ 12 ] In the course of that undertaking request, CKI’s counsel stated “...so for our purposes, just a simple printout would suffice. It’s all confidential.

It doesn’t leave this office.” It appears MBH was also asked to provide treatment charts and notes from her family physician ( Physician Records ), as well as records from the Foothills Medical Centre and the Sheldon Chumir Health Centre ( Hospital Records ). Those portions of the transcript are not before me. [ 13 ] Following the questioning, MBH or her counsel provided CKI’s counsel the Prescription Records, the Physician Records, and the Hospital Records. Only some of the correspondence related to the provision of the records has been put into evidence.

In particular, on September 30, 2022, MBH’s counsel wrote to CKI’s counsel and provided the Foothills Medical Centre records. She reminded CKI’s counsel of rule 5.33 of the Alberta Rules of Court , Alta Reg 124/2010 ( Rules ) which protects use of certain information disclosed in an action. [ 14 ] There is no indication that MBH claimed privilege over any of the disclosed records ( Disclosed Records ) at the time they were provided, or that they were provided to CKI’s counsel subject to any trust conditions.

She made the Redactions on parts of the Physician Records. [ 15 ] On August 24, 2022, MBH filed an affidavit to make corrections to her February 25, 2022 affidavit and her questioning transcript. She corrected that she slipped and fell and hit her head on January 20, 2021, that the fall down the stairs was on March 4, 2021 (not April 2021), and that it was about 5 days before January 21, 2022 that she slipped and hit her head again. B. The September 2022 Emergency Application [ 16 ] On September 29, 2022, CKI filed an emergency application ( September 2022 Application ) seeking an order, among other

things, varying parenting such that MBH’s parenting should be supervised. [ 17 ] The September 2022 Application related to an incident that occurred on August 7, 2022, involving MBH at a Calgary park. CKI’s affidavit indicated that he learned about this incident from a parent of one of the Children’s friends. Initially, he understood the incident involved MBH hitting another vehicle and possibly having a seizure, and that the police were called and MBH was taken away leaving the Children alone at the park. On August 11, 2022, CKI sought information about the incident from MBH.

In a response that day, CKI was advised that MBH did not hit another vehicle, that MBH had a stressful interaction with some other parents at the park, she was in distress, an ambulance was called, paramedics and police arrived, her vitals were elevated, and she was taken to the hospital for a check up. The email response confirmed “nobody is hiding anything from you, and certainly if the children’s safety was at risk, we would have contacted you as their father”.

The response did not mention whether MBH had consumed any alcohol. [ 18 ] On August 10, 2022, Alberta Transportation wrote to MBH and indicated that it was in receipt of medical documentation which indicates it would be unsafe for MBH to operate a motor vehicle at this time, referencing her “recent episode of syncope”. [ 19 ] On September 6, 2022, Children’s Services wrote to MBH.

It confirmed that Children’s Services had completed an assessment into the safety of the Children due to reported concerns that the Children are at risk due to being exposed to alcohol abuse by MBH, and found those allegations to be substantiated.

Children’s Services also indicated that “it has been substantiated that there was an incident on August 7, 2022 where [MBH] was driving a vehicle while heavily under the influence of alcohol and that [the Children] were passengers in that vehicle.” [ 20 ] The September 6, 2022 letter was adduced by MBH in her October 3, 2022 affidavit, but she did not specifically address the question of her alcohol use on August 7, 2022 or driving a vehicle with the Children while under the influence of alcohol.

She stated in her affidavit that she was feeling “very unwell”, “dizzy”, “upset”, “weak” and “disoriented”, and that she went to the hospital and received intravenous treatment. She indicated that “I do not have any records from the hospital to verify this or other allegations made by CKI”. [ 21 ] On October 1, 2022, MBH’s psychologist prepared a “progress report” that indicated, among other things, that MBH “described attending a family event at a local park, on a hot summer’s day, that resulted in her being taken to hospital due to a combination of dehydration, syncope, and alcohol consumption”.

The report also stated that “Medically, [MBH] has been diagnosed with post concussive syndrome and with the combination of this disorder, the consumption of alcohol, the heat of the day, and the stress, [MBH] suffered a syncope, or ‘passed out’”. This report stated, “this incident at the park has prompted [MBH] to further realize the seriousness of her medical condition, as well as the dangers of her lapsing into self-destructive coping habits. [She] has been taking steps to manage her episodic overindulgence of alcohol through attending an AA group...”.

MBH adduced this report in her October 3, 2022 affidavit, but again did not confirm the truth of its contents or specifically address alcohol consumption on August 7, 2022 in her affidavit. [ 22 ] As noted, MBH did not give direct evidence as to whether she was consuming alcohol on August 7, 2022, even though she appended documents which, as hearsay, state that she advised others that she did consume alcohol that day.

However, in her October 3, 2022 affidavit she did admit that “my drinking became an issue” and that she more generally had “self-medicated” with alcohol, which she attributes to various factors including having to move for a fourth time, the court proceedings, CKI’s conduct, coping with financial issues, and conduct of the parties’ former nanny.

She is attending Alcoholics Anonymous daily. [ 23 ] In her October 3, 2022 affidavit, MBH raised concerns about her privacy and CKI’s use of the Disclosed Records in the September 2022 Application, when they were produced in the questioning in relation to the February 2022 Application. [ 24 ] On October 4, 2022, I heard CKI’s urgent parent variation application. I ordered ( October 2022 Order ) that the shared parenting would continue, but on certain conditions including, among other things, that MBH’s parenting time would be supervised by her parents.

I also ordered her to enrol in the Soberlink program, that she not drive the Children, and that she continue Alcoholics Anonymous, recommended medical treatment by her physician, and therapy as recommended by her psychologist. My order provided that it would be revisited as part of the half-day special application as previously ordered by Justice Hartigan. The October 2022 Order was not appealed. C. The Rule 4.10 Case Conference [ 25 ] In early 2023, both parties filed Notices to Attend Family Docket Court.

The issues outstanding between the parties were significant and complex enough that, on January 16, 2023, Justice Grosse directed the parties to a rule 4.10 case conference. [ 26 ] On March 2, 2023, Justice Eamon conducted a case conference with the parties. He noted the numerous issues that remained outstanding (parenting, child support, spousal support, property division, divorce and disclosure), and made twelve procedural directions. Those directions included the application before me. Justice Eamon strongly recommended to the parties that they

schedule an expedited date for the review of my October 2022 Order and the half-day special application directed by Justice Hartigan. The parties were directed to attend Family Docket Court on March 22, 2023 to speak to obtaining an urgent special application for these matters.

Justice Eamon also suggested the parties consider writing to the acting Associate Chief Justice in Calgary well before that attendance to request an expedited one-day parenting application that would permit the flexibility to provide oral evidence with cross-examination if warranted, rather than the ½ day special application contemplated in the orders. [ 27 ] On March 22, 2023, the Family Docket Court attendance was removed from the list because CKI failed to attend. III. Issues [ 28 ] As noted above, CKI’s application regarding financial disclosure matters was not part of the issues Justice Eamon directed to

be heard on April 3, 2023 and, in my view, is not properly before the Court. That portion of his application is adjourned sine die pendingfurther scheduling of that application in accordance with Justice Eamon’s directions. [29] Accordingly, the issues on this application are: (

a) Should MBH have to disclose the Redactions? (

b) Should MBH be compelled to produce the August 7 Records? (

c) What are appropriate directions concerning CKI’s access to or possession of MBH’s medical records previously disclosed orto be disclosed? and (

d) Should there be a restricted court access order? IV. Analysis A. Should MBH have to Disclose the Redacted Portions of her MedicalRecords? [30] In her March 28, 2023 affidavit, MBH indicated that she would agree to disclose the Redactions, but only if controls were puton CKI.

However, in oral argument, MBH’s counsel advised that MBH objected to the disclosure of the redacted records on the basisthat they were not relevant to the parenting applications, but if they are disclosed there should be protections in place to protect MBH’sprivacy. [31] As noted, on June 6, 2022, MBH was questioned on her February 25, 2022 affidavit pursuant to rule 6.7.

Rule 6.7 provides: Questioning on affidavit in support, response and reply to application 6.7 A person who makes an affidavit in support of an application or in response or reply to an application may be questioned, underoath, on the affidavit by a person adverse in interest on the application, and (

a) rules 6.16 to 6.20 apply for the purposes of this rule, and (

b) the transcript of the questioning must be filed by the questioning party. [32] I understand based on the limited record before me that MBH produced the Physicians Records, which contain theRedactions, in response to undertaking requests made during the cross-examination. MBH’s affidavit suggests she felt that she wascompelled to produce these records. She states that she feels there is “no such thing as doctor-patient confidentiality” and that she feelsbullied. [33] However, the fact is that MBH did not resist production of the Physician Records.

Therefore, the restraint with which Albertacourts will compel undertaking responses in the context of questioning on an affidavit does not come into play here: Kostic v ScottVenturo Rudakoff, 2022 ABQB 188 at para 25(h); Edmonton v Gosine, 2020 ABQB 546 at para 17; Rieger v Plains MidstreamCanada ULC, 2019 ABQB 666 at para 7; Dow Chemical Canada Inc v Shell Chemicals Canada Ltd, 2008 ABQB 671 at para 5 [Dow2008]. [34] Further, any privilege that may have been included in the unredacted portions of the Physician Records was waived when theywere voluntarily produced by her counsel, so MBH’s arguments before me about potential privilege of the already produced PhysicianRecords are no longer applicable: 0678786 BC Ltd v Bennett Jones LLP, 2021 ABCA 62 at para 40; Ho v Connell, 2023 ABKB 133 atpara 10.

MBH had legal counsel at the time she disclosed the Physician Records, and I find she intended to provide them to CKI’scounsel for the purposes of the action. [35] The issue here, then, is when the court should order disclosure of redacted records that are provided in the context of aquestioning on an affidavit. In the context of

Part 5 disclosure under the Rules, rule 5.11 allows courts to compel the production of arecord, or a redacted portion of a record, that has been omitted from an affidavit of records: Questor Technology Inc v Stagg, 2022ABQB 578 at para 126.

Although rule 5.11 does not strictly apply in this case because the Physician Records were not compelled underPart 5 of the Rules, and there has been no request for, or production of, an affidavit of records by MBH pursuant to rule 12.38(2), Iconclude that the court, by analogy and as part of its inherent jurisdiction, has the discretion to order the disclosure of redactions onrecords that are produced as part of undertaking responses given as part of a questioning on an affidavit: rules 1.4 and 1.7. [36] The appropriate approach is for the court to inspect the redactions at issue: Questor at para 126; Canadian NaturalResources Limited v ShawCor Ltd, 2014 ABCA 289 at paras 63-65; LC v Alberta, 2016 ABQB 491 at paras 38, 42 and 51.

MBH’scounsel provided the court the Redactions for this purpose, which I have reviewed and placed in a sealed file on the Court file. [37] In Alberta, irrelevant information can often be redacted or removed from records: Geophysical Service Incorporated v NWestEnergy Corp, 2017 ABQB 232 at para 31; Lazin v Ciba-Geigy Canada, 1976 ALTASCAD 58 at paras 5 and 6; InnovativeHealth Group Inc v Calgary Health Region, 2008 ABCA 219 at para 39; Royal Bank v Wallis, (Alta CA).

Thisincludes irrelevant personal information, including medical information: Goold v Allen, 2023 ABKB 66 at para 30; Sanchez v Hampton,2002 ABQB 226; Vu v Garcia, 2005 ABQB 308. [38] In other provinces, some courts interpret their procedural rules as requiring that even irrelevant information in an otherwiserelevant document or record must generally be disclosed unless the redacting party discharges an onus to establish “good reason” for the

redaction, namely that a redaction is necessary to protect an important interest, such as patents or trade secrets, personal income taxinformation, commercially sensitive financial information, records of a purely private and personal nature, or sensitive medicalinformation: Omorogbe v Saskatchewan Power Corporation, 2022 SKCA 116 at paras 22-43; Este v Blackburn, 2016 BCCA 496 atpara 19; Willsey v Casino Rama Services Inc, 2019 ONSC 4660 at para 7; WSIB Investments (Infrastructure) Pooled Fund Trust et alv Plenary Group (Canada) Ltd et al, 2022 MBQB 145.

The policy reasons for this approach include that the implied undertaking rulewill protect the information, and that redactions could lead to delays and increased costs. As stated in Omorogbe at para 46: “...if thecourts allow redactions simply because the information removed is irrelevant, it will encourage parties to make them. This is apt tofoment abuse and dispute”. [39] In practice, Alberta’s approach is not significantly different than the other provinces noted. The Alberta cases illustrate thatparties redact where they are seeking to protect the very types of sensitive information noted in Omorogbe.

In my view, a party-administered system of self-disclosure is practical, efficient, and proportional, and is how our Rules operate for disclosure and productionof all records, including redacted portions of records: rules 5.5 and 5.6; Innovative at para 42. [40] In modern society, electronic records proliferate, and the boundary between one record and another, or between collections ofrecords, or between divisions within records, can easily be blurred.

In the Rules, a “record” includes “the representation of or a record ofany information, data or other thing that is or is capable of being represented or reproduced visually or by sound, or both” (emphasisadded). Records are often thousands of pages.

Further, records will often contain both relevant and material, and irrelevant, information.A rule that requires a party to produce every electronic record in its entirety if it includes any speck of relevant and material information,would be unnecessarily formalistic, unworkable and inefficient, and would multiply the growing databases of records that bog downmany actions and that risk putting court processes out of reach for many persons. Common sense and proportionality must prevail.

Parties should, within reason and consistent with procedural rules, be entitled to redact or remove clearly irrelevant information whereappropriate: Innovative at paras 37-38; The Sedona Canada Principles, Sedona Conference Working Group 7, 3rd ed (2022), 2022CanLIIDocs 1167 at page 289; Sanford v Carleton Road Industries Association, 2020 NSSC 170 at para 30. [41] Having said that, courts must take steps to prevent abuse.

Unfortunately, redactions may raise questions or skepticism that theother party is hiding something or redacting important information which, in turn, may lead to inefficiency and unnecessary disputes:Omorogbe at para 46; Sanford at para 26. [42] Further, the parties must ensure that the removal of irrelevant information does not render records misleading orincomprehensible or creates unfairness.

For example, in the context of partial waiver of privileged records, a party cannot unfairly waiveonly a selective or “cherry-picked” portion of a privileged record where it would be unfair or misleading: Goodswimmer v Canada(Attorney General), 2015 ABCA 253 at para 15; NOV Enerflow ULC (NOV Pressure Pumping ULC) v Enerflow Industries Inc, 2017ABQB 334 at para 25; Guelph (City) v Super Blue Box Recycling Corp, (ON SC) at para 78.

This can apply byanalogy to redaction of irrelevant information: Sanford at para 24. [43] For all these reasons, redactions should not be made lightly, and should not be made for strategic or tactical litigationpurposes.

Where practical, parties should discuss and attempt to reach agreement on specific redactions or the types of redactions.Otherwise, parties should only engage in redaction of non-privileged irrelevant information from otherwise relevant and material recordswhere: (1) the redacted information is clearly irrelevant (that is, where there is no reasonable basis upon which an opposing party mightassert it is relevant under the Rules); (2) as a matter of proportionality as contemplated by rule 1.2, the benefit of streamlining theproduction or protecting the irrelevant information (including the nature of the interest being protected by the redaction) outweighs thedelay or costs which may be caused by the redaction process or the redaction itself; and (3) the redaction is sufficiently unconnected tothe rest of the record so the redaction does not render the remaining record misleading or more difficult to understand. [44] If a redaction does not meet these criteria, absent agreement it should be disclosed as part of the relevant and material record.

If it does meet the criteria, the redacting party should keep a contemporaneous record of the grounds for the redaction so that, ifnecessary, the parties or the court can resolve any dispute about it. If the redaction is in a document being disclosed in a

Part 5 affidavitof records, the redaction and grounds should be disclosed, by analogy, in compliance with rule 5.8. [45] I review the Redactions in this case through these lenses. Whether the court should require redactions to be produced is afact-specific inquiry: Demb v Valhalla Group Ltd, 2014 ABQB 554 at paras 60-61. 1. Page 1 - January 22, 2021 Visit Record [46] According to MBH’s evidence, this visit took place one day after she fell and hit her head.

MBH appears to rely on postconcussive syndrome in the parenting applications, presumably to explain some of her conduct or her medical situation in this matter andin response to the issues CKI raises about substance abuse and alcohol consumption. In my view the full record of this visit is relevantand material and should be produced. 2. Page 2 – February 26, 2021 Visit Record [47] I have not been provided a full copy of the Prescription Records. However, one of the disputed issues between the parties iswhether MBH has a substance abuse problem.

This is relevant and material to the parenting applications, and in my view these redactionsare relevant and material and should be produced. 3. Page 3 – March 10, 2021 Visit Record [48] MBH has put directly into evidence that she fell down the stairs and suffered, among other injuries, a concussion on March 4,2021. The redaction on this record, on its face and prepared only 6 days after that event, may directly contradict her evidence. In myview, it was misleading not to include it, and raises a question of whether it was strategically redacted.

In one of her affidavits, MBHindicated that there are errors in the Physician’s Records. However, it is not appropriate for MBH to purport to correct the presentation of

the Physician’s Records in this manner. If there are errors in a record prepared by someone else that a party wishes to rely on, an appropriate approach would be to explain that through other evidence, perhaps through the evidence of the author of the record, not to redact the alleged errors and hide them from the other side. This redaction shall be disclosed. 4. Page 7 – June 23, 2021 Visit Record [ 49 ] MBH’s feelings arising out of the court proceedings are not relevant and material to the parenting applications, and these redactions do not render the remaining record misleading.

These redactions do not need to be disclosed. 5. Page 8 – June 28, 2021 Visit Record [ 50 ] This redaction is not relevant and material to the parenting applications, and does not render the remaining record misleading. This redaction does not need to be disclosed. 6. Page 17 – December 1, 2021 Visit Record [ 51 ] These redactions are not relevant and material to the parenting applications, and do not render the remaining record misleading. These redactions do not need to be disclosed. 7.

Page 20 – January 10, 2022 Visit Record [ 52 ] These redactions are not relevant and material to the parenting applications, and do not render the remaining record misleading. These redactions do not need to be disclosed. 8. Page 21 – February 2, 2022 Visit Record [ 53 ] These redactions, on their face, are relevant and material to the parenting applications, as they describe the January 21, 2022 incident, relate to alcohol consumption and other matters that are pertinent to parenting.

I am also of the view that the partial production of this record with the redactions presents an incomplete and misleading picture. These redactions shall be disclosed with two exceptions because they disclose discrete information that is protected by litigation privilege or references solicitor-client privileged information related to MBH’s counsel’s work on her behalf. Specifically: the last redacted bulleted item under the “Subjective” heading, and the last redacted bullet under “Plan”, do not need to be disclosed and may remain redacted. 9.

Page 23 – February 9, 2022 Visit Record [ 54 ] The first redacted bullet references privileged information and does not need to be disclosed. The second bullet shall be produced because otherwise it presents an incomplete list of items requested from MBH’s physician. 10. Page 24 – February 23, 2022 Visit Record [ 55 ] The first and third redactions are relevant and material to the issues raised by the parties in their affidavits and the parenting applications. The second redaction references privileged solicitor-client communications, is not relevant and material, and does not need to be disclosed. 11.

Page 25 – March 2, 2022 Visit Record [ 56 ] This redaction references medical advice received from the physician related to post concussion syndrome, and therefore is relevant and material to the parenting applications.

I assume it was redacted due to privilege concerns, however, I am not satisfied that the communication was for the dominant purpose of preparation for litigation - it was for the dominant purpose of medical assessment and advice, and therefore is not privileged as litigation privilege: Lizotte v Aviva Insurance Company of Canada , 2016 SCC 52 at para 6 ; Alberta v Suncor Inc , 2017 ABCA 221 at para 37 . 12. Pages 29-30 – March 2, 2022 Visit Record [ 57 ] These redactions are relevant and material to the parenting applications and the issues raised by the parties and shall be produced. 13.

Conclusion re: Redactions [ 58 ] MBH is directed to produce the Redactions as noted above forthwith, in accordance with these Reasons. The Redactions that I have noted that do not need to be disclosed may remain redacted. B. Should MBH be compelled to produce the August 7 Records? [ 59 ] As noted, CKI has not used rule 12.38(2) to require MBH to produce an Affidavit of Records in this matter.

However, in my view, given the delays, and the dispute about whether the August 7 Records are relevant and material, it would not be consistent with the foundational rules to require him to go through that procedural step now, or to engage in a questioning on MBH’s affidavits to request those documents. The issue is squarely before me as directed by Justice Eamon, and neither party took the position that I should not consider the application for production of the August 7 Records.

[60] In my view, the August 7 Records are relevant and material and should be produced, whether I apply the test under

Part 5disclosure (as reflected in rule 5.2 and the definition of “relevant and material”, as interpreted by courts: The Canada Trust Co(McDiarmaid Estate) v Alberta (Infrastructure), 2022 ABCA 247 at paras 28-30; Dow Chemical Canada ULC v Nova ChemicalsCorp, 2014 ABCA 244 at paras 17-21; Goold at paras 13-16), or under the more restrictive test outlined above respecting compellingresponses to undertakings in a questioning on an affidavit (Edmonton v Gosine at para 17; Rieger at para 7; Dow 2008 at para 5). [61] It will be important for the court determining parenting to have the best evidence about what happened on August 7, 2022,including whether MBH consumed alcohol while in control of a vehicle with child passengers.

While there is hearsay documentationappended to MBH’s affidavits which indicates that MBH consumed alcohol that day, she did not confirm the truth of those statements orclarify in her affidavits whether she did or did not consume alcohol and, at the time of one of her affidavits stated that she did not “haveany records from the hospital to verify this or other allegations made by CKI”. MBH’s affidavit avoids clarifying whether she consumedalcohol that day, while at the same time acknowledging she has been self medicating with alcohol more generally.

The August 7 Recordswill assist in determining whether MBH consumed alcohol or was intoxicated on August 7, 2022. [62] In my view, whether MBH consumed alcohol or was intoxicated on August 7, 2022 is relevant and material to the parentingand the best interests of the Children, including the Children’s physical, emotional and psychological safety, security and well-being(Divorce Act, section 16(2)), as well as MBH’s ability to care for and meet the needs of the Children (section 16(3)(h)).

The August 7Records will significantly assist the parties and the court in determining this issue, much as similar records have in other custody orparenting cases: JKLD v WJA, 2020 ONCJ 335 at para 134; EH v TJW, 2011 MBQB 19 at para 34; Porter v Porter, (ONSC) at para 18; GLK v CLK, 2021 ONSC 5843; Lewis v Schuck, 2018 ONSC 3887 at para 19. Protection of children throughrecords disclosure is given priority over parental privacy interests as long as the requests are relevant and material and not a fishingexpedition: Porter at paras 17018; Ross v Holmes, 2022 ONSC 3769 at para 90; M(

A) v Ryan, (SCC), [1997] 1 SCR157 at para 37; Webb v Greenhalgh and Eland-Greenhalgh, 2007 ONCJ 200 at paras 3-4. [63] The August 7 Records are also relevant and material to section 16(3)(

i) of the Divorce Act: the ability and willingness of eachperson in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting theChildren; and also in respect of section 16(3)(b): the nature and strength of the relationship between the Children and their mother andmaternal grandparents.

They are also likely relevant and material to credibility. [64] If MBH had consumed alcohol or was intoxicated when she was in her vehicle with her Children, and if that contributed to thesyncope or passing out, then a court may, upon consideration of a full record, find that MBH and her parents were not forthcoming indisclosing the events of August 7 to CKI, and in fact may have misled him about those events.

On the other hand, if the August 7Records confirm that MBH did not consume alcohol and was not intoxicated, then it will be relevant and material to explain whathappened on August 7, to refute the allegations made by CKI, and to help explain why her driver’s licence was suspended. In eitherevent, in my view the August 7 Records are relevant and material to any future parenting analysis the court will undertake. [65] Accordingly, MBH is directed to forthwith produce any August 7 Records she has under her control as contemplated in rule5.6(1)(b)(ii), in accordance with the terms of these Reasons. C.

What are Appropriate Directions Concerning Access to or Possession ofMBH’s Medical Records Previously Disclosed or to be Disclosed? [66] The Disclosed Records, the to-be-disclosed Redactions, and the August 7 Records (all collectively, the Medical Records)contain MBH’s personal health information and are confidential: MN v Drew (Estate of), 2003 ABCA 231 at para 14; Cook v Ip (1985),, 22 D.L.R. (4th) 1 (Ont CA) at pp 4-5; Health Information Act, RSA 2000 c. H-5,

section 2. However, the right toconfidentiality is a relative right which can be waived by the patient: Frenette v Metropolitan Life Insurance Co, (SCC), [1992] 1 SCR 647. [67] Even though some or all of the Medical Records are relevant and material in the action, as noted earlier a party may berestricted in their possession or use of those records. In this case, MBH applies to place restrictions on CKI’s possession and use of theMedical Records. 1.

What Restrictions Apply or Should Apply to CKI’s Use of MBH’s Medical Records? [68] MBH’s application raises important issues regarding the use of confidential records by parties in family litigation, includingdivorce proceedings involving children which are often high conflict. As with any civil litigation, there are at least three ways by whicha litigant may be restricted in the use of information disclosed to it in family litigation: the codified restriction in the Rules (rule 5.33),the common law implied undertaking rule, or the equitable or inherent jurisdiction of the court. a.

Restrictions Imposed by Rule 5.33 [69] MBH and her counsel, when sending some of the Medical Records to CKI’s counsel, relied on rule 5.33 as imposingrestrictions on the use of the records. Rule 5.33 states: Confidentiality and use of information 5.33(1) The information and records described in subrule (2) must be treated as confidential and may only be used by the recipient of theinformation or record for the purpose of carrying on the action in which the information or record was provided or disclosed unless (

a) the Court otherwise orders, (

b) the parties otherwise agree, or

(

c) otherwise required or permitted by law.

(2) For the purposes of subrule (1) the information and records are: (

a) information provided or disclosed by one party to another in an affidavit served under this Division; (

b) information provided or disclosed by one party to another in a record referred to in an affidavit served under this Division; (

c) information recorded in a transcript of questioning made or in answers to written questions given under this Division. [70] Rule 5.33 recognizes that many produced records are confidential, and therefore are subject to the implied undertaking thatthe documents will not be used for collateral purposes: Kaddoura v Hanson, 2015 ABCA 154 at para 31. However, rule 5.33 does notcover all information revealed during litigation; it is limited in its scope to information provided or disclosed under

Part 5, Division 1 ofthe Rules, which relates only to the

Part 5 discovery process: Makis v Alberta Health Services, 2020 ABCA 168 at para 61. [71] In the context of family proceedings, rule 5.33 applies to oral questioning for discovery under rule 5.17, and an affidavit ofrecords compelled pursuant to rule 12.38 (since rule 12.38 simply provides a different procedural mechanism to trigger the service of anaffidavit of records as delineated in

Part 5, Division 1). In my view, rule 5.33 also applies to written interrogatories under rule 12.40because the rule 12.40 process applies “in place of rule 5.28”, which I interpret to mean that rule 12.40 written interrogatories areeffectively given under

Part 5, Division 1. However, rule 5.33 does not apply to a notice to disclose documents under 12.41 or a requestfor financial information under rule 12.42 because those distinct processes are not contemplated in

Part 5, Division 1. [72] In my view, the Prescription Records, the Physician Records and the Hospital Records are not captured by rule 5.33 becausethey were not compelled under

Part 5, Division 1 but were produced in the context of a questioning on an affidavit under rule 6.7: Gill v735458 Alberta Inc, 2003 ABQB 501 at paras 17-34; Dreco Energy Services Ltd v Wenzel, 2007 ABQB 635 at paras 30-34; Klein vWolbeck, 2016 ABQB 28 at para 8; Terringo v Fox, 2023 ABKB 89 at paras 113-114. [73] However, I find that rule 5.33 does apply to the August 7 Records, which I have ordered to be produced without the need forCKI to formally request an Affidavit of Records. They are akin to compelled

Part 5 disclosure. Accordingly, rule 5.33 restricts CKI fromusing the August 7 Records other than for the purpose of carrying on the action. b.

Restrictions Imposed by the Common Law Implied Undertaking Rule [74] Even though the Disclosed Records are not restricted specifically under rule 5.33, I must assess whether those records arerestricted by the common law implied undertaking rule which exists independent of the specific codification in rule 5.33. [75] The rationale of the implied undertaking rule rests on the statutory compulsion that requires a party to make documentary andoral discovery regardless of privacy concerns: Juman v Doucette, 2008 SCC 8 at para 3; Edmonton (Police Service) v Alberta (LawEnforcement Review Board), 2014 ABCA 267 at para 34.

Full and frank disclosure is necessary to prevent litigation by ambush, toencourage settlement and to narrow issues: Juman at para 24.

In return for a party honouring its disclosure obligations, and to supportthe candid disclosure of information, the implied undertaking to the court prevents the other parties to the litigation from using thedocuments, answers or information disclosed except for the purpose of that litigation, unless and until the scope of the undertaking isvaried by a court order or other judicial order, or a situation of immediate and serious danger emerges: Juman at paras 4, 27; DrecoEnergy Services Ltd v Wenzel Downhole Tools Ltd, 2008 ABCA 36 at paras 2-6; Edmonton (Police Service) at para 34. [76] The implied undertaking does not apply to all information revealed during litigation.

For example, it does not cover pleadings,exhibits attached to affidavits by the producing party, or exhibits entered on the court record at trial: Juman at paras 21 and 51; Makisat para 61; Sterr v Merklinger, (ONSC) affirmed (Ont CA); Chevalier v Sunshine Village Corp,2011 ABQB 557 at paras 6-7; AM Gold Inc v Kaizen Discovery Inc, 2021 BCCA 70 at para 42; Edmonton (Police Service) at para 45. [77] Further, in some circumstances, the undertaking may not protect records or information that a party voluntarily discloses:Hamilton v Alberta (Minister of Public Works, Supply & Services), [1991] 5 WWR 232, (ABKB) at para 28; Chowv Cheung, 2022 BCSC 26 at para 40; Canada v Fio Corporation, 2015 FCA 236 at paras 14-15; Ibrahim v Lee, 2023 BCSC 28 at para111; Spiring v Spiring, 2004 MBQB 55 at para 60; K(

M) v B(CR), [1996] NWTR 168, (NWTSC) at para 22. [78] In the context of family litigation under

Part 12 of the Rules, in my view the implied undertaking rule applies to records andinformation provided pursuant to

Part 5 Discovery, but also other forms in which information is compelled, including informationdisclosed in response to a Notice to Disclose in Form FL-17 under rule 12.41, or a request for financial information pursuant to sections65(1) or (4) of the Family Law Act, SA 2003, c F-4.5, as contemplated by rule 12.42. It would also apply to court-ordered disclosure, forexample under a Family Docket Court Endorsement. [79] However, in this case, the Disclosed Records were not compelled under

Part 5 or pursuant to the other ways to compel recordsin family litigation. They were produced by way of responses to undertakings given in the context of a questioning on an affidavit underrule 6.7. In this case, MBH simply produced the Disclosed Records without objecting to the undertaking request. While one might arguethat this means these records were voluntarily produced and the implied undertaking should not apply, in my view, that would be toorestrictive an

interpretation of the implied undertaking rule. [80] Once a person files an affidavit, they are subject to questioning on that affidavit and are compelled to answer questions thatare relevant and material to the underlying application: rule 6.7; Blough v Busy Music Inc, 2018 ABQB 560 at para 37; Rozak Estate vDemas, 2011 ABQB 239 at para 30. In some cases, as noted earlier, the affiant may be compelled to provide undertaking answers.

Thefact that a witness produces the requested records without objection or forcing the opposing party to bring an application to compel themdoes not render them voluntarily produced and without protection of the implied undertaking. In that instance, the information andrecords are still provided pursuant to a compulsory questioning process. It would undermine the implied undertaking rule and be

inconsistent with rule 1.2 of the Rules to require a party to first formally object to gain protection of the implied undertaking, or to refusethe protection of the rule only because the affiant could have actually refused to produce some or all the requested records in the firstinstance. [81] Accordingly, in my view, records provided as part of undertaking answers on a questioning on an affidavit are subject to thecommon law implied undertaking rule.

There may be limitations on the application of the undertaking, for example where the recordsbecome part of the public record. [82] In my view, in this case, the Medical Records are protected by the common law implied undertaking rule. CKI may not usethem for purposes collateral to this action. c.

Restrictions Imposed Under Equitable or Inherent Jurisdiction [83] In most cases, the implied undertaking addresses any concerns about confidentiality of records: Uhrik v Terrigno, 2023ABCA 4 at para 4; Goold at para 29. [84] However, where additional protection of confidential information is warranted due to special circumstances, for examplewhere the information includes sensitive commercial or personal information, the court has discretion to grant protective, confidentialityor non-disclosure orders to provide more specific protection over access to, or possession or use of, specific records: M(

A) v Ryan atpara 41; JKLD at paras 140-148; HZ v Unger, 2015 ABQB 167 at paras 12-13; Questor at paras 159, 173-175; 190-198; Wirth Ltd vAcadia Pipe & Supply Corp, 79 Alta LR (2d) 345, (ABKB) at para 47(2); Weatherford Canada Partnership v Addie,2009 ABQB 538 at para 41. [85] In dealing with sensitive and confidential personal health information, courts have sometimes provided additional protection,often limiting production or possession to counsel or experts, or restricting copying of records: M(

A) v Ryan at para 41; JKLD at para148; HZ at para 12. [86] I am satisfied that the Disclosed Records are confidential, and were provided on the understanding of MBH and her counselthat they were to be held in confidence by CKI’s counsel and were not to be removed from his office. That may have informed whyMBH’s counsel did not take more proactive steps to impose trust conditions or to seek other agreement or protocols regarding the use ofthe Disclosed Records.

At some point, the Disclosed Records were copied and CKI has maintained a copy of them in his lockedworkplace office. [87] It is undesirable in a high-conflict family matter, in particular one in which disputed allegations of abuse and controllingbehaviour are yet unresolved, for one of the parties to have free access and control over highly confidential personal medical records ofthe other party. While CKI has taken some steps to protect the records by locking them in his office, I note that one of his administrativestaff members was given access to the records.

CKI states that his staff put a label on the binder but did not review the records. [88] I make no finding about whether CKI is likely to inappropriately use or disclose the records. The risk of potential harmcaused by the confidential information and records being inadvertently or intentionally disclosed and misused outside the action is toohigh to leave the records with CKI.

Further, given the likely impact on MBH’s mental well-being in having her personal medical historyin CKI’s possession, and the risk of the Children learning private adult information about their mother if the information was disclosedor misused, I find it is also in the Children’s best interests to compliment or bolster the implied undertaking rule with further court-ordered restrictions against CKI in this case. [89] MBH argues that CKI should disclose what he has done with the Disclosed Records, and should return them to his formercounsel.

She further argues that CKI should only have access to the Medical Records in the future for use in the litigation through legalcounsel. [90] Often, protection of sensitive records can be managed by having the opposing party’s legal counsel be the custodian, revieweror user of the records in the litigation. However, CKI is representing himself at this time and has a right to do so.

The court mustfacilitate his access to justice through self-representation, within reason: Canadian Judicial Counsel, Statement of Principles on Self-represented Litigants and Accused Persons 2006, as endorsed in Pintea v Johns, 2017 SCC 23 at para 4. The court must thereforebalance MBH’s privacy, the best interests of the Children, and CKI’s right to represent himself and prepare for the parentingapplications. [91] In my view, the court cannot and should not require CKI to retain counsel to deal with the records. He is entitled to representhimself in the action and to review and use the records for this purpose.

I have considered whether it would be appropriate for theDisclosed Records to be returned to MBH’s counsel, and then CKI could review the records at her office for the purpose of his litigationpreparation. In most cases, this would likely be sufficient but, in this case, the relationship between Ms. Silverberg and CKI appearsstrained and non-functional, as they spend an inordinate amount of time alleging incivility against each other rather than dealing with theunderlying issues. Accordingly, I find a different approach is required, as set out below. 2.

Conclusion Re Restriction on CKI’s Access to and Use of the Confidential Records [92] In my view, in the unique circumstances of this case, it is most appropriate for the court to treat the Medical Records asprotected in part by rule 5.33, and by the common law implied undertaking rule. However, additional protection is appropriate, similar tohow the court treats confidential reports under Alberta Court of King’s Bench Family Law Practice Note 7, so that CKI can access theprivately disclosed Medical Records in this action. Accordingly: (

a) CKI shall not use the Medical Records or their content for purposes collateral to this action. He shall not discuss the contentof the Medical Records with anyone other than MBH or her counsel, his legal counsel or experts, or in court proceedings in this action,and shall not disseminate any information about or derived from the Medical Records, including through any electronic means such as

email, texting, or social media; (

b) CKI is directed to provide MBH a statutory declaration confirming whether and to whom he provided the Disclosed Records or the information they contain (other than his legal counsel); (

c) CKI, is directed to isolate any electronic copies he has of the Disclosed Records onto a USB, and destroy all other copies of the electronic copies; (

d) CKI is directed to file the USB and binder of Disclosed Records with the Clerk of the Court, which shall both be sealed; (

e) MBH is directed to disclose the Redactions I have ordered to be disclosed, and the August 7 Records, by filing them in a sealed envelope with the Clerk of the Court. These documents shall be numbered in a way that the documents can be easily referenced by number in this matter; (

f) Exhibit A to CKI’s March 17, 2023 affidavit, the USB, the binder of Disclosed Records, the disclosed Redactions and the August 7 Records, shall be collective referenced as the “ Sealed Records ”; (

g) If CKI retains counsel, then his counsel may request the Sealed Records from the Clerk of the Court. His counsel shall retain those records in counsel’s possession and shall not allow them to be copied or reproduced by, or provided to, CKI, however, CKI will be permitted to review them in his counsel’s office; (

h) If CKI does not retain counsel, he (or any expert he may retain) may attend at the court and they will be permitted to review the Sealed Records under the supervision of the Clerk of the Court, but shall not be entitled to remove the originals or take any photocopies, electronic copies, or photographs of the records. If CKI or his expert take personal notes while reviewing the Sealed Records, the Clerk shall make a photocopy of those notes and shall keep that photocopy in a separate sealed envelop on the file. CKI and his experts shall maintain the confidentiality of any personal notes they make; (

i) Upon CKI’s request, the Sealed Records order will be made available by the Clerk of the Court at the hearing of any application, viva voce hearing, or trial relating to parenting; and (

j) for clarity, the sealed envelope containing the content of all the Redactions which was provided to me by Ms. Silverberg for the purposes of this application, shall not be made available by the Clerk of the Court to anyone other than a judge of a court of competent jurisdiction, or at any future application, hearing or trial, without further court order. D. Should there be Restricted Court Access Order? [ 93 ] MBH also applies for a sealing order, a publication ban, and restricted court access in respect of her medical records.

The court has jurisdiction to grant such orders pursuant to rules 6.28-6.36. [ 94 ] The Supreme Court of Canada has recently recast the test for discretionary limits on court openness in Sherman Estate v Donovan , 2021 SCC 25 at para 38 , as follows: The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving the necessity and proportionality of the proposed order ( Sierra Club , at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show.

Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle.

In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and, (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments ( Toronto Star Newspapers Ltd. v. Ontario , 2005 SCC 41 , [2005] 2 S.C.R. 188, at paras. 7 and 22 ). [ 95 ] In applying this test, there must be a strong public interest that justifies abridging the open-court principle: LDS v SCA , 2021 ABCA 429 at para 10 . 1.

Does Court Openness Pose a Serious Risk to an Important Public Interest? [ 96 ] This prerequisite involves consideration of two elements: an important public interest and a serious risk to that interest if an order is not granted: Sherman at paras 62; 76. a. Is there an Important Public Interest? [ 97 ] This case involves two distinct but interrelated potentially important public interests: MBH’s privacy in her medical

information and the protection of the privacy and best interests of the Children. [98] In Sherman, the Court held that an important interest in “privacy generally” is insufficient to establish an important publicinterest: Sherman at para 60. The fact that openness is disadvantageous, embarrassing or distressing will, on its own, generally notwarrant interference with the court openness principles: Sherman at para 63.

However, protecting individuals from the threat to theirdignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is animportant public interest for the purposes of the test: Sherman at para 73. This is because “[v]iolations of privacy that cause a loss ofcontrol over fundamental personal information about oneself are damaging to dignity because they erode one’s ability to present aspectsof oneself to others in a selective manner”: Sherman at para 71.

The applicant must show that the “information in the court file issufficiently sensitive that it can be said to strike at the biographical core of the individual and, in broader circumstances, that there is aserious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity”: Sherman at para 35. [99] The Court explained further, at para 75: If the interest is ultimately about safeguarding a person’s dignity, that interest will be undermined when the information revealssomething sensitive about them as an individual, as opposed to generic information that reveals little if anything about who they are asa person.

Therefore the information that will be revealed by court openness must consist of intimate or personal details about anindividual — what this Court has described in its jurisprudence on s. 8 of the Charter as the “biographical core” — if a seriousrisk to an important public interest is to be recognized in this context (R. v. Plant, (SCC), [1993] 3 S.C.R. 281, at p. 293;R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 60; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 46). Dignitytranscends personal inconvenience by reason of the highly sensitive nature of the information that might be revealed.

This Courtin Cole drew a similar line between the sensitivity of personal information and the public interest in protecting that information inreference to the biographical core. It held that “reasonable and informed Canadians” would be more willing to recognize theexistence of a privacy interest where the relevant information cuts to the “biographical core” or, “[p]ut another way, the morepersonal and confidential the information” (para. 46). The presumption of openness means that mere discomfort associated withlesser intrusions of privacy will generally be tolerated.

But there is a public interest in ensuring that openness does not unduly entail thedissemination of this core information that threatens dignity — even if it is “personal” to the affected person. [Emphasis added] [100] While the Supreme Court did not provide an exhaustive catalogue of the range of sensitive personal information that, ifexposed, could give rise to a serious risk, it noted the recognized sensitivity of stigmatized medical conditions: Sherman at para 77.Since Sherman, lower courts have recognized that sensitive medical information, such as medical history, medical conditions, diagnoses,and therapeutic and pharmaceutical records, can all go to a person’s biographical core the protection of which is an important publicinterest: Doe v Canada (Attorney General), 2022 ABQB 487 at para 25 and para 45(a); GX v Yukon (Government of), 2023 YKSC 10at paras 14-16; WAC v CVF, 2021 ONSC 6894 at para 173; R v HP, 2022 ABQB 88 at para 60. [101] I find that the Medical Records all include (or will likely include to the extent not yet produced) highly sensitive personalmedical information that goes to MBH’s biographical core, and possibly may involve a stigmatized medical condition, which could giverise to a serious risk to MBH’s dignity if not protected.

The protection of the privacy of these types of records gives rise to an importantpublic interest. [102] In this family dispute, the interests of the Children are also engaged. The protection of children’s best interests, including theirphysical, emotional, and psychological safety, security and well-being underpins all family matters: Divorce Act,

section 16; Family LawAct, sections 18, 99, 100; Child, Youth and Family Enhancement Act, RSA 2000,

section 126.2; Alberta Court of King’s Bench FamilyLaw Practice Note 10.

Courts have recognized the protection of the safety, well-being and privacy of children in their best interests as animportant public interest in the Sherman test: JRD v SB, 2023 ONSC 46 at paras 10-12; GX at para 16; MD v TK, 2021 ONSC 8514 atpara 61; AB v CD, 2022 ONSC 2134 at para 32; JT v EJ, 2022 ONSC 4956 at paras 28-31; SEL v OVP, 2022 ONSC 1390 at para 61;Schuetze v Pyper, 2021 BCSC 2599 at para 16; SZ v JZ, 2022 ABQB 493 at para 190; JTS v JB, 2022 ABKB 791 at para 4; AJK vJPB, 2022 MBQB 43 at paras 29-30. [103] The Medical Records at issue in this matter are not about the Children’s medical condition.

However, they arguably pertain tothe Children’s biographical core contemplated in Sherman, namely sensitive information about one of their biological parents that isrelevant and material to a parenting dispute which, if not protected, could pose a serious risk to the Children’s dignity. Further, in high-conflict parenting disputes, it is often in the best interests of children to protect them from the harm caused by being exposed to thedetails of the dispute and the allegations the parents make against each other.

While it may not be enough to simply claim the bestinterests of children as the important public interest without some further specification, in this case I find that the protection of thespecific sensitive information contained in MBH’s Medical Records gives rise to an important public interest, namely the best interests,privacy and protection of the Children. b.

Is there a Serious Risk to the Important Public Interest? [104] Where the information is sufficiently sensitive to strike at an individual’s biographical core, a court must then ask whether aserious risk to the interest is made out in the full factual context of the case: Sherman para 79. The seriousness of the risk may beaffected by the extent to which information would be disseminated without an exception to the open court principle, the extent to whichthe information is already in the public domain, and the probability that the feared dissemination will actually occur: Sherman at paras80-82.

Determining probability need not be identified in mathematical terms, and may be difficult to quantify precisely: Sherman at para80. [105] There is no information before me that would suggest that the media or anyone else has any interest in publicizing or otherwisemisusing MBH’s medical records. [106] However, there is a high probability that CKI, or an expert on his behalf, will use MBH’s medical records in the parentingdispute in this action, which means there is a high probability that they will eventually be filed as evidence as part of affidavits, or asexhibits at a viva voce hearing or trial involving parenting.

In fact, both parties have already filed some evidence disclosing or alluding to

at least some of MBH’s medical information. 2. Is the Order Sought Necessary to Prevent the Serious Risk? [107] Even where there is an important public interest that requires protection, courts must consider whether there are other sufficientreasonable alternatives to the order sought which could be used to prevent the risk: Sherman at para 105. [108] In this case, for the reasons set out earlier, the Medical Records will initially be filed at the court only to facilitate CKI’s accessto them for his preparation of his case.

As these records have not been used in open court or attached to an affidavit, but rather will havebeen filed with the court only to facilitate private disclosure to and access by a self-represented party, the open court principle does notapply to these records. There is no further order needed to protect those sealed records if they are never used in the court process.

In anyevent, any person seeking access to those records, other than CKI, his counsel or his experts, would need to apply to unseal and accessthem. [109] However, in the event CKI wants to use the Medical Records in an application, hearing or trial in this action, then it is possiblethat they will become part of the court record.

But that has not happened yet. [110] Further, and in any event, there is already some protection for all records in family law files, by virtue of Alberta Court ofKing’s Bench Family Law Practice Note 10, which limits access to a smaller circle of individuals: parties, lawyers of record, governmentemployees acting in the course of employment in respect of the specific file, persons authorized by the parties by means of an “Authorityto Access Family Law File”, and members of the media specifically accredited by the Court from time to time.

If a person not covered bythat list wishes to access a family file, they must give notice and then the parties can apply for a restricted access order. [111] Family Law Practice Note 10 was issued by the Court in 2017 to provide a pre-emptive layer of protection because many familylaw actions involve sensitive information about families, parents and children.

The Practice Note creates a significant layer of protectionand balances the right to privacy of sensitive information and the open court principle. [112] Further, in order to protect children, courts will sometimes use initials or take other steps to anonymize Reasons for Decision toreduce the risk of the parents or children being identified.

I am satisfied that Practice Note 10, coupled with anonymization, arereasonable and sufficient alternatives to sealing the court file or a blanket publication ban, at this time. [113] In the circumstances, MBH has not discharged the burden to show that court file sealing or a publication ban are required, at thistime, to protect the Mother’s privacy or the Children’s best interests.

If the Mother has concerns in the future regarding publicationwhere sensitive medical information is to be filed or addressed for use as evidence in open court, she may apply for a more specific orsurgical restricted court access order to the judge presiding over that process. It is premature to deal with that now without context and amore complete evidentiary record to apply the Sherman framework: Schulz v SA Armstrong Ltd, 2023 ONSC 2246 at para 8. 3.

As a Matter of Proportionality, do the Benefits of the Order Outweigh its Negative Effects? [114] MBH must show that the benefits of any order necessary to protect from a serious risk to the important public interestoutweighed the harmful effects of the order, including the negative impact on the open court principle: Sherman at para 106; SierraClub of Canada v Canada (Minister of Finance), 2002 SCC 41 , [2002] 2 SCR 522 at para 53. [115] The open court principle is essential to the proper functioning of our democracy: Sherman at para 30; AB v College ofPhysicians and Surgeons of Alberta, 2021 ABCA 320 at paras 11-13 [AB v College of Physicians].

It fosters public scrutiny andpromotes the seeking of the truth, the common good, and an effective evidentiary process: Sierra Club at paras 75-76; EdmontonJournal v Alberta (Attorney General), (SCC), [1989] 2SCR 1326. [116] Importantly, an open court principle promotes accountability, not only of the judiciary, but others involved in legal proceedings,including the parties, by subjecting them to public scrutiny: AB v College of Physicians at para 11-14; Caplan v Atas, 2019 ONSC 3620at para 5; Edmonton Journal?; Jane Bailey and Jacquelyn Burkell, Revisiting the Open Court Principle in an Era of Online Publication:Questioning Presumptive Public Access to Parties' and Witnesses' Personal Information, 2017 48-1 Ottawa Law Review 143, 2017CanLIIDocs 166 at para 154.

As stated by the Court of Appeal in AB v College of Physicians [footnotes omitted] at para 14: Fourth, those who play an active role in the court process – litigants, witnesses, lawyers and judges – know that the open-court principleis in force and that their conduct may be monitored. Actors tend to do their best work if they know they are subject to close scrutiny byobservers who tend to be critical.

The open-court principle promotes the delivery of justice in accordance with best practices that areconstantly evolving and improving. [117] Accordingly, the court must balance MBH’s privacy interests and interests of the Children against these principles. A criticalfactor will be the importance of the information to the judicial process will affect the proportionality analysis.

The more important theinformation is to the judicial process, the more harmful to court openness a restricted access order becomes, as explained in Sherman atpara 106: Further, the Trustees would have had to show that the benefits of any order necessary to protect from a serious risk to the importantpublic interest outweighed the harmful effects of the order, including the negative impact on the open court principle (Sierra Club, atpara. 53).

In balancing the privacy interests against the open court principle, it is important to consider whether the information the orderseeks to protect is peripheral or central to the judicial process (paras. 78 and 86; Bragg, at paras. 28-29). There will doubtless be caseswhere the information that poses a serious risk to privacy, bearing as it does on individual dignity, will be central to the case. Butthe interest in important and legally relevant information being aired in open court may well overcome any concern for theprivacy interests in that same information.

This contextual balancing, informed by the importance of the open court principle,presents a final barrier to those seeking a discretionary limit on court openness for the purposes of privacy protection. [Emphasis added]

[ 118 ] Some of the Disclosed Records, the Redactions which I have ordered to be produced, and the August 7 Records (once produced), may very well be central to the parties’ parenting dispute. That may affect whether a general publication ban or some other restricted court access order is appropriate if and when those records are used or sought to be used in an application or in open court.

However, as I have noted, it would be premature for me to decide that question now. [ 119 ] However, based on the current record, the benefits of protecting MBH’s and the Children’s interests through Practice Note 10, and the anonymization of these Reasons to protect the Children, outweighs the harmful effects to the open court principle: AB v Bragg Communications Inc , 2012 SCC 46 at para 28 and the cases cited earlier at para 102 of these Reasons.

At this time, it would premature and disproportional to go further and order sealing of the court file or a broad publication ban: Schulz at para 8 ; AB v Bragg Communications at para 30. 4.

Conclusion re Restricted Court Access Order [ 120 ] The requested form of restricted court access, in the form of a court sealing or apublication ban, order is denied. [ 121 ] However, as noted, in order to protect the Children’s best interests, and for the reasons above, I have exercised my discretion to use initials only in respect of the parties and omitted other specific potential identifying information. [ 122 ] I have considered MBH’s restricted court access application on the assumption she or her counsel followed the protocol for a restricted court access order under rule 6.32 and the Court’s Notice to Profession & Public – E-Notice of Restricted Access Applications, found on the Court’s website: https://albertacourts.ca/kb/resources/announcements/notice-to-the-profession-public---e-notice-of- restricted-access-applications [ 123 ] If my assumption is incorrect, and MBH has not ensured the media has been given notice of her application, then MBH is ordered to now comply with rule 6.32 and the E-Notice requirements set out in the Notice to Profession and to also provide a copy of these Reasons.

The media, as described in rule 6.32(a), shall have 10 days after receiving notice from the Clerk of the Court to apply to vary this order. V. Conclusion and Next Steps [ 124 ] Ms. Silverberg is directed to prepare a form of order reflecting the orders made in these Reasons, and I invoke rule 9.4(2)(

c) for this purpose. She is directed to provide this to my attention in Microsoft Word format, through the KB Digital Filing system. [ 125 ] I return to Justice Eamon’s strong recommendation to the parties to contact the acting Associate Chief Justice in Calgary to effectively convert the currently directed half-day domestic special application to deal with CKI’s applications and the review of the October 2022 Order, into an urgent viva voce hearing. I agree with Justice Eamon.

Based on the additional information available to me at this juncture, it is clear that the outstanding parenting applications, the allegations of substance abuse, the evidence surrounding what took place on January 21, 2022 and August 7, 2022, and MBH’s historical alcohol consumption, among other things, are exacerbating conflict between the parties, which is resulting in inefficiencies and delay in resolving all their issues. Further, it is now apparent that credibility will very likely be an issue in resolving parenting.

The parties, and the best interests of the Children, will benefit from urgent resolution in a viva voce hearing process. If the parties cannot resolve these issues themselves, to the extent it is necessary, the parties have leave to contact the Acting Associate Chief Justice in Calgary immediately to

schedule a hearing. [ 126 ] The costs of this application shall be deferred to be dealt with by the court upon the hearing of the parenting applications. Heard on the 3 rd day of April, 2023. Dated at the City of Calgary, Alberta this 15 th day of May, 2023. M.A. Marion J.C.K.B.A. Appearances: Christine E. Silverberg for the Plaintiff (Respondent/Cross-Applicant) C.K.I. Self-Represented Litigant (Applicant/Cross-Respondent)