Parents’ Right to Disclosure Reduced Once the Children’s Aid Society is the Legal Guardian of the Children
In the case of Children’s Aid Society of Toronto v. F. D.-S., 2016 ONCJ 520 (CanLII) Madame Justice Zisman dealt with an interesting situation. There was an outstanding court order that children be made a Crown Ward. This means that the Children’s Aid Society, for all intents and purposes, was now the parent. The Mother have no right of access.
As per the Statutes, the children’s situation was reviewed in a Status Review. The matter before Madame Justice Zisman was the Mother’s motion to compel the CAS to provide a copy of the children’s therapist records. The C.A.S. refused.
Justice Zisman affirmed the general rule that when a parent either fights the CAS’s decision to apprehend the children or fights for the child to stay in the care and control of that parent, then that parent has a broad right of disclosure from the C.A.S. The reasoning is both fairness to the parent and that the court wants as much evidence as possible in deciding the fate of the child.
Once a judge decides that the CAS should be a child’s legal guardian, however, then the parents’ right of disclosure is narrowed. The CAS should be less concerned with justifying its decision and more concerned with providing care to the child.
Ultimately, it is a balancing between the harm to the parties. Justice Zisman held that
- The children expected their comments were not to be disclosed in open court because it was a therapist and that the child custody proceeding was over;
- Therapy would not be as effective if the children feared that their comments would be used in court;
- The therapy notes and records were not really relevant. The children were not focused on whether the Mother has access.
The Mother was not seriously prejudiced do to a lack of disclosure because;
- She provided very little evidence as to what information she needed for her case that could only come from the therapy notes and
- She did not provide evidence that she would have a good chance of succeeding in her request.
You can read the case here.