Oct 15, 2019

Obtaining Disclosure of a Kinship Assessment in Child Protection Proceedings

Highland Shores Children’s Aid Society v. T.S., 2019 ONSC 5765 (CanLII)

Kinship assessments are an onerous and intrusive process for prospective kin whose family members are involved with the Children's Aid Society. The confidentiality of the kinship assessment can be crucial for family members considering whether to participate in the first place. But how does that privacy interest stack up when the findings of a kin assessment are being relied on against that same kin?

Whether the kinship assessment can be disclosed to the parties in a child protection proceeding arose as an issue in Highland Shores Children’s Aid Society v T.S. Following a kinship assessment in T.S, the Society approved the kin as a placement for one child in the proceeding, but not for the other child. The Office of the Children’s Lawyer ("OCL") counsel brought a motion seeking: (1) to add the kin as a party; and (2) production of the kin assessment to understand why the Society had approved the kin for one placement but not the other.

In T.S, Justice Tellier noted the test for disclosure of kinship assessments as set out in Children’s Aid Society of Brant v N.M.P. In N.M.P, Justice Baker set out the test as follows:

  1. Has the moving party seeking production of the kin records established on a balance of probabilities that the kin records are likely relevant?
  2. If so, the court must then examine the records with a view to determining whether the record should be produced to the parties in whole, or in part. This involves a comparative weighing of the probative value of the record against the privacy interest of the person about whom the records concern, as well as the general public policy interest in keeping these assessments confidential.

In T.S, the court held that the OCL had met the test set out above. The court had added the kin as a party to the proceeding, and so the records would be relevant for the kin to address the concerns raised in the assessment. Justice Tellier therefore ordered that the kinship assessment record be produced to the court. Her Honour would then conduct the weighing exercise as contemplated above.

In short, the test for disclosure of a kinship assessment in the context of a CYFSA proceeding is higher than that of disclosure of other records. The test for disclosure of other records applies a “may be relevant” standard versus the “likely relevant” standard for disclosure of kinship assessments. However, the threshold to meet the test is still relatively low in most cases. Seeking disclosure of the assessment could prove helpful for parents, kin, or the OCL, when testing the strength of a kinship plan as a part of the proceeding. However, the parties must still demonstrate relevance to the court, and the court must be alive to "fishing expeditions" as cautioned by Justice Baker in N.M.P.