A closer look at the Report on Modernizing the Child, Family and Community Service Act: Disclosure
July 28, 2021
BY Kevin Zakreski
This post is part of a series highlighting recommendations in the Report on Modernizing the Child, Family and Community Service Act. For other posts in the series click here.
Should section 64 of the Child, Family and Community Service Act be amended to conform with case-law stipulations on what a director should disclose?
Brief description of the issue
Section 64 of the Child, Family and Community Service Act sets out the general disclosure obligations for child protection proceedings under the Act. The section’s provisions are rather skeletal. As a result, a body of case law has developed, which has interpreted the section and elaborated on its requirements. Should any of these case-law stipulations on disclosure be incorporated directly into section 64?
Discussion of options for reform
The main advantage to amending section 64 to incorporate case-law stipulations on disclosure is that it would help to clarify the law in this regard. This section is potentially deficient, as it requires disclosure in a broad sense and does not necessarily encompass the full scope of what the courts have mandated that a director must disclose in child protection matters. Amending section 64 can help alleviate fair-trial concerns by providing a greater sense of clarity and transparency to one of the main disclosure provisions in the Child, Family and Community Service Act. In addition to helping practitioners on both sides of a child protection matter, parents should know the case they need to meet. This is vital to correct the power imbalance that pits a parent, who is typically relying on legal aid or is self-representing, against the greater resources of the Ministry of Children and Family Development, and who is facing the possibility of permanently losing guardianship of a child.
A disadvantage of amending section 64 to encompass what courts have mandated a director must disclose is that it would alter a status quo that appears to be working. Currently, the courts have worked out how to resolve the deficiency in this section of the Child, Family and Community Service Act. The legislation has provided a general outline with respect to disclosure requirements and the courts have taken it upon themselves to fill in the details, such as the 11 general principles noted in the leading case, providing guidance for practitioners in this area. This could simply be an example of the law working as it should.
The committee’s recommendations for reform
The committee noted that the case law is well-settled. It has helped to fill in some of the details that are lacking in the minimal requirements set out in section 64. That said, it would be difficult to incorporate all of the stipulations found in the case law. Some of the items on the lengthy list set out in the leading case, for example, would be too onerous to comply with in practice. Others would not translate easily into legislation.
The committee favoured a targeted approach to amending section 64. In its view, the section is clearly deficient in some areas. One of these areas relates to the timing of disclosure. In the committee’s view, it would be preferable for the section to clearly spell out that disclosure is required before a case conference. Currently, the section calls for disclosure “if requested”—language that the committee viewed as problematic. It sets up a rote requirement for experienced lawyers. But it may also prove to be a stumbling block for self-represented litigants, who may not be aware of the need to make a request.
There were other aspects of section 64 that the committee favoured clarifying. In the committee’s view, the section should clearly spell out that all relevant documents must be disclosed, even those that are adverse to the director’s position. Even though child protection proceedings are semi-adversarial in nature, the committee was of the view that the director should not withhold such documents and that the legislation should expressly set out this requirement.
The committee also decided that the reference in subsection (1) (c) to “the party’s intended evidence” could be clearer and more prescriptive. The committee favoured replacing this provision with a requirement to disclose all documents to which a party intends to refer at trial. This language should be familiar to most practitioners in this area because it is used in the Supreme Court Family Rules.
There was strong support for the committee’s tentative recommendations among consultation respondents. One respondent did urge the committee to go a step further and recommend that section 64 expressly provide that the onus is on the director to disclose all material that comes within the scope of the section (except for material covered by solicitor-client privilege) or to prove that the material should not be disclosed. The committee accepted this proposal, and decided to make a further recommendation on this point. In the committee’s view, this recommendation will clarify the law and help to ensure that it is applied consistently across the province.
The committee recommends:
Section 64 of the Child, Family and Community Service Act should be amended by striking out the words “If requested” and substituting “Prior to a case conference under rule 2 of the Provincial Court (Child, Family and Community Service Act) Rules, or at least 30 days prior to a contested hearing, except when a hearing is scheduled within these 30 days, then as soon as practicable.”
Section 64 (1) (c) of the Child, Family and Community Service Act should be repealed and the following substituted: “all documents to which the party intends to refer to at trial.”
Section 64 of the Child, Family and Community Service Act should be amended to add a new subsection (1.1), which should read as follows: “The director must disclose to the other parties all documents that are or have been in the director’s possession or control and that could be used by any party at trial to prove or disprove a material fact.”