Director of Family and Children's Services (Yukon) v. E.I., 2005 YKCA 3

• Judge: Mackenzie, Thackray and Gower, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: May 25, 2005
• Jurisdiction: Yukon
• Citations: 2005 YKCA 3;(2005), 213 B.C.A.C. 78 (YukCA)

CFS v. E.I. (2005), 213 B.C.A.C. 78 (YukCA);

    352 W.A.C. 78

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. JN.027

The Director of Family and Children's Services (appellant) v. E.I. (respondent)

(04-YU529; 2005 YKCA 3)

Indexed As: Director of Family and Children's Services (Yukon) v. E.I.

Yukon Court of Appeal

Mackenzie, Thackray and Gower, JJ.A.

May 25, 2005.

Summary:

During permanent child protection proceedings, a judge of the Territorial Court ordered the Director of Family and Children's Services to copy and deliver to the parents and the child advocate, at no cost, all relevant documents relating to the parents and the child taken into care, excepting documents subject to claims of solicitor client privilege and certain other restrictions that were not in issue. The director appealed.

The Yukon Supreme Court dismissed the appeal. The director appealed.

The Yukon Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Guardian and Ward - Topic 965

Public trustee or guardian - Practice - Disclosure by authorities - During permanent child protection proceedings, a judge of the Territorial Court ordered the Director of Family and Children's Services to copy and deliver to the parents and the child advocate, at no cost, all relevant documents relating to the parents and the child taken into care, excepting documents subject to claims of solicitor client privilege and certain other restrictions that were not in issue - The Director appealed, asserting that s. 176(2) of the Children's Act did not authorize the order and that there was no authority elsewhere to make the order - The Yukon Court of Appeal affirmed the dismissal of the appeal - The ability to obtain full disclosure of relevant documents was a necessary incident of the exercise of the interests involved - Section 176(1) modified the right to disclosure otherwise applicable by generally prohibiting disclosure of information and documents in the Director's file - Section 176(2)(a) made an exception for disclosure "in the course of proceedings before the court or a judge under Part 3 or 4" - The exception recognized the importance of disclosure in custody proceedings - By necessary implication, the court or judge controlled the process of that disclosure - Section 176(2)(a) effectively created an exception to the general prohibition on disclosure for court proceedings and the manner in which disclosure under the exception was to be exercised was to be determined by the judge - See paragraphs 1 to 10.

Guardian and Ward - Topic 965

Public trustee or guardian - Practice - Disclosure by authorities - During permanent child protection proceedings, the Territorial Court ordered the Director of Family and Children's Services to copy and deliver to the parents and the child advocate, at no cost, all relevant documents relating to the parents and the child taken into care, excepting documents subject to certain restrictions - In making the order, the court referred to Rules of Civil Procedure, but concluded that they were not suitable for matters in the Territorial Court pursuant to the Children's Act - The court relied on its inherent jurisdiction and referred to a case that relied on s. 176 of the Children's Act - The Director appealed, asserting, inter alia, that the exercise of any authority under s. 176(2) had to be in accordance with regulations governing its exercise - Although s. 176(1) contemplated regulations under the Children's Act that could modify the prohibition on disclosure, no regulations had been promulgated - The Supreme Court upheld the order - The Territorial Court's rejection of the Rules was presumably based on the requirement in rule 26(9) that the party requesting documents was to pay the costs of reproduction and delivery in advance - As s. 76(1) of the Territorial Court Act directed that the Rules were to be followed "modified as suits the case", rule 26 was to be followed with the modification that the director was not required to prepare a list of documents, but was to pay the expenses of copying and delivering the documents - The Yukon Court of Appeal dismissed an appeal - The order was within the Territorial Court's discretion and, on that basis, the Court of Appeal should not disturb it - See paragraphs 11 to 14.

Guardian and Ward - Topic 972

Public trustee or guardian - Practice - Applicable practice rules - [See second Guardian and Ward - Topic 965 ].

Cases Noticed:

R.I., Re, [1997] Y.J. No. 90, refd to. [para. 4].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 7].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 9].

S.D.K. v. Director of Child Welfare (Alta.) et al. (2002), 309 A.R. 219 (Q.B.), refd to. [para. 13].

Statutes Noticed:

Children's Act, R.S.Y. 2002, c. 31, sect. 176(2) [para. 3].

Counsel:

Zeb Brown, for the appellant;

David Christie, for the respondent;

Debbie Hoffman, child advocate.

This appeal was heard by Mackenzie, Thackray and Gower, JJ.A., of the Yukon Court of Appeal. Mackenzie, J.A., delivered the following oral judgment for the court on May 25, 2005.