T.S., Re, (2013) 576 A.R. 384 (PC)

• Judge: Tousignant, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 20, 2013
• Citations: (2013), 576 A.R. 384 (PC);2013 ABPC 309

T.S., Re (2013), 576 A.R. 384 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. DE.040

In The Matter Of The Child, Youth and Family Enhancement Act, R.S.A. (2000) Chap. C-12

And In The Matter Of T.S. born March 2003, B.R. born April 2009, C.R. born February 2006, M.R.S. born January 2008, C.H. born August 2011

And In The Matter Of The Child, Youth and Family Enhancement Act, R.S.A. (2000) Chap. C-12

And In The Matter Of R.H. born September 2012 (130088362W1; 120448121W1; 120532973W1; 2013 ABPC 309)

Indexed As: T.S., Re

Alberta Provincial Court

Tousignant, P.C.J.

November 25, 2013.

Summary:

The respondents in these child protection proceedings were required to complete a Trial Readiness Form (TRF) which contained questions that were aimed at enabling the case management judge to accurately assess the amount of time required for a hearing. Counsel for the respondents took the position that providing the requested information would amount to a violation of solicitor-client or litigation privilege.

The Alberta Provincial Court found that requiring counsel to provide responses to the questions on the TRF did not call for a breach of either solicitor-client or litigation privilege.

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.

Courts - Topic 553

Judges - Powers - To compel disclosure - [See both Courts - Topic 554 ].

Courts - Topic 554

Judges - Powers - To control court proceedings - The respondents in these child protection proceedings were required to complete a Trial Readiness Form (TRF) which contained questions that were aimed at enabling the case management judge to accurately assess the amount of time required for a hearing - Questions included, inter alia, whether a respondent was involved in drug treatment, domestic violence counselling or parenting programs, and on what grounds the respondent disputed the Director's allegations - Respondents' counsel declined to answer the questions on the basis that the information was subject to solicitor-client or litigation privilege - The Alberta Provincial Court held that it had the authority, as part of controlling its child protection process, to compel sufficient information from a respondent to enable it to identify whether there were any issues in dispute and, in turn, to more accurately determine the number of trial days required - The fact that child protection hearings were more akin to an inquiry than a traditional civil trial further supported the court's authority to compel information - The role of the presiding judge went well beyond the traditional role of ensuring due process and formalized procedure - Priority was given to a child's best interests substantively as well as procedurally - See paragraphs 40 to 69.

Courts - Topic 554

Judges - Powers - To control court proceedings - The respondents in these child protection proceedings were required to complete a Trial Readiness Form (TRF) which contained questions that were aimed at enabling the case management judge to accurately assess the amount of time required for a hearing - Questions included, inter alia, whether and on what grounds the respondent disputed the Director's allegations - Respondents' counsel declined to answer the question on the basis that the information was subject to solicitor-client or litigation privilege - The Alberta Provincial Court held that it was entirely within the court's authority to require a litigant to indicate on what basis he or she disputed the Director's allegations - The respondent could not remain mute and require the court to provide any number of trial dates without knowing the basis upon which the party intended to oppose the Director's application - See paragraph 84.

Evidence - Topic 4236

Witnesses - Privilege - Lawyer-client communications - When privilege may be invoked - The respondents in these child protection proceedings were required to complete a Trial Readiness Form (TRF) which contained questions that were aimed at enabling the case management judge to accurately assess the amount of time required for a hearing - Questions included, inter alia, whether a respondent was involved in drug treatment, domestic violence counselling, parenting programs, therapy or anger management - Respondents' counsel declined to answer the questions on the basis that the information was subject to solicitor-client or litigation privilege - The Alberta Provincial Court found that the questions on the TRF related to facts or acts that were unrelated to the seeking or giving of legal advice - Solicitor-client privilege did not attach and there was no impediment to the lawyer responding to them - Alternatively, if solicitor-client did attach, disclosure was mandated by the court, and there was no impediment to the lawyer responding because of rule 2.03(1) of the Law Society's Code of Conduct - While litigation privilege would ordinarily attach to any report issued as a result of counselling or therapy, s. 108 of the Child, Youth and Family Enhancement Act would override that privilege if the court compelled disclosure - In any event, disclosure of the report was not the object of the question - See paragraphs 70 to 87.

Guardian and Ward - Topic 961

Public trustee or guardian - Practice - General - [See both Courts - Topic 554 and Evidence - Topic 4236 ].

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - Attorney-client communications (legal advice privilege) - [See Evidence - Topic 4236 ].

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Documents prepared in contemplation of litigation (litigation privilege or work product privilege) - [See Evidence - Topic 4236 ].

Cases Noticed:

J.J.M. et al., Re (1995), 162 A.R. 321; 83 W.A.C. 321; 1995 CarswellAlta 41; 11 R.F.L.(4th) 166 (C.A.), refd to. [para. 4].

R.B. v. Director of Child Welfare (Alta.), [2010] A.R. Uned. 762; 2010 ABQB 691, refd to. [para. 7].

E.L., Re (2006), 395 A.R. 177; 2006 ABPC 7, refd to. [para. 11].

K.W. v. Director of Child Welfare (Alta.) (2006), 401 A.R. 175; 391 W.A.C. 175; 2006 ABCA 404, refd to. [para. 16].

N.E.H. v. Director of Child, Youth and Family Enhancement (Alta.) et al. (2009), 469 A.R. 263; 470 W.A.C. 263; 2009 ABCA 395, refd to. [para. 21].

R.W. et al. v. Director of Child Welfare (Alta.) (2011), 502 A.R. 379; 517 W.A.C. 379; 2011 ABCA 139, refd to. [para. 22].

Director of Child Welfare (Alta.) v. W.C. et al. (2004), 360 A.R. 188; 2004 ABQB 417, refd to. [para. 54].

Metis Child, Family and Community Services v. A.J.M. et al. (2006), 200 Man.R.(2d) 175; 2006 MBQB 32 (Fam. Div.), refd to. [para. 60].

Catholic Children's Aid Society of Toronto v. S.R.M., [2006] O.J. No. 1741, refd to. [para. 60].

Director of Child, Youth and Family Enhancement (Alta.) v. M.K., [2012] A.R. Uned. 313; 2012 ABPC 101, refd to. [para. 61].

S.D.K. v. Director of Child Welfare (Alta.) et al. (2002), 309 A.R. 219; 2002 ABQB 61, refd to. [para. 61].

D.G.I., Re, [2004] Yukon Cases (Terr. Ct.) 15; 2004 YKTC 15, affd. [2005] Yukon Cases (SC) 4; 2005 YKSC 4, affd. (2005), 213 B.C.A.C. 78; 352 W.A.C. 78; 2005 YKCA 3, refd to. [para. 62].

R. v. Trang (D.) et al. (2002), 315 A.R. 306; 2002 ABQB 390, refd to. [para. 70].

R. v. Trang (D.) et al., [2002] 6 W.W.R. 524; 307 A.R. 201; 1 Alta. L.R.(4th) 247; 2002 ABQB 19, refd to. [para. 70].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462; 141 D.L.R.(3d) 90, refd to. [para. 71].

A.B. and C.D. v. Home of the Guardian Angel et al. (2008), 261 N.S.R.(2d) 198; 835 A.P.R. 198; 2008 NSSC 9, refd to. [para. 73].

Maranda v. Richer - see Maranda v. Leblanc.

Maranda v. Leblanc, [2003] 3 S.C.R. 193; 311 N.R. 357; 2003 SCC 67, refd to. [para. 75].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 80].

Authors and Works Noticed:

Manes, Ronald D., and Silver, Michael P., Solicitor-Client Privilege in Canadian Law (1993), p. 130 [para. 70].

Thompson, Rollie D.A., Are There Any Rules of Evidence in Family Law? (2003), 21 Can. Fam. L.Q. 245, generally [para. 60].

Counsel:

In the Matter of R.H:

Jonathan Nicholson, for the Director;

Tahira Karim, for the Mother;

The Father was self-represented;

In the Matter of T.S:

Terri Mair, for the Director;

Carla Hopfner, for the Mother;

Susan McQuaid, for the children.

This matter was heard on June 20, 2013, before Tousignant, P.C.J., of the Alberta Provincial Court, who delivered the following decision at Calgary, Alberta, on November 25, 2013.