A guardian may request disclosure of records enclosed in a Child and Family Services file pursuant to section 126(1)(b) of the Child, Youth and Family Enhancement Act, RSA 2000, c C-12 (“CYFEA”). Failing which, or in the alternative, a guardian (or any other party to a civil matter), may apply to the Court for disclosure of records enclosed in a Child and Family Services file pursuant to section 126.11 of the CYFEA.
Recently, a Provincial Court of Alberta decision, caused some confusion around the procedure for a guardian to obtain records from a Child and Family Services file, and the Director of Child and Family Services’ (the “Director”) requirement to provide same: DCR v Alberta (Child, Youth and Family Enhancement Act, Director), 2018 ABPC 179. The father of children placed with him pursuant to a Supervision Order had requested the Child and Family Services file relating to his children by way of an application made pursuant to section 126.11 of the CYFEA. The Judge declined his request, reasoning that as the father was a guardian of the children, he was entitled to the Child and Family Services file pursuant to section 126(1)(b) of the CYFEA and that no Court Order was required.
The Director appealed the Provincial Court of Alberta decision on the basis that section 126(1)(b) of the CYFEA does not require the Director to provide the same disclosure to guardians as would be provided under section 126.11 of the CYFEA. Furthermore, the Director argued that a guardian is able to make an application for disclosure pursuant to section 126.11 of the CYFEA.
On appeal, the Alberta Court of Queen’s Bench in Alberta (Director of Child, Youth and Family Enhancement) v DCR, 2019 ABQB 47 clarified that section 126 of the CYFEA serves two purposes: (1) it confirms the Director’s obligation to keep personal information it has gathered confidential, and (2) it confirms the Director’s authority to disclose information in the best interests of the child and in its administration of its statutory responsibilities. The Court confirmed, however, that disclosure under section 126(1)(b) is not mandatory, rather, section 126(1)(b) confirms a discretion to disclose, not an obligation to disclose. The result of which is that a guardian may request information pursuant to section 126(1)(b), but that the Director may not be prepared to disclose the information, or may disclose some information, not satisfactory to the guardian.
Alberta Court of Queen’s Bench summarized that section 126(1)(b) allows for disclosure without the need for a formal and resource-intensive court application, and in the view of the Court, would be a preferable route to resolution of disclosure so long as the Director were satisfied that the purpose of the CYFEA would be met by the disclosure sought. The Court suggested that the Director should approach 126(1)(b) requests for disclosure with a goal of making a determination as to disclosure to be provided in a fair and just process that achieves practical results in a reasonable time at reasonable expense, without losing sight of the overriding need to protect the best interests of the child.
The Alberta Court of Queen’s Bench was clear that a guardian is able to bring application under section 126.11 of the CYFEA, so long as the guardian is party to a civil matter (for example, a child protection matter or a family matter), and that they are not precluded from making an application under 126.11 simply because an alternate procedure is available to them pursuant to section 126(1)(b).
Ultimately, the Alberta Court of Queen’s Bench confirmed that sections 126 and 126.11 of the CYFEA are separate and independent foundations for a guardian to obtain disclosure of records from a Child and Family Services file. By way of relief on Appeal, the Court of Queen’s Bench made the following declarations:
(a) Subsection 126(1)(b) of the CYFEA confers a discretion on the Director to disclose or communicate personal information, and does not impose an obligation or duty on the Director or confer a right to receive disclosure on any person.
(b) The discretion of the Director under s 126(1)(b) of the CYFEA must be exercised to promote the best interests of the child and to protect privacy; disclosure must be necessary to advance the best interests of the child and disclosure must be provided in a reasonable manner, having regard to the privacy interests of third parties implicated by the disclosure. This discretion must be exercised on a case-by-case basis. The Director should not disclose information if, for process reasons, the Director is unable to determine whether disclosure is appropriate or what scope of disclosure is appropriate.
(c) A guardian who is a party to a civil action is entitled to apply under s 126.11 of the CYFEA for disclosure of a record or part of a record that contains information held under the CYFEA, including information relating to the guardian’s child.