Accessing Child Welfare Files 101: Section 126 of the CYFEA
In Alberta, The Child, Youth, and Family Enhancement Act (“CYFEA”) afford Child and Family Services (“CFS”) the ability to intervene in the private family lives of Albertans. The powers granted under the Act can be quite extensive. For example, the government can investigate families, impose Supervision Orders, apprehend children and grant Temporary and Permanent Guardianship Orders.
Once CFS has decided to intervene, they begin to carefully record their involvement with families and the investigations they undertake. These records can be substantive and include medical reports and assessments, police reports, employment and school records and interview transcripts. They contain highly sensitive information relating to a party’s behaviour, health, and/or personal relationships. Consequently, access to these records is restricted and governed by highly stringent conditions. Individuals, parents or guardians in particular, may wish to access a CFS file because of their relation to the parties under investigation or because they wish to use the information in litigation for custody or access to a child who is subject to Director intervention. Today we briefly discuss two different ways by which a guardian may access the Director’s file:
A Request Under Section 126.1(b) of the CYFEA
Under section 126.1 of the CYFEA, a variety of parties may request information in the Director’s possession. These parties include:
- Persons or agencies who are providing the child with services, education, or care or who are providing services to the child’s family if the disclosure is necessary to provide said service;
- The guardian of the child to whom the information relates or the guardian’s lawyer;
- The child to whom the information relates or the child’s lawyer;
- Any person employed in the administration of child protection legislation throughout Canada;
- Any person with the written consent of the Minister.
The Alberta Court of Queen’s Bench has recently reviewed section 126.1 and found that while the parties mentioned above may request disclosure of information relating to themselves or the child experiencing intervention, ultimately the decision to disclose falls to the Director. The court further considered what principles govern disclosure and found that:
“Disclosure must be in the best interests of the child, under s 2. It must be kept in mind that the interests of the child and guardian may not be aligned…
Third parties’ privacy must be respected. Any disclosure of information must be necessary to promote the best interests of the child and must be done in a reasonable manner…
The nature of the information held by the Director, the implications for third parties, and the relationship of the best interests of the child with disclosure to the guardian must be taken into account. The assessment must be done on a case-by-case basis.”
The Director may, having taken the above factors into account, disclose the requested information or part of the information if he or she is satisfied that the “content of the information and its manner of disclosure are in the child’s best interests and would minimize the disclosure of third party information.”
To ensure that disclosure is in the child’s best interest and that third-party disclosure is minimized, the Director may:
- choose to limit what information is disclosed;
- redact information relating to third parties; and/or
- provide the information under strict conditions where counsel is retained.
The court advised that the Director should not issue disclosure where he or she:
- is not satisfied that the child’s best interests would be promoted by the disclosure;
- finds that third party personal information would be unduly disclosed; or
- is unable to determine what is in the child’s best interests or what would be the appropriate protection of third-party interests.
Summary of Section 126.1
In summary, a parent or guardian may request information from the Director relating to his or herself and/or his or her child pursuant to section 126(1)(b). The Director will review the request and decide whether to disclose and if so, under what conditions the information will be disclosed in light of the child’s best interest and third-party privacy concerns. If the Director refuses to disclose information or alternatively, discloses an insufficient amount of information, a parent or guardian may still have recourse under section 126.11 of the CYFEA.
An Application Under Section 126.11 of the CYFEA
If a parent or guardian wishes to access information about him or herself or his or her child and is unsuccessful under section 126(1)(b) or alternatively, does not believe an application under 126(1)(b) will be successful, he or she may still be able to get the information under section 126.11 of the CYFEA.
Under 126.11(2) of the CYFEA, a party to a legal matter (such as an application for parenting) under the Act or another Act may seek disclosure of relevant records held by the Director under the Act. The onus is on the applicant to demonstrate to a Court of competent jurisdiction that there is a reasonable basis for seeking the records beyond a mere desire to view the information contained within. The Alberta Provincial Court recently considered section 126.11 and found that in determining whether to grant disclosure, the court must follow a 2-step process involving:
- a preliminary review and if successful;
- production and review of the record sought followed by disclosure if the applicant is ultimately successful.
In the preliminary review stage, the applicant must first comply with the formal procedural requirements set out in section 126.11(4) and (5) relating to the application, affidavit and notice. Specifically, the applicant must make a written application: this application must be accompanied by an affidavit which identifies the records sought, the location of the record and the grounds for disclosure. The applicant must then serve the application on the party or individual who has control of the record (in this case CFS).
If these requirements are met, the court considers section 126.11(8) factors (a) to (h) and whether the material sought is likely relevant and material. Factors (a) to (h) include:
- “whether the information contained in the requested record has or is likely to have probative value and has not been disclosed in another record or in another form;
- the potential prejudice to the dignity and right to privacy of any person to be affected by the disclosure of the record;
- the rights of the parties to a fair hearing;
- the public interest in facilitating and supporting the care of children under the guardianship of or in the custody of a Director;
- the need to not unduly delay matters affecting a child;
- the potential danger to the physical, mental or emotional health of a child or another person;
- the size of the requested record or part of the record; and
- any other factor that the court may consider relevant.”
If the preliminary review demonstrates merit, the court may order that the relevant record or portion of the record be produced and reviewed under section 126.11(9).
The second stage entails a reconsideration of section 126.11(8) factors by the Judge after actual reviewal of the vetted and unvetted records. In addition to section 126.11(8) factors, the court also reconsiders materiality and relevance and whether the record is ‘likely necessary to advance the position of the applicant.”
Ultimately, the court can decide whether given all the factors it should:
- release the record vetted or unvetted;
- release a portion of the requested record vetted or unvetted;
- release the records under certain conditions;
- or, deny the request for disclosure.
Summary of S. 126.11
In summary, a parent or guardian may apply for information from the Director relating to his or herself and/or his or her child pursuant to section 126.11 if they are party to legal proceedings under the CYFEA or another Act (such the Alberta Family Law Act). The court will review the application following the above two-step process and decide whether to disclose the information and if so, under what conditions the information will be disclosed. If the court refuses to disclose the records at first instance, a party may then appeal to the Court of Queen’s Bench.
We hope you found this posting informative! We make regular weekly posts relating to various family law news and issues, so check back in next week to see what is new!
If you have any further questions on how to access your child’s CFS records, please book a consult and get individualized advice specific to your situation. Call us at 587 - 390 - 3070 or leave us a message on our website and we’ll get back to you as soon as possible!
The above information provides general information on how to access CFS information relating to your child or yourself. The above information does not constitute legal advice. EBL Family is not liable for any reliance on the above information.