2022 MBQB 161, 2022 MBQB 161

Date: 20220811 Docket: CP-21-01-17604 (Winnipeg Centre) Indexed as: J.P. v.

CFS of Central Manitoba Cited as: 2022 MBQB 161 COURT OF QUEEN’S BENCH OF MANITOBA B E T W E E N: ) Appearances: J.P. ) ) Mike Cook Applicant, ) for the Petitioner ) - and - ) ) ) ) CHILD AND FAMILY SERVICES OF CENTRAL MANTIOBA Respondent. ) ) ) ) ) Chad Schaan for the Respondent ) ) JUDGMENT DELIVERED: ) August 11, 2022 RESTRICTION ON PUBLICATION: Pursuant to s. 75(2) of The Child and Family Services Act , no press, radio or television report of a proceeding shall disclose the name of any person involved in the proceedings as a party or a witness or disclose any information likely to identify any such person. antonio, J.

I. INTRODUCTION [ 1 ] This is a decision from a pre-trial Child Abuse Registry (CAR) disclosure hearing. J.P. (Applicant) seeks records from various non-party organizations and Child and Family Services of Central Manitoba (the Agency), and makes her request by motion and affidavit to this Court as part of the pre-trial hearing process. The motion was heard on July 27, 2022.

The Court heard argument and reserved its decision. [ 2 ] At the CAR hearing, the Agency will take the position that the Applicant’s name ought to be entered on the CAR due to an allegation that the Applicant grabbed the child (C.) by the neck and choked him. Allegedly, there were marks on his neck, and he punched the Applicant in the face to get her off him. The Applicant claims that abuse did not occur. She expects to argue at the CAR hearing that she is the victim of a conspiracy and numerous false claims made against her by her former spouse in collaboration with others.

She is involved in an ongoing custody dispute with her former spouse in a separate family division proceeding. [ 3 ] The information sought by the Applicant is from the Agency, the RCMP, P[...] School Division, and Southern Regional Health Authority (Health Authority) and broadly relates to all records relating to past claims made against the Applicant. The Applicant seeks:

1. the names of the Child Abuse Committee (CAC) members, a new copy of the Notice of Opportunity to Provide Information,and all records relating to any claim made against the Applicant, copies of which are all sought in unredacted form; 2.

RCMP records pertaining to any complaint made against the Applicant, including the incident involving C. (all sought in anunredacted form); 3. the alleged victim’s disciplinary reports from the P[...] School Division; and, 4. the alleged victim’s medical records from the Health Authority. [4] The Applicant served the latter three organizations with the Motion and her Affidavit on July 25, 2022.

Prior to the Courtdelivering its decision, the Applicant confirmed that there was no position taken by any of the three organizations that were served withthe motion. [5] The Agency’s position respecting the breadth of the disclosure sought is that the Applicant is on a fishing expedition. It submitsthat only the Agency, RCMP, and Health Authority records relating specifically to the incident involving C. are relevant to the CARhearing.

The Agency acknowledges that the records of the RCMP and Agency would be of no use to the Applicant if they were redacted.The Court agrees with both points made by the Agency. [6] The Applicant submits that records relating to the child’s school disciplinary history, the names of the CAC members, andrecords from the RCMP and the Agency about other claims against the Applicant not pertaining to the child C., are relevant.

The onlyissue to be determined by the hearing judge is whether the Agency has proven, on a balance of probabilities, that the Applicant abusedC.; consequently, this Court finds that these records are not relevant. [7] For the reasons set out below, the Court is granting the unusual request for production of the Agency and RCMP records, in anunredacted form, subject to conditions on dissemination of the records.

The Court is dismissing the requests for the names of the CACmembers, C.’s school disciplinary reports, and the RCMP and Agency records that are in relation to incidents or claims other than theincident involving C. [8] The records ordered shall be subject to confidentiality provisions. No dissemination shall be made of the records ordered to be produced. The parties may make use of the records strictly for the CARproceeding. II. LAW [9] The Court considered sections 19(3.6)(

b) and 76(3) of the Child and Family Services Act, CCSM, c. C80 (CFS Act) andQueen’s Bench Rule 30.10 relating to the production of records from a non-party. [10] Section 19(3.6)(

b) of the CFS Act affords the Applicant at a CAR hearing the right to provide full answer and defence to theallegations against her and states: 19(3.6)(

b) all parties may be represented by counsel and shall, subject to clauses (

c) and (d), be given full opportunity to presentevidence and to examine and cross-examine witnesses; [11] In DiMartino v.

DiMartino, 2013 MBQB 206 (DiMartino), Thomson J. considered the matter of the court’s discretion undersection 76(3) of the CFS Act when determining whether, and on what conditions, to order disclosure of Agency records: [24] The provisions of the CFSA ss. 75 and 76 enable courts to strike an appropriate balance between upholding confidentiality as acentral or governing principle while at the same time permitting an appropriate degree of transparency and public scrutiny of the courtprocess. [25] S. 76(3) does not create an automatic ban on publication but rather grants to the court a statutory discretion when determiningwhether, and in what context, to permit the disclosure and/or the production of child and family services agency records. [12] As noted by Thomson J. in DiMartino, the usual position from the Agency is that which ordinarily comes with consent to a formof Order that includes confidentiality conditions (paras. 5-6).

This is a CAR proceeding, and as such, it is a proceeding closed tomembers of the public and open to media, but subject to the terms under the CFS Act. [13] Queen’s Bench Rule 30.10 allows the Court to order a non-party to produce a relevant document where it would be unfair torequire the party to proceed to trial without the document. [14] The Court wishes to emphasize the importance of a fair hearing process for CAR hearings. The hearing rules set out in section19(3.6) of the CFS Act underscore the importance of the CAR to the protection of the public, and also to the person whose name may beentered on the CAR.

In M. M. v. Child and Family, 2019 MBQB 134 , Thatcher J. stated: [14] … It is important to recognize the crucial role that the Registry plays in keeping children safe. … By virtue of the creation ofManitoba’s Child Abuse Registry, it has become routine for commercial, government or charitable organizations to rely on Registrychecks for individuals who wish to be placed in a position of trust or authority involving children. … It is important that the Registry beseen as accurate and reliable by the public and that people have confidence in its accuracy.

In other words, where an individual ought tobe placed on the Registry, no matter the implications to their private or professional lives, that person must be placed on the Registry.Conversely, individuals ought not be placed on the Registry unless there is a compelling case to do so. The civil burden of proof providesa reasonable balance of these competing principles.

III. ANALYSIS [ 15 ] The Applicant rightly submits that she must know the case of abuse against her, have full knowledge of what is alleged to have occurred, and have full opportunity to defend against those allegations, including conducting cross-examinations of witnesses. The threshold for relevance of the records is low but the records must relate to the question before the hearing judge – did the Applicant abuse the child?

AGENCY RECORDS [ 16 ] The Applicant says that her former spouse, and other individuals, have conspired against her to help her former spouse win the custody case between them in their family proceeding. She argues that it would be unfair to proceed to the CAR hearing without the names of all individuals who had contact with the Agency, or who are mentioned in the Agency records who made claims against her in the past. She does not limit her request for records to only records involving C. [ 17 ] Clearly, the Agency records relating to C. are relevant.

The records that pertain to the incident of choking will be furnished to the Applicant. [ 18 ] The Agency says that if the Agency records are redacted, given the argument of the Applicant and section 19(3.6)(b), they would be of little use to her to examine witnesses who she claims have conspired against her. The Court agrees.

They will be produced in an unredacted form so as to permit the Applicant to know and examine witnesses to the alleged choking, but those records will be subject to the usual terms that they may not be disseminated and may only be used in this CAR proceeding. [ 19 ] The Applicant’s request for all Agency records that deal with her family generally (the Applicant and her former spouse), is denied. The Applicant asserts that all Agency records, where she is the subject of a complaint but unrelated to C., could show a pattern of false claims by her former spouse and others against her.

The Applicant may wish to assert that the witness accounts to the particular incident involving C. are unreliable; however, she will not be entitled to go looking for witnesses in other Agency records that arose from claims unrelated to the child C. She will have full opportunity to attempt to establish with cross-examinations whether the witnesses to the alleged incident are credible and as such, to attempt to show that the Agency has not shown that, on a balance of probabilities, abuse occurred.

The test for relevance of the records sought is low; however, it must be related to whether abuse of the particular child occurred. Other Agency records, unrelated to the claim that arose from the incident involving C., are not relevant to the issue to be determined by the hearing judge. NAMES OF CAC COMMITTEE MEMBERS [ 20 ] The Applicant contends that the CAC is potentially biased and she should be entitled to examine them to establish if they are friends to the family of her former spouse.

She argues that the CAC members are likely from the same community where her former spouse’s family resides and therefore are likely against her and in support of her former spouse’s campaign to undermine her case for custody of their children. [ 21 ] The Applicant wants to have the ability to make the argument at the CAR hearing that the CAC did not review and consider the evidence around the abuse allegations in a fair, unbiased manner. The role of the hearing judge will be to determine whether the Agency has proven abuse not whether the CAC properly investigated the alleged abuse.

Whether the CAC members know the Applicant’s former spouse, or are friends with his family, is not relevant to the question of whether abuse occurred. RCMP RECORDS [ 22 ] The Agency agrees that the Applicant should have the RCMP records pertaining to the incident relating to C., and accepts that it is appropriate that they be in an unredacted version to allow the Applicant to ascertain which witnesses need to be examined in court at the CAR hearing, as allowed under section 19(3.6)(b).

The Applicant says that other RCMP records that do not relate to C. at all, are relevant for the same reasons as set out above regarding Agency records. The Court disagrees that the history of other RCMP claims made against the Applicant are relevant to the determination of whether C. was abused by the Applicant. [ 23 ] Other RCMP records, unrelated to the claim that arose from the incident involving C., are not relevant to the issue to be determined by the hearing judge.

Subject to the same proviso concerning non-dissemination of records, the RCMP records relating to the incident involving C. only, will be produced. P[...] SCHOOL DIVISION RECORDS [ 24 ] The Applicant argued that the school disciplinary records of C. are relevant to whether C. had issues and confrontations with adults in his school environment, or documented behavioral issues noted by his school.

The alleged abuse of C. is the issue to be determined by the hearing judge, based upon witnesses and other corroborating evidence that he was choked, not whether he has a propensity to be a defiant child or has been disciplined by his school for his behavior in the past. [ 25 ] There is no evidence that supports a finding that the P[...] School Division records are relevant. They are not ordered to be produced. HEALTH AUTHORITY RECORDS [ 26 ] The Applicant seeks access to the health records of C. pertaining to the choking incident, and those are ordered.

Whether a medical practitioner had seen C., observed C.’s injuries, and/or noted concerns from C. or his caregivers after the incident that supports the case of abuse, is clearly relevant. The

Court is granting this relief subject to the same proviso concerning non-dissemination of records. IV. CONCLUSION [ 27 ] The following is ordered: 1. Child and Family Services records pertaining to the April 14, 2018 alleged choking of C.: will be provided, unredacted; 2. By consent, the Agency agrees to provide the Applicant with a further copy of the Notice of Opportunity to Provide Information in its possession; 3. RCMP records pertaining to the April 14, 2018 alleged choking of C.: will be provided, unredacted; 4. The names of the CAC members: request is dismissed; 5.

P[...] School Division Records: request is dismissed; and, 6. Medical records pertaining to the April 14, 2018 alleged choking of C.: will be provided, unredacted. [ 28 ] Costs are adjourned for consideration by the hearing judge. _________________________ J.