2022 MBKB 201, 2022 MBKB 201

Date: 20221026 Docket: CP 21-03-00007 (Portage La Prairie Centre) Indexed as: K.T.S. v.

CFS Central Manitoba Cited as: 2022 MBKB 201 COURT OF KING'S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: Appearances/Counsel K.T.S. ) Applicant, ) Sarah McNamara ) for the Petitioner - and - ) ) ) Child and Family Services of Central Manitoba, ) Respondent. ) Chad Schaan ) for the Respondent ) ) ) JUDGMENT DELIVERED: ) October 26, 2022 RESTRICTION ON PUBLICATION: Please note that s. 75(2) of The Child and Family Services Act provides that no press, radio or television report of this proceeding shall disclose the name of any person involved in the proceeding as a party or witness or disclose any information likely to identify any such person.

ABEL J. INTRODUCTION [ 1 ] The Child Abuse Committee (the “Committee”) of Child and Family Services of Central Manitoba, Inc. (the “Agency”) issued a

notice to K.S. (the “applicant”), pursuant to s. 19 (3.2) of The Child and Family Services Act, C.C.S.M. c. C80 (the “Act”) advising of itsintention to place her name on the Child Abuse Registry (the “Registry”). The applicant filed an application pursuant to s. 19(3.3) of theAct opposing entry of her name on the Registry. The applicant is alleged to have abused her son (the “child”). THE ALLEGATION [2] As a result of a referral from the child’s school on January 15, 2019, the Agency attended to the school and interviewed thechild and his sister, C, also a child of the applicant.

The child was noted by the school to have suspicious bruising to his face and hislegs, and he was unable to provide any reasonable or consistent explanation for the bruising. The child was 8 years old at the time of thealleged incident. [3] The agency intake worker, Alescha Anderson (“Anderson”), noted bruising to the child’s face. The child was unable to providea consistent explanation for the bruising to Anderson. [4] The child was seen by Dr. Cunnington on January 22, 2019, at the Child Protection Centre (CPC). Dr.

Cunnington notedbruising on the child’s right lateral cheek and left lateral cheek, a small red scab to the left of the ear and bruising to the left forehead. [5] The child and C were also interviewed by Michael Chiborak (“Chiborak”), who is a Child Forensic Interviewer with SnowflakePlace for Children and Youth, now Toba Centre for Children and Youth (“Toba Centre”). The child made a disclosure of abuse toChiborak. [6] The applicant testified, and denied abusing the child.

ISSUE [7] The issue for determination is whether the applicant abused the child within the meaning of the Act. [8] Section 19(3.7) of the Act states: The court shall determine whether the person has abused a child and record the reasons for its decision, and its decision is final and notsubject to appeal. [9] Abuse is defined in s. 1(1) of the Act, as meaning

an act that results in physical injury to the child. BURDEN OF PROOF [10] If the Committee concludes abuse has occurred, it is required to report the “circumstances of the abuse” to the Agency, pursuantto s. 19(3)(

c) of the Act. [11] Section 19(3.6)(

a) of the Act provides that the Agency has the burden of proof on a balance of probabilities. The Agency mustestablish on a balance of probabilities that the applicant abused the child. [12] There is one standard of proof in civil proceedings. As Rothstein J. stated in F.H. v. McDougall, 2008 SCC 53 , [2008]3 SCR 41 at paragraphs 40, 45 and 46: … I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on abalance of probabilities.

Of course, context is all important and a judge should not be unmindful, where appropriate, of inherentprobabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change thestandard of proof…. To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in lessserious cases the evidence need not be scrutinized with such care. I think it is inappropriate to say that there are legally recognizeddifferent levels of scrutiny of the evidence depending upon the seriousness of the case.

There is only one legal rule and that is that in allcases, evidence must be scrutinized with care by the trial judge. Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. … [13] This standard of proof was considered by MacPhail J. in L.O.G. v. Child and Family All Nations Coordinated Response Network,2013 MBQB 170 .

Notwithstanding the fact that the normal rules of evidence do not apply and a child’s evidence in this type ofproceeding is expressly allowed by hearsay or other means, the court must still determine whether the evidence is “clear, convincing andcogent” (Child and Family All Nations Coordinated Response Network at paragraph 24). ANALYSIS and DECISION [14] The child did not testify. Rather, his evidence of abuse was presented to the court through Anderson and Chiborak.

Regardlessof how the evidence is tendered, it still must be clear, convincing and cogent to establish abuse. [15] Anderson was the intake worker who took the referral from the child’s school and initially interviewed the child.

[ 16 ] The first interview by Anderson took place on January 15, 2019. Anderson testified that she immediately noticed the bruising on the child. [ 17 ] Anderson testified that the child initially said that he fell at school, then said he was playing, and then said it happened at home. When Anderson asked the child where he fell, he said that he did not really fall and that he was always bumping into things. [ 18 ] That same day, Anderson spoke with the applicant and her partner, both said they did not see any bruises on the child when he left for school that day.

Anderson testified that the applicant then said that children in the neighbourhood had been throwing ice chunks at the child. Anderson testified that the applicant also said that the bruising happened at school, as the child was having trouble with bullies. [ 19 ] Less than one week later, Anderson met with C. Anderson testified that C told her that their mother sometimes gets upset and smacks the child on the head.

Anderson acknowledged in cross-examination that it was possible that C was not telling the truth. [ 20 ] Anderson spoke with C again on February 7, 2019, when C advised Anderson that she and the child get hit on the head with a brush by their mother. Anderson asked C at that interview how the child got the bruises, to which C said she did not know, but that sometimes their mother slaps the child. [ 21 ] In cross-examination, Anderson was asked again about the explanations given by the child for the bruising at the first interview.

Anderson confirmed that the child did not mention getting the bruises at home, which was contrary to her direct testimony. [ 22 ] Anderson was asked in cross-examination if she thought the child’s answers were rehearsed, to which she answered no.

Anderson was confronted with a notation entered by her on February 5, 2019, wherein she noted that the children’s answers seemed coached and rehearsed, again contrary to her earlier testimony. [ 23 ] Anderson did acknowledge in cross-examination that it was possible that the child did not know how the bruising was caused, that it was possible the child was trying to appease Anderson with his answers, and that it was possible that the bruises were not caused by the applicant. [ 24 ] Anderson met with the applicant on January 22, 2019, at which time it was noted that she told the applicant that the children were under extreme stress all the time.

At this time, Anderson had only met with the children once on January 15, 2019. In cross- examination, Anderson acknowledged that there were no prior notations of the children being under extreme stress. [ 25 ] I do not take Anderson’s acknowledgement of possibilities in her testimony as a conclusion that the agency has not met its onus. Rather, Anderson was being realistic with her responses, given that she had not seen the abuse, and was obtaining the information from the child and C.

In that sense, the possibilities to which she acknowledged were possible. [ 26 ] If the agency were solely relying on the evidence of Anderson, it would not have been sufficiently clear, cogent and convincing for the agency to have met its onus. [ 27 ] The child did not disclose to Anderson any abuse by his mother. C did make a disclosure of abuse.

However, it was not clear whether C was making generalized comments about being hit as opposed to providing a clear answer as to how the child received the bruises seen on January 15, 2019. [ 28 ] Further, Anderson contradicted herself with respect to her evidence relating to the child’s explanation regarding the bruising being caused at home, or not, as well as the child seeming coached, or not. [ 29 ] However, I also have the evidence of Chiborak. Chiborak was also a member of the Child Abuse Unit with the Winnipeg Police Service (WPS) for 11 years.

Chiborak testified that during his time with WPS, he interviewed between 600 and 700 children, and with Toba Centre has interviewed 1,556 children. [ 30 ] Chiborak testified that he met with the child on February 11, 2019, for approximately 77 minutes. [ 31 ] Chirobrak testified that during the interview, the child initially testified that he falls a lot, and that he fell on the grass.

When asked by Chiborak how he could have fallen on the grass when there was snow, the child responded by saying this was a long time ago. [ 32 ] Chiborak testified that the child disclosed that his mother did bang him on top of his head with her hand or a brush. [ 33 ] When asked about the bruise again, the child told Chiborak that he was getting heck from his mother, who asked him to come forward.

As he was coming forward, the child told Chiborak that his mother extended her hand, and hit the child in the face with the palm of her hand. [ 34 ] Chiborak confirmed with the child that this is what caused the bruise that the teacher saw. [ 35 ] Given the manner in which the child described the incident, by demonstrating his mother’s motion, and that it was hurtful when he got hit, Chiborak testified that the disclosure by the child was credible. [ 36 ] Chiborak testified that the child’s disclosure did not appear rehearsed.

In fact, Chiborak testified that the child said he was not to talk about what happened, as opposed to being coached to tell what happened. [ 37 ] During cross-examination, Chiborak confirmed that the child was not confused when asked if allowed to tell what happened. The child was clear in that he told Chiborak what happened. [ 38 ] Chirobrak confirmed during his direct testimony that his interview and questioning is not disclosure driven. If a child does not wish to disclose, the interview will not result in a disclosure.

[ 39 ] The applicant also testified, denying any act that would have resulted in the bruising to the child. [ 40 ] Specifically, the applicant denied hitting the child on the head, either with her hand or an object, and denied hitting the child in his face with an open palm. [ 41 ] The applicant testified that the morning of January 15, 2019 was an ordinary morning. She took the child and C to school.

She testified and confirmed in cross-examination that she did not see any bruising on the child. [ 42 ] The applicant testified that the day before, neighbourhood children had been throwing ice chunks at the child in the yard. The applicant stated that she did not see any bruising on the child on January 14, 2019. [ 43 ] It is difficult to accept the applicant’s evidence that she did not observe any bruising on the child on January 15, 2019, given the evidence heard at trial. [ 44 ] On January 15, 2019, the teacher at school saw bruising resulting in Child and Family Services being contacted.

Anderson testified that she immediately saw bruising when she attended the school. Photographs were taken that same day, between 5:00 p.m. and 7:00 p.m. [ 45 ] The applicant argues that there is no evidence as to when the bruising first appeared.

It is argued by the applicant that her evidence that she did not observe bruising when the child was dropped off at school is consistent with the teacher observing the bruising later in the day, the bruise only materializing at school. [ 46 ] Given how apparent the bruising was to both the teacher, to have made the phone call, and to Anderson, who observed the bruising, I do not accept that the bruising would have only first appeared after the child was dropped off at school. [ 47 ] The photographs clearly show bruising on the child’s right cheek. The photographs show scratches on the child’s neck.

I do not accept the applicant’s evidence when she says that she did not observe those bruises when the child left for school that morning.

Her refusal to acknowledge that the child had bruising on January 15, 2019, causes the court to have concerns regarding the credibility of all of her material evidence. [ 48 ] For that reason, I do not accept her evidence when she states that she did not strike the child with an open palm. [ 49 ] I am satisfied that the evidence from Chiborak, regarding the child’s version of how he received the bruise, is clear, cogent and convincing to establish that the mother abused the child. [ 50 ] Chiborak testified regarding not only what the child said regarding the child’s description of the cause of the bruise, but also how the child demonstrated how the bruising was caused.

Chiborak testified that it did not appear that the child had been coached. [ 51 ] It is also important to note that Chiborak testified that his interview process is not disclosure based. If a child does not wish to disclose, the interview need not continue. [ 52 ] In these proceedings, it is permissible for the evidence of the child to be tendered by means of hearsay (see s. 19(3.6) of the Act ).

Given that the evidence of abuse can be tendered through hearsay evidence, the nature and quality of that evidence must be considered, in determining whether there is clear, cogent and convincing evidence of abuse. [ 53 ] Given the manner in which the interview with Chiborak took place, and given the manner in which the child described to Chiborak how the bruising was caused, I am satisfied that there is clear, convincing and cogent evidence as to how the bruise was caused, the Agency thereby meeting its onus. [ 54 ] Not every physical injury to a child which results from an accident, error in judgment, or lapse of attention or supervision should be characterized as abuse (see S.J.B. et al v.

Child and Family All Nations Coordinated Response Network, 2009 MBQB 12 ). [ 55 ] However, in this case, the applicant’s evidence was not that she accidently caused the bruising while attempting to get the child ready for school. Rather, she denied causing the bruising at all, whether accidentally, through an error in judgment or intentionally.

Given the applicant’s evidence, there is no need to consider whether the applicant’s action was accidental and therefore not abusive. [ 56 ] Accordingly, on the evidence before me, I find that the applicant has abused the child within the definition of abuse in the Act . [ 57 ] As a result, the applicant’s name shall be placed on the Child Abuse Registry. __________________________J.