2023 MBKB 112, 2023 MBKB 112

Date: 20230704 Docket: CP 21-01-17675 (Winnipeg Centre) Indexed as: A.B., also known as A.R.C.B. v. Child and Family All Nations Coordinated Response Network Cited as: 2023 MBKB 112 COURT OF KING’S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: A.B., also known as a.r.c.b., ) ) Caleigh M.A. Glawson applicant, ) Zachary B. Kinahan ) for the applicant ) - and - ) ) Melissa N.

Serbin CHILD AND FAMILY ALL NATIONS ) Alyssa Cloutier COORDINATED RESPONSE NETWORK, ) for the respondent ) respondent. ) ) Judgment Delivered: ) July 4, 2023 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.

MacPHAIL J. [ 1 ] The Child and Family All Nations Coordinated Response Network (“ANCR” or the “Agency”) issued a notice to A.B. pursuant to s. 19(3.2) of The Child and Family Services Act , C.C.S.M. c. C80 (the “ Act ”) advising of its intention to register his name on the Child Abuse Registry unless he objected to that entry within 60 days of the date of the giving of the notice (“Notice of Intended Entry”). [ 2 ] A.B. filed a Notice of Application pursuant to s. 19(3.3) of the Act opposing entry of his name on the Child Abuse Registry.

By consent the body and style of cause of the Notice of Application was amended pursuant to the Court of King’s Bench Rules , M.R. 553/88 , to refer to the applicant by his full legal name [A.R.C.B.] as well his first and last name [A.B.] as shown on the Notice of Intended Entry and his subsequent Application, and to delete the acronym “(ANCR)” after the name of the respondent Agency in the style of cause of the Application. The need to file and serve an Amended Notice of Application was dispensed with. [ 3 ] The applicant is hereinafter referred to “A.B.” or the “applicant”.

Child Abuse Registry Proceedings [ 4 ] The Child and Family Services Act and the Child Abuse Regulation , Man.

Reg. 14/99 , thereto, (the “ Regulation ” ) contain provisions respecting the establishment and operation of agency Child Abuse Committees and the Child Abuse Registry, and procedures relating to same, including rules for hearing of applications opposing entry of names on the Registry. [ 5 ] Subsections 19(1) , (3) , (3.2) and (3.3) of the Act provide: Agency child abuse committees 19(1) Each agency shall, in accordance with the regulations, establish a child abuse committee to review cases of suspected abuse of a

child and to advise the agency concerning what actions, if any, may in its opinion be required to protect the child or other children. . . . Actions on referral to committee 19(3) Where a child abuse committee suspects a person of having abused a child, the committee shall, in the prescribed manner, give to the person who is suspected an opportunity to provide information to it and shall (

a) form an opinion whether the person abused the child; (

b) form an opinion whether the name of the person should be entered in the registry; and (

c) report its opinions and, where it has formed the opinion that the person has abused the child, the circumstances of the abuse to the agency. . . . Notice of intent to register 19(3.2) On receipt of a report under clause (3)(

c) that the committee is of the opinion that a person has abused a child and that the person's name should be entered in the registry, the agency shall give notice in the prescribed manner of the opinions and circumstances reported to it, of its intention to submit the name of the person for entry in the registry, and of the right to object under subsection (3.3), to the following persons: (

a) the person who the committee believes has abused the child, where the person is 12 years of age or older; … . . . Objection to entry in registry 19(3.3) A person who is the subject of a report referred to in subsection (3.2) may, within 60 days of the giving of notice to the person under subsection (3.2), object to the entry of the person's name in the registry by (

a) filing with the Court of King's Bench of Manitoba (Family Division) a notice of application for a hearing together with a true copy of the notice given under subsection (3.2); and (

b) serving a true copy of the notice of application on the agency. [ 6 ] The Regulation contains provisions respecting the establishment of Child Abuse Committees, the timing of certain actions when an agency receives a report alleging that a child has been abused, including for reporting same to the appropriate Child Abuse Committee and for that Committee to meet, and the manner in which a copy of a Notice of Intended Entry is to be given to certain persons. [ 7 ] On May 10, 2022 the pre-trial judge for this proceeding heard a motion by A.B. for a “declaration that the [Agency] did not comply with s. 7(1) of the [ Regulation (Referral to committee within 30 days)]” and an “order nullifying the proceedings and dismissing the registration of [A.B.] from the Child Abuse Registry”.

The pre-trial judge dismissed A.B.’s motion and made a determination that there had been substantial compliance with the relevant timelines set out in the Regulation . [ 8 ] Subsection 19(3.6) of the Act sets forth certain rules for hearing applications opposing entry of names on the Child Abuse Registry. The provision states: Rules for hearing 19(3.6) At a hearing, (

a) the agency has the burden of proof on the balance of probabilities; (

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

c) and (d), be given full opportunity to present evidence and to examine and cross-examine witnesses; (

c) the court is not bound by the rules of evidence in relation to the evidence of a child who the agency alleges was abused by the applicant and may receive the child's evidence through hearsay, by way of a recording, a written statement, or in any other form or manner that it considers advisable; and (

d) a child who the agency alleges was abused by the applicant shall not be compelled to testify. [ 9 ]

Section 36 of the Act also applies to such hearings, and provides: Proceedings informal

36 Proceedings under this Part may be as informal as a judge or master may allow and no order under this Part shall be set asidebecause of any lack of formality at the hearing or for any other technical reason not affecting the merits of the case.

The Abuse Allegations in the Notice of Intended Entry [10] The Notice of Intended Entry stated: … a report has been received from the Child Abuse Committee of [ANCR] on the 16th day of July, 2021, stating that the child [J., bornin March 2010] was abused … and … that [A.B.] abused this child. [11] The Notice of Intended Entry set out the following abuse allegations: … in or about or between 2012 and 2016 you, [A.B.], did sexually exploit [J. born in March 2010] on one or more occasions by engagingin inappropriate sexual behaviours, including any or all of the following: • Exposing your penis to her; • Forcing her to touch your penis with her hands; • Forcing her to perform oral sex on you; • Removing her clothing for a sexual purpose; • Attempting to and/or touching her genital area with your penis; • Exposing her to pornographic videos, any of which would constitute abuse of a child pursuant to the provisions of The Child and Family Services Act and Regulations.

Law and Analysis [12] The Agency bears the burden of proof in this proceeding on the civil standard of proof, proof on a balance of probabilities. [13] The Agency must establish that one or more of the acts alleged in the Notice of Intended Entry occurred, and that they constitute“abuse” as that term is defined in s. 1(1) the Act, namely “…

an act or omission by any person where the act or omission results in … (c)sexual exploitation of the child with or without the child’s consent.” [14] In F.H. v. McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41, the Court made the following statements about the civilstandard of proof: [40] … 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 proofon a balance 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. … . . . [45] … There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge. [46] Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. … . . . [49] In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance ofprobabilities.

In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely thannot that an alleged event occurred. [15] Clearly all of the alleged acts in the Notice of Intended Entry constitute sexual exploitation, and therefore “abuse”, of a child.

The applicant did not suggest the acts did not constitute “abuse”; he denied that the acts occurred. [16] The Agency called two witnesses to give evidence in this proceeding, Detective W. of the Winnipeg Police Service and M.C., aforensic interviewer with Snowflake Place (as it then was), as well as relying on various agreed statements of facts and documents,including records from the Winnipeg Police Service, filed as exhibits. [17] The child was not called as a witness in this proceeding. As contemplated by s. 19(3.6)(

c) of the Act, J.’s evidence was providedto the Court through hearsay, in particular a recording of an interview conducted by M.C. in which the child described the actions of A.B.

[18] A.B. testified in support of his Application opposing entry of his name on the Registry and also called his father, N.B., as awitness. A.B. denied the abuse allegations and his father supported those denials. [19] Although the Act clearly allows the evidence of children to be provided through hearsay evidence by various means, that“evidence must … be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test” as contemplated inMcDougall.

A.B. argued that J.’s disclosures did not meet this standard and, in addition, that there was significant uncertainty withrespect to the timing of certain alleged events. [20] As I stated in D.G.S. v. The Director of Child and Family Services, 2019 MBQB 40 , at paras. 33-36: [33] In considering whether children’s evidence is “sufficiently clear, convincing and cogent to satisfy the balance of probabilities test”the Court should never lose sight of the fact that they are children. [34] In R. v.

Merkl, 2017 MBQB 129, the trial judge, Suche J., succinctly described the law with respect to hearing children’stestimony as follows: [40] Children’s testimony must be approached on a common sense basis, having regard to their age, intelligence and development. The law has long been that flaws or contradictions in a child’s testimony should not have the same effect as that of an adult. Whilechildren may not be able to recount precise details and communicate the where and when of an event with exactitude, this does not meanthat they have misconceived what happened to them and who did it (see R. v.

B. (G.), (SCC), [1990] 2 S.C.R. 30(S.C.C.)). What is important is whether the essential details of a child's story are clear and consistent and any flaws not go to the heart oftheir story. [35] The Court of Appeal subsequently found that Suche J. had “properly instructed herself on the manner in which the testimony ofyoung children should be assessed” (R. v.

Merkl, 2019 MBCA 15). [36] Although the comments of the trial judge in Merkl were made in the context of a criminal proceeding, the same considerationsapply to the manner in which children’s testimony should be approached in civil proceedings, even when that testimony is receivedthrough hearsay, a recording or other means the Court considers appropriate, as is permitted pursuant to the rules governing hearing ofapplications opposing entry of names on the Child Abuse Registry.

Children’s evidence “must be approached on a common sense basis,having regard to their age, intelligence and development”. … [21] I have approached J.’s evidence “on a common sense basis, having regard to [her] age, intelligence and development”. [22] J. is the daughter of A.B. and C.M. From the age of one or so she regularly spent weekend time or weekends in the care of herpaternal grandparents, N.B. and S.P. (who sadly passed away in 2022).

During those weekends she also regularly spent time with A.B.,time that he and N.B. stated was always supervised by either N.B. or S.P. because of J.’s seizure condition and that of A.B., and A.B.’sdrug addiction issues.

There was no evidence of any “access” disputes between C.M. and either A.B. or the grandparents leading up towhen J. made her abuse disclosure to her mother that resulted in the report to the Winnipeg Police Service. [23] At approximately 8:30 a.m. on Sunday, December 16, 2018, a representative of the Winnipeg Police Service was dispatched toC.M.’s residence and met with her, in the child’s presence. C.M. advised the police officer that “tonight” (presumably referring to theprevious evening) J. told her that she had been inappropriately touched by her father and he made her play “mommy and daddy”.

Theofficer was advised that the events had taken place at two separate locations, on unknown dates. The complaint was forwarded to theWinnipeg Police Child Abuse Unit for investigation and the ANCR after-hours unit was contacted. [24] J. was interviewed by M.C. at Snowflake Place on January 4, 2019 and a referral was made to the Child Abuse CommitteeCoordinator on February 5, 2019. [25] On January 13, 2019 A.B. was arrested and charged with sexual assault, invitation to sexual touching and making sexuallyexplicit material available to a child. He was interviewed by Detective W. of the Winnipeg Police Service.

There was no evidence A.B.admitted to the alleged acts although he appeared to admit to having pornographic material on his phone. [26] The charges against A.B. were scheduled for trial in December of 2019 but ultimately stayed. According to September 18, 2020Child Abuse Committee minutes this occurred because the “victim was unable to be located”. [27] Save and except for the final allegation of sexual exploitation (exposure to pornographic videos), J.’s evidence in her recordedinterview with M.C. was clear, convincing and cogent.

While there may not have been absolute clarity as to the precise location where,and the dates on which, specific events occurred, J.’s disclosures to M.C. were compelling and believable and fell within the general timeperiod alleged. [28] From watching her interview with M.C., I know what J. was asked, how she responded to questions and what physical gesturesshe made when responding. [29] J. was able to describe in an age appropriate way the two residences where she visited her grandparents and spent time with A.B.;a big white house on “G.” Street (where both grandparents lived from 2012 and J.’s Uncle N. and Aunt D. lived for a period of time) anda brown house on “B.” Street (where J.’s Uncle N. and Aunt D. moved in 2015, and N.B. moved in 2017 when he separated from S.P.).

S.P. eventually moved to the residence on “B.” Street as well. J. also described spending time with A.B. at S.P.’s “shop”. (S.P. had abeauty salon.) [30] J. also related incidents to general time periods, such as when her Aunt D. had a “baby in her stomach”. (D. was pregnant in

2015-2016.) At one point in her interview, J. indicated that events had taken place when she was three years old. I do not take that statement literally, but conclude that the child was referring to events that occurred a number of years earlier in her life, therefore fitting within the timeframe shown on the Notice of Intended Entry. [ 31 ] J. provided graphic sensory details respecting the alleged abuse by A.B. She described how it felt when A.B.’s “private part” touched her “private parts”, indicating that it “tickled”.

She described the movement of his “private part” in her mouth and, with respect to one such event, that she washed her face and mouth afterwards and, with respect to another, that it tasted bad and she ate a candy. J. described A.B.’s “private part” as being “gross”. [ 32 ] J. not only described the position of A.B.’s clothing and her clothing during certain acts but gestured to describe those positions.

J. also said that her hands were sore because they were moving so much, again gesturing as she described her actions. [ 33 ] J. was very clear that A.B. (a person she saw regularly and knew well) was the person who committed the acts in question. [ 34 ] When J. was asked who she told about A.B.’s actions, she said she tried to tell her grandfather and her uncle what A.B. was doing but they were “too distracting” with movies and video games and did not listen. [ 35 ] J. indicated she told her mother what A.B. had done. When asked how her mother reacted, J. stated that her mother started to cry.

The timing of that disclosure that led to the involvement of the Winnipeg Police Service was linked to another event that was also very important from the child’s perspective; a church Christmas concert that she was unable to attend that evening. J. was upset she could not attend the concert because she was supposed to be an angel. [ 36 ] It was also clear from her interview that J. was not suggestible. At one point M.C. asked her about a time she said A.B. wanted her to have a shower with him. She clearly indicated she told him “no” and A.B. took the shower by himself.

At another point she corrected a comment M.C. made about a location. [ 37 ] J. also indicated that after one incident A.B. asked if she was “going to charge him”. [ 38 ] The child stated that certain events took place at the residence on “B.” Street, a place that A.B. and his father N.B. indicated that A.B. had not attended during the period of time specified in the Notice of Intended Entry. [ 39 ] N.B. testified that he always supervised the time A.B. spent with J. because his son had a seizure condition and he was afraid A.B. would have a seizure and fall.

A.B., however, testified that he had been on anti-seizure medication for over ten years and had not had seizures during that time period. N.B. indicated that S.P. would supervise A.B.’s time with J. if he was unavailable. [ 40 ] A.B. testified that J. would sleep over at his mother’s house on “G.” Street and he would as well. [ 41 ] A.B. was a serious, habitual drug user for many years. He testified that in addition to taking anti-seizure medication and clozapine for his schizophrenia, he would consume alcohol and, on a daily basis, five points of methamphetamine.

While agreeing that he was very high on a number of occasions, he denied the Agency’s suggestion that this drug use would affect his memory and stated it made his mind clearer. At another point in his testimony he indicated his memory was better than it used to be.

He stated he stopped consuming drugs and alcohol a year ago. [ 42 ] Taking all of the evidence in this proceeding into account, I am satisfied that while N.B. may have tried to supervise A.B.’s time with J., A.B. had considerable unsupervised time with the child. [ 43 ] I have no hesitation finding on a balance of probabilities that A.B. sexually exploited J. by exposing his penis to her, forcing her to touch his penis with her hands and to perform oral sex on him, removing her clothing for a sexual purpose and attempting to and/or touching her genital area with his penis, thereby abusing her within the meaning of the definition of “abuse” in the Act . [ 44 ] The evidence with respect to exposure to child pornography was less clear.

J.’s descriptions of the movies A.B. showed her were such that while they may have been pornographic in nature, they may have simply been the somewhat graphic kind of films or movies that are often shown on television where individuals are removing some clothing and going to bed. I cannot conclude on a balance of probabilities that A.B. exposed J. to pornography. [ 45 ] The issue of the timing of the abuse alleged in the Notice of Intended Entry somewhat complicated this case.

The Notice of Intended Entry refers to events occurring between 2012 and 2016, despite the fact the child’s disclosure to her mother was on December 15, 2018, some two years later, and her interview by M.C. took place on January 4, 2019. [ 46 ] Counsel for the applicant rightly noted that among the agreed facts and documents marked as exhibits in this proceeding were documents from the Winnipeg Police Service with respect to the charges that were laid against A.B. in January of 2019 and subsequently stayed later that year. The arrest

summary and arrest report referred to incidents that occurred when J. was between the ages of six and eight years old (i.e., 2016 to 2018). [ 47 ] It was not made clear to the Court why the Notice of Intended Entry used different dates for the alleged abuse occurrences than the dates contained in the Winnipeg Police Service records and noted on their arrest reports, particularly given that the referral was initiated by the Winnipeg Police Service and there was no question with respect to the date on which the child made the disclosure to her mother. [ 48 ] Agency counsel argued that even in the event I was unable to conclude that abuse had occurred as alleged within the timeframe specified on the Notice of Intended Entry, if I reached the conclusion the child had been abused by A.B., his name would be and should be entered on the Child Abuse Registry pursuant to ss. 19(6) of the Act .

That provision states: Reporting by court

19(6) Where a person, in a court in Manitoba, … is found in a proceeding under this Act to have abused a child, the court shall report the name of the person, the circumstances of the abuse … to the director for entry in the registry. [ 49 ] This argument was raised by Agency counsel after A.B.’s counsel argued that the evidence did not clearly establish that the alleged acts of abuse occurred during the timeframe specified on the Notice of Intended Entry.

I indicated that in the event I concluded that abuse had occurred, but not within the timeframe specified in the Notice, I would allow A.B.’s counsel the opportunity to further consider this argument by Agency counsel and respond to same.

Given the findings that I have made, it is not necessary for me to do so and the issue remains for determination by another judge on another day. [ 50 ] I do, however, wish to emphasize to the Agency that it is imperative that when a Notice of Intended Entry is forwarded to an individual, the circumstances of the alleged acts of abuse, including the time period when they are alleged to have occurred, are carefully considered. Counsel for A.B. correctly noted that the Agency could have sought to amend the Notice of Intended Entry to provide for a different or more expansive timeframe, if they wished to do so.

They did not. Procedural fairness demands that these Notices are carefully drafted and reflect the timeframes and allegations that an individual needs to consider in determining whether or not to file an application opposing entry of their name on the Registry. [ 51 ] Given the Agreed Statement of Facts in this case, at least some of the evidence presented at the hearing respecting time periods would have been unnecessary, as would many of the arguments made by both counsel.

Conclusion [ 52 ] The Agency has established on the balance of probabilities that A.B. sexually exploited and therefore abused J. as alleged in the Notice of Intended Entry, save and except for the last allegation that he exposed her to pornographic videos. [ 53 ] A.B.’s application opposing entry of his name on the Child Abuse Registry is dismissed and his name will therefore be placed on the Registry. _________________________ MacPhail J.