2023 MBKB 143, 2023 MBKB 143

Date: 20231003 File No.: CP 21-01-17604 (Winnipeg Centre) Cited as: J.P. v. Child and Family Services of Central Manitoba, Inc.

Indexed as: 2023 MBKB 143 COURT OF KING’S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N : J.P., applicant, ) ) ) Mike Cook for the applicant -and- ) ) CHILD AND FAMILY SERVICES OF CENTRAL MANITOBA, INC., respondent. ) ) ) ) Chad Schaan for the respondent ) JUDGMENT DELIVERED : ) October 3, 2023 RESTRICTION ON PUBLICATION: Pursuant to subsection 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. THOMSON J.

Introduction [ 1 ] The applicant filed a notice of application pursuant to s. 19(3.2) of The Child and Family Services Act , C.C.S.M. c. C80 (the ” CFS Act ”) , objecting to the entry of her name on the Child Abuse Registry. The matter proceeded to trial before me over three days. Following are the reasons for decision. Background [ 2 ] There are relatively few facts in dispute in this case. On April 14, 2018, in the late afternoon, one of the applicant’s three children made a complaint to her about an incident that had taken place a short time earlier at a nearby school playground.

According to the applicant, her eldest son, then aged 10 years, told her that he had been with a younger sibling on an errand when another child, who was a part of a group of older children, had sworn at them. The applicant described her children as being very upset by the interaction. [ 3 ] The applicant immediately walked to the playground and, upon arriving, called out to a child whom she recognized as the son of an acquaintance. She approached the child who was then 12 years of age, and began to admonish him (using what she described as her “mom voice”) for having sworn at her children.

That boy (K.W.) then swore at the applicant (telling her to “fuck off”), and began to turn to walk away from her. The applicant reached out towards him with her right arm, and grabbed him in the neck area. She held him for

about five seconds, until K.W. either struck her, or pushed her down, and she released her grasp.

That ended their physical interaction, and the applicant left the vicinity of the playground shortly after that (though she returned, perhaps five minutes later, by vehicle). [ 4 ] While framed somewhat more broadly in the notice provided to the applicant under s. 19(3.2) of the CFS Act , the respondent’s specific allegation at trial was that this discrete “act” by the applicant of grabbing the boy resulted in the child sustaining a “physical injury”, evidenced at that time by red marks upon the one side of the front of his neck, and thereby constitutes the “abuse” of a child under the CFS Act , warranting her registration in the Child Abuse Registry. [ 5 ] Separate and apart from this proceeding, the applicant was charged with assault under the Criminal Code of Canada , R.S.C., 1985, c.

C-46 . On August 20, 2019, she appeared in Morden Provincial Judges Court and entered a guilty plea to the charge. Her case was then adjourned for her referral to a “post-plea diversion” program. She was directed to write a letter of apology to the child, to attend for and complete an assessment by the Addictions Foundation of Manitoba, and to attend for and complete anger management counselling.

Having satisfied all three of these directions, she entered into a “peace bond” of a one-year duration, and on January 14, 2020, a stay of proceedings was entered on the charge of assault. [ 6 ] The initial complaint against the applicant, which was first referred to the child abuse committee in April 2018, was later presented to the committee in October 2020, and a notice of intended entry on the Child Abuse Registry was then served upon the applicant, triggering her application to this court on January 8, 2021. the law [ 7 ] All requisite steps under both the CFS Act and the Child Abuse Regulation, Man.

Reg. 14/99 , were taken by the child abuse committee in seeking registration. The applicant has also satisfied all procedural requirements in bringing her request for relief to the court. No jurisdictional issues are asserted to exist by either party, or otherwise arise in this case. [ 8 ] Pertinent are the provisions in the CFS Act regarding the procedure for the hearing before me: 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 i n 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. Règles d'audience 19(3.6) À l'audience :

a) l'office a le fardeau de la preuve selon la prépondérance des probabilités;

b) toutes les parties peuvent se faire représenter pa r avocat et, sous réserve des alinéas

c) et d), ont la possibilité de présenter des preuves ainsi que d'interroger et de contre-interroger des témoins;

c) la Cour n'est pas liée par les règles de preuve à l'égard du témoignage d'un enfant qui, selon l'office, aurait subi de mauvais traitements de la part du demandeur, et elle peut accepter le témoignage de l'enfant par ouï-dire, par voie d'enregistrement, pa r voie de déclaration écrite ou de toute autre façon qu'elle considère comme acceptable;

d) les enfants qui, selon l'office, auraient subi de mauvais traitement de la part du demandeur ne peuvent être tenus de témoigner. Decision of court 19(3.7) The court shall determine whether the person has abused a child and record the reasons for its decision, and its decision is final and not subject to appeal.

Décision de la Cour 19(3.7) La Cour détermine si la personne a infligé des mauvais traitements à un enfant et consigne les motifs de sa décision, laquelle est définitive et ne peut faire l'objet d'aucun appel. [ 9 ] Also of particular import to the determination I must make in this case is the definition of “abuse” in the CFS Act , as the respondent asserts that the applicant by her act on April 14, 2018, abused a child:

Definitions 1(1) In this Act "abuse" means

an act or omission byany person where the act or omissionresults in (

a) physical injury to the child, Définitions 1(1) Définitions 1(1) Les définitions quisuivent s'appliquent à la présente loi. « mauvais traitements » Actes ouomissions d'une personne qui : a)causent lésion corporelle à l'enfant [10] In arriving at a conclusion, I must remain faithful to the purpose of the Child Abuse Registry under the Act, and as articulated inM.M. v. Child and Family, 2019 MBQB 134: [12] The purpose of the Act is to protect children.

The first declaration of principles states “[t]he safety, security and well-being ofchildren and their best interests are fundamental responsibilities of society.” ..... [14] This case does not deal with the apprehension of a child under the Act, but rather with a process of placing an individual’s name onthe Registry pursuant to the various provisions of s. 19 of the Act. The Registry is a creature of statute created and governed by theprovisions of the Act.

The purpose of the Registry is to maintain a central registry of the names of individuals who have either beenconvicted of a crime involving harm to a child, or who have had their name placed on the Registry by a child welfare agency after havingbeen found to have abused a child. It is important to recognize the crucial role that the Registry plays in keeping children safe. Prior tothe Registry coming into force, it was difficult to background check individuals who wanted to be placed in a position of trust oroversight of children such as a teacher, sports coach, Sunday school teacher, etc.

If the individual who may have harmed a child in thepast had not been criminally convicted, a simple criminal record check would not be indicative of their risk to children. By virtue of thecreation of Manitoba’s Child Abuse Registry, it has become routine for commercial, government or charitable organizations to rely onRegistry checks for individuals who wish to be placed in a position of trust or authority involving children. Often times, organizationswill require their staff to undergo Registry checks on an annual basis.

It is important that the Registry be seen as accurate and reliable bythe public and that people have confidence in its accuracy. In other words, where an individual ought to be placed on the Registry, nomatter the implications to their private or professional lives, that person must be placed on the Registry. Conversely, individuals oughtnot be placed on the Registry unless there is a compelling case to do so. The civil burden of proof provides a reasonable balance of thesecompeting principles. And, as well, in The Children’s Advocate of Manitoba v.

Child and Family Services of Western Manitoba et al, 2005 MBCA 11decision: 30 The Criminal Code is not relevant to the

interpretation of the Act and should not inform the intention of the legislature with respectto the registry provisions. The specific age restriction contained in the Criminal Code is not applicable to the registryprovisions. Criminal law is distinct in purpose and effect from the registry. The purpose of the registry is to protect children by warningthe public in certain circumstances. As stated by Carr J. in Bernhard v. Child and Family Services of Winnipeg et al. (1992), (MB KB), 80 Man.R. (2d) 319 (Q.B.) “the purpose of the [registry] is solely to protect children from potential abuse” (atpara. 6).

See also D.W. v. Child and Family Services of Western Manitoba (2004), 183 Man.R. (2d) 142, 2004 MBQB 94. [11] I am also cognizant, as counsel before me agreed, that any purported act of child abuse under the CFS Act must be consideredcontextually, as noted by Goldberg J. in S.J.B. v. Child and Family All Nations Coordinated Response Network, 2009 MBQB 12: [56] In interpreting the word “abuse” and the Child Abuse Registry provisions of the Act, the court must be careful not to characterizeall acts and omissions which result in physical injury to a child as abuse. The court must be mindful of

interpretations which are notapplicable to the purpose of the Child Abuse Registry. The purpose of the Registry was described by Hamilton J.A. in M.S. (litigationguardian of) v. Child and Family Services of Western Manitoba 2005 MBCA 11 , [2005] M.J. No. 17 at para. 30: ….The purpose of the registry is to protect children by warning the public in certain circumstances. As stated by Carr J. in Bernhard v.Child and Family Services of Winnipeg et al. (91992), (MB KB), 80 Man.R. (2d) 319 (Q.B.) “the purpose of the[registry] is solely to protect children from potential abuse” (at para. 6).

[ 12 ] Finally, as urged upon me by applicant’s counsel, I recognize the implications of registration for the applicant, though this is a consideration much subservient to the protection of children from abuse. A noted by Abel J. in J.W. v. CFS Western Manitoba , 2019 MBQB 75 : [43] There are significant consequences to a person when her name is entered on the Registry. Not only can such a determination affect that person's psyche, it can affect ongoing aspects of that individual's life and liberty.

Once a person's name is registered on the Registry, s. 19.1 of the Act allows access to the Registry by child and family services agencies, adoption agencies, peace officers, employers and others, if the information is reasonably required to assist the applicant in assessing a person for work involving children, whether paid or unpaid. Although the onus of proof is on the agency who submits that an individual committed abuse, it is important to remember that an agency holds significant powers as a representative of the state over individuals (see K.S. v.

CFS Western Manitoba , 2016 MBQB 111 , at para. 42 ). [ 13 ] I turn now to the trial evidence received by me. trial evidence [ 14 ] The respondent called six witnesses including K.W., the alleged victim. Two of the other four children who were in his group at the playground (J.B. aged 16, and S.D. aged 17 years) also gave evidence. K.W.’s mother and J.B.’s father (neither of whom witnessed the incident) were also called by the respondent at trial.

Finally, an RCMP member testified, whose involvement was solicited subsequently. [ 15 ] The description of the events leading up to and including the incident set out earlier at paragraphs 2 and 3 of these reasons, constitute findings of fact based upon my consideration of the testimony at trial. There are additional factual findings, which are integral to my disposition, and which I will now address while further discussing that testimony. [ 16 ] In so doing I find it is unnecessary to engage in a granular review of the testimony.

But I will highlight certain matters where there were conflicts in the evidence, and/or where there is testimony I discount or reject. I also observe that K.W., J.B. and S.D. gave evidence which diverged in significant fashion from each other on certain material points, and from what K.W. and J.B. told the RCMP at the time. In some regards, this may reflect their diminished memories due to the effluxion of time.

In others, I believe there may have been an effort among admitted lifelong friends to bolster or support K.W.’s complaint. [ 17 ] However, I first observe that two other named children (identified as friends of K.W., J.B. and S.D.) were also present with the group at the playground when the subject incident occurred, but did not testify.

I do not know why that is. [ 18 ] S.D. and J.B. corroborated the information the applicant says she received from her child, precipitating her attendance at the playground; that K.W. swore at her child. [ 19 ] All of those who did testify about the actual incident (except S.D.) reported no raised voices in the initial conversation between the applicant and K.W. at the playground, and said that it was only after K.W. swore at the applicant that they both began yelling at each other. (I believe S.D. was, at least in this respect, mistaken.) J.B. said he heard the applicant ask K.W. “why are you swearing at my son”, and that K.W. “was mouthy.” [ 20 ] The testimony of J.B.’s father about the applicant’s subsequent return to the playground after the initial confrontation with K.W. is of minimal, if any, relevance to this proceeding.

No specific allegation is made by the respondent against the applicant for her later conduct. Still, I have considered it as a part of the broader “context”, as I have the fact that J.B.’s father was the deponent of an affidavit supporting the applicant’s ex-husband in their contested Family Division child custody proceeding. [ 21 ] K.W.’s mother, T.W., gave evidence regarding certain unremarkable telephone communications initiated by the applicant very soon following the incident.

Of greater import was her description of the red marks she observed on her son’s neck immediately after. [ 22 ] No medical evidence was led by the respondent to establish the “physical injury” or “lésion corporelle” sustained by K.W. resulting from the applicant’s act of grabbing him. K.W. and his mother gave similar descriptions of the red marks on K.W.’s neck following the incident. They sought no medical attention. The RCMP officer who met with K.W. on April 17, 2018, observed no marks.

K.W. testified in cross-examination that he was not injured. [ 23 ] The applicant specifically denied intending to grab, or indeed grabbing, K.W.’s neck. K.W. of course said she did grab his neck, and that this occurred for a duration of 10 seconds. [ 24 ] The applicant’s evidence is that she grabbed K.W. by the front of his “hoodie” only.

She does not dispute that this act on her part may have resulted in the hoodie, when clenched by her, causing a minor abrasion to, or mark on, his neck. [ 25 ] Much of the testimony offered by the respondent’s witnesses concerning the surrounding circumstances failed to impress, even allowing for the passage of time. [ 26 ] K.W. claimed at trial that the grab was accompanied by a threat to seriously harm him. However, his statement to police a couple of days afterwards made no mention of this at all.

Neither S.D. nor J.B. supported K.W.’s claim at trial. [ 27 ] Both S.D. and J.B. testified that they could see the applicant’s right hand grabbing the front and side of their friend’s neck. Each described the duration of the grab distinctly; between 3-5 seconds and for five seconds, respectively. [ 28 ] While J.B. testified at trial that he saw the applicant grab K.W. by the neck , he admitted in cross-examination that he told police something very different. In his statement to the RCMP, he said that she had grabbed K.W. by the sweater , just as the applicant asserts.

When questioned more closely at trial about the inconsistency, he offered that he “lied to the police”. [ 29 ] S.D. was carefully cross-examined as to her proximity and precise positioning relative to the applicant and K.W., while she observed the incident. She was clear in describing K.W.’s back as being towards her (she stood in “the 5 o’clock position, while he was facing 12 o’clock”), which would have obscured her view of the front of his neck. [ 30 ] I accept on a balance of probabilities that the applicant intended to grab only the front of K.W.’s hoodie, after he swore at her and began to turn to leave.

Based on the observations made immediately following the event by T.W., and the testimony of K.W., I believe that it is possible she incidentally grabbed the side of K.W.’s neck in the process. It is possible that S.D. was positioned to see at least that side of his neck, as he began to turn away from the applicant. I find that the grab, for five seconds at the most, left a small red mark on K.W.’s neck.

However, I am unable to conclude on a preponderance of evidence that the applicant’s right hand was directly placed upon the bare skin of his neck, as opposed to the neck of the clothing he was wearing. [ 31 ] That much of the evidence received by me at trial was unsatisfactory, and insufficient to permit the court to arrive at conclusions satisfying the civil standard of proof placed upon the respondent, is further borne out in the consideration of the testimony as to the immediately subsequent event.

K.W. testified that after being grabbed he then “swung at” or “punched” (he said both) the applicant, causing her to let go of him. J.B agreed that he “swung at her and hit her in the face.” The applicant, however, said he first swore at her a second time and then “pushed” her in the chest area, and she fell down to the ground.

In yet another variation, S.D. testified that K.W. “kneed her in the stomach”, “pulled her hand off his neck”, or “hit her”. analysis and decision [ 32 ] Restated, the issue for determination is whether the act of the applicant, as I have determined it, resulted in “physical injury” or “lésion corporelle” to K.W., thereby constituting “abuse” or “mauvais traitements” under the CFS Act , and requires the entry of her name on the Child Abuse Registry. [ 33 ] I invited counsel to make submissions respecting the court’s

interpretation of the specific provisions of the legislation with which it is here concerned, as regards a comparison of the French and English versions of s. 1(1). I did so because there appeared to me to be some at least superficial distinction or inconsistency in the two versions which, depending upon the fact-findings made, could conceptually give rise to issues of statutory

interpretation and of jurisdiction, and because it is the court’s duty to do so (See: 5185603 Manitoba Ltd et al v. Government of Manitoba et al, 2023 MBCA 47 ). [ 34 ] Neither counsel advanced forceful positions. Respondent’s counsel submitted that the two versions are essentially the same.

Applicant’s counsel suggested that the French version might call for more serious physical or bodily injury but submitted that, whichever version was preferred by the court, the applicant’s conduct or act fell short of either abuse or mauvais traitements. [ 35 ] Of course, the task I have does not involve my simple selection of one or the other version of the French or English. I take guidance from Ruth Sullivan in Statutory

Interpretation, Third Edition (Toronto: Irwin Law), at p. 50: In the case of legislation that is bilingual, the rule of law requires that both language versions express the same rule. Apparent discrepancies between versions are normally resolved by adopting the “shared meaning” – the meaning that can plausibly be borne by both versions – unless that meaning is unacceptable in light of other evidence of legislative intent. 5 and at pp. 97 and 98: The Supreme Court of Canada has held that when legislation must be enacted in two languages, both language versions have equal status and are equally authoritative.

This is known as the equal authenticity rule, and it is well established. 8 ..... Because two versions of bilingual legislation are equally authentic, neither can be given paramountcy over the other. If the two versions do not appear to say the same thing, the discrepancy must be resolved in a way that does not automatically give priority to one or the other version. In the Manitoba Language Reference , 10 for example, the Supreme Court of Canada struck down a provision of

An Act Respecting the Operation of s 23 of the Manitoba Act in Regards to Statutes that said that to resolve any conflict between the French and English versions of Manitoba legislation, the original enactment (invariably drafted in English) should prevail over the subsequent translation (invariably the French version). As the court explained, any mechanism that effectively attributes paramountcy to either version, however formulated, violates the equal authenticity rule. Discrepancies between the two versions can be resolved only by reading them both together and formulating a meaning that works for both. 5 See

Chapter 6,

Section A. 8 See Manitoba Language Reference , above note 5 at 774-75.

Section 18 of the Constitution Act , 1892, above note 4, codifies the equal authenticity rule for federal and New Brunswick legislation. 10 Above note 5.

[ 36 ] While seemingly simply stated, what is thus required of the court may be, in some cases, a purposeful, exacting and demanding examination of the French and English versions of the statute. [ 37 ] In the end in this discrete case, however, I am of the view that the exercise need not be undertaken by me.

It is rendered unnecessary for me to do so in light of my ultimate factual findings; the law regarding the over-arching purpose of the legislative provisions; and my belief that the respondent has fallen so far short of establishing, on the applicable standard of proof, that the act committed by the applicant constitutes the abuse of a child.

Registration of the applicant would be wrong, in light of the totality of surrounding circumstances and the context within which the applicant’s act was committed, and in the absence of any meaningful evidence that K.W. sustained physical injury or lésion corporelle: - The marks left on the child’s neck by the applicant’s grab were transient or trifling.

He was not injured, and testified to that. - The applicant’s contact with the child was momentary, and the incident extremely brief. - The applicant’s intent was to grab the child’s clothing, not his neck, and to engage the child for predominantly corrective purposes; she did not attack or attempt to strike the child. - The applicant’s original motivation in initiating a conversation with the child arose from a concern about the emotional welfare of her own younger children. - K.W. was 12 years of age at the time. - The absence of any pre-existing relationship of ill will or any prior conflict. - The absence of evidence that children need to be protected from the applicant. - The applicant freely acknowledged in her testimony that what she did was “wrong”, and demonstrated poor judgment.

She admitted it was a bad decision to react to K.W. swearing at her children by going immediately to the playground, and an even worse decision to grab him when he swore at her and began to turn to leave. - I believe her expressions of regret are genuine, and reflected in the acceptance of responsibility inherent in her plea of guilty to the assault charge, and in her participation in the post-plea program, resulting in the stay of proceedings entered by the Crown. DISPOSITION [ 38 ] The application is granted. Costs may be spoken to. J.