E.G. et al. v. Child and Family All Nations Date:, 2012 MBCA 65

Citation: E.G. et al. v. Child and Family All Nations Date: 20120615 Coordinated Response Network, 2012 MBCA 65 Docket: AH 11-30-07575 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Mr. Justice Alan D. MacInnes BETWEEN : G. (E.) ) ) (Applicant) Respondent ) H. Cochrane and ) S. C. Scarcello - and - ) for the Appellant ) CHILD AND FAMILY ALL NATIONS ) COORDINATED RESPONSE NETWORK ) R. O. O. West ) for the Respondent E.G. (Respondent) Appellant ) ) C. L.

Dunn - and - ) for the Respondent L.O.G. ) G. (L.O.) ) ) Appeal heard and (Applicant) Respondent ) Decision pronounced: ) December 8, 2011 - and - ) ) CHILD AND FAMILY ALL NATIONS ) Written reasons: COORDINATED RESPONSE NETWORK ) June 15, 2012 ) (Respondent) Appellant ) NOTICE OF RESTRICTION ON PUBLICATION: No one may disclose any information likely to identify any person involved in the proceedings as a party or a witness (see s. 75(2) of The Child and Family Services Act ).

STEEL J.A. 1 This appeal addresses the issue of the appropriate test to apply on a motion for the stay of a hearing to enter an individual’s name on the Manitoba Child Abuse Registry (the Registry) pending determination of child protection proceedings. 2 The motions judge granted the motion for the stay. Upon appeal, the stay was lifted for the reasons that follow. Introduction 3 The Child and Family All Nations Coordinated Response Network (ANCR) intends to enter the applicants ’ names on the Registry as a result of their alleged sexual abuse of their child.

Both applicants have opposed their entry on the Registry. 4 Jewish Child and Family Services (JCFS) is concurrently seeking a permanent order of guardianship with respect to the applicants ’ child, which is also being opposed by the mother in a child protection proceeding that was ongoing as of the date of the motion.

5 ANCR has successfully received an order consolidating the two Registry proceedings involving the applicants. That order is not under appeal. 6 At the same time, the applicants received an order staying the now consolidated Registry proceedings pending a determination of the child protection proceeding involving JCFS. ANCR appeals that order. Facts 7 The applicants were accused of committing acts of sexual abuse against their child in January of 2007. As a result, the child was apprehended by JCFS and has been in its care ever since. 8 The Child Abuse Committee of ANCR investigated the allegations in conjunction and in cooperation with the Winnipeg Police Service, as required by ss. 2 (

b) and (

c) of the Child Abuse Regulation , Man. Reg. 14/99, under The Child and Family Services Act , C.C.S.M., c. C80 (the Act ). In cases such as this, ANCR cooperates with the police and does not proceed under the Registry until the police investigation and criminal charges, if any, are completed. If a criminal conviction results, there is an automatic registration on the Registry (see s. 19.1(2) of the Act ). 9 In this case, the police investigation, which culminated in criminal charges against the applicants, took two years from the time of disclosure of the abuse allegations.

However, the charges against the applicants were stayed by the Crown. 10 Once criminal charges had been stayed, ANCR conducted its own investigation. As a result of that investigation, ANCR commenced a process pursuant to the Act to have the names of the applicants entered on the Registry. 11 The Registry is created and governed by s. 19 of the Act . A person’s name can be placed on the Registry in a variety of ways. Relevant in this case is the report of a child abuse committee, created pursuant to ss. 19(1) and (2) of the Act .

If the committee recommends that a person’s name be placed on the Registry, that person has an ability to object to their entry pursuant to s. 19(3.3) of the Act . If they object, a judge of the Court of Queen’s Bench will conduct a hearing, where the burden will be on the agency to prove, on the balance of probabilities, that the person abused a child. 12 On December 17, 2009, the applicants received a notice of intended entry on the Registry pursuant to s. 19(3.2) of the Act .

On January 24, 2010, the father filed a notice of application in the Court of Queen’s Bench to oppose registration pursuant to s. 19(3.3) of the Act . The mother also filed a similar application some weeks later. 13 At the same time, JCFS was seeking a permanent order of guardianship with respect to the child. This is being opposed by the mother. The father has consented to that permanent order.

At the time of the hearing of this appeal, the child protection trial had concluded and judgment had been reserved. 14 The applicants moved to stay the proceedings relating to entry on the Registry until the completion of the child protection proceedings, which the motions judge granted. The motions judge was of the opinion that substantial prejudice could result to the applicants if a stay was not granted.

The order was pronounced orally on November 24, 2010, and written reasons followed on January 19, 2011. 15 The motions judge ’ s written reasons on the issue of the stay are brief and I therefore reproduce them in full, as follows (at paras. 8-9): The court granted the stay of ANCR’s proceeding under s. 19 of The Child and Family Services Act , until after the guardianship proceedings have been heard. It is the court’s view that not doing so may result in prejudice to the applicant at the hearing of the Jewish Child and Family Services’ application for a permanent order of guardianship.

Further, the court does not believe that a stay would prejudice ANCR’s position. The third argument accepted by the court is that this matter arose in January 2007 and there has been no reoccurrence of any criminal behaviour, nor have the peace bonds been breached. Further, ANCR has waited approximately three and a half years to bring this matter to a hearing, thus making the court question why the urgency now. The court did not hear of any reason.

Finally, there was no evidence that the applicant presented any immediate danger to S.D.G. or any other children. 16 ANCR has now appealed the granting of that stay, arguing that the motions judge applied the test for a stay incorrectly.

Position of ANCR 17 ANCR argues that the motions judge erred in not applying the correct test, or any test for that matter, for a stay in these circumstances, failing to place the burden of proof on the appropriate party and considering irrelevant factors. 18 ANCR contends that the scope of the discretion to grant a stay is quite narrow and that the court in these types of cases has required exceptional or extraordinary circumstances to justify the granting of a stay. 19 ANCR submits that according to the jurisprudence, the correct legal test for granting a stay of a Registry hearing should be as follows:

a. The power to stay [this type of hearing] should be exercised sparingly and only in the clearest of cases (i.e. extraordinary orexceptional circumstances). b. In order to justify a stay …, the party requesting the stay has the onus to establish the following three conditions: i. They must satisfy the court that the continuance of the action would work an injustice because it would be oppressive orvexatious to the party seeking the stay or would be an abuse of the process of the court in some other way; ii. They must satisfy the court that the stay will not cause an injustice to the other party; iii.

They must satisfy the court that the stay is in the best interests of children. Position of the Father and Mother 20 The applicants are represented by separate counsel; however, their arguments are similar. Both argue that the motionsjudge made no error in the exercise of his discretion. Proceeding with the Registry hearing at the same time as the child protectionproceedings gives rise to the possibility of inconsistent findings and would be prejudicial to the applicants. 21 On the other hand, there is no prejudice to ANCR.

The hearing is stayed only until the completion of the childprotection proceedings, which is imminent. Moreover, ANCR delayed initiating proceedings until three and a half years after thedisclosure was made by the child, and there is no evidence that either parent presented any immediate danger to their daughter or anyother children. Since the disclosure was first made, the father has consented to having no contact with his daughter.

What is the Correct Test for a Stay in this Case? 22 By the time this appeal was heard, the child protection proceedings had concluded except for the decision, which hadbeen reserved. Since the decision was still outstanding, the stay was still in place and the matter could not be considered moot. However, any possible prejudice that might have resulted to the applicants by both matters proceeding at the same time has now beenspent. 23 Yet, there remains some confusion as to the appropriate test for a stay in a case of this nature.

ANCR argued that a stayshould be granted only in extraordinary and exceptional circumstances. While the motions judge did not make explicit the test that hewas applying, he seemed to place the onus on ANCR to show that they would be prejudiced by the granting of the stay. 24 A broad power for the court to stay proceedings is granted in The Court of Queen’s Bench Act, C.C.S.M., c.

C280, byvirtue of s. 38, which reads: Stay of proceedings 38 The court, on its own initiative or on motion by a person, whether or not a party, may stay a proceeding on such terms as areconsidered just. 25 In relation to the appropriate criteria for stays of proceedings generally, the leading case of Manitoba (AttorneyGeneral) v. Metropolitan Stores Ltd., (SCC), [1987] 1 S.C.R. 110, held that a stay of proceedings and an interlocutoryinjunction were similar remedies and that (at p. 127): ….

In the absence of a different test prescribed by statute, they have sufficient characteristics in common to be governed by the samerules and the courts have rightly tended to apply to the granting of interlocutory stay the principles which they follow with respect tointerlocutory injunctions …. 26 The Supreme Court of Canada reaffirmed that the same principles applied to the two remedies in the case of RJR–MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, where Sopinka and Cory JJ. wrote (for thecourt) that “[g]enerally, the same principles should be applied by a court whether the remedy sought is an injunction or a stay” (at p.334). 27 Those two cases established the now well-known three-stage test for courts to apply when considering an applicationfor either a stay or an interlocutory injunction. This test originally came from the decision of the House of Lords in American CyanamidCo. v. Ethicon Ltd., [1975] A.C. 396. The stages are:

(1) The applicant must demonstrate a serious question to be tried;

(2) The applicant must demonstrate that they will suffer irreparable harm if the application were refused; and

(3) Where does the balance of convenience lie? The court must determine which of the two parties will suffer the greater harmfrom the granting or refusal of an interlocutory injunction or stay pending a decision on the merits. See also Desautels Creative Printing Papers Inc. v. Printcrafters Inc. (1999), (MB CA), 138 Man.R. (2d) 309(C.A.). 28 Besides s. 38 of The Court of Queen’s Bench Act, C.C.S.M., c. C280, the Queen’s Bench Rules should also beconsidered.

Rule 1.04(1) states: General principle 1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civilproceeding on its merits. 29 There is also Rule 6.01(1), which states: Order 6.01(1) Where two or more proceedings are pending in which, (

a) there is a question of law or fact in common; (

b) the relief claimed arises out of the same transaction or occurrence or series of transactions or occurrences; or (

c) for any other reason an order ought to be made under this rule; the court may order that, (

d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or (

e) any of the proceedings be, (

i) stayed until after the determination of any other of them, or (ii) asserted by way of counterclaim in any other of them. 30 It has been held that the proper test for a stay pursuant to Rule 6.01(1)(e)(

i) is the RJR-MacDonald test. See eMindbizInc. et al. v. Levene et al., 2005 MBQB 38 at paras. 14-18, 191 Man.R. (2d) 304; and Alleyn-Dornn v.

Dornn, 2011 MBQB 117 at para.4. 31 However, in this case, ANCR argued that a stricter test should be applied, one in which the applicant for the stay mustshow “extraordinary or exceptional circumstances” for the stay to be granted. 32 While Metropolitan Stores and RJR-MacDonald set out the general test for the granting of stays of proceedings, it iscorrect that there are other specific circumstances where stays can be granted which require different tests. 33 One such example is the situation where there are concurrent civil and criminal proceedings pending against the sameperson.

Even in such a case, where the liberty of the individual is at stake, there is no automatic stay of civil proceedings while criminalcharges are pending. 34 An example of this situation occurred in Rowe v. Brandon Packers Ltd. et al. (1961), (MB CA), 29D.L.R. (2d) 246 (Man. C.A.), a case relied on by ANCR. In that case, the issue was the adjournment of a petition directing the winding-up of the respondent, Brandon Packers Ltd. The two individuals who owned a substantial majority of the shares in the company werearrested for conspiring to steal money from the company.

They moved to have the petition for winding-up stayed pending thedisposition of the criminal charges against them. The court held that civil proceedings should only be stayed pending disposition ofcriminal charges in extraordinary circumstances. 35 In another case relied upon by ANCR, Pats v. Personal Insurance Co. of Canada, 2001 MBQB 17, 154 Man.R. (2d)188, an insured couple made a claim under their fire insurance policy following a fire at their home. The insurer denied liability,

claiming the insured were involved in starting the fire. The insured brought an action on the policy. Meanwhile, the insured werecharged criminally with arson and fraud in relation to the insurance claim. 36 In his decision, Hanssen J. undertook a detailed analysis of the case law and found that “the weight of authority is tothe effect that even where the stay is being sought by an accused, it should only be granted under ‘extraordinary or exceptionalcircumstances’” (at para. 10). He wrote that (at para. 12): I am satisfied that this stringent test is the appropriate one.

A mere balance of convenience is not a sufficient ground to deprive a citizenof his or her right of access to the courts if the action is otherwise properly brought. The right of access to the court must not be lightlyrefused. …. This is especially so where there is no concern about protection of the accused’s right to a fair trial. 37 The same conflict, between civil and criminal proceedings, was at issue in another case relied upon by ANCR,Schreiber v. Canada (Attorney General) (2001), (ON CA), 57 O.R. (3d) 316 (C.A.), leave to appeal to S.C.C.refused, [2002] S.C.C.A.

No. 74 (QL). 38 The difficulty that I have with ANCR’s reliance on this line of cases is that this case does not involve a criminal trial. The child protection proceedings are civil. The hearing with respect to the entry of the applicants’ names on the Registry, whileobviously of great significance to both the applicants and the public, is conducted in a civil court (the Court of Queen’s Bench (FamilyDivision)) and is decided upon the lesser evidentiary burden of the balance of probabilities. Neither is a criminal proceeding.

Therefore,the “extraordinary or exceptional circumstances” test applied in those cases, and relied upon by ANCR, is distinguishable from the caseat bar. 39 In its argument that a more stringent test for a stay should be applicable, ANCR has also relied on the cases of Sparrowv. New Flyer Industries Ltd. et al., 2004 MBQB 281, 206 Man.R. (2d) 1; and Carriere et al. v. Coseco Insurance Co., 2010 MBQB 63,250 Man.R. (2d) 286. 40 Both of these cases deal with a stay granted pursuant to Rule 21.01(3)(

c) of the Queen’s Bench Rules, which states thata defendant may move before a judge to have an action stayed or dismissed on the ground that: (

c) another proceeding is pending in Manitoba or another jurisdiction between the same parties in respect of the same subject matter. 41 A stay will only be granted under Rule 21.01(3) in the most clear and obvious of cases. The test is that the movingparty must demonstrate that the continuance of the action would work an injustice because it would be oppressive or vexatious to him orwould be an abuse of the process of the court in some other way and the stay must not cause an injustice to the responding party.

Factorsto be considered in determining prejudice or oppression include the likelihood and effect of the two matters proceeding in tandem, in twodifferent forums; the possibility and effect of different results; the potential for double recovery; and the effect of possible delay. SeeSparrow at paras. 42-43 and Carriere at para. 10. 42 The case of Sparrow involved an application for a stay under Queen’s Bench Rule 21.01(3) because another proceedingwas pending between the same parties which raised essentially the same issues.

The employee in that case had filed a complaint with theHuman Rights Commission while at the same time commencing a civil action against his employer. 43 The court in Sparrow, at para. 42, applied the test arising from the case of Varnam v.

Canada (Minister of NationalHealth and Welfare), (FC), [1987] 3 F.C. 185 (T.D.), which stated that the burden of proof was on the defendant toshow that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuseof the process of the court in some other way and that the stay must not cause an injustice to the plaintiff. 44 A similar situation occurred in another case relied on by ANCR, Favor and Favor v.

Winnipeg (City) et al. (1989), (MB CA), 57 Man.R. (2d) 228 (C.A.), where the plaintiff had unsuccessfully challenged the expropriation of land inan earlier proceeding. A new action was then commenced alleging violation of the Canadian Charter of Rights and Freedoms (theCharter). This court dismissed the plaintiff’s action on the basis that it constituted an abuse of process because “the identical questionsought to be raised has been already decided by a competent court” (at para. 6). The validity of the expropriation had already beendecided. The Charter arguments could have been raised in the earlier proceedings.

Their resolution “involves the identical questionsalready decided by this court, albeit with a new approach” (at para. 7). 45 In case at bar, neither the parties nor the subject-matter are the same. JCFS is not a party to the Registry proceedings,and ANCR is not a party to the child protection proceedings. With respect to subject-matter, both the permanent order of guardianshipand the entry of the parents on the applicants are within the jurisdiction of the Court of Queen’s Bench (Family Division) pursuant to ss.41 and 42 of The Court of Queen’s Bench Act.

However, while the abuse alleged may be in relation to the same child and much of theevidence adduced may be similar, the purpose, objective and applicable test in relation to child protection proceedings are all differentthan the hearing in respect of the Registry. 46 In child protection proceedings, the focus is completely on one particular child or children. The court must determinewhether the child was in need of protection at the time of apprehension as well as whether the child continues to be in need of protectionat the time the order is granted.

On the other hand, the overriding purpose of the Registry scheme is to protect children generally. SeeJ.W.F. v. Child and Family Services of Western Manitoba, 2009 MBCA 96 at para. 47, 245 Man.R. (2d) 176. While there may be no

present risk of harm between the child and the alleged abuser, that does not address the issue of protection of other children. 47 Nor does ANCR have to establish that the child continues to be in need of protection as part of the Registry proceedings. It does not need to establish that risk of harm to any child continues to be present. It only needs to establish, on a balance of probabilities, that the individual in question abused a child.

So, while it is very relevant to the child protection proceedings to determine whether the applicants present an immediate danger to their child, it is irrelevant to the Registry hearing. The Decision 48 This case concerns the application of judicial discretion pursuant to s. 38 of The Court of Queen’s Bench Act . There is no question that the granting of a stay is a discretionary decision that should not be interfered with by an appellate court unless the motions judge has erred in law, misapprehended the facts, or the decision itself is so clearly wrong as to amount to an injustice. See Kostic v.

Merrill Lynch Canada Inc. , 2010 MBCA 81 at para. 41 , 258 Man.R. (2d) 125 ; and Hozaima v.

Perry et al. , 2010 MBCA 21 at para. 17 , 251 Man.R. (2d) 148 . 49 In my view, the motions judge erred in law by failing to apply the appropriate test and as a result of this error, appellate intervention is justified. 50 The appropriate test in the circumstances is the American Cyanamid test, as enunciated by the Supreme Court in Metropolitan Stores and RJR-MacDonald , and not the more stringent test urged upon us and the motions judge by ANCR. 51 I do agree with ANCR that, since the fundamental objective of the Registry is the protection of children, the test should be modified to incorporate the consideration of the best interests of children. 52 In a proceeding under the Registry, the Act directs that the interests of children be taken into account.

Section 2(1) of the Act specifies that: Best interests 2(1) The best interests of the child shall be the paramount consideration of the director, an authority, the children’s advocate, an agency and a court in all proceedings under this Act affecting a child, other than proceedings to determine whether a child is in need of protection, and in determining best interests the child’s safety and security shall be the primary considerations. …. 53 To acknowledge the interests of children as part of the test for a stay allows the court to fulfill this statutory direction. Moreover, it is not a difficult adjustment.

As Little J. stated in Dornn (at para. 5 ): To these, a fourth consideration may arise where children’s interests are involved, namely “their best interests”. This may in one sense be nothing more than an acknowledgement that the scope or breadth of the consideration of “irreparable harm” or “balance of convenience” needs to be expanded beyond a consideration of the applicant’s or respondent’s interests alone. …. 54 This court has already held that in child protection proceedings, the test for a stay must be modified to take into account the interests of children.

In Child and Family Services of Western Manitoba v. K.B. et al. , 2006 MBCA 48 , 205 Man.R. (2d) 31 , a chambers motion for the stay of the order of a motions judge in a child protection matter, Freedman J.A. wrote (at para. 28): In a child protection case, such as the present, I am not persuaded that an applicant for a stay must go so far as to establish that the child will suffer irreparable harm if the stay is not granted. In civil litigation, irreparable harm may occur if damages are an inadequate remedy.

That approach is not suitable when the best interests of children, potentially at risk of harm are to be considered. To require that irreparable harm would be suffered would place an unrealistically high burden on a stay applicant such as CFS. More importantly, it would make it difficult to give the child’s best interests appropriate consideration.

Where there are serious allegations of child abuse and inattention to a child’s physical and emotional protective needs, as here, it is enough that the applicant for a stay establish that, on the evidence, there is a reasonably perceivable risk that the child may suffer harm if the stay is not granted. The test designed for stays in the typical civil litigation case requires significant modification, before it is applied in a child protection case. 55 It may be argued that taking the interests of children into account when applying this test is similar to taking into account the interests of the public.

In the RJR-MacDonald case, the court made special note to the effect that (at p. 343): …. Interlocutory injunctions involving a challenge to the constitutional validity of legislation or to the authority of a law enforcement agency

stand on a different footing than ordinary cases involving claims for such relief as between private litigants. The interests of the public, which the agency is created to protect, must be taken into account and weighed in the balance, along with the interests of the private litigants. 56 In this case, the Registry proceedings serve the purpose of protecting children, and protecting the public (see B.W. v. Child and Family Services of Winnipeg , 2009 MBCA 95 at para. 56 , 245 Man.R. (2d) 186 ).

It is open to either the applicant or the respondent to “demonstrate[e] to the court a compelling public interest in the granting or refusal of relief sought” ( RJR-MacDonald at p. 344). Conclusion 57 It is true that one factor to consider was that had both matters been allowed to proceed at the same time there might have been a danger of inconsistent factual findings on the question of whether the applicants or one of them had abused the child. 58 However, at this point in time, while there is a serious question to be tried, I do not see that irreparable harm could result to the applicants by refusing the stay.

Counsel for the mother admitted that the purpose of the stay had been accomplished and no issue of prejudice remained. 59 On the other hand, the public interest in the protection of children could be affected if the stay were continued. The stay was granted without considering the protection of children generally and without placing any restrictions on the applicants ’ contact with children other than their own child.

As well, ANCR is prejudiced in having its access to the court system delayed. 60 The appeal is allowed and the stay is lifted. 61 Despite being the successful party, given that this is a case of first impression, ANCR has indicated that they will not be seeking any order of costs at either level of court. J.A. I agree: J.A. I agree: J.A.