T. D. v Director (Child and Family Date:, 2015 MBCA 74

Citation: T. D. v Director (Child and Family Date: 20150805 Services), 2015 MBCA 74 Dockets: AH14-30-08124; AH14-30-08125 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN : T. D. ) K. J. Janovcik and ) A. Thiessen (Applicant) Respondent ) for the Applicant ) ) T.

D. - and - ) on his own behalf ) ) Appeal heard: THE DIRECTOR OF CHILD AND ) May 4, 2015 FAMILY SERVICES ) ) Judgment delivered: (Respondent) Applicant ) August 5, 2015 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 section 75(2) of The Child and Family Services Act , CCSM c C80). On appeal from 2014 MBQB 26 STEEL J.A.

Introduction [ 1 ] The application judge dismissed an application by the Director of Child and Family Services (CFS) under The Child and Family Services Act , CCSM c C80 (the Act ) to have the respondent registered on the Child Abuse Registry (the Registry). [ 2 ] The law that governs this procedure is found at

section 19 of the Act . Section 19(3.7) specifies that there is to be no appeal of the decision of a judge of the Court of Queen’s Bench. It states: 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. [ 3 ] CFS asks this Court to quash that dismissal by way of certiorari because it argues that the application judge committed an error on the face of the record that puts the best interests of children at risk.

The fact that there is no appeal constitutes a gap in the legislation which this Court, it is submitted, can fill by way of its inherent jurisdiction over children, i.e., its parens patriae power.

[4] Can this Court issue certiorari against the decision of the superior court judge in this case? No, it cannot. [5] First, the

section of the Act is clear that there is to be no appeal to our Court from the decision. This Court has dealtwith similar sections in different Acts and has held that similar words are clear and unambiguous. They mean what they say. There is noappeal. [6] Second, an order of certiorari cannot issue against the decision of a superior court judge.

Even if I accepted that sucha prerogative writ could issue against a superior court judge in exceptional circumstances such as the protection of children, I do not seesuch a gap in the legislation here that would justify the exercise of the Court’s parens patriae power. [7] It is true that given the absence of a right of appeal, judgments containing errors of law or errors of fact will beallowed to stand. That is the choice that was made by the legislature when it amended the legislation in 1999 (see SM 1997, c 48 section10, proclaimed in force 15 March 1999).

The legislation trades correctness in all cases for finality in cases where there has been nocriminal conviction on the same facts. That is a policy choice that was within its jurisdiction to make. [8] Various policy reasons underlie a procedure that limits rights of appeal. Correction must always be weighed againstthe principles of finality, cost and proportionality. See Kourtessis v M.N.R., (SCC), [1993] 2 SCR 53 at 70.

In anycase, just because there is a right to review or appeal does not mean that it will always result in a correct decision. [9] In obiter however, I am bound to point out that the application judge made several errors of law in this case. Whetherthose errors affected the final result in the case is a determination I need not, and am not, making. Facts [10] The respondent was alleged to have abused his two nieces sometime between 2002 and 2006. It is alleged that heabused K.E.H. on two occasions and K.A.H. on three occasions.

One occasion of alleged abuse was common to both children, anallegation that the respondent had attempted to enter a hot tub occupied by the children, without his clothes on. While there were otherallegations of abuse, CFS’s arguments on appeal surround, what I will call in these reasons, “the hot tub incident”. [11] The Registry is governed by

section 19 of the Act and the Child Abuse Regulation, Man Reg 14/99 (the Regulation). The respondent received a notice of intent to register his name on the Registry and filed an application opposing CFS’s intent to do so. [12] His opposition to CFS’s intent to register him on the Registry proceeded to trial in the Court of Queen’s Bench. TheQueen’s Bench Family Division was given exclusive jurisdiction over the Registry. As required under the Act, the onus remained uponCFS to prove, on a balance of probabilities, that the respondent had committed abuse, as that term is defined under section 1(1) of theAct: “abuse” means

an act or omission by any person where the act or omission results in (

a) physical injury to the child, (

b) emotional disability of a permanent nature in the child or is likely to result in such a disability, or (

c) sexual exploitation of the child with or without the child’s consent, Decision of the Application Judge [13] CFS called a number of witnesses, including the two girls. The evidence from the girls was inconsistent as to whetherthe respondent actually entered the hot tub and, if he did, whether he was wearing shorts when he entered or if the girls were wearingbathing suits at the time. However, it is clear that something happened that upset the girls. [14] While the respondent was not represented on the appeal, he was represented at the trial.

Several emails written by therespondent touching upon the hot tub incident as well as a police statement were, by consent of counsel, admitted into evidence for theirtruth. In addition, a report from a psychologist was entered into evidence by consent. At the close of CFS’s case, the respondent electednot to call any evidence. [15] In his statement to the police, the respondent admits that the girls bathed with him on one occasion, but denied anysexual abuse occurred.

In the forensic psychological report, it states that: In regards to the allegations of inappropriate sexual behaviour, [the respondent] identified having engaged in inappropriate boundarieswith his nieces (having a bath with them, while wearing shorts), identified this behaviour as wrong and indicated an appreciation of thenegative impact this boundary-breaching behaviour could have on the young girls and their family.

In exploring the incident he acknowledges of bathing with the girls, [the respondent] was able to develop some insights into the factorscontributing to this behaviour, offering that he did this as a means of hurting his wife, whom he was angry with for throwing hisoffending history in his face and because he was angry about the victimization of his son by her brother. [16] Also entered by consent, were several emails sent by the respondent to the girls’ parents explaining the motive behindhis conduct and expressing regret. I cannot express enough the deep reegret [sic] I feel for my

part in this situation. … I was hoping I could have arranged some type ofagreement, where I would have been liable for financial obligations concerning the welfare of certain individuals, but even that looks likeit is not to be. … Anyway, in my twisted mind, I hold you somewhat accountable, as I was not there to protect my sons, and you were. Inmy twisted way, I used this as an excuse to do what I did. I need to be a man and take what is coming to me.

I shouldn’t have tried to lay the blame on your brother, but that is what happens whena person becomes desperate. [W]e end up trying to find scape goats. … I know that this is all my doing, and I’m the reason for thismess. [17] The application judge concluded that (at para 24): The evidence of both [girls] was found to be unreliable, untrustworthy, and thus not credible. This became clear in direct and more so incross-examination.

There were too many inconsistencies to allow any degree of reliability to be established. [18] He made no comment with respect to the documentation submitted by CFS by consent for its truth. He held that therespondent’s name should not be entered on the Registry. [19] As earlier stated, CFS argues that, despite the wording of the

section prohibiting an appeal, where an error on the faceof the record exists, judicial review is available. [20] The error on the face of the record, it is submitted, is the fact that the application judge ignored the admissions by therespondent in the emails and the psychological report that he did bathe with the girls in an inappropriate manner for the purposes ofrevenge. CFS submits that this constitutes sexual exploitation within the definition of the Act. Therefore, it is argued, the applicationjudge misinterpreted the definition of abuse.

Analysis and Decision Is There a Right of Review of Any Kind in this Case? [21] The Court of Appeal is a creature of statute. Its jurisdiction to entertain appeals is derived from statute. Absentstatutory authority, there is no inherent right of appeal. See I.S. v Child and Family Services of Western Manitoba et al. (1993), (MB CA), 83 ManR (2d) 233 at para 7 (CA). [22]

Section 89 of The Court of Queen’s Bench Act, CCSM c C280 (the QB Act) provides the statutory right of appeal inmost cases. It states that an order made in the Queen’s Bench may be appealed to this Court unless otherwise provided by statute. Section 19(3.7) of the Act specifically provides otherwise. Section 19(3.7) does not allow for an appeal from a judicial determination ofwhether abuse occurred.

It states that the determination is final. [23] When legislation uses words that purport to limit review, it is up to the courts to determine whether the words used havefull privative effect, or whether they create a lesser standard of deference. The language must be analyzed having regard to all therelevant provisions as a whole, and the true intention of the legislature. See Macdonell v Quebec (Commission d’accès à l’information),2002 SCC 71 at para 5, [2002] 3 SCR 661. [24] The language in the above

section is clear. This Court has considered similar provisions in the past and has confirmedthat where clear and unambiguous language appears, as in this case, there is no right of appeal. See, for example, Klippenstein vManitoba (Minister of Family Services and Consumer Affairs), 2012 MBCA 78, 284 ManR (2d) 5; and Edison Rental Agency vKlippenstein, 2011 MBCA 14.

[25] While CFS acknowledges that there is no right of appeal in this case, it argues that since the best interests of childrenare at stake here, the legislature could not have intended to leave children without any recourse or protection where errors of law haveoccurred. It submits that it could not have been the intent of the legislature to tolerate or otherwise abide potential judicial error.

That iswhy they have brought this application seeking, not an appeal, but judicial review by way of certiorari. [26] CFS submits that a superior court will always retain “jurisdiction to supervise the legality of actions undertaken bygovernment agents” and to issue a prerogative writ accordingly. That jurisdiction derives from the common law and is an inherent one inthe sense that it does not owe its origin to statute.

See BL Jones, Garner’s Administrative Law, 7th ed (London: Butterworths, 1989) at115. [27] CFS acknowledges that there is much authority for the proposition that certiorari does not lie against a superior courtand that here we are not dealing with the supervision of a government agency, but the decision of a superior court. See Kourtessis andDagenais v Canadian Broadcasting Corp., (SCC), [1994] 3 SCR 835.

However, it maintains that in the case ofKourtessis, La Forest J. in obiter, left open the possibility that certiorari might be a possible remedy against the order of a superior courtwhere there was no other remedy available and the issue was of a constitutional nature.

La Forest J. stated that (at p 90): I leave open the possibility, however, that certiorari might have issued. ... it must not be forgotten that what is alleged here is a breachof a constitutional right which may call for an adaptation of the inherent powers of a superior court to make the procedure conform toconstitutional norms. [28] CFS argues by analogy, that similar to the power of the court to protect the constitution, the court has the power to“adapt” its powers to protect children pursuant to its parens patriae power.

Insulating a decision made under section 19(3.7) fromreview, it is submitted, contravenes the best-interest principle in the Act which is the paramount consideration for all proceedings underthe Act other than proceedings to determine whether a child is in need of protection. Such a situation allows this Court to close the gap inthe legislation through the exercise of its parens patriae power. [29] Leaving aside for the moment CFS’s argument as to jurisdiction of this Court to issue certiorari (the court in Dagenais(at p 865) was very hesitant when considering La Forest J.’s comment in Kourtessis).

I do not see a gap in legislation here that wouldjustify an intervention. [30] I do not deny that this Court, as well as the Court of Queen’s Bench, has overall jurisdiction as parens patriae. SeeChildren’s Aid Society of Winnipeg v N. (1979), (MB CA), 9 RFL (2d) 326 at 331. However, the parens patriaejurisdiction of the court can be resorted to only where the legislature has not assumed the jurisdiction, or if there is a gap in thelegislation that assumes the jurisdiction.

See Beson et al. v Director of Child Welfare (Nfld.), (SCC), [1982] 2 SCR 716;and Garcia Perez v Polet, 2014 MBCA 82 at para 42, 310 ManR (2d) 48. [31] An example of a gap in the legislation in a similar situation arose in Children’s Advocate (Man.) v Child and FamilyServices of Western Manitoba et al., 2005 MBCA 11, 192 ManR (2d) 23. In that case, the appellant was not appealing the factualdetermination by the Queen’s Bench judge that abuse had occurred. Rather, it was appealing the judge’s ruling that the court’s power ofparens patriae was usurped by the Registry regime established under the Act.

This Court held that the sections in the Act, together withthe Regulation, created a complex legislative scheme that governs how and when a person’s name is placed in the Registry and that thereis no gap in the legislation that allows for the operation of the parens patriae jurisdiction of the court. [32] The Court, in that case, did consider the wording of section 19(3.7), but restricted its application to the factualdetermination of abuse.

Although the Court held that it had the jurisdiction to hear the appeal because the appeal did not challenge thefactual determination of abuse, it dismissed the appeal concluding that there was no gap in the legislation. [33] Hamilton J.A. explained (at paras 19, 44): Section 19(3.7) makes it clear that the judge’s decision about whether abuse occurred is “final and not subject to appeal”. In light of thiswording, the Children’s Advocate cannot appeal the factual determination that M.S. abused his sisters. But the Children’s Advocate isnot appealing that finding.

She is appealing the judge’s ruling that the court’s function at the hearing is limited to this factualdetermination. She raises issues of statutory

interpretation. But an express limit on the court’s role is not a silence or gap in the legislation. To the contrary, it is an expression of the legislature’sintention. The registry regime provides a complete response to what is to occur in these circumstances. [34] In this case, CFS is trying to do exactly what Hamilton J.A. said they could not do in the Children’s Advocate case,appeal the judge’s factual determination as to whether abuse occurred.

Moreover, it should be noted that the scheme in regard to theRegistry requires automatic registration where there is a finding of guilt in a criminal court whether in or outside of Manitoba. So, thefinality of adjudication would occur only in situations where there were no criminal charges involved. In such situations, it is reasonablefor the legislature to have chosen finality and proportionality and to have restricted the right of appeal. [35] Although this Court has no jurisdiction to hear the appeal, I wish to make some remarks by way of obiter with respect to

several comments made by the application judge in his reasons. [36] By virtue of section 19(3.6), CFS carried the legal burden to prove that abuse had occurred on the balance ofprobabilities. In his reasons, the application judge made two statements with respect to the burden of proof in a civil case and the natureof “on the balance of probabilities”. The first he made at the beginning of his reasons as follows (at para 6): The quality of evidence and the need and requirement that the court examine it and weighs the evidence very carefully arises from adecision of Lord Denning in Bater v.

Bater, [1950] 2 ALL E.R. 458 (Eng. C.A.), at p. 459: The difference of opinion which has been evoked about the standard of proof in these cases may well turn out to be more a matter ofwords than anything else. It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this issubject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyondreasonable doubt, but there may be degrees of proof within that standard.

Many great judges have said that, in proportion as the crime isenormous, so ought the proof to be clear. So also in civil cases. The case may be proved by a preponderance of probability, but theremay be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a chargeof fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence wereestablished.

It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still itdoes require a degree of probability which is commensurate with the occasion. .... [37] Second, at the close of his reasons he stated (at para 27): Secondly, the onus is on the Agency to prove on a balance of probabilities, I mention the onus again as it is not enough for the Agency tosimply put in a prima facie case. [38] Both of these statements are incorrect.

The quote used by the application judge at the beginning of his reasons mayhave been correct at one point in time, but it is now settled law that a more dire consequence does not call for a more rigorous applicationof the balance of probabilities test. [39] That is true in any civil case, but that point has been made in particular with respect to Child Abuse Registryproceedings in the case of S.J.B. et al. v Child and Family Services of Winnipeg, 2009 MBQB 12, 238 ManR (2d) 59 (Fam Div) (at para41): The issue of whether the standard of proof in civil cases involving allegations of moral misconduct or cases involving dire consequencesimpose a higher standard of proof than the standard applied in other civil cases which do not involve such allegations was resolved inF.H. v.

McDougall, 2008 SCC 53 , [2008] S.C.J. No. 54; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53. In thatcase, which involved an allegation of sexual abuse against a child, Rothstein, J., stated: 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. ... [40] With respect to his second statement, if all that remained at the close of evidence was a prima facie case, then, given thelack of any evidence called by the respondent, the balance of probabilities test would have been met. See Child and Family Services ofWestern Manitoba v S.L. et al., 2008 MBQB 287 at para 19, 233 ManR (2d) 287 (Fam Div). [41] Only if the application judge felt that CFS had not even presented a prima facie case could he have concluded that CFShad not met the onus of proving its case on a balance of probabilities.

I presume that is the conclusion he reached, since he held earlierin his reasons (at para 23): “After reading the various quotes and considering the evidence it is clear to this court that the Agency, whohas the onus to prove on a balance of probabilities, has failed to do so significantly on all counts.” [42] The last obiter comment I will make relates to the sufficiency of the application judge’s reasons.

At trial, CFS arguedthat even if all of the other evidence, including the testimony of the girls, were rejected by the application judge, the admissions of therespondent alone contained in the emails and the psychological report, admitted for their truth, were sufficient to warrant a finding thatabuse, in the form of sexual exploitation, had occurred with respect to the “hot tub incident”. [43] CFS submitted that while activities such as prostitution and pornography were more typically tied to sexualexploitation, the fundamental definition of sexual exploitation allows for a much broader and robust understanding.

It submitted thatsexual exploitation could include a sexually manipulative act that has caused or could cause serious emotional injury. In fact, CFS

submits that sexual exploitation will have occurred anytime a child’s sexual integrity is compromised for another individual’s benefit.

CFS argued that sexual exploitation is not limited to a situation of pecuniary gain or sexual gratification. [44] In the case at bar, CFS argued that the respondent had sexually exploited the children when he placed them in asexually compromised situation for his own inappropriate purposes, i.e., to obtain revenge and that he did so fully aware of, or willfullyblind to, the adverse consequences of his actions on the well-being of the children. [45] Nowhere in his reasons does the application judge refer to this argument in any way or to the evidence CFS relied on asthe basis for this argument.

Just as a judge is not required to refer to every piece of evidence, a judge is not required to refer to everylegal argument raised in a case, if he does not feel it has any merit.

However, this was a fundamental submission by CFS as to themeaning of abuse as it applied to evidence that was not disputed – the emails of the respondent, his statement to the police and thepsychological report. [46] This was a situation where one would have expected the application judge to say something regarding the impact of theadmissions on the question of abuse and/or what, if any, threshold or test was considered to determine whether the respondent hadengaged in sexual exploitation.

It may be that, although the evidence would indicate that the respondent was regretful for some sort ofbathing incident, the application judge did not feel that the evidence sufficiently established the nature of the incident, other than therespondent was sorry the girls were upset. It may be that the application judge did not accept the broad definition of sexual exploitationurged upon him by CFS. We will never know.

The application judge made no mention in his reasons as to how the admissions of therespondent were reconciled against the evidence of the girls. [47] Where there is material, relevant and uncontested evidence that goes to the root of a case and the legal argumentpresented, one would have expected the application judge to explain why he rejected it. I do not regard his lack of comment on this issueas a precedent that precludes CFS from raising the argument again in an appropriate case.

Costs [48] The application judge ordered costs against CFS at trial. [49] CFS submits that barring exceptional circumstances, costs should not be awarded against it in proceedings under the Actso long as CFS acted reasonably and in good faith in the pursuance of its statutory mandate, regardless of the ultimate result of thelitigation. See Child and Family Services of Winnipeg v A.M.H. et al., (MB CA), 2002 MBCA 8 at para 12, 163ManR (2d) 69.

In fact, CFS, upon receiving a report pursuant to section 19(3.2) of the Act, had no discretion but to pursue the matter totrial. [50] Consequently, it remains unclear why the application judge awarded costs against CFS, especially in view of the factthat there were no submissions made in front of him as to the issue of costs and his reasons disclose no exceptional circumstances whichwould justify the award of costs.

His only reference to the award of costs was the statement that, “the [respondent] will have his costsand if counsel cannot agree on the quantum, they can set time to argue the same” (at para 29). [51] I agree with CFS that costs against it should be awarded only in exceptional circumstances where it acted improperly. See Director of Child and Family Services (Man.) v A.C., 2008 MBCA 18 at para 42, 228 ManR (2d) 18.

As Hamilton J.A. explained inB.W. v Child and Family Services of Winnipeg, 2009 MBCA 95, 245 ManR (2d) 186 (at para 72): Costs are rarely awarded against an agency because it is performing its public duties.

In Child and Family Services of Winnipeg v.A.M.H. et al. (2002), (MB CA), 163 Man.R. (2d) 69; 269 W.A.C. 69; 2002 MBCA 8, Huband, J.A., in setting asidean award of costs against an agency, wrote that (at para.12): “So long as the Agency acts reasonably and in good faith, it should not have costs assessed against it regardless of the ultimate result ofthe litigation. …” [52] However, having found that this Court has no jurisdiction either by way of appeal or judicial review to review thesubstantive decision of the application judge, can we interfere with his order as to costs? [53] There are not many relevant cases on this point, but generally, where the main appeal has failed for want of jurisdiction,costs appeals have been characterized as contingent thereon and deemed insusceptible to appellate review.

For example, R v Pawlowski(M.) (1993), (ON CA), 61 OAC 276, leave to appeal to SCC dismissed, [1993] SCCA No 187 (QL), involved anappeal by the Crown as to a cost order made in an application by the Crown under section 709(1)(

b) of the Criminal Code for theappointment of a commissioner to take the evidence of witnesses who were out of Canada. The court dismissed the appeal finding that,since the court did not have the jurisdiction to entertain an appeal from an order under

section 709, neither could it entertain an appealwith respect to the related costs order (at para 12): “The order … for costs was integral to it and was therefore also an order in thatproceeding.” [54] At a minimum, CFS would have required leave to appeal the costs order by itself. The jurisprudence is fairly clear thatwhere the main appeal fails for another reason besides lack of jurisdiction, leave to appeal the costs award is generally required. Seesection 90(1) of the QB Act; Carpenter et al. v Folster (1999), (MB CA), 134 ManR (2d) 277 (CA); and Cameron vJulien (1957), (ON CA), 9 DLR (2d) 460 at 469 (Ont CA).

[55] There are some cases which suggest that leave to appeal may not be required where the trial judge awarded costs on thebasis of a wrong principle. See, for example, Western Trust Co. v Canadian Northern R. Co. (1919), (SK CA), 49DLR 668 at 672 (Sask CA); and Rockwell Developments Ltd. v Newtonbrook Plaza Ltd., (ON CA), [1972] 3 OR 199 at207 (CA). [56] In Manitoba, in the case of Bjorninen v Mercredi (1984), (MB CA), 27 ManR (2d) 67 (CA), thedefendant cross-appealed, without leave, from an award of solicitor-client costs.

While the court acknowledged that generally an orderof costs is not appealable in the absence of leave, it also held that there was an exception where the judge proceeded on a wrongprinciple (see para 8). In that case, the appeal as to costs arose as a cross-appeal as opposed to the main appeal being dismissed for lackof jurisdiction. [57] I do not know whether the application judge here proceeded based on a wrong principle. I acknowledge that it istroubling that the application judge, in his reasons, gives no indication as to why this is an exceptional circumstance that would justifythe award of costs.

However, considering that the main appeal has failed because of lack of jurisdiction, CFS has not obtained leave andthe respondent was not represented by counsel upon appeal, I would dismiss the appeal as to costs as well. J.A. I agree: J.A. I agree: J.A.