Director of Child and Family Services (Man.) v. J.T., (2015) 321 Man.R.(2d) 286 (QBFD)

• Judge: Little, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 10, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 321 Man.R.(2d) 286 (QBFD);2015 MBQB 178

CFS v. J.T. (2015), 321 Man.R.(2d) 286 (QBFD)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. NO.023

The Director of Child and Family Services (applicant) v. J.T. (respondent)

The Director of Child and Family Services (applicant) v. D.C. (respondent)

The Director of Child and Family Services (applicant) v. R.S. (respondent)

(CP 14-01-14698; CP 14-01-14718; CP 14-01-14719; 2015 MBQB 178)

Indexed As: Director of Child and Family Services (Man.) v. J.T.

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Little, J.

November 10, 2015.

Summary:

Under s. 19(3) of the Child and Family Services Act (Man.), the Child Abuse Committee determined that each of three accused had abused a child and that the name of each person should be entered in the Child Abuse Registry. All three accused had left Manitoba and police had been unable to locate them. Under the Child Abuse Regulation, a person who was suspected of having abused a child had to be served with a Notice of Opportunity to Provide Information (the first notice) and a Notice of Intended Entry on Child Abuse Registry (the second notice), prior to registration. One of the accused had been served with the first notice before disappearing. The Director sought orders of substitutional service of the first notice on two of the accused and the second notice on the third.

The Manitoba Court of Queen's Bench, Family Division, dismissed the applications on the basis that the court had no jurisdiction to make the orders sought.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction) - [See first Practice - Topic 2525 ].

Infants - Topic 3341

Child abuse - Child abuse register - General (incl. notice) - [See both Practice - Topic 2525 ].

Infants - Topic 6044

Legal proceedings - Jurisdiction - Common law or inherent jurisdiction of courts (parens patriae) - [See first Practice - Topic 2525 ].

Practice - Topic 2525

Service - Substituted service - When available - Under s. 19(3) of the Child and Family Services Act (Man.), the Child Abuse Committee determined that each of three accused had abused a child and that the name of each person should be entered in the Child Abuse Registry - All three accused had left Manitoba and police had been unable to locate them - Under the Child Abuse Regulation, a person who was suspected of having abused a child had to be served with a Notice of Opportunity to Provide Information (the first notice) and a Notice of Intended Entry on Child Abuse Registry (the second notice), prior to registration - One of the accused had been served with the first notice before disappearing - The Director sought orders of substitutional service of the first notice on two of the accused and the second notice on the third - The Manitoba Court of Queen's Bench, Family Division, dismissed the applications on the basis that the court had no jurisdiction to make the orders sought - The legislative intent was clear that, for these notices to be effective, there had to be actual notice or something tantamount to actual notice - This was in keeping with the serious consequences of registration - To make a substitutional service order would or could thwart the legislation's intention - There was no gap in the legislation that could be filled through the court's parens patriae jurisdiction - If there had been a gap, it was for the legislators to fill - See paragraphs 12 to 28.

Practice - Topic 2525

Service - Substituted service - When available - Under s. 19(3) of the Child and Family Services Act (Man.), the Child Abuse Committee determined that each of three accused had abused a child and that the name of each person should be entered in the Child Abuse Registry - All three accused had left Manitoba and police had been unable to locate them - Under the Child Abuse Regulation, a person who was suspected of having abused a child had to be served with a Notice of Opportunity to Provide Information (the first notice) and a Notice of Intended Entry on Child Abuse Registry (the second notice), prior to registration - One of the accused had been served with the first notice before disappearing - The Director sought orders of substitutional service of the first notice on two of the accused and the second notice on the third - The Manitoba Court of Queen's Bench, Family Division, dismissed the applications on the basis that the court had no jurisdiction to make the orders sought - The provisions for substitutional service in the Queen's Bench Rules were not available - There was nothing in the legislation that made either notice part of a court process - "Service" was relief that was granted within a proceeding - Service was not a freestanding claim - Further, once served, the notices would not result in a continued court process, but would most likely result in registration without any effective notice, which would be contrary to the intent of the Act and Regulation - See paragraphs 29 to 35.

Statutes - Topic 513

Interpretation - General principles - Omissions or gaps - [See first Practice - Topic 2525 ].

Cases Noticed:

C.B. v. Director of Child and Family Services (Man.) et al. (2000), 154 Man.R.(2d) 63; 2000 MBQB 215 (Fam. Div.), refd to. [para. 20].

S.J.B. et al. v. Child and Family Services of Winnipeg (2009), 238 Man.R.(2d) 59; 2009 MBQB 12 (Fam. Div.), refd to. [para. 20].

T.D. v. Director of Child and Family Services (2015), 323 Man.R.(2d) 29; 657 W.A.C. 29; 2015 MBCA 74, refd to. [para. 23].

Children's Advocate (Man.) v. Child and Family Services of Western Manitoba et al. (2005), 192 Man.R.(2d) 23; 340 W.A.C. 23; 2005 MBCA 11, refd to. [para. 23].

M.S. v. Child and Family Services of Western Manitoba - see Children's Advocate (Man.) v. Child and Family Services of Western Manitoba et al.

Child and Family Services of Winnipeg v. L.L. and C.L., [1994] 6 W.W.R. 457; 95 Man.R.(2d) 16; 70 W.A.C. 16 (C.A.), refd to. [para. 23].

M.G. v. Director of Child and Family Services (Man.) (2012), 273 Man.R.(2d) 276; 2012 MBQB 7 (Fam. Div.), refd to. [para. 23].

Statutes Noticed:

Child and Family Services Act Regulations (Man.), Child Abuse Reg. 14/99, sect. 11(2), sect. 11(3), sect. 11(4), sect. 11(6) [para. 14]; sect. 14(2), sect. 14(3) [para. 15].

Child Abuse Regulation - see Child and Family Services Act Regulations (Man.).

Counsel:

Alfred Thiessen, for the applicant;

No one appearing for the respondents.

These applications were heard by Little, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on November 10, 2015.