M.H. v. Nova Scotia (Minister of Community Services),

• Jurisdiction: Nova Scotia
• Judge: Milner
• Neutral Citation: 1993 NSFC 1
• Date: 02 December 1992
• Court: Specific Claims Tribunal

M.H. v. N.S. (1993), 275 N.S.R.(2d) 1 (FC);

    877 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. MR.019

M.H. (applicant) v. The Minister of Community Services (respondent)

(F.Y. 92Y0129; 1993 NSFC 1)

Indexed As: M.H. v. Nova Scotia (Minister of Community Services)

Nova Scotia Family Court

Milner, J.F.C.

January 20, 1993.

Summary:

M.H. was convicted of an assault that was committed against a 13 year old child. As a result, M.H.'s name was entered on the Child Abuse Register. M.H. applied to have his name removed from the Register.

The Nova Scotia Family Court allowed the application.

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. This case is being reported at this time as it was not received at Maritime Law Book when it was originally issued by the court.

Infants - Topic 3344

Child abuse - Child abuse register - Striking recording from register - In allowing M.H.'s application to have his name removed from the Child Abuse Register, the Nova Scotia Family Court discussed the definition of the phrase "risk to children" as found in s. 64(2) of the Children and Family Services Act - Under s. 64(2), a person's name could be removed from the Child Abuse Register where the court was satisfied that the person did not pose a "risk to children" - While there was no definition of "risk to children" in s. 64, the Legislature must have intended the meaning to be the same as the risk defined in s. 22, i.e., "substantial risk" or "a real chance of danger that is apparent on the evidence" - It would be inconsistent to interpret "risk" as the "possibility" of harm - Such an interpretation would place an unfair and excessive onus on the applicant - See paragraphs 30 to 32.

Infants - Topic 3344

Child abuse - Child abuse register - Striking recording from register - In allowing M.H.'s application to have his name removed from the Child Abuse Register, the Nova Scotia Family Court discussed the presumption of abuse in s. 63(2) of the Children and Family Services Act - Each entry on the Child Abuse Register resulted from a judicial finding in one of the three different situations specified in s. 63(2) - An entry under s. 63(2)(a) or 63(2)(c) resulted from a specific finding that the person had abused a child - Under s. 63(2)(b), however, an entry resulted from a person being convicted of an offence against a child - In providing that the name of such a person be automatically placed on the Child Abuse Register, the Legislature had created a presumption that the person had abused a child within the meaning of s. 62 of the Act - Any legal presumption could be rebutted - The onus of doing so was on the person against whom the presumption operated - Therefore, the court should allow such an applicant considerable scope in leading evidence about the conviction's circumstances - Here, M.H. called the child involved as a witness in order to prove that the child had not suffered physical or emotional harm - Because there was no presumption of abuse in entries on the Child Abuse Register occurring under s. 63(2)(a) or 63(2)(b), the court should not permit the circumstances of the abuse finding to be revisited in an application to remove the person's name - In those circumstances, the applicant's emphasis should be on changes that had occurred since the abuse finding - See paragraphs 33 to 42.

Infants - Topic 3344

Child abuse - Child abuse register - Striking recording from register - In an attempt at discipline for unsuitable language, M.H. forced the 13 year old son of his common law partner into a washroom where M.H. washed the child's mouth with soap - M.H. was convicted of assaulting the child - As a result, M.H.'s name was entered on the Child Abuse Register - M.H. applied to have his name removed - The Nova Scotia Family Court allowed the application - The child had suffered some physical harm (a headache following the incident) - Therefore, M.H. had failed to rebut the presumption of abuse established in s. 63(2)(b) of the Children and Family Services Act - His name could not be removed without further consideration of the circumstances - The assault was a relatively minor one - This was not meant to condone the use of excessive force in the discipline of a child - However, it was relevant to examine the degree of the assault in assessing whether M.H. posed a "risk to children" - The assault took place over a year previously in the context of a stressful family relationship that no longer existed - M.H. had a good and loving relationship with other children - The assault was an isolated event and not part of a pattern of violence - M.H. did not intend to physically harm the child - As he did not pose a risk to children, M.H.'s name was to be removed from the Child Abuse Register - See paragraphs 48 to 56.

Infants - Topic 3349

Child abuse - Child abuse register - Evidence and proof - [See second Infants - Topic 3344 ].

Words and Phrases

Risk to children - The Nova Scotia Family Court discussed the definition of the phrase "risk to children" as found in s. 64(2) of the Children and Family Services Act, S.N.S. 1990, c. 5 - See paragraphs 30 to 32.

Cases Noticed:

W.L. v. Nova Scotia (Minister of Community Services) (1990), 101 N.S.R.(2d) 181; 275 A.P.R. 181 (Fam. Ct.), refd to. [para. 25].

D.M.E. v. Nova Scotia (Minister of Social Services) (1987), 80 N.S.R.(2d) 46; 200 A.P.R. 46 (Fam. Ct.), refd to. [para. 25].

H.(P.) v. H. (1985), 72 N.S.R.(2d) 104; 173 A.P.R. 104 (S.C.), agreed with [para. 47].

Statutes Noticed:

Children and Family Services Act, S.N.S. 1990, c. 5, sect. 62 [para. 7]; sect. 63 [para. 5]; sect. 64(2) [para. 9].

Counsel:

M.H., the applicant, representing himself;

Reinhold M. Endres, Q.C., for the respondent.

This application was heard at Yarmouth, Nova Scotia, on December 2, 1992, by Milner, J.F.C., of the Nova Scotia Family Court, who delivered the following decision on January 20, 1993.