J. IN THE FAMILY COURT OF NOVA SCOTIA Citation: Family and Children’s Services of Yarmouth County v. L.J. 2004 NSFC Date: March 31, 2004 Docket: 04Y030046 Registry: Yarmouth Between: Family and Children’s Services of Yarmouth County Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on December 9, 2008. Publication restriction: Publishers of this case please take note that Section 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94 provides: 94(1) No person shall publish or make public information that has the effect of identifying child who is witness or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child. Judge: The Honourable Judge John D. Comeau, Chief Judge of the Family Court of Nova Scotia Heard: March 10, 2004, in Yarmouth, Nova Scotia Written Decision: March 31, 2004 Counsel: Martin J. Pink, Q.C., for the Applicant Murray R.K. Judge, for the Respondent THE APPLICATION: [2] This is an application brought by the Agency for a finding that the Respondent has abused a child as described in Section 62(a) or (b) or (c) of the Children and Family Services Act. It is for the purpose of entry of the Respondent’s name in the Child Abuse Register. [3] The Complainant born [in 1989], is now fifteen years of age and is in Grade Nine. She has known the Respondent for considerable period of time and has stayed over at his house alone with him. The original connection was her mother’s boyfriend is the Respondent’s nephew. This is how the Complainant got to know him and stay over at his house. [4] The Respondent at the time of this hearing was seventy-seven years of age and he has never been married or lived with woman, just him and his dog. [5] When the Complainant started staying over at the Respondent’s she was eleven or twelve years old and she says they had sexual contact as follows (in the words of the Complainant): He came in the room and found me fooling around with the dog (dog’s penis), and he said, “If you want to play with one, play with mine,” (and she did). He had an erection and then went and cleaned up. OTHER SEXUAL CONTACT: He tried to get his penis in my bum but it did not work so we used liquid detergent but it still did not work. [6] She says that this and other times she was most likely undressed and he had his shirt unbuttoned and pants down to his knees. The attempt at anal intercourse was so she would not get pregnant. [7] Another time (her idea) she sat on the toilet with her legs apart and he stood over her to pee together. [8] During her stays at the Respondent’s home she slept in the bedroom and the Respondent asked her where she wanted him to sleep but she told him she did not care. He would lie down on the bed but never woke up with her in the morning. She thought so much of him that she would do anything for him. [9] These sexual incidents came to light in October, 2002, when the Complainant and her grandfather were watching television program about sexual assault. At this time she confessed what had happened to her grandfather. [10] Consequently and subsequently the Respondent was tried and acquitted of sexual assault in criminal court. [11] Her mother and grandfather confirm that the Complainant told them what had taken place. [12] The Respondent testified that he was lonely, just him and his dog, and the Complainant’s company was great and that she came over almost every weekend. He denies any sexual contact with her. He says she spent lot of time with the dog, and one time he caught her with the dog’s penis out and on top of her. “I told her not to do this because she would ruin the dog.” [13] The first night she came he slept in the same bed as her but only this one time because her mother called and said, “Don’t sleep with her.” [14] The Respondent does admit that the Complainant would grab his crotch on occasion but “I told her this had to stop.” [15] There is evidence that on July 29, 2002, the Respondent was severely beaten by home invader. He was ill for considerable period of time and had three operations. His memory has suffered since and friend would drop by there three to four times day. This witness gives evidence that the Complainant did not visit after this beating (confirmed by the Respondent’s evidence as well). [16] The Complainant says she visited with the Respondent on two occasions after the assault and he was bruised and had bad headaches and was falling lot. Her mother confirms these visits took place. [17] This evidence is relevant according to the Respondent’s Counsel as it goes to the credibility of the Complainant. [18] Whether the Respondent has abused child within the meaning of the Children and Family Services Act. [19] The relevant sections “abuse” defined: 62 In Sections 63 to 66 “abuse” of child by the person means that the child (b) has been sexually abused by the person or by another person where the person, having the care of the child, knows or should know of the possibility of sexual abuse and fails to protect the child; or Child Abuse Register 63(1) The Minister shall establish and maintain Child Abuse Register. Entry of information (2) The Minister shall enter the name of person and such information as is prescribed by the regulations in the Child Abuse Register where (a) the court finds that child is in need of protective services in respect of the person within the meaning of clause (a) or (c) of subsection (2) of Section 22; (b) the person is convicted of an offence against child pursuant to the Criminal Code (Canada) as prescribed in the regulations; or (c) the court makes finding pursuant to subsection (3). Application for finding of abuse (3) The Minister or an agency may apply to the court, upon notice to the person whose name is intended to be entered in the Child Abuse Register, for finding that, on the balance of probabilities, the person has abused child. In camera hearing (4) hearing pursuant to subsection (3) be held in camera except the court may permit any person to be present if the court considers it appropriate. 1990, c. 5, s.63. [20] Although the standard of proof is “on a balance of probabilities” courts have considered the standard of proof elevated with the seriousness of the allegations and its implications (considerably less, however, than proof beyond a reasonable doubt). See MCS v. K.F., 2002, NSSF, 28 (CanLII). [21] In CAS v. R.G., F.H. C92-17 at p. the Court stated: The Court must determine, on balance of probabilities, whether R.G. committed the alleged offence. It is the civil burden of proof. However, given the gravity of the application and its implications, the standard of proof is considered to be high, but not as high as the standard of proof in criminal cases, where the proof must be beyond reasonable doubt. This, although the standard is still the civil standard, considering (a) the nature of the allegation and the moral capability attached thereto and (b) the consequences of finding; that is, publication of the name in the Child Abuse Registry, then the Court must adopt the position that was adopted in J.L. v. CAS of Halifax v. Attorney General of Nova Scotia, 44 R.F.L. (2d) 437. Jones, J.A. discusses extensively the burden of proof at pp. 449 to 451, and specifically states that although the civil rule applies, “... court must have regard to the gravity of the consequences of the finding.” (page 449 to 450) His Lordship goes on to quote Cartwright, J., Laskin, C.J.C., and Lord Dennings. Laskin, C.J.C. in Continental Insurance Company v. Dalton Cartage Company Limited 1982 CanLII 13 (SCC), [1982 S.C.R. 164] refers to “... proof commensurate with the gravity of the allegations ...” Laskin, J. goes on to quote Lord Dennings in Bater v. Bater [1952 All E.R. 458, at p. 459.] It is true by our law there is higher standard of proof in criminal cases than in civil cases but this is subject to the qualification that there is no absolute standard in either case. In criminal cases, the charge must be proved beyond reasonable doubt but there maybe degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous so ought the proof to be clear, so also in civil cases. The case may be proved by preponderance of probability, but there may be degrees of probability within that standard. The degree depends upon the subject matter. civil court, when considering charge of fraud, will naturally require higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high degree as criminal court even when it is considering charge of criminal nature but still it does require degree of probability which is commensurate with the occasion. CONCLUSIONS/DECISION: [22] The Complainant gave specific detailed evidence of sexual relations with the Respondent all of which is denied by him. There are very serious allegations and the Court will consider this within the standard of proof. At the time the sexual contact she describes took place the Complainant was child within the meaning of Section 3(1)(e) of the Act, “a person under sixteen years of age”. [23] In determining whether or not the allegations of the Complainant are probable peripheral evidence should be looked at. [24] The Respondent is now seventy-seven years old and would have been approximately seventy-two or seventy-three at the time of the alleged sexual contact. He lived alone and was very happy to have this little girl visit. The first night she was there he slept on her bed, maybe not all night and not under the covers. This fact came to her mother’s attention and he was told not to do this. [25] He admits seeing her playing with the dog’s penis but instead of telling her how bad this was and reporting it to her mother, he told her not to do this anymore. “It would ruin the dog.” [26] There were occasions, not denied by the Respondent, that she would grab his crotch. He told her this had to stop but there is no evidence that this was reported by him to her mother. This would have been the most reasonable and logical thing to do. [27] The Complainant’s credibility has not been impeached. [28] On “balance of probabilities” the Court finds that the evidence of the Complainant that she was sexually assaulted by the Respondent has more probability of truth than disbelief. [29] The Court finds that the accused has abused a child within the meaning of Section 62(b) of the Children and Family Services Act. John D. Comeau Chief Judge of the Family Court of Nova Scotia
The Agency brought an application for a finding that the Respondent had abused a child, for the purposes of entering his name in the Child Abuse Register. The complainant described certain incidents that amounted to sexual assault when she was under the age of 16. The Respondent had previously been acquitted of charges based on the same allegations in criminal court. The Respondent has abused a child within the meaning of the Act. Although the standard of proof is on the balance of probabilities, it is elevated with the seriousness of the allegations and their implications. However, it is considerably less than proof beyond a reasonable doubt.