2022 QCCQ 8607, 2022 QCCQ 8607

Protection de la jeunesse — 225798 2022 QCCQ 8607 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-006723-210 DATE: November 2, 2022 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X , born on [...], 2009 Child ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION A Applicant -and- A B Parents ______________________________________________________________________ JUDGMENT

Article 38 of the Youth Protection Act ______________________________________________________________________ WARNING: The Youth Protection Act forbids the publishing or broadcasting of information allowing for a child or the child’s parents to be identified. Any person who contravenes this provision commits an offence and is liable to a fine (sections 9.2, 9.3 and 135 Y.P.A.). Overview [ 1 ] The Director of Youth Protection seeks 9 month protection order, alleging that the child has been the victim of gestures of a sexual nature at the hands of her father and her sister’s fiancé.

Educational neglect is also alleged as a grounds of endangerment. [ 2 ] Among the various protective measures, the Director recommends placement in foster care as well as the supervision of the child’s contacts with her parents and siblings, the whole respecting her expressed wishes. [ 3 ] The parents share the same position. Except for the allegations and measures in regards to the sexual abuse allegations concerning the father, they accept the Director’s evaluation.

On that issue, they choose to not present any contestation and refer to the Court’s appreciation of the evidence. [ 4 ] The child subscribes to the conclusions while asking that the Court render an additional order that she benefit from a psychological follow-up. The parents agree to this conclusion while the Director submits that such is unnecessary considering that the appropriate steps have been undertaken for such services to be put in place. [ 5 ] The Court’s evaluation of the evidence justify the conclusions of the application, as well as the added order regarding mental health services for the child.

The following elements justify this decision. Context [ 6 ] The Director of Youth Protection intervenes as of December 2020 within the application of the multi-sectorial agreement in reason of allegations of the child being the victim of sexual abuse by a third party. [ 7 ] At that time, the child resides with her parents. [ 8 ] On December 10, 2020, the child makes a first police declaration wherein she relates incidents having occurred a few months prior with her older sister’s fiancé, C. [ 9 ] She states that Mr. C exchanges with her through a fake profile on Facebook, under an assumed female name.

After a few exchanges, she receives pictures of a sexual nature with requests that she send similar pictures of herself. She responds with body

part images she procures through the internet.

[ 10 ] Her sister subsequently reveals to her that her fiancé had sent her the messages in an attempt to teach her a lesson in internet use. [ 11 ] It is after this incident that Mr. C would have “ getting in her pants” . [ 12 ] This occurs during a single incident. The child describes being alone in the basement of the family home when he joins her and tries taking her shorts down. She resists. He keeps pushing her and finally puts his penis in her mouth. She pushes him off rapidly. [ 13 ] She is able to give peripheral details and situation herself in time.

At the end of the interview, she states that there are no other problematic issues she needs to divulge. [ 14 ] The evidence shows that the child informs other people of the incident (exhibits D-11 and D-12). [ 15 ] To the caseworker, the parents state to not really believing their daughter’s declaration.

After discussion, they agree to the need to support her and agree to keep their opinions to themselves. [ 16 ] They denounce that their daughter can adopt risky behaviours (sending nude pictures on social media, meeting boys in the park, leaving the house without permission) and can often be oppositional. [ 17 ] They admit ongoing difficulties relating to structure and the enforcement of the rules. The mother says that her struggles with her physical, mental and emotional limits do not allow her the energy to respond to her daughter’s issues.

As for the father, he is little available in reason of his work schedule. [ 18 ] On February 25, 2021, the parents agree to the application of voluntary measures for one year while maintaining the child in her family environment, recognizing the following (exhibit D-4): - That there is a possibility that Mr. C sexually abused X; - That X needs to be protected from Mr.

C to avoid prejudice and from other situations of sexual abuse; - That X can have concerning and inappropriate behaviour on the internet/social media which can put her at risk of future situations of sexual abuse; [ 19 ] The family dynamic remains difficult and oftentimes fraught with conflict. Little improvements occur. [ 20 ] On September 25, 2021, the child runs away from home after a fight with her parents.

She stays with her aunt, where she denounces numerous issues at home, namely having been sexually and physically abused by her father. [ 21 ] Another police interview occurs on October 4, 2021, wherein the child denounces repeated sexual abuse from her father as of the age of about 6 until about 10. [ 22 ] The child gives numerous details, some of which the Court underlines: - Her father starts touching her inappropriately when she is around 6 years old. - There are approximately 4-5 incidents. - Her father tells her to keep it a secret. - He starts by touching her vagina. - Once her sister comes into their bedroom and sees them.

She is suspicious, but her father says they are just talking. - The next time, her dad was again touching her intimate parts. Her sister surprises them and her father says he’s just popping pimples on her inner thigh. - Her sister Y remains suspicious and warns her to tell her if her father touches her, because he had done so to her in the past. - Another incident occurs when she is around 8 years old. They are near her father’s workshop when he pulls down her pants and tried to put his penis inside her. - Another incident occurs when he pushes her on her bed.

His penis is soft and he is usually not able to penetrate her, despite repeated attempts. - When she was ten, he locks them in his workshop and he puts her on the ground and holds her down while he forces sexual intercourse. - She is angry, sad and disgusted by her father’s actions. [ 23 ] She also describes a chronically difficult family dynamic, where conflicts occur regularly and she is subjected to yelling, threats and even to physical interventions from her parents, mostly her mother. [ 24 ] The father is subsequently arrested in relation to numerous counts of sexual misconduct in relation to his two daughters, going back many years (exhibit D-8).

He remains incarcerated since October 2021 and criminal proceedings, pending. [ 25 ] The day following the father’s arrest, the mother admits to the police that she was aware that her spouse had sexually abused

their eldest daughter, but that he had sworn to not repeat the same gestures. She believes her husband has kept his promise and therefore disbelieves the new allegations. [ 26 ] On his initial interview with the caseworker as to the new allegations, the father denies having abused X. He does, however, confirm numerous questionable incidents with sexual components. [ 27 ] As an example, the Court cites the evaluation report of November 2021 (exhibit D-9, p. 3): Mr. B also spoke about a situation during which X came in his bed during the time that the mother was sleeping and started rubbing him.

He tells us he does not remember what happened, but confirms it is possible that he touched her vagina. He also says that although he had his clothes on, there is a possibility his penis came out of his clothes; (…) He denies that there was penetration, but he adds that it is possible that he tried penetrating her. Mr. B specifies that it is not possible that he succeeded penetrating her since he has had erectile problems for years. During the interview, the father said that his daughter provoked him, at a few occasions, by sitting on his penis or rubbing herself on him.

He told us that she would do that when she had something to ask him. The father explained that when something happened, it was when X came to him. He admits that one time, X was “frotting” herself on him, and he “felt it”. [ 28 ] Afterwards, on November 16, 2021, the father admits to the social worker that “ he had inappropriate contact with his daughter and agreed that she should be placed with his sister, Ms. E, for an indefinite period” (exhibit D-5, p. 3 par. 2). [ 29 ] The child continues to reside with her aunt to this day.

She feels more secure and supported in this environment although the reality of her situation can weigh heavy on her. [ 30 ] The child refuses contacts with her father. [ 31 ] She benefits from regular supervised contacts with her mother. Their relationship is complex. The mother can bring up inappropriate subjects and be emotionally overwhelmed. She can tend to make her daughter responsible for the family situation.

The caseworker has to intervene on a regular basis to ensure the adequate nature of their conversations. [ 32 ] The child maintains her versions of events as relates to the sexual abuse allegations concerning her father. [ 33 ] As to Mr. C, during the criminal proceedings, the child retracts her statement, resulting with his acquittal.

She then states that she thought that only the police would know about what she said and had not understood the full impact of the process on her and her family. [ 34 ] Despite this retraction, she repeatedly confirms afterwards her initial declaration as regards to the sexual abuse by Mr. C, position which she maintains to this day. [ 35 ] The mother’s cooperates but such is not ideal.

She can lack transparency as by failing to share important information with the caseworker such as the father’s previous sexual misconduct their oldest daughter Y by the father. [ 36 ] The mother names her intention to have her husband return home after his incarceration as she cannot live without him. She makes this decision fully understanding that her daughter cannot consequently return home.

Analysis and decision [ 37 ] The Court retains convincing evidence of the situations of endangerment alleged by the Director. [ 38 ] The elements retained regarding educational neglect: • There is a lack of structure in the family environment; • The child adopts behavioural issues which are not adequately addressed; • The parents are unable to apply adapted rules and routine to their daughter; • The parents can have inadequate parental responses (yelling, threatening, physical interventions); • The mother is unable to recognize dangers and protect her daughter; [ 39 ] The elements retained regarding sexual abuse: • The child presents a credible version of events, rich in details which she maintains over time. • She divulges the abuse from Mr.

C to other people. • Her retraction concerning Mr. C is circumstantial and punctual. It does not affect the overall reliability of her statements, which she maintains over time. • The child demonstrates behaviours which confirm distress and corroborate trauma. • The child presents sexually inappropriate behaviours (social media). • The father admits to having had inappropriate gestures towards his daughter.

• The father details incidents having occurred with his daughter, which confirm factual elements denounced by her (being surprised by his older daughter and stating to pimple popping, erectile dysfunction, etc.). • The father recognizes contacts of a sexual nature involving his daughter. • The evidence demonstrates allegations of sexual abuse towards the child’s older daughter. [ 40 ] As to the measures to be put in place, the Court endorses these as being the reflection of the evidence and the child’s best interests. [ 41 ] On the litigious issue of a psychological follow-up order, all agree that the child requires services as she is struggling with the events culminating in the situation of endangerment and her subsequent removal from her family environment.

As such, the appropriate referrals have been made and she is now on a prioritized waiting list with the Fondation A. [ 42 ] The Director has been implicated in this situation for a year and the child’s distress remains ongoing. Although the Court is sensitive to the administrative issues and delays in place, her interests dictate that she receive psychological services in a timely manner. [ 43 ] Although specialized services are certainly ideal, comes a time when other options must be explored in order to help the child deal with her situation.

An order ensures that the Director takes the necessary steps to ensure such.

FOR ALL THESE REASONS, THE COURT: [ 44 ] GRANTS the application; [ 45 ] DECLARES that the security and the development of the child are in danger for the following reasons : • neglect on the educational level (article 38b)1)iii) Youth Protection Act ); • sexual abuse (article 38d)1) Youth Protection Act ); [ 46 ] ORDERS that the child be entrusted to a foster family chosen by the Director of Youth Protection A; [ 47 ] ORDERS that the contacts between the child and her mother be following agreement between the parties, in the presence of a third party chosen by the Director and in respect of the child’s desire; [ 48 ] ORDERS that the contacts between the child and her father be following agreement between the parties, in the presence of a third party chosen by the Director, in respect of the child’s desire and following two initial meetings between the father and the caseworker; [ 49 ] AUTHORIZES the lifting partially or completely the supervision of the contacts between the child and her mother following agreement between the parties; [ 50 ] ORDERS that the contacts between the child and her siblings (

x) and (

Y) be in the presence of a third party chosen by the Director, in respect of the child’s desire; [ 51 ] FORBIDS any contact between the child and Mr. C; [ 52 ] ORDERS that the parents report periodically to the Director of Youth Protection on the measures that apply in their own regard or their child’s regard to put an end at the situation in which the security or development of the child is in danger; [ 53 ] ORDERS that the parents take an active

part in the application of the measures ordered, namely that the father participates in a follow-up in relation to sexual delinquency; [ 54 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the child and her family; [ 55 ] ORDERS that the child receive certain health care and health services, namely that she benefit from a psychological follow-up; [ 56 ] ENTRUSTS the situation of the child to the Director of Youth Protection A for the execution of the present judgment; [ 57 ] ALL THESE MEASURES for nine months. __________________________________ BÉATRICE CLÉMENT, J.C.Q. Me Alexandre Germain Attorney for the Applicant Me Annie Girard

Attorney for the mother Me Claudette Morin Attorney for the father Me Stéphanie Castagnier Attorney for the child Date of hearing: October 13, 2022