2022 QCCQ 14429, 2022 QCCQ 14429

Protection de la jeunesse — 229081 2022 QCCQ 14429 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 640-41-002788-229 DATE: August 26, 2022 (written judgment rendered on August 31, 2022) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2010 [SOCIAL WORKER 1] & [SOCIAL WORKER 2], Youth Protection workers, duly authorized by the Director of Youth Protection A Applicants and A Mother and B Interested party ______________________________________________________________________ JUDGMENT (Section 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.). [ 1 ] The Director of Youth Protection (DYP) asks the Court to declare that the security and development of the adolescent X, born on [...], 2010, are endangered under paragraphs (b) (2), (e) (2) and (

f) of

section 38 [1] of the Youth Protection Act . [ 2 ] Firstly, the DYP asked that the youth be entrusted to his mother at the exclusion of Mr. B. A few days before the hearing, new events happened that led the DYP to modify her recommendations. The DYP asks now that the youth be entrusted to a rehabilitation centre. Position of the Parties [ 3 ] The mother is present and represented by Me Alexander Grey. She recognizes that the security and development of her child are endangered under

section 38 (f), but not under 38 (b) (2) nor (e) (2). She disagrees with the measures. She asks that the youth remain with his parents. [ 4 ] Mr. B, declared as an interested party, is present and represented by Me Alexander Grey. He has the same position as the mother. [ 5 ] The youth is absent, but represented by Me Michael Pereira. Despite numerous attempts, Me Pereira had not been able to have a discussion with X for various reasons. Considering the situation, Me Pereira declared to the Court that he acts under a legal mandate. After hearing the evidence, Me Pereira submits to the Court that the situation of the youth should be declared endangered only under

section 38 (

f) and that the evidence does not permit concluding to a situation of endangerment under the other grounds. Regarding the measures, Me Pereira submits that the best interest of the youth requires that he be maintained with his parents, with various measures. Facts [ 6 ] X is 12 years old. He is the son of Ms. A and Mr. B, but Mr. B is undeclared on the birth certificate, he was given the status of an interested party with the consent of everyone. [ 7 ] X lived all his life with his parents in the village A. His father is the boss of the grocery store.

The mother is a court worker. [ 8 ] The situation of the youth had never been reported to the DYP until March 2022. At that period, the family situation started to be tense, the parents spoke about separation and the youth started to displays worrisome behaviours, mostly at school. [ 9 ] Some measures were put in place by the school staff to avoid an escalation of the situation. The parents and the school agreed

to communicate with the father as soon as an intervention would be needed and the father committed to come at school to address the situation with his child immediately. [ 10 ] The behaviours reported, were regarding a non-respect of the authority and aggressiveness toward his peers and the school personnel. The parents admit those facts and recognize that they regularly received phone calls from the school about difficult behaviours.

Also, the parents admit being overwhelmed with the situation and about the fact that the youth need more support. [ 11 ] Moreover, the youth disclosed that his father would have been violent toward him which is totally denied by Mr. B. The youth also mentioned that his parents consume alcohol and that they are violent when they are under the influence. The youth appeared very distressed about the situation.

He had suicidal ideation and also homicidal ideation about his father, the police officer and the DYP workers. [ 12 ] In May, due to the escalation of the behaviours, the DYP took an immediate protective measure and entrusted the youth to the [Group A]. The youth immediately ran away and came back at his parents’ place.

At that moment, the parents were very frustrated with the DYP’s intervention and did not facilitate the DYP research. [ 13 ] After having locate the youth, and considering his suicidal ideation, he was brought up at the nursing and the doctor ordered that he be put in an isolation room until being medevaced to Town A. He remained in this isolation room for 4 hours before taking his plane under high supervision.

Once in Town A, he was hospitalized for a few days before being transferred to the [Group A]. [ 14 ] In June, the Court rendered a first provisional measure and ordered that the youth be entrusted back under his mother’s care at the exclusion of the father, but authorized the youth to have contacts with his father in the presence of a third party authorized by the DYP.

Those contacts never happened because the person suggested by the parents to act as a supervisor were not assessed by the DYP. [ 15 ] The parents testify that the youth had been deeply affected by the lack of contacts between him and his father. [ 16 ] Except of this absence of contact, everything went well until the week before the hearing under the application for protection initially

schedule for August 10, 2022. During that week, the youth displayed again very worrisome behaviours. He went into important crisis, and it had been very difficult to calm him down. This serious situation brought the DYP to change her recommendation the day of the hearing and asked for a placement in a rehabilitation centre. [ 17 ] That same day, the Court proceeds on a hearing on provisional measures to give time to the party to be ready considering the change of orientation.

As everyone declared to be ready on August 16, 2022, instead of December 2022, to proceed on the merit, the decision of provisional measures only covered a weekend. The Court maintained the youth with his mother and authorized the contacts with his father and his mother at the same time as long as a third party chosen by the Court would be present. This weekend went very well and the parents testify it has been a long time since they have seen their son so happy. Analysis 1. The situation of endangerment

a) The serious behavioural disturbances [ 18 ] According to

section 38 (f), the serious behavioural disturbance refers to a situation in which a child behave in such a way as to repeatedly or seriously undermine the child’s or others’ physical or psychological integrity, and the child’s parents fail to take the necessary steps to put an end to the situation […]. [ 19 ] The parties recognized that the youth put himself in danger in such a way. Indeed, he displayed suicidal ideation and distress, he went into serious crisis, he ran away, and he adopted disruptive behaviours at school. [ 20 ] Considering the evidence, and the recognizance from the parties, the Court concludes that the situation of the youth is endangered under that ground.

b) The serious risk of physical abuse [ 21 ] This ground of endangerment refers to a situation in which the child runs a serious risk of becoming the victim of bodily injury or being subjected to unreasonable methods of upbringing by his parents […]. [ 22 ] As for any other grounds of endangerment, to conclude to such situation, the Court has to consider the non-exhaustive criteria listed at

section 38.2: - The nature, gravity, persistence and frequency of the facts reported; - The child’s age and personal characteristics; - The capacity and the will of the parents to put an end to the situation in which the security and development of the child is in danger; - The community resources available to help the child and the child’s parents. [ 23 ] The DYP worker testifies that the youth had disclosed being a victim of physical abuse from Mr. B.

The youth had described 3 different events: the one with the skidoo, the one involving a knife and the other one at school. [ 24 ] The application, as filed at the beginning, alleged that the situation of the youth would be endangered due to physical abuse caused by Mr. B. After 2 hearings under application for provisional measures and just before the hearing on the merit, the DYP modified her conclusions and asked that the situation of the youth be declared endangered not under (e) 1, but under (e) 2. The DYP explains this

modification by the fact that no direct evidence could be provided to the Court. [ 25 ] Indeed, the youth has not been requested to testify on the 3 events. Regarding the last one at school, only one witness would have been present, but this person clearly expressed that he or she does not want to be involved in judicial proceedings and refused to make a statement. [ 26 ] The Court reminds that the youth is 12 years old. According to

section 85.1 YPA, the youth is presumed to be competent to testify and nobody raised any concerns about that. [ 27 ] Also, the youth had not been dispensed to testify as no request had been made. [ 28 ] Considering that the youth is competent and not dispense to testify, no indirect evidence could be brought to the Court. In that sense, the version of the facts given by the DYP worker in her testimony is inadmissible to prove the physical abuse. [ 29 ] But does the Court could accept such evidence to prove a serious risk of physical abuse?

Considering the total absence of other elements, the Court cannot base her decision on an inadmissible evidence. [ 30 ] The Court shares the comment of Justice Louisa L.

Arcand, J.C.S. mentioning that “to conclude that a risk is serious, it must exist a factual element on which we can seriously draw a conclusion” [2] (our translation). [ 31 ] Seating in appeal, Justice Arcand concludes, by applying such criteria, that the first judge did not impose to the DYP the evidence of physical abuse in a situation where only risk had been alleged. [ 32 ] The Court reminds that the Youth Protection Act is an emergency law and the intervention of the Government in a family situation should be the exception.

For that reason, and considering the civil standard of proof, the Court cannot accept evidence below the balance of probabilities even if we are speaking about a risk, which by definition, did not happen yet. [ 33 ] Also, the jurisprudence establishes that the “tribunal cannot liberally decide, under the pretext of willing to protect a vulnerable child, to compensate for the absence of evidence of the existence of serious risk […] [3] (our translation). [ 34 ] Mr. B testified about those events and confirmed that such events happened, but not as described by X to the DYP worker. For all those events, Mr.

B justifies his intervention by a question of security. Regarding the skidoo, X would have taken the keys and had driven the skidoo in the village knowing that he is prohibited by his father to do so. As soon as Mr. B heard the skidoo, he intervened and stopped X. [ 35 ] Regarding the event with a knife, X was playing with a friend and was manipulating a knife in a dangerous way. Mr. B intervened again, took the knife and explain to him the danger of acting like that. [ 36 ] Finally, regarding the event at school, Mr. B had been called by the school staff because X went into crisis. Mr.

B came at school and tried to calm him down without success. [ 37 ] That is the non-contested evidence brought to the Court. All those interventions made by Mr. B were reasonable. The non- intervention would have been unreasonable and would have been a possible situation of neglect in terms of supervision from the father. [ 38 ] The Court is convinced that X did not appreciate the intervention of his father at that time.

But the fact that he did not appreciate cannot bring the Court to conclude to a risk of physical abuse. [ 39 ] The DYP worker repeated many times that she has to trust a child disclosing that his father or mother is physically aggressive toward him, moreover, when this disclosure is accompanied by so much distress. She is true to say that. It is indeed the role of the DYP. It is her role to understand the situation to be able to properly protect the youth.

And not doing that could bring to a potential situation of encroachment of rights. [ 40 ] On her side, the Court has to take into consideration the evidence provided according to the rules of evidence, the whole beyond the perception of everyone.

c) The serious risk of neglect [ 41 ] This ground of endangerment is described as a situation in which there is a serious risk that a child’s parents are not providing for the child’s basic needs in the manner referred to in subparagraph 1 (neglect in terms of basic needs, in terms of medical needs, in terms of education and supervision). [ 42 ] The DYP worker confirms that the parents fulfill all the needs of the youth and that they have no alcohol consumption issues, but considering their occasional consumption and the reaction of the youth to such consumption, the youth is in a situation of risk to be neglected. [ 43 ] As for the previous ground, the legislator used the word “serious” to qualify the risk.

And as before, the criteria listed at

section 38.2 have to be considered. [ 44 ] The DYP does not consider that the parents have an alcohol consumption issues. The Court concurs to such conclusion. They occasionally consume, but this consumption is under control. [ 45 ] The Court also agrees with the DYP saying that the youth strongly react when his parents consume. The parents also acknowledge that fact, they did not consume in the presence of the youth since it had been ordered in June, and they commit to totally stop drinking.

[ 46 ] The Court cannot conclude to a serious risk of neglect by the only fact that a child reacts strongly to his parent’s alcohol consumption.

Doing so, the situation will not be declared compromised under that ground. [ 47 ] In conclusion, the Court will conclude that the situation of the youth is endangered due to the serious behavioural disturbance, but not under the other alleged grounds. [ 48 ] Before discussing about the measures, it is important to say a few words about the reasons why X could have such behaviours. [ 49 ] It had already been mentioned that X react strongly to his parent’s alcohol consumption. He was also deeply affected by his parent’s separation process and seemed to be very angry with his father for such separation.

The school also seemed to be a trigger for him, as well as the DYP intervention. On that aspect, the mother lengthy described the DYP’s intervention made last June. Even if the intervention of the DYP could be understandable, it is obvious that in the eyes of a 12-year-old boy, it could have been traumatizing. The youth associates the Court process, the presence of a lawyer for him and the different postponements and all those aspects generate a lot of stress. He expressed that stress in a very worrisome way and his emotional state has to be seriously considered. 2.

The measures [ 50 ] As for the measures, the DYP recommends a placement in a rehabilitation centre to give him the opportunity to evolve in a neutral environment, surrounded all the time by educators able to support him and to give him tools to express his emotion in a healthy way. [ 51 ] The parents and the youth disagree with such placement, the Court also. [ 52 ] The placement in a rehabilitation centre is an exceptional measure. It had already been applied for a few days for this youth.

It is true to say that once transferred in Town B, he adapted well to this environment. [ 53 ] But the question is not to know if he had adapted well or if he would adapt again well. The question is to know if such measure is in his best interest, if it would be adapted to his needs and if it put an end to the situation of endangerment. [ 54 ] The evidence shows that the youth is very close to his parents. He had been very affected by his parent’s separation discussed since March 2022. He has also been affected by the absence of contacts with his father during the provisional measures.

He is used to going on the land with him to practise various outdoor activities. He missed those moments. [ 55 ] In June, the DYP had to entrust him to a Group Home in another community because, when entrusted in the [Group A], he ran away to go back to his parents. Today, the DYP is still of the opinion that he would run away again if he was entrusted in the same village as his parents. [ 56 ] The Court considers that being far from his parents would be detrimental for him.

He would probably adapt to his environment as he did in June, but such adaptation does not guarantee that he would be emotionally available to open up with the educators about his emotions. We all know his perception about the DYP services, and the time needed to change this perception will not be used to work on the real issues. Doing so, a longer period of placement should be anticipated which is absolutely not in his interest.

The DYP is not looking for a long period, but the Court is of the opinion that the suggested duration does not consider the delay for the youth to open up. [ 57 ] The parents were also very shaken by the whole situation. Their perception of the situation evolved a lot since the beginning of the file.

Despite being very frustrated by the DYP’s intervention, they were able to accept the help provided by the Social Services, they respected the conditions given by the Court and they progressively recognized their role in the whole situation. [ 58 ] The parents thought about their separation and realized that it was not their real desire. They are together for 20 years, they love each other and they love their son.

They realized that their difficulties will not be solved by their separation, but moreover, they realized that it would be more beneficial to support each other as they did in the past and to face the difficulties together. [ 59 ] At the second hearing on provisional measures, the Court mentioned to the parents that they are 2 hard workers, they both have stress full jobs, they travelled a lot for their job and they progressively forgot themselves.

By forgetting themselves, they forgot their son and the so important values they had transmitted to him. [ 60 ] The parents had realized that and took steps to come back to a healthier way of life. The father commits to take more free time from his job and to practise more sports and outdoor activities with his son.

The mother spoke with her supervisor and was able to reduce the frequency of her travelling for work purposes. [ 61 ] It is exactly what the youth wants, but he was unable to express himself. [ 62 ] The parents being reunited and more emotionally and physically available, an important part of the issue will be resolved. [ 63 ] Now it remains certain aspects that will have to be addressed. The youth suffered from the whole family situation and will have to be reassured about the change made by the parents.

They will have the responsibility to recognize in front of him the situation in which they put him and will have to demonstrate a high level of understanding about their child’s feelings. [ 64 ] On his side, the youth will have to be guided by external services such as the Social Services, school counsellor and behavioural technician to learn how to express his emotion in a healthy way. [ 65 ] The Social Services of [Group A] are already involved in the family situation. The parents and the youth met with a social worker. The relation was good with this lady.

A few weeks later, another one arrives and the trust was not there. Also, the father had an accident which forced him to stay at home. The Court reiterates the importance to attend such meetings even if the social worker of their

choice is not always available. The key of the success is the regularity. [ 66 ] The parents will also have a role to play to convince their son to attend such meetings regularly. They will have to be a model for him, and they will have to help him to develop a bond of trust with the worker. [ 67 ] It will be the same thing with the DYP worker. After being reassured about the measures taken by the Court, the parents will have to bring their child to trust the DYP’s services and to go beyond his fears to be entrusted to a Group Home.

The role of the DYP will have to be explained to him as well as the fact that he could disclose anything and he will be listened and considered. [ 68 ] Regarding the school, unfortunately, despite the school year starting very soon, the DYP worker had not been able to have a confirmation about the support that will be provided to the youth. The difficulty to find professional also affects the schools in the North, and probably more than in the rest of the province of Quebec. [ 69 ] The mother already took steps to find a behavioural technician if no one is available at school.

Indeed, a relative to her, living in Town B, and having a good link with the youth, accepted to meet with him regularly by videoconference. [ 70 ] The Court considers that all those measures added to the measures that the parents already took will diminish the level of stress in the youth’s life.

He is for sure fragile and he will remain fragile, but the Court is convinced that, if he is well surrounded by professionals and his loving parents, he will be able to go through this difficult period without the necessity to impose a more drastic measure. [ 71 ] For sure, considering that the evidence demonstrates the importance for the youth to be with both his parents and the different role played by each parent, the Court will entrust the youth to both his parents.

Entrusting him to his mother to the exclusion of the father would impose another separation to the parents, which is in total contradiction with their desire and with the youth’s best interest. [ 72 ] The parents agree with the unannounced visits from the DYP and the Court considers that such measures will ensure the respect of all the conditions. FOR THOSE REASONS, THE COURT: [ 73 ] GRANTS the application: [ 74 ] DECLARES that the security and development of the adolescent X, born on [...], 2010, are endangered under paragraph (

f) of

section 38 of the Youth Protection Act ; [ 75 ] MAINTAINS the youth with his mother and Mr. B; [ 76 ] ORDERS that the mother and Mr. B report periodically to the Director of Youth Protection on the measures they apply in their own regard or in the child’s regard to put an end to the situation in which the security or development of the youth is in danger; [ 77 ] ORDERS that the youth, the mother and Mr. B take an active

part in the application of any of the measures ordered by the tribunal; [ 78 ] ORDERS that the youth benefit from a follow-up with the Social Services and all the relevant services provided by the school; [ 79 ] TAKES JUDICIAL NOTICE that if necessary, a behavioural technician from Town B is available to meet with the youth on a regular basis; [ 80 ] FORBIDS the youth to use a firearm without the supervision of a reliable adult; [ 81 ] ORDERS the mother and Mr. B to make sure that the firearms are well secure in all time; [ 82 ] ORDERS the mother and Mr.

B to remain sober and without any violent behaviour in the presence of the youth; [ 83 ] ORDERS the mother and Mr. B to ensure that the youth is not in presence of intoxicated person; [ 84 ] Considering their consents, ORDERS that the mother and Mr.

B seek help through the Social Services concerning their personal issues; [ 85 ] ORDERS that a person working for an institution or a body, provide aid, counselling and assistance to the youth and the family; [ 86 ] AUTHORIZES the Director of Youth Protection to perform unannounced visits at the parents’ place; [ 87 ] ENTRUSTS the situation of the youth X , to the Director of Youth Protection A, who shall then see that the measures are carried out; [ 88 ] THE WHOLE until August 31, 2023.

__________________________________ PEGGY WAROLIN , J.C.Q. Me Adèle Cyr and Roxane Bacon, attorney for the Director of Youth Protection Me Michaël Pereira, attorney for the youth Me Alexander Grey , attorney for the mother and the interested party Dates of hearing: August 16 and 26, 2022