2018 QCCQ 20739, 2018 QCCQ 20739

Protection de la jeunesse — 1811533 2018 QCCQ 20739 JO0374 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF […] Youth Division No: 525-41-034488-189 DATE : December 6, 2018 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE KAREN OHAYON, J.C.Q. ______________________________________________________________________ IN THE CASE OF: X Born […], 2008 Director of Youth Protection A Applicant A Father B Mother ______________________________________________________________________ JUDGMENT (Section 38, Y.P.A.) ______________________________________________________________________ WARNING: Within the framework of the Youth Protection Act, no person may publish or broadcast information allowing 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 (Y.P.A. sections 11.2.2 and 135). [ 1 ] In the context of a joint hearing, the Director of Youth Protection (the Director) is asking the Court to declare that the security and the development of the children X, Y and Z are endangered. [ 2 ] For X, the Director invokes physical abuse based on unreasonable methods of discipline.

Psychological ill-treatment is also alleged, essentially based on the use of threats as well as emotional rejection. [ 3 ] For Y and Z, the Director alleges a serious risk of physical abuse as a result of the parents’ recurring use of unreasonable methods of discipline with X. [ 4 ] X has been in provisional foster care since September 25, 2018 whereas the two younger children remain with their parents. [ 5 ] The Director recommends returning X to his parents’ care and maintaining the younger children in their family, with a social follow-up and other corrective measures for a period of one year. [ 6 ] At the hearing, the parents concede physical abuse but limit their admissions of the underlying facts to hitting X with their hands and on one occasion, threatening him with a belt.

They further admit the risk of physical abuse for Y and Z on the same basis. They deny the more serious events involving the use of objects. Taking into consideration their recent collaboration, the Director declares being satisfied with the factual basis admitted by the parents on this issue and commits to refraining from arguing otherwise. [ 7 ] The parents deny the alleged psychological ill-treatment.

They submit that the Director’s evidence on that point, comprised mainly of statements made by X to the police and to the social worker, are untrue and unreliable. [ 8 ] Nevertheless, they consent to the measures proposed by the Director. [ 9 ] The lawyer for the children supports the Director’s position for the three children. For X in particular, he admits the majority of the allegations, including those pertaining to the psychological ill-treatment. The state of endangerment (

i) Introduction :

[ 10 ] Both parents were born and raised in [country A]. They began their relationship in 2007 and were married six years later. The parents describe life in their former country as difficult, pointing to “… a climate of political instability, rampant crime and economic challenges. [1] ” [ 11 ] According to the parents, the use of physical discipline in [country A] is widely implemented and socially accepted. The mother describes the use of flogging with a cane as typical and adds that such canes are sold on practically every street corner [2] .

She confirms that X was regularly flogged, mainly for lying, both at school and at home. For his part, the father admits using a belt and his hand to punish X while in [country A] [3] . The younger children were generally spared these methods of discipline although Z has received the occasional spanking. [ 12 ] As a result of numerous hardships in [country A], the parents chose to immigrate to North America in the hope of providing a better life for their children. In April 2018, they arrived in [country B] but headed shortly thereafter to Canada to claim refugee status.

Procedures are currently pending and according to the parents, a hearing is set for March 2019. [ 13 ] On September 21, 2018, the Director received two reports concerning the […] children. The declarants reported that X’s mother had caused him serious injuries requiring medical treatment. It was further alleged that he was denigrated by his parents and that the younger children were at risk of abuse. [ 14 ] These reports immediately triggered the implementation of the Multisectorial Agreement protocol.

The worker in charge of the assessment collected X and brought him to the police station for investigation into the allegations. [ 15 ] Throughout the Director’s investigation and the procedures that followed, the parents denied the use of any objectionable physical discipline in Canada.

On the day of the hearing, they admitted to using certain inappropriate disciplinary methods with X and further admitted the consequential risk to the younger children but continue to deny psychological ill-treatment. [ 16 ] Regarding the allegations of physical abuse, the Director has accepted to proceed on the basis of the parents’ most recent version as detailed below, and concedes that the court should not take into account evidence of abuse not specifically admitted by the parents except insofar as they apply to the contested issue of psychological ill-treatment. [ 17 ] Before proceeding with a description of the evidence, a preliminary remark is required.

Although concessions in the course of negotiations are to be expected and even encouraged, the difficulty here lies with the nature of the evidence presented in light of the agreement between the parties. [ 18 ] In particular, the child’s statement to the police contains information supporting psychological ill-treatment and is therefore relevant to the contested issue. Nevertheless, it also provides details of serious physical abuse not admitted by the parents. The parents’ testimony-in-chief also covers in detail the incident that triggered the initial disclosure.

In other words, the evidence of psychological ill- treatment is so intertwined with the evidence of physical abuse that observing the parties’ agreement on the facts of the abuse is a complicated matter in the best of circumstances. [ 19 ] Here, the issue of credibility is central to the court’s determination on psychological ill-treatment. The credibility of the parents’ testimony must necessarily be assessed in the context of the evidence as a whole, which includes the subject of the physical abuse. [ 20 ] That being said, below is a

summary of the evidence presented on both issues followed by the Court’s analysis. (ii) The allegations of physical abuse : [ 21 ] The mother admits that in Canada, she hits X with her hand both on his back and on his backside in order to correct him when he misbehaves or lies. In her testimony, she concedes that this can occur on a weekly basis. [ 22 ] Both parents admit that on September 5, 2018, the father threatened X with a belt when they believed him to be lying about the cause of a broken water bottle.

The mother was present at the time and did not intervene to put an end to the situation. [ 23 ] As a result of the disciplinary methods employed by the parents on X, the parents concede that there is a serious risk of abuse for the younger children. [ 24 ] In accordance with an agreement between the parties, this is the factual basis in support of the allegations of physical abuse for X and a risk of physical abuse for Z and Y.

All other incidents of physical abuse in Canada are denied. (iii) The Director’s evidence on the allegations of psychological ill-treatment : [ 25 ] The Director’s evidence is based primarily on extra-judicial statements made by X to the police on September 21, 2018 [4] as well as to the social worker [5] in charge of the assessment. [ 26 ] A video recording of the police interview was played in court and the child’s statement can be summarized as follows: [ 27 ] X explains that he came home from school on September 5, 2018 with a broken water bottle.

Questioned by his mother as to how it happened, he claimed that a girl at school was responsible. His mother furiously accused him of lying and, in a fit of anger, broke a water glass over his head causing him to bleed. She then threatened to “break his head” if he didn’t tell the truth. In the course of this exchange, she picked up a piece of broken glass and cut his arm, then hit him again on the head. The laceration on the arm bled profusely and the parents were required to seek medical intervention.

The child was brought to the hospital that evening where he received treatment, including thirteen stitches on his arm. [ 28 ] The child adds that his mother says she hates him and uses bad words. She calls him “witch”, meaning evil. She tells him that he gave her problems when he was born and should have died in her stomach.

[ 29 ] The child describes being hit by his mother with a belt as well as with a wooden spoon. He claims that his father also beats him. Asked why he believes the father does that, the child responds, “… because he hates me . [6] ” The child specifies that only he is hit, not the other children. [ 30 ] In addition to X’s statement, the evidence reveals that the father asked X to tell the medical personnel at the hospital that he had fallen off his bed in order to explain the laceration on his arm.

At X’s return to school, the father provided the same made-up story to the school authorities. [ 31 ] [Social worker 1], the social worker in charge of the assessment, confirms the nature of the child’s initial disclosure and adds that X was fearful of seeing his parents, asking not to return home [7] .

His fear only began to subside after his first visit with his parents, nine days later. [ 32 ] [Social worker 2], the social worker in charge of the application of measures, testifies that the parents have stated, in X’s presence, that X lies and is in fact lying regarding the disclosure. [ 33 ] On October 11, 2018, the child retracted his statement regarding the disclosure: “Specifically, he conveyed that the allegations of physical abuse and psychological ill-treatment were not true.

X expressed being afraid during the entente multisectorielle, as the police in his country are not considered to be protective. [8] ” [ 34 ] The parents added that, in their opinion, X made up these stories because he wanted more freedom [9] . [ 35 ] The child testified briefly and, unsurprisingly, was visibly uncomfortable with the entire process despite the court’s attempt to ease his mind. It should also be noted that the child spent the night at his parents’ home the day before the hearing and the family arrived together to the courthouse.

Intended or not, this context can certainly increase the pressure felt by a child in these circumstances. [ 36 ] X answered mostly “I don’t remember” to the questions asked, affirmed that he lied in his statement to the police yet confirmed that he’s afraid of getting his parents into trouble. Asked why he lied, he explains laconically that he wanted more freedom.

There is no reference to being afraid of the police and it should be noted that in the video, he never appears to harbour any fear of that nature. [ 37 ] Along with the hospital report for the incident of September 5, 2018, the Director filed a medical document [10] compiling the results of a recent physical exam of the child. This document identifies no less than 43 lesions or scars on the boy’s body, from his head to his ankles. The author of the report confirms that some of the wounds observed are compatible with non-accidental trauma as well as with the use of an object.

In particular, marks in the shape of a buckle and compatible with a belt are observed on the child’s back. It is impossible however to establish a timeline for any of the injuries as lesions can remain visible over an extended period of time. (iv) The parents’ testimony on the allegations of psychological ill-treatment : [ 38 ] The mother testifies that, although she shouts when she’s angry, she doesn’t use bad words. She explains that expressions like “evil” and “witch” are forbidden in [country A]. She refutes the child’s claims that she says she hates them.

Rather, she tells him that she hates his character or his actions. [ 39 ] She denies using objects to discipline X and affirms that the father does not beat him whereas she hits him around once a week. She states that in [country A], she would regularly flog X on his open palm. Asked about the origins of the multiple marks on his body, she cannot say. [ 40 ] During the incident of September 5, 2018, she confirms that she accused the child of lying about the water bottle, insisted that he tell the truth and told him that she wouldn’t beat him if he did so.

The child maintained his version until the father pulled out a belt and threatened him with it. Only then did he change his story and declare that he was responsible for the broken water bottle. [ 41 ] Regarding the laceration on his arm, the mother explains that she was upset because of the child’s lying and accidentally broke a plate. According to the father, the mother held X responsible for the breakage by upsetting her [11] . While she was picking up the pieces, X approached her and spontaneously raised his arms, asking her not to hit him.

While doing so, he cut himself on the broken piece of glass that she held in her hand. [ 42 ] Upon realizing the seriousness of the injury, the parents brought X to the hospital after asking him to lie about the cause of the laceration.

The mother explains that she was concerned that the hospital would refuse to treat him otherwise although she is unable to explain the origins of such a concern. [ 43 ] The father’s also testified that the laceration sustained by the child was accidental, caused by the child essentially raising his arms and cutting himself on the piece of glass held by the mother. [ 44 ] He confirms threatening the child with a belt and adds that he also threatened to give away the child’s bicycle if he didn’t tell the truth. [ 45 ] Like the mother, the father denies the use of the language alleged in the child’s disclosure, explaining that saying such things are forbidden. [ 46 ] He explains that the child’s behaviour is problematic lately, more so since arriving to Canada.

The child has become oppositional, disruptive, refuses to complete homework, disregards rules and then lies to prevent consequences. He theorizes that the child lied in order to obtain freedom from the restrictions that his parents apply in the home. The Parties’ Position Regarding the Alleged Psychological Ill-Treatment [ 47 ] Section 38(2)

c) of the Youth Protection Act (the Act) reads as follows:

“ psychological ill-treatment refers to a situation in which a child is seriously or repeatedly subjected to behaviour on the part of the child’s parents or another person that could cause harm to the child, and the child’s parents fail to take the necessary steps to put an end to the situation.

Such behaviour includes in particular indifference, denigration, emotional rejection, excessive control, isolation, threats, exploitation, particularly if the child is forced to do work disproportionate to the child’s capacity and exposure to conjugal or domestic violence; [ 48 ] The notion of psychological ill-treatment is fairly large and includes behaviour that, by its nature, is likely to cause the child harm. Evidence of actual prejudice is not required. [ 49 ] The Director’s theory is comprised of two elements.

First, the evidence reveals that the child is threatened with physical harm when his parents believe him to be lying or misbehaving. Second, the mother repetitively makes harmful remarks that are likely to provoke a sense of emotional rejection. Both these elements, cumulatively or individually, are sufficient to establish endangerment on the basis of section 38(2)

c) Y.P.A. [ 50 ] The parents’ lawyer argues that the threats revealed by the evidence are part and parcel of the physical abuse and cannot be used to justify a separate finding of endangerment. Regarding the harmful remarks, she argues that the child’s initial disclosure is not reliable considering his retraction, his denial in court as well as his tendency to be dishonest. [ 51 ] The child’s lawyer argues that the child’s statement to the police is reliable despite his retraction.

On the other hand, the fact that the parents’ asked him to lie at the hospital regarding his injury has a damaging effect on the parents’ credibility. He is of the opinion that the Director met its burden on a balance of probabilities. Analysis And Conclusion [ 52 ] An evaluation of X’s testimony cannot be done without keeping in mind that this child was in fact regularly beaten in [country A]. His history necessarily has an impact on his state of mind and allowances much be made accordingly.

In addition, the court must be mindful of the inherent frailties of a child’s testimony as a result of their limited development along with the stress that accompanies the judicial process. [ 53 ] A study of the recorded police interview reveals a boy who tells his story spontaneously and without hesitation. He answers questions naturally and understands the seriousness of his situation. Moreover, he is able to correct the detective when she makes an erroneous affirmation.

His body language and overall demeanor are compatible with the gravity of the events that he recounts. [ 54 ] He is able to explain the incident of September 5, 2018, in a coherent manner without the need for much prompting. His story is fluid and contains many details provided naturally. For example, in referring to the glass that was broken over his head, he adds that little pieces remained stuck in his hair and spontaneously points to the area from which he had to pull them out. [ 55 ] The matter of fact way with which he describes being regularly hit with a belt and a wooden spoon is disconcerting.

Nevertheless, it is compatible with the conclusion that this boy has in fact become accustomed to such discipline. [ 56 ] Approximately 13 minutes and 46 seconds into the recording, the child describes his mother’s harmful remarks to him. A certain measure of sadness is observable when he recounts these moments. [ 57 ] The child’s initial statement is compatible with the evidence as a whole considering his upbringing, considering the ease with which the parents refer to beatings, considering the nature of the injuries sustained on September 5, 2018.

It also offers sufficient guarantees of trustworthiness, namely, the manner in which the interview was conducted, the formality of the process, the ease with which the child was able to recount his version, the number of details provided and the lack of prompting required. [ 58 ] On the other hand, the child’s retraction is, in the Court’s opinion, the result of external factors.

The evidence demonstrates that the parents put pressure on the child to retract by calling him a liar in front of the social worker, that they influenced him into adopting their version, for example, by stating that he lied to gain freedom. This pressure, coupled with the boy’s unhappiness in placement explains his change of version. The child’s discomfort in court adds to the untrustworthiness of his denials. [ 59 ] As a whole, the evidence reveals that the parents believe, whether justified or not, that their son is a habitual liar.

They have concerns regarding his behaviour in school and believe that he is on a dangerous path. [ 60 ] The evidence also reveals that the parents use threats to deal with his perceived lies; threats to “break his head” or to hit him with a belt, threats to give away his bicycle unless he tells the parents what they want to hear, promises not to beat him if he admits their version of the truth.

This strategy, to which is added the context of the child’s prior history, is more than likely to produce anxiety and fear. [ 61 ] There is no foundation for the argument to the effect that these threats are necessarily included in the physical abuse and therefore excluded from a separate motive of endangerment.

On the contrary, the use of the word “threat” in the very definition of psychological ill-treatment indicates the contrary. [ 62 ] The mother’s absolute conviction that she “ always knows when her son is lying ” [12] creates a significant risk that this threatening behaviour will persist, considering her determination to make her son admit her version of the truth. [ 63 ] In light of the importance that the parents’ profess to afford the truth, their immediate instinct to tell the child to lie to the hospital authorities is particularly damaging to their credibility, as is the father’s persistence in maintaining this lie at the child’s school. [ 64 ] The version presented by the parents regarding the event of September 5, 2018, to the effect that the child accidentally cut himself on a piece of glass held by the mother, lacks believability, thereby affecting their credibility further.

The evidence is unequivocal that the child was attempting to protect himself from his mother when the laceration occurred. The description proposed by the parents is

not only incompatible with this factual element, it is also incompatible with the child’s retraction; he explains to the case worker that the glass was on the table when he cut himself. [ 65 ] Moreover, the parents’ concerted efforts to hide the truth of the events is indicative of a consciousness of guilt, compatible with a deliberate gesture rather than accidental. [ 66 ] The father’s assertion that the child made up the most damaging parts of his story in order to obtain freedom lacks any foundation in the evidence. [ 67 ] First, the context of the disclosure was unplanned, without any opportunity for reflection.

The child was unexpectedly collected by the social worker and interviewed by the police on the same day. The father’s theory credits a ten year old child with the ability to implement a strategy of considerable proportions, in a high-stress situation, without preparation or aforethought. Furthermore, the evidence is absent as to what the child would have hoped to accomplish with such a plan. [ 68 ] The fact that the child testified that he did in fact lie to get more freedom is actually troubling in that it reveals his desire to align his version with that of his parents.

It should be recalled that the child first explained to the social worker, when he initially recanted, that he had lied because he was afraid of the police (despite there being no indication of that in the recording). The father later told the social worker that the child wanted his freedom. Moreover, it is established that both parents accused the child of lying regarding his disclosure in his presence , sending a very clear message.

It is not a particularly far reach to conclude that the child retraction and subsequent testimony were most likely influenced by his parents. [ 69 ] Of equal concern is the lack of sensitivity that the parents demonstrate towards their son in the context of his recent behavioural difficulties. Their testimony is completely devoid of any connection between the abuse he previously suffered at their hands and his current issues. Their testimony is tainted by the belief that the problem is only his.

The father testimony that he’s “… not giving up on him, he’s going to be a better child ”, is but one example and offers no reassurance. There is little indication of introspection on their part and the burden is placed squarely on the child’s shoulders. [ 70 ] The use of the word hate by the parents appears to be frequent and indiscriminate. They tell him that they hate his character, his actions, his laziness, his lies but the child only retains that they hate him.

In the police interview, when recounting the various remarks made to him by his mother, he child’s sadness is genuine. [ 71 ] After an assessment of all the evidence, the court concludes that the child is repeatedly subjected to harmful behaviour by his parents, namely threats and emotional rejection. The prejudicial impact is apparent in the child’s demeanor, his state of mind and his behaviour. The Measures [ 72 ] X has had much difficulty adjusting to his foster placement and asks to go home.

He has expressed missing his parents as well as his siblings. [ 73 ] The parents have collaborated well with social services and more recently, have begun participating in services offered by […] Community Association A. The intervention is focused primarily on teaching the parents about the harmful effects of physical discipline as well as offering them alternative strategies to coping with problematic behaviours. [ 74 ] Visits between X and his parents have been without issue.

The parents’ interaction with their son is generally appropriate and constructive, according to the case worker’s observations. [ 75 ] Given their recent arrival in Canada, a certain transition period is to be expected but overall, the Director is satisfied with the parents’ motivation and investment in the intervention plan. [ 76 ] Consequently, the Director is of the opinion that X can return home with the younger children and considers that a social follow-up combined with community services are sufficient to monitor and improve the family’s current situation.

The Court would add that particular attention will need to be paid to the impact of the child’s disclosure on the family dynamics and the trust issues resulting therefrom. [ 77 ] After considering all of the evidence including the consent of the parties to the measures proposed, the Court concludes that they meet the children’s needs and serve their interests. [ 78 ] FOR THESE REASONS, [ 79 ] CONSIDERING that on November 22, 2018 the motion was granted and the situation of the child X endangered as a result of inappropriate physical discipline based on

section 38 e)1 Y.P.A.; [ 80 ] THE COURT : [ 81 ] DECLARES that the security and development of the child are endangered as a result of psychological ill-treatment as well as a serious risk of negligence; [ 82 ] ENTRUSTS the child to the parent’s care; [ 83 ] TAKES JUDICIAL NOTICE that the parents agree to collaborate with […] Community Association A ; [ 84 ] ORDERS that the parents refrain from using physical discipline or verbal denigration; [ 85 ] ORDERS that the parents receive community services from the […] Community Association A and that they follow through

with their professional recommendations; [ 86 ] RECOMMENDS that the child receive services from a community service that addresses behavioural difficulties; [ 87 ] ORDERS that a person working for a Child and Youth Protection Centre provide aid, counsel and assistance to the child and his family; [ 88 ] ENTRUSTS the situation of the child, X, to the Director of Youth Protection A, who shall then see that the measures are carried out ; [ 89 ] THE WHOLE for a period of one year. SIGNED IN TOWN A On December 6, 2018 __________________________________ KAREN OHAYON, J.C.Q. Me Angela Nevard Attorney for the D.Y.P.

Me Josselin Breton Attorney for the child Me Nadia Sabik Attorney for the parents Dates of hearing: November 22, 2018 KO/lf