2015 QCCQ 12746, 2015 QCCQ 12746

Protection de la jeunesse — 152583 2015 QCCQ 12746 COURT OF QUEBEC Canada PROVINCE OF QUEBEC DISTRICT OF [...] LOCALITY OF […] Youth Court Division No: 760-41-004663-145 DATE: March 31, 2015 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE BEATRICE CLEMENT, J.C.Q. ______________________________________________________________________ X Born : […], 2003 Child DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner -and- A JC0B11 Parent ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 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 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] Introduction [ 2 ] The Director of Youth Protection presents an amended motion for protection concerning X alleging a situation of

endangerment in reason of neglect (both physical and educational) as well as physical abuse. [ 3 ] The mother contests the motion, denying any basis for the application of protective measures. [ 4 ] X leaves the appreciation of the evidence to the Court.

Following the hearing, his attorney pleads that the Director fulfills its onus as to the need for protective measures in reason of physical abuse and neglect on an educational level. [ 5 ] Context [ 6 ] At the time of the initial evaluation of the child’s situation by the Director of Youth Protection, he lives with his mother, her spouse and three siblings, namely his older sister Y.

Since that time, Y’s leaves the home to pursue her studies, although she returns on the weekends and holidays. [ 7 ] As well as in reason of his young age, X faces challenges stemming from cerebral palsy, which severely handicaps his functioning, movement and autonomy. He requires specialized care on a constant basis, in all spheres of his life.

This diagnosis dictates a progressive degeneration of his physical capacities and ongoing adjustments to his surroundings to respond to his disability and maximize functioning. [ 8 ] Notwithstanding his impairments, X is an intelligent and verbose child, with varied interests and a strong will.

He frequents school in a regular class, while benefitting from an accompaniment and various adaptations to his environment. [ 9 ] The family home also benefits from various equipments designed to alleviate and deal with X’s limitations (minivan, bed, bath seat, etc.). [ 10 ] At home, X sits in a high chair to play on his computer and take his meals. He plays on his computer approximately 2 hours a day, mostly before supper. An adjustable bureau is available, but the mother chooses not to use it, as it takes too much space. [ 11 ] As to his reduced mobility, he uses a wheelchair and a walker.

He takes the wheelchair mostly outside and at school, as its use in the home is awkward. He prefers moving around in the house on his hands and knees or with the walker. He requires regular assistance in his movements. [ 12 ] In 2012, the [center A] evaluates X’s situation, a report of which is produced in evidence. Although numerous adaptations are available to him at home and in his school environment, issues remain to be addressed. More notably, the encumbrance of the family home doesn’t facilitate wheelchair use. Specific rooms in the house are little accessible to him on an autonomous basis.

Various recommendations are made to favour his autonomy and diminish risks of injury, more specifically that he use his wheelchair in the home and that an adjusted bureau be put in place. [ 13 ] Furthermore, the family is admissible to the PAD program, providing for financial assistance to adapt a home for the needs of a handicapped person. The family decides to suspend this procedure, as they anticipate selling their home.

The house is on the market presently and they intend to benefit from this program for their next home. [ 14 ] A reevaluation occurs in 2014, at the mother’s request, to verify why X now crosses his fingers when eating or playing on the computer. This evaluation concludes that X uses crosses his fingers to facilitate their use. Furthermore, the ergo-therapist determines that his use of non-adapted equipment and repetitive activities (computer) create inadequate postures which contribute to his fatigue. Risks of injury remain as X displaces himself on the floor and can be unsteady.

It is observed that few of the changes recommended in 2012 have been put in place. [ 15 ] Once again, recommendations are put forth to alleviate X’s difficulties and maximize his functioning. These changes are not put in place. The mother testifies that X doesn’t like using his wheelchair and is able to transport himself more easily on his hands and knees.

As to his continued use of the high chair and non use of his adapted bureau, she stipulates that this is necessary considering the lack of room in the house and that X seems comfortable with the present situation. [ 16 ] The Court hears the ergo-therapist having made the recommendations as to X’s situation. She stipulates that in view of X’s physical situation and growing autonomy, it is necessary to ensure that his environment is properly adapted to his needs.

She enumerates a list of adaptations readily available to the family to help X, notably: • Installation of a small platform elevator (which can move with the family) • Installation of the adjustable bureau; • Variance of activities and limitation of computer use; • Facilitate and promote wheelchair use in the home; [ 17 ] X’s mother is his primary caretaker. Her implication in the various services is significant and she demonstrates sensibility to her son’s needs. She actively seeks services and is devoted to her family. [ 18 ] The mother delegates certain responsibilities as to X, namely to his older sister Y.

This is especially present in 2014, when she is pregnant and also has the charge of another young sibling. Particularly, the evidence shows that Y often takes charge of her brother for his school transportation on a regular basis. [ 19 ] In May 2014, an incident between X and his sister Y occurs while he awaits his adapted transport for school, witnessed by the school bus driver. She testifies seeing Y slap X in the face, push her fingers in his neck then hit him in the body area. X has a red mark on his face when he enters the bus. Questioned by the driver, he says nothing is wrong.

The driver reports the situation to the school.

[ 20 ] During their evaluation, the Director meets with X on numerous occasions, during which he confirms an arduous relationship with his sister. He describes events of verbal and physical abuse to the caseworker, and the Court resumes: On February 25, 2014, while speaking of his sister, he says: ‘’ I don’t like anything about her. She bullies me. She’s always mean to me. She scares me. Hits me sometimes when really mean. I wish she was quiet. She’s awfully loud’’ At the same date, he mentions that that morning, his sister hits his arm while he is eating, causing his toast to go in his eye.

He doesn’t want to tell his mother, because she’ll think he’s a bad boy. He mentions that his sister ‘ ’smacks him every day’’; He mentions an incident when his sister hits him with her hand during an argument over the television control; On May 17 th , he says his sister just wants to put him on the bus and has no time. She hits him everywhere she wants, sometimes when he makes silly noises. Concurrently, he says he feels sad when he’s around his sister because she does bad things and she’s mean; [ 21 ] When the caseworker discusses the allegations with the mother, she denies any abuse.

At the hearing, the mother further testifies that the bus driver mistakes the incident between Y and X, saying that her daughter was attaching his wheelchair straps. She doesn't comment her son's declarations in school nor to the caseworker. [ 22 ] To the caseworker, Y also denies being abusive, but admits pushing and pinching her brother. [ 23 ] X’s school attendant testifies. She relates that X mentions that his sister Y had hit him and said bad words. Twice he has marks and cites his sister as being their cause. Once he says his sister threw a bottle of cream at him, leaving a bruise.

He also relates the incident with the toast (see hereinabove). [ 24 ] X testifies before the Court, after giving his promise to tell the truth. He mentions having an excellent relationship with his sister and cites no problems. Yet, during the hearing, he spontaneously responds to other testimonies, oftentimes confirming statements concerning incidents with his sister Y. [ 25 ] The Court cites some examples (our underlining): • PAR LA COUR Excuse me, she says or she does? A “…because she does bad things and she’s mean.” Q Thank you.

PAR X Not all the time [1] • PAR X (inaudible)… that Y threw a bottle of cream at me… (inaudible)… I didn’t know that. I think she did . [2] • PAR LA COUR Is this the B on the bus? A Yes. Q We heard about B. A Okay. They’re very… they talk, and nobody else understands, but the two (2) of them understand each other. PAR X We always play games. A Yes, you do. Q …(inaudible)… B didn’t say bad words like Y. [3] [ 26 ] Analysis and decision [ 27 ] In evaluating a situation of endangerment, the Court must consider the following factors, as stipulated in the Youth Protection Act : 38.2.

A decision to determine whether a report must be accepted for evaluation or whether the security or development of a child is in

danger must take the following factors into consideration: (

a) the nature, gravity, persistence and frequency of the facts reported; (

b) the child's age and personal characteristics; (

c) the capacity and the will of the parents to put an end to the situation in which the security or development of the child is in danger; (

d) the community resources available to help the child and the child's parents. [ 28 ] The Court retains that for X, his vulnerability is significant, not only in reason of his young age, but because of the nature and importance of his physical and mental challenges. His personal characteristics dictate that he receives specific and constant response to his needs, and this, not only in consideration of those which are immediate, but also in consideration of his already foreseeable needs. [ 29 ] Considering these parameters, the Court determines a situation of neglect on the educational level.

As defined by the Youth Protection Act , this form of neglect stems from ‘’ failing to provide the child with the appropriate supervision or support, or failing to take the necessary steps to provide the child with schooling’’. [ 30 ] The Director cites that the mother delegating her responsibilities to her daughter constitutes such neglect, to which the Court agrees. [ 31 ] Without minimizing the importance of the responsibilities already assumed by the mother to care for her family, which are compounded by the specialized care required by X, it is clear that she made the decision to delegate certain charges to her daughter Y, without considering the impact on her son and the oftentimes conflictual nature of their relationship and/or adequately supervising the situation.

In the first place, the repeated nature of the incidents excludes that she was unaware of these conflicts and furthermore, notwithstanding the reasons for which she doesn’t intervene, it corresponds to a situation of neglect. [ 32 ] The evidence also underlines other elements of educational neglect. [ 33 ] Although the mother is clearly devoted to her son, on numerous critical issues having repercussions on his development and his health, she repeatedly chooses to take the route of least resistance, thereby failing to prioritize his needs and fully assume her parental role. [ 34 ] The Court clarifies. [ 35 ] As to the issue of the one-time government grant to adapt her home, the mother’s choice is reasonable considering the plans to move to another house.

Yet, many other physical adaptations and changes are available and increasingly necessary for X to deal with the debilitating nature of his affliction, but which receive no response from the mother, and this despite repeated recommendations. [ 36 ] The mother’s justifications as to her inaction are based on X not wanting change or commodity, neither of which are the reflection of his best interests. [ 37 ] This approach denotes anew a delegation of responsibility that is inappropriate.

It is the mother’s role to make the decisions necessary to promote her son’s autonomy and limit the repercussions of his infirmity, on the short, as well as long term, notwithstanding his resistance or the facility factor.

It is pertinent that these decisions are also made despite repeated recommendations from the health professionals and maintained over a long period. [ 38 ] The mother’s failure to integrate these recommendations, and therefore prioritize other needs, represents a situation of neglect which constitutes an endangerment to X’s security and development. [ 39 ] As to the issue of physical neglect, the Director fails to meet its onus. [ 40 ] Although certain difficulties arise as to hygiene in the school environment, the evidence doesn’t establish that the child’s security or development is consequently endangered.

Furthermore, this is no longer a live issue, as community services put in place through the CLSC, correct any previous difficulties.

The evidence supports that since the beginning of the school term in September 2014, his hygiene and behaviours improve. [ 41 ] As to the issue of physical abuse, the Court cites the definition of the law: (e) “ physical abuse ” refers to (1) a situation in which the child is the victim of bodily injury or is subjected to unreasonable methods of upbringing by his parents or another person, and the child's parents fail to take the necessary steps to put an end to the situation; [ 42 ] After evaluating the evidence, the Court considers that the Director meets its onus.

The Court resumes the basis of this determination.

[ 43 ] Firstly, the testimony of the school bus driver is unambiguous to the effect that Y hits and denigrates her brother and is regularly in a position of responsibility as to his care. [ 44 ] The reliability of this information is compounded by the repetitive statements made by X to third parties as to the oftentimes abusive relationship with his sister. [ 45 ] As well, the Court retains as corroborative, X’s declarations during the hearing.

The reliability of these declarations stem from their spontaneous nature as well as their context, namely that they follow his promise to tell the truth. [ 46 ] While the mother’s blanket denial of this abusive situation is probably the result of the conflict in which she finds herself, as confronted by the contradictory declarations of her children, it demonstrates a lack of adequate risk assessment as to her son.

This denial also contributes to the situation of endangerment, as she demonstrates not adequately discerning her son’s needs for supervision and protection, thereby cannot autonomously take the steps required to correct the situation. [ 47 ] The fact that Y is now less present in the family unit is pertinent but insufficient to overcome the situation of endangerment as proven, as there is no recognizance of the existence, nor of the inappropriate nature, of her actions towards her brother. [ 48 ] Consequently, the Court considers that the application of protective measures is dictated.

To this effect, the recommendations of the Director of Youth Protection respect the child’s interests, save the following. [ 49 ] Within the goal of shouldering the mother within the exercise of her parental responsibilities and ensuring that X receives the support and aid he requires to develop, the Court orders that the mother apply the recommendations of the [center A] as concerns her son. [ 50 ] As to the contacts between X and his sister, the Court considers sufficient that the mother provide adequate supervision.

Further implication of the Director of Youth Protection in the organization of contacts is unnecessary in the circumstances, their role being to ensure the respect of the order. [ 51 ] FOR THESE REASONS, THE COURT: [ 52 ] GRANTS the amended motion for protection; [ 53 ] DECLARES that the security and the development of the child are in danger in reason of: • Educational neglect (article 38b)1)

i) Y.P.A. ) • Physical abuse (article 38e)1) Y.P.A. ) [ 54 ] MAINTAINS the child with his mother; [ 55 ] ORDERS the mother to report periodically to the Director of Youth Protection as to the measures she applies in her own regard or in her child’s regard to put an end to the situation in which his security or development is in danger; [ 56 ] ORDERS the mother to actively participate in the application of the measures ordered; [ 57 ] ORDERS that the child receive certain health care and services, namely a follow-up with the CLSC and [center A]; [ 58 ] ORDERS that the mother apply the recommendations of the ergo therapist; [ 59 ] ORDERS that the mother ensure the supervision of any contacts between the child and his sister Y; [ 60 ] PERMITS the Director of Youth Protection to make unscheduled visits in the family home; [ 61 ] ORDERS that a person working for an institution or body provide aid, counsel and assistance to the child and his family; [ 62 ] ALL THESE MEASURES for one year; [ 63 ] ENTRUSTS the situation of the child to the Director of Youth Protection of Le Centre jeunesse A for the execution of the present judgment. __________________________________ BEATRICE CLEMENT, J.C.Q.

Me Marie La Roche Attorney for the Petitioner Me Maryse Fournier Attorney for the mother Me Karine P. Poissant Attorney for the child

Dates of hearing: December 8, 2014, January 29, 2015 February 18, 2015 March 31, 2015 (judgment)