2020 QCCQ 13418, 2020 QCCQ 13418

Protection de la jeunesse — 209351 2020 QCCQ 13418 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 640-41-002412-192 DATE: April 15, 2020 (written judgment rendered on July 20, 2020) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2009 [SOCIAL WORKER 1] and [SOCIAL WORKER 2], Youth Protection workers, duly authorized by the Director of Youth Protection A, working in [...] Applicants and A, deceased Mother and B, deceased Father and C, residing and domiciled at [...] Caregiver and D, residing and domiciled at [...] Caregiver ______________________________________________________________________ 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 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] The Director of Youth Protection (DYP) asks the Court to declare that the security and development of the child X, born on [...], 2009, are in danger under

section 38 (a), (d) (2) and (e) (1) [1] of the Youth Protection Act . [ 2 ] The DYP asks that the child be entrusted to a foster family (the biological maternal grandmother) with a possible reintegration with Mr. D and Ms. C as soon as the situation allows it, for a period of one year. [ 3 ] X, who is 10 and a half years old, is the youngest child in the family. She has an older brother, Y (13 and half years old) and older sister, Z (11 and half years old). The biological parents passed away in 2015 and 2016. Y and Z were traditionally adopted by their paternal grandparents.

The adoption of X is not completed yet, but the paternal grandparents take care of her since the parent’s death. Doing so, her status is different, but a common hearing took place. Position of the Parties [ 4 ] The grandparents are absent and not represented. Considering that they refuse to participate, that they were aware of the hearing, and the best interest of the child, the Court proceeds in their absence. [ 5 ] X, who is 10 and a half years old, is absent, but represented by Me Neptune. She admits most of the allegations, and she agrees with the measures.

Facts [ 6 ] The evidence reveals that the three children were the object of a decision of the Court of Quebec, Youth Chamber, from July 12, 2018, to August 24, 2019. At that moment, the Court declared the security and development of the children endangered because of the risk of sexual abuse. [ 7 ] Indeed, their biological paternal uncle, Mr. E, was living at their grandparents’ place. Mr. E is registered as a sexual offender.

The file was closed after this period because the uncle went to live somewhere else and the grandparents were protective. [ 8 ] In November 2019, the DYP was informed that Mr. E came back to live with his parents with their total agreement. The DYP took an immediate protective measure and entrusted the children to a foster family. [ 9 ] On November 26, 2019, the Court rendered a provisional measure and entrusted the children to a foster family. This measure was prolonged on January 14, 2020. At that date, the DYP lawyer informed the Court about the new grounds of endangerment for each child.

For a better understanding, the modifications were the following: Grounds alleged in the application signed on November 25, 2019 Grounds according to the amendment made verbally on January 14, 2020 Y 38 (d) (2) and (e) (1) 38 (d) (2), (e) (2) and (

f) Z 38 (d) (2) and (e) (1) 38 (d) (2) and (e)

(2) X 38 (d) (2) and (e) (1) 38 (a) , (d) (2) and (e) (1) [ 10 ] At the beginning of the hearing, the Court raised the fact that the application contain no allegation regarding any physical abuse against X nor risk of physical abuse against the two oldest. Also, the Court noted that the application contain no allegation regarding any behavioural issues from Y nor allegation regarding abandon for X. [ 11 ] The DYP lawyer suggested to the Court to postpone the hearing if it could satisfy the Court, but the Tribunal does not have to request for a postponement.

The burden of proof is on the shoulder of the applicant and, knowing the rules of evidence, the lawyer has to present a file ready to be heard or to ask a postponement if his file is not ready. The DYP’s lawyer indicated being ready to proceed. [ 12 ] The grounds of endangerment alleged by the DYP are serious and the Court will study the evidence provided for each one. • The risk of sexual abuse [ 13 ] The risk of sexual abuse is based on the presence of the uncle in the household and the tolerance from the grandparents to this presence.

As mentioned, the children were the object of a decision in which their security and development were declared endangered for this reason and at that time the grandparents collaborated well. As they had been able to protect the children, the file was closed. [ 14 ] Today, the situation is different, as the grandparents do not collaborate with the DYP and took no step to ensure the children’s safety. [ 15 ] It is alleged that the uncle is registered on the Sexual Offenders Registry, but the Court was not provided with any extract of this registry. The uncle’s criminal priors were not filed either.

The previous decision rendered by Justice Beauchemin in 2018, for sure in another court file, was not provided either. The only evidence the Court can benefit from is the extract of the decision rendered by Justice Beauchemin reproduced in the evaluation and orientation report.

The evidence rules require that each document alleged has to be produced as an exhibit and the evidence would have been done easily if the DYP’s lawyer would have produced it as required. [ 16 ] Despite this absence of evidence, and considering that, fortunately, a DYP worker took time to copy the extract of the decision rendered by my colleague, the undersigned will conclude that the uncle is registered as a sexual offender.

And considering that the children admit the presence of their uncle in the household, and also the facts that the grandparents refuse to collaborate, the Court will declare that the security and development of the children are endangered because of a risk of sexual abuse. • The physical abuse and risk of physical abuse [ 17 ] The DYP alleged that X disclosed having been slapped in the face by her uncle, E.

Doing so, the DYP asks the Court to declare the security and development of X endangered because she would be a victim of physical abuse and the two oldest, at risk to be victims of physical abuse. [ 18 ] Before the hearing, the children’s lawyer asked if the presence of the children would be needed or if they could be excused. The DYP’s lawyer confirmed that she did not plan to make the children testify and agreed that they could stay at home. [ 19 ] At the hearing, by the voice of her lawyer, X does not recognize the situation of physical abuse.

Originally, the disclosure was received by the DYP worker, but following that, no interview was done at the police station in collaboration with the DYP. [ 20 ] The DYP worker testified about X’s confidences. X was able to give a clear mandate to her lawyer. Being 10 years old, she is a person qualified to testify and she was not dispense to do so. In these circumstances, the Court cannot accept hearsay to prove the physical abuse and invite the reader to take knowledge of a recent decision rendered by Justice Mario Gervais [2] in a situation extensively publicized.

The undersigned cannot explain better than Justice Gervais does, the applicable rules governing the testimony of a child and the circumstances in which a child could be dispensed from testifying. [ 21 ] Considering the absence of evidence, the Court cannot conclude that X was the victim of physical abuse and doing so, the Court cannot conclude neither that Y nor Z are at risk of being victims of physical abuse. • The abandon [ 22 ] According to the YPA, the abandonment refers to a situation in which the child’s parents are deceased or fail to provide for the child’s care, maintenance or education and those responsibilities are not assumed by another person in accordance with the child’s needs . ( our underlying )

[ 23 ] According to the DYP worker testimony, the grandparents took very good care of X and she never had any concerns about a potential situation of neglect. When the DYP get involved again in their life in November, the grandparents were very disappointed and would have kicked off the children from the house. [ 24 ] But since then, the grandparents maintained their intention to have their children and granddaughter back at home and despite two provisional measures rendered, the children are very frequently at their place to the DYP's knowledge.

The evidence provided does not lead the Court to conclude that the child is in a situation of abandonment. [ 25 ] The DYP’s lawyer maintained that the death of parents conduct to a situation of abandonment. This assertion raises concerns regarding the understanding and the application of the law by the lawyer herself. Analysis [ 26 ] The Court is very concerned by the way in which this file was presented to her.

The civil rules of evidence have been totally ignored and the applicant party took the decision of the Court for granted. [ 27 ] But it is important to keep in mind that beyond this file, this hearing and the civil rules of evidence, there are children, vulnerable children, who are trusting the DYP and the adults in general to protect them. [ 28 ] By ignoring the rules of evidence, the DYP’s lawyer prevents the Court from having the portrait of the situation she described.

But, despite the seriousness of the grounds she alleges in her application since January, this application had not been modified and the evidence to sustain it had not been provided. [ 29 ] The seriousness of the facts alleged by the applicant does not reduce the rules of evidence nor the burden of proof. [ 30 ] As the Court said at the hearing, when the DYP concludes that a situation of a child is endangered and decides to seize the Court with the situation, the DYP not only has the responsibility to respect and to apply the rules of evidence, but he also has the duty to convince the Court that his application is well-founded, the whole in a context where a child is supposed to be endangered and which all the actions taken have to be guided by the child’s best interest. [ 31 ] Doing so, the DYP has to take all the necessary steps to protect the child before the declaration of compromising as he will have to do after the situation would be declared endangered.

Preventing the child from having this protection engages the responsibility of the DYP and his counsel. FOR THOSE REASONS, THE COURT: [ 32 ] GRANTS partially the application; [ 33 ] DECLARES that the security and development of the child X, born on [...], 2009, are endangered because of the risk of sexual abuse caused by the presence of Mr. E; [ 34 ] ENTRUSTS the child to the maternal grandmother as a foster family; [ 35 ] AUTHORIZES the reintegration with Mr. D and Ms. C to the strict condition that Mr. E reside in another house and to the condition that Mr. D and Ms.

C fully collaborate with the Director of Youth Protection; [ 36 ] ORDERS that the modalities and degree of supervision of the contacts between the child and the grandparents are determined by the Director of Youth Protection; [ 37 ] ORDERS that the grandparents periodically report to the Director of Youth Protection on the measures they apply in their own regard or in X’s regard to put an end to the situation in which the security and development of X are in danger; [ 38 ] ORDERS that the child and the grandparents take an active

part in the application of any of the measures ordered by the Court; [ 39 ] PROHIBITS any contacts between the child and Mr. E; [ 40 ] ENTRUSTS the situation of the child X , to the Director of Youth Protection A, who shall then see that the measures are carried out; [ 41 ] ORDERS the execution of the present decision by any peace officer; [ 42 ] THE WHOLE for a period of one year. __________________________________ PEGGY WAROLIN , J.C.Q.

Me Adèle Cyr, attorney for the Director of Youth Protection Me Cassandra Neptune, attorney for the child Date of hearing: April 15, 2020