2014 QCCQ 7351, 2014 QCCQ 7351

Protection de la jeunesse — 14374 2014 QCCQ 7351 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT [...] Youth Court Division N°: 525-41-027032-135 Date: January 24, 2014 PRESIDED BY: THE HONOURABLE TAYA DI PIETRO, Q.C.J. In the case of: X Born on [...], 1997 [Social Worker 1] , duly authorized by the Director of Youth Protection of A Youth and Family Centres Applicant -and- A , the mother -and- B , the father The parents -and- LA COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE , Mise-en-cause JUDGMENT

Section 38 of the Youth Protection Act (L.R.Q., C.P-34.1) JD2620 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 11.2.1 and 135 ] [ 1 ] The Director of Youth Protection of A Youth and Family Centres filed a motion to declare that the security and development of a child is in danger in the case of X , a sixteen year-old adolescent, as a result of the physical, psychological and sexual abuse she allegedly suffered. [ 2 ] The facts alleged in support of the motion dated March 25, 2013 are as follows: 3.1. the adolescent is subjected to gestures of a sexual nature by her father and the parents fail to take the necessary steps to put an end to the situation; 3.2. the adolescent is the victim of bodily injury or is subjected to unreasonable methods of upbringing by her parents and they fail to take the necessary steps to put an end to the situation; 3.3. the adolescent is seriously or repeatedly subjected to behaviour on the part of her parents that could cause harm to the adolescent and the parents fail to take the necessary steps to put an end to the situation; 3.4. the father touched the adolescent in an inappropriate and sexual manner, more particularly but not restrictively in that:

a) the father would lie naked next to the adolescent and touch her buttocks, genital area and other parts of her body, over her clothes, on several occasions when the adolescent was between six (6) and twelve (12) years old;

b) the father has slapped the adolescent on her buttocks, not as a punishment and this happened on several occasions, the last time being around Christmas 2012; 3.5. the father is verbally abusive towards the adolescent and both parents frequently yell at her, more particularly but not restrictively in that:

a) the father has been verbally abusive towards the adolescent since she was about six (6) years old, two (2) to three (3) times per week;

b) the father belittles the adolescent; 3.6. the father pulls the adolescent by the arm when she walks away from him, twists her wrist or pushes her against the wall and this occurs once (1) or twice (2) a month; 3.7. further information is to the effect that both parents admittedly drink beer every night; 3.8. the adolescent is followed at the A Hospital for psychological problems; 3.9. the parents deny any physical or sexual abuse; 3.10. on March 18 th , 2013, the adolescent was placed in a confidential setting during the evaluation of the signalement as she was and remains afraid of her father (reproduced with errors and/or omissions). [ 3 ] In light of the foregoing, the Director recommends that the adolescent remain entrusted to rehabilitation centre with aid, counsel and assistance, as well as additional corrective measures until she reaches the age of majority on [...], 2015. [ 4 ] The parents, assisted by Me Banon, deny the adolescent's allegations of abuse.

They nonetheless admit that her security and development are compromised and that her placement is necessary to address her mental health issues.

They are therefore in agreement with all the proposed measures although they dispute the basis for the Director of Youth Protection's involvement. [ 5 ] The adolescent, assisted by Me Ayoub, maintained the accuracy of all the facts alleged in support of the motion and also consented to the proposed measures. [ 6 ] The Director filed Exhibits D-1 to D-4 as evidence: D-1: Copy of the child's birth certificate; D-2: Court Report, prepared by [Social Worker 1], dated June 5, 2013; D-3: D.V.D.

Interview - X; D-4: Addendum, by [Social Worker 2] & [Social Worker 3], dated October 7 th , 2013. [ 7 ] At the beginning of the hearing, the adolescent testified very briefly to confirm the accuracy of the allegations against her father.

However, she broke down and was unable to continue. [ 8 ] Dr A, the clinical psychologist who has been following the adolescent once a week at the A Hospital since June 2012, provided expert evidence before the Court on the effects that testifying could have on the adolescent. [ 9 ] He explained that, in his view, given the adolescent's suicidal tendencies, including three suicide attempts, and the severity of her self-mutilating behavior, there was a serious risk in her particular case that testifying could revive the trauma she has suffered, especially considering that her statement to the police appeared to have that effect. [ 10 ] Under the circumstances, the Court concluded that the evidence established that testifying could be prejudicial to the mental or emotional state of the adolescent and consequently dispensed her from doing so pursuant to

article 85.2 of the Youth Protection Act . [ 11 ] The Court then heard the adolescent's March 19, 2013 statement, to the police, recorded on DVD [1] . [ 12 ] In her statement the adolescent describes how her father repeatedly fondled her when she was in bed between the ages of five and twelve, how she would flinch but try to stay still and pretend she was sleeping. She provides a number of details which are summarized as follows in the Court Report: During the interview with the detective, X corroborated that her father, had inappropriately touched her on her private areas.

She reported that the first time he touched her inappropriately when she was approximately six years old. She explained that her older brother wanted to sleep in the same bed as his mother; therefore she slept in her parents' bed with her father. X was wearing a night gown and her father was naked in bed. She reported that he touched her buttocks and her back from on top of her nightgown. She was not able to provide further details. The last incident occurred approximately when she was twelve years old.

She recalled that it was summer, and that she was lying in her bed, wearing a bra and underwear with no blanket over her. Her father walked into her bedroom early in the morning as she pretended to be asleep. She reported that he caressed her gently with one hand inside her thighs down to her ankles, her breasts, rib cage, genital area and back. X reported being awake but kept still and kept her eyes closed the entire time. She reported that her father would tell her not to feel special about it because it happened to everyone. [2] [ 13 ] After she disclosed the abuse, the adolescent was placed in a group home.

Although she complained frequently about the group home, she never recanted her statements. [ 14 ] In addition, the Court heard the testimony of Ms. C, a social work technician who worked with the adolescent at school to help

her address her anger. She described the adolescent as "very stressed" but always very polite, respectful, compliant, kind and honest. She also said that although she complained about the group home, she would not disclose any details about why she was there. [ 15 ] It is interesting to note that the clinical psychologist Dr. A's observations of the adolescent's behavior are consistent with Ms. C's. He also described the adolescent as reliable and believes that the environment she grew up in contributed significantly to her depressive symptoms and manifestation of borderline personality traits.

He dismisses any suggestion that the adolescent's psychological problems could have caused her to fabricate allegations of abuse.

On the contrary, he believes that the abuse she suffered contributed to exacerbate the vulnerability of a particularly sensitive child. [ 16 ] He also added that the adolescent appears to be doing much better since having been removed from the family home. [ 17 ] As for the adolescent's parents, although they deny the allegations, they chose not to adduce any evidence and suggested to the workers that the allegations stem from the adolescent's psychological problems and her desire to leave the home. [ 18 ] Following the disclosure, the mother maintained contact with the adolescent, seeing her regularly and helping her with certain tasks such as applying to a new school.

However, their relationship appears to be distant and the adolescent has expressed disappointment that her mother did not believe her and help her return home safely. [ 19 ] The adolescent does not wish to see her father. [ 20 ] Under the circumstances, the evidence that the adolescent was physically, sexually and psychological abused remains uncontradicted and there is no credible basis upon which to discredit her allegations.

On the contrary, her allegations remained consistent and there is no indication, despite her difficulties, that she tends to be manipulative or deceitful in any way. [ 21 ] The parents' suggestion that the allegations can be attributed to the adolescent's psychological problems are purely speculative and not supported by the evidence.

On the contrary, in light of all the evidence adduced, the Court finds it far more likely that the abuse contributed to the adolescent's psychological suffering. [ 22 ] Consequently, the Court concludes that the Director of Youth Protection has established, on a balance of probabilities, that the adolescent's security and development are compromised for each of the alleged reasons and that the measures are in the adolescent's interest. [ 23 ] THEREFORE, THE COURT: [ 24 ] GRANTS the motion; [ 25 ] DECLARES that the security and the development of the adolescent, X , are compromised under

section 38 c), 38 d) 1) and 38 e) 1) of the Youth Protection Act ; AS FOR THE MEASURES, THE COURT DEEMS IT TO BE IN THE ADOLESCENT'S INTEREST TO ORDER THE FOLLOWING MEASURES: [ 26 ] ORDERS that the adolescent be entrusted to a rehabilitation centre; [ 27 ] ORDERS that the frequency and modality of contacts between the adolescent and her parents be determined by the Director of Youth Protection, taking into account the evolution of the situation and the adolescent's wishes; [ 28 ] TAKES JUDICIAL NOTICE that the adolescent, at the moment, does not wish to have any contact with her family; [ 29 ] TAKES JUDICIAL NOTICE of the parents' willingness to respect the adolescent's wishes and to remain open to resuming contacts with their daughter when she is ready; [ 30 ] ORDERS that the adolescent receive the health care and services she requires, more particularly that she continue therapy at the A Hospital; [ 31 ] STRONGLY RECOMMENDS that the adolescent follow her treating physician's recommendations; [ 32 ] TAKES JUDICIAL NOTICE of the parents' willingness and openness to participate in counselling services with their daughter; [ 33 ] TAKES JUDICIAL NOTICE that engaging in such family counselling is not indicated at the moment; [ 34 ] ORDERS that the adolescent and her parents receive family counselling when deemed appropriate by the adolescent's treating professionals, if the adolescent wishes to participate; [ 35 ] TAKES JUDICIAL NOTICE of the adolescent's expressed desire to participate in programs geared to developing her autonomy; [ 36 ] RECOMMENDS that she do so as soon as she is ready; [ 37 ] ORDERS that a person working for A Youth and Family Centres provide aid, counsel and assistance to the adolescent and her family; [ 38 ] ENTRUSTS the situation of the adolescent, X, to the Director of Youth Protection of A Youth and Family Centres, who shall then see that the measures are carried out;

[ 39 ] AUTHORIZES the execution of the present order by any peace officer, if necessary; [ 40 ] THE WHOLE until the adolescent reaches the age of majority on [...], 2015. TAYA DI PIETRO, Q.C.J. Me Marie-Josée Paiement / AJ4454 Attorney for the Director of Youth Protection Me Marie-Josée Ayoub / AA00B3 Attorney for the adolescent Me Yael Valérie Banon / BS2067 Attorney for the parents Hearing dates: June 12 and October 16, 2013 . TD/vl