2017 QCCQ 13739, 2017 QCCQ 13739

Protection de la jeunesse — 176103 2017 QCCQ 13739 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] CITY OF [...] Youth Division Nos. 615-41-002229-176 615-41-002230-174 615-41-002231-172 615-41-002232-170 615-41-002233-178 615-41-002234-176 DATE: August 21, 2017 ______________________________________________________________________ PRESENT: THE HONOURABLE RENÉE LEMOINE J.C.Q. ______________________________________________________________________ IN THE MATTER OF : X, born on [...], 2001 Y, born on [...], 2005 Z, born on [...], 2005 A, born on [...], 2015 B, born on [...], 2013 C, born on [...], 2003 [SOCIAL WORKER 1] and [SOCIAL WORKER 2] , in their capacity as persons authorized by the Director of Youth Protection of the Centre integré de santé et de services sociaux A, having a place of business at [...] in City A, district A [...] Applicants and D , domiciled and residing at [...] in City A, district A [...] Mother and E , domiciled and residing at [...] in City A, district A [...] Father ______________________________________________________________________ JUDGMENT ( Sections 38 and 75 , Youth Protection Act , R.S.Q. c.

P-34.1) ______________________________________________________________________ WARNING: The Youth Protection Act prohibits the publication or broadcast of information allowing a child or the child’s parents to be identified. Every person who contravenes this provision is guilty of an offence and is liable to a fine ( sections 11.2 , 11.2.1 and 135 Y.P.A.). [ 1 ] The Court is seized of an application under

section 38 of the Youth Protection Act (YPA) concerning the situation of the children X, A, B, Y, Z and C. [ 2 ] The applicants requested that the security and development of the children be declared to be in danger for the following reasons : − The risk of sexual abuse with regard to all the children (38( d )

(2) YPA ); − Psychological ill-treatment resulting from the fact that the children are exposed to conjugal violence (38(

c) YPA ).

[ 3 ] The mother was present but not represented by a lawyer. The father was absent from the hearing. [ 4 ] The mother did not admit any facts. She only mentioned that the father agrees to undergo treatment for his drinking problem, participate in a psychosexual assessment and receive follow-up.

He also agrees to live outside the family house in order to allow the children to stay with the mother. [ 5 ] The issue to be decided is whether the applicants have proven the following allegations on a balance of probabilities: − There is a risk of sexual assault for all the children; − The parents exposed the children to conjugal violence to the point that it can be considered psychological ill-treatment; Request to dispense the child from testifying [ 6 ] Counsel for Z made a request under

section 85.2 YPA to dispense the child from testifying, as it would be prejudicial to her mental or emotional development to testify in the present proceeding.

Section 85.2 YPA reads as follows: 85.2. Exceptionally, the tribunal may dispense a child from testifying if it believes that testifying could be prejudicial to the mental or emotional development of the child. [ 7 ] Dispensation from testifying has a significant impact on the administration of the evidence. If the Court dispenses the child from testifying, the child’s extrajudicial statement made to a third party can be admitted as evidence of the existence of the fact stated therein. 85.5.

The declaration made by a child who is not competent to testify at the proceedings or who has been dispensed therefrom by the tribunal is admissible as evidence of the existence of the facts stated therein. However, the tribunal shall not rule that the security or development of the child is endangered on the strength of the declaration unless the reliability of the declaration is sufficiently guaranteed. [ 8 ] The evidence shows that the child is very fragile. She feels responsible for the separation of the family.

She also feels rejected and abandoned. [ 9 ] The Court is of the opinion that testifying would be very prejudicial emotionally for her. The child will be dispensed from testifying under

section 85.2 YPA . [ 10 ] The declaration made by the child in a video at the police station is admissible as evidence.

Reliability of the statement [ 11 ] Concerning the reliability of the statement, in order to consider it as evidence proving that the security and development of the children are in danger, the Court considers the following facts: − The statement is very spontaneous, without interventions from the social worker who did the interview; − The child gave many details, despite her young age at the time of the event and the time passed since the event; − The child was very emotional and her reaction was compatible with the pain of a child who discloses such abuse by her father; − The child was able to describe her feelings when the event occurred.

She was scared. People who have not experienced such abuse will generally not described their feelings; − Her sister stated that she has a big secret but refuses to disclose it; − A friend of the child has been victim of a sexual abuse by the father in similar circumstances. [ 12 ] All those elements convince the Court of the reliability of the child’s statement.

The evidence [ 13 ] The statement of the child Z revealed that two events occurred. [ 14 ] The first event occurred when she was four or five years old at her grandmother’s place in City B. [ 15 ] Her father came into her bedroom, grabbed her hand and put it on his penis. He also put his hand under her shirt. She was scared. She did not scream. [ 16 ] The second event was when she was around seven years old. It was at the yellow house near the school in City A. He did the same. He was drunk. He had his pants off. He tried to put her hand on his penis.

She resisted and did not touch his penis. [ 17 ] During a sleepover at her place, her friend Talia was invited to touch her father. He put her hand on his penis. The risk of sexual abuse

[ 18 ] Given the evidence, the Court concludes that the children are at risk of sexual abuse due to the position taken by the mother and considering the fact that the father admitted having sexually abused a teenager, who is a friend of X, during a sleepover at the family house. [ 19 ] With regard to C, who is a 14-year-old boy, the Court believe that he is also at risk of sexual abuse. In the past, the mother denounced a situation of sexual abuse toward him at the police station. The father was impaired by alcohol. The child C was asleep in the parent’s bed. The mother witnessed sexual touching by the father.

The father’s explanation was that it had occurred accidently. [ 20 ] Even if the child C is very tall for his age, he is still very vulnerable due to the fact that the situation involves his father. The psychological ill-treatment [ 21 ] The father recognizes having a long history of alcohol abuse problems. [ 22 ] That problem causes much conflict between the parents. The children are awakened by verbal arguments and are afraid.

Some of the children take care of their younger siblings to protect them when those situations occur. [ 23 ] According to the evidence, the children are exposed to conjugal violence on a regular basis. This situation has a major impact on their need for security. [ 24 ] The Court is of the opinion that the security and development of the children are in danger due to the psychological ill- treatment caused by the conflicts and the conjugal violence between the parents.

Serious behavioural disturbance [ 25 ] According to the evidence, the child Z suffers from an emotional disorder. [ 26 ] She engaged in self-mutilation and had suicidal ideation. Those symptoms are probably linked to her family situation and what she experienced. This is clearly a sign of distress, which must be addressed by professional help. [ 27 ] The mother mentioned that she suspected a mental health problem such as schizophrenia.

She stated this as an explanation why the child disclosed sexual abuse by her father. [ 28 ] The Court does not believe that the disclosure of the sexual abuse is a manifestation of schizophrenia. The child, in her statement, was not outside the realm of reality.

Nothing in her statement or in the way she disclosed the facts showed signs of mental health issues. [ 29 ] Nevertheless, the child needs support and professional help in order to get through an emotionally difficult situation. [ 30 ] The Court wants to point out the importance for her to be supported by her family and, more specifically, her mother. [ 31 ] Currently, the position of the mother, who denies the sexual abuse, increases the child’s distress.

She feels rejected, abandoned and responsible for the separation of the family. [ 32 ] For the Court, the behavioural disturbance of the child is very serious and endangers her security and development. Applicable measures [ 33 ] The applicants recommends that the children X, Z and Y be entrusted to a foster family for a period of nine months. [ 34 ] For the children C, B and A, the recommendation is to entrust them to their mother, to the exclusion of the father. [ 35 ] With regard to Z and her twin Y, it is clear that they have to be entrusted to a foster family. Y wants to be with her sister to support her.

The mother does not protect her daughter Z. On the contrary, she rejected her and does not want her to come back at home. [ 36 ] The situation of X is different. She wants to return to her mother.

The Court believes that it is possible to entrust her to her mother. [ 37 ] The mother will have to collaborate and respect the condition not to put the children in contact with the father, except with the authorization of the DYP and under the conditions imposed by them. [ 38 ] If the mother does not collaborate and fails to respect the conditions, the situation will have to be reviewed in order to protect the children. [ 39 ] Through his spouse, the father stated that he is willing to undergo treatment for his drinking problem.

He also agrees to complete a psychosexual assessment and to follow the recommendations of the professional. [ 40 ] The Court hopes that the mother will understand how difficult it was for Z to disclose the sexual abuse and how that disclosure will help the whole family in the end. During the past years, the family life was very dysfunctional due to the father’s behaviour. According to the position he submitted to the Court and to the DYP, he agrees to address his problems. If he really does what he has to do, it will improve the situation of the whole family.

FOR THOSE REASONS, THE COURT: [ 41 ] GRANTS the motions; [ 42 ] DECLARES that the security and development of the children A, born on [...], 2015, C, born on [...], 2003, B, born on [...], 2013, Z, born on [...], 2005, Y, born on [...], 2005 and X, born on [...], 2001 are in danger under sections 38 ( d ) (2) and 38(

c) of the Youth Protection Act , and adds for the child Z paragraph (

f) of the same section; [ 43 ] ORDERS that the children A, C, B and X be entrusted to the mother, to the exclusion of the father; [ 44 ] ORDERS that the children Z and Y be entrusted to a foster home for a period of nine months, with the possibility of reintegrating their mother’s home as soon as the situation allows it; [ 45 ] ORDERS that aid, counsel and assistance be given to the children and their parents for a period of 18 months; [ 46 ] ORDERS that the father participate in a psychosexual assessment and follow the recommendations of the professional; [ 47 ] ORDERS that the father participate in a drug and alcohol assessment and follow the recommendations, including a therapy; [ 48 ] ORDERS that the mother participate in therapeutic follow-up for the period recommended by the professional and follow his recommendations; [ 49 ] ORDERS that contact between A, C, B and X and their father be supervised by the Director of Youth Protection regarding the frequency and modalities, including the presence of a third party for as long as required, and considering the children’s rhythm; [ 50 ] ORDERS that contact between Z and Y and their parents be supervised by the Director of Youth Protection regarding the frequency and modalities, including the presence of a third party for as long as required, and respecting the children’s rhythm; [ 51 ] ORDERS that the parents ensure that Z and Y receive psychological follow-up for as long as recommended by him and follow his recommendations; [ 52 ] ORDERS that the parents actively collaborate with the measures proposed by the Director of Youth Protection in order to put an end to the situation endangering the security and development of the children; [ 53 ] ORDERS that the parents report periodically to the Director of Youth Protection in order to inform the Director of the measures they put in place to put an end to the situation endangering the security and development of the children; [ 54 ] AUTHORIZES unannounced visits to the mother’s home or where the children are located by people authorized by the Director of Youth Protection; [ 55 ] ORDERS that all police forces collaborate in carrying out the present order; [ 56 ] ENTRUST the situation of the children to the Director of Youth Protection for the execution of the present judgment. __________________________________ RENÉE LEMOINE J.C.Q.

Mtre. Claude Cossette For the children Mtre. Valérie Martel For the applicants D Representing herself Date of hearing: July 7, 2017