2023 QCCQ 7584, 2023 QCCQ 7584

Protection de la jeunesse — 234146 2023 QCCQ 7584 JR1585 COURT OF QUÉBEC Youth Division CANADA PROVINCE OF QUÉBEC DISTRICT […] N° : 505-41-007322-136 505-41-005900-099 505-41-005312-089 DATE : August 3, 2023 ______________________________________________________________________ PRESIDED BY : THE HONOURABLE MÉLANIE ROY, J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1] and [SOCIAL WORKER 2], Youth Protection workers duly authorized by the Director of Youth Protection of the Centre intégré de santé et de services sociaux A Applicants -and- X , born on […], 2011 Y , born on […], 2009 Z , born on […], 2007 Children -and- A Mother -and- B Grandmother (Impleaded Party) ______________________________________________________________________ JUDGMENT

Section 95 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 9.2, 9.3 and 135 Y.P.A .] [ 1 ] The children are entrusted to the foster family of their great aunt Mrs. C (the aunt). X is 11 years old and is entrusted to this foster family in virtue of the last protection order rendered on July 6, 2022.

Her siblings Z and Y are also entrusted in this environment until their majority in virtue of an order of December 20, 2021. [ 2 ] The Director of Youth Protection (the Director) applies for the revision and extension of these decisions, alleging that X was sexually abused by her brother D at the grandmother’s home and that the mother refuses or neglects to sign the necessary authorizations

for the children. [ 3 ] While recommending that the children remain entrusted to their aunt, the Director seeks that the Court allow the aunt to sign the authorizations for the children while withdrawing the grandmother’s status within the proceedings. [ 4 ] On May 5, 2023, the Court dispenses the testimony of the child X. Position of the parties [ 5 ] The mother disagrees with the application, denying that her son could have ever abused her daughter.

The grandmother shares this position. [ 6 ] The mother considers that she collaborates with the Director and should be able to give all the authorizations for her children. [ 7 ] The grandmother agrees with the recommendations, although she does not want her status withdrawn. [ 8 ] The children subscribe to the application. As to the contacts, they are satisfied with the present situation. They do not want the withdrawal of supervision. [ 9 ] Z’s father is not present but was duly notified. The Court authorizes the Director to proceed in his absence. He is not involved in his daughter’s life.

Questions at issue [ 10 ] Is X in need of protection because she was sexually abused by her brother? [ 11 ] Should the contacts between the children and their mother be supervised in their best interest? [ 12 ] Should the Court partially restrain the exercise of the mother’s parental authority to allow the aunt to sign the authorizations that are necessary for the children? [ 13 ] Should the grandmother remain an impleaded party in X’s file?

The evidence X’s situation and the allegations of sexual abuse [ 14 ] Since the last court order, the child remains with her aunt. [ 15 ] From 2013 to March 2022, the child was entrusted to her maternal grandmother. Her older brother D also lived under the same roof. On September 20, 2022 the Director retains a report concerning a situation of sexual abuse implicating her older brother D. [ 16 ] The relationship between the child and her brother D was always difficult.

Between the ages of 9 and 10, the child began to demonstrate serious behavioral difficulties and in the presence of caseworker she could quickly become aggressive and emotional towards her brother. [ 17 ] The evaluation reveals that on two occasions during school transportation, the child made sexualized gestures and asked other students to touch their private parts. [ 18 ] The first incident occurs on September 19, 2022, on the taxi that takes X home after school.

The disciplinary report indicates that the child was playing “Simon Says” with other students and there was touching of private parts and the use of vulgar language. [ 19 ] Informed of the incident by the school, the aunt speaks to X upon her return from school. After telling her that she knew what she did, she asks her “who showed you that?”, to which the child responds, her brother D. [ 20 ] She then asked the child to write down what happened on a piece of paper.

She testified that she did not want to question the child on the incidents. [ 21 ] The child wrote the following: “…on the taxi was true and the game that we were playing I got it from D. He made me touch his privite [sic] part and made me suck his privite [sic] part and then he made me do it for a long time and when I said no and he said “I’m going to tell grandma what you did” and I said “what did I do” and he said “you know what you did”. So I had to do it and when I left to go to aunty Irene’s house I was happy that I can’t do it anymore.” [1] [ 22 ] X’s school educator testified.

She knows her very well and has been working with her for the last three years in regard to her incontinence issues. [ 23 ] She explained that the situation improved after the child was entrusted to her aunt but has degenerated since March 2023. [ 24 ] She was made aware of the two incidents during school transport, although only verbally of the second incident. [ 25 ] She asked to see the child in her office. She told the child that the principal had asked her to talk to her because she had touched boys inappropriately. When she asked her if she did it, she said yes.

She then asked her why she acted that way and the child answered that she wanted them to know how it is to be touched.

[ 26 ] She then asked her why it was important for them to know that, and she answered that her older brother used to touch her.

She added that her brother asked her to touch his penis and if she did not say yes, he would tell the grandmother. [ 27 ] She said it happened a lot and the last time was before she went to live with her aunt. [ 28 ] On November 16, 2022, the case worker met with the child at school to explain her role in the evaluation of the situation and the multisectoral agreement process. [ 29 ] The child indicated, without hesitation, that she would have to talk about the sexual abuse with her brother D. She hesitated to go to the police station stating being afraid of her brother being angry.

She finally agreed to participate in a video interview on the same day. [ 30 ] The video interview is produced in evidence. [ 31 ] During this interview, the child speaks easily about the abuse. She explains that it started when she was approximately 8 years old and ended when she was entrusted to her aunt.

She explains that she does not remember all the details but says that her brother had asked her to come and play with Legos and after 5 minutes, he took her hand and said he had a surprise, and he made her touch his private parts. [ 32 ] She describes the abuse as having happened more than once, that she was forced to touch her brother’s private parts and that he would sometimes grab her arm to do so. She describes the private parts as penis and butt. She also mentions that she had to put her mouth on his private parts and was asked from her brother to “suck it” while he held his hand on her head.

The abuse would usually take place in her brother’s bedroom. X adds that her brother would “blackmail” her when she refused to go in his room her by saying that he would tell the grandmother. [ 33 ] After the interview X said she was proud of herself. [ 34 ] Following this interview, the mother was made aware of her daughter’s disclosure. She was very aggressive towards the social workers and refractory to the intervention. She was in complete denial and blamed the aunt.

She also refused to sign for her daughter to receive services. [ 35 ] The mother believes that the foster care worker or the social worker abused the child. [ 36 ] She told the social worker that her son is a good boy because he is in the cadets. She also testified to same effect before the Court. [ 37 ] After the child’s disclosure of the sexual abuse, the mother could raise the subject with her daughter and be inappropriate. Before these hurtful interventions, the child reacts by not wanting to see her mother anymore. [ 38 ] On December 5, 2022, the case worker met with the child at the aunt’s house.

The child expressed that since she opened about the abuse, her mother and grandmother are making excuses to avoid their scheduled supervised contacts. She states being saddened by the fact that her mother seems angry. [ 39 ] The aunt told the caseworker that since her video interview, the child often has the need to talk about the abuse. She fears returning to live with her grandmother as well as reprisals from D. [ 40 ] The Director concludes that the facts are founded in relation to a situation of sexual abuse.

In February 2023, the Court provisionally forbids the contacts between the child and her brother. [ 41 ] The child has been suffering for a long time from encopresis and enuresis and must take medication. When she arrived at her great aunt’s home, she was wearing a diaper. She was also bullied in school because of her smell. [ 42 ] Since living with her great aunt, the child has made great progress and her situation has significantly improved. The great aunt has worked very hard to help the child with her issues.

A few months after arriving, she was able to live a normal life, not wearing diapers and feeling fresh and clean. [ 43 ] That all changed again at the beginning of April 2023. [ 44 ] The turning point seems to be that, at that time, she was asked to meet the prosecutor in relation to the criminal proceedings following the declaration she made to the police. [ 45 ] She must again wear pull-ups and, as her great aunt testifies, she had “many, many’ accidents. She hides the soiled pull-ups all over the house. She is a nervous little girl and cries all the time.

She also has started stealing, hiding and binging food. [ 46 ] The great aunt explains that she no longer talks to the adults in school with whom she used to share her thoughts and feelings. She is sad and says clearly that she does not want to come to Court. The great aunt is really worried about the child. [ 47 ] She has declared having been abused and understands that her mother and grandmother don’t believe her.

The child is clearly caught in the middle of the conflict within her family. [ 48 ] Z and Y were informed by the foster care family with the support of the Director, of their sister’s situation. [ 49 ] The child has irregular contacts with her mother. The visits are supervised by a youth worker. The mother misses many visits and is sometimes hard to reach. When the contacts take place, the mother is often lost in her thoughts and does not give her full attention to her daughter.

[ 50 ] Having not brought any of her things from her grandmother’s home when she transfers to her aunt’s, the child repeatedly asks her grandmother for her personal belongings. Her grandmother always tells her that she cannot find them. [ 51 ] Z’s situation [ 52 ] Z develops positively in her foster home and is clearly attached to her caregiver.

In her daily life, she generally functions well despite an attachment disorder diagnosed in her early years, which to this day still has a significant impact on her life. [ 53 ] Following the last court order, Z and Y had a few supervised visits with the mother and grandmother. Most of the visits ended in conflicts or inappropriate behavior from the mother. [ 54 ] During some visits the mother can express negative comments towards her child’s caregiver. Z is aware that her mother is vulnerable but is also caught in the middle of a loyalty conflict. She can feel miserable and distressed for days.

The mother’s behavior and attitude affect the child in such a way that can disturb her normal functioning if the contacts are not of a positive nature. [ 55 ] In March 2023, the Director must intervene because of the child suicidal threats. After an evaluation, it was concluded that she did not have any real intention to commit suicide. [ 56 ] Since then, she has reactivated her follow-up with her psychologist. [ 57 ] Since February 17, 2022, Z and her brother refuse to see their mother.

They both wrote a letter to her mainly expressing the fact that they feel that she does not pay attention to them during visits and that they are boring. In her letter, Z calls the foster mother her “mom” and indicates that she does not feel the connection with her biological mother, adding that they are becoming strangers.

She wishes to stop the visits because she always feels sad and wants to take care of her mental health. [ 58 ] She has not had any contacts with the grandmother in a long time. [ 59 ] Y’s situation [ 60 ] He has been living with his aunt since his infancy and she represents the most important parental figure in his life. Despite evolving positively, he shows more opposition than before. [ 61 ] He has little interest in going to visits with his mother although he enjoys seeing his siblings, especially D. However, he has not seen him for a long time because of the situation concerning X.

He used to have aggressive outbursts and anger but since the visits are in a neutral and supervised environment, he is more appeased and rarely exhibits aggressivity. [ 62 ] After the last court order, he has expressed the need to learn to deal with his emotions and attends anger-management workshops. However, as of now, he is no longer interested. An educator supports the foster mother to restore a better communication with the child.

The aunt testifies that she really appreciates her help and that she is “wonderful”. [ 63 ] As for the contacts with the mother and the grandmother, Y is in the same situation as his sister Z. [ 64 ] Visits and mother’s situation [ 65 ] The mother suffers from a mild intellectual deficiency, making the social follow-up difficult. She still does not accept that her children are entrusted to the aunt and wants them back under her care. She can easily lose her temper with the caseworker and refuses to get help. [ 66 ] The Director is often unable to reach her.

She does not always answer her phone and her voice mail is full. Several months may pass without the social worker being able to reach the mother. [ 67 ] The aunt made requests for Z and Y to receive their social security number since they want to open a bank account and eventually work. The mother refused to sign this authorization stating that they should not work until they are 16 years old. [ 68 ] The aunt can’t travel with the kids because the mother will not sign the necessary authorizations; they must be babysat. [ 69 ] At the hearing, the mother testifies.

She explains that she has been living with the grandmother since March 2023. [ 70 ] Regarding the abuse, she reiterates that she would like to believe her daughter but that it is impossible that her son committed such acts. [ 71 ] As for the necessary authorizations for her children, she does not want the aunt to be able to have the passports since she believes she tried to defraud her several years ago, without offering further details.

The grandmother [ 72 ] The grandmother has party status in X’s file. [ 73 ] There is a strong bond between X and her grandmother. [ 74 ] The grandmother does not accept the fact that X is entrusted to her aunt and says that it is the result of manipulation from the aunt. [ 75 ] She has regular contacts over the phone with X, however, the child can’t visit her since the mother now lives with the grandmother. The grandmother doesn’t want to have supervised visits at the Director’s office.

[ 76 ] At the hearing, she testifies briefly. She explains that she does not know what to believe about the abuse. She mentions that she was always present at the house and that the great grandmother that was there until 2019 and was always seeing the rooms when sitting in the kitchen. She adds that D could not stand his sister’s smell so he could not have done that and that he never played Legos with his sister.

Analysis and decision [ 77 ] Is X in need of protection because she was sexually abused by her brother? [ 78 ] The evidence demonstrates upon the balance of probabilities that the child is a victim of sexual abuse at the hands of her brother D. [ 79 ] The declarations she made are admissible as evidence as her testimony was dispensed according to

section 85.5 of the Youth Protection Act . [ 80 ] The declaration of the child on the video interview is highly reliable. During the interview, she freely tells her story in a constant and coherent manner. She relates the facts and describes in sufficient details her brother’s abusive gestures towards her.

She describes the atmosphere that reigns during the episodes of abuse, including the threats made by her brother as well as the secrecy and constraint that inhabits her. [ 81 ] The verbalizations that she made to the educator of her school as well as those that were made in writing with her aunt are spontaneous and do not result from a suggestive or repetitive questioning. [ 82 ] Her allegations remain consistent over time. She feels sad about her mother and grandmother not believing her.

She has not changed her version despite their attitudes. [ 83 ] She also has a lot of reactions since the disclosure and her personal situation has worsened. [ 84 ] D was announced as a potential witness when the case conference protocol was prepared with the lawyers however, he did not testify.

The Director has not interviewed him because of the pending criminal procedures. [ 85 ] In determining that the child's security and development are compromised on the grounds of sexual abuse, the Court considers the following factors: i.The serious and repeated nature of the gestures; ii.The child’s significant vulnerabilities due to her history of neglect and diagnoses; iii.Neither the mother nor the grandmother, who have been parentals figure in recent years, is protective; iv.The mother refuses that the child receive services appropriate to his situation, by refusing psychological follow-up. [ 86 ] The Court is satisfied with the evidence that the child was sexually abused by her brother D, on many occasions, while she was under the care of her grandmother. [ 87 ] The support from professional will be important for X to address the abuse and overcome the numerous impacts in her life. [ 88 ] Should the contacts between the children and their mother be supervised in their best interest? [ 89 ] It is in the best interest of the children to be able to benefit from supervised visits with their mother in accordance with their wishes. [ 90 ] The mother's personal situation remains unchanged, and she does not actively participate in the intervention plan.

She places her daughter X in a conflict of loyalty by choosing not to believe her. She shows little interest in her children during visits and the letters written by Z and Y testify amply to their feelings for their mother. [ 91 ] The Director must closely monitor the progress of the contacts. Given their age and situation, the children should be respected in their desire to see their mother, or not.

If they wish to see her, the contacts must remain under the supervision of a third person. [ 92 ] Should the Court restrain partially the exercise of the mother’s parental authority to allow the aunt to sign the authorizations that are necessary for the children? [ 93 ] The aunt must be able to exercise certain attributes of parental authority in the best interest of the children. [ 94 ] In recent years, the mother has had the opportunity to exercise her parental authority over her children.

Unfortunately, and probably because of her personal difficulties and issues, the evidence shows that she does not act in the best interests of children and even prevents their progress and development. [ 95 ] By refusing psychological support for X or by preventing the children from traveling with their aunt, for example, she demonstrates that she is not acting as a responsible and loving parent towards her children. [ 96 ] Should the grandmother remain a party in X’s file? [ 97 ] The child is now evolving in a safe, reliable, predictable and structured environment in which she receives proper response to her special needs.

[ 98 ] The grandmother dismisses X’s disclosure even if it happened under her own roof.

She also refuses to return the child’s personal effects, despite several requests. [ 99 ] Although her status as a party was relevant at the stage of the hearing since she was able to give information concerning events that occurred under her roof, she now no longer has custody and does not detain privileged information in regard to X. [ 100 ] Of course, she remains a significant person for the child, but no longer meets the party criteria under the Youth Protection Act as it is no longer in the best interest of the child. [ 101 ] After having received the admissions, taken into consideration the reports produced and the testimonies heard, the Court concludes that the security and development of the children are still in danger and that the situation justifies the measures sought.

FOR THESE REASONS, THE COURT: [ 102 ] GRANTS the application; [ 103 ] DECLARES that the security and the development of the children , X, Y and Z are still in danger; [ 104 ] DECLARES that the security and the development of the child X are in danger for the additional reason of: - 38d)1): sexual abuse [ 105 ] REVISES and EXTENDS the order rendered on July 6, 2022 for X and on December 20, 2021 for Y and Z ; [ 106 ] ORDERS that the children be entrusted to a foster family chosen by the Director of Youth Protection, namely E; [ 107 ] ORDERS that the contacts between the children and their mother be following agreement between the parties, in the presence of a third party chosen by the Director and according to the children’s wishes; [ 108 ] AUTHORIZES the lifting the supervision of the contacts between the children and their mother following agreement between the parties; [ 109 ] TAKES JUDICIAL NOTICE that Z and Y don’t want any contacts with their mother for now; [ 110 ] ORDERS that the contacts between the children and their maternal grandmother be following agreement between the parties concerning the terms, frequency and the degree of supervision required and according to the children’s wishes; [ 111 ] FORBIDS any contact between the child X and D; [ 112 ] FORBIDS any contacts between the child Z and her father; [ 113 ] ORDERS that the mother take an active

part in the application of the measures; [ 114 ] ORDERS that a person working for an institution or body provides aid, counselling and assistance to the children and their family; [ 115 ] ORDERS that the child X and Z receive certain health care and health services required by her situation and more particularly a psychological follow-up; [ 116 ] WITHDRAWS the exercise of certain attributes of parental authority from the mother and AUTHORIZES Mrs E to sign the authorizations required for medical, school, recreational, extra-curricular or travel purposes, including the application for a passport, driving lessons and driver’s licence; [ 117 ] ENTRUSTS the situation of the children, X , Y and Z to the Director of Youth Protection of A for the execution of the judgment; [ 118 ] THE WHOLE measures until the respective majority of the children, as of […], 2029 for X, as of […], 2027 for Y and as of […], 2025 for Z; Mélanie Roy, J.C.Q.

M e Frédérique Earls-Bélanger Attorney for the Director M e Kelly-Ann Sinnett Attorney for the child M e Kathleen O’Meara Attorney for the father

M e Gisèle Tremblay Attorney for the grandmother Date of hearing : June 20, 2023