r v. D, 2016 QCCQ 6480

Protection de la jeunesse — 162642 2016 QCCQ 6480 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-004972-157 760-41-004971-159 760-41-004970-151 DATE: February 19, 2016 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X, born [...], 2004 Y , born [...], 2003 Z , born [...], 2002 Children ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner v.

D E Parents ______________________________________________________________________ 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 ] The Director of Youth Protection presents motions of protection in regards to the siblings X, Y and Z, born respectively on [...], 2004, [...], 2003 and [...], 2002.

The Court jointly hears motions for protection concerning the other older siblings A and B, born respectively on [...], 1998 and [...], 2001. [ 2 ] The Director alleges that the security and development of the children are in danger following A being subjected to gestures of sexual abuse by her Mr. E (father), contributing to a serious risk of sexual abuse in relation to the other children.

As protective measures, the Directors seeks a one year order including the structuring of the children’s contacts with their father. [ 3 ] The mother consigns her admissions and is in agreement with the conclusions sought by the Director. The children share this position. [ 4 ] Through his attorney, the father states being in agreement with the measures sought. He declares having neither further comments nor contestation as to the documentary evidence tendered by the Director, which is produced by consent of the parties. [ 5 ] Context [ 6 ] The parents live together for approximately 11 years, separating in 1997.

During their union, six children are born, of which only the oldest is an adult (C). [ 7 ] The father’s paternity is recognized as to X, Y and Z. At the hearing, the mother declares that Mr. E is the biological father of A (17 years old) and B (14 years old). No distinctions are made within the family unit and A and B recognize Mr. E as their father.

[ 8 ] The father exercises regular access to the children until 2014 when the mother denies further contacts in relation to an incident relating to drug use. [ 9 ] In July 2015, A declares to a friend and then her mother, to having been sexually abused by her father, Mr. E. The mother immediately reacts and contacts the police to denounce the situation. [ 10 ] Considering the nature of the allegations, there is application of the multi-sectorial agreement between social services and police authorities.

On July 8, 2015, the Director of Youth Protection retains a situation of sexual abuse as to the child A and concurrently, a risk of sexual abuse as to her siblings. [ 11 ] A offers her declaration by way of a video-interview with the police.

In the said declaration, she stipulates the following: • Her father abuses her during a period of two years, namely from the age of 14 to 16 years old; • Commencing with sexual contacts, the incidents escalated to include complete sexual relations; • The incidents of sexual abuse occur on numerous occasions while she is visiting with her father; • Her siblings are often present on these occasions; • The father uses coercive strength during the sexual relations; • The father threatens to sexually abuse her sisters should she fail to comply with his demands; • The father takes pictures of her breasts; • The last incident occurs in March 2015, when A asks her to come to her home because he is ‘’sexually lonely’’ and threatens to go after her sisters should she refuse; [ 12 ] The social worker subsequently meets with A.

She confirms the declarations made to the police. Since communicating the sexual abuse at the hands of her father, A is less anxious and more emotionally balanced. She is able to focus on her school work. She relates still having nightmares as to the abuse and to being distrustful of men. [ 13 ] The other members of the family learn of the sexual abuse involving A at the same moment.

The mother and her siblings believe the allegations, although they had no previous knowledge of the situation. [ 14 ] B mentions feeling uncomfortable around her father during visitation in regards to certain comments and gestures of a sexual nature. This sentiment is also reflected by Z who further indicates having seen her father go into a bedroom with her sister A on several occasions while the other siblings were otherwise engaged. He would tell them to not disturb them as they were having a conversation.

She once saw her sister come out of the bedroom looking upset. [ 15 ] The allegations adversely affect the family. Both Z and B demonstrate feelings of guilt and anger in regards to the sexual abuse on their sister. Y and X are less conscious of the situation and continue to function well. [ 16 ] The father has a criminal record which includes assault, uttering threats and two counts of sexual assault relating to minors.

The incidents for which he pleads guilty relate to two sisters and occur over many years. [ 17 ] Subsequent to A’s denunciation, the father is charged with various accusations of sexual misconduct, including sexual assault, assault, incest, anal intercourse, invitation to sexual touching, child pornography and sexual exploitation. He is initially detained awaiting his bail hearing. [ 18 ] During this incarceration, the social worker meets with the father. He denies having sexually abused A, although he mentions that he might offer a guilty plea if it avoids him further detention.

As to the other elements brought forth by the children of a sexual nature, he offers a blanket denial. As to his previous convictions of sexual assault, he states not being guilty but to having pled guilty to get it over with. [ 19 ] Afterwards, the father is released on strict conditions by which he must abstain from any communication with A or her family as well as persons under the age of 18 (D-5). [ 20 ] Since his release, the father refuses to collaborate with the Director. [ 21 ] A and her mother have commenced follow-ups with the [center A] and have made requests to benefit from IVAC .

Other services will be made available for the other siblings. [ 22 ] The mother is sensitive and protective of her children’s needs.

She offers her full cooperation to the Director and seeks their accompaniment in helping find resources to support A and the family. [ 23 ] The mother states that the children wish no contacts with their father. [ 24 ] Analysis and decision [ 25 ] The Director of Youth Protection assumes the onus of demonstrating the allegations put forth by a balance of probabilities, namely the situation of endangerment and the appropriate nature of the protective measures sought. [ 26 ] A offers a clear and consistent detailing of incidents of abuse suffered at the hands of her biological father. She first divulges

the situation in a context of spontaneity, wanting to protect her sisters following threats of abuse by her father. [ 27 ] Ancillary facts give further credibility to the declarations of abuse. The Court notably retains Z’s declaration of seeing her father and sister going into a bedroom and the father not wanting to be disturbed. She also states seeing her sister coming out of the bedroom looking upset.

The father’s criminal history of similar sexual assault concerning minors is also a confirming factor. [ 28 ] After taking into consideration the evidence, the Court determines that the Director discharges its onus in demonstrating a situation of sexual abuse as concerns the child A. [ 29 ] As to the allegations of a serious risk of sexual abuse in regards to the other siblings, the Court considers the following facts in retaining such allegation: • The incidents of sexual abuse occur in the proximity of the other children during access rights; • The father threatens to abuse the other children; • The father has a proven propensity of sexual deviance in relation to minors; • The father’s denial and refusal to cooperate with the Director of Youth Protection. [ 30 ] Consequently, after taking into consideration the parties' admissions as well as the documentary evidence, the Court considers that the allegations in the proceeding are proven to its satisfaction and furthermore, give rise to the measures sought. [ 31 ] FOR ALL THESE REASONS, THE COURT: [ 32 ] GRANTS the motions for protection; [ 33 ] DECLARES that the security and the development of the children Z, Y and X are in danger in reason of a serious risk of sexual abuse; [ 34 ] ORDERS that the children remain in their maternal environment; [ 35 ] ORDERS that the contacts between the children and Mr.

E be upon the children's request and in the presence of a third party chosen by the Director; [ 36 ] ORDERS that the children and the parents report periodically to the Director of Youth Protection on the measures they apply in their own regard or on the children's regard to put an end at the situation in which the security or development of the children is in danger; [ 37 ] ORDERS that the children and their parents take an active

part in the application of the measures ordered; [ 38 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the children and their family; [ 39 ] ALL THESES MEASURES for a period of one year; [ 40 ] ENTRUSTS the situation of the children to the Director of Youth Protection A for the execution of the judgment. __________________________________ BÉATRICE CLÉMENT, J.C.Q. Me Frédérique Dupuy Attorney for the Petitioner Me Michel Robert Attorney for the mother Me Jean-Pierre Robillard Attorney for the father Me Malyka Jean Baptiste Attorney for the children Date of hearing: February 19, 2016