r v. A, 2017 QCCQ 20798

Protection de la jeunesse — 1711159 2017 QCCQ 20798 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-005358-174 760-41-005357-176 DATE: October 24, 2017 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X , born [...], 2002 Y , born [...], 2000 Adolescent ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner v.

A B 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 ] Context [ 2 ] Alleging that the child Y is the victim of sexual abuse at the hands of the mother’s spouse (Mr.

C), the Director of Youth Protection seeks the application of various protective measures for one year. As to her sibling X, the Director concurrently alleges a serious risk of sexual abuse. [ 3 ] As well as measures of aid and counsel, the Director asks that the Court entrust the children to their father and structure their contacts with their mother as well as her spouse. [ 4 ] Y subscribes to the conclusions sought in her regard. [ 5 ] X doesn’t contest the situation of endangerment.

She is ready to remain with her father but wants no restrictions as to contacts with her mother and this, notwithstanding the presence of Mr. C. [ 6 ] The mother consigns her admissions and also doesn’t contest the evidence presented by the Director. As to the measures sought, she asks that the Court designate her to supervise the contacts between X and her spouse and offers to not consume any alcoholic beverages during such. [ 7 ] The father admits the essence of the allegations and subscribes to the orientation sought by the Director. He leaves the decision regarding contacts between X and Mr.

C to the appreciation of the Court. [ 8 ] The mother’s spouse, Mr. C, receives notification of the request for an order prohibiting his contacts with Y and of his right to be heard by the Court on this issue. He is not present at the date of the hearing. [ 9 ] The evidence [ 10 ] Both Y and X live under their mother’s custody in virtue of a Superior Court custody order rendered in 2010. They also share this residence with their step-father, Mr.

C. [ 11 ] They benefit from regular contacts with their father. [ 12 ] In the beginning of 2017, Y decides to move out of her mother’s home to reside with a friend’s family.

[ 13 ] On March 29, 2017, Y makes a criminal complaint claiming that she is the victim of gestures of a sexual nature at the hands of her step-father and this, on a repeated basis. [ 14 ] Notably, she declares the following: • When she is twelve years old, her step-father comes in her room to say goodnight. He kisses her using his tongue and grabs her breast. • She pushes him away and yells for her mother’s assistance, who responds by saying it’s okay, that he’s drunk and that she will get him to apologize.

The next day, her step-father speaks to her and promises that he will not act that way again. • In the ensuing years, her discomfort continues when her step-father does things such as slapping her backside or staring at her when she is changing. • A last incident occurs in January 2017. Both her mother and her step-father are under the influence of alcohol and an argument occurs. During a family hug, her step-father rubs her back and starts to slide his hand down her pants.

Feeling very uncomfortable, she rapidly backs away and leaves the room. • She sleeps in her sister’s room because she feels scared and unsafe. • The next day, Y speaks to her mother, who dismisses her fears and says that all he wanted to do was feel some skin. She says she will ask him to apologize. • Y then decides to leave home and live temporarily with some friends. [ 15 ] Since this declaration, Y maintains her version of events. She further testifies at the hearing having spoken to her mother many times as to how she felt uncomfortable around Mr.

C and that she would sometimes make a big commotion about his inappropriate comments. [ 16 ] She refrains from speaking directly to Mr. C for about two years. [ 17 ] X declares that Mr. C has never done anything of sexual nature towards her. Although she doesn’t question her sister’s allegations, she doesn’t feel that she is in any peril in her step-father’s presence. [ 18 ] Both Y and X describe their maternal family environment in similar terms. Mr. C works nights and they don’t usually see him until the weekend. His alcohol consumption is regular during the weekends, as can be their mother’s.

The conjugal relationship if often conflictual. [ 19 ] The mother cooperates with the evaluation. The mother recognizes the first event described by her daughter in regards to Mr. C. She confirms that her husband was drunk at the time and thinks he probably mistook Y for her. [ 20 ] As for the second, and more recent, incident, the mother recognizes the context as described by Y, although she states that she didn’t see anything inappropriate. She confirms that both she and her husband were under the influence of alcohol. Y told her the next day what had happened and she confronted her husband.

She concludes that he only wanted to feel some skin and had no harmful intent. [ 21 ] The mother further states not having been advised nor witness to any other inappropriate gestures or verbalizations from her husband in regards to her daughters. [ 22 ] To the caseworker, she says that her daughter tends to being overdramatic. She doesn’t see any risk of her daughters being in her husband’s presence nor the need to question her conjugal relationship. [ 23 ] She agrees to avoid contacts between her husband and her daughters. [ 24 ] On the advice of his attorney, Mr.

C refuses to speak to the caseworker. [ 25 ] Criminal proceedings are presently pending against Mr. C in regards to the allegations of sexual contacts with Y. He is subject to conditions of release, including a prohibition of contacts with Y.

He must also cannot be in the presence of minors save in the company of a responsible adult as well as being further prohibited from having any contact with a person under 16 years old, unless under the supervision of a person whom the court considers appropriate. (Exhibit D-6) [ 26 ] On June 5, 2017, the parties sign a provisional agreement providing that Y reside at a friend’s house and that X remain with her mother without any contacts with Mr.

C (residing on the weekends with her father). [ 27 ] As of June 19, the children reside with their father. [ 28 ] On June 29, 2017, the Director presents an application for provisional measures, seeking that the children reside with their father while benefitting from contacts with their mother following mutual agreement. A further request is made to prohibit contacts between the children and Mr. C. [ 29 ] The mother contests, stating that X is not at risk in her environment. As to contacts with her spouse, she considers that there is no danger as she is present.

The other parties agree or do not contest the provisional measures sought. After hearing the parties, the Court grants the conclusions of the application. [ 30 ] Since then, the children reside with their father and maintain contacts with their mother. Y sees her mother on a sporadic basis although they speak by phone. X visits her mother more regularly. Neither have been in contact with Mr. C.

[ 31 ] Analysis and decision [ 32 ] As to the alleged situation of endangerment, the Court refers to the definition of the Youth Protection Act : 38. For the purposes of this Act, the security or development of a child is considered to be in danger if the child is abandoned, neglected, subjected to psychological ill-treatment or sexual or physical abuse, or if the child has serious behavioural disturbances.

In this Act, (…) (d) “sexual abuse” refers to (1) a situation in which the child is subjected to gestures of a sexual nature by the child’s parents or another person, with or without physical contact, and the child’s parents fail to take the necessary steps to put an end to the situation; or (2) a situation in which the child runs a serious risk of being subjected to gestures of a sexual nature by the child’s parents or another person, with or without physical contact, and the child’s parents fail to take the necessary steps to put an end to the situation; [ 33 ] Since there is no definition of sexual abuse in the Youth Protection Act , numerous decisions have detailed the nature of what it constitutes.

The nature of alleged gestures and verbalizations are to be considered within the overall context of a situation, with an emphasis on the child’s perceptions.

The Court has to determine whether it is more probable than improbable the existence of a situation of endangerment. [ 34 ] Within its appreciation of the adolescent’s situation, the Court notably retains the following evidence as established by preponderance: • Y has repeatedly been subject to gestures and remarks of a sexual nature from her stepfather. • Although she has denounced this situation to her mother and her stepfather, these gestures and remarks continue. • Y denounces with consistence this situation to her sister, the police and caseworker. • Her security and development are endangered in numerous ways.

Her discomfort is palpable and ongoing. For more than two years she restricts her communication with her stepfather. • This is the impetus for her leaving her maternal environment. • The mother fails to take the necessary steps to protect her daughter. [ 35 ] After evaluating the evidence, the Court retains the situation of sexual abuse as alleged by Y. Her version of the events is clear and detailed, as well as maintained in time.

These are further confirmed by her final decision to remove herself from her maternal environment and this, despite the difficulties which ensue in her personal life and family relationships. [ 36 ] The mother does not take the appropriate measures to protect her daughters.

Although her spouse’s actions are revealed to her on a repeated basis and in an opportune manner, there are little effective measures taken to protect Y from further gestures of a sexual nature and the many impacts which she suffers. [ 37 ] The evidence establishes that the mother is unable, or unwilling, to take a clear position in regards to her daughter’s allegations and corresponding distress. Her attorney pleads that she is “paralyzed’’ by the situation.

Although the Court is sensitive to her situation, there remains that such is pertinent as to the evaluation of her capabilities to protect her children and, more specifically, supervise any future contacts with her spouse. [ 38 ] Although she doesn’t contest the factual situation, she continues to support her spouse to the detriment of her daughter’s well- being and security. Her position can only be interpreted as a rejection of her daughter’s distress and reflects her inability to be protective and undertake the steps required to put an end to the situation of endangerment. [ 39 ] Mr.

C is an authority figure for the children and remains, by way of his continued relationship with their mother, in close proximity. As well, the Court notes that the issue of alcohol consumption seems a tangible element within the incidents related by Y. [ 40 ] At the present time, there is no evidence that the maternal environment has made any tangible efforts to acknowledge or take steps to respond to this situation. [ 41 ] No services are in place and there is little question of such being the case, considering the position taken by the mother. Furthermore, the Court doesn’t benefit from Mr.

C’s perceptions of the situation, as he chooses to disregard the notice of the request for a prohibition of contacts. [ 42 ] X may well be a strong willed and determined young woman, but she cannot be allowed to assume the onus of protecting herself from inappropriate behaviours from her stepfather.

[ 43 ] Considering these elements, the Court determines that X is at serious risk of sexual abuse.

These same elements, justify that the Court deny the mother’s request to supervise the contacts between X and her step-father. [ 44 ] FOR ALL THESE REASONS, THE COURT: [ 45 ] GRANTS the applications for protection; [ 46 ] DECLARES that the security and development of Y are in danger in reason of sexual abuse; [ 47 ] DECLARES that the security and development of X are in danger in reason of a serious risk of sexual abuse; [ 48 ] ENTRUSTS the adolescents to their father; [ 49 ] ORDERS that the contacts between the adolescents and their mother be following agreement between the parties; [ 50 ] TAKES ACT of the mother’s commitment to not consume nor be under the influence of alcohol at the occasion of her contacts with her children; [ 51 ] PROHIBITS contacts between Y and Mr.

C and this, in either a direct or indirect fashion; [ 52 ] ORDERS that the contacts between X and Mr. C be following mutual agreement between the parties and in the presence of a third party chosen by the Director; [ 53 ] DETERMINES that the mother not be this third party; [ 54 ] ORDERS that the parents report periodically to the Director of Youth Protection on the measures they apply in their own regard or their children’s regard to put an end at the situation in which their security or development are in danger; [ 55 ] ORDERS that the adolescents and their parents take an active

part in the application of the measures ordered; [ 56 ] ORDERS that a person working for an institution or body provide aid, counseling or assistance to the adolescents and their parents; [ 57 ] ALL THESE MEASURES for one year; [ 58 ] ENTRUSTS the situation of the adolescents to the Director of Youth Protection A for the execution of the present judgment. __________________________________ BÉATRICE CLÉMENT, J.C.Q. Me Sarah Gaudry Staub Attorney for the Petitioner Me Chloé Parent Lemieux and Me Jacinthe Leroux Attorneys for the mother Me Michel Robert Attorney for X Me Karine P. Poissant Attorney for Y Date of hearing: October 24, 2017