2021 QCCQ 15429, 2021 QCCQ 15429

Protection de la jeunesse — 218868 2021 QCCQ 15429 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF […] “Youth Division” No: 525-41-033074-170 DATE: December 2, 2021 ______________________________________________________________________ PRESENT: THE HONOURABLE FRANÇOIS STE-MARIE, J.C.Q. ______________________________________________________________________ DIRECTOR OF YOUTH PROTECTION and X Born on [...], 2009 child and A B parents ______________________________________________________________________ JUDGMENT

Section 95 of the 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 liable to a fine (sections 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] The Director of Youth Protection (the Director) presents that it is necessary to extend and revise the order rendered on November 23, 2018. [ 2 ] The Director alleges that the child was subjected to inappropriate means of discipline by her father and that she witnessed conjugal violence between the father and his partner, Mrs. C. The Director also alleges that X and Y had sexual behaviours that lead to a situation of compromission under

article 38

d) of the Youth Protection Act . [ 3 ] Y and X remained entrusted to the care of their father until immediate protective measures were invoked on June 10, 2019. Until then, they maintained regular contacts with their mother, every second weekend. [ 4 ] On June 11, 2019, the Tribunal entrusted X and Y to their mother on a provisio-nal basis, at the condition that she continued to reside with the maternal grandmother. [ 5 ] On September 10, 2019, the Director received information to the effect that the mother had given birth to a child on [...], 2019 and that she hid this information from the Director. Mr.

D would be this child’s biological father. Consequently, on September 13, 2019, the Tribunal entrusted X to a confidential foster family on a provisional basis. [ 6 ] On October 23, 2019, the Tribunal postponed the hearing as the Director had neglected to notify the father. X and Y were entrusted, on a provisional basis, to their maternal grandmother. [ 7 ] On the same date, the Tribunal proceeded in the cases of Z, E and F.

The three children were entrusted to their maternal grandmother’s care and support measures were ordered until July 23, 2020. [ 8 ] On February 5, 2020, the hearing had to be postponed as Me Bissonnette had just received the mandate to represent the father. [ 9 ] On December 3, 2020, the Tribunal decided to proceed with a common hearing for the situation of the father’s four children (X, Y, G and H). [ 10 ] On March 4, 2021, as no one asked for X and Y to be dispensed anymore, the Tribunal took note that they would both testify at the hearing. [ 11 ] On April 27, 2021, the Tribunal heard the testimonies of Y, X, Mrs. [social worker 1], Mrs. [social worker 2] and Mrs. [social worker 3].

[ 12 ] On April 28, 2021, the hearing had to be postponed as Mrs. C had to remain home, in quarantine, with her two children. [ 13 ] On September 23, 2021, the Tribunal heard the testimonies of Mr. [social worker 4], Mr. [social worker 5], Mrs. C and Mrs.

A. [ 14 ] On October 5, 2021, the attorneys presented their arguments and the decision was put under advisement. [ 15 ] The Director recommends that the child remain entrusted to the mother and that diverse support measures be ordered for a period of one year. [ 16 ] The mother agrees with the Director’s plan and analysis of the new grounds of compromission for the child. [ 17 ] The father’s attorney mentioned that his client did not intend to come to Court. The father did not agree with the facts presented to support a conclusion of physical abuse.

He decided not to present any evidence. [ 18 ] The child’s attorney agrees with the Director’s plan and analysis of the new grounds of compromission. QUESTIONS IN LITIGATION [ 19 ] Did the Director present preponderant evidence to the effect that the father used inappropriate means of discipline on the child? [ 20 ] Are the recognized sexual behaviours between X and Y sufficient to add sexual abuse as a ground of compromission? [ 21 ] Should the Tribunal suspend contacts between the child and the father?

CONTEXT AND ANALYSIS Inappropriate means of discipline with X and Y [ 22 ] On February 2, 2019, X disclosed to the educator, Mrs. I, that her father hit her. She mentioned that he had hit her knees with a hanger during the summer. She also mentioned that at one point, he pushed her bedroom door and banged her hip on the doorjamb. She finally reported that her father had mentioned that she and her brother would be placed if they did not behave. [ 23 ] On February 4, 2019, Mrs. [social worker 6], Youth Protection worker, met with X in school.

She minimized the reported incident and insisted that there had been no new incidents since the past summer. [ 24 ] On February 17, 2019, Y disclosed to the educator that his father had hit him as recently as “ a few weeks ago ” [1] . He mentioned being hit in November or December 2018. His father had pushed him down the bed and hit him on the arm. He mentioned other occasions where his father would hit him on the mouth causing bleeding. [ 25 ] During visits at their mother’s home, X and Y continued to disclose incidents of verbal and physical aggression by their father.

However, when they were later met by the Youth Protection worker in a neutral setting, they would minimize or shut down and refuse to talk. [ 26 ] On June 7, 2019, X reported to the Youth Protection worker that on June 6, 2019, Y had been hit with a metal object by their father [2] . [ 27 ] On June 10, 2019, the Director received a signalement regarding X and Y’s situation. [ 28 ] On July 23, 2019, while meeting with Mrs. [social worker 1], Youth Protection worker responsible for the evaluation of the signalement, X reported that her father most of the time hits her with an open hand and that once, he used a hanger.

She also mentioned that he used a belt on a few occasions [3] . During the same meeting, Y also confirmed being hit by his father with an open hand. He mentioned that the father often made threats to hit him with an object. Mrs. [social worker 1] was unable to meet with the father in order to obtain his version of the allegations. [ 29 ] On August 14, 2019, Y and X were interviewed by Detective Genevieve Robidas in the context of the Entente Multisectorielle. [ 30 ] On April 27, 2021, Y testified regarding the allegations of physical abuse. He mentioned living with his father around 2017.

He reported that the hitting started around 2018-2019 and that it was “ kind of rough ”. As a form of punishment, he first mentioned that his father would hit him with his hand or a belt. Later during his interrogation, he mentioned that he was also hit “ sometimes ” with a red and grey stick. He then clarified that it happened only once. At the end of his testimony, when the Tribunal asked him direct questions, Y agreed that his father also hit him with a hanger on four occasions. He did not “ actually remember ” the incidents. He also agreed that his father pushed him and pushed him down the bed.

As visible mark of his father’s punishment, he got a scar on his leg. [ 31 ] He did not remember where he was hit on his body, except for one occasion when he was hit with a belt on the leg. He situated the last incident when he was 11 years old. [ 32 ] Y mentioned that his father did not hit him often with his hand. He did not remember the last incident or when it occurred. [ 33 ] Y also mentioned that his father hit his sister X with his hands, a belt or a “ baton to clean the house ”. This would have occurred “ a lot of times ”.

He could not remember where his father would hit his sister or why she would get hit. In cross-examination, he mentioned that he would hear his sister cry or scream.

[ 34 ] Y mentioned that when the children were punished, his stepmother was sometimes in the house. He could not remember what she was doing but mentioned that she never intervened to stop this behaviour. Y never spoke to his stepmother about this situation. [ 35 ] Y reported that his father also hit his step-brother G, but only on his hand. Following this, his father would explain to his stepmother why he disciplined G. Sometimes, Mrs.

C would react but Y did not “ actually ” know how she reacted. [ 36 ] In cross-examination, Y mentioned that the incidents of physical correction happened a long time before he was removed from his father’s care. [ 37 ] On April 27, 2021, X also testified regarding the alleged physical abuse. When she lived with her father, X mentioned getting hit constantly; every single day. She would be punished if she did not listen or did not respect the rules in the house.

On one occasion, she got punished as she got 99 % in a French or English exam, and not 100 %. [ 38 ] Her father would hit her with his hand on her arms and legs. He would also hit her with a belt on her arms, legs and back. He also hit her with parts of a vacuum cleaner on her leg. During her examination, she later mentioned that she “ forgot to say that (her father) also hit (her) with a hanger ”. This happened on one occasion and she was hit on her knee. [ 39 ] X reported that her father also hit her brother Y. On one occasion, she saw her father while he was trying to hit Y with a vacuum cleaner.

Her father told her to get out of the room. [ 40 ] X also reported that her father hit G and H. He would use his hands to slap them on the bum or the hands. He would use force. During her cross-examination, she clarified that her father had rings on his hands and that it stings. [ 41 ] X first mentioned that her father would hit her at night, when no one was around as everyone was sleeping. She later mentioned that her stepmother was around when this was happening and that she would ask him to stop. She then mentioned that her father would hit her when she was coming back from school and that Mrs.

C was at work. [ 42 ] X mentioned that she reported everything to Mrs. C. X stated that Mrs. C did not respond; that she would say “ ok, I understand ”; that she would be in shock and upset. [ 43 ] X did not remember Youth Protection workers and educator named I, [social worker 1] or Mrs. [social worker 6].

She remembered a worker named [social worker 2] but mentioned that she did not tell [social worker 2] what had happened with her father. [ 44 ] In cross-examination, X reported that the incidents of physical abuse happened approximately one year before she was removed from her father’s care. [ 45 ] X mentioned feeling safe and comfortable living with her mother and the rest of her family. She reported that she had many discussions with her mother about her father. Her mother told her that she used to suffer with him and that she knows he can be mean and rough.

X reported that her mother would tell her every single day “ do not misbehave or you might go back to him. He might hurt you again ”. X acknowledged that she talked with her mother about the content of her testimony and that she helped her remember events. During her testimony, the mother mentioned that she never discussed the content of the testimony with the children. [ 46 ] During her testimony, Mrs. C mentioned that she was never witness the father hitting X and Y. [ 47 ] Mrs. C mentioned that when the father had to discipline the child, he would sometimes raise his voice.

He also had to physically bring the child to her room. Mrs. C reported that if the father had ever been physically violent with the child, she would have intervene. She mentioned having an open relationship with X but that the child never reported any events of physical discipline to her. Exposure to episodes of conjugal violence between Mr. B and Mrs. C [ 48 ] X and Y have been exposed to episodes of conjugal violence between Mr. B and his partner, Mrs. C. [ 49 ] X reported to the Youth Protection worker that her father and Mrs. C have been arguing a lot.

She felt uncomfortable when they were loud and swearing at each other. She reported being scared of being hit by her father for having reported this information. [ 50 ] During her testimony, X mentioned that her father and Mrs. C argued a lot. That it was “ war in the house ”. She reported seeing her father hit Mrs. C once, but was unable to clarify if he had hit her on the face or on the arm. She heard her cry. [ 51 ] On June 9, 2019, the father was arrested for assault with a weapon or causing bodily harm and uttering threats. Criminal conditions were put in place in order to prohibit communication with Mrs.

C. [ 52 ] On July 25, 2019, Mrs. [social worker 1], Youth Protection worker, met with Mrs. C. Mrs. C confirmed that on June 8, 2019, the father had physically attacked her. [ 53 ] On December 20, 2019, the father signed a recognizance to keep the peace (

section 810 of the Criminal Code ) undertaking to respect certain conditions for a period of one year. Doing this, he recognized that Mrs. C would have reasons to fear for her safety. [ 54 ] The Director alleges that Mrs. C is minimizing the history and severity of the conjugal violence; that she never recognized the events of June 2019. This is not supported by the evidence. During her testimony, Mrs. C clearly recognized her description of the June 8, 2019 events to the police. Mrs. C also recognized that the child was witness to verbal arguments.

Educational neglect for X [ 55 ] X has been exhibiting physical and verbal aggressive behaviours in school towards her peers and school staff. During the time when X was living with him, the father refused to meet with the school officials and discuss the situation to provide X with appropriate

support. [ 56 ] In January 2021, the Director was informed that X was often arriving late to school or that she was absent. This situation was reviewed with the mother and maternal grandmother. In March 2021, the school authorities reported some inconsistent improvements in the situation. On April 14, 2021, a joint meeting was planned at school with the mother, the grandmother, school officials and the Director. [ 57 ] At this time, the situation does not apply anymore.

Inappropriate sexual behaviours between Y and X [ 58 ] In December 2019, the maternal grandmother found Y and X engaged in inappropriate sexual behaviours. During the evaluation, Y confirmed that X put her mouth on his penis and that he put his penis inside her vagina. X acknowledged that she put her mouth on her brother’s penis and that he put his mouth on her vagina.

She also mentioned that Y put his penis in her buttocks. [ 59 ] On December 13, 2019, immediate protective measures were invoked and Y was placed in a rehabilitation centre. [ 60 ] On December 18, 2019, the Tribunal returned on a provisional basis, Y to the maternal grandmother’s care. On that date, a safety plan was put in place with the mother and the grandmother. [ 61 ] On January 27, 2020, Y and X were evaluated at the Hospital A regarding the incident. [ 62 ] Until June 2020, X received support from Centre Marie-Vincent.

Her file is not closed, should she need further therapeutic support in the future. [ 63 ] In July 2020, it was reported that X and Y had stolen the mother and the grandmother’s credit card to order pornography online. [ 64 ] In February 2021, X and Y reconnected with a therapist for Zoom sessions. In early June 2021, the therapist reported that the children’s participation was not regular and consistent. Birth of Z [ 65 ] On September 10, 2019, the Youth Protection worker learned that the mother had given birth to a child on […], 2019.

The mother hid her pregnancy from the Youth Protection worker, from her own mother and from her other children. In an effort to keep this pregnancy secret, she gave birth at a different hospital and did not register the child’s birth. She then entrusted the baby to a friend, Mrs. J. [ 66 ] During a meeting on September 11, 2019, the mother acknowledged to the Youth Protection worker that she had planned to hid the baby’s existence out of fear that a signalement would be made. She denied that Mr.

D was the baby’s father and mentioned that she was at the hospital by herself when she gave birth. [ 67 ] She reported having visited the baby on a daily basis at Mrs. J’s place and denied that Mr. D ever saw the baby, or knew about her existence. As she wanted to keep the baby’s existence a secret, she did not have any prenatal care during her pregnancy. [ 68 ] Mrs. J confirmed to the Youth Protection worker, that following the baby’s birth, at the mother’s request, she cared for the baby. The baby spent time with her father, Mr. D, including four complete weekends. Mrs.

J reported that E, F and Y had also been in contact with Mr. D. Mrs. J knew that allegations of sexual abuse existed between Mr. D and the mother’s eldest daughter. [ 69 ] On September 13, 2019, when confronted with information received from the hospital, (that the mother was accompanied by her partner and mother-in-law), the mother eventually recognized that Mr. D was at the hospital with his mother while she gave birth. Mr. D [ 70 ] On numerous occasions, the Youth Protection workers tried to contact Mr. D, the mother’s ex-partner.

He has not collaborated with the Director and, to the Director’s knowledge, has not taken any steps to correct the situation of compromission. [ 71 ] Much pressure has been put on X by the mother in order for her not to testify against Mr. D in Criminal Court. The mother has continued to blame X for the absence of Mr. D. X reported to her therapist at Marie-Vincent that her mother mentioned that “ her sisters no longer have a father and it is her fault ”. [ 72 ] On January 30, 2019, Mr. D pleaded guilty to charges of sexual interference with a person under the age of 16 years (article 151

b) C.Cr. ) and two counts of assault with a weapon. He was sentenced on October 7, 2019 and received a sentence of 6 months of incarceration and a probation of three years. The father’s collaboration [ 73 ] The father has not collaborated with the Director and with the school authorities. He has not allowed the Youth Protection worker access to his home. He has refused for the school to provide support services for X. The father shared his concerns with the Youth Protection worker to the effect that the mother was still in contact with Mr. D.

He believed that the mother was asking X and Y to make false allegations against him. [ 74 ] The father has not yet met with the Youth Protection worker. At some point, he contacted the Youth Protection worker and requested for Y and X to be entrusted to his mother and sister. He asked that contacts be organized with his children. [ 75 ] In January 2021, the father requested a visit with his children however he did not follow through with the request to meet with

the Youth Protection worker first. He did not respond to several calls, emails and registered letters sent to him. He had no contact with the child since June 2019. The mother and the maternal grandmother’s collaboration [ 76 ] On September 29, 2020, the mother and the maternal grandmother requested a change of worker. They were of the opinion that the Youth Protection worker was asking too many questions which demonstrated a lack of trust. Following this meeting it became difficult for the Director to meet with the children at the grandmother’s home.

On October 23, 2020, the Director seized the Tribunal to ensure access to the children. The file was eventually transferred to Mrs. [social worker 3] and then to Mr. [social worker 4]. [ 77 ] The mother’s collaboration and transparency remains an issue. Contrary to what she mentioned to the Youth Protection worker, she did not register X and Y for day camp during the 2021 summer.

During her testimony, the mother explained that she thought she had registered them through internet, but that was not the case. [ 78 ] The mother has not been transparent with the Youth Protection worker regarding X and Y therapeutic process. During his testimony, Y mentioned that he wanted to pursue his therapeutic process for “ a bit ”. He was able to talk about how he was doing in school and at home. X testified to the effect that the therapy was helping her dealing with her emotions.

Did the Director present preponderant evidence to the effect that the father used inappropriate means of discipline on the child ? [ 79 ] In the ruling of The Queen v. W.(R) [4] , Madam Justice Beverly McLachlin stated the following regarding assessment of children’s testimony: The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children.

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. […] It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult” or “child” standards – to do so would be to create new stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel.

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. […] [ 80 ] Even with these considerations in mind, the Tribunal does not find that X and Y provided a reliable description of the facts. [ 81 ] As the father decided not to testify, he could not contradict the children’s versions. Although, their reports were contradicted during Mrs.

C’s testimony. [ 82 ] Depending on the context and on the identity of their interlocutor, the children have added and subtracted facts to their statements. At times, they recanted their previous versions of events. [ 83 ] Both children experienced a lot of difficulty situating events in time. Their description of events changed drastically through their testimony. [ 84 ] Events reported by the children were very similar to events signaled to the Director on May 22, 2018. At the time, the Director concluded that the child’s security or development was not compromised as the child denied the allegations.

During her testimony at the time, X mentioned that she had lied about her father hitting her with a belt. [ 85 ] Throughout the Director’s intervention, the mother has lied, manipulated, concealed and coached the children to lie to the professionals involved. In January 2020, the children’s psychologist reported that “ X and Y appeared to be coached by their mother to say things or withhold certain information [5] . ” During her testimony, X clearly mentioned that her mother “ helped her remember things ” and that they talked together about her testimony. This information is denied by the mother.

The Director now observes that the mother has evolved through time, that she is able to prioritize her children’s needs. The Tribunal is not certain of this last assertion. [ 86 ] Assessing the evidence globally, the Tribunal does not consider that preponderant evidence was presented to support the allegations of physical abuse. Are the recognized sexual behaviours between X and Y sufficient to add sexual abuse as a ground of compromission ? [ 87 ] The Tribunal must answer negatively to this question.

The inappropriate sexual gestures are recognized, but the mother and the maternal grandmother have taken steps to correct the situation. They implemented a safety net and ensured that the children receive proper support. Should the Tribunal suspend contacts between the child and the father ? [ 88 ] For now, X and Y do not want to have contact with their father. In the future, their position might change. In that context, the Tribunal will maintain this possibility. THEREFORE AND FOR THESE REASONS, THE COURT:

[ 89 ] GRANTS the amended application for revision; [ 90 ] ADDS that the child was submitted to psychological ill-treatment (

article 38

c) of the Youth Protection Act ) as a rationale for compromission; [ 91 ] DECLARES that the security or the development of the child is still endangered; [ 92 ] ORDERS that the child be entrusted to the care of the mother at the condition that they continue to reside in the home of the maternal grandmother, Ms.

K and TAKES NOTE that the mother is in agreement; [ 93 ] ORDERS that the father meet with the Youth Protection worker on four consecutive occasions to discuss his intentions, motivation and commitment to address the situation of risk and once this condition has been fulfilled, ORDERS that the frequency and modalities of contacts between the child and the father be determined by the Director of Youth Protection including supervision for as long as needed and taking into account the wishes of the child; [ 94 ] RECOMMENDS that the father take steps to address his personal issues, including anger management, and report his progress to the Director; [ 95 ] ORDERS that the father collaborate with the interventions of the Director; [ 96 ] ORDERS that the mother ensure that all contact between the child and Mr.

D be prohibited; [ 97 ] ORDERS that the mother ensure adequate supervision of the child and that the safety plan is consistently implemented; [ 98 ] ORDERS that the mother ensure that the child continue to receive therapeutic services as indicated by her situation and that ensuing recommendations are followed; [ 99 ] RECOMMENDS that the mother continue to take steps to address her personal issues and report her progress to the Director; [ 100 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the child and her family; [ 101 ] THE WHOLE for a period of one year; [ 102 ] ENTRUSTS the situation of X to the Director of Youth Protection, who shall then see that the measures are carried out. ___________________________________ François Ste-Marie, J.C.Q.

Written and signed on December 2, 2021 /cd Mtre Dominique Douglas Counsel for the Director of Youth Protection Mtre Younes Ameur Counsel for the child Mtre Jean-Hervé Thomas Counsel for the mother Mtre Marc Bissonnette Counsel for the father Dates of hearing: April 27, September 23 and October 5, 2021