2023 QCCQ 3708, 2023 QCCQ 3708

Protection de la jeunesse — 232468 2023 QCCQ 3708 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT […] “Youth Division” No: 525-41-032360-174 DATE: April 20, 2023 ______________________________________________________________________ PRESENT: THE HONOURABLE FRANÇOIS STE-MARIE, J.C.Q. ______________________________________________________________________ DIRECTOR OF YOUTH PROTECTION and X Born on […], 2014 child and A B parents ______________________________________________________________________ CORRECTED 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) alleges that it is necessary to extend the order rendered on June 15, 2021.

The Director also requests to add “sexual abuse” as a rationale for compromission. [ 2 ] On June 17, 2022, the Tribunal ordered the child’s provisional compulsory foster care in the foster family of Ms. C. [ 3 ] On August 15, 2022, the hearing was postponed, and the status quo was maintained. [ 4 ] Today, the Director recommends that the child remain entrusted to her foster family and that support measures be ordered for an interim period of three months. [ 5 ] The mother wants the child to be returned to her care as soon as possible, potentially with a progressive reintegration during summer.

At the hearing, the mother reported that she believed her daughter regarding the alleged sexual abuse. [ 6 ] The father agrees with the Director’s plan. He does not believe that the child was sexually abused by her brother. He wants to maintain visits with his daughter. [ 7 ] Following the hearing, the child’s attorney recommended that her client be entrusted to Ms. C’s foster family until her age of majority.

She also recommended that an ADHD assessment be done within three months and that the Tribunal take judicial notice that the parents agree for the child to be transferred to an English school as soon as possible. [ 8 ] Following the hearing, the decision was taken under advisement.

Questions in litigation [ 9 ] Did the Director present preponderant evidence to support the allegations of the child’s sexual abuse by her brother Y? [ 10 ] Are the proposed measures in the child’s best interest and are they respecting her rights? [ 11 ] Should the Tribunal withdraw from the parents the exercise of their attribute of parental authority regarding physical and mental health? [ 12 ] Should the Tribunal render a decision regarding the child’s schooling? [ 13 ] Should the Tribunal render a decision regarding the child’s necessary health services?

[ 14 ] What should be the Court order’s duration? Context and Analysis [ 15 ] From June 15 to August 15, 2021, the child was progressively transferred from the family of Ms. D to the milieu of Ms. C. Overall, she adapted well to this new environment. [ 16 ] During her testimony, Ms. C mentioned that the child was less “ hyper ” and more focussed and calmer then before. The child continues to experience difficulties with boundaries and can be observed as “ bossy ”. [ 17 ] While testifying, Ms. C reported on situations where the child appeared to dissociate.

On one occasion, the child bullied another student in the school bus. She mentioned to Ms. C that it was not her spiting on the child but that it was bad people in her head. On another occasion, she mentioned to Ms. C not to worry as X was not there when Y did those things. The allegations of sexual abuse by Y, the child’s older brother [ 18 ] On December 10, 2021, the Director received a signalement to the effect that the child had been victim of sexual abuse by her older brother Y. [ 19 ] During his testimony, Y denied ever inappropriately touching his sister.

He reported that during visits, the whole family was always watching them. He mentioned that while they were at the father’s place, he sometimes accompanied his sister to the bathroom if his father was outside smoking or on the phone. He would pass the toilet paper to his sister as it was too far and to hard for her to pull. He did not help her wipe herself. Once this was done, he would go out of the bathroom. [ 20 ] He mentioned that a couple of times he also accompanied his sister to the bath-room at his aunt’s place.

He reported that when they were in public places, his father would be the one accompanying his sister to the bathroom. He never mentioned accom-panying his sister to the bathroom while they were at the restaurant or at the cinema. [ 21 ] During his testimony, the father contradicted Y’s version of events. He mentioned that it happened that his son would accompany his daughter to the bathroom in public places, but never at his home or at Ms. E’s residence. [ 22 ] Y also mentioned that his sister never touched him inappropriately. [ 23 ]

Section 2871 of the Quebec Civil code states the following: Previous statements by a person who appears as a witness, concerning facts to which he may legally testify, are admissible as testimony if their reliability is sufficiently guaranteed. [ 24 ] The Tribunal considers that Y’s previous statements to the Youth Protection wor-ker, Ms. [social worker 1], are admissible as testimony as their reliability is sufficiently guaranteed. Ms. [social worker 1] met with Y within the context of the evaluation of the sexual abuse signalement. On December 16, 2021, she met with Y alone, at the home of Ms. E.

The meeting lasted between 90 minutes to 2 hours. [ 25 ] While testifying, Ms. [social worker 1] mentioned that during this meeting, she asked opened ended questions. At times, she asked Y to provide some clarifications. She let him speak freely. She observed that Y understood her questions and that he felt embarrassed by what had happened with his sister. During the interview, he appeared to be in distress. Ms. [social worker 1] mentioned that what appears within quotation marks in her report constitutes Y’s verbatim during her interview. [ 26 ]

Section 281 of the Code of Civil procedure states the following: The party that called a witness may attack the credibility of the witness’s testimony by providing the opposite through other witnesses. With leave of the court, the party may also do so by proving that the witness made previous statements which are inconsistent with their present testimony, provided the witness is first questioned about this. [ 27 ] The Tribunal permitted the production of Y’s previous inconsistent statement.

During the December 16, 2021 meeting with Ms. [social worker 1], Y mentioned the following [1] : • At restaurants, he and his sister sometimes go into the bathroom together to play with balloons; • He had asked his sister to pull down her pants but that he was “just playing” and that he asked “not purposefully”; • He clarified that “sex” means “putting penis in the bum”; • He first denied touching his sister’s private parts (breast, vagina or bum) but then mentioned that “every time that it happens, it makes him uncomfortable”; • He eventually reported that “it only happened once that I sex her” and that he “does not want to do it again”; • The first time would have happened at his mother’s home when he was 7 or 8 years old.

He reported that on that occasion, his sister “came onto him” and touched him next to his “peepee”; • He recalled another event at his mother’s home when he was 9 years old. His sister initiated the contact, jumped onto him, pulled down his pants and hers and sat on him. His sister would rock her hips back and forth on him;

• He reported that he knew that what they were doing was “bad”; • He recalled an event in the bathroom at his father’s home where his sister would have pulled down her pants and his and would have sat on him; • He had sex with his sister five times in the bathroom while his father was in the living room; • He told his sister: “if you tell dad, we will be in big trouble”; • He did not want to do this anymore; • He did not understand why his sister was blaming him when she was the one initiating contact. [ 28 ] Y remembered meeting with Ms. [social worker 1] in December 2021 but denied in block, all the inappropriate events listed above.

He reported that he and his sister would have tickled each other. That he would tickle her in her hair and stomach, but never below her waist. [ 29 ] Y remembered reporting to Ms. [social worker 1] that his sister had asked him to pull down her pants, although he reported that he never complied with this request. [ 30 ] Y recognized that during Ms. [social worker 1]’s meeting, he was emotional and that he was crying.

He attributed these emotions to memories of fights with his mother and father and his mother trying to strangle him. [ 31 ] In his cross-examination, Y mentioned that he was trying to protect his sister as a big brother would. He was unable to refer to the order suspending contacts with her, explaining that, now, he could not see his sister as he was very busy and that she mostly wanted to see the father. [ 32 ] During her testimony, Ms. E confirmed that she was not present during the interview between Ms. [social worker 1] and Y as the meeting occurred downstairs. The next day, Ms.

E sat with her husband and Y to discuss the allegations. At this point, Y mentioned that he “ would never to that ” and that he “ did not hurt his sister ”. Ms. E is of the opinion that Y did not understand the questions asked by Ms. [social worker 1]. [ 33 ] The father does not believe the alleged sexual abuse. During his testimony, he mentioned that he always kept a visual connection with his children during their visits. [ 34 ] The content of Y’s statements to Ms. [social worker 1] does not always appear logical but it is so detailed that it appears clear that Y understood the questions that were asked.

Consequently, the Tribunal is of the opinion that Y admitted the alleged abuse. His version of events to Ms. [social worker 1] corroborates, in large part, the version of his sister. [ 35 ] During her brief testimony, the child mentioned that her brother did “ stuff ” to her but that she did not want to talk about it anymore. She could not tell us. She confirmed confiding in the police and her foster mother about the situation.

She reported being scared of her brother. [ 36 ] Following this brief testimony, the Tribunal declared that the child was not competent to provide testimony as, today, she was not able to answer questions regarding the alleged sexual abuse. [ 37 ]

Section 85.5 of the Youth Protection Act states the following: 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. [ 38 ] On December 15, 2021, the child made a declaration to sergeant-detective Melanie Roy, in the context of the Entente multisectorielle.

It is important to note that the poor quality of spoken English of sergeant-detective Roy had an impact on the flow and quality of the interview with the child. At times, it appeared that the child and the detective did not understand each other. The child was often agitated, moving a lot, and throwing a toy lizard around the room.

Nonetheless, the reliability of the child’s declaration was sufficiently guaranteed by the strict process followed to produce the recorded declaration. [ 39 ] During this interview, the child reported the following [2] : • She did not want to see her brother; • She wanted him to go to jail; • She felt very angry; • They “did sex” a long long time ago; • “Sex” was to put the peepee in the bum; • Her brother puts his peepee in her bum; • While this happened, her pants and underwear were down;

• It happened in the bathroom, while her father could not see them; • Her brother had locked the bathroom door; • It happened lots of times; 100 times; • They were not supposed to do it and she mentioned “don’t do it” to her brother. [ 40 ] When the child referred to “ sex ” during the interview, on two occasions she moved her hips back and forth. At one point, she also put the tail of the toy lizard close to her buttocks. [ 41 ] The child also made declarations regarding the alleged abuse to Ms. C, her foster family. During her testimony, Ms.

C shared what the child had confided: • Her brother had sex with her in the bum; • He put his peepee in her; • In a closet at home, he put a pencil inside her; • It was so disgusting; • At the cinema and at the McDonald’s bathroom, her brother licked her bum; • Last Easter, Y sexed her bum in the McDonald’s bathroom. [ 42 ] In assessing her credibility, the Tribunal must consider the child’s age, her ability to communicate and stage of development at the time of her declaration. [ 43 ] The child appeared ambivalent about maintaining contact with her brother.

Sometimes, she wants to put him naked in a garbage truck, other times, she wants to see him. The necessary health services [ 44 ] The child is waiting to receive services from the CAVAC and Marie-Vincent. During the 2022 summer, she received ten weeks of Art therapy from a Town A Youth Organization. [ 45 ] She is on a priority list to be tested for ADHD.

These services were to be provided by the school. [ 46 ] The necessary documentation was produced for the child to receive the appropriate services. [ 47 ] The Tribunal expects that the Director will take the necessary steps to ensure that follow-up services from CAVAC and Marie- Vincent will be provided to the child as soon as possible. [ 48 ] As for her ADHD evaluation, the child cannot wait forever. The Director has not yet implemented the June 15, 2021 order rendered on this issue. This service was considered necessary for the child more then eighteen months ago.

The contacts between the child and the parents [ 49 ] For several months following the child’s disclosure (between December 2021 and April 2022), the father refused to have contact with the child. He questioned the veracity of the child’s report as he mentioned supervising the children at all times. He reported being afraid that the child would also accuse him. He then asked that contacts be reinstated and that they be supervised at the Director’s office. Since June 2022, the Director lifted the supervision.

The father recognized that until now, he had not asked for the frequency of contacts to be increased. [ 50 ] Visits with her father appeared as positive for the child. The father received guidance and support from Ms. E. Ms. C mentioned that the child was happy and excited to see her father. [ 51 ] For an extended period, the mother decided to suspend visits with her daughter. During her testimony, she explained that she was under the impression that this would alleviate pressure on the child. She maintained irregular telephone contacts.

On October 26, 2021, she had a supervised visit with the child at the Director’s office. Following this visit, the mother mentioned wanting to resume sporadic visits with her daughter. Since April 2022, supervised visits between the child and the mother were reinstated. On some occasions, the mother was late for the scheduled visits. [ 52 ] The child appears to enjoy visits with her parents. At times, she mentioned that she did not like sharing her mother’s attention with her younger sister. [ 53 ] Co-parenting and communication between parents remain an issue.

The child’s schooling [ 54 ] Despite support services having been put in place, the child has continued to struggle with attending a French school. Up until the hearing, the mother was unwilling to consider the child’s transfer to an English school. Consulted about this issue, the father always gave his consent for the child’s transfer.

[ 55 ] At the hearing, the mother appeared to be more open to this transfer. If the child was to remain in her foster family, she agreed for the proposed transfer to an English school. [ 56 ] Ms. C recommends that the child be transferred to an English school as soon as possible, as the child needs to “ win ” at something.

This sentiment was echoed by the Director. [ 57 ] Following the January 20, 2023 hearing, the Tribunal took judicial notice that both parents agreed for the child to be transferred to an English school as soon as possible and ordered that the Director take steps to facilitate the child’s transfer. The exercise of attribute of parental authority regarding physical and mental health [ 58 ] Ms. Khadija Parris, Clinical Activity Specialist, reported that the parents easily communicated and collaborated with her.

During his testimony, the father reported that he could be reached by email. [ 59 ] The Director has not presented preponderant evidence to support the request to withdraw from the parents the exercise of attributes of parental authority. No evidence was presented to the effect that the parents were not easily reachable.

The Court order’s duration [ 60 ] Considering the recent events and the need to adjust support services, the Director was not yet ready to propose a permanent plan for the child. [ 61 ] Even though maximum duration of placement for the child has been reached, the Director submits that it would be in the child’s best interest to order a three-month interim order. The Director is of the opinion that a personal clinical review is necessary, and that the mother’s situation needs to be reassessed as her partner is now willing to collaborate with the Director.

The Director wants to ensure that all options are covered before presenting a long-term plan. [ 62 ] Up until now, Mr. F, the mother’s partner, was clear about his refusal to collaborate with the Youth Protection worker. He did not want to see the Youth Protection worker and did not permit her to come to his home. He never contacted the Director. Consequently, supervised visits between the mother and the child could never be organized in the mother’s home. [ 63 ] The mother still does not trust the Director’s intervention. She feels that she was wronged and that no services were provided to her.

She is the one who decided, for many months, to stop visits with her child. This had consequences on her daughter. Her wishes for the child to be progressively reintegrated to her care is not supported by a clear and realistic plan. [ 64 ] Maximum duration of placement set by the Youth Protection Act has been reached. No preponderant evidence has been presented regarding the child’s potential return to her parents’ care. It is not in the child’s best interest to delay her permanent placement. [ 65 ] Ms. C is prepared to care for the child on a long-term basis. She is able to meet her numerous needs.

The child is attached to her foster mother. She refers to her as “ C ” or “ Mamma ”. Ms. C reported that the child is part of her family and that she has a good relationship with her own son. The child is well integrated in this milieu. She needs to be stabilized in a safe and benevolent environment. THEREFORE, AND FOR THESE REASONS, THE COURT: [ 66 ] GRANTS the application for extension; [ 67 ] DECLARES that the security or the development of the child is still endangered; [ 68 ] ADDS sexual abuse (

article 38

d) of the Youth Protection Act ) as grounds of compromission; [ 69 ] EXTENDS the order rendered on June 15, 2021; [ 70 ] ORDERS that the child remain entrusted to the foster home of Ms.

C; [ 71 ] ORDERS that the frequency and modalities of contacts between the child and her parents be determined by the Director of Youth Protection , including supervision if deemed necessary, taking act that for now contacts will occur with the parents alterna-ting weeks, every Tuesday for 2 hours, in the community, without supervision, and that the mother will also have contact with X in the community every other Saturday; [ 72 ] SUSPENDS contacts between the child and her brother Y until such time as it is deemed to be in her best interest, in consultation with treating professionals; once said contact is reinstated, ORDERS that the frequency and modality of contacts be determined by the Director of Youth Protection, including supervision for as long as deemed necessary; [ 73 ] RECOMMENDS that contacts between the child and her half-sister Selena be encouraged; [ 74 ] ORDERS that the child receive all necessary health services, taking into account the recommendations in the psychological assessment prepared by Dr.

Catherine Cloutier, and that the recommendations made are followed; [ 75 ] ORDERS that the child be assessed for potential ADHD within a period of three months; [ 76 ] ORDERS that the child complete an assessment of her needs as they relate to her experience of sexual abuse and that the recommendations be followed;

[ 77 ] ORDERS that both parents not ask the child any question about the other parent or about Y; [ 78 ] ORDERS that both parents not expose the child to any physical or verbal violence nor to any denigration or disparagement of the other parent; [ 79 ] ORDERS that both parents maintain their respective homes in a clean, safe and secure state; [ 80 ] RECOMMENDS that both parents address their personal issues and engage in therapy, including workshops in co-parenting; [ 81 ] TAKES JUDICIAL NOTICE that both parents agreed for the child to be transferred to an English school as soon as possible; [ 82 ] ORDERS that the Director of Youth Protection take steps to facilitate the child’s transfer; [ 83 ] RECOMMENDS that both parents follow the recommendations of Dr.

Catherine Cloutier’s parental capacity assessment; [ 84 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the child and her family; [ 85 ] THE WHOLE until the child’s majority; [ 86 ] 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.

Corrected and signed on April 26, 2023 /cd Mtre Onomé Daferuru-Savoie Counsel for the Director of Youth Protection Mtre Sophie Papillon Counsel for the child Mtre Judith Shapiro-Knight Counsel for the father Dates of hearing: August 15, 2022, January 19 and 20, 2023