2019 QCCQ 12242, 2019 QCCQ 12242

Protection de la jeunesse — 192944 2019 QCCQ 12242 JB5047 QUEBEC COURT CANADA PROVINCE OF [...] DISTRICT OF [...] TOWN OF GRANBY « Youth division »

N os : 455-41-001206-184; 455-41-001207-182; 455-41-001203-181; DATE: May 31, 2019 ______________________________________________________________________ BY THE HONOURABLE PASCALE BERARDINO, J.C.Q. ______________________________________________________________________ IN THE SITUATION OF : X Born on [...], 2011 Y Born on [...], 2007 Z Born on [...], 2005 [SOCIAL WORKER 1] , person duly authorized by the Director of Youth Protection of CIUSSS A, [...], district A; Applicant -and- A , residing and domiciled at [...] -and- B , residing and domiciled at [...] Children’s 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.). introduction [ 1 ] The Court is seized of two applications for declaration of compromission for the three [A-B] children.

[ 2 ] The Director is requesting that the security and development of Z and Y be declared in danger for the motive of physical abuse.

For X, he invokes serious risk of physical abuse. [ 3 ] In the situation of Z, the Director is recommending that he be entrusted to a foster home while authorizing a progressive return to his parents, to authorize supervised contacts with his parents, as per the frequency and modality set by the Director, while authorizing the lifting of the supervision. [ 4 ] For Y and X, the Director recommends that they remain entrusted to their parents. [ 5 ] The period of social follow-up recommended for this family is one year. [ 6 ] The parents contest the Director’s applications and deny the facts that are alleged against them. [ 7 ] Z’s lawyer, mentions that the youth leaves to the Court to make the decision that will be considered in his best interest. [ 8 ] Y and X’s lawyer, after hearing the evidence and reading the reports, is in agreement with the recommendations.

Question in litigation [ 9 ] Have Z and Y been the object of physical abuse? [ 10 ] If so, is X at serious risk of physical abuse? [ 11 ] If the security of the child/children is/are in danger, do the recommended measures answer the needs of the child/children and are they in his/their best interest? Context [ 12 ] The [A-B] family is from [Country A]. Both parents come from a strict [Culture A] environment where the roles of men, women and children are very traditional. [ 13 ] In this community, the father has the role of a guide for his family.

The children must be obedient towards their elders who cannot mislead them. [ 14 ] A child can be verbally corrected if he misbehaves or even be physically punished if he is disrespectful. Physical punishment that can be used include slapping, hit with the palm of the hand or with an object. [ 15 ] The community is also called to participate in raising the children.

They can correct the children, including physically and it is perceived as normal and helpful in raising the children. [ 16 ] Even the schools are authorized to physically correct the children. [ 17 ] The couple met in [Country A] where their children were born. They had two boys and a girl, Z (now age 14), Y (11) and X (7). [ 18 ] The father was a teacher at the University A.

The mother studied business at the University. [ 19 ] When X was born, they knew they would have to leave their country in order to prevent their daughter from being circumcised at the age of 7. [ 20 ] They left [Country A] and came first to [State A] in the [Country B]. [ 21 ] They did not wish to stay in that country so they left for Canada and arrived on April 1, 2018, under a refugee status. [ 22 ] After a short stay in Town A, they moved to Town B at the end of July 2018. [ 23 ] The parents started working at a shop in Town C. [ 24 ] So, by the beginning of the school year, the family was settled and the younger children started attending the “ classe d’accueil ” (welcome class) at school A in Town B. [ 25 ] The family also benefit of the services from [Organisation A] which is a community-based organisation that ensure the welcoming of immigrants, facilitate their integration and favours the intercultural connections. facts pertaining to physical abuse [ 26 ] On November 28 th , 2018, the Director retained a report concerning physical abuse on Z. [ 27 ] About a week later, on December 4 th , a second report on the same grounds was made regarding an event that occurred on December 3 rd . [ 28 ] Following Z’s declaration that he was being beaten by his parents, the Director put in place the process of the multisectorial agreement. [ 29 ] Z was interviewed by the police on December 5 th , 2018.

[ 30 ] During this interview, he maintained his story and described the same events as were mentions in the report and gave further details about the events: - When he was in [Country A], he received physical corrections. It started when he was 7 years old. The first time, he was hit with a belt because he received a bad grade for an exam. - The physical corrections continued while in Canada and they are getting worse. - He relates a few events: - The first time in Canada was in Town A: The father was angry. He slapped him in the face then continued as he fell on a chair.

He then hits him on the head and on the back. The apparent reason was that he did not greet his father when he woke up. - Then Z says he got beaten almost every day. - It came to a point when he says he wanted to commit suicide. He says he spoke to a friend who changed his mind. - In Town B the beatings continued. - He states an event when his mother hit him with a belt in his palm for having forgotten to wash a plate from his lunch box.

His father will make him stand in an uncomfortable position or hit him also with a belt. - He gives a lot of details about these events including where and when it happened, the context, the looks of the belts used, etc. - The last time was by his mother, on December 3 rd , 2018. She was angry. She hit him twice on his leg and then asked him to stay on his knees. He has an injury to his knee and it really hurts to stay in that position. The reason seem to be because he did not put his coat at the right place when he got back from school. [ 31 ] Z also testified in Court.

He did so in a separate room from his parents in order to facilitate his testimony.

He was cross- examined by his parents’ lawyer. [ 32 ] He confirmed his declaration to the police and gave more information about his relationship with his parents. [ 33 ] He mentions that he is not allowed to go to friends’ house but then readjusts his testimony to say he was allowed twice to visit his friend C. [ 34 ] He also speaks of his siblings, especially Y with whom he says he has a difficult relationship. [ 35 ] He mentions that he is often in charge of siblings, even though one of his parents is always at home. [ 36 ] He mentions that his parents do not treat him and his siblings equally. [ 37 ] When confronted with Z’s declaration, the parents acknowledge that they have used physical correction with Z but only in [Country A].

They affirm that when they came to Canada, they were instructed not to physically correct their children because it is illegal here. [ 38 ] Y was also interviewed by the police five days after his brother on December 10 th , 2018. [ 39 ] Y denied receiving any physical correction in Canada. [ 40 ] However, the Director had received a declaration from Y’s teacher, stating that Y had reported to her being subject of physical punishment from his father and brother Z. [ 41 ] The teacher, Ms.

D, gave the police a written statement to that effect on December 5 th , 2018. [ 42 ] She also testified in court of the confidences she received from the child and of the meetings she had with the parents during the fall of 2018. [ 43 ] Ms.

D says she first noticed that Y had difficulty concentrating and was often impulsive towards other students or the school staff. [ 44 ] When she confronted Y that she would have to warn his parents he immediately reacted by asking her not to mention it to his father because he would beat him. [ 45 ] She thus confirms that she received statements by Y that he was being physically abused by his father. He was being hit with a hand on the back of the neck, the back and his chest, and with a belt.

His mother is usually present but she does not intervene. [ 46 ] He is also sometimes asked to stand bending over with a finger on the floor and to stay in that position for a long period of time. [ 47 ] On three occasions the parents were met by the school staff in collaboration with [Organisation A] in order to explain that physical corrections on children are not allowed in Canada.

[ 48 ] The first meeting occurred on October 23 rd , 2018. Despite the information and the warnings, Y mentioned to Ms. D that he continued to be physically corrected by his father when he received a bad grade or a negative comment from school. [ 49 ] On November 5 th , 2018, Y was sad and moody. He confided in Ms.

D, stating that he had received a beating by his father that very morning. [ 50 ] He confided again being beaten on November 13 th for a school transport issue. [ 51 ] One November morning, he complained about some pain in his forearm because of his father’s beating, she was able to witness how painful it was for the child. [ 52 ] A few days later, Y complained that his brother Z had pushed him around and was rough with him.

He also told about another occasion when Z pushed him in the stairs last spring. [ 53 ] He and X said that Z was often wicked with them. [ 54 ] On November 22 nd , 2018, the teacher met again with the parents and [Organisation A] representatives to give the report card and tell them that Y most probably suffered from ADHD.

The parents showed openness to testing their son for this. [ 55 ] On December 11 th , she met with the father and [Organisation A]’s vice Director to convince Y’s dad to stop physically correct him. [ 56 ] She then decided to put all this in writing and gave it to the authorities. [ 57 ] Unfortunately, following the recommendations of [Organisation A] and in fear if negatively affecting the family’s refugee status, the teacher delayed reporting the facts to the authorities. [ 58 ] The parents deny to this day, having physically corrected their children. [ 59 ] They speak about their son Z and say that they do not recognize him since they moved to Canada. [ 60 ] They explain that he wants to go out, be with his friends and is constantly on his phone.

They say he does not listen as he used to and wants to be free [ 61 ] The mother explains about the time he asked to go at his friend’s C house for a sleepover. [ 62 ] She said that they will not allow it, as she is a young girl and him a boy. They feel it is inappropriate. [ 63 ] She also explains how she wanted to know who that girl is and speak to her parents and the difficulties she experienced in doing so. [ 64 ] The parents also state about their concerns regarding Z’s school and grades. [ 65 ] The father mentions he helps the children with their school work.

He says that Z needs his help which he offers during supervised visits. analysis physical abuse of Z and Y [ 66 ] In view of the full evidence, the Court believes the declarations made by Z in terms of him being physically punished by his parents. They are for the most

part consistent and indicate that the physical corrections that were used while in [Country A] as admitted by the parents, have continued in Canada and got worse. [ 67 ] Although, the Court feels that Z may have exaggerated when he said he got beaten almost every day and for no reason.

But in the light of the full evidence, the Court believes that the underlying truth is that he received physical punishment often and for trivial reasons. [ 68 ] The Court also believes that Y is also the object of physical abuse by his father and that his mother does not intervene to protect him. [ 69 ] The teacher has no gain from lying about this situation and she has received first-hand information about when and how Y was physically corrected. [ 70 ] As Y and X’s lawyer pleaded, it is almost impossible for the parents who were raised in a certain manner and who raised their children the same way to stop all of a sudden just because they dwell in another country. [ 71 ] Even though they know it is illegal to hit a child in Canada and were instructed so, it is more probable than not that when in the midst of a situation they have resorted to physical punishment towards their children. [ 72 ] The Court can understand why the parents will not admit to physically abusing their children.

Among these reasons they fear that criminal proceeding could ensue and that their immigration status be impaired accordingly. [ 73 ] But the criminal proceeding is separate from the protection ones and the burden of proof is not the same.

[ 74 ] This being said there also is an underlying issue about Z being a teenager in Quebec, Canada, being confronted with the reality of his friends having much more freedom than he is allowed to enjoy. [ 75 ] The parents are very protective of their children. Their rules and upbringing is often too strict according to Z’s age. [ 76 ] What is more, is that there does not seem to be much communication, discussion and exchanges about these issues. [ 77 ] The parents mentioned that in their culture, elders must be obeyed without discussion.

It is not surprising that Z does not feel it is useful for him to make his point. [ 78 ] Z is a 14-year-old boy who wants to go out with friends and who is often prevented to do so. [ 79 ] The parents do have a say in their children’s acquaintances. The court was able to see that the parents have rightful concerns about this.

They just have to find a middle ground that will allow their children to have a normal social life without being too permissive. [ 80 ] The relationship between the siblings, especially between the brothers, is also problematic. [ 81 ] Z denied being physically aggressive against Y except once when he says he hits him at his face. [ 82 ] He says his brother doesn’t want to listen to him and he keeps getting at him. [ 83 ] Then he says he just goes away before doing anything stupid. [ 84 ] Y denies that and says his big brother hits him and pushes him. [ 85 ] Z admits having corrected his sister physically but only in [Country A].

He says she is a good girl and the Court could feel his affection for his sister. [ 86 ] He denies having pushed him in the stairs. [ 87 ] The responsibilities that are given to Z regarding his younger sibling seems inadequate. [ 88 ] He should not be in charge of raising them but could watch over them to protect them like a true older brother. serious risk of physical abuse for X [ 89 ] When X was met by the delegate, her brother Y was present.

He whispered in her hear that if she was asked if their parents beat her, she had to say no. [ 90 ] It is clear for the Court that this young girl was never at liberty to make a declaration to anybody after Z’s declaration. [ 91 ] Considering the findings of the Court regarding her brothers being physically abused, and the fact that the parents have yet to address their parenting issues accordingly, the Court concludes that X is at serious risk of being physically abused by her parents. measures to put an end to the situation of compromission [ 92 ] On December 5 th , 2018, an immediate protective measure was applied, entrusting Z to the Center A. [ 93 ] The day after, Z was entrusted to a foster home and on December 7 th , the Court provisionally maintained him so entrusted. [ 94 ] To this day, he has remained in this foster home. [ 95 ] Supervised visits have been organized and have been going well. [ 96 ] On January 10 th , 2019, the Director asked to be authorized to lift the supervision, considering that the date for the hearing was not to be set before another month or more. [ 97 ] Despite this being granted by the court, it has not possible to do so as Z was not yet comfortable. [ 98 ] Although the parents denied having physically abused their children, they also mentioned that they agreed to collaborate and participate in the measures recommended, including the social follow-up. [ 99 ] The parents need to be informed of other ways to educate their children.

They need to learn to supervise, set boundaries and guidance to their children in an age appropriate way and without using physical corrections. [ 100 ] The Court believes the parents are well intended and that they will collaborate with social services. [ 101 ] After all, they left [Region A] to protect their daughter from excision and to ensure their children’s future. [ 102 ] They work very hard to provide for their children and want what is best for them. [ 103 ] The recipe here is to gradually inform and reassure the parents about this country’s culture in terms of children's education and way of life in a way that will also be respectful of their own culture in as much as it does not harm the children’s rights and best interest. [ 104 ] In that sense, the Court is in agreement with the Director’s keen analysis of this situation:

« To explain the use of physical punishment as a child-rearing practice, it is important to understand how the parents view child maltreatment and if the act they committed corresponds to maltreatment. The most important aspect would be the culture of [Country A] , more specifically the culture [A and B]. A high percentage of people receive physical corrections. The most common being the use of a belt, stick or other object to beat a 5-year-old, and the use of corporal punishment to discipline a child (Bammeke and Fakunmoju 2016) 1 .

The current use of these methods normalizes it and it is integrated in normal child-rearing practices. This belief is accentuated by the idea that the elder’s role, more precisely the father’s role, is one of guidance, and with the thought that an elder cannot be mistaken. With this educational perception, if the elder; in this case: the parents, received physical punishment from their parents in the past, it would be a justified and appropriate reaction to the behaviour. The parents reusing the previously mentioned child-rearing practices would be perceived, by themselves, as the appropriate action.

Even though legal actions were taken, in [Country A], to illegalize the use of physical punishment, there was a largely negative reaction observed and the legal context does not have a significant impact on modifying the culture regarding what we define as physical abuse. » [ 105 ] The Director would be well advised to resort to external advisor from close to the parents’ community and culture in order to improve his understanding of this family dynamics and to improve the communications between the workers and the family. [ 106 ] But that is not all. [ 107 ] The Court is particularly concerned by the fact that when the physical corrections happen, Z describes his parent (mother or father) to be angry.

He also says that when his father starts hitting, he doesn’t stop at one. [ 108 ] The mother says she would not have the strength to hit Z as she is too tired from work. [ 109 ] On the contrary, the Court believes that the mother resorts to hitting because she is too tired to contain herself. [ 110 ] One who is exhausted is more inclined to lose patience and go back to behaviours that one knows not to be allowed but that use to be a habit. [ 111 ] Also, Z does not seem to understand why he is being physically punished. He often says “for no reason”.

When questioned he will add it is because, for example, he did not greet his parents or did not put away his coat at the right place. [ 112 ] What Z is telling us is that he finds that the apparent reason does not seem to warrant the beating he is going through. [ 113 ] These reasons for hitting a teenager seem quite trivial. [ 114 ] Maybe the parents’ anger comes from some frustration about the fact that, having received a university education, they now work in a shop where they have to put long hours to sustain their family. [ 115 ] Although this must be difficult, they cannot take it on their children. [ 116 ] So the Court deems necessary that the parents address their anger issue through the social follow-up. [ 117 ] This transcends the cultural adaptation and could be due to lack of self-control by both parents. [ 118 ] Furthermore, the relationship between Z and his parents has been damaged by the process but also by the ongoing physical abuse. [ 119 ] In the words of Z, his parents have to change the way they treat him.

Z wants to be respected and be able to make his own decision, in as much and it is his decision to make, of course. [ 120 ] The parents have the ultimate responsibility for their children. [ 121 ] These parents need to be taught the boundaries between what they can let their son decide and what and how they make decisions for him. [ 122 ] This will be another objective for the social intervention. [ 123 ] For now, Z shows signs of anxiety and fear about returning home to his parents.

When asked how the supervised visits went, there was a long silence before he answered and he was not really happy to see his parents during the visit. [ 124 ] Lastly, the relationship between the siblings will also have to be worked on. [ 125 ] Although Z denies it, his status as eldest seems to have created a difference in the way the parents treat their children. [ 126 ] If Z is reinstated in his true role as an older brother and not substitute parent, his relationship, especially with his brother, should improve.

But there will need to be some interventions to help the boys make peace. [ 127 ] This all shows how much there needs to be mended before the Director can even think about returning Z to his parent’s home. [ 128 ] As for Y and X, the Court will entrust them to their parents. The Court will order that they stop immediately, if it has not already been done, to correct them physically. [ 129 ] The parents will have to collaborate fully in the social follow up. [ 130 ] The Court puts its trust in the parents to respect and honor the present decision.

FOR ALL THESE MOTIVES THE COURT : GRANTS the applications; DECLARES that the security and development of the children X, Y and Z are in danger for the following grounds: - Physical abuse concerning Y and Z; - Risk of physical abuse concerning X; ENTRUSTS the children X and Y to their parents; ORDER that the parents stop physically correcting the children.

ENTRUSTS the child Z in a foster family, named by the Director of Youth Protection; AUTHORIZES a progressive return of the child Z in his familial environment; AUTHORIZES , in the child Z’s favour, supervised contacts with his parents, according to the modalities determined by the Director of Youth Protection and AUTHORIZES the lifting of the supervision if the situation allows it; ORDERS that the parents actively participate in the measures aimed to correct the situation; RECOMMENDS to the Director of Youth Protection to request the services of an external community advisor/counselor to better understand the family dynamics and to improve communications; ORDERS that a person, working for CIUSSS A, or any other establishment or body, provide aid, counsel and assistance to the children X, Y and Z and their family, for a period of one year; ENTRUSTS the situation of the children X, Y and Z to the Director of Youth Protection to see that the measures are carried out. __________________________________ PASCALE BERARDINO, J.C.Q.

M e Marie-Pier Trépanier Counsel for the DYP M e René Sévigny Counsel for the child Z M e Maryse Pinsonneault Counsel for the children X and Y M e Pascale Gauthier Counsel for the parents Date of hearing : March 8, 2019 Exhibits deposited : D-1 to D-8