2015 QCCQ 19517, 2015 QCCQ 19517

Protection de la jeunesse — 154728 2015 QCCQ 19517 JL4031 COURT OF QUÉBEC Youth Division CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] N° : 525-41-029161-148 525-41-029164-142 DATE: December 17, 2015 ______________________________________________________________________ PRESIDED BY : Mr.

JUSTICE CLAUDE LAMOUREUX, J.C.Q. ______________________________________________________________________ In the matter of : X born on […], 2012 Y born on […], 2010 The Director of Youth Protection of Youth and Family Centres A applicant - and - A, mother - and - B, father respondents ______________________________________________________________________ JUDGMENT (section 38 of the Youth Protection Act) ______________________________________________________________________ WARNING: The Youth Protection Act prohibits the publication or broadcasting of any information that may lead to the identification of a child or his parents.

Any person who contravenes this provision commits an offence and is liable to fine. [ Y.P.A. sections 11.2.1 and 135 ] Introduction [ 1 ] The Court is seized with motions presented by the Director of Youth Protection asking the Court to declare the security or development of X and Y compromised. The Court is seized at the same time with a motion regarding the boys’ half-sister, Z, born in February 2015.

[ 2 ] The Director alleges that X was physically abused and that the two other children, Y and Z, are at serious risk of being physically abused. [ 3 ] All three children have the same mother. The boys’ father is Mr. B whereas Z’s father is Mr. C. [ 4 ] As provided for by

section 73.1 of the Youth Protection Act and with the consent of all the parties, the Court proceeded in the files of all three children at the same time. Relevant facts leading to the main issues [ 5 ] The Director and the police became involved in November 2014 after two-year-old X was diagnosed with “blunt abdominal trauma”. Suspicious bruising was also noted on X, the whole leading medical staff to conclude that the injuries were likely inflicted. [ 6 ] At the time of the signalement , the mother was pregnant with Z and was living with Mr. C and the two boys. The father lived with his own mother.

The boys were visiting their father (and grand-mother) every second weekend or so. [ 7 ] The boys had recently spent different time periods with their mother and Mr. C, with their father and in daycare. With no one claiming responsibility for the injuries, the boys were placed outside the home. They have been with Mr. B’s mother since December 2014. [ 8 ] The mother and Mr. C were still in a relationship at the time of Z’s birth in February 2015. Due to continued uncertainty as to the origin of X’s injuries, Z was placed at birth.

Following a week-long placement with other relatives, Z was and remains entrusted to Mr. C’s mother. The latter has since been assessed and accepted as a “foster parent”. [ 9 ] In March 2015, in the course of the police investigation, the mother reported past incidents of conjugal violence at the hands of Mr. C. Charges were laid against Mr. C and conditions were imposed whereby he cannot contact the children without the Director of Youth Protection’s approval. Although he cannot live with the mother, he can see her with her approval.

These conditions, as well as a more recent condition to engage in anger management, remain in place. [ 10 ] The Director was not able to determine who had injured X and waited for the police to complete its investigation. Following a long and extensive investigation, the police concluded in June 2015 that Mr. C was the one who had injured X.

The Crown has yet to decide if it will lay charges, including possible charges against the mother for her negligence in regard to the child’s injuries. [ 11 ] The case began before the undersigned in March 2015 and was postponed twice (June and September) due to extenuating circumstances. The case was completed on December 3 rd 2015 and taken under advisement. At each hearing, the mother and her lawyer, the two fathers and a lawyer for the children were present. [ 12 ] Since the Director’s initial involvement, the situation has evolved. [ 13 ] The children are all doing well.

X is physically healthy but has undergone various assessments (psychological and psychiatric) for developmental delays unrelated to the present case. Certain follow-ups are required which the parents agree to ensure. [ 14 ] Last June, after the investigation cleared Mr. B of any suspicion regarding X’s injuries, the Court allowed him to return living with the boys at his mother’s home. He has been very involved in their care and no particular concerns exist regarding his ability to meet the boys’ needs.

His intention is to remain living with his mother over the next year as he completes school. [ 15 ] The mother has had regular contact with the boys, including unsupervised visits in the last few months. She even receives them for a full-day on weekends. [ 16 ] The mother and Mr. C have seen Z regularly. In recent months, the mother takes her daughter for a full day on the weekend. Mr. C’s visits have been supervised. There is no reason to believe that the mother has given or will give Mr. C unauthorized access to any of the children. [ 17 ] The mother and Mr.

C are involved in what they describe as a complicated relationship; they are trying to work things out. [ 18 ] Although the mother has come to believe that Mr. C is the one who physically abused X and despite her maintaining that there were incidents of couple violence, she is open to working on her relationship with Mr. C. She states that she is partly to blame for the couple conflict. Her expectation is that Mr. C completes his anger management. She intends on getting personal counselling and then, possibly participating with Mr. C in couple counselling. [ 19 ] Mr. C also hopes to reunite with the mother.

He intends on completing the anger management he just began and is hoping to access a parenting class. He agrees to give the Director access to information regarding his participation and progress in his therapeutic programs. [ 20 ] All three parents underwent a psychological evaluation that makes treatment recommendations which include a parental capacity assessment of all three parents and psychotherapy for the mother and Mr.

C. [ 21 ] The Director’s main recommendation today for Z is that she remain in the foster home of her paternal grandmother and be gradually returned to her mother’s care over the next two months. The Director is asking that the boys be specifically entrusted to their father with a gradual transition to a shared mother-father custody arrangement in three to six months. The Director is also seeking

authority to determine Mr. C’s access to all three children for the next year. The Director is intending to have the family assessed and hopefully receive more intensive services from the “Family Preservation Program”. [ 22 ] The mother agrees with these recommendations. She wants to begin with Z’s integration, and then the boys’. Her intention is to stop all activities (work or school) from February to September 2016 in order to devote all her time and energy on the children. [ 23 ] Mr. C also agrees with the Director’s recommendations. [ 24 ] Mr.

B agrees with the proposed measures except a parental capacity assessment. He feels that the last year has put a lot of strain on him and that he has proven that he is an able parent. He also does not want too active a participation in the Family Preservation Program. Although he intends to continue to collaborate with the Director, he does not see the need to participate in such a program.

The Director agrees but feels that his “collaboration” with the Family Preservation Program would be helpful. [ 25 ] The boys’ parents believe they can amicably determine the terms of an eventual shared custody. [ 26 ] The children’s lawyer is also in agreement with the proposed measures. However, he suggests that the boys’ entrustment to their father be conditional on him continuing to live with his mother and that Mr. C only be allowed to live with the mother in the children’s presence once he has completed an anger management program.

Main issues and positions of the parties [ 27 ] Although there is generally an agreement on what measures to put in place, the same cannot be said as to the grounds of compromission . [ 28 ] As stated earlier, the Director alleges that X was physically abused by Mr. C and that the other two children are consequently at serious risk of being abused. [ 29 ] Although the Court could declare X’s security or development compromised for physical abuse without identifying the abuser, ordering the proper protective measures becomes an almost impossible task.

For this reason, it would be preferable to identify the abuser if the evidence allows for such a determination. [ 30 ] A declaration of compromission for physical abuse of X by Mr. C requires preponderant evidence that X was the victim of bodily injury by Mr. C and that the parents (the mother and Mr.

B) did not take the necessary steps to put an end to this situation. [1] [ 31 ] As stated earlier, the mother has come to believe that Mr. C is the one who physically abused X. She recognizes that there were signs of abuse but was only witness to one specific event. Thus, she agrees to X’s security or development being declared compromised for physical abuse by Mr. C. [ 32 ] Although not asked specifically, Mr. B appears to have essentially the same position.

He believes there was abuse, had seen signs of abuse, denies being the abuser and does not believe that the mother could have hurt their son. [ 33 ] During his short testimony, Mr. C stated that he is not the one who injured X and that no one ever asked him about the bruises. His view is that the evidence does not allow for the Court to determine that he hurt X. [ 34 ] The child’s attorney agrees that there appears to be preponderant evidence pointing to Mr. C as the person who physically abused X.

He agrees with the Director’s contention that the mother did not take the necessary steps to protect the child. [ 35 ] A finding of serious risk of physical abuse by Mr. C of Y and Z requires preponderant evidence that such a risk exists and that the parents (the mother and Mr. B in the case of Y; the mother in the case of

Z) did not “ take the necessary steps to put an end to the situation ”. [2] [ 36 ] The parties did not plead specifically on this ground of compromission, as though it would follow if the Court declared that Mr. C is the one who injured X. [ 37 ] Based on the above, the Court must answer the following questions: 1 . Was X the victim of bodily injury? If so, a . who is responsible for these injuries? b . did the parents fail to take the steps necessary to put an end to the situation? 2 . Based on the above, are Y and Z at serious risk of becoming victims of bodily injury? a .

If so, did Y and Z’s parents take the necessary steps to put an end to the situation? 3 . Based on the answers to the questions above, what protective measures need to be put in place. Evidence [ 38 ] The evidence was essentially established by way of reports. Numerous psychosocial, psychological, medical and police reports were filed as evidence. In addition to the parties themselves, a medical doctor and a sergeant-detective testified.

[ 39 ] The Court principally retains from this evidence the following facts. [ 40 ] As mentioned earlier, in the period prior to the November 2014 signalement, the boys principally lived with the mother and Mr. C. They were spending two weekends per month with their father, who lived with his mother. [ 41 ] Between September and November, strange bruising on X’s body was noted by various persons: the mother herself, the father, the two grandmothers and several daycare workers. The marks were suspicious because of their number and location: tip of one ear or the other, jaw, neck, cheek, forehead.

This information was relayed back to the mother who was even asked by the daycare if X was being physically abused at home. The mother explained to those reporting concerns that in her view, the bruises were accidental or resulted from X bruising easily. She could only explain one bruise which resulted from the child falling out of bed. [ 42 ] X and his brother spent the weekend of November 6 to 9, 2014 with his father and grandmother. The grandmother noted some bruising on X’s cheek and ear upon his arrival.

According to the grandmother, the weekend went normally and the children returned to their mother’s on November 9. [ 43 ] As that week progressed, the mother noted X becoming lethargic (no appetite, tired…). She noted marks on X at bath time, as did Mr. C. On November 15, 2014, X was not well. He fell on a toy due to his lethargy and the mother had him sleep in her bed that night. The next day, he was presenting with “coffee ground vomiting” so she brought him to the Hospital A who transferred him to the Montreal Children’s Hospital. [ 44 ] X was observed and tested over the next days.

The hospital staff found bruising that was concerning due to their number and location: lobe, cheeks, back, etc. The marks on the ear could be explained by being “boxed” and those on the cheeks from having his face squeezed. In addition, X had been the victim of a “blunt abdominal trauma” which had caused swelling of the intestine. This is a severe and even life-threatening injury because it can cause the liver to rupture. Such an injury requires considerable force, the type seen in car accidents.

Other possible explanations for the injury and bruises were ruled-out, leading the medical staff to conclude that they were likely inflicted during approximately a 3 to 10 day timeframe prior to hospitalization. [ 45 ] The mother initially denied any knowledge as to how these injuries could have occurred. She did not report any concerns, either in regard to her relationship with Mr. C or how he was with the children. [ 46 ] The police investigation was slow, presumably because they needed to rule out the day care and Mr.

B, particularly because the latter had injured Y when he was very young. [ 47 ] In March 2015 , as the police were beginning to piece together what may have happened to X, they met the mother again and pressed her for more answers. It is only then that she revealed very alarming behaviour on Mr. C’s part. The mother reported that Mr. C had been violent towards her on more than one occasion, including one time in June 2014, thus a few months into their relationship and a few months before X began showing signs of abuse. She further revealed that Mr. C had a temper, was easily and often angry.

At these times, he could throw things towards her face or grab her by the neck (including once in March 2015). He would also hit the dog. [ 48 ] The mother reported as well that she knew of one incident in November 2014 when Mr. C had taken X into another room. She had heard X cry and later emerging with a fat lip. She recounted another incident where Mr. C said that bruising on X resulted from him (

X) falling in the stairs while in his care. [ 49 ] In the end, the mother conceded that the only person who could have caused the bruises to X was Mr. C. She stated that she did not believe that the children are safe when he’s in the house because he’s unpredictable. [ 50 ] Mr. C had been met in November 2014 at which time he denied any involvement with X’s bruising. He was met again in early April 2015, following the mother’s March police statements, but he refused to discuss the case. He did however admit that he has anger issues for which anger management could be useful. [ 51 ] It should be noted that Mr.

C’s psychological evaluation concluded that he presents with a long history of anger management and impulse control issues which can lead to conflicts in his interpersonal relations. Conclusion regarding the grounds of compromission [ 52 ] Based on these facts, it appears clear that Mr. C is probably the person who injured X. In addition to the blunt abdominal trauma and the bruising, there is at least one other incident (fat lip) where the evidence clearly establishes that Mr. C injured X. [ 53 ] The facts further establish that Mr.

C was violent with the mother early into their relationship and that several months went by during which X showed signs of abuse. The mother concealed many of the concerns she had at that time, seeking to protect her boyfriend or her relationship. Mr. B had concerns but, as he only had the children two weekends per month, had to rely on the mother and her information to ensure that the children were safe. [ 54 ] Based on these factors, the Court concludes that X was the victim of bodily injury at the hands of Mr.

C and that the mother did not and the father could not take the necessary steps to put an end to the situation. [ 55 ] Considering these conclusions and the fact that the mother and Mr. C are working on restoring their relationship, there is the chance that the children could live under the same roof as Mr. C in the future. The injuries that X sustained are serious and took place

over several months. Mr. C has also displayed an inability to control his anger with the mother and even the family pet. Thus, the Court must conclude that the three children are at serious risk of becoming victims of bodily injury at the hands of Mr. C. Corrective measures [ 56 ] In light of these conclusions, it appears to be in the children’s best interest to proceed with their integration as set out above. It is first and foremost important that the children be protected from Mr. C while he completes proper treatment to deal with his anger issues.

Z can be returned to her mother’s care over a short period followed by the boys’ return to both their parents via a joint-custody arrangement. [ 57 ] The children’s lawyer suggests that the boys’ entrustment to their father be conditional on him continuing to live with his mother. The point is perhaps moot because Mr. B intends on continuing to live with his mother. However, the evidence is clear that Mr. B is a capable parent and that there are no concerns with the care he would provide his children, whether he lives with his mother or not.

CONSEQUENTLY, AND FOR THESE REASONS, THE COURT: [ 58 ] GRANTS the motions; [ 59 ] DECLARES that the security or development of X is compromised due to physical abuse; [ 60 ] DECLARES that the security or development of Y is compromised due to serious risk of physical abuse; [ 61 ] IN VIRTUE OF THE POWERS CONFERRED UPON THE COURT BY

SECTION 91 OF THE YOUTH PROTECTION ACT: [ 62 ] ORDERS that X and Y be entrusted to their father for a period of six months; [ 63 ] AUTHORIZES the Director to reintegrate the children to the mother after three months with a gradual transition to a shared custody arrangement; [ 64 ] TAKES JUDICIAL NOTICE that the parents will determine the terms of the shared custody; [ 65 ] AND FOR THE FOLLOWING YEAR : [ 66 ] ORDERS that the frequency and modality of contacts between X, Y, and Mr. C, including the need for supervision, be determined by the Director of Youth Protection; [ 67 ] ORDERS that the mother ensure that Mr.

C’s access to the boys only take place as authorized by the Director; [ 68 ] AUTHORIZES Mr.

C to live in the same home as the children if authorized by the Director of Youth Protection and only once he has completed an anger management program; [ 69 ] ORDERS that the parents ensure that the children are not victim or witness to any violence; [ 70 ] RECOMMENDS that the mother follow the recommendations stemming from her psychological evaluation, and more particularly a parental capacity assessment and psychotherapy; [ 71 ] AUTHORIZES the Director of Youth protection to obtain information from the father’s service providers to ensure compliance with the present order; [ 72 ] RECOMMENDS that the mother participate in, and that the father collaborate with, the Family Preservation Program if accepted; [ 73 ] TAKES JUDICIAL NOTICE that the parents will follow-up with services required by X; [ 74 ] ORDERS that aid, counsel and assistance be provided to the children and their family; [ 75 ] ENTRUSTS the situation of X & Y to the Director of Youth Protection of Youth and Family Centres A who shall see that these measures are carried out and these measures may be executed by any peace officer, if necessary. _________________________________ CLAUDE LAMOUREUX, J.C.Q.

M e Nadia Sabik Attorney for the applicant Me Martine Bourdeau Attorney for the mother M e Robert Hamel Attorney for the children Dates of hearing: March 31 st , June 23 rd , September 8 th & December 3 rd , 2015 CL/nl