2017 QCCQ 18063, 2017 QCCQ 18063

Protection de la jeunesse — 178542 2017 QCCQ 18063 JO0374 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] Youth Division No: 525-41-032885-170 DATE : October 26, 2017 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE KAREN OHAYON, J.C.Q. ______________________________________________________________________ IN THE CASE OF: X Born […], 2013 Director of Youth Protection A Applicant A Father B Mother ______________________________________________________________________ JUDGMENT (Section 38, Y.P.A.) ______________________________________________________________________ WARNING: Within the framework of the Youth Protection Act, no person may publish or broadcast information allowing 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 (Y.P.A. sections 11.2.2 and 135). [ 1 ] The Director of Youth Protection (the Director) is asking the Court to declare that the security or the development of the child X is endangered as a result of a serious risk of negligence, psychological ill-treatment and a serious risk of physical abuse. [ 2 ] The applicant alleges that the mother is in an abusive relationship with C (the boyfriend) who has demonstrated a tendency towards violence in the home.

Furthermore, both the mother and the boyfriend struggle with substance abuse issues. [ 3 ] Consequently, the Director is proposing that the child remain in the care of her father with a social follow-up for a year. Amongst the various measures proposed, the Director is asking for supervised visits for the mother as well as a prohibition of contact between the boyfriend and the child. [ 4 ] The mother admits to the allegations pertaining to the serious risk of negligence as well as the psychological ill-treatment but denies the risk of physical abuse.

Regarding the measures sought by the Director, the mother contests the prohibition of contact and asks the court to authorize weekend visits with the supervision of the maternal grandparents. [ 5 ] The father admits all of the allegations and consents to the measures proposed by the Director. He expresses concern regarding the risk to his daughter posed by the boyfriend and supports the prohibition of contact. [ 6 ] The lawyer for the child questions the sufficiency of the evidence regarding the serious risk of physical abuse but acknowledges that the other motives have been established.

She supports the measures proposed by the Director, being of the opinion that they are in the child’s interest. The State of Endangerment [ 7 ] On April 26, 2017, the Director retained a signalement regarding reports of drug and alcohol consumption in the mother’s home. During the course of the evaluation, a second signalement was retained on July 15, 2017 regarding an incident in the home that can be summarized as follows [1] : [ 8 ] On July 15, 2017, the boyfriend was at the mother’s home in breach of a court-ordered prohibition of contact stemming from his conviction for an assault on her.

After a night of drinking, the boyfriend demanded the mother’s credit card in order to purchase drugs, namely crack cocaine. Her refusal to comply led him to physically remove her from the apartment and lock her out.

[ 9 ] Concerned with her daughter’s safety, the mother banged on the door, demanding to be let in. The boyfriend partially opened the door and informed the mother that she could have her daughter back once she gave him her credit card. Upon her continued refusal, he grabbed the child and pushed her out the door, locking both mother and daughter out of their home. [ 10 ] These events took place at around 2 am. [ 11 ] The police were called on the same night and a complaint was laid.

During the course of their intervention, they observed the following: - The mother was highly intoxicated; - The boyfriend was asleep on the couch when they arrived at the apartment; - A crack pipe was in plain view next to the boyfriend; - The boyfriend was in possession of a key to the apartment and kept several personal items in the home (tools, clothes, etc.); - The apartment was disorderly and various objects were strewn across the floor; - Upon arresting the boyfriend, the police discovered an outstanding warrant for his arrest as a result of his failure to appear in court [2] . [ 12 ] In the course of reporting the events of that night, the mother informed the police that: - the boyfriend was prohibited from having contact with her; - since his return to her home, the two had been fighting on a consistent basis; - the boyfriend consumes a significant amount of crack; [ 13 ] In a meeting with the social worker, the mother maintained the same version as above and insisted that her relationship with the boyfriend was over. [ 14 ] It should be noted however that the social worker’s services were previously required following an event of conjugal violence in the home.

The case was closed when the mother assured the social worker that she had ended her relationship with the boyfriend. [ 15 ] Confronted with this context, the mother insisted that this time, it was over. [ 16 ] This affirmation proved to be true for no more than six weeks, after which the mother began to change her perspective. She informed the social worker at the review meeting that she wished to resume her relationship with the boyfriend.

She explained that she considered him to be supportive and a good role model for her daughter, that he was willing to work on his drug problems and that they were open to couples counselling. [ 17 ] In court, the mother acknowledged having an alcohol consumption issue and has begun an outpatient program at Foster’s Pavilion. She further acknowledges that she regularly argues with the boyfriend in the presence of the child.

She denies, however, the accuracy of the description of events that she initially gave the police and the social worker regarding the incident of July 15, 2015. [ 18 ] The mother testified essentially that she no longer considers her initial version reliable as a result of her state of intoxication. Rather, she has adopted the boyfriend’s version to the effect that she was responsible for the incident and that he was simply trying to protect her and the child.

She explains that this version appears plausible to her. [ 19 ] Essentially, the boyfriend states that the mother took her daughter from her bed in the middle of the night, without explanation or trigger that he could identify. Being concerned for their safety, he chased after them. Upon trying to stop the mother, he accidentally grabbed her purse strap. Believing that he was trying to steal from her, the mother told her daughter to run and then followed her. He claims to have no idea why she would have behaved in such a manner.

Serious Risk of Physical Abuse [ 20 ] The evidence reveals that there have been several incidents of conjugal violence in the home over the past few years including an incident during which the boyfriend broke a television in a fit of anger and in the presence of the child. [ 21 ] Furthermore, the boyfriend confirms in his testimony that he has been involved in several physical altercations with the maternal uncle in the mother’s home. [ 22 ] According to both the boyfriend and the mother, the maternal uncle is of questionable character and is a regular drug user.

The aforementioned conflicts occurred in the context of demands for money, drugs or alcohol. The child was always in the home at the time albeit in her room for the night in most cases. [ 23 ] The father testified that following the incident in July, the mother confided to him that the boyfriend was trash. He adds that she referred to him as a “bad man” in front of the child and promised her daughter that she would never see him again. [ 24 ] He further explained that during the following weeks, his relationship with the mother broke down and became hostile.

He began to mistrust her intentions regarding the boyfriend and became particularly concerned when he overheard the boyfriend on the phone with the child. The phone call was supposed to be exclusively between the child and the mother. He added that this incident was upsetting to the child who expressed not wanting any more contact with the boyfriend.

Analysis and Conclusion [ 25 ] As a whole, the evidence reveals a marginalized and unstable lifestyle to which the child is potentially exposed. The multiple physical altercations in the mother’s home as revealed by the evidence are of serious concern as regards to the child’s safety. During the incident of July 15, 2017, the child was directly implicated in the event and put at serious risk. [ 26 ] Generally speaking, the mother’s testimony is often rambling, confrontational, contradictory and incompatible with the evidence as a whole.

Her contempt for the Director’s intervention is evident as is her insistence that the boyfriend presents no risks. [ 27 ] The boyfriend’s account of the July incident appears geared towards avoiding both criminal and moral responsibility. His version is a simplistic story that lacks both content and context.

His attempt to convince the court that the mother was to blame is particularly insidious, demonstrating that he lacks the ability to assume responsibility for his actions and thereby calling his character into question. [ 28 ] The boyfriend’s lack of transparency is established by his tendency to minimize or deny the mother’s alcohol problems or the extent of her intoxication on the night of July 15, 2017. Not only are both elements admitted by the mother, they are established by the evidence as a whole.

A further example, the boyfriend denies the use of crack despite the presence of a crack pipe next to him at the time of his arrest.

He offers no explanation for the object and maintains that neither he nor the mother consume crack. [ 29 ] Also affecting his credibility: his prior convictions (D-4) as well as his complete disregard for court orders as evidenced by his continual breach of conditions and his deliberate failure to appear in court, leading to a bench warrant that remained outstanding for months. [ 30 ] The court is of the opinion that the Director has established that the child is in fact in serious risk of physical abuse considering: - the mother’s lifestyle and the risks associated with such a lifestyle; - the multiple physical altercations occurring in the home; - the direct implication of the child during one such incident; - the mother’s tolerance of her partner’s physical abuse; - her inability or unwillingness to protect her child from such occurrences; [ 31 ] The most recent events establish that the boyfriend prioritises his drug dependency over the child’s best interest.

He has demonstrated a capacity for violence in the child’s presence on more than one occasion yet he fails to acknowledge any wrongdoing. He has furthermore demonstrated that he is spectacularly unreliable when it comes to respecting court orders. [ 32 ] Considering the evidence as a whole, the Court concludes that the security and development of the child are endangered for the reasons alleged by the Director, namely a serious risk of physical abuse, a serious risk of negligence and psychological ill treatment.

The Measures [ 33 ] The child has been developing well ever since her provisional entrustment to the father. He collaborates closely with the Director and offers the child a structured and secure environment. The child attends daycare on a regular basis and has adjusted well to her new situation. [ 34 ] The mother was initially granted visits with the child under the supervision of the maternal grandparents.

However, as a result of an alleged incident in which the child was left with the mother unsupervised, the grandparents’ authorization to supervise was revoked. [ 35 ] The frequency of the visits has been reduced from two visits a week to one under the Director’s supervision.

Asked to explain the reduced frequency, the social worker testified that the mother’s continued lack of accountability was cause for concern but agreed that an increase to the original frequency was imminent. [ 36 ] Only two of the recommendations are in issue, namely the prohibition of contact and the frequency and modality of visits. [ 37 ] For the reasons explained earlier, the boyfriend represents a great risk to the child and the prohibition of contact must be granted. [ 38 ] Regarding the issue of visits, the court concludes that the mother has demonstrated a lack of reliability and trustworthiness when it comes to ensuring her daughter’s safety and best-interest.

Although she suggests that the grandparents would provide adequate supervision, there is no evidence demonstrating that they are capable of providing the safeguards required to ensure the safety of the child at this time. [ 39 ] The court has many concerns regarding the mother’s personal difficulties, particularly with respect to her inability to recognize her status as a victim of conjugal violence. Her defence of the boyfriend’s indefensible behaviours coupled with her alcohol abuse lead to the conclusion that she cannot be trusted to ensure her daughter’s safety.

Her willingness to respect the prohibition order is also questionable, making adequate supervision of contact a necessity. [ 40 ] The child’s lawyer rightly asks the court to recommend that the mother participate in therapy for victims of conjugal violence. The court encourages the mother to take

part in any group or individual program that could help her with such an emotionally charged issue.

[ 41 ] FOR THESE REASONS, THE COURT: [ 42 ] GRANTS the motion; [ 43 ] DECLARES that the security and development of the child are endangered as a result of a serious risk of negligence, a serious risk of physical abuse and psychological ill-treatment; [ 44 ] ORDERS that the child be entrusted to the care of her father; [ 45 ] ORDERS a prohibition of contact between C and the child and ORDERS that the Director serve Mr C with this conclusion; [ 46 ] ORDERS that the mother ensure that the child is not exposed to any substance abuse or violence; [ 47 ] ORDERS that the frequency and modality of contacts between the child and her mother be determined by the DYP, including supervision if deemed necessary and ORDERS that the Director offer minimally two visits per week; [ 48 ] TAKING JUDUCIAL NOTICE of her consent, ORDERS that the mother follow through with support services for substance abuse and follow the recommendations of the treating professionals; [ 49 ] TAKING JUDUCIAL NOTICE of her consent, ORDERS that the mother submit to random drug testing as requested by the Director; [ 50 ] RECOMMENDS that the mother receive a psychiatric assessment in order to better evaluate her mental health; [ 51 ] RECOMMENDS that the mother continue to participate in a parenting program; [ 52 ] RECOMMENDS that the mother consider participating in a therapy or group for victims of conjugal violence; [ 53 ] TAKING JUDICIAL NOTICE of the parents consent’s , ORDERS that the Director be authorized to obtain and exchange information with all treating professionals involved with the family; [ 54 ] ORDERS that a person working for a Child and Youth Protection Centre provide aid, counsel and assistance to the child and her family; [ 55 ] ENTRUSTS the situation of the child X, to the Director of Youth Protection of A Youth and Family Centres, who shall then see that the measures are carried out; [ 56 ] THE WHOLE for a period of one year.

SIGNED IN TOWN A On October 31, 2017 __________________________________ KAREN OHAYON, J.C.Q. Heidi Lechter Attorney for the D.Y.P. Adriana Chafoya-Hunter Attorney for the child Nadia Sabik Attorney for the mother Younes Ameur Attorney for the father Date of hearing: October 26, 2017 KO/lf