2013 QCCQ 16008, 2013 QCCQ 16008

Protection de la jeunesse — 134988 2013 QCCQ 16008 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] Youth Court Division N°: 525-41-026979-138 Date: October 4, 2013 PRESIDED BY: THE HONOURABLE TAYA DI PIETRO, Q.C.J. In the case of: X Born on […], 1996 [SOCIALWORKER 1] , duly authorized by the Director of Youth Protection A and Family Centres Applicant -and- A , the mother -and- B , the father The parents -and- LA COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE Mise-en-cause JUDGMENT

Section 38 of the Youth Protection Act (L.R.Q., C.P-34.1) JD2620 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 11.2.1 and 135 ] [ 1 ] The Director of Youth Protection A and Family Centres filed a motion to declare that the security and development of a child is in danger in the case of X , a sixteen year-old adolescent, based on her serious behavioral disturbances and the physical abuse she allegedly suffered. [ 2 ] The facts alleged in support of the motion dated March 8, 2013 are as follows: 3.1. the adolescent is the victim of bodily injury or is subjected to unreasonable methods of upbringing by the parents or another person and the adolescent's parents fail to take the necessary steps to put an end to the situation, more particularly but not restrictively in that:

a) the adolescent reports that on a regular basis, she is slapped, pinched, strangled, hit on the side of the throat and spat on by her mother;

b) the adolescent reports that the mother attempted to push her head in the toilet;

c) the adolescent reports that, on two (2) occasions, the mother asked her to undress completely in order to determine if she was sexually active;

d) the adolescent reports that the father has slapped her on at least two (2) occasions leaving marks on the face and the arm;

e) the adolescent disclosed that her brothers also physically abuse her;

f) the adolescent states that on the week of February 17 th , 2013, she was physically abused by her mother and left the home to stay with her twenty-eight (28) year old boyfriend;

g) the adolescent eventually returned home;

h) on February 28 th , 2013, the adolescent ran away again as the situation at home was untenable;

i) the police located the adolescent at the home of her boyfriend;

j) the parents and the two (2) brothers are denying the use of physical discipline or any physical abuse;

k) the parents asked the adolescent to recant her statements; 3.2. the adolescent is exhibiting serious behavioural disturbances, more particularly but not restrictively in that:

a) the adolescent has been consuming marijuana;

b) the adolescent has been consuming alcohol;

c) the adolescent has been missing school on a regular basis; 3.3. on the evening of February 28 th , 2013. immediate protective measures were applied and the adolescent was entrusted to a rehabilitation centre; 3.4. on March 4 th , 2013, the Honourable Judge Denis Asselin extended the application of immediate protective measures for a period not exceeding five (5) working days (reproduced with errors and/or omissions). [ 3 ] In light of the foregoing, the Director recommends that the adolescent remain entrusted to a reception centre for a period of three months with integration home when deemed appropriate by the Director of Youth Protection, with aid, counsel and assistance, as well as additional corrective measures, for a period of one year. [ 4 ] The mother, assisted by Me Sureau, admitted the allegations regarding her daughter's behavioral problems.

However, she categorically denies that her daughter has been physically abused.

She chose not to testify, consented to the proposed measures and expressed, through her counsel, her desire to have her daughter return home as soon as possible, as well as her willingness to collaborate fully with social services. [ 5 ] The father, assisted by Me Shapiro Knight, adopted essentially the same position as the mother, acknowledging his daughter's behavioral problems but denying any incidence of physical abuse. [ 6 ] The adolescent, assisted by Me Hamel, reluctantly admitted that her behavioral problems warranted the proposed measures.

However, she completely recanted her allegations of any abuse within the family. [ 7 ] The Director filed Exhibits D-1 to D-4 as evidence: D-1: Adolescent's Birth Certificate; D-2: Police Incident Report, dated February 28, 2013; D-3: Court Report, prepared by [Social Worker 1], dated April 4, 2013; D-4: Addendum, prepared by [Social Worker 1], dated May 6, 2013. [ 8 ] The adolescent filed Exhibit E-1 as evidence: E-1: Letter written by the adolescent to her parents; [ 9 ] In

summary, the parties concur that the adolescent's serious behavioral disturbances warrant the measures proposed by the Director of Youth Protection. [ 10 ] However, the Director of Youth Protection maintains that the adolescent's initial allegations regarding physical abuse by her family members are genuine and that her security and development are compromised on that basis as well. [ 11 ] The parents and the adolescent, on the other hand, claim that the allegations are completely false. [ 12 ] The court must therefore determine whether the evidence adduced establishes, on a balance of probabilities, that the adolescent was, in fact, a victim of physical abuse, as she initially claimed, despite her subsequent recanting of the allegations. [ 13 ] After having considered all the circumstances in the present case, the court concludes that the evidence adduced does not establish, on a balance of probabilities, that the adolescent's security and development are compromised based on physical abuse. [ 14 ] She recanted her statements under oath and there is no evidence that she was forced or threatened to do so.

She recanted her

statements when she was already in placement and presumably protected from any undue influence.

Yet, as she testified, she is anxious to return home and would certainly not be eager to return home if her allegations had been true. [ 15 ] She claimed to have fabricated the allegations in the hope of gaining her freedom, and living independently, thus escaping her parents' control. [ 16 ] She explained where she got the idea for each of the particularly repugnant behaviors she attributed to her mother and family, and denied that any had ever occurred. [ 17 ] Finally, both parents have been very open and collaborative with social services since the beginning of their involvement and none of the other siblings claim to have observed any violence or physical discipline in the home. [ 18 ] Moreover, despite the allegations, the adolescent was observed to have a warm, loving relationship with her parents, albeit more conflictual with her mother. [ 19 ] Both her parents appear committed to building a better relationship with their daughter.

More particularly, regarding the mother: For Ms. A, the principle problem that lead to DYP's involvement is that her daughter wanted a way out of the family and to live independently hence, calling the police. DYP involvement has affected the entire family and she remains unclear as to why her daughter would divulge such false information. She remains concerned regarding her daughter's behaviours in the community and her relationship with her.

She acknowledges differences between her and X, and is motivated to find solutions in order for her dauther to feel comfortable enough that if something happens she would be the first person she would got to. She proposes that X needs to come to the realizations that rules are implemented for her wellbeing, that she and Mr. B are there to support her in life decisions. She is open to learning new parenting techniques to address conflicts with X, to have better communication and is open to any other intervention deemed appropriate by the Director of Youth Protection .

She continues to lack the acknowledgment of the situation of risk, however, is motivated to have her daughter return home. [1] [ 20 ] Finally, the circumstances under which the allegations were made must also be considered.

The police were called to intervene when a twenty-eight year-old man realized that the adolescent, who was planning on staying at his place and with whom he was becoming romantically involved, was significantly younger than she had claimed. [ 21 ] The allegations were therefore first made when the adolescent was caught in a lie, and not spontaneously in a situation of fear. [ 22 ] However, the foregoing conclusions to the effect that physical abuse has not been established do not undermine the seriousness of the difficulties within the family which will require intensive support and close monitoring. [ 23 ] The mere fact that the adolescent was capable of making such abhorrent allegations illustrates the depth of the tensions and conflict within the family that cannot be minimized. [ 24 ] In particular, the father's reluctance to acknowledge the extent of the problem and his insistence on portraying only the most positive image of his family raises serious concerns. [ 25 ] The whole family is encouraged to honestly explore and reassess their conflits in order to redress the situation. [ 26 ] THEREFORE, THE COURT: [ 27 ] GRANTS the motion; [ 28 ] DECLARES that the security and the development of the adolescent, X , are compromised under

section 38

f) of the Youth Protection Act ; AS FOR THE MEASURES, THE COURT DEEMS IT TO BE IN THE ADOLESCENT'S INTEREST TO ORDER THE FOLLOWING MEASURES: [ 29 ] ORDERS that the adolescent be entrusted to a reception centre for a period of three months from May 23, 2013 with a reintegration home when deemed appropriate by the Director of Youth Protection; [ 30 ] TAKES JUDICIAL NOTICE that the adolescent is expecting to be fully reintegrated within of weeks May 23, 2013 as soon as support services are in place, provided that there are no other serious incidents; [ 31 ] ORDERS that the frequency and modality of contacts between the adolescent, her mother, father and siblings be determined by the Director of Youth Protection, including supervision if necessary; [ 32 ] ORDERS that the parents refrain from using physical discipline towards the adolescent; [ 33 ] ORDERS that the parents ensure that there is no name calling, hitting, or any other form of physical abuse towards the adolescent by the adolescent's brothers; [ 34 ] STRONGLY RECOMMENDS that the family benefit from family counselling; [ 35 ] STRONGLY RECOMMENDS that the adolescent benefit from individual counselling; [ 36 ] ORDERS that the adolescent be accountable when in the community and refrain from engaging in risky behaviors; [ 37 ] ORDERS that a person working for A Youth and Family Centres provide aid, counsel and assistance to the adolescent and her

family; [ 38 ] ENTRUSTS the situation of the adolescent, X, to the Director of Youth Protection A Youth and Family Centres, who shall then see that the measures are carried out; [ 39 ] AUTHORIZES the execution of the present order by any peace officer, if necessary; [ 40 ] THE WHOLE until May 23, 2014. TAYA DI PIETRO, Q.C.J. Me Sym Davis / AN4187 Attorney for the Director of Youth Protection Me Robert Hamel / AH4614 Attorney for the adolescent Me Maïa Sureau / AS3075 Attorney for the mother Me Judith Ann Shapiro Knight / AS9130 Attorney for the father Hearing dates: April 17 and May 23, 2013 . TD/vl