2022 QCCQ 6394, 2022 QCCQ 6394

Protection de la jeunesse — 222288 2022 QCCQ 6394 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT […] TOWN […] Youth Division No: 635-41-001164-216 DATE: April 22, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE RENÉE LEMOINE, J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1] , youth protection worker, duly authorized by the Director of Youth Protection of the A C.Y.P.C., working in Town A, district A Applicant and X, born on […], 2009 Child and A Mother and B Father ______________________________________________________________________ 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 Director of Youth Protection (DYP) asks the Court to declare that the child’s security and development are in danger due to a risk of neglect of the child’s basic needs under

section 38(b)(2) of the Youth Protection Act ( YPA ). The Director also submits that the child is exposed to conjugal violence and subjected to psychological ill-treatment. Last, the Director asks the Court to consider the ground under

section 38(d)

(2) YPA because the child runs a serious risk of being subjected to gestures of a sexual nature by her father. [ 2 ] The parents were present at the hearing and represented by their respective counsel. They both acknowledge the facts permitting the Court to declare that the security and development of the child are in danger under sections 38(b)(2) and 38(

c) YPA but denies that the child is at serious risk of sexual abuse under

section 38(d)

(2) YPA . [ 3 ] They agree with the recommendation to entrust the child to her mother with the participation of both parents in various services. ISSUE − Is the child at serious risk of sexual abuse? EVIDENCE [ 4 ] In the present case, the only evidence provided is the testimony of C, who intervened on November 6, 2020, when the child’s sister was arrested because she stabbed her father. She was in the police truck. She appeared to be coherent but was in a state of distress. She was intoxicated by drug. She had consumed cocaine that night.

She disclosed that her father had sexually abused her. [ 5 ] On November 9, 2020, she returned to the police station to make a statement. She became very frustrated by the police investigation. She decided to leave the police station after a few questions. [ 6 ] Since then, she has refused to cooperate with the Director and has not provided any statement to the police. She denies almost everything saying she made up the story. [ 7 ] No details have been provided concerning the allegations of sexual abuse.

[ 8 ] The child X, who is presently 13 years old, confirmed to the DYP worker that she has never been touched in a bad way by her father. ANALYSIS [ 9 ] The motive of serious risk of sexual abuse is found in

section 38(d)

(2) YPA : 38. For the purposes of this Act, the security or development of a child is considered to be in danger if the child is abandoned, neglected, subjected to psychological ill-treatment or sexual or physical abuse, or if the child has serious behavioural disturbances.

In this Act, … (d) “sexual abuse” refers to … (2) a situation in which the child runs a serious risk of being subjected to gestures of a sexual nature by the child’s parents or another person, with or without physical contact, including a serious risk of sexual exploitation, and the child’s parents fail to take the necessary steps to put an end to the situation; [ 10 ] The expression “serious risk” establishes an exacting standard concerning the level of risk to declare the security and development of a child in danger on such a ground.

The risk does not rely on assumptions or possibilities. [1] [ 11 ] To be declared serious, the risk has to be severe, important and predictable. [2] [ 12 ] The Director has the burden of proving that the serious risk exists according to the standard of balance of probabilities. [ 13 ] The seriousness of the risk must be evaluated depending on the child’s characteristics and vulnerability. The criteria of

section 38.2 YPA have to be considered: 38.2. A decision to determine whether a report must be accepted for evaluation or whether the security or development of a child is in danger must take the following factors into consideration: (

a) the nature, gravity, persistence and frequency of the facts reported; (

b) the child’s age and personal characteristics; (

c) the capacity and the will of the parents to put an end to the situation in which the security or development of the child is in danger; (

d) the community resources available to help the child and the child’s parents. [ 14 ] In the present situation, the risk of sexual abuse is based on the allegations of the child’s siblings. [ 15 ] The Director did not ask the child to testify or ask the Court to dispense the child from testifying under

section 85.2 YPA . [ 16 ] The evidence regarding the disclosure of a situation of sexual abuse of a sibling has not been proven. The testimony of the social worker in whom the child confided is hearsay evidence. It is not the proper way to prove such an important fact. [ 17 ] The Court takes very seriously any risk of sexual abuse of a child. The consequences can be detrimental.

Having said that, the Court cannot overlook the need for the Director to take steps to meet his burden of proof and provide admissible evidence to prove that ground. [ 18 ] The Court cannot consider a risk of sexual abuse of a child when this risk is based on sexual abuse of another child, which has not been proven by the DYP. It is not sufficient to make an allegation of sexual abuse; this fact must be proven.

In the present case, there is no evidence on a balance of probabilities that the father sexually abused the child’s sibling. [ 19 ] Considering this conclusion, it is not necessary to assess the criteria set out in

section 38.2 YPA . [ 20 ] The Court is of the opinion that the DYP did not meet his burden of proving the risk of sexual assault by the father. APPLICABLE MEASURES [ 21 ] The evidence shows that on five occasions in the past year, the children were present at home during a police intervention, while one or both parents were intoxicated. In February 2021, the father assaulted the mother when the police arrived at their house. He was holding the mother down on the ground. The father had scratches on his face. The mother was put under arrest. [ 22 ] On September 29, 2021, the police arrived at the house.

The mother was lying on the floor and was not moving. She had visible bruises on her face and dry blood in her hair. The father was arrested. [ 23 ] On October 14, 2021, the police intervened, as there were screams and a fight at the home. Both parents were intoxicated by alcohol. The children were brought to the grandmother.

[ 24 ] On November 6, 2021, the oldest daughter of the couple was arrested for assault with a weapon. She stabbed her father with a knife in his belly and on his hand. The children were at home in their room. The children were removed from their parents’ place. The father was intoxicated but cooperative. The mother was also intoxicated and a little aggressive. [ 25 ] On December 9, 2021, the mother had no visible signs of violence. The mother brought the children to her mother’s place for the night.

The father was intoxicated. [ 26 ] Incidents of conjugal violence are frequent and major in terms of level of gravity. The children are aware of this violence and are scared for their mother. They often witness it and have been removed from their home in the middle of the night. [ 27 ] Clearly, it is necessary to entrust the children to their mother to the exclusion of the father to protect them and avoid such regular exposure to conjugal violence. [ 28 ] The mother should assume her responsibilities to protect her children.

She will have to cooperate to regain her ability to make good choices and give priority to her children. She will have to address her personal issues, such as alcohol consumption and being a victim of conjugal violence. [ 29 ] The father must seek help for his violent behaviour as well as for his alcohol abuse issue. [ 30 ] The children’s best interest is to be raised in a safe and stable environment that is free from alcohol and violence. Both parents will have to take steps to provide such caring environment.

THEREFORE, THE COURT: [ 31 ] GRANTS the application; [ 32 ] DECLARES that the security and development of X, born on […], 2009, are still in danger; [ 33 ] ENTRUSTS the child to her mother to the exclusion of the father; [ 34 ] ORDERS that the child’s parents take an active

part in the application of any of the measures ordered by the Court; [ 35 ] ORDERS that the parents report periodically to the Director of Youth Protection on the measures they apply in their own regard or in their child’s regard to put an end to the situation in which the security or development of the child is in danger; [ 36 ] ORDERS that the child attend school on a regular basis; [ 37 ] ORDERS that the parents remain sober in the presence of the child; [ 38 ] RECOMMENDS that the parents seek help through social services concerning their alcohol, anger management, and personal issues; [ 39 ] ORDERS that contact between the child and the father be determined by the Director of Youth Protection with respect to the terms, frequency, and level of supervision; [ 40 ] ORDERS that a person working for an institution or body provide aid, counselling, or assistance to the child and the child’s family; [ 41 ] ENTRUSTS the situation of the child to the Director of Youth Protection who shall then see that the measures are carried out; [ 42 ] THE WHOLE until February 28, 2023.

Signed in Town A on June 6, 2022 __________________________________ RENÉE LEMOINE, J.C.Q. Mtre Gabrielle Francoeur For the child Mtre Geneviève Apollon For the applicant Mtre Ève Laoun For the mother

Mtre Justine Bergeron For the father Date of hearing: April 22, 2022