2017 QCCQ 18251, 2017 QCCQ 18251

Protection de la jeunesse — 178493 2017 QCCQ 18251 JO0374 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] Youth Division No: 525-41-026425-124 DATE : July 27, 2017 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE KAREN OHAYON, J.C.Q. ______________________________________________________________________ IN THE CASE OF: X Born [...], 2009 Director of Youth Protection A Applicant A Father B Mother (deceased) ______________________________________________________________________ JUDGMENT (Section 95, 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 ] Within the context of a joint hearing, the Director of Youth Protection, (the Director), is asking the Court to revise an order rendered on January 7, 2016, entrusting X and Y to the care of their maternal aunt (the aunt), C, until their age of majority. [ 2 ] The Director is alleging that the aunt has been physically abusive towards both children as well as negligent, particularly regarding X’s physical needs.

According to the social worker, this information has only recently come to light although it may have been ongoing for some time. [ 3 ] The children have been removed from the aunt’s care since August 24, 2016, following a motion for provisional foster care. They are currently in a foster home capable of caring for both of them on a long-term basis.

Considering that the children are developing well in their current home, the Director is asking for the continuation of the current placement for a year. [ 4 ] The father admits the allegations pertaining to the aunt and agrees with the removal of the children from her care. At the start of the inquiry, the father states his agreement with the Director’s recommendations.

However, during the course of hearing, he changes his position and asks that the children be returned to his care. [ 5 ] The attorney representing the children supports the Director’s position both with respect to the new allegations and to the measures. The attorney argues that the children require stability and security. In his opinion, moving them now would be detrimental to their interest.

Furthermore, he considers that the father has not sufficiently worked on his personal difficulties, making his proposition premature. [ 6 ] The maternal aunt was authorized to testify with the assistance of an attorney in accordance with

section 81 of the Youth Protection Act (YPA). She denied all of the allegations pertaining to negligence and physical abuse and asked the Court to return the children to her care. The Situation (

i) The evidence regarding neglect : [ 7 ] In May of 2016, the social worker received reports from X’s school expressing concerns about possible physical neglect. According to the teachers working with the child, there were obvious deficiencies with respect to hygiene, clothing and nutrition. [ 8 ] At school, X was observed in clothing that was both the wrong size for him as well as inappropriate for the season. The school compensated by providing items such as a coat or mittens. His clothes were often dirty and smelled of urine. Furthermore, he would

regularly wear the same clothes over several days. [ 9 ] The teachers further reported that he would arrive at school unwashed and with bad breath, indicating poor oral health. With the staff’s assistance, he routinely washed his face and brushed his teeth at school upon arrival. [ 10 ] Regarding nutrition, X frequently arrived at school without having eaten breakfast and with nothing but a frozen dinner for lunch. The meal was insufficient to meet his appetite and was nutritionally poor.

He was provided with extra food by the school (yogurt, cheese, apple sauce etc.) on a regular basis. [ 11 ] Although the aunt was contacted by the school to discuss these concerns, she forcefully denied any suggestion of negligence and consequently, the situation remained unchanged. [ 12 ] Upon being informed of these concerns, the social worker discussed the issues with the aunt.

Although the aunt maintained her position to the effect that the children were not neglected, the decision was made to leave the children in her care and offer services intended to improve the situation. (ii) The evidence regarding physical abuse : [ 13 ] In June of 2016, while supervising a visit between the children and their father, a social worker overheard the children talking about being hit in the maternal aunt’s home. [ 14 ] During the course of the investigation that followed, the children both confirmed being hit on a regular basis by the aunt, at times with a stick.

These allegations were repeated consistently to their father, the social worker, their current foster mother and the psychologist who prepared an assessment of the children for the purpose of this review. [ 15 ] On each occasion, the children were spontaneous in their disclosures and their body language was consistent with their revelations. X, in particular, was forceful and adamant when describing the events. He exhibited anger and agitation in reaction to what he had suffered.

According to the psychologist’s testimony, he described his aunt as “pas gentile” and claims that she “hits him all the day” [1] . [ 16 ] The current foster mother testified to other incidents revealed by X, for example, that the aunt would “threaten to cut off his penis” if he continued to urinate in his bed at night [2] . Additionally, he reported being hit with a shoe. Each time, he was upset and would cry during the conversation. [ 17 ] Since being removed from their aunt’s home, neither child has requested contact with the aunt.

In fact, they both systematically reject any proposition to that effect. [ 18 ] It should be noted as well that certain changes in the children have been observed, particularly with X. Whereas before he was more reserved and timid, currently he appears happy and secure. He opens up and communicates with greater ease. Both children regularly display affection towards their foster mother and refer to her easily for reassurance. (iii) The maternal aunt’s testimony : [ 19 ] According to the maternal aunt, the children were obedient, disciplined, happy and well taken care of while in her care.

She denied all suggestion of neglect or physical abuse and claimed that the children were attached to her as well as to the other members of the family. The aunt described herself as patient and tender with the children. Regarding school, she affirmed that there were no difficulties at school with either child. Analysis [ 20 ] An analysis of the evidence leads to the conclusion that the Director has met its burden. The aunt’s testimony is incompatible with the evidence as a whole and as such, is neither credible nor reliable. A clear example is her assertion that there were no difficulties at school with X.

The evidence provided by the school report (D-5) demonstrates without a doubt that X suffered a great deal as a result of the aunt’s negligence with respect to his basic needs. [ 21 ] Furthermore, her testimony is primarily geared towards boasting her parental qualities. Beyond affirming that all was perfect, she exhibits very little introspection or reflection regarding the well-being of the children while in her care. [ 22 ] The children have corroborated each other and have been consistent when describing to numerous people the physical abuse that occurred in the home.

They have not only demonstrated an affect compatible with their statements, they have maintained their refusal to have contact with the aunt despite opportunities to do so, thereby contradicting the aunt’s perception of their attachment to her.

The improved state of the children since changing foster homes provides additional corroboration. [ 23 ] The information provided by X’s school is compelling and confirms that the children were subjected to extensive neglect despite the attempts by staff members to rectify the situation directly with the aunt. [ 24 ] Of great concern is the fact that this situation occurred over an alarmingly lengthy period of time without notice by the Director. The social worker suggested that there may have been miscommunication with the social services agency on the south shore where the children resided at the time.

It was explained that a south shore worker was responsible for supervising the children at the aunt’s home.

Regardless of where or why the failing occurred, the evidence plainly demonstrates that the monitoring of these children by the Director was inadequate and unsatisfactory. No explanation can diminish the seriousness of the impact on both children. [ 25 ] Under the circumstances, the Court concludes that these new facts justify a revision of the previous order.

The Measures [ 26 ] The father’s position that his children be returned to his care cannot be entertained for the following reasons: - Although he has improved his consistency of contact with the children over the past few months, he has yet to establish reliability given his history of unpredictability; - His children are unaware of and unprepared for the fact that he is now remarried and has another child; - He has yet to demonstrate that his parental skills are adequate to assume such a responsibility and as such, continues to represent a risk to their security and development; - His home, a one-bedroom apartment that he occupies with his wife and baby, is ill-equipped to receive these children who require proper care, stability and security; [ 27 ] The father’s change of position requesting the immediate return of his children was decided impulsively and demonstrates a lack of understanding pertaining to the children’s best interest. [ 28 ] An evaluation of the evidence leads the Court to conclude that the father changed his position in reaction to being admonished by the foster mother for having an inappropriate conversation with Y about court proceedings, while at an impromptu and unauthorized visit at her daycare.

It should be noted that the foster mother’s concerns were justified. Nonetheless, the father fails to see the potential harm in his actions. [ 29 ] Although the Court has no doubt that he loves his children, his decision making is flawed when it comes to their best interests and reveals a certain immaturity, as demonstrated by his vain attempts to discredit the foster mother during his testimony. [ 30 ] Furthermore, the evidence reveals that the father tends to embellish his description of events in his favour only to be contradicted by his own evidence.

For example, his description of a phone conversation with his son was exaggerated, dramatized and misleading when compared with the actual recording of the conversation in question. [ 31 ] Although the father’s wife testified to her desire to assist and support the father in taking charge of the children, her presence is insufficient to compensate for the father’s limitations.

Whereas she is certainly in good faith when expressing her intentions to assume her share of the responsibility, she has yet to meet the children let alone take care of them. [ 32 ] That being said, the Court recognizes that the children benefit from contact with their father and encourages the latter to maintain consistency. [ 33 ] The father’s recent decision to resume personal therapy is a step in the right direction and the Court encourages him to commit to services targeting both his emotional health as well as his parental capacities. [ 34 ] On the other hand, the Court is troubled by the fact that the children are still oblivious to the fact that their father is remarried and has another child.

Although it was important to allow them to stabilize in their new home, they have already done so and yet, no steps have been taken to inform them of this situation. [ 35 ] From the evidence, the Court concludes that the children’s best interests mandate that they remain in their current environment, offering them stability and security. Despite their attachment issues, they have developed a significant bond with their foster mother who is clearly committed to their well-being. They are healing slowly but surely and according to the psychologist, displacing them would be detrimental to their welfare.

The Court agrees with this assessment. [ 36 ] FOR THESE REASONS, [ 37 ] THE COURT : [ 38 ] GRANTS the motion; [ 39 ] DECLARES that the security and development of the children continue to be in danger; [ 40 ] ORDERS that the children remain entrusted to a foster family; [ 41 ] ORDERS that contact between the children and their father be agreed upon by the parties, failing which, the Director shall determine the frequency, modality and duration of contact including a degree of supervision if necessary and ORDERS that they occur minimally twice a month if the

schedule is consistently respected by the father over a reasonable period of time; [ 42 ] ORDERS that certain health services be provided to the children namely for X : speech therapy, an individual education plan and educational support services; for Y, a medical consultation related to her heavy breathing; for both children, therapeutic services as well as pediatric follow up;

[ 43 ] ORDERS that the exercise of certain attributes of parental authority as required for medical, educational and travelling purposes including the obtaining of a passport be withdrawn from the father and grants them to the Director; [ 44 ] SUSPENDS contacts between the children and their maternal aunt, C, for as long as deemed necessary by the professionals working with the family and, thereafter, ORDERS that the frequency and modality of contacts be determined by the Director, taking into consideration the children’s best interest, functioning, and their wishes; [ 45 ] AUTHORIZES the Director to exchange pertinent information with treating professionals working with the family including Corrections Canada; [ 46 ] ORDERS that a person working for a Child and Youth Protection Centre provide aid, counsel and assistance to the children and their family; [ 47 ] ENTRUSTS the situation of the children X and Y to the Director of Youth Protection A, who shall then see that the measures are carried out; [ 48 ] THE WHOLE for a period of one year.

SIGNED IN CITY A On July 27, 2017 __________________________________ KAREN OHAYON, J.C.Q. Me Marie-Josée Paiement Attorney for the Director Me Richard Brunet Attorney for the children Me Aude Bastien Attorney for the father Dates of hearing: May 16, June 7 and 8, July 20, 2017 KO/lf