2019 QCCQ 14222, 2019 QCCQ 14222

Protection de la jeunesse — 194416 2019 QCCQ 14222 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF […] “Youth Division” N° : 525-41-035014-190 DATE : July 3, 2019 ______________________________________________________________________ PRESENT: THE HONOURABLE FRANÇOIS STE-MARIE, J.C.Q. ______________________________________________________________________ DIRECTOR OF YOUTH PROTECTION and X Born on […], 2016 child and A B parents ______________________________________________________________________ JUDGMENT Closure of the file ______________________________________________________________________ Warning : The Youth Protection Act prohibits the publication or broadcast of information allowing a child or the child’s parents to be identified.

Every person who contravenes this provision is liable to a fine (sections 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] In accordance with the requirements of

section 90 of the Youth Protection Act , the Court hereby confirms and gives the reasons for the decision rendered from the bench at the hearing held on July 3, 2019. [ 2 ] The Director of Youth Protection (the Director) alleges that the child is subjected to psychological ill-treatment. Up until yesterday, the Director alleged also that a situation of serious risk of physical abuse existed for the child and his brother. The Director decided not to present any evidence with regards to the

Article 38 e) 2 o of the Youth Protection Act and amended his Application. [ 3 ] Today, the Director recommends that the frequency and modalities of contacts between the child and his half-sister, Y, be determined by the Director, including supervision if necessary.

The Director also recommends that diverse support measures be ordered for a period of nine months. [ 4 ] Both parents do not recognize the situation of compromission and ask that the Court file be closed. [ 5 ] The child’s attorney is of the opinion that the Director has a good evaluation of the situation and that the recommended measures should be ordered. Questions in litigation [ 6 ] Has the Director presented preponderant evidence that the child is subjected to psychological ill-treatment? [ 7 ] If so, are the proposed measures in the child’s best interest and are they respecting his rights?

Context and Analysis [ 8 ] The child is residing with his brother and his parents. The Director alleges that he is exposed to the conflicts between the parents and his half-sister’s mother.

In the past, his half-sister, Y, visited the family home. [ 9 ] The Director also alleges that the child is exposed to denigrating comments made by the parents towards his half-sister. [ 10 ] During an interview, the child’s brother explained to the Youth Protection worker that his sister Y “ makes him coocoo and that he does not want to be coocoo ”. [ 11 ] The Youth Protection worker did not inquire as to the reasons and the origins of the child’s brother’s statement.

[ 12 ] The Youth Protection worker reported that the child’s brother confirmed that his parents “ often talk badly about Y at his home ”. [ 13 ] During her testimony, the Youth Protection worker was unable to clarify what “often” means for the child’s brother. She was also unable to recollect what the child’s brother referred to specifically when he said “ talk badly ”. [ 14 ] On November 27, 2018, during transportation to the police station, the child’s brother mentioned to the Youth Protection worker that his father told him that the situation was Y’s fault.

The child’s brother then reported that Y’s mother was dangerous and that she might “ kill you ”. [ 15 ] It is clear from the evidence that the child’s brother is not afraid of his father. He mentions that he is fond of him and that he wants to spend a lot of time with him. [ 16 ] The father denied ever making denigrating statement to Y. However he acknowledged saying to his daughter: “ stop acting like your mother ”. [ 17 ] A similar statement was reported by the mother. [ 18 ] Both parents mentioned to the Court that this statement was of a positive nature. The Court does not share the parents’ view.

In the context of clear conflict between the father and his ex-wife, when the father says to Y “ stop acting like your mother ” it cannot be considered as positive even if it is presented in Court that Y’s mother is a brilliant and strong woman. It cannot be perceived like this; not by the Court and not by Y. [ 19 ] The father confirmed speaking about Ms. C with his wife to the Youth Protection worker during the evaluation but that this happened behind closed doors in the children absence.

He confirmed that it is possible that the child would have heard these conversations. [ 20 ] The mother reported having discussions with her husband, behind closed doors, regarding Y or Ms. C, but denied making denigrating statements. [ 21 ]

Article 38

c) of the Youth protection Act refers to: A situation in which a child is seriously or repeatedly ( our underlined ) subjected to behaviour on the part of the child’s parents or another person that could cause arm to the child and the child’s parents fails to take the necessary steps to put an end to the situation.

Such behaviour includes in particular indifference, denigration, emotional rejection, excessive control, isolation, threats, exploitation, particularly if the child is forced to do work, this proportionate to the child’s capacity and exposure to conjugal or domestic violence. [ 22 ] In determining if the child’s security or development is endangered, the Tribunal must take into consideration the factors that are mentioned in

article 38.2 of the Youth Protection Act: the nature of the facts that are presented, the gravity, the persistence, the frequency of the facts that are reported, the child’s age and her personal characteristics, the capacity and the will of the parents to change, to put an end to the situation in which the security or the development is in danger and the community resource that are available to help the child and the child’s parents. [ 23 ] It is the Director’s burden to prove, by preponderance, that the alleged situation happened. [ 24 ] At this point, the Court does not consider that the Director has proven by preponderant proof that the child is seriously or repeatedly subjected to such behaviours. [ 25 ] The Director’s presented an hypothesis: that the child’s brother repeated his parents’ comments.

The Director has not been able to present a positive proof of this allegation. Apart from the statement “ stop behaving like your mother ” made to the child’s sister, the Director has not presented any other denigrating comment in evidence. [ 26 ] The Tribunal needs to base his judgement on the presented evidence. [ 27 ] The child is certainly impacted by the situation and by the absence of his sister. This does not mean that his security or development is compromised. The Youth Protection Act is a law that should be applied in “exceptional” situations. This is not such situation.

THEREFORE AND FOR THESE REASONS, THE COURT: [ 28 ] DECLARES that the security or the development of the child is not endangered; [ 29 ] ORDERS that the file be closed. ___________________________________ François Ste-Marie, J.C.Q. Written and signed on July 11, 2019 /cd Mtre Myriam DeBlois Counsel for the Director of Youth Protection Mtre Karine Leclerc Counsel for the child Mtre Richard Brunet

Counsel for the parents Date of hearing: July 3, 2019