2022 QCCQ 14368, 2022 QCCQ 14368

Protection de la jeunesse — 229064 2022 QCCQ 14368 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 640-41-002696-216 DATE: July 29, 2022 (written judgment rendered on August 31, 2022) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2018 [SOIAL WORKER 1], Youth Protection worker, duly authorized by the Director of Youth Protection A Applicant and A Mother and B Father ______________________________________________________________________ JUDGMENT (Section 38 of the Youth Protection Act ) ______________________________________________________________________ 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.). [ 1 ] The Director of Youth Protection (DYP) asks the Court to declare that the security and development of the child X, born on [...], 2018, are endangered under paragraphs (d) (2) and (e) (1) [1] of

section 38 of the Youth Protection Act . [ 2 ] The DYP asks that the child remain with the parents until June 30, 2022. Position of the Parties [ 3 ] The mother is present, and represented by Me Cassandra Neptune. She denies that the security and development of her child would be endangered, but if the Court concludes to a situation of endangerment, she agrees with the measures. [ 4 ] The father is present, and represented by Me Angèle Tommasel.

He denies that the security and development of his child would be endangered but, as the mother, if the Court concludes to a situation of endangerment, he agrees with the measures. [ 5 ] X is 4 years old. She is absent, but represented by Me Michael Pereira. After hearing the evidence, Me Pereira submits that the evidence does not sustain the position of the DYP, and that the situation of the child is not endangered. [ 6 ] The child has one sibling, Y, 7 years old. The Court is also seized with his situation.

Facts [ 7 ] The situation of the children was reported to the DYP on April 28, 2020, for physical abuse from the father’s part (unreasonable educational methods).

This report was retained and during the evaluation process, the DYP concluded that the situation of the children was also endangered because they were neglected in terms of educational needs (inappropriate reactions to the child’s behaviour and poor supervision) and because they suffered from psychological ill-treatment. [ 8 ] The facts reported about physical abuses were regarding slaps on the face and on the hands of the children that the father would have given to them.

The father would have lost patience on his children when they did not obey. [ 9 ] It is not contested that the father has a lot on his shoulders. The father works full time, and he is known to be a hard worker. On her side, the mother has a handicap which prevents her from being able to take care of the children. She suffers from a left congenital hemiplegia. She needs the help of the father for everything in the house (cooking, cleaning, grocery, routine of the children, etc.).

This situation would have placed the children in a situation of neglect in terms of educational needs. [ 10 ] It was also reported that the parents have conjugal issues, and some conflicts between them would occur in the presence of the children, which placed them in a situation of psychological ill-treatment.

[ 11 ] The parents were met and were very collaborative. They recognized the alleged difficulties, and the father asked for help. They signed a first voluntary measure in June 2020 in which they admitted those grounds of endangerment. The children remained with the mother at the exclusion of the father. [ 12 ] In December 2020, the father reintegrated the house without the consent of the DYP, but following a miscommunication between him and the community worker who thought that the reintegration had been authorized.

This reintegration was positive because the father is very helpful and the children have very strong bonds with him. The parents continued to be very collaborative. [ 13 ] They signed a second voluntary measure in March 2021. They admitted the same issues. They agreed for the children to be under the care of the 2 parents with a follow-up from the DYP. This agreement was applicable until the end of February 2022. [ 14 ] In June 2021, the DYP receive a report for a serious risk of sexual abuse from the father’s part.

It was reported that the father would have sexually assaulted 2 minors from the same group of age of his own children. Those children were met by the police officer and a multi-sectorial interview had been performed, but none of them were conclusive. The DYP never receive information about the children, but the facts that the alleged victims are the same age raise concerns for the DYP. The father categorically denied those allegations. Moreover, the father had been declared guilty of a sexual assault on a young adult in 2015, for an infraction committed in 2014.

Following this infraction, the father’s name was put on the Register of sexual offenders for 10 years. The father never receive any service related to sexual deviance. When the mother was met about those concerns, she asserted that even if the allegations from the 2 children would be founded, she would not ask the father to leave the house. [ 15 ] Even if the father denied those allegations, both parents agreed that the father left the house during the DYP’s evaluation and that the contacts between him and the children been supervised. [ 16 ] Since then, the contacts went well and nothing wrong was reported.

The parents and the children demonstrate affection to each other and there is nothing to say about the parental capacities. [ 17 ] Between June 2020 and December 2021, the parents were very collaborative, they worked in collaboration with the DYP, they implemented the counsels and great improvements had been noted. Starting in December 2021, they seemed to be tired of the presence of the DYP in their life, and about the many postponements of the hearing. They refused to open their house and when the DYP workers tried to meet with them, the father became aggressive toward them.

Doing so, the DYP has no access to the children for the last 6 months. [ 18 ] The DYP is preoccupied by the father’s aggressiveness toward the DYP workers. This could be a sign of unresolved anger management issue. [ 19 ] Even if the DYP never receive any information about any issues since the parents signed the first voluntary measure, the DYP is preoccupied by the fact that the parents totally stopped collaborating.

Without being able to assess the situation, the DYP ignores if this change is in reaction of the court process or if there is really an issue. [ 20 ] Despite this lack of collaboration, the parents attended the hearing. The DYP worker suppose that the presence of a new Inuk community worker is helpful to obtain the parent’s collaboration. [ 21 ] That being said, a positive aspect has been noted. Indeed, since a few months, the family is well surrounded by other family members who help them in the house and particularly when the father has to leave for work purpose or to visit his family in another community.

The mother is no more left alone with the children. [ 22 ] The father testified briefly and admitted that he could become aggressive when he is under stress and he agrees to participate in a follow-up with the Social Services about that. He denies having any sexual deviance. The father confirms being tired of the presence of the DYP in his life. This presence is stressful for him and for the children. His stress also comes from his back pain that he has since an accident in July 2018.

He confirms being very close to his children and being scared that the children be removed from their family. [ 23 ] X stays at home with her mother as she is not attending daycare. Her development does not raise any concern. Her biological parents said that the mother had consumed during the pregnancy, so she could potentially suffer from a FASD, but she is too young to determine that. [ 24 ] Y is attending school. He has some behavioural issues which raised some concerns for the school staff, but no services were put in place to address that.

The mother had asked for Y to be seen by the child’s psychiatrist, but he is on the waiting list. Analysis [ 25 ] The DYP started the hearing by alleging 4 grounds of endangerment 38 (b) (1) iii, (c), (d) (2) and (e) (1). After a few hours of hearing, the DYP modified verbally the application and asks that the situation be declared endangered only under 38 (d) (2) and (e) (1). [ 26 ] The parents and the children’s lawyers deny that the situation would be endangered. 1.

The situation of physical abuse [ 27 ] The parents admitted in the first voluntary measure that the father had used unreasonable educational methods by slapping the children when they did not obey. They recognized that in the voluntary measure signed in June 2020, and in the one signed in March 2021, for events that happened in December 2019 and January 2020. [ 28 ] Since that time, the parents collaborate well with the DYP, at least until December 2021. They applied the suggestions given to them and nothing wrong was reported since that time.

[ 29 ] The Court has to determine if the children are victims of physical abuse according to the law at the time of the application that was signed in June 2021. At that moment, the family was followed for one year and applied the recommendations well. The DYP confirms that since the first report in April 2020 for events dated 5 to 4 months before, nothing wrong was reported. [ 30 ] The

section 38.2 of YPA mentions that: 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. [ 31 ] In this situation, the facts occurred one year and a half before the application is filed. During that time, the children were followed under voluntary measures and already at that time, no other event occurred.

Since then, there is still no other events. [ 32 ] The only aspect on which that the Court could base her decision is the fact that since December 2021, the parents refuse to collaborate because they are tired and the fact that the DYP is scared that something wrong would happen because the father showed aggressiveness towards the workers. [ 33 ] Is this evidence is enough to conclude to a situation of endangerment for a situation of physical abuse under the YPA? Not at all. 2.

The risk of sexual abuse [ 34 ] The non-challenged evidence shows that the father had been declared guilty of a sexual assault on a young adult in 2015, and since then his name had been put on the Register of sexual offenders for 10 years. [ 35 ] According to the DYP worker, this conviction from 2015 is the secondary reason that has justified the DYP to conclude of endangerment. [ 36 ] The first reason is the recent allegation of sexual abuse on 2 minors from the same group of age of his own children.

Those children would have participated to a multi-sectorial interview which was not conclusive for the Crown attorney.

The facts are reported in the complementary report, and most of them came from the mother of the alleged victim. [ 37 ] The video of those children was not filed as evidence, and the facts reported, are based on at least double hearsay, and this kind of evidence is not acceptable. [ 38 ] The Court reminds the applicable principle to provide evidence regarding sexual abuse and physical abuse or risk of that, and invites the parties to read the decision rendered by Justice Gervais in 2020 [2] . [ 39 ] Doing so, the only fact that remains is the conviction from 2015. [ 40 ] Before discussing about the position of the mother who would assert that she will not ask the father to leave the house even if the father is declared guilty, the Court needs to see if this conviction is enough to conclude to a serious risk of sexual abuse according to the prescription of

section 38.2 YPA. [ 41 ] A zero risk does not exist, but this conviction dated from many years is obviously not enough to conclude to a serious risk under the criteria of the law. [ 42 ] The DYP is concerned by the position of the mother. It is important to remind that this position was given while the mother is convinced that the allegation from the 2 minors are false and indeed there is no evidence. Does the Court can conclude that the mother would have the same position if the interview had been conclusive? Does the Court can conclude that she would not take any measures to protect her own children?

No, the Court cannot conclude as such because when the report for risk of sexual abuse was received, the parents collaborated and the father agreed to live somewhere else for a second time. There is no evidence that the mother would not be protective if the allegations were serious. 3. Conclusion [ 43 ] Due to the absence of evidence, the Court will dismiss the application, but will invite the father to seek help for his anger issues. He has to learn how to deal with his stress. FOR THOSE REASONS, THE COURT: [ 44 ] DISMISS the application.

__________________________________ PEGGY WAROLIN , J.C.Q. Me Adèle Cyr, attorney for the Director of Youth Protection Me Michaël Pereira, attorney for the child Me Cassandra Neptune, attorney for the mother Me Angèle Tommasel, attorney for the father Date of hearing: June 10 and 13, and July 29, 2022