2015 QCCQ 11647, 2015 QCCQ 11647

Protection de la jeunesse — 151993 2015 QCCQ 11647 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division Nos: 640-41-001860-144 640-41-001861-142 640-41-001862-140 640-41-001863-148 640-41-001864-146 DATE: March 24, 2015 ______________________________________________________________________ BY THE HONOURABLE RENÉE LEMOINE, J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X, born on […], 1999 Y, born on […], 2005 Z, born on […], 2006 A, born on […], 2008 B, born on […], 2010 [SOCIAL WORKER 1], youth protection worker, duly authorized by the Director of Youth Protection A, working in City A, district A Applicant and C, residing and domiciled in City A, district A Mother and D, residing and domiciled in City A, district A Father and E, residing and domiciled in City A, district A Father of X ______________________________________________________________________ JUDGMENT ______________________________________________________________________ WARNING: The Youth Protection Act forbids the publishing or broadcasting of 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 (sections 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] The Court is seized of a motion under

section 38 of the Youth Protection Act (Y.P.A.) concerning the situation of the children X, Y, Z, A and B. [ 2 ] The petitioner requested that the security and development of the children be declared to be in danger for the following reasons: • The risk of neglect due to the way of life of the parents (38( b )

(2) Y.P.A.). • Neglecting to ensure proper supervision, including attendance at school (38( b )(1)(iii) Y.P.A.). • Neglecting to provide health services for the physical or mental development of the children (38( b )(1)(ii) Y.P.A.). • Psychological ill-treatment resulting from the fact that the children are exposed to conjugal violence (38(1)(

c) Y.P.A.). • Neglecting to provide for basic physical needs (38( b )(

i) Y.P.A.). • Sexual abuse of the children A and Y (38( d )

(1) Y.P.A.).

• The risk that all the children may be sexually abused (38(d)

(2) Y.P.A.). [ 3 ] The parents admit to a long history of substance abuse problems, despite the counselling and therapy undergone in the past. [ 4 ] Currently, the mother recognizes that her alcohol use is out of control. The father admits to an addiction to drugs. [ 5 ] They also admit that their way of life interferes with their parental capacities. The children are often hungry at school because the parents did not wake up in the morning to feed them. There is also a lack of supervision for the same reason. [ 6 ] According to the evidence, the children are exposed regularly to conjugal violence.

The mother, in her testimony, acknowledged having conflicts with her spouse. Most of the time, the situation degenerates into verbal argument but sometimes with physical altercations, such as pushing. [ 7 ] In the light of the evidence, the Court concludes that the security and development of the children are in danger in regards to paragraphs ( b )(2), ( b )(iii), ( b )(ii) and 2(

c) of

section 38 of the Y.P.A. [ 8 ] The issue to be decided is whether the applicant has proven the following allegations on a balance of probabilities: • The children A and Y have been sexually abused. • There is a risk of sexual assault for all the children. • The parents neglect to provide health services for the physical or mental development of the children. PRELIMINARY ISSUE Delay in filing documents [ 9 ] The applicant served documents to be accepted as testimony under

section 294.1 of the Code of Civil Procedure (C.C.P.) and 84.2 of the Y.P.A. [ 10 ] The notice was given on January 22 for the hearing on January 26, 2015. This period includes Saturday, January 24 and Sunday, January 25. [ 11 ] The attorney for the applicant submitted that that time period complies with the provision of the law at

section 84.2 Y.P.A. He gave a copy of the reports to the advocate of each of the parties, at least three days before the hearing. The applicable provisions Youth Protection Act 84.2. A party wishing to produce an analysis, report, study or expert opinion before the tribunal must file the document in the record and give a copy to the advocate of each of the parties, and to each party that is not represented, at least three juridical days before the hearing, unless the tribunal grants an exemption from this obligation.

The filing in the record of the whole or simply of abstracts of the out of court testimony of an expert witness may stand in lieu of a written report. 85. Articles 2 , 8 , 14 to 17 , 19 , 20 , 46 , 49 to 54 , 82.1 , 95 , 99 , 151.14 to 151.23 , 216 , 217 , 243 , 280 to 292 , 294 to 299 , 302 to 304 , 306 to 318 , 321 to 331 , 863.3 and 886 of the Code of Civil Procedure (chapter C-25 ) apply before the tribunal to the extent that they are not inconsistent with the provisions of this Act. Code of Civil Procedure 6. The following are non-juridical days: (

a) Sundays; (b) 1 and 2 January; (

c) Good Friday; (

d) Easter Monday; (e) 24 June, the National Holiday; (f) 1 July, the anniversary of Confederation, or 2 July when 1 July is a Sunday; (

g) The first Monday of September, Labor Day; (g .1 ) The second Monday of October; (h) 25 and 26 December;

(

i) The day fixed by proclamation of the Governor-General for the celebration of the birthday of the Sovereign; (

j) Any other day fixed by proclamation or order of the Government as a public holiday or as a day of thanksgiving. 7. If the date fixed for doing anything falls on a non-juridical day, such thing may validly be done on the next following juridical day. 8. In computing any time limit fixed by this Code or any of its provisions, including the time limits for appeal: (1) the day which marks the start of the time limit is not counted, but the terminal day is counted; (2) non-juridical days are counted; but when the last day is a non-juridical day, the time limit is extended to the next following juridical day;

(3) Saturday is considered a non-juridical day. … 294.1. The court may accept a written statement as testimony, provided the statement is communicated and filed in the record in accordance with the rules contained in this Title concerning the communication and filing of exhibits. A party may demand that the party having communicated the statement summon the witness to the hearing, but costs in the amount determined by the court may be awarded against that party if, in the opinion of the court, the production of the written statement would have been sufficient. [ 12 ] In a recent Youth Division decision, [1] the Honorable Marie Archambault J. mentioned that there is inconsistency between

section 8 of the C.C.P. (non-juridical days are counted) and

section 84.2 of the Y.P.A. (requiring at least three (3) juridical days before the hearing). [ 13 ] In case of inconsistency, the provision of the Y.P.A. must be applied. For that reason, documents have to be filed at least three (3) juridical days before the hearing. As specified at

section 6 of the C.C.P. , Saturday and Sunday are not juridical days. [ 14 ] The documents filed by the Director of Youth Protection were not produced in compliance with the prescription of

section 84.2 Y.P.A. For that reason, the Court cannot consider the report as part of the evidence. [ 15 ] The Court will add that this

interpretation is more respectful of all the parties, who have the right to take cognizance of documents before the hearing. If the Court accepts the procedure proposed by the applicant, it could pose a problem for the administration of justice, as other parties will ask for a postponement in order to take cognizance of the evidence. That is certainly not in the interest of the administration of justice, nor in the interest of the children. The sexual abuse [ 16 ] The applicant made a request under

section 85.2 of the Y.P.A. to dispense the children A and Y from testifying as it would be prejudicial to their mental or emotional development to testify in the present proceeding.

Section 85.2 of the Y.P.A. reads as follows: 85.2. Exceptionally, the tribunal may dispense a child from testifying if it believes that testifying could be prejudicial to the mental or emotional development of the child. [ 17 ] Dispensation from testifying has an important impact on the administration of the evidence. If the Court dispenses a child from testifying, the child’s extrajudicial statement made to a third party can be admitted as evidence of the existence of the facts stated therein. 85.5.

The declaration made by a child who is not competent to testify at the proceedings or who has been dispensed therefrom by the tribunal is admissible as evidence of the existence of the facts stated therein.

However, the tribunal shall not rule that the security or development of the child is endangered on the strength of the declaration unless the reliability of the declaration is sufficiently guaranteed. [ 18 ] The Court heard the testimony of F, A's teacher, and [Social Worker 2], social worker for the […] department who conducts follow-up with the children. [Social Worker 3], Director of Youth Protection consultant, also testified about the impact for the children of testifying in the present file. [ 19 ] The evidence shows that the children are very fragile. They display behavioural problems at school.

Despite a very good bond with her teacher, the child A started to sabotage their relationship after the disclosure. A similar situation has been observed with the child Whitney. [ 20 ] [Social Worker 3] considered that testifying would be very prejudicial emotionally for the children because they feel responsible for the separation of the family. They are in a situation of conflict of loyalty. [ 21 ] The Court is of the opinion that testifying could be prejudicial for the emotional development of the children A and Y. The children will be dispensed from testifying under

section 85.2 of the Y.P.A. [ 22 ] The declarations made by the child A to her teacher, to social worker [Social Worker 2] and to G are admissible as evidence. [ 23 ] These declarations are preponderant evidence of sexual abuse, namely: • The disclosure of sexual abuse by different persons on different occasions;

• The similarity of the events disclosed; • The drawings of the child A, which contained many details; • The link made by the child A between her genital parts and her brother’s penis (knowledge not normally in the possession of young children); • She always identified the same person as her abuser; • The admissions that her brother H came to the family house despite a condition not to be there. • The fact that the child A disclosed that her sister Y was present and witnessed the event; • The drawing of the child Y, who drew an eyeball when the social worker asked her questions about her sister’s sexual abuse.

The eyeball corroborates the fact that she was a witness; • The emotional reaction of the child A and her change of behaviour. [ 24 ] The Court is also convinced that it is difficult for the mother to find out the truth about what her child disclosed, as the incident in question would be the second similar incident committed by her son and there may be major consequences for him in case of conviction. [ 25 ] For these reasons, the parents failed to take the steps to put an end to the situation.

Because of their position, they cannot protect their children from their son. [ 26 ] Having heard the testimony, the Court declares that the security and development of the children A and Y are endangered, not only because they were victims of sexual abuse, but also because there is still a risk that they will be victims of sexual abuse due to the position taken by the parents. [ 27 ] Given the evidence, the Court concludes that the security and development of the children A and Y are endangered on both grounds (38( d )(1) and 38( d )(2) of the Y.P.A. [ 28 ] For the other children, there is a risk of sexual abuse, except for X who is less vulnerable than her siblings.

This conclusion is based on the high level of vulnerability of young children in a context where the abuser is a close member of the family. The attitude of the parents, who are not protective toward their children, is also an important consideration. [ 29 ] The children Z and B are at risk of being sexually abused and their security and development are in danger under paragraph 38(d)(2) of the Youth Protection Act . Neglecting to provide for the children’s physical or mental health [ 30 ] The child Y was followed by psychologist. Aline Sabbagh.

The applicant submits that the parents did not provide their daughter with regular follow-up with the psychologist. [ 31 ] On this point, there is contradictory evidence. The mother explained that her daughter met regularly with psychologist Aline Sabbagh until her departure. [ 32 ] ‘’I’’ testified to report information received by the […] department, confirming that Y has not attended her appointments since January 2013 and the psychologist left her position in spring of 2014. [ 33 ] The applicant's evidence is hearsay. It is not possible to verify the reliability of the information reported by ‘’I’’.

Considering the absence of direct evidence, the Court considers that the applicant failed to meet her burden of proving the facts to support this ground on a balance of probabilities. The applicable measures [ 34 ] The applicant recommends placement in a foster home for the children B, Z, A and Y; and for X, to be entrusted to her father for the same period. [ 35 ] The parents agree to attend a treatment centre for their issues. [ 36 ] The situation of neglect and the lack of supervision are recurrent in the family. The children are young and vulnerable.

They need a stable and safe environment. [ 37 ] The parents acknowledge they need help to change their behaviour. They seem to be more motivated to cooperate in order to have their children reintegrated into their home eventually. [ 38 ] It is indeed time for the parents to focus on their problems, as they have a negative impact on their children. The period of placement will allow the parents to address their personal problems. If they do not, a longer placement period will have to be considered to provide the children with stable living conditions on a permanent basis. FOR ALL THESE REASONS, THE COURT:

[ 39 ] DECLARES that the security and development of the children are endangered; [ 40 ] ORDERS the placement of the children Y, born on […], 2005, Z, born on […], 2006, A, born on […], 2008, and B, born on […], 2010, for a period of 12 months in a foster family; [ 41 ] ORDERS that aid, counselling and assistance be provided to the children and the family for the same period; [ 42 ] ORDERS psychological assessments of the parents to assess their parental capacities; [ 43 ] ORDERS that the parents attend treatment for alcohol or drug dependence and follow the recommendations made by the professional for the post-treatment follow-up; [ 44 ] ORDERS that the parents take the necessary steps to not put the children A and Y in contact directly or indirectly with their brother H; for the other children, that decision is under advisement; [ 45 ] ORDERS that the parents remain sober in the presence of the children at all times; [ 46 ] ORDERS that the children receive psychological follow-up for as long as recommended by the professionals; [ 47 ] ORDERS the police to cooperate in the execution of this judgment; [ 48 ] ORDERS the parents to cooperate in the execution of all the orders made in Court; [ 49 ] ORDERS that contact between the parents and the children be supervised by the Director of the Youth Protection as to the terms and frequency and the necessity of a third party; [ 50 ] ENTRUSTS the situation of the children to the Director of Youth Protection.

Concerning X: [ 51 ] GRANTS the motion; [ 52 ] DECLARES that the security and development of the child are in danger; [ 53 ] ENTRUSTS the child X, born on […], 1999, to her father E for a period of twelve months; [ 54 ] ORDERS that contact between the child and the mother be supervised by the Director of the Youth Protection as to the frequency and terms; [ 55 ] ENTRUSTS the situation of the child to the Director of Youth Protection A, who shall than see that the measures are carried out. __________________________________ RENÉE LEMOINE J.C.Q. Mtre. Joanie Jacob Counsel for the children Mtre.

Gabriel Gaudreault Counsel for the applicant Mtre. Michel Grenier Counsel for the mother Mtre. Michel Grenier Counsel for the father Travis Blacksmith Date of hearing: January 27, 2015