2017 QCCQ 18043, 2017 QCCQ 18043

Protection de la jeunesse — 178522 2017 QCCQ 18043 JO0374 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] Youth Division No: 525-41-032020-166 DATE : November 27, 2017 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE KAREN OHAYON, J.C.Q. ______________________________________________________________________ IN THE CASE OF: X Born [...], 2000 Director of Youth Protection A Applicant A Father B Mother ______________________________________________________________________ JUDGMENT (Section 38, 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 ] The Director of Youth Protection, (the Director), is asking the Court to declare that the security or development of the adolescent is endangered as a result of physical abuse by the father. Following the presentation of the evidence, the Director submits that psychological ill-treatment has also been established. [ 2 ] Essentially, the Director argues that the father uses physical discipline and intimidation as a means of exercising control over his son.

Furthermore, in the Director’s opinion, the evidence establishes a pattern of emotional abuse by both parents thereby justifying the additional conclusion that the adolescent is subjected to psychological ill-treatment. [ 3 ] Consequently, the Director is asking that the adolescent remain entrusted to a foster family until the age of majority along with a social follow-up and other corrective measures including therapeutic services.

It should be noted that a motion for the provisional placement of the adolescent in a foster home was granted on December 16, 2016. [ 4 ] The parents deny the allegations in relation to the situation of endangerment put forth by the Director. They theorize that their son has deliberately misled the Director in order to obtain freedom from the structure of their home environment. They consider that his behaviour is influenced by undesirable external factors and argue that the Director’s involvement has exacerbated the situation.

Although they consider that their son has serious behavioural disturbances, they believe that the Director’s intervention is of no benefit and that they are best suited to meet their son’s needs. [ 5 ] The adolescent’s lawyer is of the opinion that the Director has established both physical abuse and psychological ill-treatment and adds that his client consents to the recommendations.

He opposes any suggestion of serious behavioural disturbances and argues that, although his client has at times partaken in unsafe conduct, the evidence fails to establish anything other than occasional irresponsibility, typical of adolescent behaviour.

The State of Endangerment [ 6 ] The context leading to the signalement that was retained by the Director can be described as follows: [ 7 ] The adolescent resides with both parents as well as his seven siblings ranging in age from eight to twenty-four years. [ 8 ] In the early morning hours of December 8, 2016, the adolescent ran away from home and joined his girlfriend at her grandparents’ house. Upon learning of his situation and being concerned for his security, the grandparents called the police.

[ 9 ] Shortly thereafter, a police officer located the couple and spoke with the adolescent who informed him, among other things, that: - he has a difficult relationship with his father whom he fears; - his father slaps him in the face approximately once a month and that any attempt to protect himself triggers more hostility on his father’s part; - on one occasion, his father punched him in the stomach; - his father insults him and belittles him; - he feels separate from the other members of the family since he doesn’t share their values; - he has been thinking about running away for over a year [1] .

A) THE DIRECTOR’S EVIDENCE (

i) The adolescent’s testimony : [ 10 ] The adolescent’s testimony can be summarized as follows: [ 11 ] X explains that he’s always felt different from the other members of his family who have set the bar high in relation to academic achievement. Being more artistic, the adolescent believes that he is unfairly compared to his siblings and is made to feel less worthy.

Although the evidence demonstrates that his academic results are more than respectable, he states that they are not as strong as those of his older siblings. [ 12 ] Consequently, his father consistently tells him that he’s irresponsible, that he doesn’t work hard enough and that he’s not as good as his older siblings. In his words, “ he puts me down and messes with my head [2] ”. [ 13 ] Regarding the allegations of physical abuse, he states that he feels unsafe in the home.

He elaborates that whenever he would step out of line, talk back or receive grades that were unsatisfactory, his father would become aggressive and raise his voice. In the year prior to his running away, his father would slap him once or twice a month in these circumstances. [ 14 ] He describes one particular incident that would have occurred in the beginning of October 2016. He explained that after returning from a night out at his friend’s house, his father became upset, yelled at him for being irresponsible and punched him just below the sternum. [ 15 ] He clarifies that his father doesn’t insult him per se.

Rather, he treats him in a way that affects his self-esteem and confidence as demonstrated by the following statements: - He makes me feel like a fuck-up; - He makes me feel like I’m not good enough to make decisions, that I’m too immature; - My dad disciplines me differently than the others, I don’t know why [3] . [ 16 ] Although he admits that he didn’t speak to his mother about the abuse at the time, he has since come to realize that she doesn’t support him.

He’s angry that his parents fail to acknowledge any responsibility in the current situation, blaming him instead. [ 17 ] X testifies that he’d been thinking of running away for at least a year before carrying out his intent. He insists that his decision was neither impulsive nor triggered by a specific event but that he simply waited until he felt mentally prepared to leave. That being said, he concedes that he didn’t establish much of a plan other than to get a job and find a place to live.

He went to his girlfriend’s house because he had nowhere else to go. [ 18 ] Until recently, the adolescent refused contact with his parents throughout his provisional placement. As a result, contact with his siblings has also been limited. [ 19 ] After therapeutic intervention, the adolescent began to consider the possibility of working towards an eventual return home. He began psychological therapy at the end of September 2017. He explains that the intervention allows him to voice what he’s previously kept to himself and assists him in preparing for his life goals.

Feeling better prepared to face his parents, an attempt at reconciliation began shortly thereafter. The initial results were encouraging and quickly led to overnight visits. Since then however, the situation has regressed. [ 20 ] X explains that his initial contact with his father went well and he was pleased with the results.

He testifies however that after a while “… it went back to the way it was before [4] ”. [ 21 ] Although there were no more incidents of physical abuse, the adolescent began to feel progressively uncomfortable for numerous reasons, namely: - The real issues with his parents were never addressed; - His father’s attitude didn’t really change; - He felt pressured by his father to tell the social worker that everything was fine at home;

- He continued to have trouble speaking his mind to his father; - He feels like his parents were trying to “fix” him [5] . [ 22 ] Consequently, he began limiting his contact with his parents, spending weekends reserved for them with friends or extended family instead.

The adolescent has since ceased all contact with his parents and expresses the desire to remain in a neutral environment while working towards independent living. [ 23 ] During cross examination, the adolescent admits to certain questionable and potentially dangerous behaviours, namely, standing on rooftop ledges for pictures to be posted on social media. One example of such a picture is offered by the parents [6] and does in fact appear exceedingly perilous.

The adolescent explains that the appearance is deceiving since there is a landing approximately five feet below the ledge that doesn’t appear in the picture. Regardless, he explains that he rarely participates in such activities and understands the concern it may cause. [ 24 ] The adolescent readily admits as well to drinking, smoking and staying out late but specifies that this occurs on an occasional basis and is not abusive. [ 25 ] The evidence also reveals that the adolescent has had issues in his prior foster family placement including an incident of running away.

X explains that he never really meshed with the first family but that things have been better since his transfer into a new foster home. [ 26 ] During cross-examination, the parents’ lawyer suggested to the adolescent that he had a hard time with structure in the family home.

The adolescent, appearing surprised by such a suggestion, spontaneously responded, “ I don’t have a problem with structure, that’s not the problem. [7] ” (ii) The psychological assessment : [ 27 ] In combination with her testimony, the highlights of the assessment conducted by Carolyn Klein, psychologist can be summarized as follows: - X feels that he has little control over events in his life and reports being blamed for things he didn’t do; - He has little trust in his parents and feels incidental in relation to family life and decision making; - He has a negative self-image and a remarkably low self-esteem; - He manifests symptoms of depression and suicidal ideations; - He feels abandoned by his mother as a result of her siding with his father; - He views his parents as overly controlling and feels a great deal of stress in relation to the family dynamics [8] + [9] . [ 28 ] The assessment was based on the results of an interview with the adolescent, on multiple tests administered to him as well as on the psychologist’s personal observations.

Background information was provided by way of the Director’s reports. Although the parents were invited to complete a questionnaire, they failed to do so. [ 29 ] The adolescent maintained his version of events related to emotional and physical abuse by his father in a rather consistent manner when compared with his initial statements.

The psychologist testified that throughout the assessment, she observed no indicators of deception or dishonesty by the adolescent. [ 30 ] Regarding the signs of depression displayed by the adolescent, she testifies that negativity in the home over a prolonged period of time has a detrimental effect on psychological development. The adolescent views his home environment as hostile and controlling.

She hypothesises that he has never felt the freedom to emancipate which would explain the fact that he felt the need to remove himself from his parents. [ 31 ] The psychologist makes a number of recommendations including psychotherapy but suggests that future contact with the parents should be supervised [10] .

She further testifies that forcing X to return home against his will or without having properly re- established appropriate lines of communication would be detrimental to his best interest and likely pointless as he would surely run away. (iii) The Director’s intervention : [ 32 ] The evaluation of the signalement was completed by [social worker 1]. Her testimony essentially corroborates that of the adolescent pertaining to his initial statements.

In addition, she observed the adolescent to be emotionally distraught when recounting the events in the home, which she describes as follows: “He says he was put down for being different, that he was told by his father that he’d never be as good. His chin would tremble; his eyes would well up with tears.

He would shut down at that point. [11] ” [ 33 ] The worker describes her interactions with the family as peculiar; restrictions were imposed by the parents regarding where and with whom interviews would take place, certain siblings offered information but refused to answer questions, others appeared coached. [ 34 ] The parents maintained the position that X had lied about all of the allegations in order to obtain more freedom. They suggested that he was being influenced by negative peers including his girlfriend of whom they disapprove.

Although Ms. [social worker 1] considered this possibility, her assessment ultimately excluded the parents’ theory.

[ 35 ] Throughout the course of her intervention, the worker observed the parents’ lack of sensitivity towards the adolescent’s expressions of emotional distress including his suicidal ideations.

She summarizes their response to the situation as follows: - All I got [from the parents] was “X’s lying, we’ll fix it at home, he’s maladjusted ” and so forth; - The father was unwilling to explore X’s emotions; - The mother was quick to blame X for the impact of the situation on the family and made her feelings known to him at the first opportunity [12] ; [ 36 ] [Social worker 2] replaced [social worker 1] during a period of several months. She testified that her interactions with the parents were difficult and that her interventions were often met with resistance and hostility.

In describing her attempts to obtain parental consents for X, she testifies that it was difficult to have a productive conversation regarding his well-being. In her opinion, the parents’ insistence that X was manipulating the system led them to adopt a punitive approach towards him. For example, they refused to sign a consent allowing X to engage in a modelling contract unless they could first discuss the matter with him in person. X refused to do so and therefore he abstained from pursuing the opportunity further [13] . [ 37 ] The lack of contact with X was another point of contention for the parents.

Their multiple requests were denied by both [social worker 1] and [social worker 2]. Both workers were of the opinion that X’s wishes were to be respected and that no good would come of reinitiating contact before he was ready. The parents took offence to this position, arguing that the Director was deliberately obstructing rather than encouraging reunification. They maintained this position throughout the hearing, implying that X’s position was of no consequence.

B) THE PARENTS’ EVIDENCE (

i) Y : [ 38 ] The adolescent’s older brother Y testified on his parents’ behalf. He portrays his family as having a solid foundation based on strong relationships and asserts that everyone is entitled to express their opinion. Open communication is encouraged as is the exchange of ideas. He describes the family members as successful, talented and accomplished. In support of his position, he explains that although he is financially independent, he chooses to remain at home because of the environment. [ 39 ] Y considers that his brother X was always encouraged and supported by everyone in the home.

He describes him as naturally talented and intelligent. In his opinion, X had a good relationship with his father and he has never observed any disputes out of the ordinary. Furthermore, he denies any denigration or any comparisons between the children. As far as physical abuse is concerned, he insists that nothing of the sort could have happened without someone else knowing considering the size of the house and the number of residents. [ 40 ] In cross-examination, the young man acknowledged that his father read parts of X’s psychological assessment out loud to some of the older children. One particular

section of the assessment regarding the quantity of food in the house provoked general hilarity amongst the persons present. [ 41 ] Y admitted reading the court report as well and appeared less than impressed with the content. He took particular offence to the social worker’s use of the word “insular” to describe the family. Nothing else in the report appeared to draw his attention nor did he express any veritable concern regarding his brother’s description of events. [ 42 ] Although he has heard it mentioned that X feels inferior, he considers it groundless. He theorizes, like his parents, that external factors must have played a

part in his younger brother’s behaviour. He concludes that the entire responsibility for the current situation lies on X whose version he summarily dismisses. (ii) The father : [ 43 ] The father testifies that nothing in the family history can explain X’s decision to run away and to refrain from contact with his parents for such a prolonged period of time. He affirms that prior to December 8, 2016, there were no issues, no conflicts and everything was fine [ 44 ] His initial reaction to the first phone call from the Director was of astonishment and disbelief.

He assumed that there was nothing really serious and firmly believed that a simple conversation with his son would resolve the situation. [ 45 ] The Director’s intervention in the months that followed was met with frustration on the part of both parents who were given no access to their son. Although they were informed of X’s refusal to see them, they expressed the opinion that contact should be imposed. [ 46 ] As a result of the parents’ and the Director’s opposing viewpoints in relation to the cause of the situation, no collaboration was forthcoming.

Throughout the intervention, the father has expressed mistrust as to the intent of the professionals involved and reservations as to their competency. [ 47 ] The father vehemently denies any type of abuse, whether emotional or physical. He explains that the development of the children is in no way restricted at home. He makes no differences between them and encourages X’s artistic nature. He qualifies as “ridiculous” any suggestion that he lacks sensitivity and takes offence at statements that don’t accurately reflect his family.

Although he concedes that he may raise his voice on occasion he neither screams nor intimidates his children. [ 48 ] The father considers that the physical abuse described by X could never have occurred without someone in the home noticing, bearing in mind the number of people in a relatively small house. He adds that contradictions in X’s various prior statements (for instance the number of slaps received) are a further indication of his dishonesty.

[ 49 ] To support his position that he doesn’t and never would abuse his son, the father submits into evidence a letter addressed to X by both parents, the content of which expresses their pride and love for him [14] . In addition, a series of emails between father and son are produced indicating a common intent to register the adolescent for an American preparatory school around the time of the signalement . In his opinion, these emails demonstrate his commitment to his son as well as his regard for his son’s potential.

Furthermore, it confirms that everything was absolutely normal in the home when his son ran away. [ 50 ] The father describes in great detail the values that he instils in his children. For the most part, they are accomplished, productive members of society with strong attachments to their community and to their family. [ 51 ] For the father, X’s behaviour is all the more incomprehensible considering the family environment.

In an attempt to explain or understand why the adolescent has run away, alleged abuse and refused contact with his family, the father presents the following theory: [ 52 ] In his opinion, the adolescent: - wants more freedom than what he’s been given at home considering the structure that the parents provide; - is unhappy with the limits imposed on him, has isolated himself from the rest of the family and likes it that way; - is negatively influenced by his girlfriend who has a bad reputation; - is also pressured by his peers who are necessarily undesirable influences considering the risk-taking behaviour X has displayed prior to running away. [ 53 ] He describes X’s overall behaviour as “wrong”; he does dangerous things, stays out all night with his friends and his girlfriend.

If anything, he considers that he didn’t sufficiently restrict his son. [ 54 ] The father speculates that if X has refused contact with his parents for so long, it’s because his decision to run away put him in an awkward situation. He concludes that it’s too hard for his son to admit that he’s wrong. Moreover, the father submits that X’s decision to break contact with his siblings is proof that the problem lies with him, no one else. Analysis and Conclusion [ 55 ] The adolescent’s testimony is measured, compelling and in the court’s opinion, generally consistent with his prior statements.

His description of his difficulties at home is credible and compatible with his decision to break contact with his family for such a prolonged period of time. The psychological assessment provides context to the adolescent’s testimony by describing the psychological and emotional impact of his relationship with his father. [ 56 ] The adolescent’s refusal to “ fall in line ” as he describes it explains the dynamics of his relationship with his father.

His description of his father as someone who makes him feel unsafe, intimidated and uncomfortable is plausible and supported by the evidence as a whole. [ 57 ] Throughout the intervention, the father interacts in a manner that can be described as hostile and demeaning with the professionals whose competency he calls into question at any occasion, without hesitation or restraint. [ 58 ] The parents’ strategy from the beginning has been to weaken the believability of X’s version by attacking both his credibility and the competency of the professionals who support his position.

On the latter point, the father belittles the nature of their intervention in order to support the theory that they are being manipulated into giving X what he wants. [ 59 ] Although the mother chose not to testify at the hearing, she supports the father’s position without question.

The court observed inappropriate reactions from both parents ranging from rolling their eyes to exclamations of indignation whenever opposing testimony was heard including references to the adolescent’s emotional state. [ 60 ] The argument that the house is too small to allow for physical abuse without other members being aware, although initially thought-provoking, is insufficient to counter the overwhelming evidence corroborating the adolescent’s state of mind. [ 61 ] Moreover, the adolescent describes receiving a single slap or punch on each occasion, a gesture that can be carried out quickly and surreptitiously.

At no point does he describe an extended altercation that would necessarily draw attention. [ 62 ] Notwithstanding the parents denial of the factual elements alleged in support of the Director’s position, the evidence clearly establishes that the adolescent is in distress. What is particularly troubling is the parents’ complete denial of that distress. Their attitude towards their son’s emotional state is inherently disparaging. [ 63 ] The father makes it clear that in his opinion, the problem is only with X, no one else.

He asserts that X has deliberately chosen to exclude himself from the family for no other reason than to have more freedom. This simplistic argument fails to take into account the reality of placement and the impact on the adolescent. To argue that he’s willing to remain in placement while cutting contact with his family for no other reason than the awkwardness of the situation is unreasonable and incompatible with the evidence as a whole. [ 64 ] The prejudicial impact of the father’s behaviour towards his son is established by the evidence.

The various professionals all conclude, whether through testing or through their own observations, that the adolescent lacks self-esteem and demonstrates symptoms of depression. He is observed to be timid, sad and isolated; a far cry from the unstructured and freedom-seeking adolescent described by the father. [ 65 ] An evaluation of the evidence leads to the conclusion that the hostility manifested by the parents towards the Director has less to do with the social workers’ competence and more with the fact that they give credence to X’s version.

Anything that tends to reflect badly on the family is vehemently denied no matter the context.

[66] The parents’ complete dismissal of the psychological assessment demonstrates a lack of reflection that is disturbing consideringthe information provided therein. The father’s focus on the adolescent’s complaint regarding the quantity of food in the home isperplexing as is his decision to read parts of the report out loud. The suicidal ideations described in the report demand attention yet thereis no acknowledgement to that effect by the parents.

On the contrary, they expend their energy attacking the professionalism and aptitudeof the psychologist without cause, while maintaining that their son is a manipulator. Their insistence that he alone bears theresponsibility of the situation is intrinsically harmful to their son and is not reflective of the situation [67] It should be remembered that the adolescent agreed in good faith to participate in reinitiating contact with his parents. Yet,everything quickly fell apart because nothing had actually changed.

Moreover, the father put pressure on the adolescent to tell the socialworker that everything was all right. This situation led to the adolescent’s decision to end contact with his parents, not because it wasawkward, not because he wanted more freedom, but “because nothing really changed and the real issues weren’t addressed”. [68] In his determination to remove the Director from the equation, the father has failed to take the adolescent’s best interest intoconsideration.

The failure of the reintegration process comes as no surprise considering that the parents continue to dismiss theadolescent’s distress. [69] The father argues that the overall success of the other children in the family is categorical proof that the parents are beyondreproach. Although the other siblings are indeed successful and accomplished, this fact does not preclude a situation of abuse, whetherphysical or emotional. The other children are not the issue. The only issue is the relationship between X and his parents.

On this subject,the Court concludes that X is telling the truth. [70] Nothing in the parents’ theory reasonably explains the adolescent’s decision to remove himself from his family and to maintainthat decision for such a prolonged period of time. Nor does it explain the breakdown of the reintegration process. [71] The parents submit that the adolescent has serious behavioural problems. The Court disagrees. [72] The adolescent is transparent both in court and during the interview process with the social workers and the psychologist.

Henever attempts to deny the behaviour with which he was confronted and even offers additional information of his own volition. Headmits to occasional smoking and drinking but explains that it’s neither frequent nor abusive. There is no evidence to suggest thecontrary. He recognizes going on roof tops to take pictures, recognizes that there is a certain amount of danger but insists that theseincidents are few and far between. There is no evidence to the contrary. [73] Although this behaviour is irresponsible and should certainly be discouraged, an assessment of the factors listed at

section 38.2of the Youth Protection Act ultimately leads to the conclusion that it doesn’t qualify as serious behavioural disturbances as defined by thelaw. [74] The father’s theory that the adolescent is subject to peer pressure finds little support in the evidence. For example, the fatherproduces an application essay prepared by the adolescent for entry to a preparatory school (F-4). He interprets the essay as indicatingthat his son is more concerned with fitting in than with doing what’s right. The Court does not share his perception.

On the contrary, theessay does nothing more than identify the difficulties that adolescents face generally but in no way validates sacrificing values for thepurpose of being accepted. [75] Overall, the evidence indicates that the adolescent’s behaviour is not proble-matic. He has graduated high school with strongmarks and he currently attends A College on a full-time basis. At school, there are no complaints regarding academic per-formance orbehaviour. He is described as hard working and appreciated by peers and staff.

He is seen generally as polite, collaborative and respectfulby all professionals. [76] It should be noted that the adolescent has never complained of or alluded to excessive structure at home. Rather, his statementshave always been about feeling unsafe, intimidated, being treated differently, feeling unworthy and so forth. In this, he is corroborated bythe evidence as a whole. [77] The slaps and the punch described by the adolescent correspond to the definition of physical abuse as defined by the YouthProtection Act. Furthermore, in Canadian Foundation for Children, Youth and the Law vs.

Canada (Attorney General), 2004 SCC 4, [2004] 1 SCR 76, regarding the application of

section 43 of the Criminal Code, the Supreme Court of Canada states: [37] Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishmentusing objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to thehead is harmful.

These types of punishment, we may conclude, will not be reasonable [78] Under the circumstances, the Court concludes that the Director has established that the adolescent’s security and developmentis in fact endangered as a result of physical abuse and psychological ill-treatment.

The Measures [79] The measures proposed by the Director are in the adolescent’s best interest for the following reasons: - The parents’ have failed to begin any self-examination and they continue to deny the adolescent’s distress; - Consequently, there has been no improvement in the relationship between the adolescent and his parents; - The adolescent’s interest requires that he be permitted to focus on independent living. [80] Although the Court’s decision will most certainly provoke a strong reaction from the parents, they are nonetheless encouragedto take a step back and consider the possibility of cooperating with social services in order to gradually open the lines of communication

with their son. Maintaining hostilities with the Director is a strategy that is unproductive and ill-advised.

Rather, the Court invites the parents to shift their focus to their son’s best interest. [ 81 ] UNDER THE CIRCUMSTANCES, [ 82 ] THE COURT: [ 83 ] GRANTS the motion; [ 84 ] DECLARES that the security and the development of the adolescent are endangered as a result of physical abuse and psychological ill-treatment; [ 85 ] ORDERS that the adolescent remain in a foster home until [...], 2018; [ 86 ] ORDERS that the adolescent be provided with therapeutic services; [ 87 ] RECOMMENDS that the adolescent and his parents follow through with the recommendations of the psychological assessment carried out by Caroline Klein; [ 88 ] ORDERS that the frequency and modality of contact between the adolescent and his family be determined by the Director of youth protection, taking into consideration the desire of the adolescent; [ 89 ] ORDERS that a person working for a Child and Youth Protection Centre provide aid, counsel and assistance to the adolescent and his family; [ 90 ] ENTRUSTS the situation of the adolescent, X, to the Director of Youth Protection of the CIUSSS A who shall then see that the measures are carried out [ 91 ] THE WHOLE until the majority of the adolescent.

SIGNED IN TOWN A On November 27, 2017 __________________________________ KAREN OHAYON, J.C.Q. Me Marie-Josée Paiement Attorney for the D.Y.P. Me Marc Morin Attorney for the adolescent Me Ivan Lazarov Attorney for the parents Dates of hearing: January 6, March 31, June 27, July 20, September 6, November 16, 2017 KO/lf