2012 QCCQ 8891, 2012 QCCQ 8891

Protection de la jeunesse — 121102 2012 QCCQ 8891 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] “Youth Division” No: 635-41-000451-127 635-41-000452-125 DATE: April 19, 2012 ______________________________________________________________________ BY THE HONOURABLE MARC E.

GRIMARD, J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1], youth protection worker, duly authorized by the Director of Youth Protection A., working in Town A -and- X Y, residing and domiciled in Town A, province of Québec, district A Children -and- A, residing and domiciled in Town A, province of Québec, district A Mother -and- B, residing and domiciled in Town A, province of Québec, district A Father ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized of two petitions aiming to declare the security and the development of X and Y, born respectively on […], 2008 and […], 2006, as being compromised accordingly to

Section 38 d) (1) and

e) of the Youth Protection Act (sexual and physical abuse). [ 2 ] The children were not present at the audience but represented. The parents were present, but only the father was represented. The petitioner requested a joint hearing for both children; the Tribunal granted this request after taking into consideration the opinions of the parties and made sure that there was no risk of prejudice to any of the children (section 73.1 YPA). [ 3 ] The petitioner advises the Court that Youth Protection is asking that the children’s situation be declared in danger under

Section 38

c) YPA (psychological ill-treatment) instead of

Section 38 d) (1) and

e) YPA. The parents contest the fact that their children’s situation is in danger. The counsel of the children cannot make any admission because of their young age. [ 4 ] The mother was released from prison on February 27, 2012, after serving a sentence of three months for impaired driving and other infractions. She admits having a history of domestic violence with Mr. B. She used to smoke marijuana every day, but has stopped since her release from prison. When she was drinking or smoking, the father would of take care of the children. Usually, when she smoked marijuana, the children were in school or daycare.

She testifies that when she drinks, she gets crazy and angry towards Mr. B, and it did happened that the children were present when there were some fights. [ 5 ] She testifies that the father is presently the main caregiver of the children and that he has always been very present for them and takes care of them. Presently, the parents are not living together and the children are with their father. [ 6 ] Mr. B testified that he drinks may be two or three times a week, that there are issues with the mother, but that he always make sure that the children are safe.

He has four daughters from a previous relationship, from 23 to 16 years old, and the youngest is living in the household. During this relationship, he was the one who took care of the children. [ 7 ] On January 28, 2012, Youth Protection got involved in this family after X disclosed that her father had hurt her private parts with a needle. The young girl was brought to the hospital an entrusted to her maternal grandmother for the night. The father was arrested the same day and released the following day with conditions, for one, not to be in contact with his daughter.

On January 29, 2012, the children were entrusted to foster care. [ 8 ] The father denies having ever sexually assaulted his daughter. He was overwhelmed by the situation. He was allowed contacts with his son but not with his daughter. He was under the impression that this situation was brought up by the maternal grandmother. The

mother confirms the fact that there are issues for a long time between the father and her family; she says that her mother makes up stories. [ 9 ] During the evaluation, the police were called on February 19, 2012 because the father was intoxicated and pleading to have his children back. After evaluating the situation, Youth Protection and the police were not convinced that there were grounds under

Section 38 d) (1) and

e) YPA or to prosecute the father. He was then allowed to have his children back. [ 10 ]

Section 2.2 YPA provides that the primary responsibility for the care, maintenance and education of a child and for ensuring his supervision rests with his parents. Under

Section 38 YPA, a child is considered to be in danger if, among others, he is subjected to psychological ill-treatment, which refers to a situation in which a child is seriously or repeatedly subjected to behaviour on the part of the child’s parents or another person that could cause harm to the child, such as being exposed to conjugal or domestic violence. [ 11 ] The petitioner was involved in the present file because of X’s disclosure and she presented a petition under

Section 38 d) (1) and

e) YPA. During the evaluation, the petitioner was advised that the relationship between the father and the mother had ups and downs and that there was verbal or physical violence between them at one time. [ 12 ] The evidence is that in the past there was conjugal or domestic violence between the parents, mostly on the part of the mother, though the Court does not say that there was none towards her by the father. [ 13 ] Before and after her release from prison, the mother was not living with the father. The father allows the mother to visit the children during the day.

He does not want the mother at his house when she is intoxicated because that is when she becomes violent towards him. He makes sure that the children’s needs are met, that they attend school, and that the youngest daughter of his previous relation takes care of the children when he works. [ 14 ] Considering the testimonies and the reports filed, the evidence is that the father has taken the necessary steps to put and end to the situation that could compromise the security and development of his children. THEREFORE, THE COURT: DISMISSES the petitions. __________________________________ Marc E. Grimard, J.C.Q.

M e Alexandre Cimon Counsel for the applicant M e Matthieu Brassard Counsel for the children M e Marie Claude De Gagné Counsel for the father Date of hearing: March 13, 2012