2019 QCCQ 16804, 2019 QCCQ 16804

Protection de la jeunesse — 195416 2019 QCCQ 16804 JO0374 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF […] Youth Division No: 525-41-033768-185 DATE : May 16, 2019 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE KAREN OHAYON, J.C.Q. ______________________________________________________________________ IN THE CASE OF: X Born […], 2018 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 ] In the context of a joint hearing, the Director of Youth Protection (the Director) is asking the Court to declare that the security and the development of Y and X are endangered as a result of psychological ill-treatment. Furthermore, the Director invokes allegations of physical abuse for Y and a serious risk of physical abuse for X. [ 2 ] Y’s father is undeclared. The mother of both children is in a relationship with X’s father, A.

The initial signalement leading to these procedures was received prior to X’s birth. A subsequent signalement for X was retained shortly after her birth, while procedures for Y were pending. For ease of reference, Mr. A will be referred to as the father throughout the judgment. [ 3 ] The Applicant alleges that the parents’ relationship is fraught with conflict, both verbal and physical.

Moreover, it is alleged that the father is prone to violence towards the mother, some of which occurs in the presence of the children. [ 4 ] The allegations of child abuse are based on a reported incident whereby the father would have physically kicked Y off of the couch, causing her to land heavily on the floor.

The Director submits that the risk to X is justified by this same incident. [ 5 ] Consequently, the Director is asking that the children remain entrusted to their mother to the exclusion of the father, with a social follow-up for nine months. [ 6 ] The parents acknowledge that the children have been exposed to persistent verbal conflict but deny any physical altercations in their presence. Both parents deny that the father has been violent towards the mother but acknowledge that the mother has hit the father in the past.

Furthermore, they deny the alleged incident of physical abuse. [ 7 ] The mother has cooperated fully with youth protection and has participated in various services to address her personal difficulties. The father has participated in some services but has since withdrawn from them, believing them to be irrelevant to his situation. [ 8 ] The parents are of the opinion that the father can return to the family home without risk to the children and they therefore contest the exclusionary condition.

They are in agreement with the social follow-up and all other measures proposed. [ 9 ] The attorney for the child supports the Director’s position both with respect to the allegations of child abuse and with respect to the measures. She submits that the evidence regarding the incidents of abuse towards the mother as well as the child is credible and compelling. Furthermore, she expresses concern regarding the father’s inability to identify or acknowledge any wrongdoing on his part.

The State of Endangerment [ 10 ] An initial signalement for Y was retained by the Director on January 20, 2018 leading to an investigation in the days that followed. A further signalement for X was retained on […], 2018, […] days after her birth. The context is as follows. [ 11 ] On January 20, 2018, the mother requested police intervention at the family home as a result of an incident between the father and Y. The version she provided to the police [1] can be summarized as follows. [ 12 ] While the mother was lying in her bed, she noticed Y head to the living room where the father was lying on the couch.

The father refused the child’s request to watch a show, causing her to cry. She then climbed onto the couch but was physically kicked onto the floor by the father. The mother, who was able to see the incident from her room, said the kick was sufficiently forceful to project the child through the air before she fell back to the ground, causing her to cry again. [ 13 ] The mother immediately reacted by going after the father and attempting to hit him while demanding that he leave the home.

When he failed to do so, she left the apartment with the child and called 911 from a nearby phone booth. [ 14 ] When the police arrived, the mother was in tears whereas the child was calm. No injuries or marks were visible. She described the incident and told the police that she was fearful of the father as he had hit her in the past. She added that she had pressed charges against him before but had withdrawn her complaint. [ 15 ] When asked for his version, the father denied the incident as described by the mother.

He explained that he was trying to sleep so when the child climbed on top of him, he simply removed her and placed her on a nearby armchair. [ 16 ] The father was arrested on site and eventually released with conditions prohibiting contact with the child. The charges have since been withdrawn. [ 17 ] During the course of the youth protection assessment, the mother initially maintained her position both with respect to the reported incident as well as to the disclosed conjugal violence. She insisted that her relationship with the father was over. [ 18 ] In the days that followed however, her version changed.

She minimized the reported behaviour and blamed herself for exaggerating what had happened. She retracted her description of the incident involving Y and denied any conjugal violence on the father’s part but rather described herself as aggressive towards him. [ 19 ] In court, the mother testified that she’s particularly sensitive to rejection as a result of her past history. She explained that when she saw the father remove the child from the couch, she immediately perceived it as rejection and overreacted.

She denies that the child was kicked at any point. [ 20 ] The father testifies that the child climbed on top of him while he was trying to sleep on the couch. He explains that he removed her from the couch while balancing her on his leg and steadied her by holding her arm. He then gently deposited her on the floor. He claims that she was upset because he prevented her from watching her television show, not because he was in any way aggressive towards her. [ 21 ] Both parents testify that the father has never been violent with the mother despite reports to the contrary.

With respect to one reported incident of conjugal violence in the summer of 2017, the parents both claim that they had agreed to fabricate the incident in order to allow the mother to have access to a woman’s shelter. They testified that their financial situation was precarious and that they were under a lot of stress as a result of their inability to pay their rent coupled with the presence of bedbugs in their home. The purpose of their plan was to give the mother and Y a safe place to stay since eviction was imminent.

The mother remained at the shelter for three months. [ 22 ] Although any physical altercations are for the most part denied, the parents acknowledge that the children are exposed to frequent verbal disputes. They describe various hardships that cause tension and lead to explosive arguments. That being said, the father tends to downplay the extent of their personal problems, citing difficult financial circumstances as the main cause of their troubles. [ 23 ] The father testifies to the fact that he is regularly the victim of a racially biased system, whether in the context of law enforcement or social services.

He firmly believes that he is harshly judged and often disbelieved based on the colour of his skin. He maintains that he is committed to his family and their wellbeing and denies all allegations of wrongdoing. Analysis and Conclusion on the Endangerment (

i) Psychological ill-treatment : [ 24 ] Although the parties admit to psychological ill-treatment by way of verbal conflicts in the presence of the children, the Director equally alleges the presence of physical altercations instigated by the father. [ 25 ] The mother describes herself as aggressive towards the father and relates an incident where she would have punched him in the face. As well, her initial reaction when she observed the incident with Y on January 20, 2019, was to attempt to hit the father.

This aspect of the couple’s relationship is uncontested. [ 26 ] On the other hand, the evidence also establishes that the father has been involved in physical altercations with the mother, either as an instigator or in reaction to conflict. The mother has repeatedly described these incidents in detail, both to the police and to the social worker. She has also pressed charges on more than one occasion.

The retractions that followed are in the court’s opinion, based entirely on her desire to preserve her relationship and therefore, cannot be considered as reflective of the truth. [ 27 ] Regarding the incident in the summer of 2017 which was later retracted by the mother, the Court notes that certain components

of her retraction are improbable. Although her financial situation may very well have been precarious at the time, it appears unlikely that she would consider falsely accusing the father of conjugal violence as her only option to obtain shelter. [ 28 ] Such a plan involves the making of a false report (a criminal offence in and of itself), subjecting the father to arrest and possible detention as well as all the other constraints associated with the judicial process.

Considering the father’s aversion to law enforcement as well as the drastic nature of the plan, it seems unlikely that such a solution would have ever been considered, let alone executed. [ 29 ] As well, the mother never disclosed anything of the sort during the assessment conducted by the social worker but rather maintained the veracity of the incident.

Considering that at the time of the assessment there was no longer any reason to maintain the fabrication, such a late disclosure is suspect and unreliable. [ 30 ] It should be noted as well that during her testimony, the mother initially denied having ever pressed any formal charges against the father for that incident but when confronted by the Court, conceded that she had indeed done so [2] . [ 31 ] As well, in her desire to protect the father, the mother has gone so far as to accuse the social worker of fabricating allegations [3] . [ 32 ] Considered as a whole, the evidence leads to the conclusion that the mother’s retractions lack credibility.

Her prior affirmations pertaining to conjugal violence are compatible with the evidence of discord, tension and repeated conflict within the couple. [ 33 ] The father’s denials, although compelling at first, suffer from his inability to acknowledge any responsibility whatsoever for the difficulties in his relationship with the mother.

Cross-examined specifically on this point, the father is unable to identify anything that he would need to work on to improve his relationship with the mother. [ 34 ] The father’s conviction that he is purely a victim in this whole scenario is incoherent with the repeated disputes that he admits nonetheless. Although the court is sensitive to the father’s experiences with racial bias, they have no application to his family situation. The mother’s history of complaints is neither frivolous nor pure fabrication. The evidence confirms that the father would do well to engage in personal services to address his

part in the family conflicts. [ 35 ] The evidence as a whole leads to the conclusion that physical altercations have in fact been a part of the couple’s dynamics and can be instigated by either one depending on the circumstances.

They are an integral component of the psychological ill-treatment as established by the Director and as such, need to be addressed by the intervention plan. (ii) Physical abuse and the risk thereof : [ 36 ] After hearing both parents and considering the evidence as a whole, the Court concludes that the father did in fact remove the child from the couch with sufficient force to provoke a reaction from the mother.

The context is compatible with an impulsive and thoughtless response to what he clearly perceived as an annoyance while he was trying to sleep. [ 37 ] That being said, the mother’s explanation that in her anger, she exaggerated her description of events appears somewhat plausible in the context of their difficult relationship.

Considering the child’s lack of injuries as well as her calmness during the police intervention, it is more likely that she was roughly dumped on the floor, rather than projected across the room. [ 38 ] The mother’s testimony that she perceived the father’s gesture to be a rejection of her daughter appears genuine and is compatible with her emotional state during the police intervention. [ 39 ] In addition, the Court takes into consideration the following elements: - the absence of any alleged past similar behaviour or any complaints to that effect; - the affectionate relationship observed between the child and the father during subsequent visits. [ 40 ] Consequently, the Court concludes that although the father may have mishandled the child during this incident, the evidence does not rise to the level of physical abuse as provided for at

section 38 e) (1) of the Youth Protection Act. The Measures [ 41 ] Approximately sixteen months after the initial report to youth protection services, the evolution of the situation can be summarized as follows: (

i) The mother : - The mother has met all expectations regarding her participation in various services including [organization A], in relation to conjugal violence; - She is fully cooperative with the social follow-up; - She has willingly participated in a psychological assessment in order to rule out any concerns regarding her mental health; - She is now considered a protective factor for the children. (ii) The father : - The father hasn’t completed any of the programs he was referred to; - He has been inconsistent with the social follow-up;

- He doesn’t believe that he has anything personal to work on. [ 42 ] [Social worker 2], responsible for the application of measures, testified that a reunification plan had been put into place and until recently, was going well. The father had initially agreed to participate in the various services proposed and in fact, attended the first few sessions at [organization A]. After five sessions, however, he stopped attending.

According to the father, they have nothing to offer him since he doesn’t identify any issues in their questionnaires. [ 43 ] The Court agrees that the father’s decision to cease his participation in the [organization A] program, coupled with his recent lack of availability for the social service meetings, is concerning. The couple’s relationship remains fragile and monitoring is certainly required. [ 44 ] Nevertheless, the mother has significantly improved her ability to deal with the hurdles in her relationship and is committed to protecting her children.

The Director’s position to exclude the father from the family home for the next nine months fails to give this aspect sufficient consideration. Although the mother’s tendency to defend the father continues to be preoccupying, the Director’s concerns can be alleviated through regular social follow-up along with the assistance of an educator. [ 45 ] The parents are committed to maintaining their relationship. There have been no incidents in well over a year. The parents have been successfully managing contacts with the children without the assistance of the social worker and without supervision.

No difficulties have been reported. Both children are doing well and appear attached to the father.

In this context, a gradual reunification of the family can be envisioned over the next three months, conditional to the father’s active participation in the social follow-up. [ 46 ] FOR THESE REASONS, [ 47 ] THE COURT: [ 48 ] GRANTS the motion in part; [ 49 ] DECLARES that the security and development of the children are endangered as a result of psychological ill-treatment; [ 50 ] ORDERS that the children be entrusted to the care of their mother to the exclusion of X’s father, A; [ 51 ] AUTHORIZES X’s father, A, to reintegrate the family home after three months conditionally to his participating in three consecutive social service meetings as scheduled by the youth worker; [ 52 ] ORDERS that the frequency and modality of contact between the children and X’s father, A be determined by the Director; [ 53 ] ORDERS that the mother and X’s father, A, ensure that the children are not exposed to any verbal or physical violence or any form of denigration; [ 54 ] RECOMMENDS that X’s father, A, receive anger-management services from a community resource; [ 55 ] RECOMMENDS that X’s father, A, engage in a therapy for perpetrators of conjugal violence; [ 56 ] AUTORIZES the Director to obtain and exchange information with any professionals involved with the family; [ 57 ] ORDERS that the children’s mother and X’s father, A, take an active

part in the application of the measures ordered by the Court. [ 58 ] ORDERS that the children’s mother and X’s father, A, report in person, at regular intervals, to the Director to inform him of the current situation, [ 59 ] ORDERS that a person working for a Child and Youth Protection Centre provide aid, counsel and assistance to the children and their family; [ 60 ] ENTRUSTS the situation of the children, Y and X , to the Director of Youth Protection of the CIUSSS A who shall then see that the measures are carried out ; [ 61 ] THE WHOLE for a period of nine months.

SIGNED IN TOWN A On May 16, 2019 __________________________________ KAREN OHAYON, J.C.Q. Me Dominique Douglas Attorney for the D.Y.P.

Me Sandra Tremblay Attorney for the children Me Nadia Sabik Attorney for the mother Me Louise Denault Attorney for the father Dates of hearing: November 20, 2018 and May 2, 2019 KO/lf