r v. A, 2016 QCCQ 12659

Protection de la jeunesse — 165523 2016 QCCQ 12659 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-005041-168 DATE: July 25, 2016 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X Born: [...], 2004 Child ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION A Petitioner v.

A B Parents ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 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 ] Introduction [ 2 ] The Director of Youth Protection presents a motion for protection in the situation of X, born on [...], 2004, alleging that her security and development are in danger in reason of a serious risk of being subjected to gestures of a sexual nature by her father.

While maintaining the child in her mother’s care, the Director requests that the Court order the supervision of the father’s contacts as well as aid, counsel and assistance for a period of 6 months. [ 3 ] After the hearing, the Director suggests the following additional conclusions: ORDER that the father not sleep at the mother’s home ORDER that the father not be under the influence of drugs during the contacts. TAKE ACT that the mother may be the supervisor for the contacts. [ 4 ] The child and her parents contest the situation of endangerment.

More notably, the mother declares that she is protective of her child and never allows contacts with the father without her personal supervision. [ 5 ] Evidence [ 6 ] X resides with her mother. [ 7 ] The mother has always assumed the primary care and upbringing of the child, but is unaware if she has legal custody. [ 8 ] The father’s contacts with the children are not structured and determined following mutual agreement. [ 9 ] The father has a substantial criminal history, as is ascertained by his criminal court record (exhibit D-3).

The Court notes numerous breaches to conditions of release and probation orders, as well as a sexual assault conviction in 1989 for which he serves a 22 month jail term.

[ 10 ] Since 2012, the father is under pending accusations of sexual interference and invitation to sexual touching in regards to an 11 year old minor. The police incident report stipulates that the alleged victim is at the time residing in a foster home and suffering from a mental deficiency (“ retard mental”) .

The accusations are that the father would have brought the child in his vehicle and masturbated in her presence, while offering her money. [ 11 ] Under conditions of release since March 29, 2012, the father is prohibited from being in the presence of minors save in the company of a responsible adult aware of the accusations. [ 12 ] In November 2013, in relation to these accusations, the Director evaluates the situation of X and concludes that there is no risk of sexual abuse and this, considering that the mother was not permitting unsupervised access. [ 13 ] For numerous years, the family is followed by social services. [ 14 ] The child’s sibling, Y, is the subject of consecutive judgments applying protective measures in reason of a situation of neglect.

The issue as to the father’s significant criminal history and instability result in specific orders as to his contacts. [ 15 ] More notably, in a judgment dating March 25, 2014 (exhibit D-4), the Court stipulates as follows: [26] En ce qui concerne le père, il est présentement accusé d’abus sexuel envers une mineure.

La mère serait inquiète de la consommation d’alcool du père puisqu’elle lui interdit d’en boire chez elle. [ 16 ] No specific order ensues at that time concerning the father’s contacts and Y is entrusted to his family environment. [ 17 ] In virtue of the most recent decision concerning Y (November 23, 2015), the Court prolongs the application of protective measures and orders that the father’s contacts be determined following mutual agreement between the parties. [ 18 ] The Court cites a pertinent passage of this decision: [6] The child resides with his mother.

The parents maintain a good relationship and are able to agree to the father’s contacts. The caseworker is kept apprised of these contacts and this, considering the need to monitor the situation in view of the father’s criminal history. [ 19 ] The mother calls the caseworker in December 2015 in order to ask for aid and counsel. She states fearing that her daughter was sexually abused by her father during a recent contact. [ 20 ] The mother meets with the caseworker. She stipulates allowing the father to sleepover at her home, which is a recurrent situation.

He is in the basement, in a room adjacent to X’s bedroom. The mother sleeps in her bedroom on the main floor of the house. During the night, X comes to her bedroom and asks to sleep with her, stating that she had a nightmare and was startled when her father arrived and started rubbing her back. She is uncomfortable to sleep downstairs because her father is there. This is the first time this happens. [ 21 ] Subsequently, the mother finds numerous objects in the basement area which raise more concerns.

Certain items are not in their place: a candle, massage lotion, Vaseline, and wine, some of which are in her daughter’s bedroom. She also finds a substantial amount of money in her daughter’s bedroom (around 50$) and torn underwear in the bathroom. [ 22 ] Other items are of unknown origin, namely an item she relates as being a condom (the ring part) and latex gloves. She initially states that gloves are in her daughter’s bedroom and the condom on the floor outside her room. [ 23 ] The mother indicates that she also considers other factors, including the father’s history of violence.

She is also aware of the father’s criminal history as well as a pending charge for sexual interference with a minor and subsequent condition of release. She refers to previous allegations of sexual abuse between the father and her daughter, Z. [ 24 ] She further mentions that her concerns also stem from the fact that the father would use latex gloves during their sexual relations (also confirmed during her testimony). [ 25 ] The mother states having spoken to her daughter, who denies anything untoward, having occurred with her father.

She also tells her mother that she wouldn’t admit such, even if it was the case. She says she stole the money in her room from her father because he owed it to her. [ 26 ] The mother asks the caseworker to interview her daughter to seek the truth of the incident. [ 27 ] Within discussions as to a plan to ensure X’s security, the mother advises the worker during the interview that she would take steps to advise the family members of the problematic, as well as her daughter.

She plans to ask for a discussion between Z and X to confirm what happened as to sexual abuse. [ 28 ] The caseworker and the educator interview X at school on January 20 th . She says that she sees her father often, every week, at least once or twice a week and that in November and December, he sleeps over a few weekends in a row. [ 29 ] Her contacts occur mostly at her mother’s house but sometimes at his home. She is rarely alone with him although on occasion she gets a few hours with him for an activity (shopping, supper and groceries).

She says her father has been spending weekends at her home and when he sleeps over, she sleeps in her mother’s room. [ 30 ] Also during this interview, the child denies that her father ever touched her inappropriately or in a sexual manner. She does voice being uneasy with the fact that her father comes in her bedroom, although this rarely occurs. She is adamant that she would never

allow her father to come close to her in a wrong way. She loves her father and has a good relationship with him. [ 31 ] Subsequently, X tells the educator that during the December access, her father comes in her room and rubs her back with gloves on. [ 32 ] The caseworker subsequently reaches the father by phone. He is dismissive of the allegations, denying the facts brought forth.

When pressed about the specific details of the contact with his daughter, namely the items found, he laughs it off and says he has no idea of what the caseworker refers to. [ 33 ] It is also pertinent that he states that he rarely sees his children and that the last contact occurs in the summer of 2015. He furnishes no further information. [ 34 ] When the mother is advised of the results of the evaluation, she says that she doesn’t require the Director’s involvement as she is able to take the necessary steps to protect her daughter.

She also revises her versions of the items found; stating that the gloves were in the bathroom and the father must have used them to dye his hair. She also questions the exact nature of the item she previously described as a condom. [ 35 ] During a meeting with the father in February, he admits to having visited his daughter’s home, but in the presence of his girlfriend and that he did not stay overnight. He again denies any wrongdoing. [ 36 ] Since the complaint, the relationship between the parents has been more sporadic. The father comes to the mother’s home on approximately two occasions, with his girlfriend.

The mother doesn’t leave her daughter alone with her father and X knows she is not to be unsupervised with her father. [ 37 ] The mother offers a forthcoming and transparent testimony. She is also flexible, open and collaborative with the Youth Protection workers. [ 38 ] In her testimony, the mother offers further details as to the father’s contacts. After the December visit, the mother sees that the father has ransacked a storage room and has taken items. It is not the first time this happens and this is not of great concern to her.

He also has a tendency to wander her house during the night as he has a substantial drug consumption problem and is almost constantly under the influence. [ 39 ] Responding as to her concerns in regards to contacts between her daughter and the father, the mother indicates that her fears remain in relation to the incident of December and the other risk factors surrounding the father.

She also adds the following: • Her daughter’s reactions to her father have changed. • Her daughter is not as close to her father as before and doesn’t approach him as much. • Her daughter is different than she used to be. [ 40 ] Although the father is represented by attorney, he chooses not to testify and is absent from the Court hearings. [ 41 ] Notwithstanding that the father claims the same position as the mother, their perceptions are altogether divergent.

The evidence in fact shows that the father rejects any wrongdoing or of presenting any risk to his daughter, although he states through his attorney that is ready to respect the mother’s wishes as to his contacts. [ 42 ] The legal context [ 43 ] It is pertinent to underline the legislative basis as to an endangerment resulting from a serious risk of sexual abuse. The Youth Protection Act stipulates: 38.

For the purposes of this Act, the security or development of a child is considered to be in danger if the child is abandoned, neglected, subjected to psychological ill-treatment or sexual or physical abuse, or if the child has serious behavioural disturbances.

In this Act, (d) “sexual abuse” refers to (1) a situation in which the child is subjected to gestures of a sexual nature by the child's parents or another person, with or without physical contact, and the child's parents fail to take the necessary steps to put an end to the situation; or (2) a situation in which the child runs a serious risk of being subjected to gestures of a sexual nature by the child's parents or another person, with or without physical contact, and the child's parents fail to take the necessary steps to put an end to the situation; [our underlining] [ 44 ] There is therefore a two-prong analysis.

Firstly, the Director assumes the onus to demonstrate by a balance of probabilities that

the child runs a serious risk of sexual abuse. [ 45 ] In its evaluation of such evidence, the Court must consider the following elements, also put forth in the Youth Protection Act : 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. [ 46 ] There is no automatic assumption of serious risk of sexual abuse in any circumstances. As such, said determination must be the fruit of an evaluation of the specific situation brought before the Court. [ 47 ] As the notion of ‘’serious risk’’ is not defined in the law, jurisprudence elaborates certain principles guiding its

interpretation : [1] ➢ A stringent norm as to the level of risk justifying a declaration of endangerment; ➢ This risk may not be the result of simple conjecture or possibilities; [2] ➢ The Court must determine a high degree of probability, a marked probability that the situation occur; [ 48 ] The Superior Court, sitting in appeal of a decision of this court, explicates the following as to the determination of a serious risk: [88] Le tribunal ajoute que pour conclure qu’un risque est sérieux, il doit exister un élément factuel sur lequel on peut sérieusement tirer une conclusion.

Il s’agit d’évaluer une probabilité, plutôt qu’une possibilité, une éventualité ou une conjecture [3] . [ 49 ] Once the Director of Youth Protection demonstrates a serious risk of sexual abuse, a presumption ensues that the child’s situation is endangered, thereby justifying the application of protective measures in order to stem the risk and further operate the services to alleviate any resultant consequences.

Once the established risk comes from a parent, no further evidence is required for this presumption to apply. [4] [ 50 ] A party may overturn such a presumption with evidence stemming again from the application of

article 38.2 (cited above), by demonstrating that the serious risk of sexual abuse doesn’t require the application of protective measures. [ 51 ] With the establishment of these principles, the Court proceeds to their application in the present case. [ 52 ] Analysis and decision [ 53 ] After considering the evidence, the Court determines that the Director of Youth Protection meets its onus as to the existence of a serious risk of sexual abuse. [ 54 ] To this end, the Court considers the following cumulative factors: • The father’s criminal history, including acts of a sexual nature; • The father’s pending criminal accusation of sexual acts towards a minor; • The child’s verbalisations as to the incident of December 2015; • The accessory facts surrounding this contact (items found, proximity to the father); • The additional risk factors pertaining to the father (drug use, instability); • The mother’s inconsistent application of structure to the father’s contacts; • The father’s lack of collaboration and attempts to deviate the evaluation; [ 55 ] Although the exact factual situation in regards to the incident of December is nebulous, one thing is clearly established by the evidence – both X and her mother demonstrate a significant discomfort in reason of the physical contact initiated by the father. [ 56 ] The Court notably retains the fact that X asks to sleep in her mother’s bed in relation to her father’s presence in her room, demonstrating an immediate reaction of flight. [ 57 ] The mother also states that her daughter’s behaviours towards her father are changed since that incident. [ 58 ] The mother does not put forth that there is no risk as to her daughter, to the contrary.

She is transparent as to considering that the father presents a danger for her daughter and that it is her intention to protect her daughter by ensuring the supervision of their contacts.

[ 59 ] The father stipulates through his attorney his intention of respecting the mother’s wishes as to his contacts. [ 60 ] Is this sufficient to overturn the presumption of endangerment? [ 61 ] After considering the evidence, the Court determines that such is not the case. [ 62 ] The mother is conscious of the risk factors surrounding contacts between her daughter and her father (pending criminal accusation of sexual interference, drug consumption and instability) and this, on an ongoing manner before the December contact.

In fact, these were in part the impetus for her seeking the counsel and support of the Director of Youth Protection after the incident of December 2015. [ 63 ] Yet, the Court must consider the fact that in the past, despite extremely explicit warnings, the mother has also been unable or unwilling to stem the father’s impromptu contacts and visits at the family domicile because, as she repeats during her testimony, she wishes to maintain a good relationship with him in her children’s best interests. [ 64 ] Although a positive principle, such perceptions overshadow her ability to fully recognize and respond to the risk factors present, which contributes to the situation of endangerment. [ 65 ] It is also pertinent that in time, the mother’s version of the events of December shift to dilute the basis of her concerns, which again allows the Court to question her ability to protect her child. [ 66 ] Yet even should the Court consider that the mother is able and willing to apply supervision to the father’s contacts with his daughter, such is not sufficient to overturn the presumption of endangerment, for the following reasons. [ 67 ] The mother shares parental authority with the father.

In virtue of the bond he shares with his daughter, he detains rights and obligations towards her, which he can exercise at all times and this, despite the mother’s wishes. [ 68 ] There is no legal structure in place as to the father’s contacts with his daughter, to the exception of the criminal prohibition which applies to all persons under 16. [ 69 ] This constraint is of little impact on the evaluation since the father has an ongoing disregard of authority and structure. His criminal record demonstrates a history of breaching societal rules and subsequent court orders.

It is also pertinent that he has unsupervised access to his daughter notwithstanding the aforementioned prohibition to being in the presence of minors. [ 70 ] Furthermore, the father is not collaborative and attempts to camouflage the facts surrounding his access to his daughter by gives varying versions, all of which are unsubstantiated and further, contradicted by the evidence. [ 71 ] The Court must therefore conclude that there is little to convince of the father’s ability nor willingness to respect the mother’s instructions as to his contacts. [ 72 ] This, in conjunction with the mother’s avowed wish to maintain a positive bond with the father, her inability in the past to control and structure his contacts despite recognizing the risk factors, permits the Court to consider that it is unrealistic that she be held solely responsible for the protection of her daughter without specific accompaniment. [ 73 ] As such, after considering the evidence, the Court concludes that the orientation sought by the Director of Youth Protection represent the child’s best interests.

The Court also renders orders destined to structure the father’s contacts and alleviate the risk factors. [ 74 ] FOR ALL THESE REASONS, THE COURT: [ 75 ] GRANTS the motion for protection; [ 76 ] DECLARES that the security and the development of the child are in danger in reason of a situation of serious risk of sexual abuse; [ 77 ] ENTRUSTS the child to her mother; [ 78 ] ORDERS that the contacts between the child and her father be following mutual agreement between the parties and under the supervision of a third person determined by the Director of Youth Protection; [ 79 ] ORDERS that such contacts be determined in advance; [ 80 ] PERMITS that the mother be the supervisor for said contacts; [ 81 ] ORDERS that the father not sleep at the mother’s home should the child be present; [ 82 ] ORDERS that the father not be under the influence of drugs during his contacts with his daughter; [ 83 ] PROHIBITS the mother from permitting contacts between the child and the father without previous agreement with the Director of Youth Protection; [ 84 ] RECOMMENDS that the father receive counselling in regards to his drug consumption; [ 85 ] ORDERS that a person working for an establishment or organisation offer aid, counsel and assistance to the child and her family;

[ 86 ] ALL THESE MEASURES for a period of 6 months; [ 87 ] ORDERS the execution of the present judgment by any peace officer; [ 88 ] ENTRUSTS the situation of the child to the Director of Youth Protection of Youth Protection A for the execution of the measures. __________________________________ BÉATRICE CLÉMENT, J.C.Q. Me Nadia Sabik Attorney for the Petitioner Me Michel Robert Attorney for the mother Me Johanne Leduc Attorney for the father Me Karine P. Poissant Attorney for the child Date of hearing: May 4 and 10, 2016