2012 QCCQ 11598, 2012 QCCQ 11598

Protection de la jeunesse — 123109 2012 QCCQ 11598 COURT OF QUEBEC YOUTH DIVISION CANADA PROVINCE OF QUEBEC DISTRICT OF [...] No: 525-41-025791-120 525-41-025793-126 525-41-025792-128 DATE: May 29, 2012 Corrected June 27, 2012 ______________________________________________________________________ BY THE HONOURABLE ANN-MARIE JONES, J.C.Q. ______________________________________________________________________ Director of Youth Protection of Le Centre Jeunesse A Applicant - and - X Born on […], 2003 - and - Y Born on […], 2009 - and - Z Born on […], 2011 - and - A - and - B Respondents ______________________________________________________________________ CORRECTED JUDGEMENT

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 11.2.1 and 135] The Court reaffirms the judgement rendered May 29, 2012, and corrects the applicant’s name . [ 1 ] The Court hereby confirms and gives the reasons for a decision rendered verbally at the hearing of May 29, 2012, in accordance with the requirements of

section 90 of the law. [ 2 ] The Court was presented with three motions by the Director of Youth Protection to have the security and development of the children declared compromised under

section 38 b) 1) ii) and

c) of the Youth Protection Act, due to an unstable housing situation and the fact that the children were exposed to conjugal violence. [ 3 ] The Director of Youth Protection submits that a signalement was received on January 11, 2012, for negligence, as the mother had lost her apartment and moved to the father's house for a week. During this stay, the parents argued several times and the police came to the house on January 9.

The mother has no fixed residence. [ 4 ] The Director of Youth Protection recommends that the children be entrusted to their mother's care and that a social follow-up be maintained with the family for a period of six months. [ 5 ] The parents deny certain of the facts alleged in the motions and are asking for the motions to be dismissed and the files closed.

[ 6 ] The father testified that he did argue with the mother when she was living at his house in January. He called the police because he wanted the mother to leave and told the police that the mother mistreated the children to ensure that they would come to the house. The police report confirms that all was calm when they arrived at the house. The father states that he argued with the mother because he was against her leaving for the [Country A].

However, they are no longer a couple and he now agrees for the mother to leave with the children for the [Country A]. [ 7 ] The mother gives the same version as the father and confirms that they are no longer a couple. She explains that she is a nurse and that she has taken steps to go and work in [Country A].

She is currently living at the maternal grandmother's house and X is attending school in the neighbourhood. [ 8 ] The Director of Youth Protection has the burden to prove, on the balance of probabilities, the allegations of neglect and psychological ill-treatment and that the security or development of the children are compromised. [ 9 ] The pertinent paragraphs of

section 38 of the Youth Protection Act read as follows: (b) “ neglect ” refers to (1) a situation in which the child's parents or the person having custody of the child do not meet the child's basic needs, […] (ii) failing to give the child the care required for the child's physical or mental health, or not allowing the child to receive such care; […] (c) "psychological ill-treatment " 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, and the child's parents fail to take the necessary steps to put an end to the situation.

Such behaviour includes in particular indifference, denigration, emotional rejection, isolation, threats, exploitation, particularly if the child is forced to do work disproportionate to the child's capacity, and exposure to conjugal or domestic violence ; [ 10 ] Moreover,

section 38.2 of the Youth Protection Act provides that the following factors must be considered in determining whether the security and development of a child are in danger: (

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. [ 11 ] In the present cases, the Court finds that there is no evidence of neglect concerning the housing situation, as the mother and the children have been living at the grandmother's house since January. Furthermore, the youth worker visited the grandmother's house in February and reported no concerns. [ 12 ] As for the allegations of psychological ill-treatment, the Court concludes that there were conflicts between the parents during the week where the family was living at the father's house. X was present when his parents argued and the other children were sleeping. [ 13 ] However, paragraph 38

c) applies when a child is seriously or repeatedly subjected to parental behaviour that can cause him harm. In the present situation, the parents are no longer living together and there have been no other incidents reported since January 11, 2012. Moreover, the main subject of conflict is now resolved as the father has agreed for the mother to leave with the children for the [Country A]. [ 14 ] I n light of all the evidence, the Court considers that the petitioner did not discharge himself of his burden of proving by preponderant evidence that the security and development of the children should be declared in danger because of one or more of the situations provided for under

section 38 of the Act. [ 15 ] In the present cases, there is no evidence allowing the Court to come to the conclusion that the situation of the children are presently compromised. [ 16 ] THEREFORE, THE COURT: [ 17 ] DECLARES that the security and the development of the children are not in danger.

[ 18 ] DISMISSES the petitioner’s motions. Ann-Marie Jones, J.C.Q. AMJ/dg Me Amélie St-Denis Counsel for the Director of Youth Protection Me Pauline Laforce Counsel for the children Date of hearing: May 29, 2012