2017 QCCQ 18654, 2017 QCCQ 18654

Protection de la jeunesse — 179120 2017 QCCQ 18654 COURT OF QUÉBEC Youth Division CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] LOCALITY OF [...] No. 525-41-026751-123 DATE: July 21, 2017 ______________________________________________________________________ PRESENT: THE HONOURABLE PATRICE HURTUBISE J.C.Q. ______________________________________________________________________ In the situation of: X Born on [...], 2012 and DIRECTOR OF YOUTH PROTECTION A Petitioner and A B Parents ‒respondents JUDGMENT [1] (

section 95 , Youth Protection Act ) [ 1 ] The Court is seized of an application for the review of an order rendered by the undersigned on February 5, 2015. [ 2 ] JH5272 The Director recommended the continuation of the child’s placement in her current environment for the coming six months. In addition, the Director alleged that X was the victim of sexual abuse by her father. [ 3 ] The parents agreed with the placement. However, the father denied the allegations of sexual abuse. Situation of the parents [ 4 ] The parents’ situation has progressed little. There is still a conflict between them.

They still periodically show resentment toward Ms. C. Nevertheless, they acknowledge that Ms. C takes good care of the child. [ 5 ] The father is never satisfied with the Director’s services, the frequency of contact with his daughter, and the attitude of the mother and her family. [ 6 ] When the father is offered scheduling arrangements, he cancels appointments or postpones visits. When questioned about his living conditions, he remains vague. [ 7 ] Since the report of sexual abuse (November 2016), the father refuses to see X under supervision. [ 8 ] Until the fall, the mother saw her child every other weekend.

In October, further to an incident where she was reportedly assaulted, she did not bring her daughter back after a visit. [ 9 ] When she arrived at the mother’s home, the caseworker noted that the mother was drowsy, the apartment was untidy and there was a strong smell of cannabis on the premises. [ 10 ] Since then, contacts are supervised and take place at Ms. C’s home.

The mother, who still does not have an adequate apartment, said she is satisfied with that arrangement. [ 11 ] It is clear that the parents did not try to correct the problems noted at the hearing of February 2015 (aggressiveness, anger, conflicts, mental health problems). [ 12 ] X is happy in her current environment. She has overcome her language delays. She is ready to begin school. [ 13 ] Ms. C meets all of the child’s needs. The emotional bond is clear and reciprocal. The child has lived with her for more than 90% of her life.

[ 14 ] The Director is not seeking a permanent order immediately, since the assessment of the child’s needs by the Centre Marie- Vincent is not yet complete. Allegations of sexual abuse [ 15 ] In November 2016, the Director received a new report. X had reportedly been the victim of acts of a sexual nature by her father. [ 16 ] From the outset, with the agreement of the parties, the child was dispensed from testifying. She is only four years old. Her ability to concentrate is limited and, if she were to testify against her father, she could suffer genuine developmental harm. The rules set out in

section 85.5 of the Youth Protection Act [2] apply. [ 17 ] In November, Ms. C received the child’s comments. She relayed them to the police through a written statement (D-15). [ 18 ] An [...] investigator met with X for the first time on December 7, 2016, at the Centre Marie-Vincent. Ms. C, the mother and Ms. [Social Worker 1] (the DYP’s caseworker) were also present. [ 19 ] Only the investigator, the mother and the child were present in the interview room. Unfortunately, the mother was emotional and agitated, which clearly affected X.

The child was unable to answer any questions. [ 20 ] Three days later, under different circumstances, Ms. [Social Worker 1] met with the child at her home. She conducted a non- suggestive interview that was much better adapted than the investigator’s. [ 21 ] At the time, X stated that her genitals (penny) hurt and that her father had touched her with a pencil in a back and forth motion. Those acts took place on three or four occasions at the home of the child’s aunt (the father’s sister).

The child was likely wearing a Spider Man costume. [ 22 ] The comments only lasted a few minutes, as the child’s ability to concentrate is limited. No external pressure was applied and there is every reason to believe that the child’s comments were made freely and voluntarily. X was only four years old at the time. She would not have been able to make up and maintain such a story. [ 23 ] Moreover, it should be noted that the medical examination of November 28 contained no indication that there had been vaginal penetration.

Of course, that examination could not detect whether any touching had occurred. [ 24 ] The father denied everything. He contended that it was a plot on the part of the mother’s family. In the same breath, he admitted that Ms. C does outstanding work with the child. [ 25 ] Mr. B’s testimony was emotional, disjointed and not very reliable. He was agitated and showed obvious resentment. [ 26 ] When questioned about the suspicions that he had performed sexual acts on a minor in the past, the father’s comments were evasive.

When his 2015 criminal record was brought up, it took several minutes, and the intervention of the undersigned, before the father stopped pretending he did not understand and began to clearly answer the questions. [ 27 ] Similarly, the father avoided answering the following questions: - how many places of residence has he had in the past two years? - why did he refuse supervised visits with his daughter? - what role should Ms. C play in his daughter’s life? - what are his complaints about the Director’s intervention? [ 28 ] In light of those observations, the undersigned believes that the content of Mr.

B’s testimony must be set aside. [ 29 ] As for the paternal aunt’s testimony, it must be said that it does not add anything concrete with regard to the allegations of abuse. In essence, it is a description of the circumstances surrounding contact between the father and the child, which at the time took place at the paternal aunt’s home. [ 30 ] The Court therefore notes that the Director has discharged his burden of proof.

The existence of sexual abuse against the child by the father is clearly more likely than not, essentially for the following reasons: - the child’s comments refer to inappropriate sexual acts; - the comments were received by the DYP’s caseworker, in a context that was free from pressure and aimed at finding out the truth; - it was not the first time that the child had referred to such acts; - the child did not contradict herself; - the child does not have the maturity required to make up and maintain such comments; - the father’s testimony is difficult to understand and, above all, has little credibility; [ 31 ] The undersigned therefore concludes that X was sexually abused by her father.

FOR ALL THESE REASONS, THE COURT: [ 32 ] DECLARES that the security and development of X are still in danger for the reasons given initially and under

section 38 (

d) of the Youth Protection Act ; [ 33 ] ENTRUSTS the child to C; [ 34 ] ORDERS that contact between the mother and the child take place according to terms determined by the Director, at a frequency to be agreed upon between the mother and the Director; [ 35 ] SUSPENDS contact between the father and the child; [ 36 ] ORDERS the father to undergo a psychological assessment; [ 37 ] ORDERS that the child undergo an assessment of her needs at a specialized centre, such as the Centre d’expertise Marie- Vincent; [ 38 ] ACKNOWLEDGES that the Director has taken steps in that regard; [ 39 ] WITHDRAWS from the parents the exercise of certain attributes of parental authority and ENTRUSTS them to C, who will make the decisions concerning health care, schooling (including the choice of schools), and authorizations for activities and travel, including passport applications if applicable; [ 40 ] ORDERS the parents to cooperate with the Director of Youth Protection; [ 41 ] ORDERS the Director to provide aid, counselling and assistance to the child and her parents; [ 42 ] ORDERS the execution of this order by any peace officer, if necessary; [ 43 ] THE WHOLE until February 1, 2018.

Signed in City A, July 21, 2017 ___________________________________ PATRICE HURTUBISE J.C.Q. Mtre. Isabelle Loranger Counsel for the DYP Mtre. Marc Bissonnette Counsel for the child Mtre. Marie-Josée Lavigueur Counsel for the mother Mtre. Miray Zahab Counsel for the father Dates of hearing: June 20 and 21, 2017 [1] WARNING: The Youth Protection Act prohibits the publication or broadcast of information allowing a child or the child’s parents to be identified. Every person who contravenes this provision is liable to a fine (sections 11.2, 11.2.1 and 135 Y.P.A.).