2016 QCCQ 5259, 2016 QCCQ 5259

Protection de la jeunesse — 161740 2016 QCCQ 5259 JL4031 COURT OF QUÉBEC Youth Division CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] N° : 525-41-029984-150 525-41-029985-157 525-41-029986-155 DATE: March 14 th , 2016 ______________________________________________________________________ PRESIDED BY : Mr.

JUSTICE CLAUDE LAMOUREUX, J.C.Q. ______________________________________________________________________ In the matter of : X born on [...], 2009 Y born on [...], 2007 Z born on [...], 2012 The Director of Youth Protection A applicant - and - A, the mother - and - B, X’s father and party in Y’s file respondents ______________________________________________________________________ JUDGMENT (section 38 of the Youth Protection Act) ______________________________________________________________________ WARNING: The Youth Protection Act prohibits the publication or broadcasting of any information that may lead to the identification of a child or his parents.

Any person who contravenes this provision commits an offence and is liable to fine. [ Y.P.A. sections 11.2.1 and 135 ] [ 1 ] The Director of Youth Protection ( the Director) seized the Court with an amended motion under

section 38 of the Youth Protection Act requesting that the security or development of the children be declared to be in danger.

[ 2 ] The Director alleges the following: FOR Y : 3.1. the family is known to the Director of Youth Protection and the Court of Quebec, Youth Division, in the file bearing 525-41- 021683-081, for allegations pertaining to a risk of neglect and for which measures were in place until December 24, 2010, the whole as it appears from the judgment dated April 12, 2010 and rendered by the Honorable Normand Bastien; 3.2. the child is the victim of bodily injury and/or unreasonable methods of upbringing by the mother and the child’s stepfather, Mr. B, and the child’s mother fails to take the necessary steps to put an end to the situation, more particularly but not restrictively in that:

a) the child is slapped and has been choked by Mr. B;

b) the child cries and is angry in response to Mr. B’s abuse;

c) the child’s half-sibling, X, has witnessed the abuse at the hands of Mr. B;

d) the mother slaps the child’s head and buttocks when he disobeys; 3.3. the child is seriously and repeatedly subjected to behaviour on the part of the mother and the child’s stepfather Mr. B, and the child’s mother fail to take the necessary steps to put an end to the situation, more particularly but not restrictively in that:

a) the mother yells at the child on a regular basis;

b) the mother and Mr. B communications are strained;

c) Mr. B denigrates the mother in the child’s presence, who replicates this behaviour towards the mother;

d) the mother and Mr. B argue in the child’s presence;

e) Mr. B humiliates the child through the use of childish mimicking;

f) The child verbalized that Mr. B mimicking behaviour makes him feel embarrassed; 3.4. on July 221, 2015, the family’s situation deteriorated, more particularly but not restrictively in that:

a) the mother expressed suicidal ideations in the child’s presence and to feeling overwhelmed;

b) the child Y expressed he could not sleep due to the mother and Mr. B’s arguing; 3.5. the mother demonstrated ambivalence towards her relationship with Mr. B; 3.6. Mr. B minimized the issues and has expressed reluctance towards youth protection involvement; 3.7. the child is seriously and repeatedly subjected to behaviour on the part of his mother that could cause the child harm and the child’s mother fails to take the necessary steps to put an end to the situation, more particularly but not restrictively in that:

a) the mother resumed a verbally and physically abusive relationship with C;

b) the mother was not forthcoming with the social worker on the extent of her relationship with C nor did she disclose information about the violence in the home;

c) Mr. C has reportedly been seen in or around the home with a hammer in his hand;

d) Mr. C has brought marijuana in the home and smoked it in the home while the children were present in the home;

e) On one occasion, the mother called Y for help as she feared for her safety from Mr. C;

f) Mr. C has since been arrested for an incident of violence in the home on February 14, 2016; 3.8. The child runs a serious risk of becoming victim of bodily injury by C and the child’s mother fails to take the necessary steps to put an end to the situation, more particularly but not restrictively in that:

a) the mother and the child have a conflictual relationship;

b) the mother admits to occasional use of inappropriate physical means of discipline towards Y;

c) the child was physically hurt after he intervened in a physical confrontation between mother and Mr. C at the request of the mother; FOR Z AND X: 3.1. the children’s [1] half and step siblings are known to the Director of Youth Protection and the Court of Quebec, Youth Division, in the file bearing 525-41-023042-104 and 525-41-021683-081, for allegations pertaining to a risk of neglect and for which measures were in place until December 24, 2010, the whole as it appears from the judgment dated April 12, 2010 and rendered by the Honorable Normand Bastien;

3.2. the children are the victim of bodily injury and/or unreasonable methods of upbringing by the X’s parents and Z’s mother and stepfather, Mr. B, and the child’s mother fails to take the necessary steps to put an end to the situation, more particularly but not restrictively in that:

a) the mother slaps the children’s head and buttocks when they disobey; 3.3. the children are seriously and repeatedly subjected to behaviour on the part of X’s parents and Z’s mother and stepfather Mr. B, and the children’s mother fail to take the necessary steps to put an end to the situation, more particularly but not restrictively in that:

a) the mother yells at the children on a regular basis;

b) the mother and Mr. B communications are strained;

c) Mr. B denigrates the mother in the children’s presence, who replicates this behaviour towards the mother; 3.4. on July 221, 2015, the family’s situation deteriorated, more particularly but not restrictively in that:

c) the mother expressed suicidal ideations in the children’s presence and to feeling overwhelmed;

d) the child Y expressed he could not sleep due to the mother and Mr. B’s arguing; 3.5. the mother demonstrated ambivalence towards her relationship with Mr. B; 3.6. Mr. B minimized the issues and has expressed reluctance towards youth protection involvement; 3.7. the children are seriously and repeatedly subjected to behaviour on the part of their mother that could cause the children harm and the children’s mother fails to take the necessary steps to put an end to the situation, more particularly but not restrictively in that:

g) the mother resumed a verbally and physically abusive relationship with C;

h) the mother was not forthcoming with the social worker on the extent of her relationship with C nor did she disclose information about the violence in the home;

i) Mr. C has reportedly been seen in or around the home with a hammer in his hand;

j) Mr. C has brought marijuana in the home and smoked it in the home while the children were present in the home;

k) On one occasion, the mother called Y for help as she feared for her safety from Mr. C;

l) Mr. C has since been arrested for an incident of violence in the home on February 14, 2016; [ 3 ] The mother and X’s father are present. Y and Z’s fathers are undeclared but the parties submit that X’s father, Mr. B, is also Z’s. Thus, at his request and by consent, Mr. B has been given party status in Z’s case. [ 4 ] The Court proceeded by way of a joint hearing in regard to all three children. [ 5 ] As explained later, X and Z are currently living with their mother whereas Y is in the care of his maternal grandmother.

Today, the Director is recommending that all three children be entrusted to the mother with various support measures for a period of one year. [ 6 ] The parents both admit that generally speaking, those allegations of the motions which are to their knowledge reflect well the children’s situation. However, the mother states that, contrary to what is alleged, she did not call out to Y for help when she feared for her safety from Mr. C; the child came to help on his own.

As well, the father denies, as alleged in the motion regarding Y, that he ever choked the child. [ 7 ] The parents have also read the various reports and agree with their content. [ 8 ] The children’s lawyer is in agreement with the recommendations put forward by the Director. [ 9 ] Under these circumstances, the role of the Court is to determine if indeed, the evidence bears out that the children’s security or development is compromised and if the measures proposed by the Director are in the children’s best interest. [ 10 ] The Court principally retains from the evidence that the parents (mother and Mr.

B) began as a couple some eight years ago. Mr. B has known Y since the child was four months old. [ 11 ] The Director was involved with the family between 2008 and 2010 in relation to issues of physical abuse, neglect and conjugal violence. [ 12 ] The children’s situation was re-signalled in March 2015, principally in relation to the mother and Mr. B being aggressive with the children, Y in particular; the children’s exposure to conjugal violence: screaming and Mr. B hitting the mother in the children’s presence; and the parents’ use of soft drugs. [ 13 ] During the investigation, Mr.

B denied hitting the children but the two older children stated that he did on occasion become aggressive with Y (including choking him once). The mother admitted that she yells at the children and that when frustrated, she will “smack them on the arm, bum or tap them on the head ”.

[ 14 ] The older children told the worker they had overheard the parents arguing and that this frightens them. The parents admit to the arguing but not to the fact that the father will put the mother down in front of the children. Yet, this behaviour is sometimes replicated by Y. [ 15 ] The parents admitted to smoking marijuana but only on the balcony, out of the children’s presence. [ 16 ] In June 2015, the mother asked for an ambulance because she was not feeling well.

It would appear that she was quite overwhelmed by her situation and is described as having been hysterical. [ 17 ] In July 2015, the parents split up. The mother was initially ambivalent regarding her relationship with Mr. B. [ 18 ] The Director initially seized the Court and obtained an order on July 23, 2015 whereby the children were entrusted to the mother at the exclusion of Mr. B and that the children not be exposed to conjugal violence and denigration. Of note, at Court and after the court hearing, the mother was angry that Mr. B was accompanied by his girlfriend.

The mother called for the presence of two friends and the situation became chaotic with the parents yelling, swearing and chasing each other across the street in the children’s presence. [ 19 ] Following the July Court order, the parents harassed each other in various ways. As well, the mother initially refused to have the older children visit the father, claiming that he used hard drugs and was an alcoholic, facts the father has denied. In any event, the father has not seen Y since the Court order. As noted earlier, Mr. B helped care for Y for about eight years.

It would appear that the parties would be open to looking into Y having some form of visits or contacts with Mr. B. [ 20 ] The evaluation also brought to light the fact that Z’s speech is delayed and that X’s enunciation is often unclear. Further, Y can sometimes display very difficult behaviour at home and be aggressive with various family members. [ 21 ] The main hearing (art. 38 Youth Protection Act) began before the undersigned on October 1 st 2015. The case was postponed at Mr. B’s request but the Court did, on that date and as mentioned earlier, declare him party in Z’s case.

The status quo was maintained. [ 22 ] The case was continued and completed today. [ 23 ] During this interim period, the parents consolidated the fact that they would not resume their relationship. [ 24 ] The mother began a relationship with Mr. C around November 2015. Mr. C has an extensive criminal record. Soon, Mr. C moved into the home and quickly this relationship became unhealthy. The mother reported an incident in November where Mr. C attempted to kick her in the head and accidentally kicked Y instead because Y intervened to protect her.

The relationship has been volatile and led to verbal and physical conflicts, some in front of the children. On one occasion in January 2016, Y wanted to intervene to protect his mother and ended up on the ground when pushed by Mr. C; Y says he hit his head on the ground on this occasion. The maternal grandmother came to the home and confronted Mr. C and according to the grandmother, she hit him in the face. [ 25 ] The situation was signalled again in early February 2016, immediate protective measures were invoked and Y was entrusted to his maternal grandmother.

He has remained there since under an interim order rendered on February 4, 2016. [ 26 ] At that time, the mother agreed that during the investigation, she would not allow contact between the younger children and Mr. C. [ 27 ] In mid-February 2016, there were further incidents of conflict between the mother and Mr. C while X and Z were present. [ 28 ] The situation further escalated and required police intervention when Mr. C broke into the home. Mr. C also made death threats against the mother. [ 29 ] During her involvement with Mr.

C, the mother did not fully disclose the violence and other concerns to the Director and the police, and only did so when the situation became out of hand. [ 30 ] This situation lead to another interim order rendered on February 15, 2016, maintaining Y with his grandmother and ordering, amongst other measures, that there be no contact between Mr. C and Y. [ 31 ] Mr. C was subsequently arrested and remains incarcerated. [ 32 ] The mother states that she has no intention of resuming a relationship with Mr. C. [ 33 ] Over time, the situation has improved somewhat.

The mother is providing the two younger children with proper care and has collaborated with educator services. She has diminished the use of physical discipline but can still become overwhelmed, especially when she is caring for the three children at once. [ 34 ] Y has continued to exhibit very difficult behaviour when visiting his mother and siblings. His mother has difficulty managing him. Yet, the grandmother says that he is calm when he is with her. Y says that he does not feel loved at home and will lash out verbally at his mother and throw objects. His tantrums can last up to 20 minutes.

As well, Y can become physical with his brother X. Y is also disruptive in class. The mother did not show up for an initial intake meeting at the CLSC in order for Y to receive services but he is now on a waiting list. [ 35 ] Mr. B sees X and Z regularly, on weekends, at his parents’ house. As mentioned earlier, he is open to some form of contact with Y. Of note, Mr. B has undergone one random drug test which came back negative. CONSEQUENTLY, AND FOR THESE REASONS, THE COURT:

[ 36 ] GRANTS the motion; [ 37 ] DECLARES that the security or development of the children is in danger; [ 38 ] IN VIRTUE OF THE POWERS CONFERRED UPON THE COURT BY

SECTION 91 OF THE YOUTH PROTECTION ACT: [ 39 ] ORDERS that the children be entrusted to the mother, at the exclusion of Mr. B; [ 40 ] ORDERS that no means of physical discipline be used on the children; [ 41 ] ORDERS that the mother ensure that the children are not exposed to any verbal, psychological or physical abuse; [ 42 ] ORDERS that the Director determine the frequency and modality of contacts between the children and the father; [ 43 ] RECOMMENDS that the Director look into the possibility for Y to have contacts with Mr.

B; [ 44 ] ORDERS the mother to ensure that there is no contact between the children and Mr.

C; [ 45 ] RECOMMENDS that the parents participate in a program to address their parenting skills; [ 46 ] RECOMMENDS that the mother receive personal counselling services; [ 47 ] AUTHORIZES the Director to be given access to information from any professionals working with the parents and the children; [ 48 ] ORDERS that the mother collaborate with the Director of Youth Protection, including the youth protection worker and the educator; [ 49 ] ORDERS a person working for [Centre A] to provide aid, counsel and assistance to the children and their family; [ 50 ] THE WHOLE FOR A PERIOD OF ONE YEAR; [ 51 ] ENTRUSTS the situation of the children to the Director of Youth Protection A who shall see that these measures are carried out and these measures may be executed by any peace officer, if necessary. _________________________________ CLAUDE LAMOUREUX, J.C.Q.

M e Isabelle F. Loranger Attorney for the applicant M e Bernard Sepinwall Attorney for the children Me François De Vette Attorney for the mother Dates of hearing: October 1 st , 2015 and March 14 th , 2016 CL/nl