2020 QCCQ 4402, 2020 QCCQ 4402

Protection de la jeunesse — 204296 2020 QCCQ 4402 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 505-41-009304-181 505-41-009305-188 DATE: April 15, 2020 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X, born [...], 2013 Y, born [...], 2011 Children ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION A Applicant v.

B C 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.).

The context [ 1 ] Y and X, siblings aged respectively 8 and 6, reside with their parents. [ 2 ] On September 7, 2018, the Director of Youth Protection retains that they are at a serious risk of sexual abuse. This determination stems from declarations made by the parent’s then 9 year old niece, Z, to the effect that the father would have repeatedly subjected her to gestures of a sexual nature. [ 3 ] Since such time, provisional measures are in force entrusting the children to their mother while forbidding her to leave the children alone with their father.

The Court also takes act that the father will no longer be involved in the children’s hygiene. [ 4 ] The children therefore continue to reside with their parents and, despite a few clarifications, these measures are respected to date. [ 5 ] Criminal accusations remain pending against the father in relation to the sexual conduct alleged concerning his niece.

Within his conditions of release, he is prohibited contacts with his niece and children under 16, to the exception of his children in accordance with the Director. [ 6 ] The Director asks the Court to retain a situation of endangerment with a one year protective order including various measures of aid and rehabilitation, while maintaining the children in their family environment under the care of their mother with the continued supervision of their contacts with their father. [ 7 ] Contesting the alleged situation of endangerment, the parents seek the dismissal of the applications.

However, their specific positions differ. [ 8 ] As for the father, he denies any sexual misconduct towards his niece. [ 9 ] The mother’s initial position is that she intends to continue to act in her children’s best interests. As to the allegations of sexual abuse by her spouse, she reserves her position in view of hearing the evidence and questioning the witnesses. [ 10 ] At the end of the hearing, she testifies to being conflicted by the evidence and to not having a clear position as to the allegations

of sexual abuse. She states being convinced that her niece was abused, but questions the identity of her abuser. [ 11 ] She intends to continue to be a protective parent by not leaving her husband alone with their children, and this considering that she is unable to glean the truth of the situation.

Consequently, she submits that her children are not in a situation of serious risk requiring the application of protective measures. [ 12 ] The attorney for the children, under a legal mandate, pleads that the Director meets its onus as to the situation of endangerment and further subscribes to the orientation in her client’s best interests. The issues [ 13 ] The cascading issues before the Court are the following: i. Does the Director of Youth Protection meet its onus of proving by a balance of probabilities that the father sexually abused his niece? ii.

Does the Director of Youth Protection meet its onus of proving by a balance of probabilities that the children at a serious risk of sexual abuse and that their security and/or development are consequently in danger? iii. What protective measures must be put in place in the children’s best interests and in view of the objectives of the Youth Protection Act ? The evidence [ 14 ] The hearing proceeds over numerous days, with the parties submitting both testimonial and documentary evidence.

Within its overall evaluation of this evidence, the Court firstly resumes the facts retained as pertinent to the judgment, resolving the contentious facts and issues in its analysis phase. [ 15 ] Y is an affectionate child with special needs. Diagnosed with autism, he is mostly non-verbal. Despite this, his family members have a functional communication with him. He attends a specialized school and requires a stringent routine. X is an energetic and curious child.

She functions well on all levels. [ 16 ] The children have positive and healthy relationships with their parents. [ 17 ] Both parents are active in their children’s care and upbringing. As to the children’s hygiene, both children can take showers with their parents. X states that her father is responsible for washing her when this occurs. [ 18 ] The parent’s conjugal relationship is strong. Together, they have weathered significant challenges, including infertility issues and their son’s autism. [ 19 ] Strong family bonds also exist with the immediate family. Get-togethers occur on a regular basis.

During the summer period, they spend time at a Town A campsite, where both the family and the maternal grandparents have campers. [ 20 ] From 2014 to 2017, the children’s maternal uncle, D, resides with the family. His two daughters, Z and A, visit him on a regular basis, usually on weekends. There is a close relationship between the families. Both parents testify to considering the girls almost like their own children. [ 21 ] The father usually wakes with the children on the weekend and makes them breakfast while the other adults are still sleeping. [ 22 ] Z is described as a happy-go-lucky and loving child.

Diagnosed with ADHD, she can lose focus and be short-tempered. She isn’t prone to lying. [ 23 ] In the beginning of July 2018, both families attend a wedding in [province A]. They stay separately in a hotel and are present at the wedding venue, a private home. It is a hot day and the children make use of the pool. Z is in and out of the pool. Two bathrooms in the house are available for the guests. [ 24 ] On the evening of August 27, 2018, Z is home with her mother. She approaches her saying that she has to something to tell her. She seems nervous.

She goes on to say that her uncle had licked her penis and she had licked his penis. With gestures, she shows how she had to spread herself when he was licking her. She also mentions him holding her head for her to lick him. [ 25 ] She says it happened at the July wedding and also before, but doesn’t remember dates or places. At the wedding, she states that her uncle follows her to the washroom and starts licking her. [ 26 ] She adds that she’s scared of C and he tells her not to talk about it. She decides to speak up because she’s sick of hiding it. Her mother tells her she is safe and brave.

Either that night or in the next days, the mother tells her that she will no longer be anywhere near her uncle C. [ 27 ] Until this denunciation, Z had shown no overt signs of discomfort relating to her uncle. [ 28 ] The same evening, Z’s mother phones her daughter’s father (

D) in order to inform him of her verbalizations. Although there is contradictory testimony on this fact, the Court retains the father’s version to the effect that his daughter briefly speaks to him, repeating that at the wedding “ C touched my penis and I touched his”. He remembers her being upset and crying. They have had no further specific discussions on the subject. [ 29 ] Z’s father then phones the mother, relating the information he has received. Distraught, she immediately speaks to her husband,

who flatly denies the allegations. She communicates with the maternal grandmother. Shortly thereafter, she sends the following text message to Z’s father: Neither Mom nor I believe Z was touched by C. It’s utter bullshit, he was never in the bathroom with her, he adjusted the TOP of her bath suit outside only, and if he was going to do anything like that – why did he only do it now? Why didn’t he ever do anything to A? Why was she only upset NOW? She’s seen C TWICE since the wedding. It makes NO sense. If anything happened, it certainly wasn’t by C.

I truly hope neither of you have repeated this nonsense to anyone else. You should consider getting her in counselling and hopefully IF anything happened, the real culprit will come out. [ 30 ] That night, Z is scared to go to bed on her own, so she sleeps in her mother’s bed. [ 31 ] The next day, the mother makes a police complaint. Z is subsequently interviewed on two occasions by different police officers (September 5 and 26, 2018).

The Court views these video statements. [ 32 ] In these interviews, the following elements are detailed by Z: On numerous occasions, C poses gestures of a sexual nature in her regard; C is her uncle; She doesn’t remember when it started; The last incident occurs during a family wedding in July 2018; During this wedding, he forced her to lick his genitals and “ weird stuff ” like “ soap ” came out of his penis; She’s seen his “soap” on more than one occasion.

Once, it entered her mouth and she spat it out with water; She describes it as being “ disgusting ”; C cleaned himself with paper; His private parts smelled weird and so her mouth smelled weird; On one event, he removes his clothing and hers – she lies down on him, with their faces in each other’s genital area; C has licked her private parts on more than one occasion; He has done “ weird kissing ” with her, using their tongues; He asked her to put her finger in his anus, to which she complied; [ 33 ] During these interviews, Z uses gestures to more amply describe what happened (masturbation, showing how she had to pull back her skin to expose her genitals). [ 34 ] As to peripheral details, she speaks of incidents in the house and trailer, giving certain specifics, but remaining uncertain as to times and dates. [ 35 ] Within the initial evaluation process, the parents meet separately with the caseworker. [ 36 ] The mother states to not believing that the father would ever abuse a minor.

She is adamant that without video proof, she will be certain until the day she dies that her husband did not abuse their niece. [ 37 ] As to the specifics of the allegations, she adds: • At the wedding, the father had been in the bathroom with their son Y when Z came in and he helped her out of her bathing suit; • It is impossible that any abuse occurred at her home during the period that Z would visit them on the weekends as they were seven people in the house; • If Z was abused, she postulates that the child identifies her husband as a “ safe person ” to avoid naming her real abuser; [ 38 ] As for the father, he denies any maltreatment towards his niece.

Although he recognizes having been in the washroom with his son during the wedding, he denies having seen Z during that time nor having helped her to change her bathing suit. [ 39 ] In the weeks following her disclosure, Z shows reactions of distress. She has nightmares and is anxious. She mentions being scared that her uncle would creep into the bedroom and hurt her because she told what happened. After a time, this resorbs itself. [ 40 ] Z meets with Dr.

Franziska Baltzer in October 2018, within the doctor’s mandate with the Centre A to proceed to the medical assessment of children referred in relation to allegations of sexual abuse. Her report is produced in evidence (D-10). The Court also benefits from the Dr. Baltzer’s expert testimony. [ 41 ] The witness explains the process. After having received a written

summary of the reasons for the reference, she meets with the child and proceeds to a regular medical check-up, then to a more specific exam depending on the factual allegations. For Z, this was a genital exam. [ 42 ] It is usually a relatively short exam. No specific questioning occurs with the child in relation to the allegations of sexual abuse. [ 43 ] The exam reveals a child developing normally and showing signs of puberty. Her physical and genital exam are normal.

Such is not a contradiction to the issues brought forth as the expert states that 95% of children present no physical signs of sexual abuse. [ 44 ] What stands out for this expert witness is Z’s reactions during the genital exam. Although Z is initially cooperative and calm, when comes time for the genital exam, she becomes very reactive. Although the doctor doesn’t recall the exact wording, she testifies that there was no refusal to cooperate, but more an intense anger at having to submit herself to the exam. [ 45 ] Dr.

Baltzer explains that children express many reactions to a genital exam, a normal reaction being shyness or expressed discomfort. Two reactions are suspicious, namely those at the extremities of the spectrum - no reaction and an over-the-top reaction.

These reactions, which she qualifies as exceptional, demonstrate a previous traumatic event related to the genital area and would constitute a reason to investigate further even if the exam were not in relation to allegations of sexual abuse . [ 46 ] Despite her experience in such cases, she was impressed by the degree of anger expressed by Z during the genital exam, which cannot be explained by any personal issues or diagnoses. She concludes that such is an indicator of trauma related to this area and suggestive of sexual abuse. [ 47 ] The parents cooperate with the evaluation and the provisional measures.

Throughout, they maintain relatively concerted positions as to the allegations. [ 48 ] Discussions ensue between them as to the possible outcomes of the pending proceedings. They evaluate a separation, deciding finally that such is not viable considering their financial situations. Overall, they remain loyal to each other. [ 49 ] During the proceedings, the mother states ignoring the situation of endangerment, wanting to make up her mind after hearing and questioning the evidence. At such time, she testifies to still being unsure of the truth of the situation but to being convinced that Z was abused.

She maintains doubts as to her husband being the perpetrator, but stipulates her intention to maintain supervision of their contacts because of her uncertainty. [ 50 ] Z’s testimony relates much of what is in her initial police declarations. She remains clear as to details of the sexual abuse and her aggressor. Certain details are added, namely as to her being told not to use her teeth.

Analysis and Decision [ 51 ] The law [ 52 ] The Director of Youth Protection assumes to onus to demonstrate by a balance of probabilities that the children are at a serious risk of sexual abuse in their family environment. [ 53 ] To this effect, the Court cites the definition of such in the Youth Protection Act : 38. (…) In this Act, (…) (d) “sexual abuse” refers to (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, including a serious risk of sexual exploitation, and the child’s parents fail to take the necessary steps to put an end to the situation; [ 54 ] The evidence of previous sexual abuse by a parent does not create an automatic serious risk for another child and the Court must evaluate the totality of the evidence to determine if a serious risk exists. [ 55 ] The more specific notion of “ serious risk ” is not further defined in the Youth Protection Act , leaving case law to elaborate on this notion.

It is widely defined by jurisprudence that the term “ serious ” must be given its usual meaning of: grave, important and worrisome . [1] [ 56 ] Some

interpretations also consider that the evidence must reach a marked or elevated probability of the child being a victim of sexual abuse. [ 57 ] With deference, the Court considers that such an

interpretation imposes a standard which is superior to that required by the legislator. To conclude that a serious risk requires the demonstration of a probability of sexual abuse goes against the principle by which the legislator clearly enounces its intentions. [ 58 ] Simply said, should the legislator had required a marked or elevated probability, or even a simple probability, such would have been the terms utilized. [ 59 ] On this issue, the Court shares the

interpretation of Judge Stephen Hamilton, who determines on appeal that the presiding judge errs in the application of the standard of evidence: [14] Le Tribunal n’est pas satisfait de l’interprétation que fait la juge de première instance de l’article 38d)(2): • « un risque important, grave et inquiétant » est un standard plus élevé que « risque sérieux » (…) [2] [ 60 ] The serious nature of the risk must be determined in function of the child and the circumstances and this, on an individual basis. It is more than a simple risk, which falls more into the realm of conjecture and hypothesis.

So then, what degree of risk is serious?

Or moreover, what is an unacceptable risk for a child in relation to the possibility of being sexual abuse? [ 61 ] For the Court, the demonstration by a balance of probabilities of concrete circumstances putting a child at risk of being victim of gestures of a sexual nature can meet the standard of the law and engage a protection and rehabilitation process. [ 62 ] Within this evaluation, the Youth Protection Act stipulates elements to be considered in determining a situation of endangerment: 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. [ 63 ] Situation of endangerment [ 64 ] Does the Director of Youth Protection meet its onus of proving by a balance of probabilities that the father sexually abused his niece? [ 65 ] The Court concludes that such is the case. [ 66 ] The evidence rests principally on Z’s declarations. [ 67 ] The Court must firstly appreciate the credibility of this witness as well as the reliability of her statements.

Such are two distinct notions, credibility relating to the trustworthiness of the person and reliability as to the related facts. [ 68 ] The Court of Appeal of Quebec [3] offers the following as to these distinctions: [49] Comme le soutient l’appelant, les notions de fiabilité et de crédibilité sont distinctes. La fiabilité a trait à la valeur d’une déclaration faite par un témoin alors que la crédibilité se réfère à la personne. (…) La crédibilité se réfère à la personne et à ses caractéristiques, par exemple son honnêteté, qui peuvent se manifester dans son comportement.

L’on parlera donc de la crédibilité du témoin. La fiabilité se réfère plutôt à la valeur du récit relaté par le témoin. L’on parlera de la fiabilité de son témoignage, autrement dit, d’un témoignage digne de confiance.

Ainsi, il est bien connu que le témoin crédible peut honnêtement croire que sa version des faits est véridique, alors qu’il n’en est rien, et ce, tout simplement par ce qu’il se trompe; la crédibilité du témoin ne rend donc pas nécessairement son récit fiable. [ 69 ] The Court also cites Judge Marie Lapointe, who resumes the requirements surrounding the judge’s evaluation in regards to declarations of maltreatment: Il se dégage que le juge doit rechercher un ensemble de faits et de circonstances entourant la déclaration elle-même suffisamment sérieux pour en assurer le caractère fiable, crédible, vraisemblable et qui écartent considérablement la possibilité que l’enfant ait menti. [4] [ 70 ] Z’s various declarations relating to the abuse, span approximately fifteen months and include her testifying before the Court and being subject to cross-examinations.

Throughout all this, the Court retains that her versions as to the essential facts surrounding the abuse, remain consistent and concordant. [ 71 ] These are her various declarations: • Her mother; • Her father; • Two police interviews; • Testimony before the criminal court during the father’s preliminary hearing (May 8, 2019); • Testimony during the protection proceeding (and before the viewing of the police interviews); [ 72 ] During her testimony and police interviews, she is forthcoming and is seen to understand the requirement to tell the truth. She is able to correct and reformulate.

There are no indications of lying and she is seen to be truthful. [ 73 ] She consistently identifies her uncle as the person perpetrating the abuse. [ 74 ] The details and terms she uses are also maintained over time. Although sometimes imprecise in reason of her vocabulary, they remain clearly evocative of sexual gestures and are further bolstered by her corresponding gestures (masturbation, opening her genital area).

The sexual acts she describes are varied and clearly surpass the knowledge of a young child in such matters. [ 75 ] The clearest example of such is her use of the term “ soap ” when describing what comes out of her uncle’s penis after she licks it. When asked to detail why she uses this term, she is able to relate that it’s like the white soap that comes out of a dispenser. Such is also the case with her description of the taste and his using towels to wipe himself after the “ soap ” comes out.

There is no doubt that she refers to the act of oral sex and male ejaculation. [ 76 ] During her testimony, she brings certain precisions, including that of being told not to use her teeth. These details are contextual and do not affect her credibility.

[ 77 ] Her version of events is also rendered reliable by the following: • Her nervousness and anxiety when she spoke to her parents on August 27, 2018; • Her reactions during the weeks following her initial verbalizations; • Her reactions during the genital exam and Dr.

Baltzer’s expert testimony as to such being indicative of trauma in the genital area. • The corroborating versions from the mother and her father in relation to her uncle accompanying her to the bathroom during the wedding; • The corroborating testimony as to her going to the trailer with her uncle to get presents; [ 78 ] With reason, the attorneys underline certain contradictions and inconsistencies in the child’s versions.

While such is the case, it relates mostly to peripheral details and, for children’s testimonies, it is necessary to be circumspect as to questioning the reliability of their versions in function of such. Overall, these do not provoke for the Court any significant hesitations as to her credibility nor the overall reliability of her version of events. [ 79 ] An issue is raised as to the fact that the child says, when alone during one of the police interviews: He didn’t do a thing . She is wandering in the room speaking to herself. When questioned as to such during the hearing, Z denies having said such.

On this, the Court retains that the context of her statement is in relation with the last portion of the interview before the break, during which she is speaking of her stepfather. [ 80 ] As for the father’s version of events, he is transparent during his testimony as relates to his family life and devotion towards his children. Such is less the case as relates to his version of the events surrounding the alleged incidents of abuse. [ 81 ] He affirms that he was never alone with Z for an extended amount of time.

Such is improbable considering the amount of time the families spent together and certainly the close proximity maintained during the time that her father resided with them. [ 82 ] Issues as to the physical space available for the incidents of sexual abuse are brought up (bathrooms). Such relate to peripheral details and are again not inconsistent with the child’s versions. [ 83 ] There is also the chronology of the events during the wedding, purported to be the last incident of abuse.

The father again indicates never having been with Z in the bathroom, nor having had the opportunity to do so. [ 84 ] This comes in direct contradiction with the mother’s version of events to the caseworker, as well as Mr. D’s testimony. [ 85 ] As to Mr. D, Z’s father, the Court retains no doubt as to his credibility. He testifies in a calm and forthright manner on a factual basis. Although he states to believing his daughter, he is not accusatory towards the father, stating his wish to remain neutral as he is not fully aware of the circumstances.

In point of fact, he has not been made aware of the specifics of his daughter’s allegations. [ 86 ] As for the wedding, he states that his daughter tells her she wants to get out of her bathing suit and asks him to help her. He asks if she can wait and then the father comes to help her and she leaves with him. They come back shortly and she has changed into a dress. [ 87 ] The father meets with a sexologist in view of preparing his defence.

While allowing his testimony and report on a factual basis, the Court dismisses his conclusions as to the father’s sexual profile, based on the absence of the requirements as to necessity and relevance. [5] [ 88 ] This testimony offers little of additional relevance for the Court, other than the father’s affirmations of a normal sexuality. Within the context of the evidence, the weight of such is dependent on the father’s credibility. [ 89 ] Overall, Z offers a clear and consistent testimony in relation to being a victim of sexual abuse at the hands of the father.

Furthermore, her versions of events are rendered reliable by concordant factors.

The Court retains her version of events as being proven following a balance of probabilities. [ 90 ] Subsequently, does the Director of Youth Protection meet its onus of proving by a balance of probabilities that the children at a serious risk of sexual abuse and that their security and/or development are consequently in danger? [ 91 ] The Court reiterates that the determination of the father having sexually abused his niece is not, of itself, sufficient to conclude that his children are at a serious risk of such. [ 92 ] The evaluation as to the existence of a risk and its degree, must take into account all pertinent elements, including those surrounding the family dynamic as well as the children’s respective functioning, strengths and vulnerabilities. [ 93 ] The Court firstly considers the proven elements relating to the sexual abuse as it relates to the qualification of the degree of the risk for the children. [ 94 ] Z had a significant bond with the family and it is through this relationship that she is coerced into inappropriate sexual congress with the father and this, repeatedly and over an extended period. [ 95 ] Not only are these acts socially reprehensible, but they underscore a sustained capacity to transgress boundaries and trust in order to satisfy personal needs.

This betrayal is not only of the trust of a young child, but also that of his family members. This, in conjunction with the element of secrecy and control,

[ 96 ] The father also denies the situation and as such, doesn’t engage in a meaningful therapeutic process. Without such, a risk of recurrence exists. [ 97 ] Y and X, by way of the bond they share with their father and the parental authority he exercises, are especially susceptible to his influence. Such is accentuated by his proximity and constant presence in their environment. [ 98 ] To this effect, the Court cites with approval, Juge Clément Samson’s evaluation of such a factor: Le fait que l’enfant soit attaché à son père est un élément qui inquiète plus le Tribunal qu’il peut le rassurer.

À quelques années où l’enfant atteint l’âge qu’avait la victime lorsqu’elle fut abusée par le père, leur relation semble encore plus intime que le père avec la nièce de sa conjointe. Cet attachement diminue les mesures de protection de l’enfant. [6] [ 99 ] Furthermore, the children are highly vulnerable in reason of their ages and specific challenges. [ 100 ] As for X, there also exists a concordance as to age and sex with Z.

Even though the mother states to having ensured that her daughter is aware of the need to denounce uncomfortable situations, does little to mitigate the risk as concerns her father in reason of her attachment to him. [ 101 ] Y, because of his personal issues, offers no internal protection mechanism as well as little able to communicate any uncomfortable situations. [ 102 ] While admitting a risk, the mother advances that its degree fails to reach the standard required by the Youth Protection Act, considering her intention to maintain a strict supervision of the father in the home environment.

The Court disagrees. [ 103 ] In virtue of the Youth Protection Act , the Court must consider “ 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” within its evaluation of an alleged situation of endangerment. [ 104 ] As of now, the father’s denial is incompatible with such a capacity or will.

This lack of recognition is a substantial factor for the seriousness of the risk, especially when considering the proximity in place. [ 105 ] As for the mother, overwhelmed by uncertainty, loyalty and harsh financial realities, she remains incapable of taking an unequivocal position.

Although the Court doesn’t doubt her wish to protect her children, her choices denounce a compartmentalized appreciation of the risk posed by the father and consequently, diminishes the safety net required to protect her children. [ 106 ] The whole is rendered all the more uncertain by the divergent opinions seemingly now held by the parents as to even the existence of a risk. [ 107 ] Such renders uncertain the role she can and will assume within the rehabilitation of the situation of endangerment and therefore fails to mitigate the serious nature of the risk surrounding the children. [ 108 ] For all these reasons, the Court determines that the children are at a serious risk, justifying the application of protective measures. [ 109 ] Measures of protection [ 110 ] What protective measures must be put in place in the children’s best interests in view of the objectives of the Youth Protection Act? [ 111 ] The Court retaining that the children are at serious risk of sexual abuse, the measures must include components in view of their protection and the rehabilitation of the situation of endangerment.

To this effect, the Court cites the Youth Protection Act (our underlining): 2.3. Any intervention in respect of a child and the child’s parents under this Act (

a) must be designed to put an end to and prevent the recurrence of a situation in which the security or the development of the child is in danger; and (

b) must, if the circumstances are appropriate, favour the means that allow the child and the child’s parents to take an active

part in making decisions and choosing measures that concern them. Every person, body or institution having responsibilities under this Act towards a child and the child’s parents must encourage the participation of the child and the parents, and the involvement of the community. The parents must, whenever possible, take an active

part in the application of the measures designed to put an end to and prevent the recurrence of the situation in which the security or development of their child is in danger. [ 112 ] The parents respect the provisional measures in place since the onset of proceedings, which allow the children to continue

maintain their stability and benefit from the presence of both their parents. [ 113 ] The Director seeks to maintain this situation as well as various other measures of aid and counsel, including active participation as well as recommendations that the father engage in a therapeutic process in regards to his inappropriate sexual behaviours. [ 114 ] These measures are, in principle, appropriate and satisfy the objectives of the law including the tendency towards maintaining the children in their family environment.

This being said, it is not without reservations that the Court endorses these measures, in view of numerous glaring elements of precariousness, which now come into full focus. [ 115 ] Since the onset of the Director’s intervention, the parents are both living in but a semblance of normality, surviving as best they can before the enormous pressures stemming from the situation and the subsequent ongoing litigations.

Both are clearly struggling with the oncoming finalities, one of which is to be faced with the present judgment. [ 116 ] How these consequences will manifest themselves in the children’s realities is an unknown factor, especially before the requirement to go forward within the confines of the judgment and the consequent objective of rehabilitation. [ 117 ] The passage of time will not resolve the situation of endangerment and a new reality must emerge in order to go forward with the children’s need to no longer be faced with a serious risk of sexual abuse.

Choices are going to have to be made. [ 118 ] Such is the Court’s expectations and its definition of the children’s best interests. [ 119 ] The question remains: Can this family, and namely the father, recognize, admit and then undertake the steps destined to identify and treat the reasons giving way to his delinquent behaviours? [ 120 ] Considering the father’s staunch denial, it remains uncertain at this juncture that he will be available for this process.

This is in conjunction with the mother’s compartmentalized position could eventually become irreconcilable with the maintaining of a serene, safe and stable family environment for the children.

The Court cautions the need to remain vigilant to ensure that such remains the case for the children. [ 121 ] With this stated, the Court endorses the measures sought as being an accurate reflection of what is required in the children’s best interests and the objectives of the law. [ 122 ] The Court also recommends that the mother benefit from an individual psychological follow-up in order to help her maintain her balance while she continues to navigate the murky waters which surround her family.

FOR ALL THESE REASONS, THE COURT: [ 123 ] GRANTS the applications for protection; [ 124 ] DECLARES that the security and the development of the children are in danger for the following reason: • serious risk of sexual abuse (article 38d)

(2) Youth Protection Act ) [ 125 ] ENTRUSTS the children to their mother; [ 126 ] ORDERS that the contacts between the children and their father be determined following mutual agreement between the parties and in the presence of a third party chosen by the Director; [ 127 ] TAKES ACT that the father resides in the family environment and that the parties agree that the mother supervises the contacts; [ 128 ] ORDERS that the parents report periodically to the Director of Youth Protection on the measures they apply in their own regard or their children’s regard to put an end to the situation of endangerment; [ 129 ] ORDERS that the parents take an active

part in the application of the measures ordered; [ 130 ] RECOMMENDS that the father undertake a therapeutic follow-up in relation to the committed abuse; [ 131 ] RECOMMENDS that the mother benefit from an individual psychological follow-up; [ 132 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the children and their family; [ 133 ] ALL THESE MEASURES for one year; [ 134 ] ENTRUSTS the situation of the children to the Director of Youth Protection A for the execution of the present judgment. __________________________________ BÉATRICE CLÉMENT, J.C.Q.

Me Caterine Caron Applicant’s attorney Me Johanna Azoulay Mother’s attorney Me Valérie Gionet Father’s attorney Me Hélène Robitaille Children’s attorney Hearing dates: October 24, 25, 28, 29, 30 and 31 (continuance), November 1, 2019, February 13 and 14, 2020 Date of signature: April 15, 2020