2013 QCCQ 2528, 2013 QCCQ 2528

Protection de la jeunesse — 13235 2013 QCCQ 2528 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT [...] TOWN [...] Youth Division No: 640-41-001515-128 & 640-41-001516-126 DATE: January 25, 2013 ______________________________________________________________________ BY THE HONOURABLE NANCY McKENNA, J.C.Q. ______________________________________________________________________ [SOCIAL WORKER] , Youth Protection worker duly authorized by the Director of Youth Protection of A working in City A Applicant -and- X & Y , both residing and domiciled in City B , Quebec, district A Children -and- A , residing and domiciled in CityC , Quebec, district A Mother -and- B , residing and domiciled in City C , Quebec, district A Father of X ______________________________________________________________________ JUDGMENT (Sections 38 & 75 of the Youth Protection Act) ______________________________________________________________________ [ 1 ] The Director of Youth Protection makes an application under

section 38 of the Youth Protection Act concerning X, born on […], 2007 and Y , born on […], 2011. [ 2 ] The mother is present and represented by her lawyer, as is X’s father. The children are absent but duly represented by their lawyer.

THE FACTS [ 3 ] Despite the many admissions made by both parents they do not recognize that the security and development of the children are endangered. [ 4 ] However, the admissions, the testimony of the applicant as well as documentary evidence prove, on a balance of probabilities, the following facts. [ 5 ] In September 2012, the mother tried to stab the father as they were both under the influence of alcohol while the children were present. A few weeks later, the mother reported being scared of the father because of threats he had conveyed to her. She then took refuge in a woman shelter with the children.

On October 4, 2012, while both parents were intoxicated by alcohol, the mother assaulted the father with a knife causing him serious injuries that led to his hospitalization in City D . The mother was arrested and detained a few weeks before being released on an undertaking with conditions to live in a shelter in City E until her court appearance, which was at the beginning of December. With regard to the assault on the father, the mother claims it was self-defense.

She is however unable to explain the circumstances surrounding the incident. [ 6 ] Since the last violent incident, the mother is back in City C and is presently living with her mother as she is prohibited from any contact with the father. She contends that the lease pertaining to the house in City C is in her name and that accordingly the father should not be living there. As for the father, he is living in what he claims to be the family dwelling. According to him, the lease agreement is in both their names. [ 7 ] The applicant believes that the parents are still living together in City C.

She comes to this conclusion following phone calls made at the family residence, where both parents were present. Although the mother isn't forthright regarding her relationship with the father, the applicant states that she shows good collaboration with Youth Protection services. As for the father, the applicant made some efforts to engage him and work with him, but for the most part, he refused to cooperate.

[ 8 ] The Director of Youth Protection also received a report stating that Y was sexually abused. The child was brought to the nursing station. According to the documentary evidence, a rape kit was completed and the child's preliminary medical report reveals an anal fissure and a perforated hymen. The mother suspects the father of sexually abusing Y . Although the report concerning Y was made in September, the Multi-sectoral Agreement has yet to be completed.

Moreover, no evidence was tendered concerning the course of the investigative process. [ 9 ] Alcohol abuse and violence seem to be well rooted within the couple. The mother admitted that since August, until her arrest in October, she had been drinking on a daily basis. Moreover, she admitted also consuming marijuana a few times a week. The father shows less willingness to reveal his drug and alcohol consumption.

The parents do however admit that in the past, the children have been exposed to fights. [ 10 ] During the course of the hearing, the parents mainly disagree on their respective responsibilities that led to the demise of their relationship. In her emotional testimony, the mother expressed the wish to remove herself from the violent relationship with the father. Her stay at a woman shelter in City E opened her eyes to the negative effects of domestic violence. She nevertheless remains socially isolated and vulnerable.

Since she came back to City C she tries to maintain her sobriety. [ 11 ] The father portrays himself as the family provider and wishes to make amends with the mother for the children's sake. At the same time, he blames the mother for her drug and alcohol dependency and seems insensitive to her discomfort and suffering. He is also entertaining the idea of moving back to his hometown of City F . [ 12 ] Notwithstanding the parents' conflict, the evidence clearly shows that the children are in need of protection because of the parents' violence and their longstanding issues of alcohol and drug abuse.

The evidence also shows that these issues have an impact on X who is described as a fearful child with limited social skills. [ 13 ] However, the very limited evidence provided to the Court regarding the sexual abuse allegation is, as the D.Y.P.'s attorney recognized it, insufficient to allow the Court to conclude on a balance of probabilities that Y has been sexually abused. This being said, the Court reminds the Director of Youth Protection that as an institution it is bound by the Multi-sectoral Agreement and that it must play it's

part in the application of the agreement. The goal of the said agreement being better protection of children who may be victims of sexual abuse, the Director of Youth Protection must act in a timely manner and demand a follow-up from it's other partners. The D.Y.P.'s passivity in this matter is unacceptable and at first glance, doesn't respect the child's rights. [ 14 ] Given the evidence, the Court concludes that the security and development of both children are endangered pursuant to

section 38 (b) (2) and 38 (

c) of the Youth Protection Act. APPLICABLE MEASURES [ 15 ] In light of the foregoing, the Director of Youth Protection requests that the children be entrusted to a foster family for a period of six months.

In support of her recommendation, the applicant believes that the parents need time to address the real issues, which are episodes of extreme violence enhanced by the abuse of alcohol. [ 16 ] The parents disagree with the recommendation, they are of the opinion that a three-month placement is sufficient. [ 17 ] As previously mentioned, the father might move back to City F and requests that the children be fostered in his home community instead of City B , as it is presently the case.

On this point, the applicant explains that a foster family outside the community was chosen mainly due to the shortage of foster families. [ 18 ] The Court believes that the length of the proposed measures will allow the parents to make important decisions regarding their relationship and their living conditions as well as to their consumption of alcohol and drugs. [ 19 ] The mother's wish to free herself from her violent relationship with the father is commendable. However, first and foremost she must be able to take a definitive decision regarding her future with X’s father.

One thing is for sure, the Court cannot allow the children to be exposed any further to conjugal violence and instability due to the excessive consumption of alcohol. The parents must put the children's welfare above their own.

In that regard, a three-month placement is unrealistic in order to allow the mother to put into action her good intentions and to allow the father to realize the importance of stabilizing his living conditions and recovering his parental responsibilities. [ 20 ] As for the possibility of choosing a foster family in City F, the Court can only recommend it for X , as Mr B isn't legally Y 's father. Furthermore, Mr B is invited to clarify his intentions regarding his home community and to share them with the Director of Youth Protection.

The purpose of fostering X in City F is to bring the child closer to her extended family. This can be a solution as long as the father participates in the process. [ 21 ] FOR THESE REASONS, THE COURT: [ 22 ] GRANTS the petitions; [ 23 ] DECLARES the security and development of X , born on […], 2007 and Y , born on […], 2011, are endangered pursuant to sections 38 (b) (2) and 38 (

c) of the Youth Protection Act; [ 24 ] ORDERS that the children be entrusted to a foster family for a period of six months; [ 25 ] RECOMMENDS that the Director of Youth Protection consider a foster family in City F ; [ 26 ] ORDERS the parents to be sober when in the presence of the children;

[ 27 ] ORDERS that the parents collaborate with the Youth Protection worker in applying the present measures; [ 28 ] ORDERS the parents to seek professional help for their alcohol problem and anger management issues; [ 29 ] ORDERS that the contacts between the children and their respective parents be supervised by the D.Y.P. as to the frequency and modalities; [ 30 ] ORDERS that the parents report periodically to the Director of Youth Protection on the measures they apply in their own regard or in their children's regard to put an end to the situation in which the security and development of the children are in danger; [ 31 ] ORDERS the Director of Youth Protection to see to the diligent and full application of the Multi-sectoral Agreement in regards of a possible situation of sexual abuse on Y ; [ 32 ] ORDERS that a person working for a institution or body provide aid, counsel and assistance to the children and the parents for a period of six months; [ 33 ] ORDERS the police to collaborate in the execution of the present judgment; [ 34 ] ENTRUSTS the children's situation to the Director of Youth Protection for the purpose of executing the measures. __________________________________ NANCY McKENNA, J.C.Q.

M e Gabriel Gaudreault Cain Lamarre Casgrain Wells Lawyer for the D.Y.P. M e Sarah Plamondon Lawyer for the children M e Cassandra Neptune Legal Aid Lawyer for the mother M e Michel Salomon Lawyer for the father of X Date of hearing: December 19, 2012