2019 QCCQ 20007, 2019 QCCQ 20007

Protection de la jeunesse — 198265 2019 QCCQ 20007 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT […] TOWN […] Youth Division No: 140-41-000599-199 DATE: October 22, 2019 ______________________________________________________________________ BY THE HONOURABLE JANICK POIRIER, J.C.Q. ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION Applicant -and- X born on […], 2010 Child -and- A -and- B Parents/Respondents ______________________________________________________________________ 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.). [ 1 ] The parents have shared custody of their children, namely X who is 8 years old and Y who is 3 years old. The parents’ relationship remains highly conflictual. The children’s situation is reported to the director of youth protection (DYP) on a couple of occasions. [ 2 ] The DYP presents an application for protection, stating that both children are subjected to psychological ill-treatment stemming from the exposure to parental conflict.

The DYP also alleges that X is submitted to neglect in regard to health and that Y is a victim of physical abuse from her father. According to the DYP, the father would refuse to cooperate, so X receive health and social services he requires, and he would slap Y on the bum. [ 3 ] All parties agree that children’s exposure to parental conflict put their security and development in danger.

However, the father denies any situation or physical abuse or neglect. [ 4 ] The measures that the DYP recommends, notably entrusting both children to their parents in joint custody and applying protective measures until the end of next summer, are not in dispute. [ 5 ] The court has to answer the following questions: Was Y the victim of physical abuse?

Does X suffer from neglect? [ 6 ] Prior to assessing the questions in dispute, it is appropriate to summarize the evidence supporting the conclusion that both children are submitted to psychological ill-treatment. [ 7 ] The parents put a final end to their relationship almost three years ago. Following the separation, they expose the children to important fights and disagreements. [ 8 ] That situation has an impact on both children. However, it is more noticeable in regard to X, who is older. [ 9 ] X has to cope with a loyalty conflict.

When the social worker meets with him, she is faced with a nervous child, who is reluctant to talk about his family, either positively or negatively. He shows anxiety. When discussing about his family situation, X thinks before he talks and his answers are calculated. He obviously tries to protect his parents. [ 10 ] X is aware of the fact that his parents do not talk to each other. He most likely adjusts what he tells to each of them.

[ 11 ] Both parents admit that X is anxious and stressed out. [ 12 ] The social worker and the parents also witness that X can lie at times. For instance, he has a supervised visit with his father, he enjoys the contact, everything goes well but nevertheless he tells the social worker afterwards that it was bad and his father yelled, which is not true. [ 13 ] Therefore, the exposure to parental conflict is psychological ill-treatment for X.

Even though the impact of that conflict is not as visible on Y yet, the court draws the same conclusion. [ 14 ] The court will now assess the evidence in relation to the questions in dispute. [ 15 ] Is Y a victim of physical abuse? [ 16 ] The allegations concerning unreasonable methods of upbringing by the father stem from statements provided by both children, mostly X. [ 17 ] The first statement occurs while the mother is at home with both children. She talks to Y about potty training and X replies that their father slaps her bum when she has an accident.

He says that he cannot see it but he hears the father slapping and Y crying. [ 18 ] X gives the same version to the social worker. He is very emotional and tells her that he does not want his father to get in trouble. He also says that his father yells and it scares him. [ 19 ] The social worker addresses the topic with Y. It is harder to get info, but the child ends up saying that her father slaps her bum when she wets her diaper. [ 20 ] The father denies the use of force the children. He says that he hit his son once in the past and felt bad about it for days. He states that he may talk loud but does not yell.

He adds that he sometimes raises his voice and X listens better. [ 21 ] In cross-examination, we learn that the father lied previously about his drug use. The father admits it, saying he did so because he feared losing his children. [ 22 ] The court cannot conclude, on the balance of probabilities, to a situation of physical abuse. [ 23 ] We cannot rely on X’s statement. First, X does not see any incident of violence, he says he hears something, from the other room. It would be hazardous to take for granted that what he hears is the father slapping Y on the bum. Moreover, both parents admit that X lies sometimes.

The social worker also witnesses that X can distort reality, concerning supervised contacts for instance. [ 24 ] There is also a problem with Y’s version of facts. She provides very little details to the social worker, which, of course, is not surprising considering her young age. The court must also consider that Y is present when X discloses the situation at first, to their mother. Her narrative can be tainted by her brother’s statement. [ 25 ] The father appears sincere when he testifies.

The court cannot put aside his testimony. [ 26 ] It is possible that Y is submitted to physical abuse, but a possibility is not enough to draw that conclusion. The evidence is not preponderant. [ 27 ] The other question in dispute is the following: Does X suffer from neglect? [ 28 ] The DYP pleads that the father fails to give X the care required for his health. [ 29 ] The evidence supporting that allegation results from two specific situations. [ 30 ] Around the end of last year, the CLSC is to work with X and the parents in regard to the conflict and its impact on the children.

However, the father does not return several calls from the social worker and therefore he does not get involved in the follow-up. The social worker is nevertheless able to meet with the child and the mother. [ 31 ] The other situation takes place in April. The children need prescribed medication, and the insurance is an issue. The father can benefit from an insurance plan through his job, while he did not, at the time, undertake steps to get it.

He explains at the hearing that he was not aware, then, that the mother did not have an insurance for the children. [ 32 ] Those two isolated events are not sufficient to establish neglect concerning health. The court rather concludes that it demonstrates the difficulties to obtain the father’s cooperation. [ 33 ] In conclusion, the security or development of both children is in danger because they are subjected to psychological ill-treatment.

The conflict opposing the parents prevents the children’s healthy development. [ 34 ] The evidence also leads the court to conclude that, even though both parents play a role in the situation, the father’s attitude has a significant and negative impact on the children, mostly X. Fortunately, the father commits himself to cooperate with professionals who will work with the family.

The mother has done so all through the DYP’s interventions. [ 35 ] All parties agree to the protective measures that the DYP recommends. [ 36 ] In the circumstances and considering the whole evidence, it is appropriate to order those measures, in the best interest of the children.

FOR THESE REASONS, THE COURT: [ 37 ] GRANTS the application for protection; [ 38 ] DECLARES that the security and development of X are considered to be in danger according

section 38c) of the youth protection act ; [ 39 ] ORDERS that the child be entrusted to his parents according to a shared custody, alternately according to the

schedule 3 days/2 days – 2 days/3 days; [ 40 ] ORDERS that the parents report periodically to the DYP on the measures they apply in their own regard or in their child’s regard to put an end to the situation in which the security or development of the child is in danger; [ 41 ] TAKES NOTICE of their consent and RECOMMENDS that the parents participate to mediation meetings with the DYP; [ 42 ] ORDERS that the father do not expose the child to any form of violence; [ 43 ] PROHIBITS the parents from denigrating one another in the presence of the child; [ 44 ] RECOMMENDS that the father submit himself to random drug screening tests; [ 45 ] ORDERS that the child and the parents benefit from outpatient educator services as deemed necessary by the DYP; [ 46 ] ORDERS that the child receive specific health care and health services, especially a psychological follow-up; [ 47 ] ORDERS that the parents actively participate in the application of the measures ordered; [ 48 ] ORDERS that a person working in an organization or institution bring to child as well as the family, help, advice and support until August 30 th , 2020; [ 49 ] ENTRUSTS the situation of the child to the DYP of the Centre intégré de santé et de services sociaux A for the carrying out of the present measures; [ 50 ] ORDERS to individuals covered by this order to comply. __________________________________ JANICK POIRIER, J.C.Q.

Me Myriam Dufresne for the applicant Me Richard Jeannotte for the child Me Mylène Murray for the mother Mr B the father Date of hearing: September 17, 2019