2011 QCCQ 5302, 2011 QCCQ 5302

Protection de la jeunesse — 111245 2011 QCCQ 5302 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC [...] Youth Court Division N°: 525-41-023829-104 Date: March 8, 2011 PRESIDED BY: THE HONOURABLE TAYA DI PIETRO, Q.C.J. In the case of: X Born on [...], 2010 [SOCIAL WORKER 1 ] , duly authorized by the Director of Youth Protection of A Youth and Family Centres Applicant -and- A , the mother JD2620 -and- B , the father The parents -and- LA COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE Mise-en-cause JUDGMENT

Section 38 of the Youth Protection Act (L.R.Q., C.P-34.1) [ 1 ] The Court hereby confirms and provides reasons for a decision rendered verbally at the hearing of March 8, 2011, in accordance with the provisions of

section 90 of the Youth Protection Act . [ 2 ] The Director of Youth Protection of A Youth and Family Centres filed a motion to declare that the security and development of a child is in danger in the case of X , a one year-old child, based on psychological ill-treatment, more specifically as a result of his exposure to conjugal violence. [ 3 ] The facts alleged in support of the motion are as follows: 3.1 the child is seriously and repeatedly subjected to behaviour on the part of his parents that could cause him harm and the child's parents fail to take the necessary steps to put an end to the situation, more particularly but not restrictively in that:

a) there are incidents of conjugal violence between the parents to which the child is exposed;

b) the parents have admitted that they argue and have had disagreements in the presence of the child;

c) the father verbalized that the mother throws objects in the home when tempered;

d) the father has expressed that, on one (1) occasion, the mother threatened him with a knife;

e) on May 16th, 2010, during an argument, the father pushed the mother to the ground whereby the mother sustained a fractured arm;

f) on that date, the police were called and subsequently arrested the father;

g) the father currently has conditions to abide by, namely not to communicate with the mother;

h) despite the prohibition of contact, the parents continue to have contact and remain in a relationship;

i) the parents minimize the conjugal violence and the negative impact it has on the child; 3.2 the mother is pregnant again and wishes to withdraw the charges put forth against the father; 3.3 more recently, the parents are denying any act of violence and refuse to receive services; 3.4 concerns exist with regards to the parents's conjugal violence given the child's tender age and vulnerability (reproduced with errors and/or omissions). [ 4 ] In light of the foregoing, the Director recommends that the child be entrusted to care of his mother, at the exclusion of the father, with aid, counsel and assistance, as well as additional corrective measures, for a period of eight months. [ 5 ] The mother, who was assisted by Me Gingras, admitted all the facts alleged in support of the motion and consented to the proposed measures. [ 6 ] The child's father, although duly served, failed to appear in Court. [ 7 ] Me Moschin, acting on behalf of the child, made no admissions but approved of the measures proposed by the Director of Youth Protection. [ 8 ] The Director filed exhibits D-1 to D-5 as evidence: D-1: Copy of the child's birth certificate; D-2: Excerpt from the medical file of the mother, HOSPITAL A (filed under

section 294.1 C.p.c.); D-3: Police Report bearing event number 08-100516-016 (filed under

section 294.1 C.p.c.); D-4: Court Report by [Social Worker 2] and [Social Worker 3], dated November 9, 2010; D-5: Addendum #1 by [Social Worker 1] and [Social Worker 4], dated February 25, 2011. [ 9 ] In

summary, the evidence establishes the facts alleged in support of the motion. [ 10 ] The child's young mother is twenty years old and expecting her second child in April, only thirteen months after the birth of her first child. It appears that she will be raising her children alone, there being no plans to reconcile with the children's father. [ 11 ] Ms. C, the father's mother, was present to testify at the hearing. She confirmed that her son was aware of the hearing, had received a copy of the proceedings, but failed to appear. She describes her twenty-one-year-old son's attitude as "easy come, easy go".

She acknowledges that he has issues controlling his anger. Although she is not afraid of him, he has punched walls when angry and has had behavioural problems since he was involved in a car accident at the age of nine. Although, she wishes he would take active steps to become involved in his young child's life, he does not appear motivated to do so. He has a new girlfriend and Ms. B has little influence over him. She generally reaches him through various friends in the community. [ 12 ] However, she herself is attached to her grandchild and would very much want to be a part of his life.

She is supportive of the child's mother, whom she has known for many years, and claims to be impressed with her mothering skills. [ 13 ] As for the child's mother, her attitude is very ambivalent. She admits that the child's father pushed her causing her to fracture her arm, as alleged, and also admits denying any acts of violence. [ 14 ] At the hearing she recanted the following declaration she made to the police on May 16, 2010: I told B that his son mite not be his so B told me that because what I said to him has coming to my house to hit me.

I was on the phone with my mom when he appeared at the back door and he came up to my face slapped me in my face and said "So my son not mine?" took the telephone out of my hand smashed it on the floor then came at me again pushed me up against the wall his yelling in my face. I walked out of the kitchen to get away from him he followed me into one of the bedrooms, grabbed a chair from in the room shot it at me then I fell in between the chair legs, as I was falling he grabbed my rist and most of pulled or bend my arm that’s when I felt pain in my rist.

Then he left the bedroom I got up I told him that he hurt my arm but he thought I was just kidding then he told me to pick up his clothes that I put in the hall way and he'll be back to get his clothes. Then that's when I called the police it's not the first time he hit me I just never called the police on him, we dated for 4 years (reproduced with errors and/or omissions). [1] [ 15 ] In fact, the mother claimed that everything she had written "was a lie".

She said she was very angry and upset and wanted him to get into trouble. [ 16 ] However, the mother was unable to provide a clear and consistent account of what actually had occurred and of how she sustained her injuries.

Her original account would therefore appear to be more credible than her subsequent denial. [ 17 ] The couple's second child, due in April, was conceived in July 2010, shortly after the above police report, while the couple were prohibited from having any contact with one another. [ 18 ] In any event, the evidence clearly establishes a history of conjugal violence between the couple and a degree of animosity and

hostility between the parents that warrant protective measures. [ 19 ] Although the mother is reluctant to [Social Worker 4] services, she could certainly benefit from gaining insight into her past behaviour and avoiding placing her son and her newborn at risk, especially given the father's presence and close proximity in the community. [ 20 ] Consequently, given the admissions and consent expressed by the mother, the Court is satisfied that the motion is well- founded and that the measures are in the child's interest. [ 21 ] THEREFORE, THE COURT: [ 22 ] GRANTS the motion; [ 23 ] DECLARES that the security and the development of the child, X , are compromised under

section 38 (

c) of the Youth Protection Act ; AS FOR THE MEASURES, THE COURT DEEMS IT TO BE IN THE CHILD'S INTEREST TO ORDER THE FOLLOWING MEASURES: [ 24 ] ORDERS that the child be entrusted to the care of his mother, at the exclusion of the father; [ 25 ] TAKES JUDICIAL NOTICE that the Director of Youth Protection will favour and encourage contacts between the child and his grandmother; [ 26 ] ORDERS that the frequency and modality of contacts between the child and his father be determined by the Director of Youth Protection, including supervision if deemed necessary; [ 27 ] TAKES JUDICIAL NOTICE of the child's paternal grandmother's, Ms.

C, commitment to play an active, positive role in her grandchild's life; [ 28 ] ORDERS that both parents ensure that the child is not exposed to any form of verbal or physical violence; [ 29 ] STRONGLY RECOMMENDS that the mother reconsider counselling to address issues relating to domestic violence; [ 30 ] ORDERS that the parents take an active

part in the application of the measures, namely: • Collaborate with the social follow-up; • Meet with the Youth Protection Delegate upon request; [ 31 ] STRONGLY RECOMMENDS that both parents undergo an assessment regarding conjugal violence and follow the recommendations; [ 32 ] AUTHORIZES the Director of Youth Protection to obtain and share information with service providers working with the family; [ 33 ] ORDERS that the family continue to benefit from the support of an educator for as long as necessary; [ 34 ] ORDERS that aid, counsel and assistance be provided to the child and his family; [ 35 ] ENTRUSTS the situation of the child, X , to the Director of Youth Protection of A Youth and Family Centres, who shall then [Social Worker 4] that the measures are carried out; [ 36 ] THE WHOLE for a period of eight months.

TAYA DI PIETRO, Q.C.J. Me Marie-Josée PAIEMENT / AJ4454 Attorney for the Director of Youth Protection Me Maria MOSCHIN / AM0DJ8 Attorney for the child Me Lise GINGRAS / AQ7054 Attorney for the mother

Hearing date: March 8, 2011 . TD/md