2014 QCCQ 7494, 2014 QCCQ 7494

Protection de la jeunesse — 14404 2014 QCCQ 7494 JT1052 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT [...] TOWN […] Youth Division No: 550-41-001067-121 550-41-001068-129 550-41-001069-127 550-41-001070-125 DATE: February 25 th , 2014 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE LOUISE TURPIN, J.C.Q. ______________________________________________________________________ In the case of the children : X Born on […], 2000 Y Born on […], 1998 Z Born on […], 2011 A Born on […], 2002 ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized of a petition under

section 38 of the Youth Protection Act, introduced by the Director of Youth Protection, for the purposes of declaring that the security and the development of the children are considered to be in danger for the following reasons: For X, Z and A : - The children runs a serious risk of being subjected to gestures of a sexual nature by her stepfather, with or without physical contact, and the child's parents fail to take the necessary steps to put an end to the situation.

For Y : - The child is subjected to gestures of a sexual nature by her father, with or without physical contact, and the child's parents fail to take the necessary steps to put an end to the situation; - The child run a serious risk of becoming the victim of bodily injury or being subjected to unreasonable methods of upbringing by her father, and the child's parents fail to take the necessary steps to put an end to the situation; - There is a serious risk that a child's father is not providing for the child's basic needs. [ 2 ] Following her case study of Y's allegation, Ms. [Social worker 1] reached the conclusion that her version was reliable and judicial measures had to be formalized. [ 3 ] This conclusion reached, logic warrants that Z, A and Y situation is also compromised, all three girls being at risk of a sexual

abuse. [ 4 ] Hence, two sets of opinions. [ 5 ] Mr. B, Ms. C and the children's lawyer are convinced of the value of Y's purport. [ 6 ] On the other hand, there is Mr. D disclaim and submission that he did not abuse his daughter. [ 7 ] His take, is that she is seeking for attention. [ 8 ] At issue: has the Youth Protection Director legally established the merit of her case? Is there preponderance evidence showing that Y was sexually abused by her father when she was eight years old? [ 9 ] Unfortunality, this hearing turned into an ugly custody battle in regards of A. [ 10 ] As a matter of a fact, Mr.

B is convinced that Mr. D is a sexual predator, he doesn’t want A to have anything to do with him and went at length to make is point. [ 11 ] There is more, he is convinced that A's mother and Mr. D are alcoholics and that they don’t have the parental skills to take good care of all these kids. [ 12 ] It became very clear, the further that we proceeded with this audition, that we were in the midst of an acrid and vicious parental conflict. [ 13 ] In this context, most of evidence presented by Mr.

B was with the end goal of getting full custody of A. [ 14 ] Let's state, this was not the issue, this court has to address. [ 15 ] This being said, the Court emphasises that it's legal duty is to examine the "relevant" evidence that is useful for the adjudication of this issue.

THE FACTS [ 16 ] Y is a 14 years old teenager who is presently living at her mother's since divulging her secret. [ 17 ] Her secret : her dad "raped her" and "did a lot of bad thing, torture almost". [ 18 ] She was then 8 years old and she share a room with her sister X when her father came into her room. [ 19 ] It was early autumn, at night while she was sleeping. [ 20 ] She remembers her father approaching her bed, lying next to her, undressing her and penetrating her from behind. Specifying "I did not feel anything". [ 21 ] She sort of realizes that something was wrong the next day.

She had difficulty sitting at her desk at school "adding" it hurted, I couldn't sit down. [ 22 ] She detects blood in her underpants, once at home, after school. [ 23 ] Ms. C testified to that effect. [ 24 ] Y never mentioned having been sexually abused the prior night. [ 25 ] Things aren't easy at home there is lot's of difficulty because of X's cancer. [ 26 ] It's injust, since she has to do must of all the household chores. [ 27 ] Ms.

E and her father consume quite a lot of alcohol and often get inebriated. [ 28 ] When intoxicated, he father wants to cuddle her and she doesn't like it. [ 29 ] School has it's load of hardship and she would more than welcome home schooling. [ 30 ] Why didn't she come forward before with the abuse? [ 31 ] She didn't want her parents to separate and she now wants to protect her younger sister. [ 32 ] For X, there is no alcohol consumption at her father is and she has not been sexually abused. [ 33 ] The relation between Y and her father is hypertense and high-strung. [ 34 ] As for A, she is clear, she prefers to live with her father stating "I have a normal life at my father's" [ 35 ] She is also very clear when it comes to her mother's drinking habits, "she drinks every day therefore she is an alcoholic".

As for Mr. Mc D he is inebriated very often.

[36] Ms. [Social worker 1] noticed that there is a lot of animosity between all parties and she is asked to deal with an importantconflict that is often exacerbated by Mr. B's attitude. [37] However, she can assert that all these parents have "the knowledge of their children's need and development". [38] As mentioned earlier, Mr. B truly believes that Mr. D is vile and on more than one occasion made assertion that he hadwitnesses to corroborate this fact. [39] On that aspect, the only witness that testified to some sort of unacceptable behaviour is Ms.

F. [40] She lived with the E -D for 7 months and witnessed only once, Mr. D naked in the bathroom. She saw a pornographic movie ofthe couple and Ms. E's vibrator. [41] Her testimony must be reckon when explaining the drinking habit of Ms. E and Mr. D. [42] In short, lost of drinking, violence, hitting and fighting. [43] It is fair to say that Mr. B has a mediocre opinion of Ms. E and Mr. D. [44] Let's recall part of his testimony when he affirms that Ms.

E "doesn't have any brains", "she has a drinking problem" and "she isdominated by a drunk and a violent man". [45] Too often he was intimidated, insulted and "kick around by" Mr. D. Obviously this interrelationship is harmful and damagingespecially for the kids. [46] It's also fair to state that Mr. D's testimony was somewhat indelible especially in regards of his account with the sexual abuse. [47] First saying that it did not happen and on the other hand, telling that once when sleepwalking he ended up in Y's bed. [48] Also finally in cross-examination mentioning that if it happened "I could have been drunk".

THE LAW [49] In a decision rendered the second of October 2008, the Supreme Court clearly stated that a civil standard is applicable in suchmatters. [50] More specifically in F.H. c. McDougall, 2008 CSC 53 the Courts indicates: «[30] However, a "shifting standard" of probability has flot been universally accepted. In Continental Insurance Co. y. Dalton CartageCo., (SCC), 1682 Cani..,II 13 (SCC), [1982] 1 S.C.R. 164, Laskin C.J. rejected a "shifting standard". Rather, to takeaccount of the seriousness of the allegation, he was of the view that a trial judge should scrutinize the evidence with "greater care".

Atpp. 169-71 he stated: Where there is an allegation of conduct that is morally blameworthy or that could have a criminal or penal aspect and the allegation ismade in civil litigation, the relevant burden of proof remains proof on a balance of probabilities... There is necessarily a matter of judgment involved in weighing evidence that goes to the burden of proof, and a trial judge is justified inscrutinizing evidence with greater care if there are serious allegations to be established by the proof that is offered.

I do not regard such an approach (the Bater approach) as a departure from a standard of proof based on a balance of probabilities noras supporting a shifting standard. The question in ail civil cases is what evidence with what weight that is accorded to it will move thecourt to conclude that proof on a balance of probabilities has been established.[31] In Ontario Professional Discipline cases, thebalance of probabilities requires that proof be "clear and convincing and based upon cogent evidence" (see Heath y. College ofPhysicians & Surgeons (Ontario) 1997 CanLIl 14524 (ON SCDC), (1997), (ON SCDC), 6 Admin.

L.R. (3d) 304(Ont. Ct. (Gen. Div.)), at para. 53).» [51] This being established we can reasonably assert that in the contexte of the Youth Protection Act, the Court must appreciate theevidence in function of balance of probabilities. [52] These principals can be found in the Superior Court of Quebec in (QC CS), REJB 2001-27083, 500-24-000081-009,with this warning: «Pour résumer, le Tribunal est d'avis que dans le cas de compromission établie à l'article 38 de la loi, c'est la loi de la prépondérance depreuve qui s'applique. Toutefois, comme déclarait l'Honorable Bora Laskin à l'arrêt Continental Insurance c.

Dalton Cartage Co., dansle cas d'une allégation grave d'une conduite moralement répréhensible et dont les conséquences sont sérieuses, un juge de premièreinstance sera fondé d'analyser très sérieusement la preuve qui lui est soumise. Cette analyse très soignée n'impose pas un fardeau pluslourd au DPJ mais elle nécessite du juge des faits une attention particulière à la preuve qui est devant lui.

Des allégations sérieuses auDirecteur de la protection de la jeunesse ne lui imposent pas un fardeau plus lourd, mais elles nécessitent du juge de la Chambre de lajeunesse une attention particulière à la preuve qui est devant lui. A la fin de l'enquête devant la Chambre de la jeunesse, le juge peutconclure à rejeter ou à accueillir la demande de la déclaration de compromission. » ANALYSIS [53] We are downright in the presence of contradictory evidence.

[ 54 ] The Court must in analysing this evidence scrutinize the witness credibility to decide if there preponderance evidence that Y was sexually abused by her father. [ 55 ] For this exercise the Court will only comment Y's and Mr. D version. [ 56 ] Let's just say that Mr. D's testimony failed to impress and persuade of the correctness of his account. In short, this testimony is baffling and defeats it's purpose. [ 57 ] On the other hand, Y's version is somewhat "trifling".

Her testimony lacks conviction, is crammed with unsettling details and was delivered with an ambivalent attitude. [ 58 ] The circumstances surrounding the unveiling are debatable. [ 59 ] Her description of the sexual assault are bewildering, more specifically: - She was in the same room with her sister present when she was assaulted; - There was penetration and "didn’t feel a thing"; - She only discovered blood in her underpants the following day; - The terms she used in Court to describe her ordeal "rape, torture and living hell" are surprising. [ 60 ] In hindsight, this whole evidence (father-daughter) is not sufficiently clear, tangible and obvious to conclude that Y's situation is compromised for the given motives set in the petition. [ 61 ] This conclusion reached the procedures in regards of X, Z and A must also be dismissed. __________________________________ LOUISE TURPIN, J.C.Q .

M e Sylvain Meunier Attorney of the D.Y.P. M e Marie-Christine Fournier Attorney of the children M e Manon Guitard Attorney of the mother, Mrs C M e Michel Lewis Attorney of the mother, Ms E and the father Mr. D Date of hearing: October 15 th , 2013 /hb