2017 QCCQ 7047, 2017 QCCQ 7047

Protection de la jeunesse — 173258 2017 QCCQ 7047 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] LOCALITY OF [...] « Youth Court Division » N°: 525-41-0 30616-155 Date: May 25, 2017 PRESIDED BY: THE HONOURABLE TAYA DI PIETRO, Q.C.J. In the case of: X Born on [...], 2002 [SOCIAL WORKER 1] , duly authorized by the Director of Youth Protection A Applicant -and- A , the mother -and- B , the father The parents JUDGMENT

Section 38 of the Youth Protection Act (L.R.Q., c. P-34.1 ) 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 ] JD2620 The Director of Youth Protection A filed a Motion to declare that the security and development of a child is in danger in the case of X , a fourteen year-old adolescent, based on a serious risk of being subjected to gestures of a sexual nature by her father. [ 2 ] The facts alleged in support of the motion dated December 23, 2015 are as follows: 3.1. the child runs a serious risk of being subjected to gestures of a sexual nature by the child’s father and the child’s parents fail to take the necessary to put an end to the situation, more particularly but not restrictively in that:

a) the father is the landlord of the building, where the family resides;

b) on December 11, 2015, the father knocked at the door of another apartment in the building and an eleven year old girl answered to the door;

c) the father requested that the young girl open the door so that he could verify the renovations that he had done the week prior;

d) the young girl refused to have the father enter her apartment, as her mother was absent;

e) consequently, the father forced himself into the apartment and sexually assaulted the young girl, by grabbing her hips and putting his hands over and under her shirt to touch her breasts;

f) the young girl ran away from the apartment, she went to a convenient store to contact her mother and the latter contacted the police;

g) on December 11, 2015, the father was interviewed by the police, he denied the allegations and reported that he was at the Mosque with the mother during the time that this event would have taken place;

h) however, the mother reported to the police that she was at work during the time that the event would have taken place;

i) on December 11, 2015, the father was arrested for sexual assault and breaking and entering and he was detained;

j) on December 13, 2015, the father was released under conditions, namely to not be in contact with the victim and abstain from being within a radius of 100 meters of her domicile;

k) the father denies that he sexually abused the alleged victim;

l) on December 22, 2015, the father reported that he wanted to return to his home (reproduced with errors and/or omissions). [ 3 ] In light of the foregoing and given developments in the family’s situation since the date of the motion, the Director recommends that the adolescent be entrusted to her mother, on the condition that she never be left alone in the presence of her father, with aid, counsel and assistance, as well as additional corrective measures, for a period of six months. [ 4 ] The mother, assisted by Me Thomas, ignored most of the allegations in support of the motion.

She does not believe that the alleged incidents took place nor that her husband poses any kind of threat to their daughter. She nonetheless agreed to collaborate fully with the Director of Youth Protection at every stage of the proceedings. [ 5 ] The father, assisted by Me Shapiro Knight, also denied any wrongdoing or any risk to his daughter. [ 6 ] The adolescent, assisted by Me Leclerc, ignored the facts alleged in support of the motion.

She denied any fear for her safety or integrity and asked for her father’s return to the family home as soon as possible. [ 7 ] The Director filed Exhibits D-1 to D-6 as evidence: D-1: Copy of the adolescent’s birth certificate; D-2: Police Report bearing event no.[...] (filed under

article 292 C.p.c.); D-3: Undertaking dated December 16, 2015; D-4: Court Report, prepared by [Social Worker 1], dated March 11, 2016; D-5: Addendum, prepared by [Social Worker 1], dated August 11, 2016; D-6: Addendum II, prepared by [Social Worker 1], dated November 8, 2016. [ 8 ] The father filed Exhibits P-1 to P-4: P-1: Complementary Police Report event no. [...] pertinent to the credibility of the father; P-2: Canadian Tire bill dated December 11, 2015; P-3: Bank of Montreal receipt dated December 2015; P-4: Photos of the family’s apartment building. [ 9 ] In

summary, the Director alleges that the adolescent runs a serious risk of being subjected to gestures of a sexual nature on behalf of her father based on his alleged assault on an eleven year-old female tenant living in the family’s apartment building. [ 10 ] The parents and the adolescent deny that the incidents took place as alleged. Subsidiarily, they argue that, even if the assault did take place, it does not establish the existence of a serious risk of abuse to the adolescent. [ 11 ] The Director called the alleged assault victim (the “child”) as well as her mother to testify regarding the assault.

The adolescent’s parents also testified about the events that occurred on that day and the Court was presented with contradictory accounts of the events that allegedly took place on December 11, 2015. [ 12 ] According to the child’s testimony, she was at home alone reading a book, her mother having left to bring her younger siblings to daycare, when the adolescent’s father knocked on the door. The child claims that he simply “barged in”, pushed the door and went to the kitchen while she went back to sit down in the living room.

He then came to the living room, grabbed her by the hips, lifted her sweatshirt and put his hand on her breasts. She tried to free herself and he grabbed her by the wrist and told her it was ok. [ 13 ] She panicked, fled the building and ran to the nearest convenience store from where she called her mother. She was crying, and explained what had happened to her mother who came to pick her up and brought her to a friend’s home. [ 14 ] The police were called and the child reported the assault.

She never saw the adolescent’s father again and her family moved out of the apartment shortly thereafter. [ 15 ] The child’s mother confirmed the circumstances surrounding the assault. She explained that the child was at home alone on a school day since her teachers were on strike.

The child’s older sister was at a friend’s house and the younger children were taken to daycare before the mother went to an appointment for an ultrasound. [ 16 ] When she finished her appointment, she noticed a number of missed calls on her phone. [ 17 ] Her phone rang, she answered immediately and it was her daughter calling from the convenience store. [ 18 ] She picked up her daughter. When the child got into the car, she started crying and explained what had happened. [ 19 ] The mother went to the landlords’ apartment but there was no answer.

She realized that the missed calls on her cell phone were coming from the landlord and called his number.

[ 20 ] The mother stated that he told her it was her daughter who had called her from his phone. He added that he could not speak because he was praying at the mosque with his wife. It must have been around 1:30 pm because she picked up her daughter between 1:13 and 1:20 pm. [ 21 ] The mother brought her daughter to her friend’s home and received a call from the landlord’s wife at around 2:30 pm.

She told her that it was her daughter who came to see the landlord asking to use the phone to talk to her mother. [ 22 ] The adolescent’s father’s testimony provides an entirely different version of events. [ 23 ] He explained that he has had several long-term tenants for many years and has never had any problem with any of them. He added that all the repairs in the child’s apartment had been completed before and soon after her family moved in at the beginning of November 2015.

He therefore had no reason to go to their apartment on December 11, 2015. [ 24 ] He described his morning and the errands he ran between 10:45 am when he left his apartment and returned home shortly before 1:00 pm. He then only had about ten minutes to get to the mosque on time for prayers at around 1:00 pm. [ 25 ] While he was preparing, the child rang his doorbell and asked to use the phone to call her mother. She tried calling but there was no response. The landlord offered to help and tried dialing again but still, there was no response.

The child, unable to reach her mother, left and the landlord finished getting ready and then went to the mosque. He arrived at the mosque a couple of minutes before prayers began at 1:15 pm. [ 26 ] At 1:25 pm he received a call at the mosque from the child’s mother. He explained that her daughter came to his residence asking to use the phone to call her mother. [ 27 ] He picked up his wife after the prayers and the couple returned home at around 2:30 pm.

He explained to his wife that the child had asked to use the phone to call her mother for an emergency and his wife then called the child’s mother to enquire if everything was ok. [ 28 ] The adolescent’s father had lunch and went to work and found out that the police were looking for him. [ 29 ] He adamantly denies having ever gone to the child’s apartment or having forced his way in.

The repairs were completed and he had no reason to inquire about or inspect them. [ 30 ] The father was also prepared to have several witnesses confirm that he was at the mosque between 1:15 and 2:00 pm on December 11, 2015 which was admitted by all the parties. [ 31 ] The child appeared to be testifying honestly and sincerely. There were no obvious indications that she was not being truthful. [ 32 ] However, a number of questions remain unanswered. It is not clear why the child’s mother would have called the landlord upon hearing of her child’s assault.

She herself said that she did not know what she would say or do when she allegedly first went to knock at his apartment to speak to him. In addition, according to the mother’s own testimony, she was spontaneously told by the landlord that her daughter had wanted to reach her. In order to say that, he would have had to have known that the child had been left at home alone without a phone. Had he gone to the child’s apartment as alleged, he would have had no way of knowing that she did not have access to a cell phone to call her mother.

The fact that he knew that she was unable to phone her mother and told the mother so immediately and spontaneously when the mother called him is more consistent with his account of events to the effect that it was the child who came to his door asking to use his phone. [ 33 ] In addition, it seems inherently implausible to think that he would assault a child and then immediately try to repeatedly call her mother. [ 34 ] There are, however, some inconsistencies in the father’s account regarding, for instance, his wife’s presence at the mosque.

He apparently stated that he was praying with his wife at the mosque but then denied that she was there and stated that she was at work when he was at the mosque. [ 35 ] These are minor inconsistencies on peripheral issues that may plausibly be attributed to the fact that he was questioned without an interpreter. They are not significant enough to entirely discredit his testimony. [ 36 ] Consequently, the Court cannot conclude that the child’s account of events is more trustworthy or credible than the father’s.

As a result, the evidence does not establish on a balance of probabilities that the father committed gestures of an inappropriate nature towards the child. [ 37 ] Moreover, the adolescent also testified. She was thoughtful, articulate and appeared completely sincere. She described a very close, loving relationship with her father and categorically denied having ever witnessed any inappropriate behavior on his part, either towards her or anyone else.

She is astonished by the accusations and believes they are false. [ 38 ] She described her father as a respectful, reliable and devoted family man for whom she obviously feels great love and affection. [ 39 ] There was nothing in her testimony to suggest that it was contrived or that she felt any kind of pressure to hide the truth to protect her father or her family. [ 40 ] The evidence also clearly shows that she is a well-adjusted, successful teenager who excels academically. There is no evidence to suggest any signs of conflict or trauma.

On the contrary, she appears to be thriving in a close, loving and supportive family. [ 41 ] The adolescent’s eldest brother also testified and confirmed his sister’s account of a happy, fulfilling family life. Again, nothing seemed forced or disingenuous about his testimony. He expressed great love and respect for his father and their loving, close-knit family.

[42] The adolescent’s mother’s testimony was also consistent with her children’s account of their family life.

There is nothing in theevidence to suggest that the father is a controlling, impulsive or aggressive person towards his family or otherwise. [43] Finally, the adolescent is 14 years-old and there is no indication that any inappropriate gestures of a sexual nature were everdirected at her, under any circumstances, by her father. [44] Even if inappropriate gestures did take place towards the child, they would constitute an isolated incident involving a child twoyears younger than the adolescent who was virtually a complete stranger to the father when the events would have taken place. [45] Such an incident, however blameworthy, would be insufficient to establish the existence of a serious risk to the adolescent, inlight of the evidence in its entirety. [46] As the Courts have repeatedly stated, no automatic inferences may be drawn and the existence of a serious risk must becarefully assessed in light of the particular circumstances of each child: [31] Comme le soulignait avec beaucoup de justesse le juge Mario Gervais, (citant en

partie le juge Michel Dubois) dans Protectionde la jeunesse-08223 2008 QCCQ 6834 : «Retenons toutefois que le législateur précise que ce n’est pas en présence de n’importe quel risque que l’on pourra conclure àl’existence d’abus physiques. Il prend soin de qualifier la gravité du risque en le balisant: il faut la preuve d’un «risque sérieux»…Lesdictionnaires, les plus généralement reconnus attribuent au terme sérieux le sens de grave, important, inquiétant.

Force est de constaterque le législateur a ainsi établi une norme exigeante quant au niveau de risque requis pour justifier une intervention de l’état lors d’unesituation appréhendée d’abus sexuels ou d’abus physiques au sens de l’article 38 de la Loi.» [32] Il appartient au Directeur de la protection de la jeunesse d’établir, selon la norme de prépondérance de preuve que ce risquesérieux existe, qu’il est plus probable qu’improbable.

Il faudra donc examiner chaque cas d’espère pour évaluer si l’on peut arriver àune conclusion qui doit dépasser le seuil de l’hypothèse, même vraisemblable, sans quoi, il faudra conclure que la preuve n’a pas atteintle niveau de la balance des probabilités comme c’est la norme en cette matière. Soyons clairs, le Tribunal estime qu’il n’est pas possiblede recourir à l’automatisme aussitôt qu’une déclaration de compromission a été prononcée à l’égard d’un autre enfant de la famille etqu’il faut examiner chaque cas au mérite.

Agir autrement équivaudrait à créer une présomption que le législateur lui-même n’a pasprévue.[1] THEREFORE, THE COURT: [47] DISMISSES the motion. TAYA DI PIETRO, Q.C.J. Me Myriam De Blois Attorney for the Director of Youth Protection Me Michel Leclerc Attorney for the adolescent Me Jean-Hervé Thomas Attorney for the mother Me Judith Ann Shapiro Knight Attorney for the father TD/vl