2023 QCCQ 8539, 2023 QCCQ 8539

Protection de la jeunesse — 232764 2023 QCCQ 8539 COURT OF QUEBEC PROVINCE OF QUEBEC DISTRICT OF [...] LOCALITY OF [...] Youth Division N o . 614-41-000949-232 614-41-000899-221 614-41-000875-221 DATE : MARCH 16 th , 2023 PRESIDED BY THE HONOURABLE LUCIE GODIN, J.C.Q. IN THE SITUATION OF [1] : X Born on [...], 2022 Y Born on [...], 2021 Z Born on [...], 2019 Children

And [SOCIAL WORKER 1] , youth protection worker, duly authorized by the Director of Youth Protection of the A Health and Social Services A, working in Town A, Applicant And A B Parents . JUDGMENT

Article 38 - Youth Protection Act [ 1 ] At the request and with the consent of all parties, the Court proceeds to a common hearing into the situation of the children. [ 2 ] The Director of Youth Protection (Director) asks the Court to declare that security and development of Z and Y are endangered under sections: -38 ( b ) (1) ii. of the Youth Protection Act failing to give the children the care required for the children’s physical or mental health or not allowing the children to receive such care; -38 (

c) psychological ill-treatment for exposure to conjugal violence; -38 ( d ) (2) risk of sexual abuse. [ 3 ] In the situation of X , the Director asks the Court to declare that security and development of the child are endangered under sections 38 ( d ) (2) and 38 (

c) of the Youth Protection Act . [ 4 ] As for the measures, the Director asks the Court to order that the child X be entrusted to the mother at the exclusion of the father. [ 5 ] In the situation of Z and Y the Director asks the Court to order that they be entrusted to a foster home for a period of nine months. [ 6 ] In the situation of the three children, the Director asks the Court to order several assistance measures including aid, counselling and assistance for a period of one year. [ 7 ] On March 16 th , 2023, before the hearing and after discussion among the parties, the Director agreed to recommend that the two oldest children, Z and Y, be entrusted to a foster family for a shorter period: - Z to be entrusted to a foster family for a period of one month and to authorize his reintegration to the mother after one month at the exclusion of the father; Y to be entrusted to a foster family for a period of two months and to authorize her reintegration to the mother after two months at the exclusion of the father. [ 8 ] This should be understood until the completion of a therapy confirmed by a professional. [ 9 ] This measure was intended for the father to undertake a therapy to address his issues with drug and alcohol consumption. [ 10 ] The father claims to be sober since his youngest child was born, on [...], 2022.

The Director claims having no proof of this due to the lack of collaboration of the father. [ 11 ] The father does not intend to attend a treatment program for drugs and alcohol.

[ 12 ] The mother and the father contest the measures with regards to the exclusion of the father. Both parents acknowledge that security and development of Z and Y are endangered under

section 38 ( b ) (1) ii. [ 13 ] They both contest reasons for compromission under

section 38 (

c) and 38 (

d) of the Youth Protection Act . [ 14 ] The parents also contest that security and development of X are endangered under

section 38 (

c) of the Youth Protection Act. [ 15 ] The Director also asks the Court to order both parents to undergo a parental capacity assessment and a complete psychological assessment and follow all recommendations. Parents agree to undergo these assessments and to follow the recommandations.

COMPROMISSION [ 16 ] The evidence reveals the following facts. [ 17 ] Z is 3 years old, Y is 2 years old, and X is four months old. [ 18 ] At the time the Director received a report concerning the oldest children, Z and Y, they were living with their mother and father. [ 19 ] Three days after X was born, the Director received a report concerning the newborn. [ 20 ] The Director assessed the situation and asked the Court to declare that security and development X are endangered under

section 38 (

c) and 38 ( d ) (2) of the Youth Protection Act. Neglect to give the child the care required by his situation 38 ( b ) (1) ii . [ 21 ] Both parents admit that Z and Y missed most of their follow-up medical appointments. They acknowledge that Z and Y security and development are endangered under

section 38 ( b ) (1) ii. [ 22 ] The evidence reveals that the two children missed most of their follow-up medical appointments. The Court takes also into account the admission of the parents. Therefore, their security and development are endangered under

section 38 ( b ) (1) ii. Psychological ill-treatment 38 ( c ) [ 23 ] The Director alleges that on July 8 th , 2022, the situation of the children Z and Y was reported to the Director regarding conjugal violence. It was alleged by the applicant that the mother had to leave the house on July 8 th following a violent event with the father. She was living with friends as she was scared to go back home. [ 24 ] The children were under the care of their maternal great-aunt who is recognized as a foster home. [ 25 ] The mother was met on July 11 th by the Youth Protection worker.

She explained that she was not at home and left with a friend due to an argument with the father who had been drinking at the time and she wanted a break. [ 26 ] The mother’s sister offered to keep her son for a couple of nights. The mother left her son under her sister’s care. [ 27 ] The mother testified. She denies conjugal violence in the home and with regards to the argument between the father and herself on July 8 th , the children were not present. [ 28 ] The father testified and he also denies conjugal violence. He explained the incident occurred on July 8 th .

He went hunting and instead of coming back home, as agreed with the mother, he decided to stay where he was. He admits that he drank alcohol that night and for him this is what explains why he did not come back home.

He testified that he has been sober since the youngest child was born on November 18 th , 2022. [ 29 ] No other evidence was presented on this reason for compromission. [ 30 ] Even though a serious argument has occurred between the parents on July 8 th , 2022, the children were not present, and the Court did not receive any evidence that they were. [ 31 ] Given the whole evidence, the Court concludes that the applicant failed to prove by balance of probabilities the existence of psychological ill-treatment.

Serious risk of being subjected to gesture of sexual nature (38 ( d ) (2) [ 32 ] The mother has an older daughter from a previous relationship who lived with her and her partner, Mr. B, the children’s father in the present situation. [ 33 ] On January 11 th , 2023, the Court concluded that the security and development of the mother’s oldest daughter were being

endangered under

section 38 ( b ) (2) and 38 ( d ) (1) of the Youth Protection Act. [ 34 ] With regards to

section 38 ( d ) (1), here are the elements retained in the judgment [2] . [10] The child is 11 years old. She disclosed the sexual abuse at two different times. [11] First, on July 21st to her grandparents and the second time, on July 24th to her father. [12] On July 21st, she told the grandparents that she didn’t want to go back home and at another time, while finishing up supper there was only the paternal grandparents and the youth at the table, and she said again: “I’m not going back to Town A. It’s my stepdad. I don’t like. I wish my mom never met him.

My stepdad showed me his private part three times and he put a $5.00 bill there too.” She also disclosed to her grandparents that: “He touched me and I’m not going back.” She also told her mother about the stepfather (Mr.

B) touching her and the mother laughed at her. The child’s aunt was present. Shanna stated the stepfather is rough on the boys too grabbing their arm and wrist hard. Shanna stated that at night that’s: When I am terrified of my stepdad, and I don’t want to go back.

I want to stay here with you guys paternal grandparents and go to school here.” [13] On July 24th, 2021, she told her father that her mother’s boyfriend exposed himself to her after she had asked for money by wrapping money around his penis. [14] The child told her mother what happened and again the mother just laughed about it. [15] August 13th, 2022, [Social Worker 1], youth protection worker, met the youth who disclosed that her stepfather showed her his flower meaning private part.

She also disclosed that this happened between the age of eight and ten. [16] In October 2022, while the mother was in a shelter the youth went for a visit in Town B with her mom for about three days and when she came back, she was confused about all those facts. [17] The youth testified at the hearing. [18] The mother does not believe her daughter since the first time the child made the allegations. The main reason would be the way her daughter talked when she revealed to her the abuse. The mother did not give explanations about what the [ sic ] she meant by “the way her daughter talked”.

Nevertheless, when the mother testified, she reproduced a casual tone wanting to mimic the tone used by her daughter at the time of her revelations.

The other reason given by the mother not to believe her daughter was that the child never told her before, and she also said that she did not believe her because she wanted to protect her daughter from living all her life with a lie inside her. [19] The mother never considered that the allegations could be true. [20] The reasons given by the mother to explain why she does not believe her daughter do not dismiss the allegations of abuse revealed by the child. [21] The child’s allegations were clear, precise and succinct. They were made in summer 2021.

The youth maintained with consistency her version to this day. [22] Although, she had to go through changes in her life: she does not live with the mother anymore, she had to be placed with extended family members and since June 2022, she has been entrusted to a foster family, her version has remained the same. [23] She testified this morning in the same way.

Her testimony was clear, precise and succinct. [24] During her testimony, she demonstrated an affect, coherent and proportional with the seriousness of these allegations without hesitation and she testified fluently. [ 35 ] The mother did not believe her daughter. She was not protective of her daughter. Therefore, the youth had to leave the home.

At first, she was living with extended family members and since June 2022 she has been entrusted to a foster family. [ 36 ] The mother never considered that what her daughter revealed could be the truth. [ 37 ] The Court at the present hearing received no evidence that the mother had moved on to any level in order to protect her child. [ 38 ] The question is: Does this decision lead to the conclusion that Mr. B’s children Z, Y and X are at risk of sexual abuse? [ 39 ]

Section 38 ( d ) (2) reads as follows: a situation in which the child runs a serious risk of being subjected to gestures of a sexual nature by the child’s parents or another person, with or without physical contact, including a serious risk of sexual exploitation, and the child’s parents fail to take the necessary steps to put an end to the situation. [ 40 ] Judge Judith Landry answered the same question in a decision rendered on September 21 st , 2022 [3] .

She refers to a decision rendered by judge Lisa Leroux [4] : [39] Notre collègue, la juge Lisa Leroux, dans une récente décision fait état de la jurisprudence au sujet de la notion de « risque sérieux »[1] : [109] La notion de « risque sérieux » a fait couler beaucoup d’encre au cours des dernières années. Pendant longtemps, l’interprétation qui en est faite réfère à une norme de preuve exigeante.

Les dictionnaires les plus généralement reconnus attribuent au terme sérieux le sens grave, important, inquiétant. Force est de constater que le législateur a établi une norme exigeante quant au niveau de risque requis pour justifier une intervention de l’État lors d’une situation appréhendée d’abus sexuels et d’abus physiques selon l’article 38 de la Loi. Le Tribunal ajoute que pour conclure qu’un risque est sérieux, il doit exister un élément factuel sur lequel on peut sérieusement tirer une conclusion. Il s’agit d’évaluer une probabilité, plutôt qu’une possibilité ou une conjecture.

Les mots « risque » et « sérieux » doivent être interprétés selon leur sens courant. En ne définissant pas ces mots, le législateur n’a pas voulu s’écarter du sens commun de ces termes. L’utilisation de ces mots fixe un cadre ou un degré que le tribunal de première instance doit vérifier, à la lumière de la preuve soumise, et déterminer si cette condition est satisfaite de façon prépondérante. [110] Plus récemment, certaines décisions s’écartent de cette interprétation restrictive. Il s’en dégage que : « un risque important, grave et inquiétant » est un standard plus élevé que « risque sérieux ».

Le but de l’article 38(d)(2) est de protéger les enfants qui sont à risque, sans égard à la raison pour laquelle ils sont à risque. Le risque n’a donc pas besoin d’être existant ou actualisé. Le Grand Robert donne comme première définition du mot risque : danger éventuel plus ou moins prévisible, et du mot sérieux : qui compte, qui est important. Les définitions du Littré sont au même sens. Au sens du mot risque, que le danger soit du domaine du possible suffit donc.

Exiger plus, (…) en assimilant sérieux à « grave, important, inquiétant », trahit ce que demande la Loi dans un contexte où protéger l’enfant doit demeurer l’étoile polaire qui nous guide dans la recherche du sens à donner aux mots du législateur. Some

interpretations also consider that the evidence must reach a marked or elevated probability of the child being a victim of sexual abuse. With deference, the Court considers that such an

interpretation imposes a standard which is superior to that required by the legislator. To conclude that a serious risk requires the demonstration of a probability of sexual abuse goes against the principle by which the legislator clearly enounces its intentions.

Simply said, should the legislator had required a marked or elevated probability, or even a simple probability, such would have been the terms utilized. (…) For the Court, the demonstration by a balance of probabilities of concrete circumstances putting a child at risk of being victim of gestures of a sexual nature can meet the standard of the law and engage a protection and rehabilitation process. [111] Le Tribunal est en accord avec cette nouvelle approche qui rejoint celle déjà donnée par la cour Supérieure en 1996, bien que la notion de « risque sérieux » n’existait pas à l’époque.

« L’article 38 n’implique aucune gradation entre les situations de compromission et nulle part dans la loi retrouve-t-on des exigences qui auraient pour effet d’imposer un degré de preuve supplémentaire lorsque la sécurité et le développement d’un enfant sont compromis en raison du fait qu’il a été victime d’abus sexuels. Ceci serait tout à fait contraire à l’objet ultime de la Loi, à savoir la protection du meilleur intérêt de l’enfant concerné. Chaque cas de compromission énuméré à l’article 38 et ses paragraphes, doit être traité et jugé sur un même pied d’égalité. » [ 41 ]

Section 38 ( d ) (2) should be analysed with respect to

section 38.2 of the Youth Protection Act : A decision to determine whether a report must be accepted for evaluation or whether the security or development of a child is in danger must take the following factors into consideration: (

a) the nature, gravity, persistence and frequency of the facts reported; (

b) the child’s age and personal characteristics; (

c) the capacity and the will of the parents to put an end to the situation in which the security or development of the child is in danger; (

d) the community resources available to help the child and the child’s parents. [ 42 ] The gestures of a sexual nature committed by Mr. B on the mother’s oldest child were serious and repetitive gestures which had serious consequences for the victim. [ 43 ] The gestures were committed at the time the child was living with her mother and the mother’s partner, Mr.

B. [ 44 ] In the present situation, the three children Z who is 4 years old, Y who is 2 years old and X who is just a newborn of four months old, are very young and their vulnerability is very high. [ 45 ] The mother has never recognized the gestures committed by Mr. B on her older child. She never believed her, and she never ever considered that what her daughter revealed might have been true. [ 46 ] She has not been protective of her oldest child who had to leave her family and live with extended family members and in a foster home. Mr.

B never recognized these gestures. [ 47 ] In such a context, it can not be expected from the mother or the father to undertake a process of assistance in order to eliminate

any risk of recidivism. [ 48 ] Given the whole evidence the Court concludes that security and development of the children are endangered under

section 38 ( d ) (2) of the Youth Protection Act , they are at risk of sexual abuse. MEASURES [ 49 ] The two oldest children Z and Y have been entrusted on provisional measures to a foster home since July 2022. They had contacts and visits with the mother. There were red flags. The Director didn’t notice anything wrong and did not receive any report during the contacts between the children and mother. [ 50 ] Both parents consent to participate to an evaluation of their parental capacities and a complete psychological assessment.

They also consent to apply and respect all recommendations coming from these assessments. [ 51 ] The worker testified that these evaluations should be achieved within three months. [ 52 ] Until the assessments are achieved, Z and Y will remain entrusted to their current foster family. They will continue to go visit their mother as it is currently agreed among all parties. [ 53 ] The children will be gradually reintegrated under the mother’s care.

The total reintegration of the children must be completed within three months, the time required to complete the parent’s assessments. [ 54 ] When they visit, the children are entrusted to the mother. [ 55 ] The Director of Youth Protection should closely monitor the situation. To do so, the Director will perform a minimum of two unannounced visits per week. THEREFORE, THE COURT : [ 56 ] GRANTS the Applications; In the situation of X: [ 57 ] DECLARES that the security and development of X born on [...], 2022 are endangered under

section 38 ( d ) (2) of the Youth Protection Act ; [ 58 ] ORDERS that X remain entrusted to the mother; [ 59 ] ORDERS that both parents undergo a parental and psychological assessment and follow all recommendations, this assessment should be done within ninety (90) days as of today; [ 60 ] ORDERS that the parents remain sober in the presence of the child at all times; [ 61 ] ORDERS the parents to continue to ensure that the child is not exposed to any form of violence and/or persons under the influence of alcohol; [ 62 ] ORDERS that both parents fully collaborate with the Director of Youth Protection and meet the worker upon request; [ 63 ] AUTHORIZES the Director of Youth Protection to obtain and share information with all services providers working with the child and the family; [ 64 ] ORDERS that aid, counselling and assistance be provided to the child and the child’s parents until March 16 th , 2024 ; [ 65 ] ENTRUSTS the situation of the child to the Director of Youth Protection for the execution of the present order; [ 66 ] ORDERS to any peace officer to collaborate in the execution of the present court order requested by the Director of Youth Protection; In the situation of Y and Z:

[ 67 ] DECLARES that the security and development of Z born on [...], 2019, Y born on [...], 2021 are endangered under sections 38 ( b ) (1) ii, and 38 ( d ) (2) of the Y.P.A.; [ 68 ] ORDERS that Y and Z be entrusted to a foster home; [ 69 ] ORDERS that both parents undergo a parental and psychological assessment and follow all recommendations, this assessment to be done within ninety (90) days as of today; [ 70 ] ORDERS the gradual integration of the children under the mother’s care and the complete reintegration should be done by the end of the completion of the assessment of the parents, so no later than ninety (90) days as of today; [ 71 ] ORDERS that the children receive all of the medical services required by their situation and that the parents follow all recommendations made; [ 72 ] ORDERS that frequency and modality of contacts between the children and the parents, until the final reintegration, be determined by the Director of Youth Protection; [ 73 ] ORDERS the Director of Youth Protection to perform unannounced visits, minimum two times a week; [ 74 ] ORDERS that the parents remain sober in the presence of the children at all times; [ 75 ] ORDERS that the parents ensure that the children are not exposed to any form of violence and/or persons under the influence of alcohol; [ 76 ] ORDERS that both parents collaborate with the Director of Youth Protection and meet the worker upon request; [ 77 ] AUTHORIZES the Director of Youth Protection to obtain and share information with all services providers working with the children and the family; [ 78 ] ORDERS that aid, counselling and assistance be provided to the family for a period of one year, until March 16 th , 2024 ; [ 79 ] ENTRUSTS the situation of the children to the Director of Youth Protection for the execution of the present order; [ 80 ] ORDERS to any peace officer to collaborate in the execution of the present court order if requested by the Director of Youth Protection; [ 81 ] The whole, until March 16 th , 2024 . ___________________________________ LUCIE GODIN, J.C.Q.

M e Magdalena Lempicka Attorney for the Director of Youth Protection M e Marie-Josée Ayoub Attorney for the mother Father present, not represented M e Andréa Roc-Forgues Advocate for the children Dates of hearing : March 16 th , 2023 Last exhibit: D-5