2017 QCCQ 20880, 2017 QCCQ 20880

Protection de la jeunesse — 1711242 2017 QCCQ 20880 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF […] Youth Division No. 550-41-002752-172 DATE: October 23, 2017 ______________________________________________________________________ PRESENT: THE HONOURABLE LINE GOSSELIN J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1] , person authorized by the Director of Youth Protection Petitioner and X Child and A B In their capacity as parents ______________________________________________________________________ JUDGMENT ______________________________________________________________________ WARNING: The Youth Protection Act prohibits the publication or broadcast of information allowing a child or the child’s parents to be identified.

Every person who contravenes this provision is liable to a fine (sections 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] On October 13, 2017, the undersigned proceeded with the hearing on the application for review of the protective measures during the proceedings, filed by the petitioner, of which the undersigned was seized on September 27, 2017. [ 2 ] That application is the subject of this decision.

CONTEXT [ 3 ] In order to properly understand the situation, the Court considers that its decision should be placed in context. [ 4 ] In August 2017, in accordance with sections 38 and 75 of the Youth Protection Act , the petitioner seized the Court of an application for protection concerning X, born on […], 2017. [ 5 ] The petitioner proposed that the child be entrusted to a foster family, with various other protective measures applicable for one (1) year. [ 6 ] The ground invoked was the conjugal violence to which the child was exposed due to the conflicts between the parents and the psychological fragility of the mother, who seemed dependent on the father when it came to caring for their son. [ 7 ] The parents, who chose not to be represented by counsel, wanted to stay together and keep their son with them. [ 8 ] Mtre.

Claude Dostie, who was designated as the child’s attorney (section 80), acted under a legal mandate. [ 9 ] It was in that context that the hearing on the application for protection began on August 30, 2017, continued on September 7 and 15, 2017, and ended on December 19, 2017.

SUMMARY OF THE HEARINGS OF AUGUST 30 TO SEPTEMBER 15, 2017 A. HEARING OF AUGUST 30, 2017 [ 10 ] The hearing began on August 30, 2017. It could not be completed on that date, considering the extent of the contestation, the witnesses to be heard and the backlog of cases on the roll. It was continued on September 7, 2017.

[ 11 ] That said, from the whole of the evidence submitted on August 30, 2017, the undersigned mainly notes that the parents left the province A to ensure that they could keep their son with them. In actual fact, their three (3) oldest children have been removed from their custody. They have been adopted. [ 12 ] It was in that context that, when X was born, the caseworker went to the hospital to meet the parents and the child.

Considering the parents’ willingness to cooperate with the caseworker, this Court refused to extend the immediate protective measure (48 hours with a foster family) applied by the Director. [ 13 ] Since then, the father seems to have been the one who mainly sees to the child’s care; the mother often states that she needs the father’s help to be able to care for their son. Hence, the father has good parenting skills. For example, he knows the child’s routine and writes down the care they provide to him in a journal.

In addition, the child sees his pediatrician as required. [ 14 ] However, at least once (1) a month, there are conflicts between the parents, following which the mother sometimes leaves the home for a few hours or even a few days. The mother stated that, during those conflicts, the father is physically, psychologically and sexually violent toward her. She also accused him of having sexually assaulted minors and broken her nose. [ 15 ] However, the mother sometimes makes comments that seem implausible and changes her versions.

The parents explained the mother’s comments by the fact that she has severe premenstrual syndrome, which makes her unstable. [ 16 ] On August 1, 2017, the police intervened at the parents’ home further to another conflict. The mother wanted to leave with X. The father refused. On August 2 and 9, 2017, the Court kept the child with his parents.

The Court entrusted the child to the father on the condition that the mother not be left alone with the child. [ 17 ] It was in that context that, at the August 30, 2017 hearing on the application for protection, the mother told the Court that the father had put his penis in X’s mouth. In addition, despite the persistent conflicts between the parents, the mother refused to go to a resource that could help her. [ 18 ] The mother’s comments were highly unsettling. However, they may not necessarily be credible.

The parents found few solutions to prevent and/or end the persistent conflicts between them, which occurred in the child’s presence. [ 19 ] Hence, the Court seriously wonders about what really happened between the parents at the family home. The neighbour began his testimony, saying he had witnessed various problematic conflictual situations between the parents.

The parents did not always seems to be telling the truth. [ 20 ] That is why, on August 30, 2017, the undersigned considered that preponderant evidence had been submitted showing that keeping X with his parents would represent a serious risk to his physical security and healthy development. [ 21 ] On that date, the child’s security and development were declared in danger. The parties’ recourses regarding that aspect of the case were reserved for the continuation of the hearing. [ 22 ] The protective measures were ordered only for the duration of the proceedings, that is, until September 7, 2017.

Hence, X was placed with a foster family. He was to see his parents as agreed between the parties or, failing agreement, under supervision and in accordance with other terms and conditions. B. HEARING OF SEPTEMBER 7, 2017 [ 23 ] On September 7, 2017, the parents selected attorneys to represent them. The father selected Mtre. Sophie Cadieux and the mother selected Mtre. Marc Doyon. [ 24 ] It was in that context that Mr. C, the parents’ neighbour, continued his testimony. [ 25 ] From Mr. C’s testimony as a whole, it appears that, on May 24, 2017, the couple was outside the family home.

The father was very aggressive. He criticized and threatened the mother. On July 12, 2017, the parents argued with each other. When X went outside that same day, he cried a lot. [ 26 ] On July 15, 2017, the father threatened the mother, saying “I’ll cut you like I cut the grass!”. On August 7, 2017, the couple experienced a conflict. The father yelled, swore and used controlling language, such as “I am not done talking to you!”. He again threatened the mother with the prospect of a “punch in a fucking head” [ sic ]. On August 9, 2017, the father was agitated. He asked the witness to stop calling the police.

On August 21 and 23, 2017, more “yelling” and “screaming” occurred. [ 27 ] In addition, according to the witness, the mother was dependent on others when it came to caring for the child (for example, putting him in his car seat, feeding him or changing his diaper). C. HEARING OF SEPTEMBER 15, 2017 [ 28 ] On that date, the Director continued to present her evidence. The parents were present and duly represented. [ 29 ] D explained that she was a neighbour of the parents and that she had been very involved with the mother. [ 30 ] In May or June 2017, she heard the mother state that she could not leave the home.

On July 12, 2017, the father was very verbally aggressive toward the mother. Previously, he had said “Tase her to death”. D held the mother in her arms and the mother told her that she could not divorce. The police arrived and the father’s attitude changed completely. [ 31 ] The witness took the mother to a women’s shelter. She paid for several items that the child and the mother needed. She made sure that they were protected. For example, she called an attorney, accompanied the mother when she met with the youth protection

authorities, and stayed with the child for five (5) days. She noted that the mother was caring for the child very well. [ 32 ] However, the father located them. D called the police, who took the situation very seriously. [ 33 ] The mother confirmed that the father tied her to a bed, inserted a screwdriver into her anus and shoved her with his boots. Since the child’s birth, he had become more and more violent, stressed and unpredictable. He owned five (5) computers, sold expired pills, and used crack and other drugs. [ 34 ] The mother also confirmed that she had seen the father put his penis in X’s mouth.

On July 12, 2017, she stated the following, laughing: “He likes kids too!”. [ 35 ] The mother added that the father committed identity fraud and looked at child pornography. He had a considerable sexual appetite. [ 36 ] According to the witness, the mother loves her child and was attentive toward him. Despite reduced physical mobility, she knew what to do.

On the fifth day, the witness and the mother returned to Town A and the father went to the police station, at the request of the police. [ 37 ] On July 17, 2017, the mother informed the witness that she agreed to the father’s returning to the family home, under certain conditions. On July 21, 2017, the mother told the witness not to call her anymore, otherwise she would contact the police. [ 38 ] When they came across each other on the street, the mother would run away.

On August 30, 2017, the mother told her to “Go away!”. [ 39 ] To conclude, the witness confirmed that the parents’ home was cluttered and emitted foul smells (urine, feces and humidity). [ 40 ] Another neighbour of the parents, E, was heard as a witness as part of the father’s evidence. He confirmed that, in May 2017, the parents quarreled and the baby cried for a long time. He heard the mother say “Don’t hit me!”. He saw the parents arguing with each other a few times. He was away in June and July 2017, and did not see the parents much in August 2017.

He was not worried for the child, who seemed to be doing well when he saw him. The parents were attentive toward the child. [ 41 ] The petitioner confirmed having received several reports concerning X: in January 2017, in March 2017 (2), in April 2017, in July 2017 and in August 2017 (2). [ 42 ] The reports had to do with physical abuse, conjugal violence and a separation conflict. [ 43 ] According to the petitioner, the sexual abuse was related to the fact that the father put his penis in the child’s mouth, inserted an object into the mother’s anus and had questionable sexual practices.

In addition, the mother was hypersexualized. [ 44 ] The neglect was related to the residential and financial instability, as well as the couple’s instability.

It was compounded by the mother’s difficulty identifying and meeting the child’s needs and paying the rent, and by the fact that the premises were cluttered. [ 45 ] As regards the conjugal violence, the father broke the mother’s nose, tied her to a bed, hit her with a hammer, inserted a drill into her anus, wiped her after she defecated, looked at pornography, masturbated with the sister’s underwear, was psychologically violent, and uttered threats to kill and/or injure the mother.

The father also denigrated the mother, prevented her from socializing, kept her isolated and intimidated the people around her. [ 46 ] The father confirmed that the mother had genuine difficulty meeting the child’s needs, particularly with regard to routine. However, the father infantilized the mother and wanted to take control. [ 47 ] In short, according to the petitioner, the mother was in survival mode and could not meet X’s needs. [ 48 ] Hence, the continuation of the hearing on the application for protection was set for December 19, 2017.

The status quo was maintained in that the measures ordered on August 30, 2017 remained applicable. APPLICATION FOR REVIEW OF THE PROTECTIVE MEASURES DURING THE PROCEEDINGS A.

HEARING OF SEPTEMBER 27, 2017 [ 49 ] On September 27, 2017, the petitioner seized the Court of an application for review of the protective measures during the proceedings, in order to have the foster family’s names, given names and contact information declared confidential. [ 50 ] The petitioner invoked the following grounds: the father located the mother on two (2) occasions while she was staying in confidential locations and the dynamic of conjugal violence is serious and significant, since the father controls the mother and the parents react impulsively. [ 51 ] The parents contested the application.

The mother requested a postponement, since her attorney was unavailable. The postponement was granted and the hearing on the application was set for October 13, 2017. [ 52 ] The father now represented himself. Mtre. Marc Doyon had ceased to represent him in this case. The father asked for a copy of the CD recording of the hearing of September 15, 2017. The Court granted his request under certain conditions, which he accepted. [ 53 ] The mother also asked that the undersigned recuse herself because X was placed with a foster family.

She insisted that Marie Pratte J., who had previously kept the child with them, should be the judge seized of the case.

[ 54 ] The Court indicated to the parents that the hearing would be continued on December 19, 2017, but invited them to discuss the matter with the coordinating judge. [ 55 ] However, the parents agreed to wait until October 13, 2017, saying they would discuss the matter again with the undersigned. The mother said it was possible that, on that date, she would be representing herself. She added that her child was being mistreated by his foster family and that he had an abscess on his penis (she said she had pictures, which she would file at a later date).

HEARING OF OCTOBER 13, 2017 [ 56 ] On October 13, 2017, the Court proceeded with the hearing on the application for review of the protective measures during the proceedings. [ 57 ] From the whole of the evidence submitted, the undersigned mainly notes that the parents, who were representing themselves, explained that the Director abused her power over them and other families.

They believed that, in their child’s record, the Director had abused proceedings in order to unduly delay the judicial process. [ 58 ] The parents stated that the application to amend the measures during the proceedings infringed upon their fundamental rights. [ 59 ] They added that, as the parents, they were entitled to know who was caring for their child. They only wished to know the names and given names of the foster family. They did not intend to bother that family or go to their home. [ 60 ] Lastly, the father admitted that he can be impulsive, but denied being aggressive or becoming disorganized.

According to the two (2) parents, the couple experiences conflicts, like any other couple. They went to visit their son as agreed and did what was asked of them. However, they admitted that they verify their son’s general condition every time they have contact with him, because they are concerned with his well-being. [ 61 ] The petitioner confirmed that she was unable to have a one-on-one meeting with the mother as part of her social follow-up and that, before the hearing began, the mother yelled at her and stated “It will be bad!”. The parents did in fact cooperate in the past.

However, as soon as they were confronted, they resisted the petitioner’s interventions and left her intimidating voice messages. [ 62 ] That said, CONSIDERING that protective measures during the proceedings have been ordered since August 30, 2017; [ 63 ] CONSIDERING that, because there is a serious risk of harm to X’s security and development (which have also been declared in danger), the Court orders the child’s placement with a foster family as of that date; [ 64 ] CONSIDERING that X was recently placed with a new foster family; [ 65 ] CONSIDERING that the parents do not trust the care provided to X by the new foster family, particularly in that they systematically examine their son every time they have contact with him, which is very intrusive for the child even though their intentions are good (they want to make sure he is treated well); [ 66 ] CONSIDERING that, at this stage of the proceedings, two (2) eyewitnesses, the parents’ neighbours, confirmed that the parents’ deteriorated relationship was marked by various forms of violence and aggressiveness between them; in August 2017, the mother described to her neighbour and to the police the father’s various problems with regard to violence, as well as his abusive behaviour, including toward children; [ 67 ] CONSIDERING that the mother agreed to the father’s returning to the family home in mid-August 2017 and that, since then, her comments about him have changed completely; until that date, she had been saying that he was controlling, violent, and even dangerous for her and X; [ 68 ] CONSIDERING that the parents made intimidating comments to the petitioner and that, on October 13, 2017, the mother yelled at her and made threatening comments; [ 69 ] CONSIDERING the principles set forth in the Act, including the interest of the child (section 4); [ 70 ] CONSIDERING that this application must be examined with the child in mind, rather than in an abstract manner; hence, the Court must ensure that all of X’s needs are adequately met during the proceedings; [ 71 ] Therefore, given the parents’ attitude and behaviour described above; the state of their couple; X’s extreme vulnerability due to his age; the importance of shielding the child from the situation of his parents, who do not trust the foster family; the principles set forth in the Act; and the power conferred on the Court (i.e. the power to order that certain information not be disclosed to the parents (section 91( l .1)), the undersigned considers that preponderant evidence was submitted showing that the contact information, names and given names of the foster family should remain confidential during the proceedings, to avoid jeopardizing X’s placement, stability and well- being.

THEREFORE, THE COURT: [ 72 ] SETS AGAIN THE CONTINUATION OF THE HEARING on the application for protection for December 19, 2017 at 9:30 a.m., in room 13, for the entire day; [ 73 ] DECLARES again that the child’s security and development are in danger; [ 74 ] RESERVES again the parties’ recourses regarding the endangerment; [ 75 ] REVIEWS the decision of August 30, 2017;

[ 76 ] DECLARES that new measures during the proceedings must be ordered because there would be a serious risk of harm in keeping the child with his parents; [ 77 ] ORDERS the execution of the new protective measures during the proceedings until December 19, 2017 : (

a) That the child be entrusted to a foster family ; (

b) That , in the child’s interest and during the proceedings , the name and contact information of X’s foster family not be disclosed to the parents; (

c) That a person working for an institution or body provide aid, counselling or assistance to the child and his family; (

d) That contact between the child and his parents take place in accordance with an agreement between the parents and the caseworker or, failing an agreement, that it be supervised by a third party chosen by the caseworker, at a place designated by her; (

e) That the parents actively participate in the application of the measures ordered: 1. that they cooperate with the person in charge of social follow-up; [The following passage appears in English in the original French-language judgment.] ENGLISH [ 78 ] ORDERS the following protective measures until December 19 th 2017 :

a) ENTRUSTS the child to a foster family;

b) DECLARES, in the interest of the child, that the personal information of the foster family be not disclosed to the parents;

c) ORDERS a follow up by the applicant;

d) ORDERS that the parents collaborate to that follow up;

e) ORDERS that the contacts between the child and the parents be upon an agreement between them and the social worker but, if there is no agreement, the parents will see the child in a presence of a third person chosen by the social worker and in a place designated by her; [End of passage.] [ 79 ] ACKNOWLEDGES that the parents wish to seize this Court of an application for recusation; [ 80 ] INDICATES that any review of this decision must be submitted to the undersigned (except for the application of

section 47) who is seized of the case; [ 81 ] ENTRUSTS the situation of X to the Director of Youth Protection for the execution of this decision. __________________________________ Line Gosselin J.C.Q. Mtre. Vanessa Chasle Counsel for the Director of Youth Protection Mtre. Claude Dostie Counsel for the child The parents Representing themselves Dates of hearing: August 30, September 7, 15 and 27, and October 13, 2017

Date of deposit with the office of the Court: October 23, 2017