2021 QCCQ 10706, 2021 QCCQ 10706

Protection de la jeunesse — 214762 2021 QCCQ 10706 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] “Youth Division” No: 460-41-002238-210 DATE: May 11, 2021 ______________________________________________________________________ BY THE HONOURABLE PASCALE BERARDINO, J.C.Q. ______________________________________________________________________ IN THE SITUATION OF: X Born on [...], 2004 [SOCIAL WORKER 1] , person duly authorized by the Director of Youth Protection of CIUSSS A Applicant -and- A -and- B Youth’s parents ______________________________________________________________________ JUDGMENT [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.).

Introduction [ 1 ] The Director is requesting the Court to declare the security and development of the youth X in danger for the motives of educational neglect and serious risk of sexual abuse. [ 2 ] As protective measures, the Director recommends that the Court entrust X to a rehabilitation centre, authorize the progressive return of the youth in the family environment according to the evolution of the situation, to authorize contacts with her mother upon agreement between the parties and in case of disagreement, that the modalities and frequency of the contacts will be determined by the Director, to authorize supervised contacts with her father by a third party designed by the Director upon agreement between the parties and in case of disagreement, that the modalities and frequency of the contacts be determined by the Director, and to authorize the lifting of the supervision if the situation allows. [ 3 ] The Director also recommends that X receives all health care and services needed, namely regular pediatrician visits and mental health follow-up, to order that she attends school or another place of learning or participate in a program aiming at developing skills and autonomy and to take notice that the mother commits herself to participate in a psychological follow-up for her personal issues. [ 4 ] The Director proposes different other measures as well as a social follow-up for a period of nine months. [ 5 ] At the hearing held on May 11, 2021, the mother is present and represented by a lawyer.

She is in agreement with the Director’s application. [ 6 ] The father is present but not represented by a lawyer. He denies the situation of compromission regarding the serious risk of sexual abuse but agrees with the measures recommended. [ 7 ] The youth’s lawyer, after hearing the evidence, agrees with the conclusions sought. Question in litigation

[ 8 ] Is X at serious risk of sexual abuse? The situation of compromision [ 9 ] X is 13 years old and lives with her parents in this region where they have been living for the last five years. The family previously lived in [Province A]. [ 10 ] The father has two other daughters from two previous unions; Y (16 years old) and Z (24 years old). [ 11 ] Y lives with her grandparents in [Province A] and has been reportedly out of contact with the father and X for the last 10 years. [ 12 ] Z lives in Quebec and has not been in contact with the youth and her father for the last two years, except for a few phone calls.

The father claims these relate to legal steps she is taking to have him pay for her studies. [ 13 ] On October 30, 2020, the Director retained a report regarding a situation of risk of sexual abuse by the father. [ 14 ] This follows a criminal complaint made by X’s two half-siblings for sexual abuse by their father. [ 15 ] At the time, it was also mentioned that he had pending charges in [Province A] for the same kinds of acts on another girl. [ 16 ] It was also mentioned that X receives services by a worker from Santé Mentale Jeunesse (SMJ) of the CSSS, regarding suicidal verbalizations and self-injurious behaviours. [ 17 ] Her difficulties lead the youth to be frequently absent from school, although she says that it is only for lack of motivation. [ 18 ] A provisional agreement had been signed by the parties on February 12, 2021, where X was entrusted to her mother with the commitment not to leave her daughter alone to her father. [ 19 ] In March 2021, a child psychiatry referral was made by the SMJ-CSSS worker, as the self-injury episodes had increased as well as the youth’s suicidal thoughts. [ 20 ] On March 17, 2021, the Director completed her evaluation and declared that the facts were founded and that X’s security and development were compromised for serious risk of sexual abuse and educational neglect.

The motive of serious risk of sexual abuse The evidence [ 21 ] The evidence presented by the Director about the situation of sexual abuse on the other girls to retain a serious risk of sexual abuse on X is as follows. [ 22 ] The delegate communicated with different police services from [Province A] and [Province B] as well as Children’s Aid Society in [Province A] to shed light on the ongoing alleged charges against the father by his daughters and other unidentified girl (hereinafter “Jane Doe”). [ 23 ] Regarding the situation that would have occurred in [Province B], the reproached acts would have happened in 2010, when Z was about five years old. [ 24 ] These events are documented by a report from the RCMP police in [Province B] sent to Child and Family Services. [ 25 ] The report contains a review of Y’s statement [2] obtained in 2012.

The child was then seven years old.

The child reveals acts of a sexual nature done by her father at her last visit: • Y did not have a nice last visit • At night, her dad, B, rubbed his "Pee Pee" on hers • Her mother told her it was wrong to do that • Y then rubbed her fingers against her vagina saying her father did that which made her pee • Y stated nothing came out of her dad's Pee Pee • Y stated it took place in the living room • Her father slept on the ground next to the bed [ 26 ] It mentions that the father was charged in 2012 for sexual assault and sexual interference and that in 2013, the charges were withdrawn, the file not indicating why. [ 27 ] The Director also learned from Children’s Aid Society that in 2014, the Director of Youth Protection in Town A and Town B in [Province A] retained a report regarding Y for the motive of sexual abuse by the father for the events that occurred in 2010. [ 28 ] However, considering that the verbalizations of the child occurred after a long time following the event, that the child was no longer living with her father who remained in [Province B] and that she was living with her mother in [Province A], the file was closed.

[ 29 ] Going back to the RCMP report, it also contains a more recent statement from Y dated August 2020, regarding the same event. [ 30 ] Her last declaration [3] is more detailed but confirms the main gestures that the child had described in her first statement: • Y stated was approximately 5 years old, 15 today • Y was staying with dad in [Province B] • Y was trying to go to sleep in the bed • B sleeping on on (sic) the floor and asked Y to go sleep with him • Y went on to the floor • Y thought he was just wanting to cuddle or talk • B then slipped Y's pants down to her ankles • B pulled his pants down too • B began rubbing his penis against her vagina • B did not insert his penis into her • Approximately 3-4 minutes • Y believes he apologized after • Y believes she wearing T-shirt and pants • Did not tell to stop because thought it was things dad's and daughters do • Y believes B had shirt on put (sic) took down pants • Y then told to stop • Y stated the incident only took place one • No one else in the room but step-mom [4] in the house • Y kept it to herself because thought not big deal at the time • Y coming forward "For us to get revenge for what he did and deal with the consequences" • Y believes consequences would be warrant for his arrest and going to jail • Y told her mom and she was upset, therefore, Y has had no contact with B since • Does not understand how he thought it was okay to do that • Y speaking of revenge as getting back at him, by wanting him to go to jail • Residing with aunt until mom gets back from rehab in [Province C] • Mother is proud she is speaking to the police about what happened [ 31 ] The report also mentions that the police spoke with Y’s aunt and current guardian.

She says she wants to adopt Y but does not want to as the legal documents would have to be served to the father, thus revealing where they live. [ 32 ] She explains the means put in place in order to receive the father’s support payments for his daughter without revealing their coordinates. [ 33 ] She also mentions that Y has attempted to self-harm and declines counselling. [ 34 ] At the time of the Director’s evaluation, the RCMP in [Province B] was still waiting for the Crown to make a decision on the complaint.

She was later informed that there would not be any accusations. [ 35 ] As for the complaints in [Province A], the information is scarce. The Director does not have specifics in regards to these two allegations except for the following. [ 36 ] The Children’s Aid Society in [Province A] have not received reports for X nor Z. [ 37 ] The RCMP from Town A in [Province A] contacted the delegate. Detective Gary Cambly met with Z a year ago when she filed a complaint against her father for sexual abuse. [ 38 ] It was also him who took the second statement from Y referred to in the [Province B] RCMP report.

[ 39 ] He says that Z feared that her stepsister X could also be at risk of sexual abuse by her father. [ 40 ] He also spoke about Jane Doe, a third female victim coming out and currently under investigation by the Police A in Town B.

This would concern events that allegedly occurred in 2015 and the complainant would now be and adult. [ 41 ] The delegate contacted the [Police A] in Town B who confirmed these information but could not give anymore details because of the ongoing investigation. [ 42 ] Nonetheless, they told the delegate that there was an arrest warrant and discussions made to repatriate the father to [Province A] and question him. [ 43 ] When the parents were met in February 2021 and confronted with the information about Y, they both claimed that her allegations were lies under the influence of her mother. [ 44 ] The father said that the facts alleged date of a time when Y was visiting for several days with him who already formed a couple with the mother.

He said that these allegations were already investigated and that no charges were ever brought. This information was later revealed to be true. [ 45 ] He says there was a question of him urinating on Y but this not part of any of the girl’s statements. [ 46 ] He also does not mention the existence of his other daughter Z. [ 47 ] The delegate meets again with the parents and X on February 11, 2021. [ 48 ] The father starts by saying he had forgotten to mention his other daughter Z.

He acknowledges that she lodged a complaint against him but that he had received information that all charges against him had fallen. [ 49 ] He then mentions that he has a special weapon licence that he could not have otherwise. [ 50 ] He agrees to give Z phone number for the delegate to speak to her.

When she later tried to call her, the delegate was not able to speak to Z, her number not being in service. [ 51 ] Then the mother states that she was under the belief that the father was on a list for sexual offenders in link to these different complaints, which he is not, as he has never been convicted of a sexual offence. [ 52 ] That is when the Provisional Agreement was signed, so that the father is never alone with X. [ 53 ] After receiving the information from the police in [Province A] about the two ongoing investigations, the delegate meets with the parents individually on February 24, 2021. [ 54 ] Informed of these complaints, both mother and father deny any truth in these allegations.

The mother claims she even knows who the third alleged victim is, refusing to reveal her identity and affirms that she is lying. [ 55 ] She says that the behaviours reproached to her spouse do not correspond to his character. [ 56 ] The father does not deny the situation and adds that it is not the Director’s business since the complainant is an adult. [ 57 ] And this is when the Director demands that the father leave the house and seize the Court. [ 58 ] On March 23 rd , an Orientation Table is organised by the Director. The father is absent, despite being invited to participate. [ 59 ] The mother is present.

She revisits the reports and states that she cannot be 100% sure that the allegations are lies or that the situation happened. [ 60 ] She also stated that she was currently clarifying her relationship with the father. [ 61 ] X is aware of the complaints made by her half-sisters but believes they are not true.

She maintains that she was not witness or been the victim of a situation in regard to sexual abuse by her father. [ 62 ] She indicates that her relationship with her father has been more difficult in the recent years. [ 63 ] She adds that her half-sister Y was often in conflict with her father and that she believes that she and her mother are building a case against the father.

In this, she repeats the explanations given by the parents. [ 64 ] X also says that Z has a strange personality and that she thinks that whatever she claims happened, did not. [ 65 ] She mentions that her self-inflicted injuries and suicidal thoughts are more focused on her own thoughts and actions. She is not revealing the triggers that leads her to act or think this way. [ 66 ] At the hearing, the Court learns that the father has not yet resolved the issues with the [Province A] police authorities. [ 67 ] The father says he has not yet contacted his lawyer.

He says she is in [Province B] and he did not pay the retainer for her services yet. [ 68 ] He chooses not to testify.

[ 69 ] The parents have decided to stay together. [ 70 ] Both parents have been collaborating with the Director during the Director’s evaluation and respected the recommendations and orders from the Court. Analysis [ 71 ] The motive of serious risk of sexual abuse is found at

section 38 (d) (2) of the Law: 38. For the purposes of this Act, the security or development of a child is considered to be in danger if the child is abandoned, neglected, subjected to psychological ill-treatment or sexual or physical abuse, or if the child has serious behavioural disturbances.

In this Act, (…) ( d ) “sexual abuse” refers to (…) (2) 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; (…) [ 72 ] The standard of serious risk is stringent as to the level of risk required to declare the security and development of a child compromised for such a motive. [ 73 ] To be declared serious, the risk has to be severe, important and ominous [5] . [ 74 ] The Director has the onus of proving, according to the standard of balance of probabilities that the serious risk exists.

In other words, that it is more probable than unlikely that a serious risk of sexual abuse exists. [ 75 ] The seriousness of the risk must be evaluated in concreto , from the child’s point of view, and with the help of the criteria set by

section 38.2 of the Law: 38.2. 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. [ 76 ] In the present situation, the allegations of sexual abuse have not been the object of any judgment, whether it be on Y, Z or Jane Doe.. [ 77 ] Nonetheless, the YPA does not require such an onus of proof but rather if the facts alleged are sufficient for the Court to find that there is a serious risk of sexual abuse. [ 78 ] Also, the fact that charges are dropped or not put forward is not determinant for in the present youth protection instance as the criminal proceedings face a different burden of proof than in civil litigation and the Crown Prosecutor’s decision for not going further with accusations can be diverse. [ 79 ] Do the facts alleged create a serious risk of sexual abuse? 79.1.

The nature, gravity, persistence and frequency of the facts reported:

a) In the situation of Y: - the facts would have occurred 10 years ago, when Y is 5 years old; - they were of a grave nature with inappropriate sexual touching by the father; - they only happened once; - the declarations for the presumed victim are coherent and the last one gives many details, as is expected from a 15 years old, compared to when she first verbalized the abuse when she was 7 years old. - the child’s aunt has taken great means for the father not to know their coordinates.

b) In the situation of Z:

- very little is known about the situation other than: the investigation has been pending for one year, Z is worried for X, and the investigator has taken the recent statement from Y.

c) In the situation of Jane Doe: - again, the information is scarce other than: the facts happened in 2015, the complainant is now an adult, the father is under warrant and needs to be questioned in link with this investigation. 79.2. The child’s age and personal characteristics;

a) X is 13 years old;

b) She presents with psychological distress, self-harming episodes and suicidal thoughts. The cause of her distress is unknown;

c) These allegations are known to X; she affirms never have been the object of sexual abuse by her father nor being a witness of such acts. 79.3. 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;

a) The parents deny the facts alleged by Y, Z and Jane Doe, although the mother states she cannot by 100% sure either way;

b) The parents have not been transparent with the Director and did not come forward about the situation regarding Z and Jane Doe. The father has even dodged giving explanations about these situations;

c) The parents have left [Province A] about five years ago, right about when the facts regarding Jane Doe would have occurred. 79.4. The community resources available to help the child and the child’s parents:

a) The parents are in contact with services who provide help with X;

b) They collaborate with the demands of the Director although not completely transparent. [ 80 ] The current situation present with great difficulty for the Director to present a case as the evidence comes from other provinces and is not fully available. [ 81 ] A serious risk has to be more than hypothesis and conjectures. [ 82 ] If the situation regarding Y would have been the only one revealed, the fact that it happened so long ago, only once and on a little girl aged five could have distanced her situation from the present regarding X. [ 83 ] But the allegations come from three different women, two of which are the father’s daughters. [ 84 ] The [Province A] police are still investigating Z and Jane Doe’s allegation and the investigation is blocked because the father is not collaborating with the investigation. [ 85 ] The father is reluctant to talk about these allegations and to address the whole situation. [ 86 ] One also wonders why the mother believed that the father was on a sex offenders list. [ 87 ] Furthermore, the father’s theory that these allegations would be false because jealousy would be at the root of them does not hold. [ 88 ] The father has been absent too many years of her two other daughter’s lives and ex-spouse for this to be a reasonable explanation.

And it would not explain Jane Doe’s complaint. [ 89 ] After evaluating the evidence, the Court comes to the conclusion that it is more probable than unlikely that there is a serious risk of sexual abuse for X. The motive of educational neglect [ 90 ] As for the situation of educational neglect, this situation pertains to the parents’ inappropriate response to X’s psychological needs, leaving her mental situation to deteriorate. [ 91 ] The youth is in pain and in need of services to help her manage her emotions.

The measures [ 92 ] When the Director completed her evaluation, the father had not been transparent regarding the complaints filed against him in [Province A] and the mother did not consider that he may have committed any of the sexual abuse alleged and minimized the situation. [ 93 ] On February 24, 2021, an immediate protection measure was applied, entrusting X to her mother, excluding the father and he left the family house. [ 94 ] This was extended by a safeguard order to allow representation for the parents and on March 2, 2021, the Court rendered a Provisional Order to the same effect, also allowing supervised contacts between the youth and her father.

[ 95 ] The Court added that the youth should receive all health services and care that she needed and ordered that she attend school assiduously. [ 96 ] On April 21, 2021, the Director seized the Court to revise the provisional measures ordered. [ 97 ] It was reported that the school noticed that X was having suicidal thoughts and had self-inflicted injuries on her arms.

But contrary to the previous behaviours regarding self-harm, those were visible, bleeding and of a greater intensity. [ 98 ] X also had a plan for suicide. [ 99 ] The mother had not informed the Director when similar situations occurred in the last months, neither did she bring her daughter to the hospital.

However, on April 19 th , she asked the help of the Director at the hospital where she brought her. [ 100 ] The youth was still on a waiting list for child psychiatry services at that moment, and the mother was unable to ensure the security of her daughter and recognized she needed more help and services. [ 101 ] In fact, both parents agreed that X needed more help and supervision. [ 102 ] On April 19 th , an immediate protective measure was applied to entrust the youth to the hospital. [ 103 ] On April 21 st , X was transferred to the child-psychiatry unit for adolescents. [ 104 ] The Director, on the advice of the child psychiatrist of the hospital, recommended that the youth be entrusted to a rehabilitation centre to which the parents agreed. [ 105 ] On April 22, 2021, the Court revised the previous provisional order and entrusted the youth to a rehabilitation centre when she obtained her leave from the hospital, authorizing contact with her mother and maintaining supervised contact with her father. [ 106 ] On April 30 th , following a review meeting with all the professionals involved in her situation, X obtained her leave. [ 107 ] She was transferred to an intermediate resource on May 3 rd .

On the same day, she self-injured with a razor blade which she had brought with her and concealed.

X refused stitches at the hospital and wanted to keep the scars. [ 108 ] Since April19 th , she has not returned to school but she will return gradually when she is ready. [ 109 ] The father has remained involved in her daughter’s situation, maintaining contacts and keeping inform of her mental health situation with the hospital and the centre. [ 110 ] The mother has mostly been in regular and close contact with her daughter, leaving the father to communicate with the professionals involved. [ 111 ] Together, they form a good parental team, combining their strength and abilities. [ 112 ] Both parents have mobilized and understand the seriousness of their daughter’s condition. [ 113 ] The next steps will be to put in place a constant and coherent protocol related to self-harm and suicidal thoughts based on the psychiatry assessment. [ 114 ] The father also needs to set the record straight regarding the criminal complaints in Ontario and collaborate with the authorities. [ 115 ] He will need to work on his relationship with X. [ 116 ] The Director will have to ensure that the youth is able to protect herself from any sexual misconduct by her father. [ 117 ] The objective is to gradually reintegrate the youth home to her parents and into school and insuring her security in the process.

FOR ALL THESE MOTIVES, THE COURT: GRANTS the present application for protection; DECLARES that the security and the development of the youth X are in danger for educational neglect and serious risk of sexual abuse; ENTRUSTS the youth to an institution operating a rehabilitation centre, chosen by the Director of Youth Protection; AUTHORIZES the progressive return of the youth in the family environment according to the evolution of the situation; AUTHORIZES in the youth’s favour contacts with her mother, upon agreement between the parties; in case of disagreement, the modalities and frequency of the contacts will be determined by the Director of Youth Protection; AUTHORIZES in the youth’s favour, supervised contacts with her father, by a third party designed by the Director of Youth Protection, upon agreement between the parties; in case of disagreement, the modalities and frequency of the contacts will be determined by the Director of Youth Protection; AUTHORIZES the lifting of the supervision if the situation allows it;

ORDERS that the child’s parents periodically report to the Director of Youth Protection on the measures they apply in their own regards or in their child’s regard to put an end to the situation in which the security or development of the youth is in danger; ORDERS that the child’s parents take an active and honest part to the application of any of the measures ordered by the Court, to the elaboration of the intervention plan and to the psychosocial follow-up, in order to put an end to the situation of endangerment; ORDERS that the youth receive all health care and services needed, namely regular pediatrician visits and mental health follow-up; ORDERS that the youth attend school or another place of learning or participate in a program aiming at developing skills and autonomy; TAKES NOTICE that the mother commits herself to participate in a psychological follow-up for her personal issues; ORDERS that a person working for the Director of Youth Protection of the CIUSSS A or any other establishment or body provides aid, counsel and assistance to X and her family for a period of nine months; ENTRUSTS the situation of the youth X to the Director of Youth Protection to see that the measures are carried out. __________________________________ PASCALE BERARDINO, J.C.Q.

M e Andréanne Lacasse Counsel for the DYP M e René Sévégny Counsel for the youth M e Mireille Leblanc Counsel for the mother Date of hearing: May 11, 2021 Date of written judgment: July 28, 2021 Exhibits deposited: D-1 to D-5