r v. A, 2017 QCCQ 3813

Protection de la jeunesse — 171531 2017 QCCQ 3813 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-005178-168 760-41-005177-160 DATE: January 13, 2017 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X Born: [...], 2003 Y Born: [...], 2000 Children ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner v.

A B Parents ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 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 ] The Director of Youth Protection alleges a situation of endangerment regarding the siblings X and Y in reason of gestures of a sexual nature committed upon Y by their older sibling, Z. As protective measures, the Director seeks to accompany the children and their family for 6 months and to structure the contacts with Z. [ 2 ] Both the children and their parents offer their admissions and subscribe to the evaluation and orientation presented by the Director.

They offer their full participation in the measures. [ 3 ] Context [ 4 ] The children reside in their family environment. They are the youngest of seven siblings, including their brother Z (22 years old). [ 5 ] In May 2016, the Director retains a report concerning a situation of sexual abuse towards Y. Considering the nature of the allegations, the multi-sector agreement applies and consequently, Y is met for a police interview. [ 6 ] Y commences by stating that no one has ever hurt him or touched him in a sexual way. He mostly tries to avoid the questions.

He eventually indicates not wanting to talk about the situation which he considers being over. He finally minimally confirms that his brother does things to him between the ages 7 and 9 years old, but gives no details about the nature nor frequency. [ 7 ] In a meeting with the evaluating caseworker the following July, Y verbalizes being the victim of gestures of a sexual nature at the hands of his older brother Z. He refuses to offer many details, other to say that the behaviours constitute «mutual touching» and occurred over several years. Eventually, he admits remembering between 10 and 15 incidents.

He explains feeling guilty at the time and not knowing how to make it stop. [ 8 ] Y mentions not wanting to dwell on the situation nor to receive services. He believes his brother Z is now a better person. [ 9 ] Z confesses his actions towards his brother to his parents approximately three or four years ago. His parents are made aware of their sexual nature, but request no further details as to the exact nature of the gestures.

[ 10 ] They discuss the situation with both their sons and tell Y that he is not responsible for his brother’s actions. Z meets with the family pastor on one occasion for counselling and spiritual support. [ 11 ] Considering the situation resolved, the parents decide to not seek further services nor to divulge the situation to the other family members, including their younger son X.

There is no further discussion of the incidents of sexual abuse until the Director’s intervention. [ 12 ] Although to the caseworker, the parents readily recognize the factual situation as to the sexual abuse, they initially maintain their ability to address the issue and resist its qualification as a situation of endangerment justifying the application of protective measures, namely services for themselves and their children. They clearly indicate considering that they took the appropriate measures and that the Director could offer nothing further. [ 13 ] X is unaware of the situation of abuse.

When advised of such by the caseworker, he states not considering himself at risk nor of the need for services. [ 14 ] After their initial meetings with the caseworker, the parents refuse to allow any further contacts with Y and X. [ 15 ] They undertake a therapeutic process for their son Y as of October 2016. He benefits from sessions on a regular basis. [ 16 ] Z is no longer residing in the family domicile, being currently incarcerated for robbery.

He is to be released shortly and the parents stipulate that he will not return to live in their environment. [ 17 ] Since the Director’s intervention, the parents re-evaluate their position. They now recognize the situation of endangerment. There is also a substantial improvement as to their cooperation. [ 18 ] Y is a normal functioning teenager with strong family ties.

Until recently, he has not been comfortable to further discuss the incidents of abuse with his brother, considering the parent’s position of resolution. [ 19 ] Analysis and decision [ 20 ] The Court refers to the Youth Protection Act , as it pertains to the present evaluation: 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 (1) a situation in which the child is subjected to gestures of a sexual nature by the child’s parents or another person, with or without physical contact, and the child’s parents fail to take the necessary steps to put an end to the situation; or (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, and the child’s parents fail to take the necessary steps to put an end to the situation; [ 21 ] The parties recognize the situation of sexual abuse of which Y was victim on a repeated basis at the hands of his older brother. [ 22 ] The principal force of this family are the bonds which unite them, which are clearly underpinned by strong values.

As such, the parents are fully invested in their children’s well-being and do their best to address the sexual abuse, but the evidence demonstrates that the intra-familial context of the sexual abuse engenders complexities that mitigate their ability to properly define their son's needs. [ 23 ] Their decision to consider the situation of abuse resolved despite not having received significant details of such nor receiving professional counsel, shows a failure to understand the potential devastating consequences of such on their sons. [ 24 ] As for X, the proximity of possible contacts with his brother Z, creates the situation of endangerment in reason of a serious risk of abuse. [ 25 ] As a victim of abuse, Y’s development is particularly at risk.

Not only is he put in the unfortunate position of facing his abuser in reason of their family bond, he has been left, until recently, without the possibility of asking nor receiving support to conquer the myriad of emotions engendered by the abuse (loyalty conflict, anger, guilt, confusion). [ 26 ] Both Y and X require being equipped to react and protect themselves from potential sexual abuse by understanding adequate boundaries.

In the interim, supervision of their contacts with their brother Z is dictated. [ 27 ] The parent’s openness to receive support and services will serve to help them to fully understand the consequences of sexual abuse in order that they can accompany their sons to a true full resolution of the situation. [ 28 ] To this end, the Court endorses the conclusions sought as corresponding to the children’s best interests in the respect of their rights. [ 29 ] FOR ALL THESE REASONS, THE COURT:

[ 30 ] GRANTS the applications; [ 31 ] DECLARES that the security and the development of the child X are in danger in reason of serious risk of sexual abuse; [ 32 ] DECLARES that the security and the development of the child Y are in danger in reason of sexual abuse; [ 33 ] ORDERS that the children remain with their family; [ 34 ] ORDERS that the parents report periodically to the Director on the measures they apply in their own regard or their children’s regard to put an end to the situation in which the security or development of the children is in danger; [ 35 ] ORDERS that the children and their parents take an active

part in the application of the measures ordered; [ 36 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the children and their family; [ 37 ] ORDERS that the contacts between the children and their brother Z be determined upon agreement between the parties and in the present of a third party chosen by the Director; [ 38 ] ALL THESE MEASURES for a period of six months; [ 39 ] ENTRUSTS the situation of the children to the Director of Youth Protection A for the execution of the present judgment. __________________________________ BÉATRICE CLÉMENT, J.C.Q.

Me Anne Catherine Bujold Attorney for the Petitioner Me Michel Robert Attorney for the parents Me Karine P. Poissant Attorney for the children Date of hearing: January 13 th , 2017