2011 QCCQ 14312, 2011 QCCQ 14312

Protection de la jeunesse — 115194 2011 QCCQ 14312 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT [...] TOWN [...] Youth Division No: 105-41-000311-119 DATE: September 12, 2011 ______________________________________________________________________ BY THE HONOURABLE ROBERT LEVESQUE, J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1] Petitioner and X Child and A and B Parents ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] A petition for protection purpose in respect of X (1998-[...]) is referred to the Court by the Director of youth protection pursuant to sections 38 and 75 of the Youth Protection Act. [ 2 ] The petition is based on the following assertions and facts :

a) the parents separated several years ago and Y and X have always lived with their mother ;

b) the relationship between the parents remains difficult and Ms B talks negatively to the children about their father ;

c) Y and X's situation was reported to the Youth Protection director a few times, due to the fact that they would be neglected ;

d) both children miss many school days and those absences are not justified ;

e) X and Y both failed their last school year and another year previously ;

f) X's glasses broke last May and have not been replaced nor repaired since then, they are just taped ;

g) it is important that Y and X wear their glasses all the time but it is not always the case ;

h) Y and X saw the dentist once in their life, years ago ;

i) the mother explains that their dentist is in town A, but she has been living in this area with the children for several years ;

j) the mother and children have moved four times in the last four years and currently live with the grandmother ;

k) it was very difficult to reach the mother to assess the situation, she did not return many phone calls from the intervener ;

l) the mother says there is absolutely no problem at home or with her children ;

m) the mother requires external control in order to answer the children's needs. [ 3 ] At the hearing, the parents are present and the father is unrepresented. [ 4 ] The mother denies many allegations of the petition but consents to its conclusions. [ 5 ] The father contests as he would like that the child be entrusted to him. [ 6 ] The child's representative informs the Court that he prefers to remain with his mother. [ 7 ] The Court heard the testimony of the parents. [ 8 ] The Court also studied the psychosocial report, a report from the school principal and an evaluation of the father's environment.

The Court also examined a judgment of the Superior court (April 5, 2005), as well as an agreement on custody and child support (March 21, 2005). [ 9 ] The Court also examined documents filed by the father (a dentist report of 2007 and reports from the school). [ 10 ] The evidence reveals that the parents blame the other on many subjects and it is difficult to find where is the truth, especially concerning what happened years ago. [ 11 ] What is important and concerns more the Court is the present situation. [ 12 ] The evidence is clear that the child does not receive a prompt answer to his health needs (dentist and eyeglasses) and he does not receive the proper stimulation regarding the school aspect (homework and presence) ; it is why his development is in danger even if the mother has all kind of explanations to which the Court does not give too much weight. [ 13 ] Especially, concerning the academic aspect, the school reports are more probative and the Court relies on them. [ 14 ] For the dentist, even if there was an agreement that the father would take the responsibility of it when the child visits him, it does not dispense the mother to take care of it. [ 15 ] There are not enough contacts between the child and his father and, again, each parent has his version and blames the other. [ 16 ] They certainly love their child but they have to put aside their conflict in his best interest. [ 17 ] The only question for the moment is : the child is maintained with his mother or entrusted to his father ? [ 18 ] As it is a first intervention under the Youth Protection Act and the mother is willing to collaborate and proceed to the necessary changes and adjustments, the Court must favour this option.

Moreover, the mother has the legal custody and the Court must

take into account the child's desire.

It is not that he has something against his father but one must understand that he is living with his mother since many years in an environment well-known to him where he has a routine and friends. [ 19 ] The Court would hesitate to uproot the child and send him to Town A with his father without an evaluation of the father's parental capacity. [ 20 ] Mr A must continue to be interested in his son's life and to exercise his parental duties and responsibilities, namely to supervise the maintenance and education of his child. [ 21 ] The parents must remember that the agreement and judgment of 2005 are still binding and executory until and unless being revised. [ 22 ] Considering the report's content and the testimonies, the Court grants the petition in the sense of its conclusions including the ones pronounced at the hearing.

FOR THESE REASONS AND THE ONES ENUNCIATED ORALLY AT THE HEARING, THE COURT : [ 23 ] DECLARES that the security and the development of X are considered to be in danger according to

section 38 of the Youth Protection Act ; [ 24 ] ORDERS that the X be entrusted to his mother ; [ 25 ] ORDERS that X and his parents participate actively to all measures suggested by the Director of youth protection in order to put an end to the situation of endangerment ; [ 26 ] ORDERS that the mother be present at all meetings set by the Director of youth protection ; [ 27 ] ORDERS the mother to take the diligent actions so that the child receives dental care and attention without undue delay whenever necessary ; [ 28 ] ORDERS the mother to make sure that the child wears good working order and functional eyeglasses at all times ; [ 29 ] ORDERS the mother to contact regularly the Director of youth protection representative and the school authorities ; [ 30 ] ORDERS that the child takes all prescribed medication ; [ 31 ] ORDERS the mother to make sure that the child attends school regularly but for written medical reasons or exceptional circumstances ; [ 32 ] ORDERS that the contacts between the child and his father be promoted and in accordance with the Superior Court judgment unless different modalities are put in place by the Director of youth protection with the parents ; [ 33 ] ORDERS the mother to make sure that the child is close to a functional phone at the expected time for the contacts with the father ; [ 34 ] ORDERS the mother to make sure that the child has access to his grand-father as provided in the Superior Court judgment of April 5, 2005 ;

[ 35 ] PROHIBITS the mother to hinder the contacts rights of the father and the grand-father ; [ 36 ] ORDERS that a person working for an organism or an establishment provides aide, counsel and assistance to X and his family ; [ 37 ] ENTRUSTS the situation of X to the Director of youth protection of the Centre Jeunesse A until June 30, 2012, for the carrying out of the present measures. __________________________________ ROBERT LEVESQUE, J.C.Q. Me Janick Poirier, for the petitioner Mrs Florence Frappier-Routhier, articled student in law at the Legal Aid Office, for the child Me Marie-Christine Gagnon, for the mother Mr A, the father