2021 QCCQ 9515, 2021 QCCQ 9515

Protection de la jeunesse — 211608 2021 QCCQ 9515 COUR DU QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] TOWN OF [...] «Youth Division»

N° : 450-41-007336-192 DATE : April 1 st , 2021 ______________________________________________________________________ IN THE PRESENCE OF : HONOURABLE MICHEL DURAND, J.C.Q. ______________________________________________________________________ IN THE MATTER OF THE CHILD : X, born on [...], 2016 and [SOCIAL WORKER 1] , person duly authorized by the Director of Youth Protection of the CIUSSS A, working at [...], Applicant , and A and B The 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 (DYP) presents an application for revision of the Court decision rendered by Mrs. Justice Monique Lavallée on January 27 th , 2020 whereby she declared that the security and development of the child X were in danger. [ 2 ] On that particular date, there was no contestation and Justice Lavallée homologated and declared executory the measures

agreed upon by all the parties and annexed to her judgment.

The agreement was written in French and the ones related to the custody of the child are the following: − “Que l’enfant soit confié (sic) aux parents en garde partagée; − Que les modalités de garde soient déterminées comme suit : ➢ Une semaine sur deux en alternance entre les parents; ➢ Que l’échange de l’enfant se fasse à la garderie le lundi; ➢ Que l’enfant soit avec la mère à la fête des mères; ➢ Que l’enfant soit avec le père à la fête des pères.” [ 3 ] The involvement of the Youth protection and the province of Québec is not the beginning of the legal adventure between the mother and the father and as a short reminder, it is useful to replicate here the context written by the parties and signed by the parents in the agreement homologated by Mrs.

Justice Lavallée: “1. Le préambule fait

partie intégrante des présentes; 2.

Le contexte familial ou juridique avant la demande en protection (composition familiale, garde/accès, mesures volontaires, entente et/ou mesure provisoire); - L’enfant X, est l’enfant unique des parents - La garde de l’enfant X a fait l’objet de décisions à la cour (sic) Supérieur (sic) du Québec. - Un jugement de l’honorable Claude Villeneuve rendu le [...] 2018; statuant que le déplacement de l’enfant était illicite. - La mère demeure à Ville A (sic) (États-Unis) et le père à Ville B Québec (Canada). - Le juge statut (sic) que le domicile de l’enfant est établit (sic) au Canada. - Un jugement de l’honorable Sylvain Provencher du [...] 2018 confie la garde partagée aux parents selon un horaire un mois, un mois et ordonnait à la mère d’accompagner sa fille lors de tous les transports et échanges. - Une demande en protection et en mesures provisoires a été présentée par la Directrice de la protection de la jeunesse le 28 octobre 2019, confiant X à son père.” [1] [ 4 ] To complete the context, it is also impotant to recall the facts consigned in the agreement that allowed Mrs.

Justice Lavallée to conclude that the security and development of the child were in danger on the grounds of psychological ill-treatment: “- Par le passé, la mère a fait plusieurs démarches en lien avec des inquiétudes d’abus sexuels concernant sa fille de la part du père; - Les services de protection de la jeunesse américains ont été impliqués dans le dossier de l’enfant en lien avec ces allégations; - Une entente multisectorielle a été déclenchée et l’enfant a été rencontrée par les policiers au Québec. - La Directrice de la protection de la jeunesse A a procédé à l’évaluation et n’a pas retenu ce motif; - Un important conflit de séparation persiste cependant entre les parents; - Le conflit entre les parents a un impact important sur l’enfant.” [2] [ 5 ] The agreement signed by the mother and the father with the DYP was supposed to last one year.

On July 15 th , 2020, the Director files an application for revision of the decision of Mrs. Justice Lavallée, dated January 27 th . [ 6 ] The day after, on July 16 th , Mrs. Justice Claire Desgens will proceed on a provisional measure alleging the following facts in the Director’s allegations: “

a) The child and her family have a follow-up with the Director of Youth Protection in accordance with a decision rendered on January 27th, 2020;

b) Since that date, developments have come to the attention of the Director of Youth Protection;

c) The father and the mother regularly report to the Director situations of physical abuse that would have happened during the other parent’s custody;

d) It appears that these reports are unfounded;

e) The child is subjected to physical verifications by both parents when she comes back from the other parent;

f) The mother subjected the child to intra-vaginal and intra-rectal examination at the return from a visit with her father;

g) The child have been brought to the hospital on various occasions to undergo various tests;

h) The child is used as an instrument in the conflict opposing the parents;

i) The father recently showed openness and modified some of his attitudes towards the child and is taking efforts to alleviate the parental conflict;

j) The mother offers a mitigated collaboration with the Director and continues to supply the parental conflict;

k) The child posesses double nationality (Canadan (sic) and United States). In the past, the mother ran away from Canada and took refuge in the United States with the child.” [3] [ 7 ] As mentioned on the procès-verbal of July 16 th : “La mère mentionne vouloir déposer des pièces aujourd’hui. Elle conteste la demande et veut procéder. » [ 8 ] After four and a half hours of debate between the parties and explanations from Justice Desgens, the mother agrees to the provisional measures and so does the father.

Considering the consent of the parents, the Court grants all the provisional conclusions required by the DYP, but Justice Desgens wants to be clear and here are her comments: “And I'm very glad that you arrived at that conclusions, Mrs. A, because I won't hide behind that. I will tell you that that was the decision that I was going to deliver anyway.

So, I want you to understand that.” [4] [ 9 ] So the child was entrusted to her father and the mother was authorized to visit with her daughter for two hours a week, under supervision, with the authorization for the DYP to lift such supervision if the evolution if sufficiently positive to allow it. [ 10 ] Now, on January 11 th , where the case is ready to proceed and counsel for the DYP presents the Director’s modified conclusions, and namely: “ WHEREFOR THE APPLICANT PRAYS THE COURT : TO GRANT the present application; TO DECLARE that the security and the development of the child X are still in danger; TO REVISE the Court order rendered on January 27, 2020 in the present file; TO ENTRUST the child X to her father; TO AUTHORIZE , in favor of the child, contacts with her mother upon agreement between the parties and according to the modalities determined by the Director of Youth Protection.

In the absence of an agreement, contacts will occur once a week for three (3) hours; TO ORDER that the child attend daycare, full-time.” [ 11 ] As for the rest of the modified conclusions, they will appear at the end of the present decision. [ 12 ] Counsel for the mother declares that the mother wants to have shared custody of her daughter. [ 13 ] Counsel for the father says that the father agrees to the conclusions but later on, on the second day of hearing, on February 8 th , the father claims in his testimony that it would be in the child’s best interest that the supervision be maintained for her stability and to correct the reactions that she presents upon returning from the contacts with her mother. [ 14 ] The child’s attorney reserves her position and after assessing the documentary evidence and the testimonies, she agreed at the end of the day, on February 8 th , that the conclusions required by the Director were in the child’s best interest.

ISSUES IN DISPUTE 1. Is the shared custody in the child’s best interest, right now? 2.

If not, is it necessary to maintain supervised contacts to avoid reactions from the child upon returning to her father? [ 15 ] Mrs. [Social Worker 1] considered that it is not the time yet to implement a shared custody. [ 16 ] She observes since the provisional measure that there is a positive evolution in the child’s situation: she is happy with her father, more calm, benefits of a good routine and her needs are responded. [ 17 ] Since the provisional measure, as she said on January 11 th , there was additional report, no bruises, and the child was not questioned or examined as it used to be the case in the past. [ 18 ] Since the child has found calm and stability at the father’s place, Mrs. [Social Worker 1] strongly believes that the conditions are not in place right now for a shared custody between the parents.

A lot of work has still to be done and namely, co-parenting needs to improve, the parental conflict to be reduced and communication between the parents is still lacking. [ 19 ] Mrs. [Social Worker 1] brought back to the attention of the Court that in the past, they went through that process of going to shared custody too fast and it caused the child to be back and forth between the parents which caused instability at her young age.

[ 20 ] When asked if the DYP considered finding a neutral milieu for the child, she said no because she is evolving well with the father and she would suffer more impacts if she had to be placed in a foster home.

And also, she repeated that the needs are fulfilled by the father. [ 21 ] After the provisional decision from Justice Desgens authorizing supervised contacts for the mother for two hours per week, Mrs. [Social Worker 1], a Master degree in psychoeducation, in charge of the child’s situation, explains in her complementary report (exhibit D-8) what happened on the first contact: “At the last audition, the court authorised supervised contacts between the mother and child for a period of two hours every week.

In order to allow more time for the mother to demonstrate her abilities and progress, the visits are increased to three hours a week on November 26 th . The contacts generally go well. In the beginning, the mother engaged in few interactions with her daughter and lacked a certain structure in her visits. We also noticed X undressing for her mother during the very first contact, where A did not stop her and even noticed a scratch on her leg and questioned her daughter about it. An intervention was made with the mother regarding this and hasn’t happened again.

We also noticed the mother trying to pass on subtle messages to her daughter during the first visits, something that has also been resolved.” [ 22 ] The fact that this child at such a young age spontaneously undresses at the first contact with her mother, is very evocative of what she was submitted to in the past (examinations, questioning…) and speaks volume about the influence of such behaviour on her. [ 23 ] Thereafter, Mrs. [Social Worker 1] went on to explain that the mother became more adequate and was more cooperative putting into application the advices she was giving her.

She had more interactions with her daughter, was able to build up a routine and the visits were better structured. [ 24 ] As she explained in her testimony on January 11 th , it came up to a point around Christmas time where she was ready to try lifting the supervision.

She wanted to see if the mother was able not to imply her daughter in the conflict outside of a supervised atmosphere. [ 25 ] The psycho educator went on to explain that she told the parents that she would accompany the mother at the beginning of the next visits and after three weeks, she would sit down again with the parents to discuss the child’s evolution and if there were impacts or not after four weeks. [ 26 ] She wanted the parents to exchange on the situation and after, they could decide with her if the conditions were there to add weekends for the child with her mother.

The objective was clearly to go into co-parenting. [ 27 ] For the process to go on, she clearly stated what the Director expects from the parents. [ 28 ] From the mother, she expects consistency in her cooperation, surveillance when she has X with her, transparency, meaning that she expects the mother to tell her if there are difficulties so that she will be able to help her instead of coming to Court automatically. [ 29 ] Mrs. [Social Worker 1] also expects that she will be able to work as a team with the mother and that she will be able to communicate information to the father and not use X to transmit such information. [ 30 ] And moreover, she expects that the mother will not submit X to physical examinations again, questioning the child after the contacts and will be able to do whatever is necessary not to involve X in the conflict. [ 31 ] From the father, Mrs. [Social Worker 1] expects him to collaborate and expects transparency from him too. [ 32 ] She wants him to take notes of his observations on return of X from the visits with her mother.

She also wants from the father to reduce his rigidity when there are collective meetings with her and the mother. She expects from him to maintain his follow-up and a positive attitude towards the mother. [ 33 ] Finally, she expects from him that he will be helpful to implicate X in the mother’s life and improve his co-parenting skills. [ 34 ] In her cross-examination, counsel for the mother wanted to know from Mrs. [Social Worker 1] if she understood from Justice Desgens’ decision that she was allowed to lift the supervision.

She answered that she understood and that she knew she was allowed to lift the supervision. [ 35 ] “So why did you not” counsel insisted? Mrs. [Social Worker 1] answered: “The mother still had concerns about a sexual abuse by the father. She was not ready to lift because the child had been through so much investigating and questioning. X had generally been through a lot that she felt it was too soon to lift the supervision. [ 36 ] Again, she acknowledged that there was an evolution in the mother’s situation.

She was more open towards the father, could negotiate and also compromise at times. [ 37 ] But answering the next question on what is missing to normalize the contacts, she wants to see if the mother is capable of maintaining her cooperation through time, work on her co-parenting skills and see if both parents are able to exercise their parental authority together. [ 38 ] She also added that it is difficult to establish a shared custody when parents cannot exchange productively without the social worker being present. [ 39 ] Counsel for the father wanted to know if she was aware of legal proceedings in the USA.

Mrs. [Social Worker 1] knows there

were legal proceedings for sexual and physical abuse and the child was returned to Canada. It took two months for the mother to bring her back to her father. [ 40 ] Finally, the attorney for the child wanted to know if the mother really realized the impacts of the conflict and the impacts of all what X had to go through.

Mrs. [Social Worker 1] said “minimally, but not sufficiently enough and the conflict is still very present.” [ 41 ] Then, asking if the mother was only complying, she acknowledged her evolution but wants to go progressively to observe her evolution and observe the mother alone with the child and see if reactions from X will settle or get worse. [ 42 ] The general conclusions of Mrs. [Social Worker 1]’s testimony is that she observes improvements on both parents but she wants to normalize the contacts and attain the shared custody progressively and carefully to avoid regression in the child’s situation. [ 43 ] At the end of her testimony, the Court asked her to put down in writing her plan, step by step, so that all the parties get the same information and that everyone is able to be on the same page.

She committed herself to send her plan to everyone for the next Court date, scheduled on February 8 th . [ 44 ] After Mrs. [Social Worker 1] on January 11 th , counsel for the mother wanted her to react to the fact there are concerns from the father that she could leave for the United States again with her daughter. She stated that she wants to establish here in the province of Québec where she made friends in City B and she applied for citizenship. For her, it is a good compromise otherwise, she would have to travel back and forth between the two countries.

She is not happy with the fact that the father refuses to sponsor her citizenship. [ 45 ] She is followed by the psychologist, Dr. Bélisle, and they are working on her skills to diminish the conflict and minimize the impacts on the child. [ 46 ] Dr. Bélisle is helping her to be able to understand the position of the father and that he is also a victim of this conflict. [ 47 ] Mrs. A mentions that her relationship with Mrs. [Social Worker 1] improved a lot and she is doing what she is asking. She turns the relationship and her advices into something positive.

She added that it helps her to have more structure during the visits and to be more adequate when the time comes for departure of her daughter. [ 48 ] She acknowledges that the communications with the father are challenging but she would be ready to go with him in mediation. [ 49 ] Mrs. A denies having a fusional relationship with her daughter, saying that she simply has a beautiful relationship with her. She added: “Mrs. [Social Worker 1] likes to throw out diagnosis without knowing.” [ 50 ] She acknowledged that she is aware that there is nice progression for her daughter in daycare.

She also admits receiving a written report every week from the father to give her informations about their daughter. [ 51 ] Still questioned by her own attorney inquiring if the cases in the United States were resolved, she acknowledged that the cases were still pending. [ 52 ] On shared custody, she said that it would be perfect for X because she loves both her parents and she likes to be with each of them.

She also feels that her daughter has a right to have her two parents. [ 53 ] Now questioned on the impacts on the child after her contacts with her, she answered that she took class and it helped her not to be anxious for any little bruises.

She claims that all those bruises when her daughter was with her, probably came from the fact that she is incredibly active and she knocks everywhere. [ 54 ] One other reason why she would like to have shared custody, is that she misses the evolution of her daughter. [ 55 ] Counsel for the DYP asked the mother how she explains that X has no more bruises since is with her father and the visits are supervised: the mother says that her daughter has more control over her body. [ 56 ] Since the mother previously tried to explain some of her reactions with the fact that she could have Asperger’s Syndrome, counsel for the DYP asked her if she told her psychologist, Dr.

Bélisle, about this.

She shaid no, because “it was nothing of consequences…” [ 57 ] She denied having admitted to Mrs. [Social Worker 1] as it is written in the report that she asked X to take the father’s cellphone, saying “it is a lie, she had never admitted that.” [ 58 ] Counsel for the father asked the mother if she remembered that in last January, she took an engagement to abandon all Court cases in the United States and she says no. [ 59 ] Finally, when asked by counsel for the child why her custody was granted to the father, the mother answered because the DPJ thought that X would be protected, because she was having her evaluated, examined for sexual abuse.

She added that she has learned to be more diplomatic with these concerns. [ 60 ] Then, counsel for the mother called the father as the next witness and she asked him if he had any apprehension towards the mother.

Spontaneously, the father said “of course I did” because his daughter was coming to him with bruises on both cheeks and both eyes. [ 61 ] She asked him why he refuses to go into mediation and the father said that he was trying to in August, adding “I tried to put the “ache de guerre” in the ground, but there was procedure for outrage au Tribunal.” He also added that he has difficulty to make some agreements with the mother when the prior agreements are not respected. He was referring to the fact that the mother was supposed to

abandon the legal proceedings in the United States. [ 62 ] Counsel for the mother asked him directly why he objects to increase the contacts with the mother. The father explains that he wants to be prudent because over a period of 24 months, he had custody of X for 18 months and he saw the impacts on his daughter from going from one household to the other. [ 63 ] Nonetheless, he says that he would like to have a fifty-fifty agreement with the mother when it is appropriate to do so.

He says that he has put “de l’eau dans mon vin” many times. [ 64 ] When asked if his daughter is missing her mother, he says not that much but he puts pictures of the mother in different places to encourage his daughter to think of her mother. [ 65 ] He was very affirmative that he sees the future on the basis of a fifty-fifty custody with the mother and he did not hesitate to say that he is ready to go to parental coaching with the mother. [ 66 ] On January 11 th , the case was adjourned for a period of a little more than three weeks and resumed on February 8 th .

Since new facts occurred, Mrs. [Social Worker 1] was invited to inform the Court of the new situation. First, as promised, she produced the plan required by the Court and it will be annexed to the present decision as exhibit D-10. [ 67 ] As for the new facts, X presented reactions after visiting her mother: on January 14 th , she was hiding from her father when he went to get her back and on the 21 st , she pushed a child off a hill which is something very out of the ordinary. [ 68 ] On January 28 th , X starts complaining about a discomfort between her inner thighs, itching, pinching herself.

She also complained to her mother. [ 69 ] On February 1 st , the “Directrice générale” of daycare had preoccupations over this situation where the child was itching, scratching, pinching herself in her inner thighs. The police was called and the officer told the father to consult and bring his child to the hospital.

The father was reluctant to do so but the officer insisted telling the father: “Pour ne pas passer à côté de quelque chose.” [ 70 ] Mrs. [Social Worker 1] checked with the police officer and he acknowledged that he suggested the father to consult and to have a medical examination, to make sure not to miss anything. [ 71 ] Mrs. [Social Worker 1] also checked with the father to understand why he did not inform her of the situation. He told her that his first intention was not to go to the hospital because he did not want to go back to the previous dynamic. He did not want to be blamed for another “signalement”.

It is when the police suggested that he should go and that they would inform the DYP anyway that he decided to go. [ 72 ] Invited to inform the Court if the same measures were required because of these new facts, Mrs. [Social Worker 1] said that there is a stable situation for the child with the father. Nonetheless, she told the parents that if they continue and things are not changing, that she might in the future recommend a neutral milieu for X [ 73 ] She believes that X should be seen by a psychologist because she is deeply immersed or impregnated in the conflict.

As a social worker, she feels that it is hard to interpret her verbalizations or reactions. [ 74 ] Concerning the fact that the reactions were about the same day, she was asked by the mother’s attorney if these reactions could be caused by the fact that she misses her mom: Mrs. [Social Worker 1] explained that it is not the case because when X comes back to her father, she is able to say when she misses her or that she wants to see her. [ 75 ] Concerning the plan (exhibit D-10), Mrs. [Social Worker 1] mentioned that the parents are still at step 1 and what misses to go to step 2 is to stabilize X’s reactions after visiting her mom and to sit down with the parents to have their opinions. [ 76 ] Then counsel for the mother asked Mrs. [Social Worker 1] if the parents trust each other and she said no, each parent stating that the other one has not sufficient capacities or that she or he would do a better job.

It is reciprocal. [ 77 ] Questioned again by counsel for the mother about a neutral milieu, Mrs. [Social Worker 1] said that it is not the first time that she tells the parents that if things are not getting better, it could come to such a recommendation. But she added that the child is with the father since July and it is going better but since the supervision was lifted, there are impacts and the conflict tends to start all over again. [ 78 ] Counsel suggested that the mother does not contribute to the unhealthy dynamic right now.

Mrs. [Social Worker 1] answered that the mother does not trust the father, “she “achète la paix” and we feel that we don’t have the whole truth”. She then referred to her expectations and that there is more work that should be done towards the conflict with the father. [ 79 ] On February 8 th , the father was questioned again and the first subject was the agreement in January 2020 where the parents were told to put the conflict to rest. The mother needed to stop legal proceedings in the USA and the father had to do the same in Canada.

He said he has done his part of the deal. [ 80 ] Then he was interrupted by counsel for the mother who said that the mother was ready to drop all pending files in the United States. [ 81 ] The Court wonders why it is not already done since the matter was discussed a year ago in January 2020 and the mother said on January 11 th that she was still ready to abandon those proceedings in the United States. [ 82 ] And now, a month later, it is still not done and she again engages herself to do it. On this matter, the Court believes that the

father is more credible. [ 83 ] Concerning the fact that he took X to the hospital at the end of January, he is very affirmative that he did not make a “signalement” but it is the police officer who told him to consult at the hospital. [ 84 ] He suggested to his daughter to talk about itching and discomfort to her vagina to [Social Worker 1] or to her mother because she is a doctor. He said he defended the mother. [ 85 ] The father also disagrees with the fact that the mother is trying to say that he wants to control.

He is obviously worried that the first night supervision was lifted his daughter had a mistrust look and was running away and hiding from him. [ 86 ] After the second visit without supervision, X was aggressive and pushed another child off a hill, which was never seen before by daycare. [ 87 ] He observes that supervision is lifted for three hours of contacts and we get reactions again.

He wants peace for his daughter adding that for the last 8 months, nothing happened, his daughter was happy and calm and now, with no supervision, he is afraid to be back to square one. [ 88 ] The father wants the Court to take notice that in January 2020, he agreed to shared custody and signed the agreement. He still believes that it should be the goal because X needs both her parents. [ 89 ] He honestly admits that the mother is not the sole responsible for the conflict and not even for the cuts and bruises on his daughter, but he observes that it happened on the mother’s watch.

Since X is with him, it did not happen. [ 90 ] Mr. B also wanted to comment on the fact that the mother said he does not like her family and he wants to deprive X from seeing her cousin Y, seeing again a form of control. The mother says that X likes to talk to her cousin Y and that he is a good kid. [ 91 ] The father does not share the same opinion because his daughter told him since the last judgment that her cousin Y hit her in the face. He finds that relation “toxic” because Y makes her think of negative stuff.

When X is speaking of her cousin, it is negative and she talks about killing, cutting… [ 92 ] He asked the mother to suspend the contacts to avoid all that for his daughter. And if this relationship between the children must go on, he feels that it should at least be supervised. Analysis [ 93 ] The undersigned does not normally give so much details in this type of cases of parental conflict but felt necessary to do so because this conflict has been going on for a few years and is still quite active. The Court still feels the tension between the two parents even if they both try not to let it show.

The impacts were severe on their 4-year old daughter. [ 94 ] The Court deplores that the two Court days of hearing were unfortunately an occasion to reopen some old scars. A couple of interventions were needed towards the attorneys in order not to put fuel on a fire already burning. [ 95 ] Both parents recognized to each other their parental capacities.

The mother said that the father is a good father for her daughter and so did the father, recognizing that she is a good mother. [ 96 ] Despite this positive attitude, it is obvious that they don’t trust each other and they both believe that they would do a better job educating X than the other parent. [ 97 ] Counsel for the mother argued that her client admitted her difficulties to manage her emotions and acted through impulsivity in the past. [ 98 ] Now, she claims she is more calm, presents a positive attitude and would like to see her little girl grow up. [ 99 ] Her follow-up with Dr.

Bélisle paid off because he did not hear any negative speeches from her and he concludes that she developed a psychological maturity. [ 100 ] Counsel also says that Mrs. A cooperates with the DYP and is able to apply what is being required from her.

It would be more precise to say as the mother did herself, “I give them the benefit of the doubt.” [ 101 ] She also pointed out that the mother is ready to go through a mediation process with the father and also workshops on co- parenting their child. [ 102 ] Finally, we conclude that counsel for the mother did a good job to put the positive changes of the mother under the spotlight. [ 103 ] It is important to say right now that Mrs. [Social Worker 1] admitted herself these changes on the mother’s part and a certain evolution.

Nonetheless, there is still work to be done. [ 104 ] And we have to realize that the evolution of the mother, though positive, is only one part or side of the equation. The Court has to look the situation as a whole and primarily through the lenses of the child, her needs and her best interest. [ 105 ] As much as Mrs. A’ attorney had laudatory comments for her client, as much she was blameful towards the father. It is logical for her to be partial because she represents the mother and not the father. However, the arguments need to be consistent with the evidence, which was not always the case.

[ 106 ] For instance, counsel for the mother blamed the father for not sponsoring the mother in her process to obtain her permanent residency in Canada.

When you feed a conflict with a person for so many years to the point of accusing this person of sexual abuse on his daughter without evidence, it is not very tempting for that person to do you any favor. [ 107 ] When these suspicions become so serious that the child is questioned, brought to the hospital and examined by doctors on her private parts, it would make any person careful about the mother’s intentions. [ 108 ] And also, the fact that the mother has taken legal proceedings in the United States against the father and though, she engaged herself a year ago to close these American files and they’re not closed yet as of February 8 th , is not inviting either. [ 109 ] Finally, there are certain responsibilities coming with sponsoring an immigrant.

So how can one be comfortable to sponsor a person with whom there is such a severe conflict? [ 110 ] Surely, it would be a nice and generous gesture from the father to do so, but on the other hand, we can understand his reluctance and hesitation as of now. [ 111 ] Another example: in one of her visits with her mother, X has drawn a poster representing her mother and she brought it to her father’s home. Counsel asked a few questions on this poster, like where it was, was it exhibited on a wall, does the father still have it?

Questions about it were raised not only with the father but with Mrs. [Social Worker 1] too. [ 112 ] Counsel for the mother brought it back again in her closing arguments. This criticism is inconsistent with the evidence that counsel herself has introduced. [ 113 ] On January 11 th , she asked her own client how she dealt with the poster. Mrs. A answered to her lawyer substantially with these words: “The father felt the poster was abusive. I should have talked to him before. I should have made an album instead of something to put on the wall. I agreed me being on the poster could be emotionally charged for him.

I agreed to talk to him before in the future.” [ 114 ] The mother did not make a fuss about this poster - a detail for the Court - but she was rather understanding and diplomatic. [ 115 ] One more inconsistency: the mother told the Court she asked the father to let her take X for lunchtime when she is at school. D, the person in charge of the daycare, did not agree with the request and explained the father that they don’t allow it for other children, because they want them to eat together and after go for a nap at the same time. They wake all the children at the same time in the afternoon.

Daycare does not want to disrupt their daily

schedule and routine. [ 116 ] So the father explained the situation and offered the mother to take X for breakfast instead. “Mother agreed”, he said and she never contradicted this offer. [ 117 ] Finally, counsel for the mother concluded saying that the mother evolved, but the father did not and is right back to where he was “à l’origine”. [ 118 ] This again is inconsistent with the evidence introduced by counsel for the mother herself.

She was cross-examining Mrs. [Social Worker 1] and she asked her if the father was reluctant to increase contacts between the child and her mother. [ 119 ] Mrs. [Social Worker 1] answered that at first, he was a bit worried because of the past and she told him that the mother was evolving and that they both needed to move on and lift the supervision at some point. He agreed to go gradually. [ 120 ] Afterwards, counsel for the mother herself asked Mrs. [Social Worker 1] if she was concerned with Mr. B’s rigidity. She answered substantially “that’s the reason we told him to maintain his follow-up.

But when we explained to him the interest of the child, he is open, he moves and he wants the best for X. He is not rigid .” [ 121 ] Counsel for the mother ended her closing arguments saying that the Court has to ask himself why the DYP has not lifted the supervision earlier to normalize the contacts since the Director had to authorization of Justice Claire Desgens in her provisional decision. [ 122 ] The Court does not have to raise the question again because counsel for the mother asked that question to Mrs. [Social Worker 1] and she gave a clear answer that the Court reported earlier in the present decision.

She felt the favorable conditions were not present yet. The child presented some reactions and it was too soon and too fast to proceed with the lifting of the supervision. Decision [ 123 ] Instead of damaging the credibility of the father, the mother’s attorney’s questions gave him the opportunity to get the best out of him. [ 124 ] It allowed the Court to observe that the father was generally focused on X’s needs and best interest. This being said, it does not mean that the Court does not think the mother is not concerned by X’s needs or best interest.

She loves her daughter and there is no doubt about it. [ 125 ] Nonetheless, the father appeared more focused on X’s needs and he developed a reflex to think of X’s interest first when he makes a decision.

He does not want peace for himself as suggested by the mother’s attorney, but there was a lot of sincerity when saying he wants peace for his daughter. [ 126 ] Even so, he wants the child to have a good relation with her mother and he hopes for a shared custody as he agreed to, a year ago, when conditions will be back in place. [ 127 ] The Court really pondered over this situation and observed that Mrs. [Social Worker 1] is the only neutral and objective person

in the present situation and the prudence reflected in her plan is far from being unreasonable. [ 128 ] With regard of the balance of probabilities principle in such civil matter, the Court concludes that it is more probable, for the child’s best interest, to follow the psycho educator’s plan. [ 129 ] The mother said she felt X’s pain when she was separated from her last summer.

We don’t need a lot of imagination to foresee that if we go too fast and it doesn’t work for one reason or the other, it would be sad for the parents, but more so, it would be a catastrophe for their little girl. [ 130 ] Counsel for the mother referred to a decision where the Court says: “La présence de difficultés de communication n’est plus considérée comme un obstacle absolu à la garde partagée lorsqu’il existe une capacité minimale de communication entre les parents.” [5] [ 131 ] The undersigned agrees with the decision and has always been a strong believer in shared custody to grant access to the child to both parents equally. [ 132 ] But in the present case, it is not only a communication problem.

The conflict has been lasting for a few years. The parents were careful of what and how they were saying things in Court. But we can feel the fire is still burning and tensions are really present. And these two days of hearing did not serve as a healing process. [ 133 ] It appeared to the Court that it is more than a communication problem. It is a mindset, a state of mind. They don’t trust each other despite some kind words sometimes for one another. [ 134 ] And mainly and primarily, there are impacts since supervision was lifted and it is not the first time that shared custody was experienced.

There is history in this situation. [ 135 ] So the Court feels that prudence and a gradual process are more promising because the key word for X’s needs is stability .

It is also one of the criteria mentioned in the same precited decision: “Cet arrêt de principe de la Cour d’appel du Québec met en lumière les critères devant être considérés lors de l’établissement d’une garde partagée : l’intérêt et la stabilité de l’enfant , la capacité parentale, la capacité des parents de communiquer entre eux et l’absence de conflits, la proximité des résidences respectives des deux parents, la présence ou non d’une contre-indication particulière et le désir de l’enfant.” [ 136 ] At the end of those two days, counsel for the child endorsed the Director’s conclusions.

She explained that the recent reports led her to believe that there was “ouverture” from both parents. [ 137 ] She also found out that her little client had found peace for the last 8 months with her father. And then supervision was lifted and there were some reactions from the child. [ 138 ] She also believes that the parents want what is best for their daughter.

She added that they are throwing flowers at one another at some point but it is obvious that they don’t believe in one another. [ 139 ] She recalled that there was some kind of a “ping-pong game” in the past where the child was in Québec and then in the USA and then in Québec again and afterwards a shared custody was established. [ 140 ] According to her, it did not work because the parents were not ready, they were not trusting each other and co-parenting did not work. [ 141 ] She ended saying that the father wants to protect his daughter and he is reluctant because he has worries since he went through a lot because of this conflict with the mother. [ 142 ] As for the mother, she acknowledged she is more calm, more cooperative but she said that she is complying without really believing in the father’s capacities. [ 143 ] For X’s counsel, it is probably a feeling originating in part by the messages written by the mother or by her friends on her Facebook account where in one, she says “Pray for X we are under attack.” This kind of stuff can raise doubts towards the real intentions of the mother and her real ideas about the situation. [ 144 ] She said that these are old messages and she does not agree with what her friends were saying, but still, they were still present on her Facebook account. [ 145 ] It might not be important but it is not helping to gain trust instead of raising doubts. [ 146 ] Finally, counsel for the child agreed to the DYP’s modified conclusions. [ 147 ] The Court told the parties on February 8 th that due to a very busy schedule, they should not expect the decision within a month.

It took longer than expected and considering this situation and also the fact that Mrs. [Social Worker 1]’s “step by step” plan is already in progress, the 12 months required will be calculated from the date (February 8 th, 2021) the Court took this case under advisement. FOR THESE REASONS, THE COURT: GRANTS the present application according to the modified conclusions dated January 6 th , 2021; DECLARES that the security and the development of the child X are still in danger;

REVISES the Court order rendered on January 27 th , 2020, in the present file; ENTRUSTS the child X to her father; AUTHORIZES , in favour of the child, contacts with her mother upon agreement between the parties and according to the modalities determined by the Director of Youth Protection.

In the absence of an agreement, contacts will occur once a week for three (3) hours; ORDERS that the child attend daycare, full-time; ORDERS that the parents periodically report to the Director of Youth Protection concerning the measures they apply in their own regard or in their child’s regard in order to put an end to the situation that places the security and development of the child in danger; ORDERS that the parents participate actively and with transparency to the measures ordered, specifically regarding the actualization of the intervention plan, the psychological follow-up and the necessary steps that need to be taken in order to treat the issues regarding co- parenting, such as mediation; TAKES NOTICE of the parents’ commitment of preserving a positive image of the other parent when they are in presence of the child; RECOMMENDS that the parents maintain their individual follow-ups for the time deemed necessary by the concerned professionals; ORDERS that a person, working for the Director of Youth Protection of the CIUSSS A or any other establishment or body, provide aid, counsel and assistance to the child X and her family for a period of one (1) year, to be calculated from the date the Court took the case under advisement on February 8 th , 2021 ; ENTRUSTS the situation of the child X to the Director of Youth Protection to see that the measures are carried out. __________________________________ Michel Durand, J.Q.C.

M e Idil Abdi For the Director of Youth Protection M e Geneviève Lafontaine For the child Me Valérie Assouline For the mother Me Gilles Naud For the father Dates of hearing : January 11 th and February 8 th , 2021 Written and signed reasons : April 1 st , 2021 Last exhibit : D-10 [NDLE : Cette entente n'est pas disponible.]