2012 QCCS 3866, 2012 QCCS 3866

Droit de la famille — 122125 2012 QCCS 3866 SUPERIOR COURT (Family Division) CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL No. 500-04-044726-074 DATE: July 3 rd , 2012 ____________________________________________________________________ PRESENT: THE HONOURABLE MARIE-FRANCE COURVILLE J.S.C. ____________________________________________________________________ D. C. Applicant v. R. G. Defendant ____________________________________________________________________

JUDGMENT ____________________________________________________________________ [ 1 ] The applicant is seeking supervised access to his children. The defendant is opposed to it and is requesting that access be formally prohibited. [ 2 ] The four children told their attorney that they do not want to see their father, and the three older children reiterated their choice at a hearing before the Court.

The three sons are 16, 15 and 13 years old and the daughter is 10. [ 3 ] The evidence consists of the testimony of: • the applicant and the defendant; • Julie St-Germain, the applicant’s probation officer since January 29, 2009; • M. L. and C.

B., friends of the applicant; • Derrolton James, coordinator for the [Centre A]; • Annette Perry, social worker, who has been seeing the eldest child at [School A] since 2007; • Sophie Galiana, human relation agent at Batshaw Youth and Family Centres, and Geoff Wyatt, youth protection delegate at Batshaw regarding the placement of the eldest child; and of the following documents:

• P-1 and P-3 • P-5 to P-7 • D-1 to D-4 • D-5 to D-9 • D-11 and D-12 • D-13 to D-15 Letter by Julie St-Germain, probation officer, dated October 13, 2009; and Probation order of D.

C.; Letter by Derrolton James, MSW, PSW, [Centre A], clinician coordinator of services for Anglophones, dated September 29, 2010; Court proceedings of the Court of Québec, Youth Division, District of Montréal, dated May 12, 2011, in file number [...]; and Judgment of Ann-Marie Jones J.C.Q., Youth Division, District of Montréal, dated June 1, 2011, in file number [...] Psychosocial report from [School A], prepared on April 8, 2008; X’s medical record from the Montreal Children’s Hospital; X’s medical record from the Douglas Mental Health University Institute; and the record of the Director of Youth Protection concerning D.

C.; Y’s third cycle report card for 2010-2011; psychoeducational report concerning Y, prepared on May 20, 2009; report by Ma… P…, director of [School A], concerning Y; hearing assessment dated April 26, 2010 concerning Y; Z’s third cycle report card for 2010-2011; A’s interim report card for 2010-2011; and Court report signed by Sophie Galiana; DYP records concerning Z, A and Y. THE FACTS [ 4 ] In a report prepared in May 2011, in which she declared that the security and development of the eldest son, age 16, were in danger under

section 38(

f) of the Youth Protection Act , Sophia Galiana, of Batshaw Youth and Family Centres, described the family context until 2006 : « A. Family History Ms. G. was born and raised in Town A; she is the second eldest of four children. She describes her family as warm and loving. Her

mother was a home maker while her father worked. Her parents still remain together. Ms. G. was never exposed to conjugal violence between her parents. She expresses having a strong bond with her family members. Mr. C. Mr. C. was born in Town A. He has a younger sister and older brother. His father passed away before his birth. When Mr. C. was two years of age, Ms. D. began a relationship with Mr. Ga., who was father figure to him. Mr. C. describes his childhood as positive and reports having been well taken care of. At 18 years of age, Mr. C. rebelled no longer wanting to follow his mother’s rules.

He began getting involved with drugs. Couple The couple met when Ms. G. was fourteen years old. They met informally on the street. Mr. C. is ten years older than Ms. G.. Ms. G.’s parents were no supportive of this relationship. At 15, Ms. G. chose too run away with Mr. C.. The police and the DYP subsequently became involved. Family At 16, Ms. G. became pregnant. At the time, she did not recognize the control he had over her. She described being very isolated and not being allowed to speak to family members or friends. According to Ms. G., Mr. C. became increasingly controlling following X’s birth.

She was fearful and believed there was no way out. Mr. C. showed little interest in X as a baby and did not help care for him. When X reached pre-school age, Mr. C. began bonding with his son. He showed little interest to the other children, other than waking them up at night to ask questions about her mother. Mr. C. reports having made verbal threats to Ms. G., but states having hit her only once. He does admit to severe drug use which include cocaine and the prescription medication, valium. Mr. C. sold drugs during this time. In 2006, Ms. G. left with her four children and went to a women’s shelter.

The relationship was characterized both physical and verbal violence, which the children were exposed to.» [ sic ] [ 5 ] The testimony and the documents filed make it possible to establish subsequent events. [ 6 ] During the year 2006, signalements were made to the Director of youth protection concerning behaviour problems of X, the oldest child. [ 7 ] On December 20 th , 2006, the Honorable Judge Michel Jasmin of the Quebec Court rendered a judgment. [ 8 ] According to the judgment, the care of that child was entrusted to the Defendant and the contacts between the child and the Applicant were prohibited “until the father demonstrated a substantial change of behaviour”. [ 9 ] On February 23 rd , 2007, the Honourable Judge Michel Jasmin rendered a similar judgment concerning the three other children.

[ 10 ] In April 2007, the Director of youth protection reviewed the situation of all the children.

At that time, it was decided to close the file of the four children given that the Defendant had taken all the necessary steps to protect her children. [ 11 ] The Applicant was detained between May 7 th , 2007 and November 17 th , 2007, and on November 16 th , 2007, he received a suspended sentence with a three years probation. [ 12 ] On May 29 th , 2007, a judgment was rendered by the Superior Court granting the custody of the four children to the Defendant. [ 13 ] Since the parties separated, the Defendant denied to the Applicant access to the children.

Notwithstanding her denial, the Applicant had contact with the oldest child, X, at least six times between the end of March 2011 to the end of April 2011. In January 2009, X spotted the Applicant near his home and became very upset. He started to cry and expressed that he was feeling scared and wanted to hurt himself. That evening, X put a tie wrap around his neck.

At the hospital, he reported that he was fed up of seeing his father driving around his home. [ 14 ] Since the break up of the relationship, the Defendant has been struggling to obtain services to help the four children. [ 15 ] Two of the children have learning disabilities. [ 16 ] X has been diagnosed with having a mild intellectual disability and possible ADHD. He attends a school to meet his special needs and develop his functional skills.

He is known to have far below average cognitive functioning. [ 17 ] Y also has been diagnosed with having learning disabilities and has been given appropriate help from his school. [ 18 ] A and Z have been receiving psychosocial help to cope with the effects of the Applicant violent behaviour.

TESTIMONY The applicant [ 19 ] The applicant testifies having stopped consuming drugs during his incarceration and having remained sober since his release from jail in November 2007. [ 20 ] He has relocated himself outside of Town A, away from negative influence, to stop completely his involvement in criminal activities. [ 21 ] When the children were young, he would take them for car rides so they would fall asleep and the defendant could have a break. When they got older, he would take them to school, Parc Safari and La Ronde.

He stated that he has never been violent or made threats in front of the children. [ 22 ] Despite the prohibition of contact, he saw the children a few times during his probation period, but it was one of his friends or the defendant who took the children to his home. [ 23 ] On several occasions, after his probation period, he saw his eldest son, who seemed to want to have contact with his father, according to what he said on April 11 and 15, 2011 to the attorney mandated to represent the children.

But a few weeks later, the child was again the subject of a placement order, and he expressed the desire to no longer see his father.

[ 24 ] According to the applicant, that decision can be explained by the alienation engaged in by the defendant with regard to the children, mainly the eldest son, and her threat to have them placed. [ 25 ] The applicant does not know why all the social workers involved in his case wrote completely false things about him or why they never wanted to talk with him, as the probation officers did. [ 26 ] Frustration, not anger, made him say that he will not comply with the Court’s orders and that “he will take the matters in his own hands”.

The defendant [ 27 ] In the defendant’s opinion, the applicant’s relationship was good with the eldest child, but not with the other three children. [ 28 ] She explained that the applicant never went to medical or school appointments, did not take

part in the children’s activities, and took them to La Ronde and Parc Safari only once, in 2006. [ 29 ] She said that the children do not want to see the applicant because they do not have fond memories of him and remember that their mother’s car was damaged, its windows broken and tires punctured, and that they had to leave home at 5 a.m. when their father was on drugs. [ 30 ] Given that she underwent therapy, consulted caseworkers at the CLSC and elsewhere, and acquired the tools necessary to better cope with her children’s problems, she thinks she has become a good mother. [ 31 ] She firmly believes that it is not in the children’s best interest to have contact with their father, because the father is not a positive model for them. [ 32 ] The defendant will not be happy if supervised access rights are granted to the applicant, but she will do what is required for contact to take place as planned.

Julie St-Germain [ 33 ] According to Julie St-Germain, probation officer, the applicant’s probation program included conditions, one of which was anger management therapy. At first, the applicant was reluctant to undergo the therapy, but he finally did at the end of his probation. [ 34 ] The applicant admitted to her that the children witnessed his violence toward the defendant. Ms.

St-Germain feels, however, that the applicant does not fully evaluate the impact that the violence has had on the children’s behaviour. [ 35 ] The statement that he would not comply with a Court order preventing him from seeing the children means, in her opinion, that he still has difficulty managing his violence and emotions. Geoff Wyatt [ 36 ] Geoff Wyatt, a youth protection delegate at Batshaw Youth and Family Centres, was in charge of the eldest son from November 2011 to April 2012, following the applicant’s fourth request to have his son’s social worker changed.

[ 37 ] During that five-month period, Mr. Wyatt met with the applicant about once a month in addition to occasionally talking to him on the phone.

Their contact was respectful even though the applicant was frustrated by the situation. [ 38 ] On April 16, 2012 (that is, after the first two days of hearing in this case, on February 23 and 24, 2012), the applicant told him that regardless of the judgment, he will find a way to see his children. [ 39 ] During the same period, X consistently and freely repeated that he did not want any contact with his father because it led him to behave badly and because his father harbours ill feelings toward the mother. [ 40 ] According to Mr.

Wyatt, if the applicant nonetheless imposes himself in his son’s life, X will panic and will not know how to manage the situation, which will necessarily affect his behaviour.

The children [ 41 ] Accompanied by their attorney and in the presence of their parents’ attorneys, the children took turns telling the Court their opinion on their father’s request and reiterated what they had told their attorney during three meetings, on April 15 and September 19, 2011 and February 22, 2012 (the eldest child, who wanted contact at the April meeting, has since changed his mind). [ 42 ] Given that their father was violent toward their mother when they all lived together, did not take care of them, and always asks questions about their mother, they do not want contact with him.

ANALYSIS [ 43 ] Child law in Québec is mainly based on

article 32 of the Civil Code of Québec , which states the following: «Every child has a right to the protection, security and attention that his parents or the persons acting in their stead are able to give to him.» [ 44 ] The first paragraph of

article 33 of the Civil Code of Québec states that every decision concerning a child shall be taken in light of the child’s interests and the respect of his rights. [ 45 ] Furthermore,

article 34 of the Civil Code of Québec provides that the Court shall, in every application brought before it affecting the interest of a child, give the child an opportunity to be heard if the child’s age and power of discernment permit it. [ 46 ] In fact, the Court must make ample allowance for a child’s choice, to the extent that the child’s wishes correspond to the child’s best interest. [1] [ 47 ] The doctrine and jurisprudence confirm that the Court must give strong consideration to the wishes of a child who is more than 12 years old and give consideration to the wishes of a child who is between 8 and 12 years old.

But the Court is not necessarily bound by the child’s choice. Above all, it must be guided by the interest of the child, which constitutes the main and determinant consideration in reaching its decision. [2] [ 48 ] Admittedly, maintaining sustained contact with the non-custodial parent represents a right for the child and, in principle, is in the child’s interest. [3] However, the child’s interest takes precedence over that of the parent when determining custody and access rights. [4]

[ 49 ] The team of professionals who see to the eldest child’s well-being consider that his cognitive problems require a couple of years of tranquility in order to allow him to reach full age and undergo specialized occupational training. [ 50 ] The second son, who is 15, excels in and wants to play sports. [ 51 ] The 13-year-old son, who suffers from a mild intellectual disability, wants peace of mind, far from the father’s violent behaviour. [ 52 ] The 10-year-old daughter told her attorney that she does not wish to see her father. [ 53 ] Should we set aside their requests and force them to have contact with their father? [ 54 ] Author Michel Tétrault wrote the following on constraint: «La contrainte n'est plus un outil approprié lorsque l'enfant atteint un certain âge.

La prudence est particulièrement de rigueur chez les adolescents qui ont une vision bien personnelle…et ferme de ce qui est dans leur intérêt.» [5] . [ 55 ] The children have very negative memories of the relationship with their father, who was violent toward their mother and who did not share any good times with them. They do not recall any display of warmth or tenderness.

They are now obviously very happy with their mother and they do not want their father to break that peace. [ 56 ] One senses that the wounds of the past are still very present and, especially, still very deep. [ 57 ] Their opinion is important because it is not a caprice and it is the expression of serious, consistent wishes. [ 58 ] The children deserve a happy and carefree childhood. [ 59 ] Even if the applicant is no longer involved in criminal drug activities, his perception of the defendant and his behaviour toward her are cause for concern.

His testimony at the hearing and his comments regarding non-compliance with this judgment are also troubling. [ 60 ] The applicant placed himself on the fringe of society. Clearly, the steps he has taken to overcome his anger and impulsiveness have not yielded all the desired results.

Until there is a significant change in his attitude, his children should not have to deal with his mood swings and verbal or physical aggressiveness. [ 61 ] The applicant’s request must yield to the children’s choice, as this choice has been well articulated and is not a caprice. [ 62 ] Who knows, perhaps one day, after a change in attitude and behaviour as a result of having sought the help he still needs and becoming aware of the negative impact his actions have had on his children, the applicant will regain their trust, appreciation or love. [ 63 ] In the meantime, the stability and emotional security of the children argue in favour of cancellation of the access rights. [ 64 ] Maintaining access rights despite the children’s wishes could affect them in their emotional, social and educational development.

[65] Hence, there is reason to follow the children’s wishes in the absence of proof that their wishes would be against their interest. [66] FOR THESE REASONS, THE COURT: [67] DISMISSES the applicant’s request ; [68] ALLOWS the defendant’s request ; [69] ORDERS that there be no contact between the applicant and his children ; [70] WITHOUT COSTS. ______________________________ MARIE-FRANCE COURVILLE J.S.C. Mtre. Schneur-Zalman Haouzi Counsel for the applicant Mtre. Stéphanie Archambault Aide juridique Crémazie Counsel for the defendant Mtre.

Valentín Molpeceres Counsel for the children Dates of hearing: February 23, 24 and 27, and May 3 and 4, 2012 [1] Droit de la Famille – 2829, [1997] R.D.F. 886 (S.C.). [2] Michel Tétrault, Droit de la famille, 3rd ed., (Cowansville, Qc.: Yvon Blais) at 129; Droit de la famille – 1883, (QC CA), [1993] R.J.Q. 2709 (C.A.). [3] Droit de la famille – 1835, [1991] R.D.F. 180 (S.C.). [4] Droit de la famille – 2473, [1996] R.D.F. 580 (S.C.).