r v. A, 2015 QCCQ 20881

Protection de la jeunesse — 155352 2015 QCCQ 20881 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-003222-083 760-41-004544-139 DATE: November 24, 2015 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X, born [...], 2007 Y , born [...], 2010 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 ] Introduction [ 2 ] The Director of Youth Protection presents motions for the revision and extension of a Court decision rendered on April 22, 2015 in regards to the siblings X and Y. [ 3 ] The said decision prolongs the application of protective measures for 6 months in reason of a situation of psychological ill- treatment stemming from the parental conflict and emotional neglect in the maternal environment.

After hearing the evidence, the Court transfers the children from living exclusively with their mother, to alternating between their parental environments on a weekly basis. [ 4 ] In virtue of the pending motions, the Director alleges the pursuit of the situation of endangerment determined in the preceding instance, adding that this is now compounded by a situation of educational neglect in the maternal environment.

Within the pursuit of various protective measures for 9 months, the Director seeks that the Court entrust the children to their father. [ 5 ] The father consigns his agreement to the evaluation and orientation proposed by the Director. [ 6 ] The mother agrees to the continued application of protective measures in reason of psychological ill-treatment but denies the allegation of neglect. As to the protective measures, she recognizes that X’s behaviours require specific services that she cannot ensure and, as such, stipulates being in agreement to his being entrusted to his father.

As to Y, she asks that the Court maintain the alternate custody in place. [ 7 ] The attorney for the children operates under a legal mandate. After evaluating the evidence presented, she declares that the conclusions sought by the Director represent her client’s best interests. [ 8 ] Context [ 9 ] As of the last order, the parents share custody on a weekly basis. Overall, the children react positively to this change and their integration in their paternal environment. [ 10 ] Initially, the parents are able to cooperate as to issues pertaining to the children, agreeing to vary certain modalities of custodial

time as well as specific access periods. Their communications are limited, but remain civil. [ 11 ] During the summer period, Ms. [Social Worker 1], an educator having offered services to the family in the past, meets individually with the parents and the children in order to evaluate the environments and the children’s functioning. [ 12 ] As to the mother’s environment, Ms [Social Worker 1] testifies that the mother continues to present difficulties as to the exercise of her parental responsibilities, namely in regards to discipline, routine and hygiene.

The witness testifies to observing a lack of affective bond between the mother and her children.

Although the children actively seek their mother’s attention, she interacts little with them, save when they are acting out. [ 13 ] X especially refuses to respond to her authority, which is applied inconsistently. [ 14 ] Ms [Social Worker 1] concludes that the situation at the mother’s home remains essentially unchanged since November 2014, when the services of an educator ended at the mother’s bequest (refer to the preceding judgment for details). [ 15 ] Ms [Social Worker 1] further observes that the children deploy themselves very differently in their father’s environment.

They respond well to their father’s authority an there is a positive family dynamic. The children receive an integral response to their needs, both on an emotional and physical level. In return, they are calm, happy and functional. [ 16 ] Y also presents significant needs for structure and routine. As with her brother, she responds better to her father’s authority. [ 17 ] As of the beginning of the school year, X’s behaviours in school and at his mother’s home degenerate. At home, the mother reports that X refuses the house rules and defies her authority.

He throws tantrums, to which the mother has difficulty responding. She sometimes requires support from a third person to handle X. Similar issues occur in the school setting. [ 18 ] This situation is not observed in the paternal environment, where X continues to function positively. [ 19 ] On November first, a crisis occurs in the mother’s home. X becomes out of control, screaming and throwing objects. The mother locks herself in her bedroom to protect herself. X reports that his mother grabs him by the neck and forces him down on the bed.

Y mentions seeing her mother ‘’choke’’ X and screaming to her mother to stop. [ 20 ] The situation being reported as a physical abuse, the multi-sector agreement is put in place.

X makes a police declaration and confirms the information given to the caseworker and his father. [ 21 ] The mother recognizes X’s tantrum as well as her being overwhelmed by its intensity, but, in describing the event, she states that she only took X’s face between her fingers to have him look at her, denying the physical intervention described by her children. [ 22 ] Following this incident and a review of the situation, the Director evaluates that a situation of educational neglect is present in the maternal environment. [ 23 ] X reports his exposure to drug consumption at his mother’s home.

He offers detailed descriptions of marijuana, its preparation and usage. He states that his mother usually smokes ‘ ’the green stuff’ on the gallery, but when she smokes inside the apartment, he feels dizzy and coughs. His mother’s friends also smoke.

He repeats these allegations to his father and the caseworker. [ 24 ] Y confirms the essence of these facts, also stating that her mother’s smoking can make her feel sick. [ 25 ] X verbalizes not wanting to return to his mother’s home and to live with his father. [ 26 ] To the evaluating caseworker, the mother denies the allegations stemming from the children’s declarations. Although admitting her use of marijuana, she states that she consumes outside the home.

As to the children’s statements as to seeing drugs and associated paraphernalia, she relates these memories from their time with the father and refers to his drug use. [ 27 ] The new complaint provokes the parents ceasing all communication. Both parents declare preferring that this remain the case at present.

On some occasions, the children are witness to verbal altercations during their exchange, implicating members of the extended family. [ 28 ] The father cooperates with the intervention, but increasingly declares his dissatisfaction with the fact that the children remain in their mother’s care and this, in spite the continued difficulties as to hygiene, structure and neglect.

To the Director, he is able to vocalize these frustrations without being denigrating towards the mother, while also being able to stipulate her forces and importance to the children. [ 29 ] The mother states that her relationship with X has been increasingly arduous in the last few months. He refuses her authority, is distant and mentions not wanting to remain in her care.

She accepts that X reside with his father in reason of his violent behaviours and that she doesn’t have the right tools to respond to his difficulties. [ 30 ] As to Y, the mother cites that she doesn’t present the same behavioural issues and is usually well-behaved and affectionate. She sees no reason why Y shouldn’t continue to benefit from the shared custody in place. [ 31 ] Analysis and decision [ 32 ] The parties agree that protective measures remain necessary in view of the situation of psychological ill-treatment.

After evaluating the evidence, the Court endorses that such is the case in reason of the parental conflict in place and the consequences on the children. Although the parents have shown an ability to cooperate and communicate, this has only been in conflict-free periods. The children continue to be quickly impacted during conflicts, requiring the pursuit of protective measures.

[ 33 ] The Court also retains a situation of educational neglect in the maternal environment. [ 34 ] The children offer a consistent version of the mother’s drug use and its impact on them, which is maintained throughout questioning by the caseworker, police and their father. Such is also the case for the incident occurring with X in November. [ 35 ] On these two issues, the mother offers an oftentimes diluted version of events, contradicting the detrimental details of her children’s affirmations. Her credibility fails before the evidence presented.

The Court therefore retains the version of events as described by the children. [ 36 ] These elements are considered in conjunction with previous determinations to determine the situation of neglect. [ 37 ] Within the preceding judgment, the Court retains significant difficulties stemming from the maternal environment and this, notwithstanding numerous services in place since 2008. The application of routine, discipline and structure is deficient. The mother is oftentimes overwhelmed by her parental obligations, resulting in impulsive reactions and conflicts.

Resistance and mitigated cooperation also remain a persistent issue impeding the resolution of the situation of endangerment. [ 38 ] The Court entrusts the children on an alternate basis to their parents after determining that the mother presents chronic difficulties responding to her children’s needs and being an active component of the measures destined to put an end to the situation of endangerment. The Court cites: [46] This measure also allows the children to benefit from the forces of each of their parental milieus, while keeping them partially at bay of the difficulties still existing mother’s environment.

This solution also affords the mother accrued availability for the intervention as well as contributing to minimizing her tendencies to becoming overwhelmed. [ 39 ] The evidence supports that there is little effective evolution in the maternal environment since the last order. The mother struggles with identifying her children’s affective needs and is deficient in the coherent application of structure and routine, situation which has been ongoing since 2011. She also continues to offer minimal collaboration and is distrustful of social services. [ 40 ] The impact on the children is palpable, more notably for X.

Receiving only a partial response to his needs for structure and routine, his behaviours become increasingly difficult, which results in his not functioning well in his mother’s home nor at school. [ 41 ] The divergence as to the children’s functioning in their parental environments is also pertinent, again particularly as to X’s problematic behaviours. This demonstrates that children’s needs for structure and consistency, when met, permit them to flourish and develop.

Concurrently, this same determination shows that such is not the case in the mother’s environment. [ 42 ] The mother’s acceptance of X’s transfer to his father’s custody constitutes an admission of her inability to respond to his needs. [ 43 ] Y doesn’t present behavioural challenges, as is the case with her brother, and it is pertinent to question whether the same measures are in her best interests. [ 44 ] Although Y functions more adequately in her mother’s environment, this fact does not override the evidence to the effect that X’s issues stem in large part from the situation of parental neglect.

This, in conjunction with the determination that the mother is chronically unable to redress her parental capacities in spite of the numerous services in place, justifies the conclusion that Y’s situation not be disassociated from her brother’s. [ 45 ] Furthermore, the siblings share a strong bond and it is in their best interests that they reside together, while benefitting from the same structure and routine. [ 46 ] Notwithstanding that the children remain with their father, the intervention must continue to foster the rehabilitation of the mother’s parental capacities, while maintaining their bond with her.

It is also in the children’s best interests that the Director continue to work with the parents towards determining an effective means of communication, while keeping the children away from parental conflict and/or denigration. [ 47 ] Therefore, after having considered the evidence, the Court endorses the orientation put forth by the Director of Youth Protection.

Additional conclusions are included in the order with the objective of clarifying points of contention as to the exercise of parental authority and communication. [ 48 ] FOR ALL THESE REASONS, THE COURT: [ 49 ] GRANTS the amended motions for revision and extension of a Court order; [ 50 ] DECLARES that the security and development of the children are still in danger in reason of psychological ill treatment and neglect on an educational level; [ 51 ] REVISES and EXTENDS the Court order rendered on April 22, 2015; [ 52 ] ENTRUSTS the children with their father; [ 53 ] ORDERS that the contacts between the children and their mother be determined upon agreement between the parties; [ 54 ] ORDERS that a person working for an institution or a body provides aid, counselling and assistance to the children and their family; [ 55 ] ORDERS that the parents of the children undertake an active

part in the application of the measures ordered;

[ 56 ] RECOMMENDS that the mother of the children undertake a personal follow-up; [ 57 ] PROHIBITS the parents from denigrating the other in the children’s presence and ORDERS that the parents prohibit third parties from denigrating the other parent in the presence of the children; [ 58 ] TAKES ACT of the intention of the Director of Youth Protection to make surprise visits; [ 59 ] PERMITS that X transfer school as of January 2016; [ 60 ] ORDERS that the parents use the communication booklet to ensure the exchange of information as to the children's schooling, activities, health issues and general development; [ 61 ] TAKES ACT that the children's medical cards will follow them at all times and that each parent ensure that such is the case during their custodial period; [ 62 ] ALL THESE MEASURES for 9 months; [ 63 ] ENTRUSTS the situation of the children to the Director of Youth Protection A for the execution of the measures. __________________________________ BÉATRICE CLÉMENT, J.C.Q.

Me Sarah Gaudry Staub Attorney for the Petitioner Me Michèle Héroux Attorney for the mother Me Johanne Leduc Attorney for the father Me Karine P. Poissant Attorney for the children Date of hearing: November 24, 2015