2020 QCCQ 9598, 2020 QCCQ 9598

Protection de la jeunesse — 207442 2020 QCCQ 9598 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 550-41-003452-198 DATE: November 4 th , 2020. ______________________________________________________________________ BY THE HONOURABLE JEAN-FRANÇOIS NOËL, J.Q.C. ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION A Petitioner and X Adolescent A B In their capacity as parents ______________________________________________________________________ JUDGMENT (sections 95 and 75, Youth Protection Act ) ______________________________________________________________________ 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 Court is seized of a petition under

section 38 of the Youth Protection Act . (Y.P.A.), whereby the Director of Youth Protection (the Director) is alleging that the security or development of X, aged 14, is endangered as a result of a situation of psychological ill-treatment (exposure to the parental conflict) and neglect (failure to take the necessary steps to ensure that she receive a proper education) by the father as well as a serious risk of neglect as a result of the mother’s fragile mental health. [ 2 ] In terms of measures, the Director’s initial recommendations (June 2019) are that the adolescent be entrusted to a foster family for a period of three months.

Over the course of the hearing, the Director’s position changes and it is recommended (January 2020) that she be returned under her mother’s care. By the hearing’s end (September 2020), the Director recommends that she be entrusted to a foster family for a period of six months. Several services are also recommended, both for the adolescent and the parents, in addition to a social follow-up for a period of twelve months. [ 3 ] The mother denies any wrongdoing and argues that the father is sabotaging the mother-daughter relationship.

While her desire is that X be returned under her care, she does not intend that this be done against the adolescent’s will and will support X and respect whatever decision is made. [ 4 ] The father’s position is that the mother physically abused the adolescent which is why he picked her up and kept her with him until the Director intervened. He claims that she was being home-schooled while under his care and denies any interference with the mother-daughter relationship. He asks that X be returned under his care for the next six months.

If that is not possible, he wishes to have regular and unsupervised access to his daughter. He agrees that his daughter needs services but doesn’t see why he himself would need any. [ 5 ] The adolescent agrees with the motives alleged by the Director. Insofar as the measures are concerned, she would prefer to be entrusted to her father. Should the Court decide otherwise, she would like to remain in her current foster family while being allowed to spend more time with both her parents. A.

MATTERS IN DISPUTE [ 6 ] The first disputed issue concerns the motives for which the security and development of the adolescent may be endangered. More specifically, the Court must determine whether the adolescent is subject to psychological ill-treatment, educational neglect, physical abuse and/or to a serious risk of neglect.

[ 7 ] Should the Court conclude that the security or development of the adolescent is endangered, the second disputed issue will be to determine what appropriate protection measures should be put in place, and for how long. This includes determining whether the adolescent should be entrusted to a foster family or returned to either parent. [ 8 ] The judicial treatment of this case suffered several delays. Following several postponements, the Court heard, on January 6 th , 2020, from Mrs. [social worker 1] (social practitioner), Mrs.

C (foster family) and the mother. [ 9 ] Although the hearing was scheduled to conclude on April 2 nd , 2020, the matter was again postponed because of unforeseen complications related to the pandemic (Covid-19) and concluded on September 24 th , 2020 with the testimony of the mother, Mr. D (mother’s friend), Mrs.

C, the adolescent, Mrs. [social worker 2] (social worker) and the father. [ 10 ] The testimonial evidence is complemented by a significant amount of written documentation, including: several reports prepared by the Director on the situation of the adolescent and her family as well as on observations made during supervised visits; decisions by the Superior Court of Ontario and the Superior Court of Québec; communications from the adolescent’s teacher; as well as documents produced in support of the father’s claim that X was being home-schooled while under his care. B. ANALYSIS 1.

Prior judicial history [ 11 ] A ruling of the Ontario Superior Court [1] rendered on [...], 2015 provides useful insight into the parents’ relationship and the family dynamic. The parents met in 2003 at a narcotics anonymous meeting; the mother was then 18 years old while the father was 30 and had an extensive criminal record. They first separated around 2008, at which time the father was incarcerated following threats towards the mother.

The parents reconciled for a few months before separating for good in 2009. [ 12 ] That same year, the mother having moved to Town A, the Director of Youth Protection became involved in view of concerns regarding the child’s exposure to domestic violence and the mother using marijuana and failing to ensure the child’s proper hygiene. On February 20 th , 2009, this Court entrusted the child to both parents on alternating weeks.

The Director’s involvement came to an end in 2010. [ 13 ] On [...], 2011, the Quebec Superior Court granted physical custody of the child to the mother with access rights to be granted to the father by agreement between the parties. Following this ruling and until July 2013, the mother was the child’s sole caregiver, the father exercising his access rights sporadically. [ 14 ] On July 13 th , 2013, the mother was hospitalized as a result of mental health concerns and the child was entrusted to a foster family. The next morning, the father picked up the child and left the region.

He spent the next month with the child at the paternal grandparents’ home, located several hours away. The mother remained in the hospital for 28 days and she had no contacts with the child during that time. [ 15 ] The final diagnosis of the medical staff refers to a bipolar disorder with substance abuse (cannabis).

The Director investigated the matter and concluded that the security and development of X were not endangered given that the mother was taking the necessary steps to address her condition by means of medication. [ 16 ] Concerns were also raised at the time in relation to the father having a negative discourse about the mother in front of the child and failing to take the necessary steps to ensure that she was attending school, particularly given her special needs and diagnosis of a mild intellectual delay. [ 17 ] Although the mother was released from the hospital on August 9 th , 2013, it took her until January 2014 to find out where the father had taken the child.

Despite the mother having sole custody, the father refused to return the child to her mother or to allow the mother to see the child. The mother initiated procedures before the Ontario Superior Court. The Children’s Aid Society of Ottawa also became involved amidst concerns regarding the father’s failure to appropriately care for the child, as well as a result of his allegations that the mother was physically abusive towards the child.

Three formal investigations found the father’s allegations to be unfounded. [ 18 ] On [...], 2015, the Ontario Superior Court found that the father had attempted to coach the child to make false accusations against her mother, thereby alienating the child from her mother. According to the Court, the father lacked understanding of the child’s needs and the necessary skills to adequately care for her. The Court also noted his use of inappropriate language (e.g., calling the mother a “fucking bitch”) in front of the child.

Finally, it was determined that the child was consistently late or absent from school when under his care and that he failed to appreciate the negative impact of the situation. [ 19 ] As to the mother, the Court concluded that there were no remaining concerns with regards to her mental health and that she was fit to take care of the child. The Court therefore granted full custody of the child to the mother with specific access rights for the father and ordered both parents to refrain from making negative comments about one another in front of the child. 2.

Contemporary events leading to the Director’s intervention a. The lice incident [ 20 ] Around Halloween 2018, X comes back from a visit with her dad with lice in her hair. The mother undertakes to remove it using a combination of natural products, dyeing, combing and finally a straightening iron. The mother explains that while X is quite upset with having lice, the treatment takes a long time and the adolescent grows impatient. At one point, X has had enough, she tells her mother to stop and attempts to get out of the chair.

A conflict ensues. [ 21 ] Shortly thereafter, the adolescent reaches out to her dad to complain. The father promises to come and pick her up at school the

next day, which he does, bringing her to his home in Town B. [ 22 ] The father argues he acted to protect his daughter. He would have lodged a complaint with police in relation to the incident but apparently nothing came of it. He says he took pictures of scratches and burn marks on his daughter but they were lost when he dropped his phone in the toilet. [ 23 ] On [...], 2019, the Superior Court of Quebec [2] orders the father to return the adolescent to the mother. The father admits being presented with the order, which he says he ignored because the name of the child was misspelled.

The father makes no effort to return the adolescent to her mother or to facilitate contact. [ 24 ] When the Director intervenes, X has been with her dad for four months during which time she hasn’t seen her mom. She mentions being very afraid of her mother and trembles at the mere mention of a possible return to her mother, threatening to run away if forced to do so. As a result, she is entrusted to a foster family on March 5, 2019, where she remains to this day. b.

The adolescent’s schooling [ 25 ] From the moment she is picked up at school by her father after the lice incident until she is entrusted to a foster family, X doesn’t attend school. The father claims that she was being home-schooled by his (then) girlfriend, Mrs. E. [ 26 ] Although X went back to school shortly after being entrusted to a foster family, there are concerns that the special needs class she is currently in may not be well-suited to her needs.

The program, it is said, is geared more towards providing life skills rather than doing academic work, and all seem to agree that X has the potential to do more. [ 27 ] She was evaluated at [Centre A] back many years ago and a new evaluation is needed in order to ensure that she is getting the services her condition requires. Although a request has been made for her to be evaluated again, this has yet to take place. c. Evolution of the situation since the adolescent was entrusted to a foster family [ 28 ] When she arrived in the foster family in early Mach 2019, X was stressed and had no routine.

She is now much calmer, has a stable routine and is well integrated into the foster family, where she bonded with the other girls. She has limited autonomy, however and requires constant guidance and supervision, including to ensure that she bathes regularly and changes her clothes. She struggles with issues of privacy and personal boundaries and requires guidance to avoid putting herself in dangerous situations, particularly as it relates to boys. Contacts with the mother [ 29 ] Visits with the mother are initially supervised in order to observe X’s reaction.

Reports reveal a single incident in late March 2019 where the mother asked her daughter why she did not want to come back home. The mother was advised to change the topic and she did, henceforth staying clear of this issue. Supervision is eventually lifted as the mother proves reassuring and sensitive to her daughter’s needs and X reacts positively to her proximity and signs of affection, showing no sign of fear and always looking forward to the next visit. [ 30 ] In late summer 2019, contacts are increased to every weekend (Friday to Monday) and occur at the mother’s residence.

Shortly before the start of the pandemic, it is proposed to X that she reintegrate her mother’s home and she says she is fine with the idea. [ 31 ] In May 2020, the mother’s mental health deteriorates and she is hospitalised for a month. The contact modalities are revised to allow for supervision in the absence of agreement between the parties. [ 32 ] The mother explains that she was isolated and stressed out as a result of the pandemic and that couldn’t sleep. She was also drinking and using marijuana. Upon her release from the hospital, she moves in with Mr. D, the father of her ten year-old son. Mr.

D has been involved in the mother’s life on and off for many years, although they haven’t always formed a couple. As he puts it, his approach is to “live and let live”; he offers his support but he doesn’t tell her what to do. The mother claims she has remained sober since moving in with Mr. D, and he confirms. [ 33 ] The Director remains concerned with the stability of the mother’s mental health given that she isn’t currently taking any medication nor benefiting from a regular mental health follow-up. Contacts with the father [ 34 ] Initially, the father’s contacts are supervised. He abides by the

schedule and doesn’t miss any visits. X is always happy to see her dad and she shows it. However, reports indicate that the father doesn’t always show interest in what X has to say and he repeatedly makes degrading comments about the mother and the social worker in X’s presence. He also discusses the upcoming court hearings with her, despite interventions to the contrary from supervising staff. [ 35 ] He offers very little collaboration and openly expresses his frustration about the youth protection system and the justice system.

On one occasion, he is intimidating and verbally abusive towards the supervising staff because a visit had been delayed by half an hour. Again, this occurs in the presence of his daughter. [ 36 ] The Director’s staff, the foster family and the school observe significant changes in the adolescent’s behaviour and discourse regarding her mother prior to and following visits with the father. [ 37 ] Following the mother’s mental health breakdown in May 2020, the father’s collaboration with the Director’s staff improves significantly.

As a result, The Director allows him to visit his daughter under discontinued supervision from May 27 th to August 4 th , 2020. After this date, he visits his daughter once a week for a period of five hours, without supervision.

3. The first matter in dispute: the alleged motives endangering the security and development of the adolescent a. Physical abuse [ 38 ] The adolescent’s version of the Halloween (hair treatment) incident as well as her discourse towards her mother evolve over time and appear very much influenced by the circumstances and by the people around her. [ 39 ] Upon her removal from her father’s home, she tells the social worker that her mother burned her and that she is afraid of her. She is also very much concerned about her father being “punished”.

Later, she tells the foster family that her mother accidently burned her neck while using the hair straightener, but that she meant no harm. She never mentions to the foster family being abused or otherwise subjected to inappropriate discipline by either parent. [ 40 ] In March 2020, visits with her mother have been going very well for quite some time and X is open to the idea of reintegrating her mother’s home; she no longer expressed any fear in that regard.

At the time, contacts with her father are still being supervised. [ 41 ] When she testifies in Court on September 24 th , 2020, X has been visiting her father unsupervised for the last two months. She then offers a different version of events along with a very polarized description of her parents, whereby her mother is to blame and her father can do no wrong. With regards to the Halloween incident, she now says her mother deliberately burning her and scratched her arm.

She also mentions that this has happened before and that her mother screams at her and says mean things to her. [ 42 ] In light of the evidence and bearing in mind the factors listed in

section 38.2 of the Y.P.A. as well as the particular family dynamic at play, including the adolescent’s exposure to the parental conflict discussed below, the Court finds that there is no conclusive evidence of physical abuse by the mother. While it is quite possible that she felt a slight burn during the hair treatment and that she may have been scratched as she struggled to get out of the chair during the hair treatment, the Court is convinced that the mother never meant to harm her. b. Psychological ill-treatment [ 43 ] The parental conflict has been going on for years and it remains unresolved.

X is well aware of the situation, and it has a significant impact on her relationship with her parents. [ 44 ] The parental conflict also had a determining impact on the manner in which the Halloween incident was handled by everyone involved. Indeed, the father seized the opportunity to retrieve his daughter and keep her away from the mother, thereby preventing mother and daughter from discussing the incident and resolving their differences in a calm and constructive manner.

In that regard, the situation bears close resemblance to the events of 2013. [ 45 ] While the mother likely shares part of the responsibility in the ongoing conflict, it is the adolescent’s exposure to her father’s animosity and degrading comments towards the mother that is particularly harmful to her development. [ 46 ] The father’s disrespect for the mother is well apparent and he makes little effort to hide it or to shelter his daughter from it, including during supervised visits.

During his testimony, he referred to the mother as a “fucking bitch”. [ 47 ] In addition, the father’s negative attitude and degrading comments towards the social worker, the foster family and others, are disrupting the adolescent’s relationships with those seeking to help her. [ 48 ] The evidence is conclusive that the adolescent is seriously and repeatedly subject to harmful behaviour by her father which constitutes psychological ill-treatment as defined under section 38(2)(

c) of the Y.P.A. c. Educational neglect [ 49 ] The father’s claim that X was being home-schooled is not supported by the evidence. The Individual Education Plan he produced dates back to the 2014-2015 school year. He never informed the school board of his intent to provide home schooling for X from November 2018 to February 2019. As to the email exchanges between Mrs. E and the school board in April and May 2018, they do not in any way concern X, but rather relate to Mrs. E’s own children. [ 50 ] In light of the evidence and bearing in mind the factors set out in

section 38.2.1 of the Y.P.A., the father’s failure to ensure that X attend school on a regular basis or that she benefit from a proper home schooling program constitutes negligence as defined under section 38(1)iii) of the Y.P.A. d. Serious risk of neglect [ 51 ] The mother’s recent mental breakdown was serious enough to require hospitalisation for a month. Of particular concern is that fact that the mother is reluctant to seek professional help and to take medication to stabilize her condition.

Further, the evidence strongly suggests that her alcohol and drug consumption contributed to her recent breakdown (as it did in 2013). While it appears she has stopped drinking and using drugs in the last few months, it is too early to tell whether this is for the long run. Neither has she receive services in that regard. [ 52 ] The evidence is sufficient to conclude that the mother’s fragile mental health creates a serious risk of neglect for the adolescent as defined in section 38(2) of the Y.P.A. 4.

The second matter in dispute: determining the appropriate measure of protection [ 53 ] In light of the challenges found in each parental environment and of the particular needs and vulnerabilities of the adolescent, it is not in her interest to be returned under the case of either of her parents at present. Rather, the situation requires that she remain under the

care of her current foster family for the time being. Mrs. C has succeeded in providing X with a safe and neutral environment, away from the parental conflict, as well as a stable and healthy routine. [ 54 ] The mother possesses good parental skills and there is no doubt that she is motivated by her daughter’s best interest. As she puts it, she wants her to be safe and to get the services she needs so that she can develop into the best version of herself possible.

In the event that the mother takes the necessary steps to stabilize her mental health and addresses her consumption issues, it is possible to foresee X’s gradual return under her care. [ 55 ] As to the father, he admits he wasn’t the greatest parent in 2015. There is no evidence to suggest that he has received any services to improve his parental skills, which were found to be severely lacking by the Superior Court of Ontario in 2015.

In fact, there are, to this day, serious concerns regarding his ability to understand and to meet X’s needs, particularly her emotional and educational needs. [ 56 ] He offers very little transparency or collaboration and does not want to answer questions about his personal situation, including the involvement of the Children’s Aid Society with regards to his other children.

Neither does he take responsibility for the domestic violence he caused the mother despite having plaid guilty to these charges. [ 57 ] The father must give serious thought to his role in the parental conflict and prioritize his daughter’s wellbeing and emotional stability. Services in that regard are clearly needed. [ 58 ] The father must actively and genuinely collaborate with those involved with providing help and support to X, including the Director and her staff, the foster family and the school authorities.

As such, he would do well to sign the appropriate authorisations so that the Director can obtain the relevant information from the Children’s Aid Society in Ontario as it relates to his situation. [ 59 ] As to X, she needs to receive appropriate health care and services, beginning with an assessment of her psychological and intellectual delays to determine how best to meet her specific needs, including in the school setting.

She should also be provided with from some form of counselling to help her free herself from the parental conflict. [ 60 ] Insofar as contacts are concerned, it is in X’s best interest to see and talk to her parents on a regular basis without supervision, provided this does not impede on her routine and school attendance and provided she isn’t exposed to or involved in the parental conflict. More specifically, the father mustn’t interfere in any way with the mother-daughter relationship or otherwise obstruct a potential return of the adolescent to her mother’s. C.

CONCLUSION [ 61 ] For the above reasons, the Court finds that the security and the development of the adolescent are endangered as a result of a situation of psychological ill-treatment and educational neglect on the part of the father and a serious risk of neglect in the maternal environment. [ 62 ] The motion is well founded in fact and in law, and the proposed measures are required to address this situation while meeting the adolescent’s needs and respecting her rights. [ 63 ] THEREFORE THE COURT : [ 64 ] GRANTS the motion; [ 65 ] DECLARES that the security and the development of X are endangered as a result of a situation of psychological ill-treatment, educational neglect and a serious risk of neglect; [ 66 ] ORDERS the implementation of the following measures:

a) That the adolescent be entrusted to a foster family for a period of six months and that she reintegrate her mother’s environment if the situation allows it;

b) That the adolescent attend school on a regular basis;

c) That the contacts between the adolescent and her father be determined by agreement between all parties; in the absence of agreement and if the father denigrates the mother in the presence of the adolescent or otherwise interferes with the mother-daughter relationship, the contacts will be supervised;

d) That the contacts between the adolescent and her mother until her return under her care be determined by agreement between the parties; in the absence of agreement and in particular if there are indications that the mother is not mentally stable, the contacts will be supervised;

e) That the adolescent and the parents actively collaborate in the development and implementation of the intervention plan;

f) That a person authorised by the Director of Youth Protection A Integrated Health and Social Services Center provide aid, counsel and assistance to the adolescent and her family for a period of twelve months; [ 67 ] STRONGLY RECOMMENDS that the adolescent receive the health care and services required by her condition (assessment of psychological and intellectual delays with a view to determine which specialised services best fit her needs, including in the school setting; counselling); [ 68 ] RECOMMENDS that the father:

a) receive services in order to improve his parental skills, to understand the impact of the parental conflict on his daughter and to

develop co-parenting skills;

b) sign the required authorisations allowing the Director to obtain all relevant information related to his situation from the Children’s Aid Society A; [ 69 ] RECOMMENDS that the mother:

a) Undertake a regular follow-up with a mental health profesionnal and that she follow the profesionnal’s recommendations, including as it relates to medication;

b) Be evaluated with regards to her alcohol and drug consumption and that she follow the recommendations of the profesionnals;

c) receive services in order to understand the impact of the parental conflict on her daughter and to develop co-parenting skills; [ 70 ] ENTRUSTS the situation of the adolescent to the Director of Youth Protection who shall then see that the measures are carried out. Signed on November 4 th , 2020. __________________________________ JEAN-FRANÇOIS NOËL, J.Q.C. Mtre. Vanessa Chasle Counsel for the Director of Youth Protection Mtre. Marie-Christine Fournier Counsel for the adolescent Mtre. Louis-Martin Lussier Counsel for the mother B Father Dates of hearing: June 19 th , 2019; January 6 th , 2020; September 24 th , 2020