2018 QCCQ 13872, 2018 QCCQ 13872

Protection de la jeunesse — 184273 2018 QCCQ 13872 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF […] “Youth Division” N° : 525-41-033196-171 DATE : March 1, 2018 ______________________________________________________________________ PRESENT: THE HONOURABLE FRANÇOIS STE-MARIE, J.C.Q. ______________________________________________________________________ DIRECTOR OF YOUTH PROTECTION and X Born on [...], 2006 child and A B parents ______________________________________________________________________ JUDGMENT

Section 38 of the Youth Protection Act (R.S.Q. c. P-34.1) and order of interim measures ______________________________________________________________________ Warning : The Youth Protection Act prohibits the publication or broadcast of information allowing a child or the child’s parents to be identified. Every person who contravenes this provision is liable to a fine (sections 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] In accordance with the requirements of

section 90 of the Youth Protection Act , the Court hereby confirms and gives the reasons for the decision rendered from the bench at the hearing held on March 1, 2018. [ 2 ] The Director of Youth Protection (the Director) alleges that the child is subjected to psychological ill-treatment.

The Director also alleges that the child’s health is neglected and that a serious risk of neglect exist. [ 3 ] On November 1, 2017, the Tribunal entrusted the child to the mother’s care and ordered that contacts between the child and the father take place following modalities to be decided by the Director at a frequency of two contacts per week. The Tribunal also took act of the parties’ agreement to undergo a psychological assessment. [ 4 ] Today, the Director recommends that the child remain entrusted to the mother’s care; that a visitation

schedule between the child and the father be ordered and that support measures be granted to the family for an interim period. [ 5 ] Both parents agree with the proposed plan. [ 6 ] The child’s attorney is also in agreement with the recommended measures. Question in litigation [ 7 ] Are the proposed measures in the child’s best interest and are they respecting her rights? Context and Analysis [ 8 ] On December 14, 2010, the Superior Court ordered that the parents share the child’s custody. At the time, the parents concluded an agreement regarding the custody and visitation schedule. [ 9 ] In their agreement, at paragraph 21, the parents stated the following:

The Parties acknowledge that it is in the best interests of the Child that she shall continue to have a close and loving relationship with both of her parents. Without limiting the generality of the foregoing, the Parties undertake to not speak negatively of the other party or diminish the image of the other Party in the presence of the Child.

The Parties agree to foster an atmosphere of mutual respect and consideration between themselves, in order to facilitate their ongoing communications regarding all aspects of the Child’s well-being; [ 10 ] This is still very pertinent in the child’s situation. [ 11 ] Since 2005, the parents have maintained a difficult relationship. The child has been exposed and impacted with the parents’ conflicts. [ 12 ] The child resides mainly with her mother and maternal grandparents.

As the mother suffers from Crohn’s disease, she is supported by the maternal grandparents. [ 13 ] The child acknowledges that she does not have a particular bed-time routine at the mother’s house. The mother acknowledges that sometimes she struggles with implementing structure for the child. [ 14 ] Since October 2016, the child has refused to visit with the father. Since that time, the mother has not ensured that these visits happen. The mother reported that she needs to respect the child’s wishes.

The child reports that she does not like her father and his partner, but does not specify any particular reasons that would justify her decision not to see him. [ 15 ] The telephone calls between the father and the child have been inconsistent. [ 16 ] The father has not enforced the Superior Court order as Dr. Guzder had suggested that doing so could negatively impact the child’s psychological wellbeing. [ 17 ] The mother collaborated minimally with the youth protection follow-up. [ 18 ] The mother has denigrated the father in the child’s presence. [ 19 ] In 2012, the child was psychologically assessed.

It was recommended that she receives psychiatric services from the Jewish General Hospital in relation with concerning behaviours (oppositional traits, social immaturity, symptoms of attention deficit disorder and emotional dysregulation).

The mother has cancelled many of the appointments and the child’s file was eventually closed. [ 20 ] The child’s participation in the Jewish General Hospital Day Program was canceled as she refused to speak with the psychiatrist and as the mother did not follow through with the evaluation process. [ 21 ] In 2017, the child has been diagnosed with ADHD and has been taking medication (Concerta). [ 22 ] Ms. [Social Worker 1], youth protection worker, notes the following in her Court report: (The mother) allows (the child) the autonomy to make her own decisions about attending treatment appointments, seeing her father, following rules, to the detriment of (the child’

s) development. [ 23 ] In 2017, the child was assessed in psychiatry. In this evaluation is was noted that: The adults clearly indulge (the child) and have no consistent routines or consequence. Her bedtime is erratic and she has no consequences whether she goes to bed at midnight or any other time. There is no explanation about (the child’s) 6 month refusal to go to father. Ambiguous questions about her “not telling us why” and her expressed anger that she has rules at the other home which she considers “mean” (i.e. routines) were given as vague evidence.

There was no evidence or support given to my explicit questions of child abuse, neglect or sexual abuse in the other household (all denied). (…) (The child) appears to have considerable power and is defiant of authority in passive and overt ways including tantrums. Tantrums (screaming, weeping, refusal, sulking) witnessed in session resulted in enabling, indulgence, confusion and were ascribed by mother to sadness or hurt in the session. (…) A very conflicted situation in the family for all of child’s life and worsening.

Enabling regression and failing to maintain paternal visits (6 months) are contributing to regression. [ 24 ] In January and February 2018, a family assessment was done by psychologist, Dr. Niki Saros. She reports the following: (…) (the mother’

s) limited receptiveness to professional intervention appears to be thematic. Her insight regarding her contribution to (the child’

s) refusal to see her father is limited. She has difficulty recognizing that she encourages (the child’

s) refusal when she offers her activities that conflict with a visit or when she fails to exercise her parental authority to ensure that (the child) attends visits. (The mother) maintains that it is (the child’

s) choice whether or not she sees her father. (…) The maternal grandparents are a protective factor by providing (the child) with security and nurturance, and help to care for her when (the mother) is ill. They are also a risk factor because they are quite negative in their opinion of (the father), which may reinforce (the

child’

s) estrangement from her father. (…) While there may be practical reasons that partially contribute to (the child’

s) preference for the maternal home, these are not the reasons provided by (the child).

In addition, these considerations are disproportionate to her adamant refusal to see her father. (…) though (the child) reports that she genuinely believes her father loves her unconditionally, there may be underlying sibling rivalry, which stems from the reality that (the child’s half-sibling) spends more time with her father. (…) both parents were predominantly negative about the other parent and both parents conveyed resentment and blame towards each other. (…) More importantly, neither parent could identify the inherent value of the parental contribution of the other. (…) The results of the assessment suggest that (the child) is caught in a loyalty conflict and she is aligned with her mother at the exclusion of her father. (…) In view of the history, it is very unlikely that interventions will be respected in the absence of a Court order and with a specified time frame and conditions . [ 25 ] On November 1st, 2017, the Tribunal ordered that contacts between the child and the father take place following modalities to be decided by the Director at a frequency of two contacts per week. [ 26 ] The parents and the child attended individual and family therapy with Mr. [Social Worker 2], psychologist intern at [Center A]. [ 27 ] The mother has continued to interfere with the visitation

schedule set up by the youth protection worker. [ 28 ] The Tribunal considers that the proposed measures, agreed by everyone, meet the child’s best interest. At this point, no interference with the Court ordered visitation

schedule should be permitted. The parties are invited to seize Court rapidly if such interference was to occur. THEREFORE AND FOR THESE REASONS, THE COURT: [ 29 ] DECLARES that the security or the development of the child is endangered ( sections38 b) 1 o ii and

c) of the Youth Protection Act ); [ 30 ] RESERVES the right of the Director of Youth Protection to make proof at the next hearing on

section 38 b) 2 o of the Youth Protection Act ; [ 31 ] SETS the continuation of the hearing on June 13, 2018, in room 2.06 in front of the undersigned for a duration of two hours ; [ 32 ] In the meantime: [ 33 ] ENTRUSTS the child to the care of her mother; [ 34 ] ORDERS the following visitation

schedule based on the consent of the parties: • after school, Mondays and Wednesdays, the father will pick up the child from school and bring her back at the mother’s home at 8:30 p.m.; • as of March 21, 2018, for the Wednesday visit, the child will sleepover at her father’s home and he will bring her back to school on Thursday morning; • regarding those sleepovers, the Director of Youth Protection will have the discretion to suspend the overnight part of the visit if need be; • on April 2, April 16 and June 4, 2018, the visits will take place from 10:00 a.m. until 6:30 p.m. as there is no school on those days; • on April 25, 2018, the overnight will start following a concert; • on May 21, 2018, the visit will not happen if the mother is out of town with the child; if she is in town, the visit will happen from 10:00 a.m. until 6:30 p.m.; • on March 6, 2018, the youth protection worker will pick the child from the mother’s home at 1:30 p.m. and the child will be returned by her father at 8:30 p.m.; • on March 11, 2018, the visit will begin at a restaurant at 9:30 a.m. and will continue until noon; • on May 23, 2018, mother’s birthday, that specific visit will be replaced by a visit on May 27, 2018 from 9:30 a.m. until noon; • the responsibility to ensure that the visits between the child and her father occur, will be given to the maternal grandparents; • the above visits are a minimum

schedule of visits;

[ 35 ] ORDERS that the parents take steps for the child to be involved in counselling with a therapist that specialize in the aera of parental alienation; [ 36 ] TAKES ACT that Dr. Saros will recommend an expert in that field; [ 37 ] RECOMMENDS that the mother take steps to review her medication and take

part in a detoxification program if recommended by the medical professional; [ 38 ] TAKES ACT of the mother’s agreement to undergo a parental capacity assessment; [ 39 ] ORDERS , as mother agree, that such an assessment take place; [ 40 ] TAKES ACT that it is possible that Dr.

Saros be the expert identified to proceed to this assessment; [ 41 ] ORDERS that father, mother and grandparents refrain from making degeratoty or negative comments about the other parent; [ 42 ] ORDERS that there be no recording of conversations being in person or on the phone; [ 43 ] ORDERS that a person working for a Child and Youth Protection Centre provide aid, counsel and assistance to the child and her family; [ 44 ] ENTRUSTS the situation of X to the Director of Youth Protection, who shall then see that the measures are carried out. __________________________________ François Ste-Marie, J.C.Q.

Written and signed on March 12, 2018 /cd Mtre Sym Davis Counsel for the Director of Youth Protection Mtre Alec Fafard Counsel for the child Mtre Younes Ameur Counsel for the mother Mtre Reisa Khalifa Counsel for the father Date of hearing: March 1, 2018