2012 QCCQ 17403, 2012 QCCQ 17403

Protection de la jeunesse — 126765 2012 QCCQ 17403 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC District of [...] Youth Court Division N°: 525-41-026061-127 Date: September 12, 2012 PRESIDED BY: THE HONOURABLE TAYA DI PIETRO, Q.C.J. In the case of: X Born on […], 2004 [social worker 1] , duly authorized by the Director of Youth Protection of AYouth and Family Centres Applicant -and- A, the mother -and- B , the father The parents -and- LA COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE Mise-en-cause JUDGMENT

Section 38 of the Youth Protection Act (L.R.Q., C.P-34.1) JD2620 WARNING: Within the framework of the Youth Protection Act , no person may publish or broadcast information allowing 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. [ Y.P.A. sections 11.2.1 and 135 ] [ 1 ] The Court hereby confirms and provides written reasons for a decision rendered verbally at the hearing of September 12, 2012, in accordance with the provisions of

section 90 of the Youth Protection Act . [ 2 ] The Director of Youth Protection of A Youth and Family Centres filed a motion to declare that the security and development of a child is in danger in the case of X , an eight year-old child. [ 3 ] The facts alleged in support of the motion are as follows: 3.1. A's relevant background information, the parents are separated and have shared custody of the child as per an agreement ratified in Superior Court; 3.2.

A's relevant background information, a signalement was retained in April 2010 for issues pertaining to the child's exposure to excessive parents' conflict; 3.3. The file was closed after both parents agreed to secure counselling services for the child and as they had recognized the impact of their disputes on the child and had undertaken not to denigrate one another in the presence of the child; 3.4.

The child is seriously and repeatedly subjected to behaviour on the part of his parents that could cause him harm, and the child's parents fail to take the necessary steps to put an end to the situation, more particularly but not restrictively in that:

a) the child is exposed to the conflictual relationship between his parents;

b) the mother recognizes that her relationship with the father is highly conflictual but blames the latter for the situation;

c) the father recognizes that his relationship with the mother is highly conflictual but blames the latter for the situation;

d) during the child's one day stay at the hospital, the parents were observed arguing three (3) times and security had to intervene on two (2) of these occasions;

e) the parents were also seen to be extremely hostile towards one another during a school meeting on May 12 th , 2012;

f) both parents accuse one another to use physical discipline with the child;

g) in December 2011, the father brought the child to the police as he felt that the mother had used excessive physical discipline with the child;

h) the child presents as being anxious and to be emotionally fragile as a result of the parental conflict;

i) the child has several areas of weakness in regards to his academic functions and performs below his age group;

j) the parents are unable to co-parent in the child's best interest (reproduced with errors and/or omissions). [ 4 ] In light of the foregoing, the Director recommends that the child remain entrusted to his parents with aid, counsel and assistance, as well as additional corrective measures, for a period of one year. [ 5 ] Both parents, who chose to proceed without the assistance of legal counsel, admitted most of the facts alleged in support of the motion and consented to all the proposed measures. [ 6 ] Me Laforce, on behalf of the child, made no admissions but approved of the measures proposed by the Director of Youth Protection. [ 7 ] The Director filed exhibits D-1 to D-6 as evidence: D-1: Child's birth certificate; D-2: Court report prepared by [social worker 1] dated 16/07/2012; D-3: Superior court judgment; D-4: Police report bearing événement # […] D-5: Child's psychological assessment completed by Dr.

Maria Sufrategui, dated 25/04/2009; D-6: Addendum to court report, prepared by [social worker 1], dated September 6 th , 2012. [ 8 ] In

summary, the evidence establishes the facts alleged in support of the motion. [ 9 ] At the hearing, the father expressed his desire that his son enjoy a normal childhood.

He would like to move beyond the conflicts with the child's mother and is open to mediation as well as repeating co-parenting classes. [ 10 ] He feels that he and the child's mother are completely incapable of communicating effectively and he finds it frustrating not to be included in certain aspects of his son's life. [ 11 ] The child's mother also expressed an openness and willingness to repeat co-parenting classes and attend mediation, although she remains sceptical. [ 12 ] She is clearly a strong advocate for her child and the former couple's personality and cultural differences clearly exacerbated their difficulties in appreciating each other's strengths and abilities as parents. [ 13 ] The worker assigned to the case, Ms. [social worker 1], testified poignantly about the child's strong attachment to each one of his parents and of his ability to adjust to two very different environments as a result of the shared custody order for the sake of remaining close to each parent.

Because of the child's obviously very strong attachment to each of his parents, and because neither parent's adequacy is called into question, the worker recommends that the shared custody arrangement continue to be followed. [ 14 ] However, the parents must be aware that if they remain incapable of protecting their child from the damaging effects of their constant conflicts, the child may have to be placed in a neutral environment. [ 15 ] The parents must realize that it is urgent and imperative that they find ways to set aside their differences and use their energy and resources to shield the child from the psychological warfare to which he has been exposed. [ 16 ] This is a child who has already faced many challenges – he was treated with chemotherapy and surgery for liver cancer at the age of two and has suffered hearing loss as a result. [ 17 ] His overall cognitive potential was assessed to fall within normal limits for his age, as it appears from the child's psychological assessment. [1]

[ 18 ] He is also described as "sociable boy" who "is well liked" [2] , "cooperates well and responds well to limit setting" [3] . [ 19 ] However, he is clearly suffering emotionally, as evidenced by the numerous observations reported throughout the documents in the file: X regularly appears frustrated and sad. He is a sensitive child who is easily brought to tears. He appears torn between his parents. [4] X appears to be extremely emotionally fragile as a result of extreme parental conflict. [5] the [Superior] Court is very worried about this child [6] .

X presents with many behaviours that can be interpreted as signs of anxiety or insecurity […] Of note, his parents argued on many occasions during the evaluation.

Thus, Xs "withdrawn" attitude in their presence seems to be his way of coping with the distress caused by his parents' antagonism. [7] [ 20 ] Both the child's psychological evaluation completed at the Hospital A in 2009 as well as the A Center's evaluation in 2010 suggest that the child's academic performance is being adversely affected by his emotional problems. [ 21 ] In fact, as mentioned above, the psychological assessment indicates that the child's cognitive potential is within normal limits, yet he has great difficulty in school. [ 22 ] According to the A Center's evaluation: The results of the assessment highlight a gap between X's cognitive functioning and his academic functioning; academically he is performing below expectations for his age and grade and lower than predicted from his cognitive ability in many areas.

He also has significant attention difficulties. X is experiencing some emotional and behavioural difficulties which require attention. [8] [ 23 ] The principal at the child's former school shares the same concerns: Mr. B and Ms. A are in constant conflict and often blame each other. They appear to be unable to recognize how their conflict affects X's emotional wellbeing, despite having been told by the school on numerous occasions. X struggles academically and has made minimal improvement this year despite having been given additional resources including tutoring approximately three times per week.

X appears as anxious and often tends to over react emotionally. [9] [ 24 ] As stated at the hearing, the parents are strongly urged to shift their focus and open their eyes to the fact that their constant conflicts may be far more detrimental to their child's well being than any of the subjects of their disputes. [ 25 ] If these seemingly caring and well-intentioned, loving parents truly have their child's interest at heart, they will need to make ending their conflicts their main priority and learn to accept compromises on the secondary issues that have been fueling their conflicts. [ 26 ] The parents seem to have taken some positive steps in that regard as evidenced at the hearing by their stated consent to all the proposed measures and their undertakings to participate fully.

They are strongly encouraged to abide by their undertakings. In the meantime, a certain number of measures have been taken to help the child, including psychological counselling and registration at a new school. [ 27 ] Under the circumstances, given the admissions and consent expressed by each of the parties, and considering all the evidence adduced, the Court is satisfied that the motion is well-founded. [ 28 ] THEREFORE, THE COURT: [ 29 ] GRANTS the motion; [ 30 ] DECLARES that the security and the development of the child, X , are compromised under

section 38

c) of the Youth Protection Act ; AS FOR THE MEASURES, THE COURT DEEMS IT TO BE IN THE CHILD'S INTEREST TO ORDER THE FOLLOWING MEASURES: [ 31 ] ORDERS that both parents continue to adhere to the Superior Court judgment which provides for shared custody; [ 32 ] ORDERS that both parents refrain from denigrating one another in the presence of the child; [ 33 ] ORDERS the parents to follow the recommendations of school and other treating professionals regarding the child's academic and emotional needs; [ 34 ] ORDERS that the parents attend co-parenting classes; [ 35 ] TAKES JUDICIAL NOTICE of their undertaking to do so; [ 36 ] TAKES JUDICIAL NOTICE that the child has already begun to receive individual counselling once every two weeks with Ms.

Harriet Greenstone and that the father has undertaken to pay for the counselling; [ 37 ] TAKES JUDICIAL NOTICE of the undertaking expressed by both parents to attend individual counselling and consequently ORDERS that they do so;

[ 38 ] TAKES JUDICIAL NOTICE of the parents' willingness to participate in mediation, and consequently, ORDERS that they do so; [ 39 ] ORDERS that a person working for A Youth and Family Centres provide aid, counsel and assistance to the child and his family; [ 40 ] ENTRUSTS the situation of the child, X, to the Director of Youth Protection of A Youth and Family Centres, who shall then see that the measures are carried out; [ 41 ] THE WHOLE for a period of one year. TAYA DI PIETRO, Q.C.J. Me Camille Champeval / AC7059 Attorney for the Director of Youth Protection Me Pauline R. Laforce / AY9621 Attorney for the child TD/vl