2019 QCCQ 16097, 2019 QCCQ 16097

Protection de la jeunesse — 196410 2019 QCCQ 16097 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT […] TOWN […] Youth Division No: 760-41-005785-186 DATE: June 3, 2019 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X Born: [...], 2003 Adolescent ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION A Applicant 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 ] Context [ 2 ] The Director of Youth Protection applies for a one year protection order in regards to the adolescent X in reason of an endangerment stemming from a persistent parental conflict. [ 3 ] As well as various measures of assistance and protection, the Director asks that the adolescent remain in her maternal environment while benefitting from supervised contacts with her father. [ 4 ] The parties admit that the adolescent suffers psychological ill-treatment resulting from a dysfunctional family dynamic and that it is necessary to put in place protective measures.

Although such is the case, they offer divergent perceptions of the source of the psychological ill-treatment and of the measures required to rehabilitate such. [ 5 ] The adolescent and her mother generally subscribe to the Director’s evaluation and proposed orientation. [ 6 ] The adolescent wishes to have the accompaniment of a friend or social worker for the time being during her contacts with her father.

She accepts to continue to participate in a mediation process with him in view of moving their relationship forward. [ 7 ] Although he agrees to the intervention, the father manifests his concerns about the evolution of the situation, wanting social services to be more forceful as to their implication. He considers that without this, there will be a complete severance of the father/daughter relationship.

Alleging that she is subject to systematic parental alienation in the mother’s environment, he asks that the Court consider entrusting her to a neutral environment and order a psycho-legal evaluation. [ 8 ] He seeks a six months order in view of the need to rapidly evolve the situation, including fixed weekly supervised visits with his daughter, with the possibility of counselling. [ 9 ] The evidence [ 10 ] After a full evaluation of the evidence, hereinafter the facts retained by the Court within its analysis. [ 11 ] X’s parents have been separated for more than 10 years and sustain a conflict-ting relationship since that time.

Initially agreeing to share custody of their daughter, the parents struggle to co-parent, each blaming the other of this situation. They repeatedly return before the Court in order to settle various issues pertaining to custody and the exercise of their parental authority. Eventually, each petitions for full custody. [ 12 ] On January 24, 2014, Juge Claude Dallaire of the Superior Court renders a judgment in regards to the custody of X, ten years

old at that time (exhibit P-1). [ 13 ] While recognizing that both parents have excellent parenting skills, this judgment underlines an ongoing problematic in regards to sharing parental authority and the deficient communication between them.

The mother’s actions are particularly criticized by the Court as to tending towards the exclusion of the father from his parental role (exhibit P-1, paragraph 97, page 11) [ 14 ] The Court cites certain passages of this judgment, which reveals the effects of the family dynamic on X: [11] Il est donc grand temps que le dossier de garde de cette enfant se règle car la preuve révèle que cette enfant trouve la situation difficile, que tout cela la stresse et qu’elle en a assez du conflit entre ses parents. [129] X a besoin de paix.

Elle fonctionne généralement très bien et a la capacité de s’adapter et de la facilité à se faire des amis. Elle a de bons parents et le Tribunal n’a pas d’hésitation à conclure que, dans les circonstances, c’est avec son père qu’elle doit continuer de cheminer, dans la mesure ou celui-ci garde à l’esprit que ce jugement ne lui donne pas carte blanche pour se reprendre pour les années passées.

En effet, il n’est pas inutile de rappeler que la situation de garde est toujours révisable si le comportement de l’un ou l’autre des parents le justifie ou si l’enfant n’évolue pas bien dans son nouveau milieu. [ 15 ] While entrusting X to her father, the Court applies a stringent structure as to her contacts with her mother, while recommending the following (our underlining) [138] RECOMMANDE aux parties de ne pas discuter des faits qu’elles ont appris lors de cette audition avec X ni de l’interroger sur les déclarations qu’elle a faites à l’un ou l’autre des parents et que la preuve a révélées, le tout afin de respecter son désir de ne plus entendre parler de ce dossier, qui l’a beaucoup stressée depuis les dernières années; [ 16 ] Five years have elapsed since this judgment, but the evidence reveals that little changes in regards to the parental conflict, which not only continues but intensifies with time. [ 17 ] The evidence is replete with examples of how each parent sustains this situation which is now wholly engrained the family dynamic.

The Court underlines a few of these: • X starts taking the train to visit her mother, contrary to her father’s wishes.

The mother fails to advise him of such. • The father accesses his daughter’s emails without her knowledge nor consent in view of sustaining his position; • The father tells his daughter that he will abandon her should she choose to live with her mother; • Both parents accept that their daughter have a negative discourse concerning the other parent, exploiting her sentiments without consideration of her needs nor the impacts on her; • The parents show her their heated exchanges by e-mail; [ 18 ] Although X is a high functioning adolescent, the ongoing conflict affects her in various ways: • She is asked to make choices between her parents and does so; • She adopts self-harming behaviours; • She reports being emotionally affected by her parent’s decisions and the ongoing conflict; • She has had suicidal ideations; [ 19 ] In April 2018, X decides to leave her father’s residence to live with her mother.

Although this occurs following a conflict between them, X indicates she is also reacting to her father being regularly verbally abusive and controlling. She is well aware of the issues between her parents and always feels stuck in the middle. [ 20 ] Initially, she refuses to see her father, citing being the victim of psychological abuse. [ 21 ] The Director of Youth Protection intervenes in this time in relation to a situation of psychological ill-treatment. [ 22 ] In August 2018, the parents meet on two occasions with the caseworker in view of addressing their daughter’s needs.

These meetings are impeded by their mutual inability to remain centered on their daughter. The father insists that his daughter be removed from the mother’s care in order to be withdrawn from her control. They are unable to settle the issue of the choice of X’s school. The mother states being powerless to do anything and offers no solutions to go forward. [ 23 ] Since September 2018, proceedings are ongoing before the Superior Court in view of the mother’s request to obtain full custody.

The adolescent is, as she has been in the past, informed and involved in this pending judicial proceedings, as well as this one. [ 24 ] In September, X misses her school integration because her parents are unable to agree on the school she will attend. A Superior Court judgment intervenes on this issue, allowing her to frequent the school she prefers. [ 25 ] Few contacts occur between X and her father. [ 26 ] On October 25, 2018, the Court renders a provisional order providing aid counsel and assistance to X and her family.

This order also recognizes X’s wish to see her father once a week with the assistance of a caseworker.

[ 27 ] Different attempts are made to organize visits. A positive visit occurs in a restaurant setting, wherein the discussions remain on neutral subjects. [ 28 ] X is hard to reach and resists discussions with the caseworker. [ 29 ] The father participates to a meeting with the caseworker in order to find means to go forward. He remains ambivalent in regards to his desire to maintain a relationship, not wanting to be relegated to a part-time parent and participate in the campaign of parental alienation to which she is subjected by her mother.

He shows sensitivity as to the impact of the situation on his daughter. [ 30 ] The frustrations between the parents continues. The Superior Court intervenes to order the father to return his daughter’s personal belongings and to return her savings. This results in X having to recuperate her items which were packed in garbage bags by her father. [ 31 ] After the first hearing date in January, the Court asks the parties to specifically

schedule contacts between the caseworker and X, as well as X and her father. Mediation meetings are put in place to work on the issues between them. [ 32 ] Although contacts occur, the depth of the frustrations is made apparent. Visitation surrounding activities go well, both X and her father staying away from difficult issues. Such is not the case when their issues are addressed. [ 33 ] A mediation meeting occurs in January at the Director’s office between X and her father. For two hours, they engage discussions on the situation.

The father remains anchored in his perceptions, referring to parental alienation and denigrating both X and her maternal environment. He tells his daughter she is a “parrot” and a “weaponized child”. He states his intention to abandon her should she not return to his care. He is unable to focus on his daughter’s needs. [ 34 ] Throughout this meeting, X remains relatively calm and refuses to end the meeting, even when she is the object of hurtful comments. She offers ways forward in regards to contacts with her father.

He is not receptive to such. [ 35 ] Afterwards, X refuses other contacts of a more social nature with her father. She insists on the need to have further mediation meetings to resolve their issues. The father resists such, stating his wish to wait for the judgment. [ 36 ] The parents agree to participate in another meeting with the caseworker and are able to come to a certain consensus. [ 37 ] The father inundates the caseworker with documentation and emails with the objective of proving his pretentions.

Although he accepts to receive certain services, he is rigid and overwhelms the caseworker with messages and documentation. He remains firmly anchored in such to this day, testifying to the fact that he considers that his daughter was stolen by an abusive parent. [ 38 ] The mother’s collaboration is present, but anchored on her daughter’s wishes. She also emphasizes the father’s responsibilities in the situation and is not proactive. [ 39 ] Both parents state being ready to work with the Director towards resolution of the situation of endangerment.

The father seeks a short order in order to work quickly, fearing that his relationship with his daughter will be beyond repair should the appropriate measures not be put in place to shield her from the parental alienation she suffers in her maternal environment. [ 40 ] Analysis and decision [ 41 ] The Youth Protection Act defines psychological ill-treatment as follows: 38(c) “psychological ill-treatment” refers to a situation in which a child is seriously or repeatedly subjected to behaviour on the part of the child’s parents or another person that could cause harm to the child, and the child’s parents fail to take the necessary steps to put an end to the situation.

Such behaviour includes in particular indifference, denigration, emotional rejection, excessive control, isolation, threats, exploitation, particularly if the child is forced to do work disproportionate to the child’s capacity, and exposure to conjugal or domestic violence; [ 42 ] In view of the evidence and admissions, the Court easily concludes that such is the case for X.

Subjected to an ongoing parental conflict for the larger part of her youth, she has suffered stress and pressure which have affected her in a myriad of ways and continues to do so. [ 43 ] Although both parents recognize such, they mitigate their responsibility in this situation, perceiving that the other parent and their environment are the source of the parental conflict and/or parental alienation.

This results in their perceptions that their actions are but a reflection of their affection for their daughter in the noble pursuit of her best interests. [ 44 ] Unable to see past their own convictions, they refuse to make the concessions and even sacrifices required to ensure their daughter’s well-being. She becomes but a munition in their ongoing battle. Such is the insidious nature of a severe parental separation conflict.

As such, the parents fail to take the necessary steps to put an end to the situation which now endangers their daughter’s well- being and requires the application of protective measures. [ 45 ] In point of fact, the parent’s perceptions have evolved little since the Superior Court judgment of 2014, as demonstrates the evidence. This unfortunate finding underscores the severity of the situation and its impact on X, who has been bound by her parent’s decisions at every turn. [ 46 ] As both parents jointly assume the responsibility of the problem they must both participate in its rehabilitation.

Such will require that they both find a way past their ingrained perceptions and be ready to protect their daughter from further psychological damage. [ 47 ] Until now, and this even despite the Director’s intervention, the situation is a simply stated in the evaluation report of August

2018: Both parents recognize the impacts of the parental conflict on their daughter, but are not centered on their actions and responsibilities, which lead to an impasse in finding solutions. [ 48 ] The objective would obviously be best served by the parents finding a way to effectively co-parent, but such is perhaps too ambitious an objective in view of the history of the situation.

Minimally, they need to recognize that their daughter’s stability requires that they keep her at bay of their conflict and that she be encouraged to maintain a healthy and fulfilling relationship with both her parents . [ 49 ] The Court realizes that such will require that there be a significant shift in perceptions and that choices must occur.

The parents must therefore consciously choose to be part of the solution or to remain a part of the problem. [ 50 ] The father is torn between his wanting to recapture a positive relationship with his daughter and to receiving vindication of his parental role by proving that his daughter is the victim of a sustained campaign of parental alienation. For the Court, it is clear that there can be no co-existence of these two objectives. [ 51 ] The mother, although adopting a more nuanced position, has not shown herself to be an active participant in the rehabilitation process.

She chooses to retreat from the parental conflict and not engage with the father. Although this is certainly a strategy which discharges her, it does little to preserve her daughter who still remains enmeshed in a loyalty conflict and is basically left to deal with her father on her own. [ 52 ] This position but intensifies the father’s sentiments of being put aside as a parent.

The mother is well aware of this as well as the fact that such a position is in no way conducive to resolving the ongoing issues, considering that she herself was put in a similar position in the past as the non-custodial parent. [ 53 ] Furthermore, the evidence establishes that her environment maintains ill-will towards the father and that her personal feelings are also to this effect.

She can create alliances with her daughter against the father. [ 54 ] The mother must therefore also engage herself more sincerely in the protection of her daughter, which includes the recognition that she finally be freed of her loyalty conflict. [ 55 ] As to the specific protective measures required to rehabilitate the situation, having received ample evidence to establish the adolescent’s needs, the Court rejects the request for an expert’s evaluation as requested by the father. [ 56 ] As the parties agree to certain measures, the Court will focus on the issues of contention. [ 57 ] Firstly, is a neutral environment required to operate the rehabilitation of the situation? [ 58 ] The Court determines that such is not in X’s best interests at the present time and this, for the following reasons. [ 59 ] Desperate to have peace and recognizing that her parents cannot provide it, X makes a choice to go towards her maternal environment after an argument with her father. [ 60 ] Notwithstanding the parental conflict, it should have been possible to quickly go forward and find a new balance, namely to settle the issues between X and her father and then resume their relationship on an access basis. [ 61 ] But such is not possible within the dynamic in place as this situation serves but to intensify the feelings and perceptions in place. [ 62 ] This is not the first time that she chooses.

Both parents have given her this power in the past throughout the family court process. Up until now, the father has benefitted from her expressed wishes, which makes all the more questionable his pretention that her recent choice to live with her mother, is no longer the reflection of a valid appreciation of her situation and therefore not worthy of consideration. [ 63 ] The father, feeling victimized and discarded, also chooses. Except in his case, he chooses to amplify the parental conflict, to which he now includes his daughter as being a victim and a “ weaponized child ”.

The mother satisfies herself with a secondary role, not committing to being part of a solution. [ 64 ] The father repeatedly states his intention to disinvest himself from his daughter and sees no positive outcome from the application of protective measures. He testifies to this effect before the Court. [ 65 ] The Court further considers that X is an intelligent and resilient teenager. She functions generally well and succeeds in the various spheres of her life.

Her emotional difficulties stem from the continued dysfunction of her family dynamic and it is here that the process of rehabilitation must be focused. [ 66 ] Her willingness and ability to participate in a mediation process with her father in view of settling their issues, is the demonstration of such. That she be ready to continue despite her father’s emotional and even denigrating attitudes, also testifies to her maturity and resilience. [ 67 ] She doesn’t require a neutral environment in the rehabilitation process has clarity and shows a resilience which is proper to children in such situations.

To send her to another home would serve but to further entrench the loyalty conflict and probably render her even less receptive to engage with her father. [ 68 ] What she does need is a stable and healthy relationship with both her parents. The most significant impediment to such at the present time is the father’s inability to fully commit himself to the process of re-establishing a functional relationship with his daughter.

[ 69 ] How should be structured the contacts between the adolescent and her father? [ 70 ] The Court is preoccupied with the lack of progress as to the father/daughter relationship. As stated hereinabove, many reasons contribute to such, to which all members of this family have had a part to play. [ 71 ] Being within a rehabilitation process, the Court cannot consider a contact structure which doesn’t provide the accompaniment necessary to repair and rebuild their relationship. The emotional charge is now too important to envision non supervised visits for the time being.

As such, mediation is required. [ 72 ] The fact that X seeks such testifies to her ability to recognize the issues remaining between them. Although her father remains unsure of this being a means of going forward, he has accepted to participate in the past, testifying to his wish to find solutions. An intelligent and devoted parent, the Court hopes that such will be sufficient for him to let down his guard enough to benefit from this process. [ 73 ] With both coming to such with open minds and ready to find solutions instead of attributing blame, this should be a passage to a more harmonious relationship.

Such will obviously depend on the choices that will be made by both of them. [ 74 ] The Court considers that other contacts without such an objective will also permit to maintain their bond and create positive moments together, also an essential component of the rehabilitation. [ 75 ] This alternation should provide the levers necessary to progress.

Although the Court fixes a monthly contact schedule, the basis will be an agreement between the parties which allows the leeway for adjustments in view of the evolution of the situation. [ 76 ] What is the appropriate duration for the application of the measures? [ 77 ] Although the Court considers that an active and transparent participation in the measures should permit the situation to evolve rapidly, remains that the wounds are deep and the changes required, significant. [ 78 ] The next months will clarify the willingness, and capacity, of all the parties involved to go forward. [ 79 ] Such being the case, the Court retains a one year application as being a better reflection of the rehabilitation required, while reminding the parties of their right to apply for a revision of the situation should there be appreciable changes. [ 80 ] For the parents, individual and/or joint therapy with the objective of accompanying them in recognizing their responsibilities as well as ways to reduce the impacts of their perceptions on their daughter, is also a means of going forward. [ 81 ] The Court also provides orders meant to preserve X from negative comments concerning her respective parental environments. [ 82 ] FOR ALL THESE REASONS, THE COURT: [ 83 ] PARTIALLY GRANTS the application; [ 84 ] DECLARES that the security and the development of the adolescent are in danger for the following reason: • Psychological ill-treatment (article 38c) Youth Protection Act ) [ 85 ] ENTRUSTS the adolescent to her mother; [ 86 ] ORDERS that the visits between the adolescent and her father be following agreement between the parties and in the presence of a third party chosen by the Director; [ 87 ] IN DEFAULT OF AN AGREEMENT, ORDERS the following modalities for the next 6 months: • A calendar of visitation will be put in place; • The visitation

schedule will provide for monthly visits, alternating one visit at the Director’s offices for mediation purposes, with a visit surrounding an activity or outing to be determined between the Director, the father and the adolescent; • These contacts are dependant one upon the other and in the case of a refusal or cancellation, the following contact will be rescheduled with the same objective; [ 88 ] PERMITS the adolescent to exchange with her father by telephone or other such means, respecting a

schedule to be determined between the parties; [ 89 ] AUTHORIZES the partial or total lifting of the supervision following agreement between the parties and in function of the evolution of the situation; [ 90 ] PROHIBITS the parents from denigrating the other parent or their environment to or in the presence of their daughter, nor of permitting that a third party do so; [ 91 ] PROHIBITS the parents from discussing the legal proceedings with their daughter or permitting that a third party do so, except in the presence of the health, social or legal professionals who offer her services; [ 92 ] ORDERS that the parents report periodically to the Director of Youth Protection on the measures they apply in their own regard or their child’s regard to put an end to the situation in which her security or development are in danger;

[ 93 ] ORDERS that the adolescent and her parents take an active

part in the application of the measures ordered; [ 94 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the adolescent and her family; [ 95 ] RECOMMENDS that the parents allow and encourage contacts between X and each of her parental environments; [ 96 ] RECOMMENDS that the parents participate in individual and/or joint counselling in view of establishing effective co- parenting; [ 97 ] ENTRUSTS the adolescent’s situation to the Director of Youth Protection A for the execution of the present judgement; [ 98 ] ALL THESE MEASURES for one year; [ 99 ] THE WHOLE without costs. __________________________________ BÉATRICE CLÉMENT, J.C.Q.

Me Sarah Gaudry-Staub Attorney for the Applicant Me Karine P. Poissant Attorney for the adolescent Dates of hearing: January 4 and 29, April 3 2019