2012 QCCQ 12010, 2012 QCCQ 12010

Protection de la jeunesse — 123018 2012 QCCQ 12010 COURT OF QUEBEC Canada PROVINCE OF QUEBEC DISTRICT OF [...] LOCALITY OF […] Youth Court Division No: 505-41-006642-112 DATE: May 7, 2012 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X Born : […], 2001 DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner -and- A -and- B (deceased) Parents of the child ______________________________________________________________________ JUDGMENT CAUTION : The Youth Protection Act provides that within the framework of this Act, no person may publish or broadcast information allowing a child or the child's parents to be identified.

Whomsoever contravenes this

article is guilty of an offence and is liable to a fine [articles 11.2.1 and 135 Y.P.A.]. ____

[ 1 ] A motion for protection is submitted to the Court concerning X, born on [...], 2001. The Director of Youth Protection alleges that the security and the development of the child are in danger in reason of a serious risk of negligence, as detailed more amply in paragraph 3 of the motion. [ 2 ] The Petitioner recommends that the child be entrusted to the care of his paternal aunt, Ms C.

As well as other measures of aid, counsel and assistance, it is requested that the Court recommend that Ms C seek the custody of the child on the Superior Court level, and that the parental authority of the mother be partially restrained. [ 3 ] The mother contests the motion and wants her son to be entrusted to her care or to the care of Ms. D, the person with whom she resides.

The child, through his attorney, requests to be maintained in the care of his aunt. [ 4 ] Following the hearing of December 13, 2011, the Court declares the security and the development of the child in danger, following which an interim order is rendered. The hearing on the measures proceeds on February 16, 2012 and the judgment is taken in deliberation. The present judgment constitutes the confirmation and motivation of the declaration as to the security or development, and the final measures. [ 5 ] The parents are separated before the birth of their only child, X.

The mother has 2 other children from a previous union, Y (17 years) and Z (16 years), who are entrusted to their father. [ 6 ] At 2 years old, X is entrusted to his father's care because of the mother's lifestyle. Two years later, he is returned to his mother's care for 6 months, but a recurrence of the situation results in his being returned to his father. [ 7 ] The child is the subject of decisions of the Court of Quebec, Youth Chamber, until December 2008 (file no. 505-41-003622- 034).

These decisions maintain the child with his father and set the mother's contacts, as well as offering other measures of aid, counselling and assistance. The mother's instability is chronic and a recurring parental conflict is noted, rendering the involvement of the DYP necessary to mediate and organize the contacts. [ 8 ] On an ex-parte basis, the father obtains the custody of X from the Superior Court and the mother's access rights are reserved. [ 9 ] In December 2008, a post order agreement is signed for 6 months, in order to facilitate and mediate the contact

schedule and permit the mother to petition the Superior Court to address the issue of her access rights, which she fails to do. On September 15, 2009, the file is closed with A Community Services, considering that the outstanding issue of the parental conflict is sufficiently stabilized and that any further difficulties can be addressed by the Superior Court. [ 10 ] The parental conflict remains a live issue and without any structuring or mediation, the mother's contacts become inconsistent and irregular, and largely at the father's convenience.

The mother fails to undertake any legal steps to frame her access or parental rights. [ 11 ] In August 2011, the father suddenly passes away, prompting the renewed intervention of the DYP. X is entrusted to his paternal aunt, Ms C, who lives on the family property and has been an active

part in his life. The mother's contacts with her son are scheduled on a weekly basis. [ 12 ] The mother has made significant strides to stabilize her situation. She has ceased her alcohol consumption and is attending AA meetings. She works on a part-time basis. Her ultimate goal is to live independently, but she can remain with Ms D as long as needed. Notwithstanding, the evidence states that the mother's parental abilities are chronically limited. She has received numerous services throughout the interventions regarding her children, but fails to absorb or apply the recommendations with consistency.

Her collaboration is also minimal. [ 13 ] The Court concludes that there is a serious risk of negligence should X be entrusted to his mother. Because the mother is unable to provide the environment and the structure her son requires, the Court must evaluate the best place for him to reside. [ 14 ] X is a bright child. He is struggling following the recent loss of his father and has had incidents of disruptiveness. He likes living with his aunt and extended family, with whom he is very close.

At his aunt's, he receives response to his needs and consequently, at first blush, this is the milieu, which the Court must favour for placement. [ 15 ] X's best interests also dictate that his relationship with his mother be maintained, preserved and reinforced. Notwithstanding her limitations, the mother is presently assiduous as to her visits and generally adequate. X appreciates his contacts with his mother. [ 16 ] Remains the thorny issue of determining if the continued conflict between the mother and the aunt is an impediment to X's placement.

The evidence clearly demonstrates that the relationship is strained and effective communication between them deficient.

Both parties are hypersensitive and quick to blame the other for even the smallest of missteps. [ 17 ] Although the aunt testifies that she recognizes the importance of the mother-son relationship, it is clear to the Court that, having witnessed the conflicts between the parents, she is not an objective bystander and is not expected to favour the contacts outside the realm of a Court order. [ 18 ] The mother sees the aunt as an extension of the father and dismisses any possibility of collaboration or conciliation, concluding that her only goal is to impede her relationship with her son.

She is resentful and hostile towards Ms C as well as towards the social services. [ 19 ] In this period, it is especially crucial that X maintain his significant relationships, without impediment nor conflict. All must be put forth to prone his continued progress. The Court considers that the measures can frame the situation, so that X evolve concurrently at his aunt's and at his mother's. [ 20 ] The Petitioner maintains that the situation of the child will no longer be in danger, should Ms. C obtain custody via the Superior

Court and consequently, insists that the Court confirm this position by recommending such proceedings. To do so, the Court would have to be convinced that the security or the development of the child could be preserved without the intervention of the DYP, within the timeframe of the present order. The facts contradict such a conclusion. [ 21 ] During the period in which the DYP had no involvement, the child's contacts with his mother were inconsistent, and the Court considers that this was detrimental to the development of the child.

For numerous reasons, the mother has not adequately asserted her parental rights in the past, resulting in her role being progressively diminished. The intervention of the DYP following the father's death brought this situation to light and resulted in the reestablishment of a coherent structure which favors the mother-son relationship.

Without this structure and a mediating party, the Court is convinced that the inevitable degeneration would not reflect the child's best interests. [ 22 ] The Petitioner requests that the mother's contacts be determined by the DYP, adding that a further reduction of said access is dictated, from 3 out of 4 weekends to 2 weekends a month. The Petitioner cites incidents of the child being increasingly disruptive and angry at school. The evidence doesn't convince the Court that these behaviors are linked to the visits with his mother, but the Court considers that a

schedule of 2 out of 3 weekends will more amply reflect his needs for stability in both milieus. [ 23 ] The same reasoning applies to the request to partially restrain the mother's parental authority. [ 24 ] The Court cautions the Petitioner in too rapidly focusing on solutions that mitigate the mother's role. The message transmitted to the parties can denote a lack of neutrality, which is not consistent with the goals of the intervention nor with the precepts of the law.

The principle goals of the intervention should be to establish an effective means of communication and cooperation between Ms C and the mother. [ 25 ] The Petitioner's mandate is to offer the support and aid necessary to maintain equilibrium and this, despite the fact that both Ms C and the mother either may, directly or indirectly, be working countercurrent.

Certainly not a simple task, but one rendered necessary by X's best interests. [ 26 ] FOR THESE REASONS, THE COURT: [ 27 ] GRANTS the present motion; [ 28 ] DECLARES that the security and development of the child X are in danger; [ 29 ] ENTRUSTS the child to his paternal aunt, Ms. C; [ 30 ] TAKES ACT that the mother resides at the domicile of Ms. D; [ 31 ] ORDERS that the contacts between the mother and the child be exercised as follows: a. Two out of three weekends, from Friday at the Youth Center until Monday at school or at 9 a.m., if there is no school; b.

During the summer holidays: • Two non-consecutive weeks during the summer holidays, to include a scheduled weekend (7 days). • In default of an agreement, the first week of July and the first week of August. • X may accompany Ms. C and her family for a similar period, during which time, the mother's scheduled weekends will be suspended. Ms C will advise the mother in writing on or before June 15 th , of the weeks of vacation. c. During the Christmas/New Year's holiday, either period of: • December 22 at 9 a.m. until December 24 at 8 p.m., and January 1 at 9 a.m. until January 3 at 9 p.m.

OR • December 25 at 9 a.m. until December 30 at 8 p.m. • For the holiday season 2012, the mother will notify the DYP and Ms C of the period chosen on or before December 1 st . d. Mother's Day from 9 a.m. to Monday at school. e. Two consecutive weekdays during spring break to be annexed to a regularly scheduled weekend.

The mother will notify the DYP and Ms C of the days chosen on or before February 1 st . [ 32 ] PERMITS the parties to vary the access rights, upon mutual agreement; [ 33 ] ORDERS that unless otherwise agreed between the parties, the mother will assume the transportation of the child at the occasion of her access rights. [ 34 ] ORDERS that the Director of Youth Protection advise the mother in advance of all medical appointments or meetings with the school authorities and AUTHORIZES the mother to be present at said meetings; [ 35 ] ORDERS that the mother receive a copy of the child's school and activity calendar and report cards;

[ 36 ] ORDERS that the mother and C not denigrate one another or their entourage in presence of the child, nor permit that a third person do so; [ 37 ] ORDERS that Ms C and the mother maintain a communication booklet, in which they will record any pertinent information concerning X; [ 38 ] ORDERS that a communication pouch be transferred at the occasion of the mother's access rights, said pouch to specifically include a communication booklet, X's medicare and hospital cards, and medication. [ 39 ] PERMITS the child to accompany Ms C to the United States for up to 48 hour periods, conditional to the mother being advised of said trip at least 24 hours in advance and to said trip not impeding on the mother's otherwise scheduled visits. [ 40 ] ORDERS that aid, counsel and assistance be provided to the child and his family; [ 41 ] ORDERS that the mother participate actively with the measures ordered, namely that she meet with the caseworker at least once a month to update the situation; [ 42 ] ORDERS that the child receive all health services required, including a psychologist if required; [ 43 ] ORDERS that the mother respect all medical prescriptions and recommendations, concerning her son; [ 44 ] ALL THESE MEASURES , for one year. [ 45 ] ENTRUSTS the situation of the child to the Director of Youth Protection of le Centre jeunesse A for the execution of the present measures. __________________________________ BÉATRICE CLÉMENT, J.C.Q.

Me Marie La Roche Attorney for the Petitioner Me Kathleen O'Meara Attorney for the child Me Patrick Cormier Attorney for the mother Date of hearing: December 13, 2011, February 16, 2012