2012 QCCQ 6174, 2012 QCCQ 6174

Protection de la jeunesse — 12643 2012 QCCQ 6174 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 610-41-000372-086 DATE: February 7, 2012 ______________________________________________________________________ BY THE HONOURABLE NANCY McKENNA, J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1], human relation agent, exercising her profession at the Centre Jeunesse A, having a place of business at […] at City A, district A, […] Applicant -and- X, domiciled and residing at […] at City B, district A, […] Child -and- A, domiciled and residing at […] at City C, district A, […] Mother -and- B, domiciled and residing at […] at City B, district A, […] Father ______________________________________________________________________ JUDGMENT (Sec. 95 (1 and 2) and 75 of the Youth Protection Act) ______________________________________________________________________ [ 1 ] The Court is seized with a petition for the review and extension of a decision rendered by Grimard J. on November 19, 2010, concerning X, born on […], 2005. [ 2 ] The father and the mother are both present.

However, only the mother is represented by counsel. The child is also represented by counsel and remains present for a part of the hearing, during the course of which the Court rules that it is in his best interest to wait outside the Courtroom. THE FACTS [ 3 ] On May 26, 2008, Grimard J. declared the security and development of the child endangered following

section 38 (b) (2) of the Youth Protection Act. The mother experienced alcohol abuse, which endangered X's security.

The child was then entrusted to the father. [ 4 ] In light of the mother's sobriety, on August 3, 2009, Grimard J. reviewed his previous order and entrusted the child to both parents. [ 5 ] However, on November 19, 2010, Grimard J. reviewed that judgment and entrusted the child to his father, considering that he had been the child's main caregiver in the past and because the child didn't show behavioural problems when under the father's care. [ 6 ] The father now works on contract for a drilling company in City C and is therefore absent from home for a few weeks at a time.

Since the last Court order, his common law spouse and him have had another child. His absence from home has had an impact on X's behaviour. According to the father, his son has been showing growing behavioural problems, which led him to request at the end of November 2011, that X be removed from his home. Accordingly, on December 6, 2011, a provisional order entrusted the child to the mother. [ 7 ] In September 2011, the father and his spouse took some steps to have X undergo a psychological assessment at A Health and Social Services Centre.

He then requested a follow-up on this matter by the applicant and states he never heard back from her. He admits that he lost faith in the Youth Protection services and feels that the applicant is more inclined to favour the mother's situation over his. At the same time, he admits that his relationship with the mother remains strained and that he doesn't see the use of attending mediation sessions with the mother. In that regard, his refusal is based on bad memories and negative feelings towards the mother from their past relationship.

He also acknowledges that his behaviour might somewhat be immature as he is unable to try to put the past where it belongs for his son's sake. In his mind, the Director of Youth Protection has no more business in his life.

[ 8 ] For her part, the mother lives in City C and teaches recreational activities at the A School. She is now on medical leave due to an ankle injury. She maintains, for the most part, her sobriety and says she attends AA meetings in City C. When she does drink, she makes sure not to expose her son to her consumption and she is determined to put her child first. Her stay at the A treatment centre was enlightening as her life is much more stable. Regarding the father, she is trying to cope with unresolved issues concerning his relationship with his new spouse.

Nevertheless, she is willing to try to work things out with the father through mediation and she acknowledges that the parental conflict affects X's wellbeing. [ 9 ] The mother-child bond is significant. Before the provisional order rendered in December, the mother made a point to respect her visitation rights in order to spend quality time with her son. [ 10 ] X's development and behaviour have been a cause for concern for the last several months. The child's behaviour is characterized by temper tantrums, which can last quite a while.

The child had a personal educator until May 2011, service that ended for lack of personnel. The educator had the mandate to help the child cope with parental separation as well as the instilment of basic rules of respect. [ 11 ] In class, it is reported that X shows much difficulty in respecting rules and can be quite restless. As for his learning skills, tasks must be repeated and explained in different manners in order for X to understand. Although the father is not the most collaborative, the evidence shows he did inform the applicant of the above-mentioned concerns.

Accordingly, the applicant knows since September 2011 that X's situation is worrisome. Despite the fact that she knew the school authorities had ordered a psychological assessment of X's behaviour and learning skills, there was no continued action to obtain a copy of the said report. The evidence demonstrates that the father had a copy and was supposed to forward one to the applicant and never did. The copy was brought to the applicant by the mother on the morning of the hearing.

The Court finds it troublesome that the applicant did not put into place follow-up strategies regarding the assessment either with the father or with the school authorities. [ 12 ] The report reveals that X clearly suffers from ADHD which explains his learning and behavioural difficulties. The results of the assessment indicate important limitations in regards to his attention span and self-control. As for his learning skills, the report also outlines the presence of a learning disability in the area of verbal and language functioning.

Accordingly, the psychologist recommends that changes be made in his academic program and that the child be referred to a family doctor or a paediatrician in order to pursue the ADHD diagnosis and determine whether medication would be helpful. [ 13 ] The evidence mentioned above constitutes new fact within the meaning of

section 95 of the Youth Protection Act. It therefore authorizes the Court to review the previous decision. MEASURES TO REVIEW [ 14 ] The Director of Youth Protection proposes that the child be entrusted to his mother with aid, counselling and assistance to the family for a period of nine months.

The other parties agree with these recommendations. [ 15 ] When reviewing a decision, the Court must take into account the new facts that arose, but also has to take into consideration the situation from the beginning since the Court decided that the security and development of the child were endangered. [ 16 ] Thus, the evidence shows that the parental conflict was at the heart of the Director of Youth Protection's involvement.

Furthermore, consultation of the decisions previously rendered show that X's behaviour has been a cause of concern for some years now. [ 17 ] More than three years later, these situations are unsettled as they both hinder X's development. [ 18 ] Both parents and more so the father must realize that notwithstanding the ADHD, the persistent parental conflict affects X's sense of security. To this day, the parents' lack of communication and resentment continues to be a barrier to their son's wellbeing.

If the father refuses mediation in order to establish polite communication with the mother, the Court foresees that X's behaviour will only worsen. [ 19 ] Notwithstanding the parental accountability, the Director of Youth Protection to whom the child's situation is entrusted to must put everything into place in order to provide the proper help to the child. Although Grimard J. ordered that aid, counselling and assistance be provided by the Director of Youth Protection to the child, one must admit that such aid was not complete, notably in regards of the much-needed psychological assessment.

Furthermore, the educator services, which were provided to the child, were stopped for a lack of personnel, which doesn't mean X didn't need such help. In light of the above, an intervention plan, which takes into account the recommendations set out in the psychological assessment, must be put into place. [ 20 ] FOR THESE REASONS, THE COURT: [ 21 ] GRANTS the petition; [ 22 ] MAINTAINS that the security and development of X, born on […], 2005, are in danger; [ 23 ] ENTRUSTS the child to the mother; [ 24 ] GRANTS access rights to the father as follows: • Every second weekend following a

schedule prepared by the Centre jeunesse and that both parents should respect; • Four consecutive weeks during summer holidays; • Alternate the Easter holiday and split March break upon agreement; [ 25 ] ORDERS that both parents provide a non-violent, alcohol and drug free environment to X;

[ 26 ] ORDERS the following health services be provided to the child:

a) a medical follow-up with a family doctor or a paediatrician to further investigate the ADHD diagnosis and determine whether medication is necessary;

b) services of an educator or counselling pertaining to parental separation anxiety and behavioural issues. [ 27 ] ORDERS that the parents play an active

part in the application of the measures ordered by the Court; [ 28 ] ORDERS that a person working for an institution or body provide aid, counsel and assistance to the child and the parents for a period of nine months; [ 29 ] ORDERS that the transfer of the child be executed by a third party as long as deemed necessary, depending upon the parents' relationship; [ 30 ] ORDERS the police to collaborate in the execution of the present judgment; [ 31 ] ENTRUSTS the child's situation to the Director of Youth Protection for the purpose of executing the measures ordered by the Court. __________________________________ NANCY McKENNA, J.C.Q.

M e Julie Lemire Centre jeunesse A Lawyer for the D.Y.P. M e Jean-François Lacasse Lawyer for the child M e Sylvie Gourd Lawyer for the mother Date of hearing: January 18, 2012