2013 QCCQ 20365, 2013 QCCQ 20365

Protection de la jeunesse — 133148 2013 QCCQ 20365 JS0899 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 505-41-006121-109 DATE: July 29, 2013 ______________________________________________________________________ BY THE HONOURABLE JEAN-PIERRE SAINTONGE ______________________________________________________________________ IN THE MATTER OF THE CHILD : X Born on [...] , 2004 [SOCIAL WORKER 1] Youth protection worker duly authorized by the Director of Youth Protection Petitioner and A and B Parents of the child ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized of a motion for revision and extension of the Court's decision rendered on February 13, 2012, under Youth Protection Act for the child X , born on [...] , 2004. [ 2 ] The Director of Youth Protection, acting through a duly authorized person, alleges that the security and development of the child are still in danger for the reasons appearing in paragraph 4 of the motion : "

a) since the last Court hearing, the mother still demonstrates no acknowledgement what so ever of the reasons why the child is considered in need of protection services ;

b) the mother does not recognize her responsibility in the situation and still says that the father is the one who is inappropriate with the child ;

c) the mother's collaboration with our services is minimal as she sticks rigidly to her position of being a victim of the father and of the system ;

d) the mother openly opposes or criticizes our workers in her daughter's presence ;

e) the mother still constantly criticizes directly and indirectly the father when she is with her daughter ;

f) giving the situation your petitioner is only left with giving the mother rules and regulations namely : to respect the length of the visit, to accept that the child may talk about her father and not to respond negatively and to accept the presence and the interventions of the persons who supervise visits ;

g) since the mother disrespected verbal visit modalities many times, your petitioner had to meet the child and the mother separately to explain a special set of written rules and regulations established especially for them ;

h) the mother was given a letter, concerning a situation that deteriorated during a visit, explaining that if such behaviour occurred

again, your petitioner would seize Court, since then the visits improved ;

i) the mother put an end to her psychological therapy at the CLSC and the psychiatric follow-up offered to her by the psychiatrist and refused the medication prescribe to her ;

j) the father continues offering a good collaboration to our services and to all other services to his daughter : school, paediatrician and psychologist ;

k) the father sees that his daughter take her medication as prescribed for her attention deficit disorder ;

l) to your petitioner's knowledge the father doesn't criticize the mother in his daughter's presence ;

m) the father helped the child to understand the rules of the visits and he helped her express her feelings about her visits ;

n) the child's functioning doesn't demonstrate that the visits, as limited as they are, affect her negatively ;

o) the child is doing better in school since she takes her medication, her grades have improved and her behaviour is good ;

p) the mother's involvement with the school and with the doctor became so complicated that your petitioner had to intervene namely : she questions the doctor's medical opinion and she is opposed to some of the medication he prescribes ;

q) in April 2012,the child felt insecure about the medication she is taking because the mother openly question the medication given to her ;

r) the mother has completed a parental assessment ;" [ 3 ] For the audition of the present motion, the Youth Protection worker representing the Director is present with her attorney, the child is represented by her attorney, the mother is present with her attorney and the father is present but not represented by an attorney, after being informed of his right to this effect. [ 4 ] Different documents were filed by the attorney of the Director with the consent of the parties and in lieu of testimony, subject to cross examination : D-3 : a Court report written by Mrs [Social Worker 1] dated September 19, 2012 ; D-4 : a School report from Commission scolaire A for the period of 2011-2012 ; D-5 : a letter dated September 11, 2012 from Mrs Anne S.

Lacasse, Ph.

D. ; D-6 : a letter dated September 12, 2012 from Irving Rabin, M.D. ; D-7 : a report of psychological assessment of Mrs A , written by Dr Lucia Fernandez de Sierra and dated May 29, 2012 ; D-8 : a letter dated September 14, 2012 from Mrs Isabelle Soulard, M.D. ; D-9 : notes (External evaluation) from Mrs Isabelle Soulard, M.D. ; D-10 : rules and regulations for the supervised visites. [ 5 ] The attorney of the Director files a document amending the conclusions of the motion as follows, so that the child X remain with her father, that the contacts between the child and the mother be organised once every second week during one hour and a half if the situation allows it, and during the working hours at the Youth Protection Office and in the presence of a third party chosen by the Director, that measures of aid, counselling and assistance be provided to the child and her family, that the parents and the child take an active

part in the application of the measures ordered, that the child receive health care and services, namely psychological follow-up as needed, and finally that the exercise of certain rights of parental authority be withdrawn from the mother to authorize the father to sign the authorizations required. All these measures to apply for a period of one year. [ 6 ] The mother, through her attorney, as noted in the minutes of the Court, admits the allegations contained in subparagraphs h),

n) and

r) of the paragraph 4 of the motion but denies as drafted or ignores the rest of the allegations. As far as the measures are concerned, the custody of the child by the father is not contested but the mother asks that the contacts with the child be authorized every week-end for a period of three hours at her home and that these contacts be organized during the week-end, explaining that she will start working soon. [ 7 ] The father admits almost all the allegations of the motion as noted in the minutes of the Court. He ignores the allegations referring to the mother's situation.

He read the different reports and has no comment on their content which represent the reality. He is in agreement with the different measures proposed by the Director. [ 8 ] The attorney of the child met her a couple of days before the hearing. The child, as noted in the minutes of the Court, admits some allegations of paragraph 4 of the motion, namely subparagraphs d), g),

k) to o). The child is in agreement with the measures proposed by the Director but she would like to have more visits with her mother or at least more time for the visits and she would like that the visits take place at her mother's house because it’s a bigger place, there is more toys and more fun than at the Director's office. She also would like to be with her mother during the Halloween's evening. [ 9 ] The proof was completed by the testimonies of the Dr Hugh Young, member of the teem of mental health of the CLSC A , Mrs [Social Worker 1] , social worker, Mrs C , a mother's friend, the father and the mother.

[ 10 ] The proof reveals that the situation of the mother has not changed. She still demonstrates no acknowledgment what so ever of the reasons why the child is considered in need of protection services and why she is considered greatly responsible for the situation. The mother remains convinced that she did nothing wrong. She still denigrates and criticizes directly or indirectly the father, sometimes even in the presence of the child, and she accuses him to be inappropriate with the child, that he sexually and physically abused the child, that he is dangerous.

So in her own opinion, the child should live only with her and stop to see her father ; she would like to remove father's parental authority. [ 11 ] The previous decisions of the Court in Protection (September 23, 2010 and February 13, 2012) conclude that the child is seriously affected by the conflicts and the confrontation between the parents, parental conflict which is mostly provoked by the mother. The child is caught in a conflict of loyalty and the mother's attitudes might provoke alienation.

And because of this rigid attitude of the mother, the Court ordered that the child remain with the father and the contacts between the mother and the child have to be under strong supervision and under clear and strict rules to be observed by the mother to assure security, stability and serenity for the child. The mother is not allowed to be alone with the child and the contacts have to be limited by the Court because of the bad effects on the child who finds herself in a situation of confusion, stress and anxiety.

As example, it happens sometimes that the night following the visit of the mother, the child has nightmares. [ 12 ] The psychologist Anne Lacasse, PhD, who is following the child since November 2009, mentions in her report dated September 11, 2012 that "during our 2012 sessions, although X still wished she could see her mother more, she seemed to accept that she could not for now.

She seemed to understand that her mother is not well (although X wished to believe her mother was better now)." It is obvious that the mother is engaged in a continuous campaign of disqualification of the father and wants the child to reject her father. The Dr Van Gijseghen, psychologist, in his report of February 15, 2009, gives the following answer at the question "Is the mother an alienating parent?" : "Definitively Yes." The Court considers that the situation is still the same at the present time. The mother has not changed her mind.

And in the conclusions of his report, Dr Van Gijseghen, among others recommendations, said : "If Mrs A cannot over come her convictions, it is her responsibility to seek adequate professional help. Such help must not have as an objective to lend a "sympathetic ear" to her but rather to help her break the obsession." [ 13 ] Unfortunately, despite the recommendations of Dr Van Gijseghen and the recommendations of the Court to the same effect, the mother never get involved in such a therapy or follow-up.

She saw many specialists or professionals like Dr Soulard, psychologist, Dr Young, psychotherapist, Dr Lucia Fernandez De Sierra, psychologist, but has never accepted to participate actively in supportive services as follow-ups or medication. Instead of giving her collaboration to the therapeutic services, the mother's mandate to them was that they demonstrated that the father victimized her and her daughter, that the services of the DYP are wrongfully on the father's side and that she should have her daughter reentrusted to her. She put an end to these services when she realized they did not meet the mandate.

It is clearly to the opposite of the recommendation of Dr Van Gijseghen. [ 14 ] The psychologists Dr Lucia Fernandez de Sierra made a psychological assessment of the mother following the recommendations of the Court in view to determine her personality and parental capacities and to formulate recommendations and prognosis. The psychologist made a review of the whole situation of the mother and completed interviews and tests with the mother.

The conclusions and recommendations of the psychologist in the conclusions of her report dated May 29, 2012 are as follows : "Mrs A an articulate, soft-spoken and composed woman but resistant and guarded. Although her thinking was most of the times clear and logical, her judgement was not always coherent ; sometimes she gave the impression to do not understand and had the tendency to be stubborn and oppositional. She presented paranoid ideas as mistrust and suspicion. Although, she is able to see others' faults, mistakes or weaknesses, her self-criticism is practically non-existent.

Mrs A tends to blame the whole social system. She said she is exhausted going to Court so many times, for all kind of reasons, falsely accused by DYP and X 's father. She seemed very proud of her speech at the last hearing (November 2011), when she explained to the Court her opinion and her position. Mrs A stated she wants her daughter back with no contact with the father : she said she would like to remove father's parental authority. Concerning her personality, Mrs A obtained a profile that suggests the hypothesis of a paranoid disorder.

Subjects obtaining a similar profile have : serious thought dysfunction ; prominent persecutory ideation that probably rises to the level of paranoid delusions ; blame others for their difficulties ; are suspicious of and alienated form others ; she may present impaired reality testing, engaging in unrealistic thinking. Mrs A suffers from a significant anxiety and strong tensions that do not allow her to utilize her inner resources. In her relationships, she has an immature interaction with others due to the internal malaise ; she tends to control and to highlight her point of view.

Comparing her results with those obtained in 2009, it is clear that her mental health is deteriorating. She seems to be resistant to submit to psychotherapy, as she is convinced she is not the source of the problem. Unfortunately, as long as Mrs A will not resolve her conflict with X 's father, she will continue, in order to protect her child, to alienate her, disqualifying father's image. In our opinion it is important to keep the relationship between a mother and her child.

In order to help Mrs A to deal with the situation, it is necessary to be very patient with her, explain to her in detail, several times, the procedure and all the elements of the circumstances, then establish firmly and clear limits with her.

Before being in charge of her child, she has to develop better personal skills and stability, establish her own sense to help herself, find her own strength, and re-establish a sense of boundaries." [ 15 ] After revision of the large documentary proof and of the testimonies of the different witnesses, the Court concludes that the security and the development of the child are still in danger. The parental conflict provoked by the mother's alienating behaviour against the father is still present and puts the child in the middle of a conflict of loyalty.

This situation is detrimental to the well-being of the child and to her interest and rights. [ 16 ] The child is presently living with her father since the decisions rendered by the Court on provisional measures on July 8 and 13, 2010 and by the judgments in matter of protection rendered on September 23, 2010 and February 13, 2012 when the order of the Court maintained the child with her father. This measure is not contested presently by the mother and by the child. But the recommendations of the Director regarding the contacts between the mother and the child are contested.

The Director is asking that the contacts between the mother and the child be organized once every second week during one hour and a half if the situation allows it, and during the

working hours of the Youth Protection Office and in the presence of a third party chosen by the Director. The mother is contesting the supervision, the frequency and the duration of these contacts. The mother asks that the contacts be authorized every week-end for a period of three hours at her home. The father is in agreement with the position of the Director. [ 17 ] For the child, her attorney submits to the Court that the child is happy to see her mother, she desires and needs contacts with her mother ; it is in her best interest as a child.

And the child would like that contacts be held not at the Director's office but preferably at the mother's home. The attorney of the child emphasizes that the mother is in the same state of mind and has not changed her alienating behaviour for the last three years ; that she is not sensitive to the recommendations of the Court and to the recommendations contained in the different reports filed in the dossier ; that she doesn't seems to understand the needs of the child and the necessity to comply with recommendations.

The child's attorney agrees with the recommendations of the Director but submits to the consideration of the Court that a duration of two hours instead of one hour in a half for the visits could be convenient for the child. Finally, the attorney of the child asks that the measures to be ordered by the Court should be for a period of two years instead of one year. He points out that the file coming back to the Court each year gives supplementary stress to the child.

And considering that the situation of the mother has not progressed during the last three years and considering that the mother has a long road to go to make adjustments and resolve her difficulties, a period of two years could be appropriate for the duration of the measures to be ordered by the Court. [ 18 ] At the end of the hearing on September 27, 2012, the Court grants the motion for revision and extension, declares that the security and the development of the child are still in danger and takes the case under advisement for the final measures to be ordered.

In the meantime, the Court, as intermediate measures, maintains the status quo on the measures ordered in the last judgment of February 13, 2012. [ 19 ] Three questions are to be decided by the Court : the contacts between the mother and the child, the question regarding the exercise of parental authorities for authorizations and signatures to be transferred solely to the father and finally the duration of the final measures to be ordered by the Court. [ 20 ] The access rights of the mother with the child have had to be limited and restricted and in a presence of a third person designated by the Director because of the behaviour of the mother and of her lack of collaboration and communications with the social workers.

The mother makes negative comments in front of the child not only against the father but also against the intervention of the Director and the work of the social workers. Other attitudes of the mother are also detrimental to the child. For example, if the name of the father is mentioned by the child during a visit with her mother, this brings a climate of tension and unexpected reactions. Also the mother's involvement with the school and with the doctor following the child for numerous years became complicated so that the social worker has to intervene.

The mother questioned the doctor's medical opinion and she is opposed to the medication he prescribed. As for the school matter, the attitude of the mother was disturbant for the child to the extent that the child refused now to let her mother look at her school's things during the visits. The absence of collaboration of the mother and her lack of parental sensibility to the needs of the child have been exposed especially at three times in the last two years by the refusal of the mother to sign authorization for the child to travel with her father.

On these occasions, and the last time was in June 2012, the Director has to present a motion to the Court for intermediate measures to this effect. The mother finally agrees and signs the authorization and two time it happened the day set for the hearing right in the Court room or just outside to prevent the necessity a Court order to give the child the authorization to travel with his father. This kind of stressful situation for the child should easily be avoided.

These few examples reported above bring unnecessarily a climate of tension, anxiety and stress for the child. [ 21 ] On the other hand, the father offers a good collaboration to the Director services and other services for the child, such as school, doctor, psychologist. The father is attentive to the needs of the child, gives her encouragement, helps her with homework and inscribes her in external activities. The child confirmed that the father does not criticize the mother in her presence. It is the same for the social worker.

The father understands the needs of the child to have visits with her mother, he encourages her to participate and he supports her in understanding the rules and regulations for the visits. He has accepted easily that the child has a picture of her mother in her room and that child can openly talk about the mother. He expressed to be saddened by the situation with the mother and the impacts on the child. [ 22 ] Since the last Court's order in February 2012, the child is doing well in all spheres of her life.

She is doing better in school since she takes her medication, has improved general behaviour and is better socially. She mentioned to her psychologist that she was not having nightmares anymore.

The psychologist also reported that the child "does seem to be allowing herself to develop her relationship with her father and she appears relaxed and comfortable with him." And finally the psychologist says in her report that "the child's functioning does not demonstrate that the visits, as limited as they are, affect her negatively" . [ 23 ] After review and analysis of the documentary proof, the testimonies heard and the argumentations submitted by the parties, as for the measures asked by the Director, the Court concludes that the child must remain with her father with measures of aid, counselling and assistance for the child and the parents, that the child receive health care and services as needed, namely to continue her psychologist follow-up, that the parents and the child participate actively in the application of the measures ordered to put an end to the situation in which the security and development of the child are in danger. [ 24 ] As for the contacts between the child and the mother, the Court has to maintain the limitative and restrictive measures ordered in the last judgment of February 13, 2012.

The mother's negative attitude of alienation that she continuously demonstrates since the last three years is detrimental to the child's security, stability and serenity and has a negative impact on the child. Also the rigid attitude of the mother has to be considered contrary and against the interest and the rights of the child : the child is entrusted to have and maintain contacts with both parents, positive contacts to her benefit and her well-being, to enjoy good time with both her father and mother without tension, stress and confrontation.

So each parent has to act positively and in respect of the rights and the needs of the child and of the other parent. [ 25 ] The Court has to preserve the child from conflicts of loyalty, from alienation and from a climate of denigration and criticism against any parent. In the present file, the Court says again it is a very bad situation. The mother is not sensitive to the real needs of the child, she is overwhelm be by her personal conflicts against the father and her personal difficulties.

She needs help to overcome her agressivity and conflicts against the father and to structure a good and secure relationship with her daughter. The child wants contacts with her mother and the father is ready to collaborate. But the child must be protected from any conflict of loyalty and alienation. The

Court takes note that since the contacts have been restricted and supervised by the case worker, the child is more stable, she is going well at home with her father and his girl friend and also socially, she has good results at school and is sleeping better with no more nightmares. [ 26 ] To correct and regulated her situation, the mother will have to seek adequate personal help as recommended by the Court in the two previous judgment following the recommendations of support given by the professionals (psychologist, psychiatrist, psychotherapist) in their assessment of the mother's situation.

The mother has to develop better parental skills and to re-established a sense of boundaries. She has to change her negative and obsessive thinking against the father.

She has to collaborate positively with the professionals and with the intervention of the caseworker. [ 27 ] In the circumstances, the Court will order that the contacts between the child and her mother be supervised by the caseworker acting for the Director or by a third party designated by the case worker, at the same frequency presently ordered, once every second week during the working hours of the Youth Protection Office, and following the rules and regulations set in the document filed as exhibit D-10 at the exceptions of where the contacts will take place and of the duration of the contacts.

The Court wants to take in consideration some of the propositions made by the child's attorney. The contacts have to take place at the [Centre A] Office or at any other convenient place agreed by the caseworker, the child and the mother, for example outside in a recreational area, but not at the mother's place. The Court has to remember that last time, the contacts took place in the mother's home, the climate became so tense that the mother and the caseworker called the police, creating a situation of confusion and discomfort for the child.

The mother has to respect the rules and regulation and not to criticize the caseworker or the father and not to speak lowly or yell out in front of the child. The child reported her discomfort and her stress under these situations. In these circumstances, the caseworker would have the option to stop immediately the contacts.

Finally, the duration of the contacts are set by the Court for a period of two hours instead of one hour in a half (from 2 to 4 p.m. or any other agreement between the parties) if the situation allows it, to give more time to the child for the activities with her mother. [ 28 ] The Director in the conclusions of the motion for revision and prolongation of the Court order asks that the exercise of certain rights of parental authority be withdrawn from the mother to be transferred solely to the father and to authorize the father to sign the authorisations that could be required.

This kind of demand is very special and exceptional. The proof is on the Director to show the necessity and urgency of this kind of measure. The evidence submitted by the Director is not sufficient for the Court to give this kind of order. Firstly, even if the mother's collaboration is minimal, she is always present for the contacts with the child and is active to organize the participation of the child. The mother's address and phone number are known by the caseworker and there is no particular difficulties to reach her.

The caseworker in her Court report (D-3) acknowledges that the mother has many qualities that X can benefit from but she has showed also many weaknesses in her parental skills when alone with the child. Some of the mother difficulties could come from her personal problems and her conflict with the father and bring toxicity to their relationship with her daughter that could be much better and healthy.

And as it has been reported previously, the mother is not always recognizing the interest of the child and showing parental sensibility as for example when she refused to sign the authorization for the child to travel with the father, but finally gave the authorization after procedures have been initiated in the Court.

That kind of difficulties should be regulated to avoid tension and stress for the child. [ 29 ] Finally, regarding the direction of the final measures to be implemented by the Court, the child's attorney asks the Court to order measures for a period of two years instead of one year, so that the order of the Court will extend to the end of September 2014. [ 30 ] The Court has to consider that the situation of the mother in the present file has not changed since over three years. Her collaboration and her participation in the measures of help recommended have been minimal and almost inexistent.

She is not interested in any therapy to correct her personal difficulties and establish a good safe and healthy relationship with her daughter. She is obsessed by the parental conflict she has provoked which situation is detrimental to the child and should be the sole business of the parents.

It is apparent that the mother has a long way to go to change her attitude, to not be so rigid and to make the adjustments required to respect the interest and the rights of the child and also of the father. [ 31 ] The situation brings tension and stress to the child and particularly every time the file comes back to hearing in front of the Court.

The Court considers that the month of September is the beginning of school year for the child and that she has to be focused on her new school year. [ 32 ] In view of these considerations, the Court finds appropriated and in the best interest of the child that the measures implemented be extended after the end of the first school semester and be continued up to next January 2014. It will help the child to concentrate on the school and give the mother more time to be involved and to participate actively in measures of help for a personal difficulties and to demonstrate a better collaboration with the Director.

THEREFORE, THE COURT : [ 33 ] GRANTS the present motion ; [ 34 ] DECLARES that the security and the development of the child X are still in danger ; [ 35 ] REVISES and EXTENDS the Court order rendered on February 13, 2012 in the present file ; [ 36 ] ORDERS the following measures for a period extending to January 27, 2014 : ➢ That the child be maintained with her father ; ➢ That measures of aid, counselling or assistance be provided to the child and her family ; ➢ That the parents and the child take an active

part in the application of the measures ordered ; ➢ That the child received health care and services, namely to continue her psychological follow-up as needed ;

➢ That the contacts between the child and the mother be supervised by the caseworker acting for the Director or by a third party designated by the caseworker, and be exercised once every second week for a period of two hours if the situation allows it, during the working hours of the Youth Protection Office, at the Youth Protection Office or at any other convenient place agreed by the caseworker, the child and the mother, following the rules and regulations set in the document filed as exhibit D-10 with the appropriate modifications if necessary ; [ 37 ] ENTRUSTS the situation of the child to the Director of Youth Protection of Le Centre jeunesse A for the execution of the measures ordered ; [ 38 ] The whole, without costs. __________________________________ Jean-Pierre Saintonge, j.c.q.

Me Marie-Luce Abarrategui Attorney for the petitioner Me Éric Hamel Attorney for the child Me Katherine Anne MacLeod Attorney for the mother