2022 QCCQ 6850, 2022 QCCQ 6850

Protection de la jeunesse — 222909 2022 QCCQ 6850 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT […] «Youth Division» N° : 505-41-010310-201 DATE : January 27, 2022 ______________________________________________________________________ PRESIDED BY : THE HONOURABLE MARIO GERVAIS J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1] , youth protection worker duly authorized by the Director of Youth Protection A, Applicant -and- X , born on […], 2015 Child-respondent -and- A Mother-respondent -and- B Father-respondent ______________________________________________________________________ J U D G M E N T

Section 95.1 of the Youth Protection Act ______________________________________________________________________ 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 11.2.1 and 135 Y.P.A .] [ 1 ] The Director of Youth Protection (Director) presents an application for revision of a Court order in the matter of the child X , born on […], 2015. [ 2 ] The original judgment, rendered on February 19, 2021, declares that the security and the development of the child are in danger for reason of being subjected to psychological ill-treatment from his parents. [ 3 ] At that date, the Court ordered that the child remain with his family with the social follow-up of the Director for a period of one year. [ 4 ] In support of its application, the Director alleges, in

summary, the following: ➢ The child is still exposed to the conflictual relationship between his parents; ➢ The mother fuels the parental conflict and is mainly responsible for its persistence; ➢ The mother can’t manage her emotions in front of the child, in general or more particularly towards the father, causing him thereby serious prejudice; [ 5 ] The Director recommends, as key measures, to entrust the child to his father, to suspend all contacts between the mother and the

child, a social follow-up for one year and that the Court hand over copy of its judgment to the Director of Criminal and Penal Prosecution for purpose of penal charges against the mother for breach of a Court order. Position of the parties [ 6 ] The father and the child’s lawyer, who’s acting under a legal mandate, agree en-tirely with the facts presented in evidence by the Director and all the measures sought. [ 7 ] On the contrary, the mother considers that she behaves properly and adequately with her child in every manner. She wants the Court to establish a share custody of the child between the parents.

Subsidiary, the mother is requesting large access rights to her child. Evolution of the situation and Analysis [ 8 ] In his previous judgment, rendered on February 19, 2021, the Court expressed the following message and expectations towards the parents: [18] The Court urges the parents to take the necessary steps and use the proper means to avoid exposing their child to their conflicts. The parents have to learn to be respectful toward one another and make agreements in the best interest of their child.

They must ensure that the child has the right to love and feel well with both parents. [ 9 ] What is the evolution of the situation since then? [ 10 ] The evidence reveals that following the last judgment, the child lived with his mother. [ 11 ] On March 12, 2021, a complaint was addressed by the father to the Director, alleging that the mother was preventing him from having contact with his child. On March 16, 2021, the Director contacted the mother who admitted obstructing the father’s access rights to his child.

Consequently, the father decided to petition the Superior Court to resolve this issue. [ 12 ] On April 13, 2021, the Director meets the parents and the child for a co-parenting session. It was more than a month that the father was without contact with his child. During the meeting, the mother is emotional.

She asks her son to take position with regard to his contact with his father, even though she was expressly forbidden to do so by the Director. [ 13 ] On April 16, 2021, the Superior Court granted the custody of the child to the mother with large access rights to the father to be exercised by picking up and returning the child to school. [ 14 ] Was that judgment from the Superior Court sufficient for the mother to finally allow the father to have contact with his child? Absolutely not. [ 15 ] Following the Superior Court hearing, the mother called the Director.

The mother explained that there was, in her opinion, a loophole in the judgment. She only had to retrieve the child from school and offer him homeschooling to neutralize all the father’s access rights to his child, so she did! [ 16 ] The Court states adamantly that there was no loophole in the Superior Court judgment. The mother’s position was unreasonable and contrary to the well-being of her child. [ 17 ] On April 19, 2021, the Director meets the mother at her home to resolve this outstanding issue. The child is not attending school and present.

During the meeting, the mother gets emotional, raising her voice, crying and being disrespectful toward the Director. The child reacted strongly to her mother’s behavior and attitude. He screamed, cried and hid his head in a pillow. At one point, he said that he needed a mental break. [ 18 ] Not aware of the mother’s latest move, the father went to school on April 20, 2021, to pick up his child. On sight, he is informed that the mother has retrieved the child from school [1] . [ 19 ] The father went to the mother’s residence to get his child through the intermediate of the Director, to no avail.

The mother finally called the police. Upon arrival, the police observed the following [2] : Le père et la TS nous demandent de faire respecter le jugement de Cour. […] La maison est complètement en désordre avec des jouets, des objets en tout genre empilés les uns par-dessus les autres. Les comptoirs étaient remplis de vaisselles sales empilées. La mère nous dit qu’elle a retiré son fils de l’école car il faisait de l’anxiété. Elle dit qu’elle n’a pas d’objection à ce que son fils quitte avec son père, mais que son fils ne veut pas partir, car il a peur de son père.

Elle ajoute que personne ne peut le forcer à aller chez son père et que nous, policiers, ne pouvons rien faire. […] Pendant que l’agent Venne joue avec l’enfant, je parle avec la mère dehors à l’arrière. Le père entre dans la maison et prend charge de l’enfant qui se débat pour rester avec sa mère. La mère a connaissance de l’événement et se met à crier en se dépêchant d’entrer dans la maison. […] Elle continue à crier et à pleurer. […] Elle se met à nous filmer en criant. [ Une fois le père parti avec l’enfant et après avoir parlé à son avocate ] la mère clanche des verres de vin rapidement.

Elle est encore en train de pleurer. [ après l’arrivée de l’intervenante sociale ] la mère dit que l’enfant est présentement en danger sans donner de motif autre que le père a déjà été violent envers elle […].

[ 20 ] On April 21, 2021, an emergency hearing was held at the end of which the Court provisionally entrusted the child to his father and ordered that contact with the mother be under the supervision of the Director. [ 21 ] The following weeks, visitations occurred twice a week. The Director observed that the mother has good parental skills when she is emotionally stable.

The child enjoys spending quality time with his mother and misses her. [ 22 ] On the other hand, when the mother is inquiring the child’s living conditions by asking him numerous questions, including « does your father beat you », the child can react by covering his ears, nodding his head or putting his hand in front of her mother’s mouth. [ 23 ] In her testimony, the mother considers that it is her duty to ensure the safety of her child and question him, especially by asking him if he is mistreated physically by his father. [ 24 ] The Director often intervened to refrain the mother from doing so and make her realize that such a line of questions may imply to her child that he is not safe with his father, to no avail. [ 25 ] On June 3, 2021, at the end of a visit, the child refused to leave the room.

The mother encouraged the child to leave, explaining that the visit was over. Since the child was firmly maintaining his position and to avoid an escalation of the situation, the Director suggested that the mother leave first, in order to relieve the child from the burden of ending the contact. The mother refused again and again, filming the scene, asking her child to be strong, instructing him to leave to avoid both of them getting punished by the social worker. The social worker’s supervisor and another social worker intervened in order to end the visit properly.

The mother kept filming and talking to her child, not listening to what was requested from her. Social services had to call the police to resolve the crisis. [ 26 ] On June 9 th , 2021, an emergency hearing was held at the end of which all contacts between the mother and her child were suspended. [ 27 ] Since that Court order, the mother is in fury against the Director. The mother is convinced that the Director is in alliance with the father against the child best interest. She sent hundreds and hundreds of Emails to the Director to express her anger and feeling of injustice.

She emphasized on her relationship with the father when they were living together, underlining that she was a victim of domestic violence and that the father is an unfit parent, and criticizing the evaluation of the signalement in 2020 that the Director got it all wrong. [ 28 ] During almost all social follow-up sessions and since then, the mother has exactly the same attitude. The mother is so convinced that she is right and that the Director is incompetent that she is twisting the facts to support her position.

She has lost ability to reflect on it. [ 29 ] For example, the mother introduced into evidence video recordings of two follow-up meetings, in the fall of 2021, to demonstrate the Director's bias and incompetence.

However, what emerges from these video recordings is only the closure of the mother to the intervention of the Director, constantly interrupting, wanting to hold the upper hand of the meeting, only seeking to reiterate her position and trying to find a fault in a word, a sentence or a silence from the social worker. [ 30 ] The Court concludes that the security and development of the child are still in danger for reason of psychological ill-treatment. [ 31 ] The evidence is overwhelming in favour of maintaining the child with his father.

The Director reports that the father is fully cooperating with her in order to put an end to conflictual relationship with the mother. He is dedicated, avoiding any gesture, action or omission likely to contribute to the separation conflict. The father provides his child a loving, safe and secure environment. He oversees his child’s schooling and collaborates with school’s authorities and teachers. He is open to suggestions to improve the quality of his response to his child’s needs.

Furthermore, the father can count on the support of his own parents on a daily basis to assume his responsibilities of a full-time parent. [ 32 ] As for the dispute over the mother's access rights to her child, the jurisprudence is clear, the best interest is the crucial and paramount criterion. [ 33 ] In Racine v. Woods [3] , the Supreme Court established the premise that a child is not the property of a parent, but a subject of law with his own rights.

In addition, the beneficial effects of maintaining personal relations between the child and his parents must be assessed, again, from the child's point of view: But it is the parental tie as a meaningful and positive force in the life of the child and not in the life of the parent that the court has to be concerned about. As has been emphasized many times in custody cases, a child is not a chattel in which its parents have a proprietary interest; it is a human being to whom they owe serious obligations. [ 34 ] In P. (D.) c.

S. (C.) [4] , the Supreme Court reiterates the approach making the child and his best interests the focus of the analysis. The following excerpt serves as a reference: In

summary, the test applicable to the right to access in respect of a minor child by a non-custodial parent is that of the child's best interests […]. The child should be the focus of the court's concerns as it is the child's rights which are at issue, not those of the parents. The criterion of the child's best interests does not simply mean that the child must not suffer harm. […] It is the child, as I stated above, who should always be the focus, not the interests or needs of the parents. The right to access is a right designed primarily to benefit the child, not the parents. It is the parents who have the duty of providing for, protecting and promoting their children's best interests.

[ 35 ] In New Brunswick (Minister of Health) v. L. (M.) [5] , the Court also stated the primary importance of preserving the emotional stability of the child: [51] The decision as to whether or not to grant access is a delicate exercise which requires that the judge weigh the various components of the best interests of the child. It is up to the judge to determine which of the child’s interests and needs take priority. A child’s emotional stability is of prime importance.

If the child is unduly disturbed by access, it is generally not granted. [52] The evidence as to how access has been exercised is particularly relevant, since it relates both to the attitude of the parent and to the effects of the visits on the child. Every parent must place his or her child’s interests ahead of the parent’s own. The parent’s inability to do so, and the harm suffered by the child, are factors that may result in access being prohibited. [ 36 ] The evidence establishes without a doubt the existence of a significant affective bond between the mother and the child.

The mother has always been the primary caregiver of her child as much during the joint life with the father than since they have been living apart. The mother has good parenting skills and loves her child. Had it not been for the parental conflict fuelled by the mother and its impacts on the child, the Court would have contemplated granting the mother full or share custody of her child. [ 37 ] Unfortunately, for the reasons aforementioned, this is not an option.

Still, the mother can represent a positive force in the life of her child, prerequisite that she focus on the quality time spent together, on his best interest and that she disregard her resentment of the father. [ 38 ] The Court is more than aware that during the proceedings, it had to restrict the access rights of the mother to her child to proceed under the supervision of the Director, and afterward, following the negative attitude and behavior of the mother during visitations, to suspend all contacts. [ 39 ] Consequently, the mother has been without contact with her child for seven months.

She is deeply suffering and experiencing distress. The mother is addressing these issues through a personal follow-up from a psychologist of the CLSC. Such a therapeutic process from the mother brings hope of a future positive outcome. [ 40 ] However, it must be recognized that it is only at the end of a long-term thera-peutic approach that the mother will be able to reflect on the situation and accomplish major changes.

That being said, it doesn’t mean that during all that time, she must be put aside from the child’s life, considering all the love, affection and tenderness she can provide him. [ 41 ] To realistically consider restoring contact between mother and child, the Court must state its expectations and impose clear limits from which the mother cannot dero-gate, whatever reasons. These expectations and limits will be enunciated in the conclu-sions of the judgment.

Suffice is to write here that all contacts, by all means, will have to be under the supervision of the Director for the duration of the present Court order. [ 42 ] There has also been discussions during the hearing of allowing the Director to have access limited to the most relevant information with regard to the psychological follow-up of the mother offered by the CLSC. [ 43 ] At this point, the Court considers that to ensure a complete and without reserve involvement of the mother in her therapy, it would be counterproductive to lift its confidentiality, even partly.

The Court thus shares the concern of the CLSC representative who testified that if the psychologist were to work hand in hand with DPJ, this could impact on her involvement. [ 44 ] The Court will leave up to the mother and her therapist to manage the confidentiality of her psychological follow-up. [ 45 ] Another litigation to be decided is whether or not the Court should hand over copy of its judgment to the Director of Criminal and Penal Prosecution for purpose of penal charges against the mother for breach of a Court order. [ 46 ] The Court was presented with

summary evidence of the alleged breaches. This is not a reproach to the Director, as the Court restricted the evidence mainly to child protection issues. [ 47 ] The Director has testified of three possible breaches of a Court order by the mother by being in a public place in the presence of the child. In this regard, the mother claims that these encounters were the result of chance and were not intentional.

The mother’s justifications have some merits which the Court cannot summarily dismiss in the context of the restricted evidence that was allowed to be filed on these incidents. [ 48 ] On the other hand, there is another breach of a Court order that involves the mother and the father, where they agreed to go beyond the Court order and arrange a meeting of the child with the mother.

If the Court was to proceed along with the Director’s request, in all fairness, it would have to render such a decision in the same time against the mother and the father. [ 49 ] As ill-advised and illegal as this agreement between the parents was, the Court does not intend to intervene in any way in favour or disfavour of the instigation of criminal proceedings against both parents or the mother solely in the singular context of this case. [ 50 ] Finally, the Court dismisses the Director’s request for confidentiality of the name of the social worker in charge of the social follow-up.

First, the mother already has knowledge of this information. Second, the Court intends to limit to 3 pages per week in total overall, the mother’s emails to any Director’s representative to ensure they will not be overwhelmed by excessive and preposterous communications from the mother. Third, however difficult the mother may be to manage in the social follow-up, no bond of trust can be created between any parent with an anonymous social worker. FOR THESE REASONS, THE COURT: [ 51 ] GRANTS partly the application;

[ 52 ] DECLARES that the security and the development of the child X are still in danger for reason of psychological ill-treatment; [ 53 ] REVISES the Court order rendered on February 19, 2021; [ 54 ] ORDERS that the child remain with his father; [ 55 ] ORDERS that the parents report periodically to the Director of Youth Protection on the evolution of the situation, and if by email, three (3) pages over all per week; [ 56 ] ORDERS that parents take an active

part in the application of the measures ordered; [ 57 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the child and his family; [ 58 ] ORDERS that the contacts between the mother and the child be upon agreement between the parties, in the presence of a third person designated by the Director, and in the absence of agreement, that these contacts proceed once a week, for a period of two (2) hours, with the following conditions: ➢ During contacts, the mother must not criticize the father; ➢ During contacts, the mother must not criticize the Director; ➢ During contacts, the mother must not question the child on his living conditions at home or on the educational methods of the father; ➢ During contacts, the mother is not allowed to make video recording, photos will only be permitted in the context of positive moments; ➢ At the end of the visit, the mother has to leave before the child; ➢ The mother will have to comply with any other conditions concerning the course of the contacts deemed appropriate by the Director; [ 59 ] RECOMMENDS that the parents go through a mediation process under the responsibility of the Director if the evolution of the situation allows it, TAKING JUDICIAL NOTICE that for the time being, mediation is not realistic; [ 60 ] RECOMMENDS that the mother continue psychological therapy offered by the CLSC; [ 61 ] ENTRUSTS the situation of the child X to the Director of Youth Protection A for the execution of the measures ordered; [ 62 ] THE WHOLE for a period of one year. ________________________________ Mario Gervais, J.C.Q.

M e Adrienne Fournier-Sirois Attorney for the Director M e Lucie Gaucher Attorney for the child M e Sabrina Tellier Attorney for the mother