2023 QCCQ 9677, 2023 QCCQ 9677

Protection de la jeunesse — 234641 2023 QCCQ 9677 JB5047 QUEBEC COURT CANADA PROVINCE OF QUEBEC DISTRICT OF […] TOWN OF […] « Youth division »

N o : 455-41-001285-204 DATE: 14 septembre 2023 ______________________________________________________________________ BY THE HONOURABLE PASCALE BERARDINO, J.C.Q. ______________________________________________________________________ IN THE SITUATION OF : X Born on [...], 2020 [SOCIAL WORKER 1] , person duly authorized by the Director of Youth Protection of CIUSSS A; Applicant -and- A Child’s mother -and- B Child’s father ______________________________________________________________________ 7 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 9.2, 9.3 and 135 Y.P.A.).

Introduction [ 1 ] The Director is requesting for the revision of the Court order rendered on February 25, 2021. [ 2 ] By this order, the Tribunal declared the security and development of X still in danger for the motives of serious risk of physical abuse and serious risk of neglect. [ 3 ] As protective measures, the Court ordered the placement of the child in a foster family to be determined by the Director of Youth Protection, authorized, in the child’s favour, supervised contacts with his parents, according to the modalities and frequency determined with the Director, and the possibility of lifting the supervision if the situation allowed. [ 4 ] The Court also ordered various other measures including a psychosocial follow-up for a period of six months.

[ 5 ] Today, the Director considers that the security and the development of the child are still in danger for the same motives. [ 6 ] Because of the new facts alleged, the Director recommends revising the protective measures and essentially prolonging them until the child’s age of majority. [ 7 ] The mother is present and represented at the various hearings.

She asks for the child’s progressive return to her care and so contests the exclusion of a return to her family environment. [ 8 ] She also demands more contact and at least the maintenance of her current access rights as a minimal frequency. [ 9 ] The father is also present. He is not represented on February 25 but subsequently is. He has the same position as the mother. [ 10 ] After hearing the evidence, the child’s lawyer agrees with the Director’s recommendations regarding the child’s placement until the age of majority.

She asks that the foster home be designated in the order. [ 11 ] On the other hand, she believes that there is no reason to reduce the current minimal frequency of contact between the child and his parents, as well as with his siblings and maternal grandmother.

Questions in litigation [ 12 ] The maximum duration of placement having been reached, is there an exception that allows the court to disregard them? [ 13 ] More particularly, is there a possibility for the child to return to his family environment in the short term? [ 14 ] What should be the frequency and modality of contacts between the child and his parents? His siblings? His maternal grandmother?

Evolution of the situation Evolution of the child [ 15 ] X, now 3 years old, evolves positively in his foster home. [ 16 ] The child has developed a positive relationship with his foster parents and their biological children. [ 17 ] In the fall of 2021, he began attending daycare (CPE) to better stimulate his development. [ 18 ] In March 2022, his doctor is consulted about some concerns for a possible language delay and because he walks on his tippy toes.

The Doctor said that he was developing well, but that he may need to be evaluated for ADHD at some point. [ 19 ] In September 2022, it is reported that X exhibits intense behavior which include screaming, biting, and hitting. A weighted blanket is used, among other strategies, to calm the child. [ 20 ] In the fall of 2022, the foster parents separated. The child moved into a condo with the foster father. [ 21 ] In November 2022, because of the separation of the foster parents, the Director filled an application to modify the Court order so that the child be entrusted to Mr.

C only while the latter was being evaluated as a foster home. [ 22 ] At that time, contacts between the child and the foster mother, Ms. D, were authorized. [ 23 ] In August 2023, during the court’s deliberation, the Director seized the court of a motion to reopen the evidence to state that the foster parents had rekindled their relationship and that Ms.

D has reintegrated into the family home. [ 24 ] It was also alleged that the foster mother had some difficulties with her mental health after the separation. [ 25 ] The Director mentioned wanting to ensure the situation progressed positively. [ 26 ] Thus, for the time being, the foster father remains the only person responsible of the foster family and the primary caregiver. The Parents’ evolution [ 27 ] Since the last court order, the parents continued to struggle financially and were evicted in July 2021 for unpaid rent. They went to live outside of the region at one hour drive from X’s foster home.

A worker was assigned to them in their new area. [ 28 ] The father presents with ADHD but refuses to be medicated. [ 29 ] The mother recently started to take medication for her ADHD and mentions it helps her with her concentration and organization. [ 30 ] In September 2021, the parents’ second child was born. Y is the mother’s fourth child. [ 31 ] Shortly after, she moved with her newborn to live under the supervision of her maternal grandmother to whom the child was entrusted. [ 32 ] Because of their conflictual relationship, the mother and the baby moved to the maternal aunt’s home before going to [A

Organism], where the mother agreed to be assessed for her parental skills. [ 33 ] She resided in this resource from November 3 rd to December 7 th , 2021. [1] The interveners at the [A Organism] terminated her stay because the issues that she was struggling with were the same as those she had exhibited in 2020 when she stayed at this resource with her son X. [2] Some of these issues were the following: - Lack of visual contact between mother and child, especially during feeding; - Difficulty in exhibiting warm emotion towards the child; - Difficulty in understanding and answering her baby’s needs in the appropriate timeframe. - Difficulty in following the recommendations made to better answer her child’s needs; - Lack of stimulation of the child despite coaching; - Difficulty to adapt her routine to the child’s needs; - Not supporting the baby’s head despite numerous recalls; - Difficulty in sustaining any amelioration in her parenting skills. [3] The mother recognized that she had difficulty interpreting her daughter’s cries and that she must work on her emotional bond with her. [4] Despite these admissions, the mother had not been able to truly improve during her one month stay in this facility. [5] Since the mother lacked recognition of the improvement she needed to make on many levels, an external follow-up was not recommended. [6] On December 13, 2021, the mother moved back in with the father, and Y was placed in foster care. [7] The child then had supervised contacts with her parents and her brother X. [8] The mother participates and collaborates in the psychosocial follow up.

She has been asking for more contacts with her children regularly. [9] However, she still denies the physical abuse by the father on her older children and affirms that they lied. [10] She has continued to participate in a follow-up from La Maison A to address the issues around conjugal violence. [11] In March 2021, her worker from this organism mentioned that the mother was working on identifying her emotions, particularly her anger, and that the couple was not dysfunctional. [12] In the fall of the same year, when she completed this follow-up, the worker mentioned that the mother was able to make connections between her anxiety and her anger and behaviors she had learned as a child. [13] The mother was also be able to recognize that her spouse has an impulsive aggressivity but did not otherwise address it. [14] She mentioned that the father was managing his anger issues by attending meetings at [B organism]. [15] In fact, the father benefited from a follow-up with this organism since March 24, 2021. [16] On July 20, 2021, the father was declared guilty of assault towards Z.

He was sentenced to 2 years probation and 100 hours of community service. [17] Despite his condemnation, he maintains that he only raised his voice and that the children accidently hurt themselves.

He claimed that the allegations were made as a vengeance from his sister. [18] Nonetheless, he has been actively participating in the social follow-up to the best of his capacity. [19] The father was appointed as an objective to develop his capacity to react less promptly with the mother, but when opportunity came to present some examples, he did not report any situation and he tended to justify himself and deny any responsibility. [20] With time, the father eventually recognized certain gestures that he had toward the mother’s older children, but not the impact of these on the children or on his own. [21] On February 2 nd , 2022, when the parents’ worker met them for the first time, the father mentioned to her that he is an impulsive person who has a tendency to suppress his emotions before exploding. [22] He added that : “ quand j’était fâché après la mère, j’allais me défouler sur les enfants ».

[23] He spoke about his difficulties about his “ techniques d’approches ” referring to his violent behaviors towards the mother and the children but says that he finally obtained respect in his home. [24] The worker mentioned that despite some recognition, his rhetoric remained concerning. [25] In July 2022, the parents came back to live in the A region. [26] When the parents moved, his follow-up with [B Organism] ended, but he said he continued to work on these issues with his parole officer. [27] On September 28, 2022, when he testified, the father said there is no longer a risk of physical abuse for the children because he had worked on himself and still was. [28] He also recognized having used unreasonable educational methods, but when he recounts the events, he still minimizes his acts. [29] Furthermore, he says that the risk of educational neglect has been resolved and that he and the mother are helping each other, to which the mother agreed. [30] The father reveals that he has participated in a follow-up with [C organism] for the last 15 months..

He also attended two courses called « papa bienveillant ». [31] When the mother testifies on September 28, 2022, she recognizes that her children were exposed to conjugal violence, stating that yelling is violence. She also recognized that she was unable to protect her children. [32] She says she has gone through many therapies for conjugal violence. She also says that there no longer is a risk of physical abuse because the father has worked on himself. [33] Despite these follow-ups, the delegate still observes verbal and psychological violence, control, and impatience on the part of Mr. B towards the mother.

Contacts between the child and his family [ 34 ] In 2021, the contacts between X and his parents were positive and beneficial for the child. They took place every Monday for 3 hours. [ 35 ] His sister Y eventually joined the family during these contacts at the end of the same year. With time, X grows more aware of his sister and interacts with her. [ 36 ] X also meets with his two half-brothers, Z and E every other week for 3 hours with his mother.

Since July 1 st , 2021, these contacts occur at the Director’s office. [ 37 ] During the contacts with both parents, they are able to establish a predictable and stimulating routine for X. [ 38 ] The mother is often in a secondary role and lets the father take the lead in the organisation of activities.

She is more in charge of the logistics while the father interacts with the child. [ 39 ] From mid-September 2021, it is observed that the parents are more able to act as a team and talk to each other in a more acceptable way than before. [ 40 ] The father interacts well with X and is adequate in terms of stimulating the child, ensuring his security and responding to the emotional needs of the child. [ 41 ] The child refers to his parents for an exchange of affection, he smiles at them, and seems comfortable. [ 42 ] It has been observed that the father can help the mother in her organization to better meet the Director’s expectations for the visits. [ 43 ] But it has also been observed that the father may still use verbal and psychological violence as well as control and impatience towards the mother during the visits.

He can raise his voice to scold her, can have tensed conversation with her, or even threaten her. [ 44 ] By June 2022, it is observed that the mother has developed her capacity to provide basic needs (health and safety). She interprets the child’s signs more accurately to respond to his needs. [ 45 ] She is also able to communicate what she observes to her partner, so that the father can then adjust his actions. [ 46 ] As for the father, he is very animated during the time of the visits, very playful and shows affection.

It is observed that the father is concerned for the security for the child. [ 47 ] As the child grows, difficulties are identified in the manner he can respond to X’s behavior. Specifically, his responses lack sensitivity for the child. He can use a loud tone of voice, criticize the child, use confrontation, and attempt to have control over the little boy. [ 48 ] When he testified the father said he did not realize he was raising his voice and means nothing by it. [ 49 ] At other times, the father has difficulty respecting the child’s limits when he held him on his lap and the child struggled to get

off. [ 50 ] Some errors of judgment are also noted in some reactions or activities with the child. [ 51 ] When she testified in September 2022, the mother said that she does not confront the father during the contact because she was asked not to quarrel with her spouse in front of the children. [ 52 ] She adds than when she speaks to her spouse about it after the contacts, his reaction is to thank her for letting him know and that he does not get mad. [ 53 ] However, this type of reaction from the father remains very hard to believe in light of the parents’ dynamic and his aggressive impulsivity. [ 54 ] During the contacts with the three boys, some improvement was noted in the mother, who is able to greet and leave the children in a reassuring manner. [ 55 ] She is also able to prepare stimulating activities for the children. [ 56 ] Since she has been taking medication to treat her ADHD, the mother says that it has helped her especially during the contacts with the children.

Indeed, it has helped her to improve the structure of the contacts as well as her focused on developing a stable and supportive routine. [ 57 ] Nevertheless, she still shows difficulty in structuring visits, organizing, setting limits, can present delayed response and has difficulty maintaining her skill acquisition and her difficulty integrating recommendations from the CRDI for her two older children.

The Childs’ reactions to the contacts [ 58 ] Early 2021, the child did not show any significant reactions to visits with his parents. [ 59 ] Later during the same year, it is noted that X needs a time to readjust after seeing them. His cries can be more intense and he can be more tired, especially after seeing his siblings. [ 60 ] By mid-June 2022, the foster parents report that X has a difficult time adjusting after his visits, especially the one with his brothers exhibiting signs of exhaustion.

He can also wake up in the middle of the night more often. [ 61 ] Even the daycare now mentions that the child can yell after a visit with his parents. [ 62 ] These reactions now last between 24-48 hours. [ 63 ] It is also noted that X is more cheerful in his foster home than when observed with his parents. [ 64 ] When asked if they would agree to adjust the modalities of contacts because of the child’s now determined life plan, the parents disagreed and insisted on maintaining the current frequency and modality and even asked for more time with X. [ 65 ] It was even suggested that the contacts be separated, but the parents insisted that they have contacts together as a family. analysis the situation of compromission [ 66 ] The Director is intervening is X’s life since his birth for the motives of serious risk of neglect and serious risk of physical abuse by his father. [ 67 ] The evidence shows that these motives are still current and not fully recognized by the parents. [ 68 ] Although their recognition is evolving and that they do admit some aspects like the impulsivity of the father and his previous use of unreasonable means of discipling the older children of the mother, their perception, as per their testimony, is that these issues are resolved. [ 69 ] However, they minimize the problems that are still outstanding even in the observations during the contacts with their children. [ 70 ] The mother is now able to answer the children’s basic needs, but it took a great intensity of intervention to get her there. [ 71 ] She shows that it is difficult for her to integrate and maintain what she has learned to supervise her children.

This is particularly obvious with her delay in applying and maintaining the various strategies for dealing with their difficulties. [ 72 ] With X, she lets the father take the lead and acts more as a support.

As the parents refused to have separate contacts, the court does not dispose of the evidence as to her level of autonomy if she was to be alone with X. [ 73 ] Nonetheless, her evolution shows that she has difficulty following that of her children’s, who evolve faster than she does. [ 74 ] As for the father, recent events show that even during supervised contact, he can still act sharply, raise his voice, and lack parental sensibility. [ 75 ] The court also find it difficult to assess how their relationship is evolving.

[ 76 ] Even though the mother recognizes the presence of conjugal violence she does not show that she is able to uphold her part against her partner, as they still present with a common front regarding their situation. [ 77 ] The child suffers from this incapacity of the mother to protect him. [ 78 ] This was already the case with her older children, which led to physical abuse by X’s father.

Now, during supervised visits, the mother is still unable to protect X form the father’s actions when he is abrupt with the child or lacks judgment in the way he plays or reacts to his behaviour. [ 79 ] All this despite their individual follow ups and their collaboration to the social follow-up. [ 80 ] The court wonders if they have reached their level of incapacity in addressing their different issues. [ 81 ] For these motives, the court finds that the security and development of the child is still endangered for the previous motives.

The measures [ 82 ] The Court considers that the Directors recommendations are in the child’s best interest, and this is why. [ 83 ] X is entrusted to a foster home since October 9, 2020, when he was only 7 months old.

The maximal duration of placement has been reached in October 2021. [ 84 ] At the end of this period, the court must render a permanent order unless an exception allows to disregard it [1] . [ 85 ] The parents invoke the exception regarding a possible return on the short term to the family environment. [ 86 ] In light of the Court’s previous comments regarding the evolution of the situation of compromission, it appears from the evidence that although the parent’s situation has evolved, the progress made is not sufficient to consider a return to the parental environment in the short term. [ 87 ] The court agrees with the Director’s analysis in the last complementary report [2] : “Considering that the family has been receiving services for E and Z since 2017 which includes a first service episode at the application of measures from January 2018 to January 2019 for educational neglect, including 6 months of external rehabilitation services.

A second service episode began in 2019 and continues up until today. The compromising motive of educational neglect persists, which demonstrates the chronicity of the mother’s situation. Specific to Z, the compromising motive of physical abuse was added in October 2019. Remember that Mr. B, X’s father, who committed the abusive acts. During that same month, Z, E and X were placed into foster care. Therefore, it has been almost 3 years since these young children were removed from their maternal environment. For X, this is almost his entirety lifespan.

Indeed, he has been living with the foster parents since he was 9 months. (…) The evolution of the situation does not allow for a return in the short or medium term. We still believe it is in the child’s best interest to proceed with the clarification of life project in excluding any possibility of returning to both parents.

Because the foster parent is committed to answering X’s needs, we recommend a placement until the child reaches the age of majority.” [ 88 ] As to the frequency and modality of contacts, the Director suggests that X has contact once every two weeks for 1 ½ hours without his brothers, except for special occasions such as birthdays or family gatherings when her maternal grandmother could also be present. [ 89 ] The Director highlights that X has had stronger reactions that are augmenting when he sees his brothers, which warrants a diminution of contacts with them. [ 90 ] Furthermore, his brothers have special needs, behavioral problems and are much older than he is.

X does not talk about his brothers when he does not see them. [ 91 ] The court agreed with this plan. X’s reactions to his parent’s and siblings contacts have progressed in a crescendo that is quite concerning. These reactions are undermining his development. [ 92 ] In light of the evidence, the Court finds that frequent contacts between X and his brothers are not in his best interest. [ 93 ] As for the parents, the father still has inappropriate reactions to the child’s behavior despite a great intensity of services and supervision.

The mother’s autonomy still remains to be demonstrated and her capacity to protect her child is not up to par. [ 94 ] supreme Court’s teaching on the considerations that the court must keep in mind when determining contacts, although not contemporary still remain: “Access rights exist in recognition of the fact that it is normally in the interests of the child to continue and foster the relationship developed with both parents prior to the divorce or separation. This being said, the right to access and the circumstances in which it takes place must be perceived from the vantage point of the child.

Wherever the relationship to the non-custodial parent conflicts with the best interests of the child, the furtherance and protection of the child's best interests must take priority over the desires and interests of the parent. As the ultimate goal of access is the continuation of a relationship which is of significance and support to the child, access must be crafted to preserve and promote that which is healthy and helpful in that relationship so that it may survive to achieve its purpose.

Accordingly, it is in the interests of the child, and arguably also in the interests of the access parent, to remove or mitigate the sources of ongoing conflict which threaten to damage or prevent the continuation of a meaningful relationship.” [3]

[ 95 ] In another well-known decision on the same subject, the Supreme Court said: “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.” [4] [ 96 ] These principles have been applied numerous times in the context of youth protection and contacts with the parents when the children are in placement [5] . [ 97 ] In a Superior Court decision these principles and decisions were applied, the court summarized in these terms: « En somme, les contacts avec un parent doivent être enrichissants pour l’enfant, en ce sens qu’ils doivent contribuer à son épanouissement et répondre à un besoin. » [6] [ 98 ] In other words, contacts with the parents must be enriching for the child, contribute to his development and answer his needs, not his parents’. [ 99 ] Furthermore, the frequency and modality of contacts must be in harmony with his life plan and not prevent him from benefiting from it. [ 100 ] X’s life plan is to evolve in his foster care until his age of majority.

His contacts with his parents are in his interest as long as they are only in order to maintain the bound that links him to them. [ 101 ] The parents must also answer the child’s needs and control their issues at least for the time of the contacts which they are not always able to do at the moment. [ 102 ] Also, when contemplating a placement until a child’s age of majority for such a young child with parents with such outstanding issues, it is not in the child’s best interest to set a minimum frequency of contacts, especially when he is so reactive to it. [ 103 ] Nonetheless, the Court must emphasize that this decision is not about the fact that the father reacted strongly at the revision table when it was announced that a placement until majority would be recommended to the court as well as a reduction of contacts. [ 104 ] This reaction, considering the father’s impulsivity is not surprising but the children were not present, and it was a momentous loss of control. [ 105 ] This being said, the father must demonstrate a better control of his emotions because it does have an effect on the modalities of contacts especially with regard to the possibility of lifting the supervision [ 106 ] As for the mother, her autonomy to answer the child’s needs and her capacity of protection must be improved before considering no longer supervising the contacts. [ 107 ] Having read the reports and heard the testimonies, the Court finds that the evolution of the situation gives way to the recommended measures.

FOR ALL THESE MOTIVES THE COURT: GRANTS the present application; DECLARES that the security and development of the child X is in danger on the grounds of serious risk of physical abuse and serious risk of neglect; REVISES the court order rendered on February 25 th , 2021; ENTRUSTS the child X to a foster family chosen by the institution operating a child and youth protection center, namely that of Mr. C; TAKES JUDICIAL NOTICE that Ms. D has reintegrated the family home of Mr.

C and that the Director of Youth Protection will stay alert regarding the possible impacts that the situation may have on all the children entrusted to the family; TAKES JUDICIAL NOTICE that Ms. D and Mr. C intend to collaborate and be transparent regarding their situation, particularly regarding Ms.

D’s mental health; AUTHORIZES in the child’s favor, supervised contacts with his parents, upon agreement and according to the modalities set with the Director of youth protection; in case of disagreement, the modalities will be established by the Director of Youth Protection; RECOMMENDS that the contacts with his older siblings occur only during family gatherings; AUTHORIZES the possibility of lifting the supervision according to the evolution of the situation; ORDERS that the parents take an active

part in the application of any of the measures ordered to put an end to the situation in which the security or development of the child is in danger, namely that they collaborate to the elaboration and the implementation of the intervention plan and the psychosocial follow-up; RECOMMENDS that the mother resume her personal follow-up regarding the conjugal violence; RECOMMENDS that the father resume his personal follow-up regarding his emotion management;

ORDERS that the parents report periodically to the Director of Youth Protection on the measures they apply in their own regard or in their child’s regard to put an end to the situation in which the security or development of the child is in danger; ORDERS that person working for an estalishment or body, provide aid, counsel and assistance to the child and his family until his majority on [...], 2038; ENTRUSTS the situation of the child to the Director of Youth Protection to see that the measures are carried out; __________________________________ PASCALE BERARDINO, J.C.Q.

M e Christine Loubier Counsel for the DYP M e Karyn Brown Counsel for the child M e Mireille Leblanc Counsel for the mother M e Annie Giguère Deraps Counsel for the father Hearing date: February 25, 2022, September 28, 2022, April 21, 2023 and May 26, 2023 Deposited exhibits: D-7 à D-9 / D-10 à D-12