2018 QCCQ 19969, 2018 QCCQ 19969

Protection de la jeunesse — 1811237 2018 QCCQ 19969 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-005493-179 760-41-005492-171 DATE: October 26, 2018 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X, born on [...], 2006 Y , born on [...], 2006 Children ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION A Applicant v.

B C Parents ______________________________________________________________________ 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 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] Context [ 2 ] Alleging that an ongoing parental conflict results in a situation of psychological ill-treatment and educational neglect, the Director of Youth Protection applies for an order of protection in regards to the siblings X and Y. [ 3 ] A custody order provides that the children reside with their parents on a shared custody basis (one week/one week).

Initially, the Director seeks the status quo of this order with the application of various measures of aid and counsel destined to rehabilitate the situation of endangerment. [ 4 ] In view of the evolution of the situation throughout the proceedings, the Director eventually revises this position, seeking as final measures that the Court entrust the children to their father with supervised access to their mother, the whole accompanied by various other measures of aid and protection for eight months. [ 5 ] The children and their parents recognize the situation of endangerment and agree to the Director’s involvement.

Despite this, the parents offer diverging perceptions as to the source(

s) of the family dynamic, each alleging that the other is driving the parental/separation conflict. [ 6 ] The parties submit the following contentious issues in regards to the protective measures to be put in place. [ 7 ] Y states wanting a betterment of the family dynamic and the continuation of the shared custody arrangement presently in place. X also wants to continue to share her time between both her parental environments, but would prefer a new structure, namely a 9 day (mother) / 5 day (father) split.

Their attorney submits that the measures should be in place for at least a year. [ 8 ] The mother initially offers her cooperation with the measures but suggests that one year is too long to address the issues at hand. She seeks to maintain the custodial status quo but submits that the Court endorse X’s request. [ 9 ] The father alleges that the mother is unstable and that her family environment is disorganized. He requests that the children remain in his care and that their access with their mother be supervised and this, until such time and she is evaluated and receives counselling or treatment.

He submits that a three year order is appropriate, as well as other accessory requests.

[ 10 ] Facts [ 11 ] The Court resumes the facts pertinent to its evaluation, proven to its satisfaction. [ 12 ] Four children are born from the parent’s union, X and Y being the youngest.

They reside with their parents following a shared custody order. [ 13 ] On June 19, 2017, the Director of Youth Protection retains a report regarding a situation of psychological ill-treatment stemming from a separation conflict. [ 14 ] Neither the children nor their parents contest the fact that such a conflict has been ongoing for many years and amplifies over time. [ 15 ] The parents have different, and almost opposing, parenting styles, although both have their children’s best interests at heart. The father is structured and has high expectations for his children as to routine, rules and schooling.

The mother, on the other hand, maintains her focus on her children’s emotional well-being, offering a more laid-back environment. [ 16 ] Specific issues are present in regards to the maternal environment: • lack of follow-up as to homework; • lack of clarity and predictability; • lack of constancy as to the application of rules and consequences; [ 17 ] The father refuses to work in collaboration with the mother. He insists that she suffers from a mental disorder and is unable to maintain an appropriate environment for his children.

He recognizes to sometimes denigrating the mother, considering that his children need to know the truth. [ 18 ] The mother states wanting to co-parent but being constantly the object of the father’s aggressive behaviours to her. She states feeling victimized by the father’s actions and repeated accusations as to her environment, which she states are wholly unfounded. [ 19 ] The parent’s two older children (Z and

A) reside with the father and refuse all contacts with their mother. Z presents self-harm behaviours and suicidal thoughts, which she relates to her mother’s environment. She testifies before the Court to this effect, adopting a discourse very similar to her father’s. [ 20 ] The evidence demonstrates a multitude of repercussions on the children, both direct and indirect. [ 21 ] The children are well aware of the situation. Not only are they witness to ongoing tensions. Over time, they are involved in police interventions, court proceedings, altercations and mutual denigration.

To the caseworker, they are able to name being saddened by this situation and to wishing a more healthy family dynamic. [ 22 ] Focusing on their mutual recriminations (children, financial issues, etc.), the parents can say and do things which place their children in a loyalty conflict, namely by asking them to relay messages, making them aware of exchanges between them, or making negative comments about their other parent. [ 23 ] X and Y are confronted with family environments which clash on issues of routine, structure and rules.

They struggle with these divergences, showing opposition and triangulation. [ 24 ] Each parent demonstrates opposing views as to their children’s needs and this, on many levels. The Court gives but one example amid many. [ 25 ] Y manifests certain difficulties which are eventually diagnosed as attention deficit disorder. Although his doctor recommends he take medication to support his functioning, he fails to do so on a regular basis, as his parents have diverging opinions on his needs. [ 26 ] At the end of 2017, Y ceases to take his medication as he states not appreciating the secondary effects.

His mother, who also has the same diagnosis, is sensitive to this and considers that he shouldn’t be forced. His father wants Y to respect the doctor’s recommendations in order to improve his functioning at school. [ 27 ] What results is yet another bone of contention between the parents, with Y caught in the middle. Unable to come to an agreement on the issue, both parents stand their ground.

The mother admits to adopting the tactic of filling Y’s prescription for the month to avoid the father doing so and forcing Y to take his pills. [ 28 ] Both parents are overwhelmed by the family dynamic and this negatively influences their parental capacities. [ 29 ] For the father, he can find himself adopting inappropriate disciplinary methods and strategies, all within his determined objective of structuring the children. Repeated incidents result in the Director eventually retaining a situation of educational neglect. [ 30 ] As of October 2017, the family receives the services of a homebound educator.

The principle objectives are: • help the mother put in place a structure adapted to the needs of her children; • Reinforce the relationship between the children and their parents; • Ensure that both family environments set up coherent structure;

[ 31 ] Although the mother cooperates, she is largely unable to focus on the objectives and becomes quickly emotional. The father refuses to participate in the follow-up. Such is the reflection of the parent’s overall cooperation with the Director at that time. [ 32 ] The father’s interactions with the caseworker is focused on blame and vindication. He is regularly aggressive and denigrating towards the mother and the services of the Director.

The mother offers a better cooperation, but remains invested in the parental conflict. [ 33 ] X and Kristopher become increasingly reactive, eventually refusing to return to their father’s home after a disciplinary incident. The mother endorses their decision. [ 34 ] After hearing the evidence, on May 7, 2018 the Court declares that the security and the development of the children are endangered in reason of educational neglect and psychological ill-treatment.

In order to further elucidate the family and personal dynamics in play in view of the final measures, the Court renders an interim order which includes the following: · Maintains the status quo as to custody; · Orders the parents to participate actively in the measures in place, including meetings with the caseworkers as well as for mediation with the other parent; · Orders the parents to report periodically to the Director on the measures they apply to put an end to the situation of endangerment; · Prohibits the parents from denigrating each other nor permitting that a third party do so; · Prohibits the parents from discussion the ongoing proceedings with the children or in their presence; · Orders an evaluation of the parent’s parental capacities and personality traits; · Orders that a medical report be furnished to the Court in regards to Kristopher’s diagnoses and consequent treatment recommendations; [ 35 ] A continuance is granted in order to further verify the possibilities and time-frame required for the evaluation sought by the Court.

Eventually, the final measures are scheduled for October 26, 2018. [ 36 ] Despite the Court’s decision and the measures put in place, the situation continues to degenerate. Instead of investing themselves in the follow-up, the parents continue to concentrate their efforts on denouncing the other parental environment. They cease any effective cooperation with the Director of Youth Protection, rejecting services and assistance.

Their perceptions remain unchanged and they show little or no will to reflect on means of liberating their children from their conflict. [ 37 ] They do, however, participate in the psychological evaluation process ordered by the Court. [ 38 ] In June, the Director applies for the revision of the interim measures, alleging their inability to make any headway in reason of the parent’s refusal to participate and numerous incidents whereby the children are kept invested in the separation conflict.

They petition for the placement of the children in foster care until the final order. [ 39 ] At the hearing, both parents are able to recognize the state of affairs as alleged by the Director, again pointing the finger at the other. Both parents admit that shared custody is no longer viable and ask that the children be entrusted to them. [ 40 ] The mother offers an erratic and emotional testimony, demonstrating limited awareness of the impacts of the situation on her children.

The father, on the other hand, is more fully aware of the precariousness in place, offering to revise his cooperation and participation. [ 41 ] After hearing the evidence, the Court concludes to the existence of a serious risk of prejudice that the children remain with their parents while the process of rehabilitation goes forward.

The Court encourages, once again, to respect the orders in place in view of revising their way of functioning to reflect their children’s best interests (not involving them in their personal or parenting issues, not denigrating the other parental milieu, etc.). [ 42 ] The Court therefore endorses the Director’s position and orders that children be placed in foster care for the summer period, contacts with their parents to occur with the accompaniment of the caseworker. [ 43 ] The mother leaves the Courthouse before the Court completes its judgment.

When the caseworker presents herself at her home to recuperate the children, they are already aware of the judgment and greet her by throwing water balloons, yelling and denigrating social services. The mother is present and fails to intervene to facilitate this process. In point of fact, she passively endorses her children’s reactions by filming the situation and asking neighbours to intervene on her behalf.

It is necessary to have recourse to a police intervention to execute the judgment. [ 44 ] After a period of adaptation, the children evolve relatively well in foster care. [ 45 ] During this period, the father is able to respect the objectives of the intervention. He cooperates fully, makes himself available for meetings with the caseworker and applies the counsel received. He undertakes a follow-up in regards to his anger issues. He also participates in the visitation periods and is able to explain to the children that their placement is due to his not having done what he had to do.

In August, the parties agree to lift the accompaniment on a gradual basis. The children are seen to positively benefit from the access. [ 46 ] As to the mother, she rejects the measures and fails to cooperate with the Director, openly denigrating the services. Although she participates in the scheduled access periods, she is reactive and emotional. She is unable to preserve the children from the ongoing situation and repeatedly makes comments which affect their stability.

[ 47 ] On August 21, the Court revises its order and entrusts the children to their father while ordering that the contacts with their mother remain under supervision. [ 48 ] Since that time, the children continue to function generally well. They declare being happy to return in their family environment. Their relationship with their father is going well and they seem to acquire a new stability. Their father maintains his cooperation and applies the caseworker’s counsel. [ 49 ] Reprising 6 th grade, Y is more motivated to succeed.

He still has attention issues, but accepts to reprise his medication after having met anew with his physician. [ 50 ] They state to missing their mother and wanting to renew the shared custody. [ 51 ] Only two contacts occur between the children and their mother because, as of the end of September, she ceases all effective cooperation. [ 52 ] On the date of the hearing on the applicable measures. The Court proceeds in the mother’s absence in the best interests of the children after receiving evidence to the fact that she was present in the Courthouse and decides to leave after discussing with the caseworker.

The father produces a written application underlining his position and requests. [ 53 ] The Court benefits from a psychological evaluation of both parents. [ 54 ] The results of such conform to the evidence in as such that both parents demonstrate adequate parental capacities and are devoted to their children. They both have a tendency to blame the other for the ongoing conflict and this affects their ability to deal with the tensions in place. [ 55 ] The expert states that the mother can have difficulties dealing with her emotions and to reacting impulsively or excessively.

This can lead to her saying or doing things in the moment which are not the reflection of her children’s best interests. For the father, his rigid perceptions can translate in anger and hostility which contributes to the family dynamic. [ 56 ] The Court cites the conclusions of the report (our underlinings): X et Y expriment et démontrent de l’attachement envers leurs deux parents et ils souhaiteraient que les tensions s’apaisent.

Les parents présentent une personnalité différente et, au niveau de leurs capacités parentales, leurs forces peuvent ne pas se situer au même endroit mais être complémentaires, ce qui pourrait leur permettre d’apporter des choses différentes à leurs enfants (par exemple, faire un équilibre entre des moments ludiques et un accompagnement pour les études). Dans un contexte favorable, les enfants pourraient en bénéficier. Mais, dans le contexte actuel, cela peut devenir très angoissant pour eux d’être pris dans les conflits entre leurs parents.

Même si les parents font plus attention à ne pas se disputer devant eux et à ne pas dénigrer l’autre, les enfants sont très conscients des tensions qui existent et cela les affecte. Madame B et monsieur C s’adressent beaucoup de reproches mutuellement et leur perception des situations est différente et souvent contradictoire. Dans le cadre de cette évaluation, il ne nous est pas possible de juger de la réalité des faits. Les parents semblent pour l’instant être pris dans une dynamique conflictuelle pas facile à apaiser et qui peut mener à une escalade qui ne résout rien.

Monsieur C a tendance à justifier ce qu’il fait en réaction à ce que madame a fait (…). Quelle que soit la réalité des faits, monsieur semble avoir du mal à lâcher prise, ce qui amène le conflit à s’envenimer. Tant que ces tensions sont présentes, il nous paraît essential d’essayer de préserver les enfants le mieux possible des conflits parentaux. Pour cela, il serait souhaitable que les parents n’aient pas à rentrer en contact l’un avec l’autre, même en ce qui concerne les enfants.

Dans la mesure du possible, il faudrait qu’une personne ou un organisme tiers puisse gérer les situations, les échanges et les décisions parentales . (Rapport d’évaluation psychologique du père, exhibit D-15, page 14) [ 57 ] Analysis and decision [ 58 ] The parties recognize the situation of endangerment and the Court endorses such as the reflection of the evidence and serves as a foundation for the application of protective measures. [ 59 ] Although this is sufficient for the Court to intervene, it is necessary to clarify the sources of the situation of endangerment in order to further focus the interventions as well as the expectations as to its rehabilitation. [ 60 ] The Court retains that both parents are devoted to their children’s best interests and demonstrate forces that positively contribute to their development.

Unfortunately, these are gravely undermined by their ongoing conflict, which receives their continued efforts, all under the guise of protecting their children. [ 61 ] Although they are both intelligent and accomplished adults, they define themselves as victims of the other, consciously and unconsciously letting their children serve as munitions in what reaches the stage of personal missions. Their lack of perspective and will to put an end to this situation leaves the Court with a somber prognosis as to their being able to eventually co-parent.

Such is also the reflection of the psychological evaluations produced. [ 62 ] The children have been the ongoing victims of this intense parental conflict. The lack of communication and distrust only serves to exacerbate the repeated incidents which put their security and development at risk. [ 63 ] There is no doubt that the parents are both anchored in their perceptions of being victimized by the other in a campaign to discredit them on a personal and parental level. Although they recognize that their children are the unwilling targets of this situation, they have been unable to operate any significant change.

[ 64 ] Remains the conclusion that this situation is having an ever increasing effect on the children. The Court notes that their older siblings, now adults, have decided to sever their relationship with their mother and are staunch defenders of their father, a preoccupying family precedent. [ 65 ] The children have the right to develop in a serene environment which is able to respond to their needs in a coherent manner. Concurrently, they have the right to maintain significant relationships with their parents.

As such, the protective measures must focus primarily on shielding the children from the elements of endangerment as well as to effectuating change in the family dynamic and this, as soon as possible. [ 66 ] Ideally, these objectives would be best met within a shared custody context, as had been the situation in place until summer 2018. [ 67 ] The Court is sensitive to the children’s expressed wishes to continue to share their time with each parent, but within the dynamic it is not possible to consider that they are able to fully apprise their best interests.

As such, maintaining the status quo represents for them the only viable solution for not giving precedence to one parent, such being just another expression of an instilled loyalty conflict. [ 68 ] The evolution of the situation during their short period in foster placement reveals the capacity for change of each parent and is a determining factor for the Court’s decision. [ 69 ] For the mother, she remains overwhelmed and unable to fully appreciate the need to cooperate with the Director in view of finding solutions.

Choosing to pursue a position of victimization and removing herself from the children’s lives is an unfortunate reflection of her inability to prioritize their needs and also perhaps, influence their choices to her benefit. [ 70 ] To this the Court must consider the evidence of numerous elements of instability in her personal situation and this, notwithstanding her testimony to the contrary.

To this effect, many contradictory elements are brought forth during the evidence, mostly initiated by the father’s allegations concerning the mother and her environment. [ 71 ] As an example, the father alleges that the mother puts the children in contact with illicit drugs, even stipulating that they are made aware of production of cannabis.

Although the mother admits using cannabis, she denies any illegal activities, testifying that these allegations are part of the father’s ongoing vendetta against her. [ 72 ] This comes in contradiction with evidence which establishes that the mother is in fact accused of the production of cannabis for the period on or about April 13, 2018. Other criminal accusations also remain pending (mischief, obstruction, possession of cannabis). [ 73 ] The Court concludes that the mother is less than candid about her personal situation.

Either her perceptions or her transparency must be put in question, but for the appreciation of the children’s best interests, each results in a precariousness within their maternal environment which can further put their security and development in peril. [ 74 ] Overall, numerous factors force the Court to come to the conclusion that the children continuing to share their time on an equal basis with their parental environments is no longer a viable option: · The chronicity of the situation; · The parents continued inability to maintain effective communication; · The intensity of the loyalty conflict instilled in the children; · The important disparities between the family environments (structure, rules, etc.); · The elements of instability in the mother’s environment; [ 75 ] Therefore, the Court endorses the conclusions recommended by the Director.

An additional order seeks to permit the father to take possession or ask for the children’s important documents and this, before the mother’s lack of cooperation to this effect. [ 76 ] As to the duration of the measures, the Court retains the children’s attorney’s vision that at least a year is necessary for the rehabilitation process and this, in view of the global situation and emotional charge still very much present.

To this end, the Court retains the end of 2019 as representing the children’s best interests as well as the objectives of the law. [ 77 ] The Court dismisses the father’s other accessory requests, included in his application for provisional measures (dated October 21, 2018), which are of an alimentary nature and more akin to a request for custody.

Notably, the request for a three year order and an additional psychological evaluation is not necessary to reach the objectives of the Youth Protection Act . [ 78 ] It is important to underline that this judgment is not a choice based on the better parent or better parental capacities. In point of fact, these measures are a sad reflection of both parent’s inability or unwillingness to find a better means to co-parent their children.

There are no winners here, only the necessity to choose an environment for the children in view of the conclusion that shared custody is no longer a viable option. [ 79 ] The Court is aware that this decision is not without its risks. The father’s environment has been hostile to the mother in the past and emotions still run high.

The Court bases its evaluation on the father’s commitment to ensure a positive environment for the children and to maintain his active participation in reactivating their relationship with their mother and ensuring that they are kept at bay of the parental conflict. [ 80 ] Although the father is able to offer a structured environment for the children, this will not be sufficient to respect their needs should he cease his cooperation and decide to resume tactics which maintain the children in their loyalty conflict. If such is the case, a neutral environment for the children will have to be considered anew.

[ 81 ] The children suffer from their mother’s absence, which they probably perceive as another result of the ongoing family issues.

The Court hopes that she will revise her position and undertake the process towards resuming her parental role and being an active part of the rehabilitation of the situation of endangerment. [ 82 ] The supervision of the children’s contacts with their mother is not destined to be a permanent measure, but well to offer the accompaniment necessary to ensure that the children can benefit from positive visits while working the other problematic issues. [ 83 ] FOR ALL THESE REASONS, THE COURT: [ 84 ] GRANTS the applications for protection; [ 85 ] DECLARES that the security and the development of the children are in danger for the following reasons: • Educational neglect • Psychological ill-treatment [ 86 ] ENTRUSTS the children to their father; [ 87 ] ORDERS that the contacts between the children and their mother be following agreement between the parties and in the presence of a third party chosen by the Director and in the absence of an agreement that they take place once a week for a duration of two hours; [ 88 ] ORDERS that the parents take an active

part in the application of the measures ordered; [ 89 ] ORDERS that Y receive certain health care and health services namely that he takes his medication concerning his ADHD as recommended by his treating physician; [ 90 ] ORDERS that the parents not discuss the Court proceedings or the judgment with the children, save in the presence of the case worker; [ 91 ] ORDERS that the parents not denigrate the other parent nor their family environment in the presence of the children nor that they permit that a third party do so; [ 92 ] ORDERS the mother to furnish to the father, through the caseworker, the following identity cards and documents as pertains to the children, and this within five days of serving of the minutes of the Court : • Medicare cards; • Health and vaccination records; • Passports; [ 93 ] In default of doing so, The Court AUTHORIZES the father to apply and receive the said documents and this, without mother’s authorization; [ 94 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the children and their family; [ 95 ] ALL THESE measures until December 31, 2019; [ 96 ] ENTRUSTS the situation of the children to the Director of Youth Protection A for the execution of the present judgment. __________________________________ BÉATRICE CLÉMENT, J.C.Q.

Me Pascale Boucher Attorney for the Applicant Me Karine P. Poissant Attorney for the children Dates of hearings: January 10, March 12, May 7, 30, June 20, July 3, August 20, 21 and October 26, 2018