2016 QCCQ 5258, 2016 QCCQ 5258

Protection de la jeunesse — 161739 2016 QCCQ 5258 JL4031 COURT OF QUÉBEC Youth Division CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] N° : 525-41-029959-152 DATE: January 27 th , 2016 ______________________________________________________________________ PRESIDED BY : Mr.

JUSTICE CLAUDE LAMOUREUX, J.C.Q. ______________________________________________________________________ In the matter of : X Born on: [...], 2012 The Director of Youth Protection A applicant - and - A, the mother - and - B, the father respondents ______________________________________________________________________ JUDGMENT (section 38 of the Youth Protection Act) ______________________________________________________________________ WARNING: The Youth Protection Act prohibits the publication or broadcasting of any information that may lead to the identification of a child or his parents.

Any person who contravenes this provision commits an offence and is liable to fine. [ Y.P.A. sections 11.2.1 and 135 ] [ 1 ] The Court hereby renders a decision taken under advisement on January 14, 2016. [ 2 ] The Court is seized with a motion under

section 38 of the Youth Protection Act requesting that the security or development of the child be declared in danger for the following reasons: 3.1. the child is seriously and repeatedly subjected to behaviour on the part of the parents that could cause her harm and the parents fail to take the necessary steps to put an end to the situation, more particularly but not restrictively in that:

a) the parents have a history of conflicts involving at time verbal abuse, physical abuse, and involving numerous police interventions;

b) the parents have in the past separated and reconciled often;

c) the parents’ relationship officially ended in 2014;

d) since then, the parents have petitioned Superior Court, which granted custody of the child to the mother and access rights to the father;

e) despite said judgments, the parents continue to have ongoing conflicts to which the child is regularly exposed;

f) the parents have been verbally denigrating towards each other in the child’s presence;

g) the mother is presently accused of uttering threats against the father and she has conditions to have no contact with the father except regarding access rights;

h) the father has been involved in some criminal activities, he is presently accused of attempted auto theft, possession of property obtained by crime, amongst other related to an incident in May 2014, where the child is alleged to have been present in the father’s car;

i) the parents acknowledge that the parental conflicts are detrimental to the child but they have been unable to stop exposing the child to them;

j) given the child’s young age, ongoing youth protection intervention is required; 3.2. the father has, at times, not ensured that all of the child’s basic needs are met, i.e. appropriate clothing; [ 3 ] The Director is asking the Court to declare that the child’s security or development is compromised due to her being exposed to marital conflict, as per section 38(2)

c) of the Youth Protection Act (“psychological ill-treatment”). [ 4 ] In addition to a social follow-up for one year, the Director is recommending that the parents ensure that the child is not exposed to parental conflict. The child lives with her mother but visits her father during the week and on weekends.

The Director is recommending that when the child is exchanged from one parent to another, this take place in a neutral setting, like the [centre A], or through a neutral person, possibly a paternal aunt who lives in Town A. [ 5 ] All parties agree that the child’s security or development is compromised due to the parental conflict. [ 6 ] The mother and child’s lawyer agree with all the measures proposed by the Director, particularly the use of the [centre A]; the mother is not in favour of using the aunt for the exchanges.

The father agrees with all the measures proposed by the Director except with exchanges taking place at [centre A]; he proposes his sister. [ 7 ] Thus, the main issue is where the exchanges should take place. [ 8 ] The hearing on this motion began before the undersigned on October 1 st , 2015 and, as mentioned above, was completed on January 14, 2016. [ 9 ] The following documents have been filed as evidence: • Court report written by [Social Worker 1], dated September 23, 2015; • Psychological evaluation of the A-B family written by Diane Pérusse, dated March 16, 2015; • En liasse, Superior Court judgments dated March 18, 2015, June 22, 2015 and July 22, 2015; • En liasse, rapport d’enquête ([...]) and police reports dated May 2014, November 2014 and March 2015); • Addendum to Court report written by [Social Worker 2], dated January 6, 2016; • Proces-verbal from Superior Court, dated November 27, 2015; [ 10 ] As well, the Court heard the following witnesses: • The youth protection worker, Ms. [Social Worker 2]; • The mother, Ms.

A; • The father, Mr. B [ 11 ] The Court retains from the evidence the following elements. [ 12 ] The parents met in 2006 but became a couple in 2010. The child was born two years later, in December 2012. Today, she is three years old and by all accounts, is developing well. [ 13 ] The parents have had various marital issues since at least 2013 and separated and reunited at various times.

They have been separated on a continual basis since around October 2013. [ 14 ] By way of a Superior court order, the mother has custody of the child and the father has access rights twice per week, one evening during the week (Wednesday) and every weekend: one weekend Saturday during the day and the second weekend with an overnight. The issue of custody and access rights has been the subject of various interim Superior court decisions and the matter is back before the Court on February 18 and 19, 2016. Over time, exchanges have taken place at different places, including the child’s daycare,

the mother’s workplace and the mother’s home. The present Superior court decision specifies that the Wednesday and Friday exchanges are to take place at the mother’s home and specifically forbids exchanges at the daycare. [ 15 ] Over the years, various incidents have been reported by both parents regarding the other parent. Regarding each event, both parents provided different versions to the professionals that become involved: police, daycare, DYP, etc.

For the purposes of the present exercise, suffice it to say that the incidents are frequent and severe and that in many of the events, the child has been a witness to parental conflict. [ 16 ] For example, the mother claims that in October 2013, the father threatened to kill her and the child, that he became violent in the home and broke various items. In May 2014, the father was arrested while the child was in the car as he reportedly was committing auto theft; charges are pending. As stated earlier, the parents separated permanently in October 2014.

In November 2014, the police became involved after the father took the child from the daycare contrary to what appeared to be provided for in an interim Court order. During the incident, the daycare owner interacting with the father ended up on the ground, the child was aggressively taken from her older sister’s arms, and the child was eventually returned home by police; the father is not welcome back at the daycare. In February 2015, the mother was arrested for allegedly making threats to burn the father’s vehicle, threats which the father claims were made in the child’s presence.

In March 2015, both parents called the police during an exchange-gone-wrong where the child was exposed to a verbal and possibly physical conflict between the parents. More recently, on December 19, 2015, another exchange went awry and the police were called-in and the father was arrested for suspicion of having stolen the mother’s phone. [ 17 ] During several parental interactions, one parent films the other to use as evidence of inappropriate parenting or behaviour. [ 18 ] In the course of Superior court proceedings, psychologist Diane Pérusse assessed the A-B family.

Her March 2015 report contains many of the parents’ claims and counter-claims.

Amongst her conclusions, she states: Le conflit père-mère est majeur, l’est en fait depuis longtemps, et il constitue le problème central au sein de cette famille; les deux parents y sont actifs et impliqués; chacun dramatise des événements, des situations, et des caractéristiques de l’autre parent; les reproches et les critiques que chacun des parents adresse à l’autre sont exagérés par leur positionnement conflictuel et par l’importance des enjeux; il n’y a pas de signe de réduction éventuelle ou prochaine de ce conflit, chacun des parents se sentant justifié d’agir comme il le fait; l’enfant n’est pas protégée optimalement de ces tensions, tant par madame (qui nuit aux contacts père-enfant) que monsieur (qui critique la mère en présence de leur fille, et ne donne parfois pas les soins appropriés à X en prétextant que c’est au fond à la mère de prendre les mesures qui le permettront) ;” (D-3, pages 39 and 40) [ 19 ] Almost one year later, the situation has certainly not improved.

And although the child is generally doing well, there are signs that she is affected by the situation. For example, she cries at the beginning of exchanges with her father. She has called her mother “bitch”, a word the mother claims the father regularly calls her in the child’s presence. [ 20 ] Although the parents state that they are aware of the detrimental effects of child-exposure to parental conflict, they have thus far been unable to resolve the issues.

For example, in one video seen by the youth protection worker, the father openly states in the child’s presence that the mother does not care given that she has not yet put her to bed. [ 21 ] Currently, there are various problems related to punctuality, again with claims and counter-claims that are difficult to unscramble. [ 22 ] For one reason or another, conflicts arise at about half the transfers. [ 23 ] Before the undersigned, the mother appeared more open to address the issues and to wanting to find ways to resolve them.

The father was clearly more fixated on pointing the finger at the mother, who is essentially a “liar”. This observation corresponds to the Director’s conclusions that the father “ tends to critic others and sees himself positively ” (D-2, page 12) and that he “ does not recognize his aggressive and criminal behaviour and the impact on X’s safety and development ”. (D-2, page 13).

That said, the parents clearly have an acrimonious relationship to which they both contribute to a degree. [ 24 ] Given the above, the Court is convinced that that the child’s security or development is compromised due to “psychological ill- treatment” as defined in the Youth Protection Act: “ a situation in which a child is seriously or repeatedly subjected to behaviour on the part of the child's parents or another person that could cause harm to the child, and the child's parents fail to take the necessary steps to put an end to the situation.

Such behaviour includes in particular indifference, denigration, emotional rejection, isolation, threats, exploitation, particularly if the child is forced to do work disproportionate to the child's capacity, and exposure to conjugal or domestic violence . ” [ 25 ] The measures proposed by the Director are clearly needed and are not contested, save the use of [centre A] or the aunt.

The Director feels that [centre A] is the solution, for now, given tension, conflicting reports, disagreements on when the child was handed- over and returned… It would be within [centre A]’s mandate to note the time of exchanges and the child’s reactions. The Director is open to exploring other avenues, like the father’s sister, which could be put in place if deemed in the child’s best interest. [ 26 ] As mentioned earlier, the father is opposed to the use of [centre A]. He is concerned that his daughter will be exposed to strangers and that this would not be good for her.

In his view, exchanges could take place at his sister’s home in Town A given that his sister is a person known to the child and with whom the mother gets along; this would therefore be in the child’s best interest. Part of the father’s concerns arises from the fact that he does not know [centre A]. [1] The father further expressed the opinion that the only reason the mother agrees with this measure is because it is more convenient for her than going to the paternal aunt’s. [ 27 ] The mother –who lives in Town B– did invoke the fact that using [centre A] (located in Town

C) would mean less travelling for the child than going off-island to Town A. Further, she believes that exchanges should take place in a completely neutral environment where the parents will not meet and where professionals can record how the exchange took place. Although she “likes the aunt”, the mother feels that the aunt is not trained for this, that this is not her role, that she is not “independent” and that there could still be run-ins with the father.

[ 28 ] The child’s lawyer believes that it is essential that exchanges be positive for the child. Given the reasons for the Director’s involvement (“psychological ill-treatment”) and in particular the father’s behaviour during exchanges, he recommends that [centre A] be used. In his view, this for now is the “only solution”. [ 29 ] For the Court, the ideal is always normal parental exchanges, where the child is able to see both parents interact civilly towards each other. If this is not possible, work should be done with the parents towards reaching this goal.

Here, the Director has begun work with the parents in this regard but the situation remains problematic. Each occasion where the child is exposed to the parents fighting, arguing, yelling, swearing, denigrating each other and calling the police is detrimental for to the child’s development. Given this and the extent of the parents’ conflict, the least detrimental alternative is for the exchanges to take place in a completely neutral environment where times and reactions can be recorded.

This can help to alleviate tensions and perhaps assist the parents in moving towards a more normalized way of dealing with each other and their child. This does not preclude the Director from looking at other alternatives to avoid the child being exposed to conflict and denigration, like the aunt possibly. [ 30 ] The child is only three. Young children adapt very well to change. As well, [centre A] is used to dealing with children and ensuring that their dealings with them are as positive and non-threatening as possible.

The Court is thus not concerned that the use of [centre A] will be detrimental to the child, particularly when compared to the status quo as the alternative. [ 31 ] With time, with the Director’s continued involvement, with perhaps more paternal access as determined by the Superior court, as tensions between the parents hopefully abate, the Director will be able to change where transfers take place, with the child’s best interest always being the primary consideration. [ 32 ] Last January 14, when the case was taken under advisement, the Court ordered provisionally that the exchanges be coordinated by the Director through [centre A] or through the paternal aunt.

The Court also ordered that if possible, the parents be provided with the opportunity to visit [centre A] prior to exchanges taking place there so that they could familiarize themselves with this resource. [ 33 ] Today, based on the evidence retained by the Court, this interim order will be extended for one year (along with the other supportive measures recommended). Its essence is to allow the Director to be involved during this period to coordinate where the father’s visits, as determined by the Superior court, will take place.

If, with proper guidance, the situation improves and particular measures are no longer required in this regard, the Director can then allow for exchanges to take place as determined by the Superior court (or by the parents if there is no such provision in the order). In other words, the authority hereby given to the Director to determine where the exchanges will take place will remain in place as long as the Director deems it necessary during the course of the next year.

CONSEQUENTLY, AND FOR THESE REASONS, THE COURT: [ 34 ] GRANTS the motion; [ 35 ] DECLARES that the security or development of X is in danger within the meaning of Section 38

(2) c) of the Youth Protection Act (psychological ill-treatment: exposure to parental conflict). [ 36 ] IN VIRTUE OF THE POWERS CONFERRED UPON THE COURT BY

SECTION 91 OF THE YOUTH PROTECTION ACT: [ 37 ] ORDERS that the parents ensure that X is not exposed to hostility or unpredictability and to refrain from using derogatory language regarding the other parent in front of X; [ 38 ] AUTHORIZES the Director of Youth Protection to determine where parental exchanges will take place as long as deemed necessary; [ 39 ] ORDERS that the parents take an active role in the measures put in place to end the situation of compromission and collaborate with the Director of Youth Protection and other treating professionals; [ 40 ] ORDERS that aid, counsel and assistance be provided to the child and the family; [ 41 ] THE WHOLE FOR A PERIOD OF ONE YEAR; [ 42 ] ENTRUSTS the situation of X to the Director of Youth Protection A who shall see that these measures are carried out and these measures may be executed by any peace officer, if necessary. _________________________________ CLAUDE LAMOUREUX, J.C.Q.

M e Edith Zavodni Attorney for the applicant M e Michel Leclerc Attorney for the child

Me Nathalie Tremblay Attorney for the mother CL/nl