2018 QCCQ 20691, 2018 QCCQ 20691

Protection de la jeunesse — 1811485 2018 QCCQ 20691 JO0374 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF […] Youth Division No: 525-41-030893-168 DATE : November 12, 2018 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE KAREN OHAYON, J.C.Q. ______________________________________________________________________ IN THE CASE OF: X […], 2006 Director of Youth Protection A Applicant A Father B Mother ______________________________________________________________________ JUDGMENT ON THE MEASURES (Section 38, Y.P.A.) ______________________________________________________________________ WARNING: Within the framework of the Youth Protection Act, no person may publish or broadcast information allowing 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 (Y.P.A. sections 11.2.2 and 135). [ 1 ] On March 13, 2018, the Court declared the security and development of the children X and Y endangered as a result of psychological ill-treatment stemming from parental conflict as well as parental alienation. [ 2 ] On that date, the children were placed in a foster family for an interim period of four months, the purpose of which was to implement a therapeutic intervention plan within a neutral setting.

The measure aimed to assist in developing a relationship between the father and his children following years of alienation. It was expected that a final measure would then be determined in accordance with the children’s needs, taking into account the evolution of the situation. [ 3 ] On July 4, 2018, the hearing on the measures began but, for a variety of reasons, was only concluded on November 2, 2018, four months later than expected. [ 4 ] The Director is now asking to continue the placement on an interim basis for a further four months.

Essentially, the Director is of the opinion that the intervention has not yet produced the expected results. She argues that the complexity of the family dynamics as well as the uncertainty of the current situation mandates a temporary measure. [ 5 ] Although the mother has always requested the return of the children to her care, she supports the Director’s position regarding interim measures as opposed to final measures if the placement of the children is to continue. She asks to be included in the therapeutic process and submits that she can provide assistance by encouraging the children to cooperate.

She further seeks additional contact with the children during this period of time. [ 6 ] The father requests a final measure that includes the continued placement of the children in their respective foster homes. In his opinion, the interim nature of the current procedures hinders the children’s progress. He submits that they do not sufficiently invest in the intervention process since they view it as a temporary situation.

He further considers that a return to the mother’s care in the near future would seriously jeopardize all attempts to build a relationship with his children, considering her persistent hostility towards the therapeutic team. [ 7 ] The children, through their lawyer, express that they want to go home to their mother. Both insist that they are not interested in a relationship with their father and they view their placement as a punishment. Their lawyer emphatically insists that continued placement is creating resentment which, in and of itself, threatens the success of the intervention.

The Situation (

i) The therapeutic intervention : [ 8 ] Between July 4, 2018 and October 4, 2018, therapy sessions between the father and each child were put into place. The intervention sought to open the lines of communication and let them get to know each other gradually. [ 9 ] During this time, contact between the mother and the children was restricted in order to avoid aggravating their negative perception of the father during the process. [ 10 ] Y offered fairly consistent collaboration and the relationship with his father has evolved in a positive manner.

They are able to engage in conversation and are learning to get to know one another. This progress has led to unsupervised visits between the two. [ 11 ] On the other hand, X remained hostile towards her father and generally refuted his attempts to communicate. After a few therapy sessions with little progress, she adamantly refused to continue attending the appointments.

She also refused to see her father in any other context. [ 12 ] Over this period of time and at the request of the therapeutic team, the mother was not given access to the children except for one occasion following the loss of the maternal grandmother. Although the youth worker suspects that X and her mother may have had unauthorized contact throughout this period, she acknowledges that she has no concrete proof to that effect.

The court agrees that, although there is reason for concern, no such conclusion can be drawn at this time from the evidence presented. [ 13 ] When the hearing resumed on October 4, 2018, the mother testified that she was willing to assist in encouraging the children to work on a relationship with their father. Considering the impasse regarding X and her father, provisional measures were amended to allow for a visit between the mother and the children for that purpose.

In good faith, the court gave her the opportunity to follow through with her proposal. [ 14 ] When the hearing resumed on November 2, 2018, a Psychotherapy

Summary Report [1] providing an update of the therapeutic intervention was filed into evidence with the consent of the parties. Although the members of the team who contributed to the report were available to testify, the parties waived their right to cross-examination. [ 15 ] The report indicates that the situation with Y continues to progress adequately. According to the therapists’ observations, Y appears more comfortable with his father and engages well in their discussions.

Furthermore, they continue to see each other without supervision, outside the confines of the sessions, and Y reports to the therapeutic team being happy with these visits. [ 16 ] Nevertheless, the author is of the opinion that the gains are fragile. Specifically, the author expresses concerns that Y presents the intervention to third parties in a negative light, for example in court or to his social worker.

According to the report, Y “… goes as far as saying that he is just “pretending” to like the sessions . [2] ” [ 17 ] Yet, according to the team’s observations, Y’s behaviour in the sessions contradicts his statements, signifying that a loyalty conflict remains. [ 18 ] X continues to be non-compliant and hostile towards her father and towards the therapeutic process as a whole. After two unproductive sessions, it was decided to solicit the mother’s assistance.

Attempts to do so, however, were unsuccessful. [ 19 ] According to the report, and contrary to her previous testimony, the mother remained hostile and intransigent towards the therapeutic team.

The following excerpts illustrate the difficulties encountered by the therapists: “For example, [the mother] berated Mr. [ social worker 2 ] for being an intern, she became aggressive (e.g. screaming and cutting his sentences off), and she hung up the phone. [3] ” “…she was rude over the phone and did not want to provide information (e.g. answering the phone with “oh my god”, refraining from answering the caller, cutting off his sentences) [4] . “Over the phone call, Ms.

B also divulged that she has been constantly lied to, that she was a victim of the therapeutic system, and has not had luck with interns in the past… [5] ” [ 20 ] Generally, the mother is described as uncooperative, agitated, dismissive, and rude.

In the end, she never assisted the team in any way and the intervention for X has since been terminated. [ 21 ] The report concludes with recommendations that can be summarized as follows: - Increased contact between Y and his father; - Supervised visits between Y and his mother limited to once every three weeks over the next two months and then reassessed regularly; - Supervised contact between Y and his sister; - Supervised contact between X and her father on a weekly basis [6] . (ii) The mother’s response to the Psychotherapy

Summary Report : [ 22 ] In response to the report, the mother justifies her behaviour by the fact that she simply doesn’t trust the therapeutic team. She testifies that the entire process has never been properly explained to her, that she never gets answers to her questions and that there’s an

overall lack of transparency by the therapists. She questions their competency and accuses them of bias towards her. [ 23 ] The mother insists that she remains willing to cooperate under the condition that the therapists show transparency.

Asked to elaborate, she repeats that the process must be properly explained to her and this, despite the fact that throughout the hearing on the measures, the therapeutic process - the objective, the methods, the intervention plan - has been the subject of extensive testimony and written reports. [ 24 ] The mother explains that if the team views her as difficult, it’s because she asks direct questions.

If they find her curt on the phone, it’s because they can’t hear her well on her cell phone and she has to speak loudly. [ 25 ] Despite her distrust of the team, the mother affirms that she continues to be willing to cooperate with the therapists. (iii) The Director’s evidence : [ 26 ] The social worker submits that an interim measure is preferable in order to try different solutions. For example, she was recently given the name of an extended family member as a possible resource. This person, the mother’s cousin, meets the approval of both parents but there has not yet been time to conduct a proper evaluation.

Furthermore, there is an issue regarding transportation to school and neither child is willing to consider changing institutions. [ 27 ] The social worker also considers that a psychological assessment of the children would assist in determining how to respond to their needs. In the meantime, her intent is to implement the recommendations of the therapeutic team regarding increased contact between the children and their father.

Nevertheless, she foresees a refusal on X’s part and intends to work on this issue with her directly since therapy is no longer an option. (iv) The children : [ 28 ] Y has been doing relatively well in placement. The foster family confirms that there have been no particular issues. [ 29 ] Y testifies that he has only participated in visits and therapy with his father because he was told he could go home if there was progress. Asked if he would continue to see his father if he returned to his mother’s home, he responds that he would rather not.

He maintains that he has nothing positive to say about his father and he wants nothing to do with him because he abandoned them in kindergarten. [ 30 ] X had difficulties in her initial foster family, leading to conflicts and mistrust between her and the foster mother. She has since been placed in a new home and things have significantly improved. There are no issues to date. [ 31 ] X maintains a firm refusal to consider anything related to her father, “… even if he apologizes, I don’t want to see him [7] ”. She produces a letter to that effect and explains that she simply wants to go home.

Like her brother, she misses her mother, her home and her routine. Analysis and Conclusion [ 32 ] The evidence reveals that the circumstances leading to the declaration of endangerment remain fundamentally unchanged. [ 33 ] While the relationship between Y and his father appears to have improved remarkably well in the therapeutic sessions, Y’s testimony is particularly troubling and does in fact indicate an important loyalty conflict that will only be aggravated in the mother’s home.

Regarding X, the situation has shown little sign of progress. [ 34 ] Although the court is sensitive to the fact that placement causes emotional upheaval and can be misperceived by the children as a punishment, a return to the mother’s home is not in their interest at this time. [ 35 ] The children’s lawyer passionately argues that the children are entitled to their feelings about their father, which includes not wanting to see him.

She insists that they don’t know him, that they have no memories of him and that he was never there for them. [ 36 ] Nevertheless, she adds that if the hope of a relationship is to be entertained, returning them to their mother is more likely to produce cooperation on their part. In her opinion, placement will cause more harm than good, producing anger and resentment. [ 37 ] On the first point, and for the reasons elaborated in the judgment on the endangerment, the Court considers that the children were misled into believing that their father is a bad person.

Perpetuating this belief by validating that they are entitled to it, is not in their interest. It should equally be noted that the father’s access to the children was intentionally obstructed by the mother over a significant period of time. Claiming abandonment on his part oversimplifies the consequences of a severe parental conflict. Moreover, the children’s belief that they were abandoned by their father is erroneous and inherently prejudicial to their development. [ 38 ] On the second point, the evidence clearly contradicts the children’s lawyer’s position.

The most recent attempt to involve the mother in the children’s therapy has demonstrated that she is persistently hostile towards the therapeutic team. It stands to reason that her resistance, her animosity and her mistrust would taint the children if they were returned to her care. In Y’s case, all progress would likely disappear. In X’s case, all hope of progress would be defeated.

In such circumstances, a return home would maintain the children in a state of endangerment and for that reason, cannot be entertained. [ 39 ] The mother argues that she can still offer a positive contribution to the intervention with the children and suggests that an interim judgment will serve this purpose.

In support of her position, her lawyer refers the court to the parental capacity assessment of the mother along with the author’s testimony [8] . [ 40 ] The court is of the opinion that the expert’s recommendations are founded, among other things, on her presumption that the mother would be able to co parent effectively with the father. Considering the mother’s actions, the court disagrees with this assessment.

Furthermore, the expert stresses the importance of both parents accepting responsibility for their

part in the situation, something the mother has failed to do. [ 41 ] The mother’s testimony regarding her interaction with the therapists demonstrates that she remains actively resistant to the idea of the intervention. Furthermore, her explanations regarding cell phone difficulties are unsatisfactory.

It should be noted that there does not appear to have been a single productive communication between the mother and the therapists despite the number of attempts documented in the report and this, since the very beginning of their intervention. [ 42 ] The mother is encouraged to seek professional counselling, specifically to address her inability to support her children in the development of a relationship with their father. [ 43 ] An evaluation of the evidence as a whole leads to the conclusion that a final measure is required.

The court agrees that the temporary nature of an interim order hinders the implementation of a successful intervention and would ultimately be counterproductive.

The unequivocal nature of a final order is more likely to produce a measure of stability that the children require at this time. [ 44 ] FOR THESE REASONS, [ 45 ] THE COURT: [ 46 ] ORDERS THE FOLLOWING MEASURES: [ 47 ] ORDERS that the children be entrusted to a foster family determined by the Director of Youth Protection; [ 48 ] ORDERS that contact between Y and his mother be supervised, that the modalities be determined by the Director and that the frequency be limited to one visit per month for the first two months, following which ORDERS that contact be supervised and that the frequency and modalities be determined by the Director in consultation with other treating professionals; [ 49 ] ORDERS that the frequency and modalities of contact between Y and his father be determined by the Director after consultation with other treating professionals and ORDERS a minimum frequency of one visit per week; [ 50 ] ORDERS that contact between X and her mother be supervised, that the modalities be determined by the Director and that the frequency be limited to one visit per month for the first two months, following which ORDERS that contact be supervised and that the frequency and modalities be determined by the Director in accordance with the evolution of the situation; [ 51 ] ORDERS that the frequency and modalities of contact between X and her father be determined by the Director, including a degree of supervision and ORDERS a minimum frequency of one visit per week; [ 52 ] ORDERS that the frequency and modalities of contact between X and Y be determined by the Director, including a degree of supervision if necessary; [ 53 ] ORDERS that the Director continue providing Y with therapeutic services as long as deemed necessary by the treating professionals; [ 54 ] RECOMMENDS that the parents adhere to the recommendations of the treating professionals involved in Y’s therapy; [ 55 ] ORDERS that the Director provide X with access to confidential personal therapy or counselling; [ 56 ] RECOMMENDS that the mother engage in counselling to deal with her resistance to the development of a relationship between the father and the children; [ 57 ] ORDERS that a person working for a Child and Youth Protection Centre provide aid, counsel and assistance to the children and their family; [ 58 ] ENTRUSTS the situation of the children, X and Y, to the Director of Youth Protection A, who shall then see that the measures are carried out ; [ 59 ] THE WHOLE for a period of nine months.

SIGNED IN TOWN A On November 12, 2018 __________________________________ KAREN OHAYON, J.C.Q. Me Edith Zavodni Attorney for the D.Y.P.

Me Marie-Josée Ayoub Attorney for the children Me Marc Castonguay Attorney for the mother Me Julie Léger Attorney for the father Dates of hearing: October 4 and November 2, 2018. KO/lf