2023 QCCQ 9622, 2023 QCCQ 9622

Protection de la jeunesse — 235672 2023 QCCQ 9622 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] TOWN OF [...] Youth Division Nos.: 614-41-001010-232 614-41-001011-230 614-41-001012-238 614-41-001013-236 DATE: November 8, 2023 ______________________________________________________________________ BY THE HONOURABLE NATHALIE SAMSON, J.C.Q. ______________________________________________________________________ X , born on [...], 2016 Y , born on [...], 2017 Z , born on [...], 2019 A , born on [...], 2021 Children And [SOCIAL WORKER 1] , youth protection worker, duly authorized by the Director of Youth Protection A Applicant and B Mother and C Father ______________________________________________________________________ JUDGMENT ( sections 38 and 75 , Youth Protection Act , CQLR., c.

P-34.1 ) ______________________________________________________________________ WARNING: The Youth Protection Act prohibits 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. ). [ 1 ] The Director of Youth Protection (Director) has applied to have the security and development of the children declared to be in danger pursuant to s. 38 (c.1) of the Youth Protection Act . [1] As a measure, the Director requests that the children be entrusted to a foster family for a period of six months. [ 2 ] At the hearing, both parents were assisted by a lawyer. The children were represented by a lawyer under a legal mandate.

The parents admit that the children are in a situation of endangerment and agree with the measures proposed by the Director. [ 3 ] The following facts were admitted or proved: - The applicant filed an application for protection in March 2023. The parents signed voluntary measures on June 9, 2023. Both parents explained that these measures were signed under pressure and that their specific rights were not explained to them.

The applicant subsequently filed a discontinuance of the proceedings on June 13, 2023. - Under the voluntary measures signed by the parents, the child was entrusted to the mother to the exclusion of the father. The mother admitted that the parents have a history of domestic violence, but the father denied it. On the other hand, the father admits to having pending criminal charges for incidents against the mother. He admits to having made mistakes in the past but says that he wants to take the necessary steps to solve this.

He applied to an anger management program, but he had a personal issue with the worker involved in this program. He had some conflicts with the youth worker, but he is ready to meet with her with a third party. He explained that there is a breach of trust between them for the moment and that he will be reassured if a third party is present when they meet. He recognizes his issues and wants to solve them. - The father stated that he went to the home every time the mother asked for help; that it is his role as a father. He slept many nights at the mother’s home to be with his children, at her request.

At the time, the community was under evacuation due to forest fires, but the worker met with the parents and they told the worker that they were not living together. The father explained in Court that the mother had filed a letter in the judicial file to authorize him to have contact with her. - An incident occurred on August 16, 2023. The mother was at the clinic, covered in blood, and had a wound on her forehead. She told the nurse that the father had assaulted her. She did not want the police to know about the incident. It was obvious that the mother

had been drinking. The father, for his part, explained that the mother was intoxicated and apparently banged her head on the wall, While he was sleeping with his children. The child Z reported that he woke up hearing screaming, and he was scared. The father was informed that the children would be removed but he did not want to accept it.

A police intervention was necessary. - Immediate protective measures were taken, and the children were placed with family members. - The mother admitted that the parents are not transparent with the Director, that they continue to abuse alcohol and that they are not in a position to resume care of the children. - The father, for his part, explained that he is not transparent with the worker because she is not transparent either. He feels that she wanted to hide some information. As an example, he said that he asked that the child Z be placed in his community, because he was placed in the Region A.

The worker did not give him a report on that request and did not seem to be bothered about the situation. The father has not seen his child Z since he has been placed in the Region A. He saw happiness in the worker’s eyes when he got arrested. He explained that he saw the worker once when he signed the voluntary measures and that he never saw her again. There seems to be a breach of trust between the worker and the father. The latter need to be reassured and to be well informed of his children’s situation. [ 4 ] It is necessary to underline the responsibilities of the worker, which are stipulated in the law under

section 6.1 of the Youth Protection Act . [2] The person in authority under the Youth Protection Act shall, in their interventions, consider the necessity of ensuring that the parents have understood the information or explanations that must be given to them within the framework of the Act . The Director has also the responsibility of giving the child and the child’s parents the opportunity to present their points of view and express their concerns. The Court it is not convinced in this case that the worker explained the steps taken to the parents.

The parents do not know why their child was placed outside of the community, and they are both convinced that the Director did not take the necessary steps to ensure compliance with the law and did not follow the order of priority set out in

section 131.5 of the Youth Protection Act [3] when entrusting the child to an alternative living environment. [ 5 ] Moreover, at the hearing, the Director was not able to explain why the child Z was not entrusted to a foster family in his community. The Director said only that the procedures were followed but that there were no more families available in his community A. We do not have any more information. According to

section 131.5 , paragraph 2 , of the Youth Protection Act , the Director must enter in the child’s record the reasons justifying the decision not to entrust the child to a foster family in the child’s extended family, or to members of his community, before entrusting the child to another community. Nothing was written in the children’s file on that matter. The Director does not seem to be aware of this responsibility. This is very concerning.

In order to restore the situation, the Court will issue orders in line with the Director's obligations and ask it to comply with the law. [ 6 ] The children are doing well in the care of their foster homes. As of today, the parents have not completed the steps that they undertook to take. The father had two opportunities to attend a men’s retreat program in May and in August, but he failed to complete the program.

The children are still at risk considering that the parents have taken little steps to correct their drug, alcohol and personal issues. [ 7 ] The father admitted to having domestic violence issues, which is the first step to achieve to correct the situation. [ 8 ] Even though the Director has been involved in this file since at least June 2023, they did not take steps to ensure that the birth certificates of the children are filed.

Again, the Court does not understand why the law was not complied with. [ 9 ] As the Court has said in another file this week, it does not understand why information as important as a child's identity is missing from the court record.

All judicial actors must ensure that documents confirming a child's identity are filed before taking a child and ordering that he or she be placed in foster care. [ 10 ] In this case, where the parents are present in court and cooperate with the Director, there are no repercussions. [ 11 ] On the other hand, the Court wishes to point out that the situation could be very different in a case where the parents were absent or cooperate little, in which case it would be impossible to verify the identity of the child, which could be false, and the legal injury in such case would be obvious.

There could also be prejudice to the child in the event that the child's report is entered in the register of reported children, [4] but the Director has the wrong date of birth or name. In that situation, the information on file would be wrong, and the damage could be enormous.

There are so many other situations that could be damaging for the child if the Director does not ensure to have the child’s correct identity. [ 12 ] According to the Viens Commission's first follow-up report [5] , the system is perceived by many Indigenous people as being imposed from outside, perpetuating the harmful consequences of the assimilation process arising from the residential school policy. Needless to say, removing a child from his family when his identity has not been confirmed is very similar to removing children without identification from residential schools.

The Court points out that the Youth Protection Act is a law of exceptional application and contains standards that all social and judicial actors must respect in the performance of their duties. [ 13 ] In accordance with

section 126 of the Regulation of the Court of Québec , [6] the Court will give the Director a maximum of 15 days to file the birth certificates and will order the Director to ensure that the children's identity contains no errors, including with respect to surname, given name, date of birth and the parents' names.

In the event of an error, the Court will order the Director to file a request for correction of this judgment and to ensure that the names are consistent when entering previous reports. [ 14 ] After taking into consideration the documentary evidence, the admissions of the parties and their positions, the Court finds that the evidence is sufficient and declares that the security and development of the children are in danger due to a risk of exposure to domestic violence. [7] [ 15 ] As counsel for the children mentioned, the measures suggested meet the children’s needs and are deemed to be in their best interest.

FOR THESE REASONS, THE COURT:

[ 16 ] GRANTS this application for protection; [ 17 ] DECLARES that the security and development of X are in danger under s. 38 (c.1) of the Youth Protection Act ; [8] [ 18 ] ORDERS that the Director file the children’s birth certificate within 15 days from the date this oral judgment, and in the case of mistakes regarding the children’s identity; [ 19 ] ORDERS the Director to request the correction of this judgment and any other documents relating to the children's situation; [ 20 ] ENTRUSTS the children Z and A to a foster family for a period of six months; [ 21 ] ENTRUSTS the child X to her paternal aunt, C, for a period of six months; [ 22 ] ENTRUSTS the child Y to her maternal grandfather, D, for a period of six months; [ 23 ] ORDERS that the frequency and modalities of contact between the children and the parents be monitored by the Director of Youth Protection; [ 24 ] RECOMMENDS that the child Z be entrusted to a foster family in his community A; [ 25 ] ORDERS that the Director of Youth Protection comply with the law and with

section 131.5 of the Youth Protection Act [9] by entering in the child Z ’s file the reasons justifying why he is not foster care in his community A; [ 26 ] ORDERS the Director of Youth Protection to inform the parents about the steps that will be taken to find a foster family in the Community A; [ 27 ] RECOMMENDS that the parents seek help with their drug and alcohol issues (i.e., participate in a treatment program); [ 28 ] ORDERS that the parents ensure that the children are not exposed to anyone under the influence of drugs or alcohol; [ 29 ] ORDERS that the parents ensure that the children are not exposed to any form of violence; [ 30 ] STRONGLY RECOMMENDS that the parents get couples counselling to improve their relationship issues; [ 31 ] STRONGLY RECOMMENDS that the parents engage in and complete anger management; [ 32 ] AUTHORIZES the Director of Youth Protection to share and obtain all information with service providers working with the family; [ 33 ] ORDERS that aid, counselling and assistance be provided to the children and the parents for a period of one year; [ 34 ] ORDERS the police to cooperate in the execution of this judgment; [ 35 ] ENTRUSTS the situation of the children to the Director of Youth Protection who shall then see that the measures are carried out; [ 36 ] THE WHOLE for a period of one year. __________________________________ NATHALIE SAMSON, J.C.Q.

Mtre Magdalena Lempicka Attorney for the applicant Mtre Yan Massé Attorney for the children Mtre Marie-Josée Ayoub Attorney for the mother Mtre Jessie Villalta Attorney for the father Date of hearing: October 3, 2023