2018 QCCQ 17323, 2018 QCCQ 17323

Protection de la jeunesse — 188386 2018 QCCQ 17323 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] LOCALITY OF [...] « Youth Court Division » N°: 525-41-0 20956-082 525-41-022825-095 Date: October 18, 2018 PRESIDED BY: THE HONOURABLE TAYA DI PIETRO, Q.C.J. In the case of: X Born on [...], 2008 Y Born on [...], 2009 A , -and- B Applicants -and- [SOCIAL WORKER 1] , duly authorized by the Director of Youth Protection of the Centre intégré universitaire de santé et de services sociaux A Respondent -and- C , the mother -and- D , the father JD2620 The parents JUDGMENT

Section 81 of the Youth Protection Act (L.R.Q., c. P-34.1 ) 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 ] The Court is seized with an application to intervene under

section 81 of the Youth Protection Act by A and B (hereinafter the “Applicants”). [ 2 ] The Applicants seek to be declared a party to proceedings regarding two brothers, Y and X, who are now eight and ten years old. [ 3 ] The brothers were both entrusted to their care until the age of majority following an order rendered on August 11, 2016. [ 4 ] On May 1, 2018, immediate protective measures were invoked and the children were placed in a new foster home. [ 5 ] On May 2, 2018, the Director of Youth Protection filed an Application for revision of the order rendered on August 11, 2016 that is scheduled to be heard on November 1, 2018 and the Applicants ask be declared a party to the hearing.

[ 6 ] In support of their application, the Applicants allege that the children have been entrusted to their care since their early childhood, more specifically since the age of eighteen months in Y’s case and since the age of three in X’s case. [ 7 ] They have cared for the children on a daily basis for many years, are allegedly devastated that the children have been removed from their care and have the children’s best interests at heart. [ 8 ] Only the former foster mother testified in support of the application, as her husband could not be present for health reasons. [ 9 ] She essentially testified to the effect that nobody knows the children better than she does, and that many people in the community could attest to how spoilt the children were in her care.

She suspects the children may be brainwashed to believe they were mistreated in her care; “Maybe somebody is putting ideas in their head” she explains. [ 10 ] Counsel for the Applicants argues that their intervention is necessary to adduce evidence before the Court and allow the Court a full and complete assessment of the children’s situation and that it is in the children’s best interest that they be allowed to do so. [ 11 ] The Director of Youth Protection strongly opposes the Applicants’ position arguing that they have failed to meet the burden of establishing that their intervention is advisable for the requirements of the hearing. [ 12 ] The social worker testified that the children were removed from the Applicants’ foster home following concerns raised both by the children’s school and by the Director of Youth Protection. [ 13 ] Since their removal, they have expressed being “terrified” of their former foster parents.

Any reminders trigger fear and anger and both children have consistently reiterated their refusal to have any contact with the foster family. [ 14 ] Counsel for the children also opposes the application, essentially for the same reasons. [ 15 ]

Section 81 of the Youth Protection Act provides that: The child, the child’s parents and the director are parties to the hearing. The Commission may, ex officio , intervene at the hearing as if it were a party to it. The same applies to the Public Curator in tutorship and emancipation matters. Any person who wishes to intervene at the hearing in the interest of the child may, on an application, testify before the tribunal and make representations if the person has information likely to enlighten the tribunal, and may, for that purpose, be assisted by an advocate.

The tribunal may, for exceptional reasons, in urgent cases or if the parties present at the hearing consent to it, authorize the person to make the application orally. For the requirements of the hearing, the tribunal may grant a person the status of party to the hearing if the tribunal considers it advisable to do so in the interest of the child. The status of party remains valid until withdrawn by a decision or order of the tribunal. The director must, on request, inform a person who wishes to present an application under the third or fourth paragraph of the date, time and place of the hearing. [ 16 ]

Section 3 of the Act reads: Decisions made under this Act must be in the interest of the child and respect his rights.

In addition to the moral, intellectual, emotional and material needs of the child, his age, health, personality and family environment and the other aspects of his situation must be taken into account. [ 17 ] It is well settled that the onus is on the Applicants to establish, according to a balance of probabilities, that it is advisable, for the requirements of the hearing, to grant them the status of party to the hearing in the interest of the child. [ 18 ] The Court must weigh the advantages and inconveniences in each case, and take into account all the circumstances of the children’s situation, including the nature of their bond with the Applicants, and the length of time they have been in their care. [ 19 ] The Courts have also consistently held that the status of party to a hearing is not intended to be granted to afford the Applicants the opportunity either to defend their own interests or to exonerate themselves. [ 20 ] There is no single determining factor and each much be weighed in regard to all the circumstances of the case and the Court must exercise its discretion to grant or dismiss the application in the interest of the child. [ 21 ] In the present case, credible evidence establishes that since the brothers have been removed from the foster home of the Applicants, they have expressed intense fear of their former foster family, have repeatedly refused to have any contact with them and have avoided all places and things that remind them of their foster family. [ 22 ] There is absolutely no evidence to support the Applicants’ purely speculative statement to the effect that the children are being influenced or manipulated. [ 23 ] Given both children’s unequivocal and categorical rejection of any link to their former foster family, it is not possible for the Court to conclude that it is in their interest to allow the Applicants to intervene.

[ 24 ] Moreover, the Applicants have not demonstrated that their participation as a party would allow them to present significant relevant evidence before the Court that would not otherwise be brought before the Court beyond what they could attest to through their testimony. CONSEQUENTLY, AND FOR THESE REASONS, THE COURT: [ 25 ] DISMISSES the application to intervene as a party made by the Applicants; [ 26 ] ALLOWS the Applicants to testify before the Tribunal. Signed on October 18, 2018 TAYA DI PIETRO, Q.C.J.

Me Judith Ann Shapiro Knight Attorney for the Applicants Me Angela Nevard Attorney for the Director of Youth Protection Me François Pelletier Attorney for the children Hearing date: September 12, 2018. TD/vl