2020 QCCQ 12974, 2020 QCCQ 12974

Protection de la jeunesse — 209342 2020 QCCQ 12974 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 640-41-002207-188 DATE: May 22, 2020 (written judgment rendered on August 12, 2020) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2016 [SOCIAL WORKER 1], Youth Protection worker, duly authorized by the Director of Youth Protection A, working in [...] Applicant and A, residing and domiciled at [...] Mother and B , residing and domiciled at [...] Father ______________________________________________________________________ JUDGMENT (Section 95 of the Youth Protection Act ) ______________________________________________________________________ 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 Director of Youth Protection (DYP) asks the Court to extend a decision rendered on March 21, 2019, regarding the child X, born on [...], 2016. At that date the Court declared the security and development still endangered and entrusted the child to a foster family until March 31, 2020. [ 2 ] The DYP submits that the situation does not allow to return the child to his parents and that the placement has to be prolonged.

Position of the parties [ 3 ] The mother is absent, but represented by Me Neptune. She recognizes that the security and development of her child are still endangered and she agrees with the measures. [ 4 ] The father is absent, but represented by Me Tommasel. He recognizes that the security and development of his child are still endangered and he agrees with the measures. [ 5 ] X is absent, but represented by Me Desmarais. The child’s lawyer submits to the Court that the measures suggested are in his best interest. [ 6 ] X has a sister, Y who is 5 years old.

The Court is also seized with her History of the situation [ 7 ] On August 29, 2018 , the Court was seized with an application for provisional measures and entrusted the children to a foster family. [ 8 ] On October 2, 2018 , the Court was seized with an application for protection. Y was 3 years old, and X was 2 years old. The parents were separated and the father had the custody of the children. The mother exercised access rights during the weekend. The father lived at his parents’ place, but they asked him to leave because they were tired of having the children.

The mother has a borderline personality disorder and received no help. She was detained and released with conditions regarding contacts with her children. In August 2018, both parents drank together and at one point the father left to go to work. The mother continued to drink while the children were asleep, but she injured them seriously. The father admitted that it was not the first time such violence happened towards the children.

The father agreed to keep the children, but a few minutes after he was with the mother and disclosed being tired of having the children and asked that they be entrusted to foster families. The children were indeed entrusted. The parents did not exercise all the authorized visits with their children. The father explained that by the fact that it was too painful to see his children entrusted. The grandparents changed their mind before the hearing and agreed to be present for their grandchildren and to accept the father at their place.

The Court concluded that this change of mind was too late and the children need more involvement from their caregivers. The Court declared that the security

and development of the children were endangered [1] and entrusted them to a foster family for six months and ordered supervised contacts for the mother. [ 9 ] On March 21, 2019 , the Court revised the situation. The evidence shows that since the last order, the children were entrusted to their paternal grandparents and they were doing very well. The father lived with them and collaborate well with the DYP. The mother still displayed alcohol consumption issues and was waiting to enter Portage Therapy Program.

The Court entrusted the children to a foster family with a reintegration with one of the parents if the situation allows it. The mother was also authorized to enter Portage with her son X, the whole until March 31, 2020. [ 10 ] On March 26, 2020 , the Court rendered a provisional measure and entrusted the children to a foster family and ordered that services of an external educator be provided. Facts [ 11 ] Since the last decision, the children remained entrusted to their paternal grandparents.

As before, the father continued to live in their household and is very helpful with the children. [ 12 ] The father works at night at the Crisis Center. In the morning, when he comes back from work, he brings the children at the daycare and goes to the mother’s place to spend the day. At the end of the day, he picks up the children at the daycare and spends the evening with them at the grandparents’ place before going to work. [ 13 ] The parents resumed their relationship, but as mentioned they have their own house. [ 14 ] The situation of the mother evolved very slowly.

At the beginning of the revision period, she was very harassing with the paternal grandparents to the point that they thought about giving up with the children. Finally, she stopped doing that, and the grandparents invited her for a family dinner and everything went well. Despite that, the grandparents remain fearful. They noted that she recently reduces her alcohol consumption which could explain such improvement. [ 15 ] The mother had meetings with Social Services and she is on a waiting list to enter Portage Mother and child Program with X.

Her collaboration with the DYP is irregular and most of the time, it is the father who encourages her to ask for access rights. The DYP worker would like that she could do that by herself to demonstrate her interest to become a full-time mother. [ 16 ] The father has no alcohol consumption issues, and he lives in an alcohol-free environment. Despite quite a stable life, the DYP worker asked him to work on his parental capacities because, as the grandparents, the DYP worker noted that both parents depends a lot on the grandparents to take care of the children.

The grandparents are for sure available, but they consider that the parents are too comfortable in this situation, and do not take the appropriate steps to resume the care of their children. [ 17 ] The DYP worker suggested that the parents benefit from a psychological evaluation to assess their parental capacities, and to adapt the interventions to their specific needs. The father refused to sign the consent. The mother did not answer yet. [ 18 ] X is described as a very joyful and easy boy. He speaks well in [Language A]. His development does not raise any concern.

Analysis [ 19 ] It is obvious that the parents are not able to resume the care of their children. The father does not have his own house and works on night shifts. He absolutely needs his parents to babysit his children during at least the night. [ 20 ] On the mother’s side, even if she reduced her consumption, her addiction remained unresolved and she continues to display mental health issues for which she does not receive specific services.

Also, she does not exercise all her access rights, rarely ask for more and doing so she does not demonstrate her motivation to resume the care of her children. [ 21 ] The children are living with their grandparents since October 2, 2018. They are very well invested in this environment able to fulfil all their needs. The father is present every day, and no concern is raised regarding their development. Their stability is guaranteed. [ 22 ] As the DYP worker testifies, it is in their best interest to stay in this specific environment. The following sections of the YPA are relevant: 3.

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. In the case of a Native child, the preservation of the child’s cultural identity must also be taken into account. 4. Every decision made under this Act must aim at keeping the child in the family environment.

If, in the interest of the child, it is not possible to keep the child in the family environment, the decision must aim at ensuring that the child benefits, insofar as possible with the persons most important to the child, in particular the grandparents or other members of the extended family, from continuity of care, stable relationships and stable living conditions corresponding to the child’s needs and age and as nearly similar to those of a normal family environment as possible.

Moreover, the parents’ involvement must always be fostered, with a view to encouraging and helping them to exercise their parental responsibilities. If, in the interest of the child, returning the child to the family is impossible, the decision must aim at ensuring continuity of care, stable relationships and stable living conditions corresponding to the child’s needs and age on a permanent basis. A decision made under the second or third paragraph regarding a Native child must aim at entrusting the child to an alternative living

environment capable of preserving his cultural identity, by giving preference to a member of his extended family or his community or nation. [ 23 ] The following

section of the Act respecting First Nations, Inuit and Métis children, youth and families are relevant: Principle — best interests of child 9

(1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child. Principle — cultural continuity

(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts: (

a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people; (

b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity; (

c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected; (

d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and (

e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered. Principle — substantive equality

(3) This Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the following concepts: (

a) the rights and distinct needs of a child with a disability are to be considered in order to promote the child’s participation, to the same extent as other children, in the activities of his or her family or the Indigenous group, community or people to which he or she belongs; (

b) a child must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression; (

c) a child’s family member must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression; (

d) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which a child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people under this Act, including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people; and (

e) in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children. Best interests of Indigenous child 10

(1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration. Primary consideration

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture. Factors to be considered

(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(

c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life; (

d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs; (

g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and (

h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Consistency (4) Subsections (1) to (3) are to be construed in relation to an Indigenous child, to the extent that it is possible to do so, in a manner that is consistent with a provision of a law of the Indigenous group, community or people to which the child belongs. Priority 16

(1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority: (

a) with one of the child’s parents; (

b) with another adult member of the child’s family; (

c) with an adult who belongs to the same Indigenous group, community or people as the child; (

d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or (

e) with any other adult. Placement with or near other children

(2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child’s family, must be considered in the determination of whether a placement would be consistent with the best interests of the child. Attachment and emotional ties 17 In the context of providing child and family services in relation to an Indigenous child, if the child is not placed with a member of his or her family in accordance with paragraph 16(1)(

a) or (b), to the extent that doing so is consistent with the best interests of the child, the child’s attachment and emotional ties to each such member of his or her family are to be promoted. [ 24 ] Considering those fundamental principles, the best interest of the children requires that they be entrusted specifically to their paternal grandparents and not to a foster family chosen by the DYP even if it would have been the grandparents.

FOR THOSE REASONS, THE COURT: [ 25 ] GRANTS the application; [ 26 ] DECLARES that the security and development of the child X, born on [...], 2016, are still endangered; [ 27 ] ENTRUSTS the child to his paternal grandparents; [ 28 ] ORDERS that the child be gradually reintegrated under the care of the parents if the situation allows for it; [ 29 ] ORDERS that parents take an active

part in the application of any of the measures ordered by the Court; [ 30 ] ORDERS that the parents periodically report to the Director of Youth Protection on the measures they apply in their own regard or in their child’s regard to put an end to the situation in which the security and development of the child are in danger; [ 31 ] ORDERS that the child and the family receive the services of an external educator for the period deemed necessary by the professionals; [ 32 ] ORDERS that the parents remain sober and without any violent behaviour in the presence of the child; [ 33 ] RECOMMENDS that the mother seek help through Social Services concerning his alcohol, drugs and personal issues; [ 34 ] ORDERS that the modalities, frequency and degree of supervision of the contacts between the child and the mother be determined by the Director of Youth Protection;

[ 35 ] ORDERS that a person working for an institution or body, provide aid, counselling or assistance to the child and the family; [ 36 ] RECOMMENDS that the parents receive a psychological evaluation; [ 37 ] ENTRUSTS the situation of the child X , to the Director of Youth Protection [...], who shall then see that the measures are carried out; [ 38 ] THE WHOLE until May 31, 2021. __________________________________ PEGGY WAROLIN , J.C.Q. Me Adèle Cyr, attorney for the Director of Youth Protection Me Ulisce Desmarais Grégoire, attorney for the child Me Cassandra Neptune, attorney for the mother Me Angèle Tommasel, attorney for the father Date of hearing: May 22, 2020