2021 QCCQ 6113, 2021 QCCQ 6113

Translated from the original French Protection de la jeunesse — 2023 2021 QCCQ 6113 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ...

LOCALITY OF ... “Youth Division” No.: 615-41-002784-212 DATE: Oral decision: May 27, 2021 Written reasons: June 11, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE JACQUES LADOUCEUR, J.C.Q. ______________________________________________________________________ Ms. [WORKER 1] duly authorized by the Director of Youth Protection, exercising her profession at the Centre intégré de santé et de services sociaux A, having a place of business at … Applicant and X , born on …, 2015 Child and Ms. A , domiciled and residing at ... Mother and Mr.

B, domiciled and residing at ... Father ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Table of Contents 1. BACKGROUND ..................................................................................................................... 3 2. ISSUES ................................................................................................................................... 5 3.

ANALYSIS .............................................................................................................................. 5 3.1. The impact of the Indian Residential Schools on Aboriginal persons and the importance of language, culture, territory and the traditional lifestyle ....................................................... 5 3.2. The past and present situation of the father in connection with his Aboriginal culture 14 3.3. The mother’s situation and COVID-19 ..................................................................... 15 3.4.

Neglect with respect to education ............................................................................. 16 3.5. Neglect with respect to health ................................................................................... 20 3.6. Neglect with respect to physical needs ................................................................... 21 3.7. Endangerment ............................................................................................................. 21 3.8. The applicable measures ........................................................................................... 23

WARNING: The Youth Protection Act prohibits the publication or broadcast of any information that would allow a child or the child’s parents to be identified. Every person who contravenes this provision is liable to a fine (ss. 11.2, 11.2.1 and 135 Y.P.A .). 1. BACKGROUND [ 1 ] The repercussions of Indian Residential Schools, the consequences of COVID-19, and the preservation of the Anishinaabe culture and language form the backdrop of this case concerning the 5-year-old child X, born on ... 2015. [ 2 ] The child’s father and mother are members of the A First Nation.

The father comes from community A, while the mother was raised on an Indian reserve [in Region A], where most members of that community speak English. One of her parents is Aboriginal and the other is non-Aboriginal. [ 3 ] The family lives in an urban centre, namely, in City A, but considers the traditional lifestyle, including spending time in the forest and learning their language, to be essential for their child. Therefore, the child first learned to speak English and the Anishinaabe language. [ 4 ] In December 2019, the mother, who has health problems, had to be hospitalized due to a heart abnormality.

She stayed at the hospital for some time and her health was still fragile when she left. [ 5 ] In March 2020, when COVID-19 started, the father worried about his spouse’s vulnerability to the virus and feared that she would die if she contracted it. [ 6 ] The family therefore decided to go live in the forest, where they stayed for periods of two to three weeks. [ 7 ] When the COVID-19 situation eased over the summer of 2020, the parents decided to register their child in kindergarten at a school in City A, even though registration was not mandatory and despite the fact that the child was born in September, certainly making him one of the youngest children in the class, if not the youngest. [ 8 ] The second COVID-19 wave arrived in September 2020.

The father was very worried about the situation and feared that his son, who was going to school, might transmit the virus to the mother.

He therefore decided to go stay in the forest for extended periods again, but he did not inform the school administration beforehand. [ 9 ] On September 21, 2020, a report was made of a situation of neglect with respect to health, namely, that care for the child’s physical health was not ensured by the parental environment. [ 10 ] The Director of Youth Protection (DYP) started an assessment in November 2020 and made certain observations regarding the child’s lack of school attendance, and developmental delays with respect to language, comprehension, and motor and social skills. [ 11 ] According to the applicant, the child’s numerous school absences mean that he cannot receive certain speech therapy and occupational therapy services and he cannot take

part in various educational programs necessary to his development. [ 12 ] The applicant also found that the parents have inappropriate attitudes. These attitudes are related to the child’s lack of stimulation, the cleanliness of the home, and the fact that the parents give in to all of the son’s whims and are unable to set limits with respect to food, among other things. [ 13 ] On March 1, 2021, the applicant presented the application for protection and an urgent measure was taken on March 10, 2021. The Court ordered the placement of the child with a foster family.

Because the applicant could not find an Aboriginal foster family, the applicant entrusted the child to a non-Aboriginal family in City A where two other Aboriginal children, ages 4 and 6, were placed. [ 14 ] The hearing took place on May 26, 2021. The applicant testified and her assessment of the social situation ( exhibit D-3 ), dated May 5, 2021, was filed. [ 15 ] Two school observation reports for the child, written by Ms. C of school A, were filed in order to describe the observations regarding the child’s development and behaviour in the school environment.

A speech therapy report following a meeting with the child in February 2021 was also filed. [ 16 ] The father and the mother testified. The Court heard, among other things, the details of the father’s past. His parents were abused in residential schools. When he was very young, the father himself had to attend a boarding school similar to a residential school in [City A - Sector A] where he was forbidden from speaking his language. He was also placed in 24 different foster homes between the ages of 12 to 19.

This information does not appear in the assessment of the social situation ( exhibit D-3 ). [ 17 ] In addition to the declaration of endangerment, the applicant would like, among other things, that the child’s placement in a foster family be extended for a period of nine (9) months and that aid, counselling, and assistance be given to the child and the parents for a period of twenty-four (24) months.

In the event that the Court orders that the child be maintained in a foster family, the evidence reveals that he will have to be moved to another non-Aboriginal foster family since the first foster family has said that it is withdrawing. [ 18 ] The Court rendered an oral judgment on the date of the hearing, finding that the security and development of the child were in

danger. As applicable measures, the Court ordered the return of the child to his family environment along with, among other things, follow-up by the DYP with the family for a period of six (6) months. 2. ISSUES [ 19 ] 1. What are the grounds leading to the declaration that the child is in danger? [ 20 ] 2. What are the applicable measures? 3. ANALYSIS 3.1.

The impact of the Indian Residential Schools on Aboriginal persons and the importance of language, culture, territory and the traditional lifestyle [ 21 ] As will be seen in more detail in the following paragraphs, the history of Aboriginal communities, including the impact of Indian Residential Schools, as well as their language and their culture, among other things, must be taken into consideration in the interventions and decisions made by workers and decision-makers, including the Court, with respect to the protection of Aboriginal children. [ 22 ] The consequences of the implementation of Canada’s Aboriginal policy are disastrous and they are many.

They have also continued over time. Recently, we were tragically reminded of this by the horror of the discovery of the remains of 215 Aboriginal children on the site of the former Kamloops residential school in British Colombia. [ 23 ] At the time, children were separated from their parents to be sent to these residential schools in order, essentially, to break the ties to their culture and identity. The report of the Truth and Reconciliation Commission states: [l]ife in these schools was lonely and alien. Buildings were poorly located, poorly built, and poorly maintained.

The staff was limited in numbers, often poorly trained, and not adequately supervised. Many schools were poorly heated and poorly ventilated, and the diet was meagre and of poor quality. Discipline was harsh, and daily life was highly regimented. Aboriginal languages and cultures were denigrated and suppressed . The educational goals of the schools were limited and confused, and usually reflected a low regard for the intellectual capabilities of Aboriginal people.

For the students, education and technical training too often gave way to the drudgery of doing the chores necessary to make the schools self-sustaining. Child neglect was institutionalized, and the lack of supervision created situations where students were prey to sexual and physical abusers . [1] (Emphasis added.) [ 24 ] The Truth and Reconciliation Commission added: The impacts of the legacy of residential schools have not ended with those who attended the schools.

They affected the Survivors’ partners, their children, their grandchildren, their extended families, and their communities . [2] (Emphasis added.) [ 25 ] The following “Call to Action” is made in that report: 1) We call upon the federal, provincial, territorial, and Aboriginal governments to commit to reducing the number of Aboriginal children in care by: … iii. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the history and impacts of residential schools . … v.

Requiring that all child-welfare decision makers consider the impact of the residential school experience on children and their caregivers . [3] (Emphasis added.) [ 26 ] The final report of the Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec [4] (Viens Commission ) makes the following recommendations with respect to youth protection services: CALL FOR ACTION No. 113 Make youth protection evaluations and decisions in a way that takes the historical, social and cultural factors related to First Nations and Inuit into account . CALL FOR ACTION No. 114

Provide judges presiding in the Court of Québec, Youth Division, with reports similar to the Gladue reports used in the criminal justice system for cases involving Indigenous children. (Emphasis added.) [ 27 ] A Gladue report aims, among other things, to recount the [ translation ] “history” of the person concerned across generations and the history of his or her community to determine what impact they have had on him or her. [ 28 ] Moreover,

Chapter 9 of the report of the Special Commission on the Rights of the Child and Youth Protection [5] (Laurent Commission), entitled, [ translation ] “Call for action for Aboriginal children”, states that [ translation ] “First Nation children have a rate of accepted reports that is four times higher per 1,000 children than that of non-aboriginal children” and [ translation ] “the rate of placement of children in an alternative living environment is eight times higher than that of non-Aboriginal children”. [6] [ 29 ] This report also states that the causes of this overrepresentation are multiple and stem from, among other things, [ translation ] “the deleterious socio-historical effects related to colonial history, assimilation polices, and residential schools ”. [7] (Emphasis added.) [ 30 ] Concerning the Aboriginal children who went missing or died, on June 3, 2021, the Government of Québec passed

An Act to authorize the communication of personal information to the families of Indigenous children who went missing or died after being admitted to an institution . One of the purposes of that Act is to partially ease the suffering of Aboriginal families whose children, grandchildren, brothers or sisters left to go to residential schools, among other places, never to return, by authorizing them to obtain information from health institutions. [ 31 ] In the Laurent Commission report,

section 1.3, is entitled, [ translation ] “The well-being of Aboriginal children is intrinsically linked to their culture”. That

section discusses Aboriginal identity (the relationship to land, the concept of time, the various languages, the family models, history, spirituality) and the significant connection to the territory which [ translation ] “is the bearer of the identity of a community, of the importance of language and the importance of taking the time by respecting the rhythm of parents which should not always be rushed”. [8] [ 32 ] One of the recommendations of the Laurent Commission is to guarantee the well-being of all Aboriginal children in the context of the application of the Youth Protection Act [ translation ] “by ensuring the safeguarding of culture in youth protection interventions with Aboriginal children by taking into account, as a priority [among other things], the importance of language .” [9] (Emphasis added.) [ 33 ] Indeed, the Government of Québec set out a provision in the Charter of the French Language , [10] namely,

section 97 , which states that, “[t]he Indian reserves are not subject to this Act”. Although the family in this case does not live on an Indian reserve, this provision demonstrates the government’s acknowledgement of the priority it assigns to Indigenous languages in matters concerning them. [ 34 ] The Regulation respecting the language of instruction of children residing on Indian reserves , [11] which provides that “[a] school body is authorized to make an exception to the application of the provisions of

Chapter VIII of Title I of the Charter of the French language (chapter C-11 ) in respect of a child who resides or has resided on an Indian reserve” confirms this recognition. [ 35 ] The federal government passed the Indigenous Languages Act , [12] the

Preamble of which is worth reproducing.

Whereas the recognition and implementation of rights related to Indigenous languages are at the core of reconciliation with Indigenous peoples and are fundamental to shaping the country , particularly in light of the Truth and Reconciliation Commission of Canada’s Calls to Action; Whereas the Government of Canada is committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples, which affirms rights related to Indigenous languages ; Whereas 2019 has been proclaimed by the General Assembly of the United Nations as the International Year of Indigenous Languages to, among other things, draw attention to the critical loss of Indigenous languages and the urgent need to maintain, revitalize and promote Indigenous languages ; … Whereas First Nations, the Inuit and the Métis Nation have their own collective identities, cultures and ways of life and have , throughout history and to this day, continued to live in, use and occupy the lands that are now in Canada; Whereas Indigenous languages were the first languages used in the lands that are now in Canada and those languages have evolved over time; Whereas Indigenous languages played a significant

part in the establishment of relations between Europeans and Indigenous peoples ; Whereas Indigenous peoples have played a significant role in the development of Canada and Indigenous languages contribute to the diversity and richness of the linguistic and cultural heritage of Canada ; Whereas a history of discriminatory government policies and practices , in respect of, among other things, assimilation, forced relocation, the Sixties Scoop and residential schools, were detrimental to Indigenous languages and contributed significantly to the erosion of those languages ; Whereas the status of Indigenous languages varies from one language to another, including with respect to the vitality of those languages, and there is an urgent need to support the efforts of Indigenous peoples to reclaim, revitalize, maintain and strengthen them ;

Whereas Indigenous languages are fundamental to the identities, cultures, spirituality, relationships to the land, world views and self- determination of Indigenous peoples ; Whereas efforts to protect the vitality of Indigenous languages contribute to the enrichment of Indigenous knowledge as well as to the prevention of the loss of cultural diversity, biodiversity and spirituality ; … Whereas Indigenous peoples are best placed to take the leading role in reclaiming, revitalizing, maintaining and strengthening Indigenous languages; … Whereas a flexible approach that takes into account the unique circumstances and needs of Indigenous groups, communities and peoples is required in light of the diversity of identities, cultures and histories of Indigenous peoples; (Emphasis added.) [ 36 ]

Section 8 of this same Act states that “[t]he Minister may cooperate with provincial ... governments ... — including by entering into agreements or arrangements with them for purposes such as providing Indigenous language programs and services in relation to education, ... — to coordinate efforts to efficiently and effectively support Indigenous languages in Canada in a manner consistent with the rights of Indigenous peoples...” [ 37 ] Moreover, on June 21, 2019, An Act respecting First Nations, Inuit and Métis children, youth and families [13] came into force. The

preamble states: Whereas Parliament affirms the need : to respect the diversity of all Indigenous peoples, including the diversity of their laws, rights, treaties, histories, cultures, languages, customs and traditions , … to address the needs of Indigenous children and to help ensure that there are no gaps in the services that are provided in relation to them, whether they reside on a reserve or not . (Emphasis added.) [ 38 ]

Section 9 of this Act sets out the principle of 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 . (Emphasis added.) [ 39 ]

Section 10 reads as follows: 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. (Emphasis added.) [ 40 ]

Section 11 deals with the provision of child and family services: Effect of services 11 Child and family services provided in relation to an Indigenous child are to be provided in a manner that … (

b) takes into account the child’s culture ; (

c) allows the child to know his or her family origins; … (Emphasis added.) [ 41 ] Last, the Act states that a child should not be apprehended by child and family services solely on the basis of socio-economic conditions. [ 42 ] The Youth Protection Act sets out the following in connection with Aboriginal communities: 2.4 Persons in authority Every person having responsibilities towards a child under this Act, and every person called upon to make decisions with respect to a child under this Act shall, in their interventions, take into account the necessity … 5 o of opting for measures, in respect of the child and the child’s parents , which allow action to be taken diligently to ensure the child’s protection, considering that a child’s perception of time differs from that of adults, and which take into consideration the following factors: (

a) the proximity of the chosen resource; (

b) the characteristics of cultural communities;

(

c) the characteristics of Native communities , including Aboriginal customary tutorship and adoption. [14] (Emphasis added.) [ 43 ] Concerning the interest of the child and the important elements that must be taken into account,

section 3 of the Youth Protection Act reads as follows: 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 . (Emphasis added.) [ 44 ] At paragraph 4 of

section 4 of the Youth Protection Act the following can also be read concerning the preservation of cultural identity: 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 . [ 45 ] Recently, Renée Lemoine J. stated that [ translation ] “the two Acts [the FNIMCYF and the YPA ] coexist and apply concurrently, nay, they are even supplementary.” [15] [ 46 ] In addition, the Government of Québec through the Secrétariat aux affaires autochtones set out the following in its Government Action Plan for the Social and Cultural Development of the First Nations and Inuit 2017-2022 . [16] • offer government employees in the public and parapublic sectors awareness-raising sessions on the historic, cultural and sociological situation of the Aboriginal peoples and training on the concept of relevance and cultural safety; [17] (Emphasis added.) [ 47 ] In it, it is also stated the Government of Québec intends, among other things, to: • establish services adapted to the circumstances of Aboriginal students in the Québec education system; [18] (Emphasis added.) [ 48 ] In conclusion, it states that the link between the different Government of Québec services and the services offered by Aboriginal organizations “must be achieved bearing in mind certain obstacles, such as the considerable mobility in Québec of the Aboriginal populations, [and] language barriers ...”. [19] (Emphasis added.) 3.2.

The past and present situation of the father in connection with his Aboriginal culture [ 49 ] During his testimony, the Court examined the father concerning his experiences to have an overall picture of the situation.

The Court notes that no steps were taken in this regard by the applicant, other than a reference in the assessment of the social situation ( exhibit D-3 ) to the fact that the father has other children, with different mothers, who have needed the intervention of the DYP and placement. [ 50 ] However, this is not a matter of blaming the social worker representing the DYP with respect to the absence of any steps to find out about the past of the father (and of the mother) and/or to identify the reasons why the parents prioritized the learning of the Anishinaabe language by their son or opted for the traditional way of life in the forest. [ 51 ] Indeed, it is the responsibility of the State, more specifically in this case, of the DYP and the schools, to offer their staff members the training and tools to allow them to understand the reality of Aboriginal communities based on their history, their values, and their culture. [ 52 ] The Court notes that, according the description of her professional address on the front page of the application, the applicant works at the DYP office located in the urban centre of City A and not in that of Sector A in relation with the reserves.

This, however, should not have an impact on the need to train staff members and give them the proper tools to provide services

tailored to Aboriginal realties, since more than 55% of First Nations members live in urban centres. [20] [ 53 ] Here, the father’s testimony reveals that he is proud to be an Aboriginal person. [ 54 ] Starting at the age of 5, he went to a boarding school similar to a residential school in [City A - Sector A], while attending school in City B where the children of [Community A] were brought by school bus.

At the boarding school, the children were allowed to speak in their mother tongue only on Saturday evenings. [ 55 ] If a child started speaking in the Anishinaabe language, he or she was punished and had to kneel with folded arms for a certain period or would be sent to bed immediately after dinner at 6 p.m.

When a nun caught the child, she would forcibly pull the child’s ears. [ 56 ] His own father, when he was young, was taken to an Indian Residential School in City C where it appears that he was sexually abused. [ 57 ] That stay at an Indian Residential School left after-effects on his parents who used the government cheques they received to drink, such that the family was left to itself. [ 58 ] For a time, he lived with his grandparents, including his grandfather who took care of him.

In fact, he named his son X in memory of his grandfather who shared his given name. [ 59 ] From the ages of 12 to 19 years old, the father was shuffled around to 24 foster families in City A and he says that he endured rape for over one and a half years. [ 60 ] He testified that he blames the DYP, who in fact took his first child. [ 61 ] Before cohabitating with X’s mother, the father, who is 42 years old, had six children, three of whom are now adults and three others aged 10, 15 and 17.

The DYP was involved with each of his children; the three minor children are living with their mother, an aunt, and in a kinship foster family, respectively. [ 62 ] With respect to X, the father says that he is trying to give him what he could not give his other children. [ 63 ] For him and his spouse, their son’s connection to his Aboriginal culture, including learning the language, is essential and is a development factor. 3.3.

The mother’s situation and COVID-19 [ 64 ] The mother is trained as a special educator and, among other places, she worked for 5 years in the mental health department of the health clinic in City B, 4 years in community A, and then for one year at the mixed and Aboriginal community-based police station in City A. [ 65 ] She is experiencing health problems that mean she has not worked for several months. [ 66 ] Indeed, she was in intensive care in December 2019, and had surgery for a problem with her heart’s left ventricle. [ 67 ] The mother is currently overweight and, combined with her health condition, this has an impact on her energy levels and her ability in general. [ 68 ] Due to her health problems, the arrival of COVID-19 in March 2020, left her at higher risk because of her vulnerability.

The family therefore went to live in the forest in March 2020. [ 69 ] The intensity of COVID-19 died down over the summer and the child was registered in kindergarten at school A. [ 70 ] The second COVID-19 wave began in September 2020, and because the father was worried that the mother might become infected with the virus and he wanted to limit the sources of infection including the child’s contacts at school, he decided to stop sending him to kindergarten. [ 71 ] In addition to stays in the forest, the family spent time in the apartment where some idleness and laxness set in. [ 72 ] In addition, the mother was experiencing a depressive period related to the stress of COVID-19 and had to take medication and consult a psychologist.

The DYP intervened in these circumstances. 3.4. Neglect with respect to education [ 73 ] In the application for protection, the parents are faulted for the child’s lack of school

attendance. Then, in the assessment on the social situation ( exhibit D-3 ), the applicant concludes that the endangerment is not related to neglect with respect to education, namely, the failure of the parental environment to take steps to ensure that the child receives a proper education , given the child’s age.

Indeed, school attendance is not mandatory for the child. [ 74 ] Despite all this, the applicant wrote in her assessment of the social situation ( exhibit D- 3 ), [21] that [ translation ] “ the failure to attend school since the beginning of the year and the lack of stimulation at home have not allowed the child to evolve positively with respect to his development” (Emphasis added).

Thus, despite her initial statement in the report ( exhibit P-3 ), she nevertheless concluded that the lack of school attendance is a contributing factor to the endangerment. [ 75 ] Furthermore, in the application for protection, the applicant submits that [ translation ] “the child has significant developmental delays, notably with respect to language and social skills” and [ translation ] “the child does not understand the instructions given by adults, he is unable to make complete sentences and has trouble answering simple questions”. [22] [ 76 ] In addition to the applicant’s testimony, pursuant to art. 292 of the Code of Civil Procedure , the DYP filed two intervention reports by Ms.

C at school A and a cover memo over two pages long by Christine Bourdage, a speech therapist. These documents are related to facts that are central to the evidence submitted by the DYP to have the security and development declared to be in danger. [ 77 ] In this regard, the observations of Ms. C from school A describe certain shortcomings of the child with respect to his motor skills, his concentration, his language, and his inappropriate behaviour.

They also note his knowledge with respect to recognizing numbers (up to 20), letters (about 10), shapes, and colours. [ 78 ] The observations report also states, among other things, the following: • It is unknown whether he is left- or right-handed. • He is not interested in the group learning. • Fixation with respect to numbers. • Writing, more difficult. Two hands on the pencil. • Speaks about himself in the third person. • Does not do a typical day in kindergarten.

Must go out from time to time to prevent disorganization. • Does crafts but must practice. • The mother contacted me to find out how school was going. She also asked that the teacher contact her every Friday to tell her how things were going. • The mother went to his appointment with the pediatrician (March 15, 2021), saw the audiologist (May 3, 2021), and made an appointment with the optometrist (June). • The mother had a strong reaction to X’s placement. It broke her heart. She was very angry with the school.

She said that, had she known, she would have asked for an exemption so that he did not start kindergarten this year. Since he was born in September, he was very young to be starting school. The father said the same thing. • She stated that she and X were going to grow from this. She also said that she was no longer angry. She started taking action for the appointments. She asked for news about her son and was very happy that her child is well liked at school, is improving his French, and is learning things. She says she wants the best for her son. [ 79 ] Ms.

C recommended, among other things, daily school attendance and referrals for speech therapy and occupational therapy. Ms. C’s observations report provides for a meeting between the “multi” team of the School service centre and the school workers on May 7. [ 80 ] According to the second observations report after the May 7 meeting, the child appeared to regress despite the improvements observed in the previous weeks. Ms. C associated some of the child’s bad behaviour with the fact that the visits with the parents were more frequent.

Nothing objectively supports such an assertion since the child had been in a foster family since March 10, 2021. [ 81 ] Here are some excerpts from the second observations memo: • Difficulty concentrating, but very determined.

• He lost weight, better diet. • View of adults is not the same as before. Appears more distrustful. • Every Friday, the worker calls the mother, who blames the foster family when anything negative is brought up. • The parents appear to find the inappropriate behaviour funny. • Language level: usual vocabulary (improving) but does not understand everything, we note that he can be surprising when one on one. • Child capable of being stimulated; wants to communicate.

Does not understand the questions asked. [ 82 ] In the cover memo by the speech therapist who met with the child once, on February 25, 2021, it is stated that there are difficulties in several areas of development (language – motor skills – attention), that communication is not functional, that [ translation ] “we suspect the presence of severe difficulties with expression and in verbal communication”, but “there was no individual observation or more precise assessment.” [ 83 ] The Court recalls that art. 292 CCP deals with proof of facts that are secondary to the dispute and that it is the DYP’s responsibility not to use that provision left, right, and centre without any concern for respecting the requisite precondition. [ 84 ] The parents are not represented by counsel and rightly want the Court to hear their case as planned.

In fact, postponing the hearing would mean a delay of several weeks. In addition, the child would necessarily have to be moved on very short notice to a new non-Aboriginal foster family given the withdrawal of the first foster family. [ 85 ] The Court will therefore proceed on the basis of this documentary evidence with all its inconveniences, including the fact that its probative value is diminished. [ 86 ] The Court recalls that the child did not speak French when he started school.

Without saying that the child does not have problems, the assessment of the social situation, the applicant’s testimony, and the reports by the speech therapist and the school’s worker establish that no assessment of the child was conducted in his maternal language , neither in school nor in speech therapy. How can an accurate picture emerge in these circumstances? [ 87 ] For a better understanding, let us reverse the roles. Imagine a 5-year-old, non-Aboriginal child, who speaks only French, starting at a kindergarten that is run by Anishinaabe people who do not speak French.

The child has trouble integrating and every person who intervenes with the child speaks to him or her in the Anishinaabe language only, based on the framework of Aboriginal values, and this is done by all those who are involved with the child.

It is easy to see the distortion that may be caused by this approach. [ 88 ] Even though the context is entirely different, the Court considers that it may draw inspiration from the Supreme Court’s judgment in Ewert , [23] where Correctional Service Canada breached its statutory obligation by using results obtained through tools without ensuring that these tools were valid when applied to Indigenous offenders, since the accuracy of the results was vital to achieving the statutory objectives. [ 89 ] Here, moreover, the provisions of An Act respecting First Nations, Inuit and Métis children, youth and families , the Youth Protection Act and the Indigenous Languages Act are clear with respect to the criteria the State must follow. [ 90 ] To make sure to take into account, among other things, the fundamental nature of Aboriginal culture and languages recognized by the governments, we cannot accept that child assessments, in cases where that child does not speak French, be performed solely in French, unless it can be demonstrated that this is without consequence.

The presence of an interpreter is an easily applicable measure. [ 91 ] Also, even if the recommendation of the Viens Commission concerning the preparation of a report similar to a Gladue report was not adopted, the Court considers that, to respect the legal imperatives, minimal steps must be taken to obtain the most accurate picture possible of an Aboriginal family.

It is appropriate for the worker to take reasonable steps to obtain, at the very least from the Aboriginal parents, specific information about their past in connection with historical and systemic factors. [ 92 ] Furthermore, it would be much easier to obtain Gladue type information from the parents if it was done by an Aboriginal person. Indeed, in criminal matters, the Court often notes a great disparity between the candidness and the quality of the information sent to a writer who is an Aboriginal person compared to that given to a non-Aboriginal probation officer drafting a pre- sentence report.

[ 93 ] That being said, the parents acknowledge that they did not take steps quickly enough and that the child needs speech therapy services. The mother herself benefited from such services until the third grade when she was at school. Indeed, the parents agree with the fact that the child will be going into a specialized class next school year. [ 94 ] The evidence also reveals that the parents have difficulty establishing clear living environment and imposing limits on the child by responding to his every whim. [ 95 ] This has had an impact on the child’s autonomy and learning.

For example, before the DYP’s intervention, the parents would wipe the child when he had a bowel movement because he did not want to do it himself. [ 96 ] The father recognizes that he is overprotective. This behaviour is understandable when assessed in the context of his past. [ 97 ] However, ultimately, its impact on the child must be considered. [ 98 ] The parents set an example for their son.

Thus, the child imitates his father, who would encourage the child to run off with him as a joke, such that today the child still has a tendency to repeat this behavior and run off without any reason to provoke a reaction in adults. This unpredictable behaviour by the child can even put him in dangerous situations should he run into the street, for example. [ 99 ] Regarding the child’s stimulation and performing outdoor activities, the main issue was whether the child had a snowsuit during the winter.

The worker claims that the mother admitted that there was no snowsuit whereas the parents testified that the child had a snowsuit and that they even showed it to the worker. Ultimately, this question is secondary and does not need to be dealt with to rule on endangerment. 3.5. Neglect with respect to health [ 100 ] This

part is directly connected to the preceding one and certain aspects overlap since neglect with respect to health also results from the lack of stimulation in the parental environment, the lack of follow-up with respect to speech therapy, and the sedentary lifestyle in the apartment. [ 101 ] At one point, the child weighed 112 pounds. When asked about it, the mother stated that all of her family members are sturdy and have an imposing physique, including herself.

Consequently, she believed, wrongly, that there is no cause for concern. [ 102 ] However, she now realizes that the diet must be better monitored and that limits must be imposed on the child. [ 103 ] Indeed, in the context described above, she recognizes that they were much more permissive in the preceding months.

The situation, created by COVID-19, among other things, resulted in the family expending less energy, doing fewer sports activities, and therefore spending more money on food and less on getting around. [ 104 ] She says that she is happy to see that the child has lost weight over the last few weeks. [ 105 ] In addition, it is clear that this situation of idleness, when the family was in an urban setting, also has significant effects on the stimulation of the child. 3.6. Neglect with respect to physical needs [ 106 ] The applicant here refers more specifically in her report to the cleanliness of the apartment.

Even assuming that the observations reported by the applicant are true, they in no way contribute to the declaration of endangerment of the child, given that, according to the applicant, the condition of the apartment had greatly improved. [ 107 ] The applicant states that she noted that the apartment was dirty and messy and there was sometimes garbage, such as boxes or leftover food, littering the floor, and that there were dirty dishes on the counter and in the kitchen sink.

The apartment was cluttered with a mattress in the living room and several boxes in the bedroom. [ 108 ] In short, although this situation is clearly not ideal, it cannot be stated here that the parents are not responding to the child’s basic needs with respect to hygiene or the apartment. 3.7. Endangerment [ 109 ] The various persons who intervened with the child and the parents gave little consideration to the statutory requirements related to Aboriginal culture , including those regarding the significance of their language, history and the repercussions of Indian Residential Schools.

[ 110 ] The failure to take into account these fundamental considerations in a concrete manner led to a deficient perspective and had a significant negative impact on the assessment of the situation. [ 111 ] However, these shortcomings do not mean that the parents are not accountable and do not prevent the Court from declaring that there is endangerment based on the evidence presented. [ 112 ] Indeed, these shortcomings impact the accuracy of the assessment of the situation and, especially, in this case, the applicable measures, as will be seen below. [ 113 ] The Court takes the liberty to state that this case illustrates the essential need for changes based on the recommendations of the commission of inquiry reports and the objectives pursued by the relevant statutes. [ 114 ] Both the Truth and Reconciliation Commission of Canada’s report and the Viens Commission’s report define their recommendations as [ translation ] “Calls to Action ”. [ 115 ]

Chapter 9 of the Laurent Commission’s report is entitled [ translation ] “ Call for action for Aboriginal children”. [ 116 ] Last, the Government Action Plan for the Social and Cultural Development of the First Nations and Inuit is entitled, Do More, Do Better (Emphasis added). [ 117 ] If the intention is there, it remains that it is only through action that the situation will improve. [ 118 ] Ultimately, in assessing this case in the context of the interest of the child, as defined in An Act respecting First Nations, Inuit and Métis children, youth and families , and the characteristics of Native communities, which must be taken into account under the Youth Protection Act , the Court comes to the conclusion that the security and development of the child are endangered due to neglect with respect to health and education. [ 119 ] More specifically, the evidence, even though it is based on potentially deficient assessments, nevertheless reveals the need for the child to receive speech therapy and that the parents have neglected to cooperate on this subject.

In addition, the parents, by overprotecting the child, have failed to provide him with sufficient and appropriate stimulation and have closed their eyes to an obvious weight problem. Last, the situation caused by COVID-19, in view of the mother’s health condition, contributed to the child’s lack of stimulation. 3.8. The applicable measures [ 120 ] As mentioned above, the DYP asks that the child be kept in a foster family for an additional period of nine (9) months, with follow-up for a period of twenty-four (24) months.

This placement would be with a non-Aboriginal family, different from the one where the child was at the time of the hearing.

The child would then be with three other Aboriginal children who are older than he is, specifically, 7, 10 and 14 years old. [ 121 ] Counsel for the child argues that the child should be returned to his family environment, where he should be maintained. [ 122 ] In this case, the principal of cultural continuity [24] and the need to take in to account the characteristics of Native communities, [25] just like the criterion of the interest of the child in connection with prioritizing keeping the child in the family and maintaining his ongoing relationship with his family, [26] mean that the suggestion proposed by the DYP is unsuitable. [ 123 ] In addition, the evidence reveals that the intervention of the DYP led to an important realization for the parents, which became even clearer during the hearing. [ 124 ] To reproduce the mother’s words, [ translation ] “the child’s placement was a big slap to the face”.

For the mother, it was big hit to her pride since, normally, she is the one people go to for help in the context of her work. [ 125 ] She stated that she wants to go back to being the mother she was before COVID-19 started. She acknowledged that he son has delays and that aid must be provided. She noted that the child has made progress over the last few weeks. [ 126 ] The father rightly continues to hope to promote the development of his son’s Aboriginal culture. He also acknowledges that the child has made progress since his placement.

School is important to the father and, indeed, he stated that he is excited to attend his son’s graduation. He understands that learning French is important if he wants his son to succeed in school. He has learned from his mistakes and wants to give his son what he was unable to give his other children. [ 127 ] He also hopes that the DYP learns and understands how the Anishinaabe function.

[ 128 ] The applicant stated that the parents were present at every scheduled meeting, although cooperation was more difficult in the beginning.

She noted that the apartment had toys and board games, and the parents have said that they have a library with 38 children’s books. [ 129 ] In this context, the Court considers that it is more appropriate that the child return to his parents’ home and that the parents are able to meet his basic needs and promote his development by having the aid, support, and structure provided by the DYP for a limited period of time and by ensuring that they follow through on certain undertakings they have made. [ 130 ] FOR THESE REASONS, THE COURT: [ 131 ] GRANTS the application; [ 132 ] DECLARES that the security and the development of the child X are in danger; [ 133 ] ORDERS that the child be kept in the family environment; [ 134 ] ORDERS his return within a maximum of seven (7) days; [ 135 ] ORDERS that the child receive all the health care and services required by his condition and that the recommendations of the professionals and specialists required for his well-being, including, in particular, those of the speech therapist, be respected; [ 136 ] RECOMMENDS that assistance be provided to the child with respect to language to facilitate communication during his meetings with the professionals and specialists; [ 137 ] ORDERS that the parents cooperate with the provision of health care and services required by the child’s condition and more specifically by honouring the appointments that may be scheduled to this effect; [ 138 ] ORDERS that the parents actively cooperate with the social services follow-up and that they apply the advice, means, and all other measures proposed by the Director of Youth Protection’s delegate in the interest of their child; [ 139 ] ORDERS that the parents make sure that the child attends school regularly starting next school year; [ 140 ] ORDERS the parents to cooperate with a home educator according to the terms that will be put in place by the Director of Youth Protection; [ 141 ] ORDERS the parents to take

part in meetings with a nutritionist in City A or City B, according to the terms to be established together by the nutritionist, the DYP, and the parents for an appropriate period of time; [ 142 ] AUTHORIZES surprise visits to the parent’s domicile; [ 143 ] ORDERS the parents to inform the DYP of the departure and return dates of their stays in the forest to coordinate any appointments the child may have; [ 144 ] RECOMMENDS strongly that the parents register the child in summer activities such as soccer and the day camp at Centre A; [ 145 ] ORDERS that aid, counselling, and assistance be given to the child and his parents for a period of six (6) months; [ 146 ] ENTRUSTS the situation of the child to the Director of Youth Protection for the execution of this judgment. __________________________________ JACQUES LADOUCEUR, J.C.Q.

Mtre Jean-Bernard Terrisse For the applicant Mtre Cynthia Thibault For the child Ms. A For herself Mr. B For himself

Date of hearing: May 27, 2021