2021 QCCQ 16718, 2021 QCCQ 16718

Protection de la jeunesse — 219998 2021 QCCQ 16718 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] No.: 455-41-001338-201 455-41-001074-178 455-41-001075-175 Date: July 28, 2021 (reasons rendered orally on the DYP’s Motion to review a Court Order) September 23, 2021 (written reasons on the declinatory exception and on the DYP’s Motion to review a Court Order) PRESIDING: THE HONOURABLE LISE GAGNON, J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1] and [SOCIAL WORKER 2] , duly authorized by the Director of Youth Protection, whose offices are located at [...], district of A; Applicant - and- X

Born on [...], 2020 Y Born on [...], 2016 Z Born on [...], 2014 Children - and- A - and- B Parents Attorney General of Quebec -and- Attorney General of Canada Impleaded parties ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 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 ] The Director of Youth Protection seeks a review of the order rendered on April 5 2019, by the Honourable Pascale Berardino in which she declared the security and development of Y and Z to still be in danger on grounds of serious risk of neglect (mother’s anxiety) and psychological ill-treatment (children exposed to parental conflicts). [ 2 ] To correct the situation, Berardino J. maintained Y and Z with the maternal grandparents until August 30, 2019, with the objective of preparing a permanency plan for them.

She ordered that contact with the parents be supervised and that it take place according to the terms fixed by the DYP. Furthermore, she withdrew the exercise of certain attributes of parental authority from the parents to entrust them to the maternal grandparents. [ 3 ] In September 2019, the hearing of the application to review that order began before Berardino J. The Director then asked that the children be placed with their grandparents until they reach the age of majority, which the parents contested.

After a four-day hearing spread over a few months, the pandemic began and postponed the conclusion of the case. Then Berardino J. recused herself from the

case. [ 4 ] On March 22, 2021, the undersigned resumed the hearing. [ 5 ] The Director was still asking for Y and Z to be entrusted to the maternal grandparents until they reach the age of majority and that the parents continue to have supervised contact. [ 6 ] By that point, the parents had a third child, a daughter X, whom the Director found out about seven months later.

X was initially entrusted provisionally to a foster family, and then to her maternal uncle. [ 7 ] The Director now seeks a declaration that the security and development of X are in danger due to the parents’ history (mother’s anxiety, parental conflict, and lack of transparency).

The Director also argues that the circumstances in which X was born – the mother hid her pregnancy and gave birth without medical support – constitute neglect with respect to health. [ 8 ] To correct the situation, the Director recommended that X be entrusted to her maternal uncle and that supervised contact with her parents be authorized. [ 9 ] The parents contest the Director’s applications. First, they argue that the Court does not have territorial jurisdiction to act under the Youth Protection Act because the parents are not domiciled in Quebec.

In the alternative, they argue that the Youth Protection Act is inoperative or constitutionally invalid because it limits their ability to go to the United States with their children. [ 10 ] The Attorney General of Quebec argues that notice under

section 76 and 77 of the Code of Civil Procedure was not validly given and request to dismiss the motion. He submits that this declinatory exception has not the basic legal requirements to be heard. [ 11 ] The Attorney General of Canada did not appear after being served. [ 12 ] On the merits of the case, the parents ask for the file to be closed. They claim that they have worked out all their problems.

They are now planning to move to [State A], where the paternal grandfather lives and where the father has started a business. [ 13 ] After the hearing, in March 2021, counsel for the children asked the Court to be cautious. She believes that the children should remain under the responsibility of the grandparents (Y and

Z) and the uncle (

X) for the moment. However, given the progress shown by the parents, she maintains that supervision is no longer necessary. [ 14 ] After hearing the evidence, the Court varied the provisional measures starting on March 31, and entrusted X to her parents because there was nothing justifying a conclusion that X was exposed to parental conflict or that she would not receive the health care she required.

As for Z and Y, the Court lifted the supervision and authorized the parents to see the children at the home of the maternal grandparents whenever it suited them. [ 15 ] The Court then invited the father to better define his plan to move to [State A] with his family and resume open and transparent cooperation with the new caseworker. [ 16 ] The Court scheduled the hearing for the parties’ observations on the declinatory exception to decide the Court’s jurisdiction for July 28, on which date the Court also closed the hearing with a final

summary of the evolution of the situation. [ 17 ] On July 28, 2021, the news were good. The parents and the caseworker had cooperated openly.

Slowly but surely, trust between the parties had returned and the intervention was once again productive [ 18 ] The children had benefitted from greater contact with their parents, whom the grandparents said had improved. [ 19 ] The situation had progressed so positively that the worker had varied her recommendations in mid-July to ask that the three children be entrusted to the parents with a short, six-month follow-up with social services. [ 20 ] The parents maintain that the follow-up with social services is no longer necessary. Issues in dispute 1.

Does the Court have territorial jurisdiction to act pursuant to the Youth Protection Act ? 2. Is the Youth Protection Act inoperative, inapplicable, or constitutionally invalid? 3. Do the grounds that initially justified the Director’s intervention still exist, or can the file be closed? Analysis 1. Does the Court have territorial jurisdiction to act? [ 21 ] The Court finds that it does, for the following reasons. [ 22 ] The father is American and the parents lived in the United States with Z and Y in 2016.

The mother then came back to live in Quebec with the children. [ 23 ] The parents maintain, however, that they always planned to settle in the United States. On these grounds, they argue that the Court did not have jurisdiction in 2017 to act. The father claims that the judge misled him in 2017 by implying that he could not leave the country.

[ 24 ] The Court cannot revisit a judgment that has been rendered. [ 25 ] As for the Court’s current jurisdiction, the reasons for rejecting the parents’ argument follow. [ 26 ]

Article 37 of the Code of Civil Procedure provides that the Court of Quebec has jurisdiction, to the exclusion of the Superior Court, over adoption matters. In other youth matters, jurisdiction and procedure are determined by special Acts. [1] [ 27 ] In this case, that special Act is the Youth Protection Act . [ 28 ] The Youth Protection Act applies to any child under 18 years of age in the territory of Quebec whose security or development is in danger. As the Superior Court has made clear, the Act’s objective is to ensure that all children are protected equally, whether they be tourists, residents, or refugees.

The child’s domicile is of no great import. [ 29 ] The Superior Court has even stated that the provisions of the Youth Protection Act apply concurrently to those concerning immigration, if applicable, even though immigration is a federal power. Protecting children in the territory of Quebec is the overriding consideration. [2] [ 30 ] The Court shares that

interpretation. To allow children to be mistreated solely because they are citizens of a different country, are just passing through, or may be emigrating soon would be discriminatory and contrary to the interest of the child. [ 31 ] Therefore, domicile is not the criterion on which the Court’s territorial jurisdiction is based. Instead, it is the place where the child is found when the facts that give rise to the intervention are reported that count.

If a child is on the territory of Quebec and his or her security and development are or may be in danger, the Court of Quebec has jurisdiction to decide the issue. [ 32 ] But even if we had to consider the criterion of the children’s domicile to establish the Court’s jurisdiction, as is the case in custody matters and as counsel for the mother suggests here, the children were domiciled in Quebec in 2017, and they still are. [ 33 ] Y and Z have lived in Quebec with their grandparents for nearly four years. X was born in Quebec and has lived here since birth.

As for the mother, she has never lived anywhere but Quebec since returning from the United States in 2016. [ 34 ] The fact that the father is American, that he lived in the United States for certain periods in the last four years, and that the children also have American citizenship changes nothing.

Making a plan to move to the United States also does not confer jurisdiction. [ 35 ] Certainly, the competent court may exceptionally decline jurisdiction upon application by a party, but before deciding to do so, it must ensure that the authorities of another state will be in a better position to decide the dispute. [ 36 ] In a recent judgment determining whether the courts of France or of Quebec were better able to decide a custody matter, Gilbert Lanthier J. identified the criteria to consider in such a situation: - the best interests of the child; - the existence of permanent orders rendered by the jurisdiction implementing protective measures; - the domicile of the custodial parent; - the existence of judicial decisions made by the competent authorities of the state where the child is located; - the forum that best knows the child’s situation and is most convenient for the parties; - the forum likely to ensure a fair and equitable hearing of the case. [3] [ 37 ] In this case, the best interests of the children require that the Court of Quebec, Youth Division, decide the dispute.

It is urgent. Any delay risks harming them because the children have been living with uncertainty for nearly two years. They find themselves, through no fault of their own, at the center of a conflict of loyalty between their family and their caseworkers. The entire situation undermines their interest. [ 38 ] Furthermore, it is the Court of Quebec, Youth Division, that best understands the issues in the children’s situation since 2017. The previous judgments accurately document the problems that endangered the security and development of Y and Z in 2017.

These decisions also accurately describe the family’s progress since then. [ 39 ] The mother’s domicile has been in Quebec since 2016. The children have lived with the maternal grandparents in Quebec for nearly four years. Most of the professionals involved with the parents and children (caseworkers, psychologists, psychiatrists) are in Quebec. These witnesses are invaluable to the Court to help it decide. It is preferable that they not be far away. [ 40 ] There is no reason, therefore, for the Court of Quebec, Youth Division, not to rule in this case. 2.

Is the Youth Protection Act inoperative, inapplicable, or constitutionally invalid? [ 41 ] Based on consistent case law, [4] the Attorney General argues that the declinatory exception must be dismissed because the notice pursuant to articles 76 and 77 of the Code of Civil Procedure was not validly given. [ 42 ] The Court shares that opinion. Here are the reasons why. [ 43 ] To comply, the notice in which one party questions the constitutional validity, applicability, or operability of a statute must meet the requirements of articles 76 and 77 C.C.P., which provide:

76. In any civil, administrative, penal or criminal case, a person intending to question the operability, the constitutionality or the validity of a provision of

an Act of the Parliament of Québec or the Parliament of Canada, of any regulation made under such

an Act, of a government or ministerial order or of any other rule of law must give notice to the Attorney General of Québec. Such notice is also required when a person seeks reparation from the State, a state body or a legal person established in the public interest for an infringement or denial of their fundamental rights and freedoms under the Charter of human rights and freedoms (chapter C-12 ) or the Canadian Charter of Rights and Freedoms (Part I of

Schedule B to the Canada Act,

chapter 11 in the 1982 volume of the Acts of the Parliament of the United Kingdom). ….. No such application may be ruled on unless such notice has been validly given, and the court may only adjudicate with respect to the grounds set out in the notice. 77.

To be validly given, the notice to the Attorney General of Québec must clearly state the contentions the person intends to assert and the grounds on which they are based, and be served on the Attorney General by a bailiff as soon as possible in the course of the proceeding but, in a civil matter, at least 30 days before the case is ready for trial and, in other matters, at least 30 days before the trial; in addition, the notice must be accompanied by all pleadings already filed in the record .

The Attorney General becomes a party to the proceeding without further formality and may submit conclusions to the court, in which case the court must rule on them. Only the Attorney General may waive the notice period. The notice to the Attorney General must also be served on the Attorney General of Canada if the provision or rule of law concerned comes under federal jurisdiction; it must be notified to the Director of Criminal and Penal Prosecutions if the provision or rule of law concerned relates to a criminal or penal matter. (emphasis added) [ 44 ] Asking a court to declare that

an Act or part of

an Act is inoperative, constitutionally invalid, or inapplicable is therefore not something to be done lightly. As Richard Côté J. wrote: [ translation ] [24] The notice of intention under

article 76 of the C.C.P. is not a mere formality.

Constitutional invalidity is a serious conclusion that may be reached only if the public authority has had a chance to defend the merits of the impugned statute before the court. [25] The notice addressed to the Attorney General should therefore include enough information about the facts and legal arguments supporting the conclusions sought or it will be rejected.” [citations omitted] [5] [ 45 ] In this case, the notice pursuant to articles 76 and 77 C.C.P. was not validly given. [ 46 ] First, the notice was filed in the court record only after the Court began writing this judgment, that is, after July 28, 2021.

The Court cannot rule on applications that are not filed in the court record. [ 47 ] Second, the notice was served on March 18, 2021, whereas the merits of the case had already been scheduled to be heard on March 22, 29, 30, and 31. The notice did not comply with the 30-day time period. [ 48 ] On March 22, the day the hearing began, the Attorney General confirmed that it did not waive the 30-day notice period set out in the law. The Court postponed the management of the case to May 17 to ensure that counsel was validly served, among other things.

Moreover, the proceedings were not included with the notice as they should have been, as admitted by counsel for the mother: [ translation ] A copy of all the proceedings already filed in the record is not appended and is available upon request, if required. [6] [ 49 ] Third, facts and legal arguments in support of the request were not sufficiently set out in the notice to allow the Attorney General to respond to them. [ 50 ] Fourth, the notice does not contain any conclusions seeking the invalidity of a statutory provision or asking that it be made inoperative or declared constitutionally invalid.

Nor does it seek any remedies based on an allegedly infringed right protected in the Charter of Human Rights and Freedom . [ 51 ] On May 17, 2021, when the Court postponed the management of this declinatory exception, the notice still was not compliant. Although counsel for the mother had had the opportunity to amend it to make it compliant, he had not done so.

Counsel for the mother stated that his [ translation ] “written arguments” [7] were complete. [ 52 ] There are still missing proceedings, however, and the notice still does not state his grounds with any precision or include any conclusions or remedies sought. It states: [ translation ] Take notice that the defendant intends to call into question the operability of

section 73 of the Youth Protection Act . Take notice that the defendant seeks a remedy based on the violation of her fundamental rights under the Charter of human rights and freedoms against a state body, the Director of Youth Protection. [8] [ 53 ] How is

section 73 of the Youth Protection Act inoperative? What fundamental Charter rights have been violated?

[ 54 ] The contents of the notice are laconic. [ 55 ] As for the conclusions sought, they are baffling: [ translation ] DECLINE its international jurisdiction in this case in favour of the mother SUSPEND any decision on the originating application. [9] [ 56 ] On May 17, counsel for the mother repeated that everything had been included in his " written arguments " and that he had nothing to add. The " written arguments " are not the notice, however.

What is more, these arguments are no more detailed or clear. [ 57 ] The argument that the Youth Protection Act , a provincial statute, trenches on a federal competence, immigration, and that the Superior Court judgment rendered in 2013 is based on erroneous premises do not make sense. [ 58 ] The Court believes, rather, that the Superior Court judgment is well founded. The Court has already said so. To interpret the Youth Protection Act any other way would be discriminatory.

It would unjustly deprive children from protection based solely on the fact that their parents are citizens of a different country or that they are considering living elsewhere. [ 59 ] As for sections 9 and 10 of the Convention on the Rights of the Child , which have allegedly been violated because the Youth Protection Act prevents the reunification of families, it has no legal or factual basis. In fact, the evidence reveals the opposite. [ 60 ] The father was able to see his children even when he was living in the United States. He never complained during this period about the Court’s lack of jurisdiction.

On the contrary, the father was happy to be heard by the Court of Quebec to resume contact with his children at the time. The Court of Quebec was in the best position to hear the father’s request because it already knew the family and its history. [ 61 ] Furthermore, still today, the Director is not preventing the parents from moving to the United States with their children.

Instead, she is considering asking the authorities of the state A to take over social services follow-up if the parents make their plan to move a reality. [ 62 ] As for the conclusions of these written arguments, they are just as baffling as those in the notice: [ translation ] In short, this honourable Court does not have international jurisdiction because in any event; (

a) The children were not domiciled in Quebec when the DYP intervened to apply “custody” and (

b) Regardless of “where the act or omission which occasioned the injury occurred” (i.e. where the endangerment occurred, the “author’ of the endangerment and the “victim” of the injury are domiciled in the same state (i.e. the United States). [10] [ 63 ] Counsel for the mother now appears to posit that the Youth Protection Act follows the logic of civil liability. He writes: [ translation ] The YPA applies according to the “fault” of a parent (i.e., a parent’s obligation to protect and keep their child safe) toward his or her child (i.e., here the matter concerns first and foremost non-state entities). [11] [ 64 ] His reasoning is now based on the second paragraph of

article 3126 C.C.Q.: 3126 . The obligation to make reparation for injury caused to another is governed by the law of the State where the act or omission which occasioned the injury occurred. However, if the injury appeared in another State, the law of the latter State is applicable if the author should have foreseen that the injury would manifest itself there.

In any case where the author and the victim have their domiciles or residences in the same State, the law of that State applies. [ 65 ] According to this logic, as the author of the prejudice and the victim are domiciled in the United States, the Youth Protection Act does not apply here. [ 66 ] The Youth Protection Act does not follow the logic of civil liability. It is not a question of restoring balance [ translation ] “destroyed by the injury and of placing the victim back in the situation he or she would have been in had the injurious act not taken place”. [12]

[ 67 ] The Youth Protection Act seeks to “protect children whose security or development is or may be considered to be in danger” and as previously stated, children may receive protection under the Youth Protection Act if they are in danger, regardless of whether they are visitors, tourists or refugees. [13] [ 68 ]

Article 3126 C.C.Q. does not apply to this case. Even if this principle applied, it would be wrong to apply it to this case because the domicile of the parents and the children is in Quebec. [ 69 ] In short, this declinatory exception has been above all else a pointless detour, delaying a ruling on the actual issues which was important to decide without delay in the children’s interests. [ 70 ] The Court dismisses the declinatory exception. 3.

Do the grounds that initially justified the Director’s intervention still exist, or can the file be closed? [ 71 ] To answer this question, the Court feels it is important to recount the story because, while the answer was clear to the Court on July 28, 2021, the Court was in the dark up until a few months ago. [ 72 ] Why? [ 73 ] Because of the counter-productive climate of distrust between the parties that crystallized over the years of an enduring dispute without outcome. [ 74 ] This distrust led the parties to an impasse that was on the point of harming the best interest of the children. [ 75 ] Today, the ending is happy.

But the road to get here was less so, and it is therefore important to remember it. If it is forgotten, it will be difficult to understand the considerable distance between the parties’ initial positions. [ 76 ] On June 15, 2017, Michel Durand J. declared the security and development of Z (3 years old) and Y (1 year old) to be in danger due to the father’s physical abuse of Z and psychological ill-treatment because the children were exposed to the father’s conjugal violence against the mother. [ 77 ] At the time, the mother’s sister noted that the parents were often in conflict.

The father would get angry and the mother would cry. Z also said that “Dad hit him”. [ 78 ] At the hearing before Durand J., the mother acknowledged the conflict with the father, but explained that the father had had issues with cocaine and heroin use, which fuelled the conflict. The father went to rehabilitation therapy, she claimed, and the conflict died down.

She wanted to be able to live with the father and the children. [ 79 ] At the time, the mother believed that the maternal grandparents and her sisters were plotting to make her leave the father who also believed that the mother’s family [ translation ] “kept rehashing old issues”. The father also claimed that since he went to therapy, everything has been better. [ 80 ] When the mother was examined about Z saying that his father hit him, the mother said that it was only play. The mother minimized it. When later examined about the mark on Z, the mother said, “it was just a rash”.

Durand J. instead accepted the version given by Z and by the mother’s sister, and asked the mother to be honest.

He wrote: [56] If she wants to regain the Court’s trust, she will have to be more honest in the future and also more opened with the delegate of the Director who has the obligation in virtue of the law to evaluate the situation. [57] …. [58] Both parents said that they were ready to go to a psychologist and this is a good initiative because there is work to be done to improve their personal situation, to address their personal difficulties and afterwards, as a couple. [59] And moreover, there are facts to be recognized honestly if we want to work on the real issues. [14] (emphasis added) [ 81 ] While Durand J. was deliberating, the Director sought to reopen the hearing because the mother allowed the children to see their father without supervision, contrary to the interim order. [ 82 ] Despite this lapse, after hearing the evidence, the Court decided to maintain the children with their mother in a mother/child housing resource.

However, the judgment added that, should the mother decide to leave the resource, the children would be entrusted to a foster family. [ 83 ] Before that judgment was even sent to the parties, the mother had already left the housing resource. The Director was not informed of this fact for one month.

When the mother was reached, she told the caseworker that she was now living in Stanstead and refused to give her address. [ 84 ] Faced with this lack of transparency and cooperation, the children were entrusted to a foster family, as ordered by Durand J. [ 85 ] Two weeks later, shaken up by the placement of her children, the mother asked the Court to allow her to live with her children at the maternal grandparents’ home. The mother then described the father as controlling. She also acknowledged that she suffered from social anxiety. She wanted another chance.

[ 86 ] But the Court had learned its lesson and decided instead to maintain the children in foster care, while ordering that contact between the mother and the children be supervised by the grandparents and that visits be encouraged. [ 87 ] The day after the children were maintained in foster care, the parents admitted that they found it difficult to be honest. The mother acknowledged lying at the hearing before Durand J. She recognized that the father was physically abusive to Z. The father also admitted his actions.

He explained that he lied because he was afraid of being blocked at the United States border due to a court record. [ 88 ] The Court observs that the parents’ lack of transparency is not a new issue. [ 89 ] On September 6, 2017, however, during the judicial review, Berardino J. noticed that the parents were now acknowledging their issues and wanted to seek help.

Given this positive progress, Berardino J. agreed to entrust the children to the mother again provided that she live with the maternal grandparents. [ 90 ] One month later, irritants between the mother and grandparents about the terms of the father’s visits led the Court to partially review the situation. In short, the relationship between the father and the grandfather was not ideal at the time, but the mother insisted on the father’s visits taking place at the grandparents’ home. This created tension with the grandparents who were all the more worried because of the past conflicts between the parents.

The grandparents were worried. [ 91 ] But the mother did not see it this way, and the misunderstandings with the grandparents persisted. [ 92 ] The mother therefore decided to leave their home. She initially left her children with the maternal grandparents, saying that she would visit a friend for a few nights. Then, she went to live in a friend’s apartment with her children for two weeks. [ 93 ] When the caseworker asked the mother to change her position, she refused to return to her parents’ home.

She complained that her parents were controlling and said that she experienced conflict with her sisters. [ 94 ] The evidence later revealed that the mother had once again allowed the children to see their father in violation of the order. [ 95 ] In December 2017, the Director tried to understand the mother, who was unable to comply with the orders and who put her children in contact with the father despite his physical abuse of Z and the parental conflict their children had been exposed to. [ 96 ] The mother acknowledged that she does not respect any form of authority.

She likes her family when they agree with her, but otherwise, she does not respect them. The mother also admited that she finds it difficult to control her emotions and can make impulsive decisions. [ 97 ] Faced with these observations, the Court concluded that a psychological and psychiatric evaluation of the mother was necessary. [ 98 ] In the spring of 2018, the psychiatrist Dr. Bélanger confirmed that the mother had an anxiety disorder, but concluded that this condition did not hinder her parental capacity.

She recommended instead that the mother go to therapy to better control her anxiety. [ 99 ] Meanwhile, the relationship between the parents remained unstable. Moreover, the father was homeless. He no longer had a car. There were fights between the parents, including one that the mother recorded to use against the father. [ 100 ] But despite their conflict, the parents wish to remain a couple, which did not appear to be a good idea to the caseworkers, given the persistent conflict between them. [ 101 ] The parents then understood that as long as they wanted to be together, they would not have their children.

They decided on a new strategy. [ 102 ] The parents agreed to pretend to no longer be in a relationship. The idea was for the mother to recover the children by implying that the father had decided to disappear from their lives. Then, once the children were with the mother, the father would come back to live with them. [ 103 ] Accordingly, on May 16, 2018, the mother officially informed the caseworker that she and the father had separated. She said that the relationship with the father was toxic and she wanted to get away from it. The father had gone back to live in the United States.

He no longer wanted to see his children. [ 104 ] The children asked for their father, especially Z who did not understand his mother’s vague explanations. [ 105 ] At the time, in addition to lying to the caseworker, the mother struggled to make decisions in the interest of the children. She held on to their passports when the grandparents wanted to travel to the United States. She was late handing over the health insurance cards. Everything between herself and the grandparents was a subject of contention.

The Court therefore gave the exercise of some of the attributes of parental authority to the maternal grandparents to ensure that the children would have their needs met without delay. [ 106 ] In May 2018, therefore, the Court continued to review the September 2017 Court Order and was informed that the father had abandoned his children. [ 107 ] In July 2018, the father reappeared. [ 108 ] At that point, the father disclosed the strategy he had devised with the mother in the spring. The father regretted it. He now wanted to resume his place with the children.

This time, it was well and truly over between him and the mother, he said. His aunt, Ms. C, who lives in [Island A] in the United States, wanted to help him. The father trusted her. [ 109 ] Once the surprise had died down, the caseworkers decided to trust the father. He appeared determined and seemed to be well

supported by his aunt. The aunt hired lawyers from one of the big Montreal law firms for him. The father agreed to undergo a psychological evaluation with Dr. Van Gijseghem, who concluded that the father is a man who is mostly dependent. He is submissive to the mother, who is a woman who needs to control everything because of her anxiety. [ 110 ] The aunt then took the father in hand. She gave him a place to live. She found him work. The father regained a measure of stability. He started to visit with his children again. He rented apartments in Canada, where he visited the children without supervision.

The father also started working on his own issues. He took classes to become a better parent and made real progress. [ 111 ] In short, the Director of Youth Protection was encouraged and so was the Court. The children visited with their father regularly and it was going well. [ 112 ] During this time, however, the maternal grandparents were not as happy to see that the father and aunt were being so assertive in the intervention plan. For them, the father still had a great deal to prove. Furthermore, the aunt appeared to want to take up all the children’s time.

They doubted her good faith and feared her influence. [ 113 ] As for the mother, she was disturbed to see the father [ translation ] “let her down”. Seeing that the aunt and father were presenting a united front to drive her children away from her, increased tension between the adults. [ 114 ] The events that followed ultimately revealed that this

chapter was nothing more than a pointless detour in the intervention plan. [ 115 ] Indeed, in April 2019, when the hearing for the review of the situation was to conclude before Berardino J., the father informed the parties that he had called an end to his relationship with his aunt and his lawyers.

The father said that his aunt had manipulated him to stay away from the mother, which he never actually wanted. [ 116 ] The aunt went from being miraculous to being malevolent. [ 117 ] The father, who was now supported by other few family members, argued that his aunt only wanted to get hold of the children. [ 118 ] The Court may never know. [ 119 ] But the result of the parents’ shifting positions is that their credibility was eroded and their judgment called into doubt. [ 120 ] Consequently, in June 2019, although the parents strongly opposed the aunt Suzan having contact with the children, the Director wanted the Court to order it.

The Director argued that the aunt had established a connection with the children. Months earlier, the father had urged the Director to trust his aunt, who was investing in the children. The Director found it very difficult to understand that she had become “ persona non grata ”. [ 121 ] The Court finally decided not to grant this request because it appeared pointless to put the children at the centre of new conflict.

The aunt, C, disappeared from the family’s lives. [ 122 ] Since then, the parents have blamed the Director for not following their plan to reunite the family. [ 123 ] Perhaps. [ 124 ] But the parents must admit that, with all their double-dealing, lack of transparency, and 180-degree reversals of position, the caseworkers’ trust must surely have been shaken. [ 125 ] Also, during the summer of 2019, the father’s situation was still far from stable. The aunt had put the father out.

He once again found himself without a home and without a car. [ 126 ] This was not very reassuring with respect to the parents’ stability. [ 127 ] The caseworkers now wanted to ensure that the children would be stable in their daily lives with the grandparents, and decided to tighten the controls. The father now had to see his children at the youth centre. He refused because he said that his visits had been unsupervised for months. The father preferred not to see his children if he could not see them at the grandparents’ home. [ 128 ] At that stage, the Court’s trust had been severely tried.

It decided to grant the Director’s application and allow her to unilaterally decide the terms of supervised contact between the parents and the children. [ 129 ] In the fall of 2019, the maximum placement periods had been reached and the parents’ situation remained unstable. The Director therefore recommended that the children be maintained with the grandparents until they reached the age of majority.

The caseworker informed the parents that with all the reversals in the situation over the last two years, their lack of transparency, and her remaining concerns about their personal difficulties, her analysis had led her to make this recommendation. [ 130 ] While Z and Y’s future was being decided, the mother became pregnant with X. [ 131 ] The parents did not tell the caseworker. [ 132 ] The parents did not tell the Court either during the hearings to review Y and Z’s situation in September, November, and December 2019, and January 2020. [ 133 ] Also, during these hearings, the parents did not seem aware that they had contributed to [ translation ] “creating a gulf” between themselves and the caseworkers.

They also did not seem to realize that their lack of transparency was not reassuring to either the caseworkers or the Court.

[ 134 ] Anyone reading the transcript of the four days of the hearing held before Berardino J. would understand that the parents were mostly reacting to the Director’s interventions. Considering the parents’ share in making the intervention chaotic, their reaction was disproportionate. [ 135 ] The mutual distrust that settled in was not caused by the Director alone.

After reading the emails sent by the parties and the transcript, the Court notes that the parents were under the impression that everyone but themselves is to blame for the fact that they do not have their children. [ 136 ] And from that moment, the fight against the Director became a major focus. Any intervention by the Director was perceived by the parents as an attack on their rights or on their children’s rights. For example, the parents criticized one of the caseworkers because she spoke to their son at school when she ran into him.

The parents stated that she had no right to do so without their authorization since they still had the exercise of this parental right. The casworker had therefore committed a fault, they claimed. [ 137 ] The Court is of the view that the child would have been sad had the caseworker he knew ignored him when they crossed paths at school. There is nothing reprehensible in what she did. On the contrary. It is kindness and good manners. There are rights, obviously, but there is also the ability to use judgment.

That is what this caseworker did, and she did so correctly. [ 138 ] While reading the file, the Court was also concerned by the parents’ remarks in 2019 and 2020, when they said that their children were their property or when they brought up President Trump, as if he could have an impact on the outcome of the dispute or contribute to the solution.

The parents also used social media to denounce the actions of the Director, as if that could be of any use to settling the dispute. [ 139 ] All this is a far cry from what the Court would expect from a parent who is stable and wants to demonstrate his or her ability to meet the needs of his or her children. [ 140 ] All this energy spent on demonstrating the Director’s smallest flaws pulled the parents’ focus away from the essential and only real issue.

Had the parents resolved their personal problems, and if so, was it in the interest of the children to return to live with them? [ 141 ] While all these issues were about to finally be resolved, X was born in the greatest secrecy, without a doctor or any prenatal care. X lived with her parents for seven months before anyone found out. [ 142 ] When the Director found out about her, there was a report. The Director went to the parents’ apartment to assess the situation. That was her responsibility.

Had she not done so, she would have been blamed. [ 143 ] This intervention took an unnecessarily dramatic turn. [ 144 ] First, the parents should have expected it. They cannot claim to have been surprised because they had taken care to hide X’s birth, afraid that the child would be taken from them. When the caseworkers arrived, instead of calmly cooperating with the predictable intervention, the intervention became oppositional and drawn out.

The father filmed the scene. [ 145 ] Had the parents cooperated with this intervention instead of seeking to use it to find fault with the Director, the Director might have found an interim solution. She might have considered leaving X with them and asked them merely to undertake to go to the hospital to see whether the child was in good health. X may have not been taken away. [ 146 ] But that was impossible.

The situation was so strained during the intervention that no rational conversation was possible. [ 147 ] Obviously, in hindsight, the parents realized that they had made a mistake by failing to reveal X’s birth. But at the time, the distrust was such that this seemed to them to be the only reasonable path. The parents thus contributed to making the situation more complicated.

And of course, when the caseworkers decided to entrust X to foster care, the conflict only solidified more. [ 148 ] This is the context in which the Court had to intervene, first provisionally on an application by the father for X to be moved from the foster family to a maternal uncle’s home, which the Court granted some time in early March. [ 149 ] It should be noted that, during the new hearing on the merits for the three children, which took place on March 22, 29, 30, and 31, there was a very different atmosphere from the one that existed when the case was heard before Berardino J. over a year earlier. [ 150 ] Today, coming back to the core issue, the evidence of the grounds of endangerment that may or may not justify the Director of Youth Protection’s involvement reveals the following. [ 151 ] The parents now acknowledge that they made a bad decision by hiding the mother’s pregnancy and having the mother give birth without medical assistance because they were afraid that X would be taken from them.

It was a lapse in judgment. Everyone has said so, be it the grandparents, Dr. Van Gijseghem, or the father’s step-mother. [ 152 ] Once with her foster family, X was seen by a physician who confirmed that there were no concerns. The parents also claim that if anything whatsoever had happened, they would not have hesitated to bring their daughter to hospital. [ 153 ] The Court believes them. [ 154 ] But the fact remains that X had to be diverted through a foster family and her uncle’s environment, due to her parents’ lack of judgment. It is inaccurate to believe that X’s withdrawal was only the Director’s fault.

Distrust clouded the parents’ judgment, and guided the Director’s. [ 155 ] That is what happens when the parties no longer trust each other. [ 156 ] That being said, there has been progress since 2019.

[ 157 ] Admittedly, the mother has an anxiety disorder and that includes a reflex to overprotect and to distrust, but it does not prevent her from exercising her parental responsibilities. [ 158 ] As recommended by Dr. Bélanger, the mother has attended about 50 appointments with a therapist, Ms. McCormick, to better handle her anxiety disorder. [ 159 ] Ms. McCormick testified that she has worked relentlessly to help the mother react better to anxiety-inducing events. She has given her tools. She has taught her to think more before acting. The mother now meditates.

She is trying to take a step back instead of making impulsive decisions. [ 160 ] While it is true that not all the problems have been solved and that the mother must remain vigilant, Ms. McCormick states that, at the moment, the Director is unintentionally contributing to the mother’s anxiety and this hinders her progress. [ 161 ] Ms. McCormick has also taught the mother to make a plan B if the father ever started being controlling or aggressive again. [ 162 ] As for the father, he has not relapsed into drug use since 2016. This problem had originally helped fuel the conflict between the parents.

The psychiatric evaluation by Dr. Van Gijseghem describes the father as a dependant man, but one without a personality disorder that would limit his parental capacity. [ 163 ] The father also took classes to become a better parent. There have been no reprehensible acts against the children since 2017. The father even enjoyed unsupervised visits for some time, and the Director had nothing out of the ordinary to report. [ 164 ] For several months in the last year, the father went with the mother to some appointments with Ms. McCormick to work on relationship issues. Ms.

McCormick has taught the parents to use non-violent communication. [ 165 ] Ms. McCormick acknowledged that, in January 2020, she did not recommend that the mother return to live with the father. Instead, she suggested at the time that the mother live with the maternal grandparents to be with her children. However, since taking on the follow-up care of both parents, she has concluded that their relationship is now healthier and that they are capable of forming a team to care for the children. Ms. McCormick claims to feel reassured. [ 166 ] The grandparents also claim to feel reassured.

The grandfather says that he sees changes in his daughter and in the father. The interaction between the mother and father is positive. He says that when the parents used to fight, his daughter regularly called him, asking him to get involved. He has not had a call from his daughter since she resumed living with the father. [ 167 ] The Court grants a great deal of credibility to the maternal grandfather, who has always been honest, whether or not things were going well. [ 168 ] In the last few months, the parents have lived with the grandparents and children every day, all day, and there has been no conflict.

The caseworker says that things are going well. The grandfather claims that he is confident that the parents will be able to resume responsibility for their children. [ 169 ] For four months now, the caseworker has written that she has had access to open, welcoming, and cooperative parents. Distrust has been replaced by trust. Parents and caseworker each exercise their judgment with kindness and without fear of being caught out. [ 170 ] The mother took charge of Z’s education in compliance with the program of the Ministère de l’Éducation.

Z is looking forward to going to [State A], especially since his parents have assured him that the new house includes a room for his grandparents, to whom he is attached because he has been living with them for several years. [ 171 ] The parents have been adequately meeting the needs of X, Z, and Y. [ 172 ] This summer, the family took a short vacation, which went well. [ 173 ] Now, the parents present a more detailed plan than the one they had in March. They are going to live in [State A], where the father has a job and a house.

The paternal grandfather is waiting for them. [ 174 ] The Director would like to ensure follow-up by social services during the transition for a period of six months. Insofar as the parents have a realistic and well-thought-out plan, the Court believes that this follow-up by social services in [State A] will not contribute significantly.

FOR ALL THESE REASONS, THE COURT: GRANTS the Attorney General’s application to dismiss the declinatory exception; ORDERS the removal of the Attorney General as a party; DISMISSES the Director’s applications; DECLARES that the security and development of Y and Z are no longer in danger; DECLARES that the security and development of X are not in danger; ORDERS that this file be closed.

___________________________________ LISE GAGNON, J.C.Q. Mtre Sara De Castro Counsel for the Director of Youth Protection Mtre Geneviève Lafontaine Counsel for the children Mtre Farzad Bigdeli Azari Counsel for the mother Mtre Martin Vaudrin Counsel for Attorney General of Quebec Date of hearing: July 28, 2021