2018 QCCQ 14877, 2018 QCCQ 14877

Protection de la jeunesse — 185459 2018 QCCQ 14877 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF […] COMMUNITY OF […] Youth Division No: 640-41-002042-163 DATE: July 9, 2018 ______________________________________________________________________ BY THE HONOURABLE RENÉE LEMOINE, J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X, born on […], 2016 [SOCIAL WORKER 1] , youth protection worker, duly authorized by the Director of Youth Protection of A Applicant v.

A , residing and domiciled at […] Mother ______________________________________________________________________ JUDGMENT (sections 95(2) and 75 of the Youth Protection Act ) ______________________________________________________________________ WARNING: The Youth Protection Act prohibits the publication or broadcast of information allowing for a child or the child’s parents to be identified.

Every person who contravenes this provision is guilty of an offence and is liable to a fine (ss. 11.2, 11.2.1 and 135 Y.P.A .). [ 1 ] The Director of Youth Protection (the Director) submitted an application to the Court for the review of a decision rendered on November 1, 2017. [ 2 ] The applicant requested a placement of the child until he reaches the age of majority to a foster family, namely Mr. C and Ms. D. [ 3 ] The mother does not agree and asks that the child be returned to her. THE ISSUES [ 4 ] The security and development of the child are still in danger.

He was entrusted to a foster family on September 9, 2016, which was 20 months ago. [ 5 ] The maximum duration of foster care under s. 91.1 of the Youth Protection Act has been exceeded [ 6 ] Is this situation an exception under paragraph 4 of

section 91.1, where it is expected that the child will be returned to his family in the short term? THE EVIDENCE AND ANALYSIS [ 7 ] On November 1, 2017, the Honourable Lucille Beauchemin rendered a decision to entrust the child to a foster family until March 23, 2018.

She ordered that the Director prepare a life plan for the child. [ 8 ] The child reached his maximum placement period in September 2017, but the Director wanted to give him time to attach and bond with his foster family. [ 9 ] The Court wishes to recall the facts giving rise to the child’s need for protection. [ 10 ] On January 26, 2016, the Director received a report because the mother gave birth on […], 2016, and she left the hospital

without the baby to return [home]. [ 11 ] In March 2016, voluntary measures were signed and the child remained in the mother’s care. [ 12 ] On August 27, 2016, the mother was found highly intoxicated in the presence of her children. That same day, the child was found in the garbage, severely wounded with scratches and bruises on his face, arms and legs, and barely dressed. He was hospitalized due to a fever and pneumonia. It is not possible to determine the mother or the grandmother is responsible for the injuries.

Both accuse the other of scratching and bruising the child. [ 13 ] The mother admitted she had no recollection of what happened that day. She clearly stated that she did not want to take care of the child anymore. She has not developed a maternal bond with the child. She was ambivalent but is thinking about placing him for adoption. [ 14 ] From September to December 2016, a maternal aunt fostered the child. In April 2017, the Director was informed that the foster mother was intoxicated and verbally aggressive. The child was placed in another foster home on an emergency basis.

The foster mother expressed remorse and the child was given back to her. [ 15 ] On August 21, 2017, it was discovered that the foster mother had been physically abusing the child for over a year. [ 16 ] According to the revision report, since his birth in January 2016, the child was removed 18 times until he was returned to the current foster home of Mr. and Mrs. C-D. [ 17 ] On November 1, 2017, Lucille Beauchemin J. stated in her decision: “… Since the last hearing, the mother has been able to improve her situation.

However, she has not changed her mind regarding the child X as she does not want to take care of him .” [ 18 ] She also wrote the following at paragraphs 12 and 13: [12] The child has already been through many traumatic events. He is young and vulnerable. His mother has never developed a loving and caring attitude towards the child. He was unexpected, and the mother never accepted her pregnancy. [13] The assessment of the protection needs for the child is presented in the Revision Report, at 7: It is obvious that X no longer has a relationship with his mother.

They are estranged as they have spent little to no time together and therefore no bond has been formed. This is a direct result of the fact that the mother has stated on more than one occasion that she does not want to have X under her care. X has finally found an appropriate foster home who is fully accredited which can provide all that he needs; love, affection, stability, security, as well as a continued connection to his culture.

Although X has reached his maximum delays in placement in September 217, a majority placement would not be ideal at this time as the DYP would prefer to reserve some tie to properly allow X the time to attach and bond with his current foster family. ( sic ) [ 19 ] The evidence shows that there is no bond between the child and his mother. Except at the last hearing, she has always maintained the position that she did not want to have the child under her care. On that occasion, she asked the Court to return the child to her care immediately.

The Court is of the opinion that the position taken by the mother revealed a lack of sensitivity to the child’s interest and needs. [ 20 ] Between the last Court decision and the last hearing, the mother and the child had contact only twice. She did not ask for news from the foster family or through the applicant. [ 21 ] In Protection de la jeunesse – 10174 , Justice Gagnon recalled the purpose of the legislation in establishing periods of foster care that may not be exceeded.

He stated [1] : [70] L'intention du législateur apparaît des propos de la ministre tenus lors de la Commission parlementaire des affaires sociales le 5 juin 2006 : […] c'est le nœud, l'article 22, l'article 52 sont le nœud en fait important de ce projet de loi là.

Si le gouvernement a choisi d'introduire des durées maximales de placement, c'est que le gouvernement souhaite mettre fin à ces nombreux allers-retours que les enfants vivent, les enfants qui sont sous la protection de la jeunesse, que les enfants vivent régulièrement. […] Ce qu'on souhaite faire avec l'adoption, si les parlementaires le souhaitent, c'est vraiment donner de la stabilité aux enfants, leur donner la possibilité de vivre une vie plus normale, une vie qui va leur permettre de s'attacher, d'aller à l'école, d'avoir... j'utilise le mot « stabilité » parce que c'est le mot qui est le plus important à mon avis, puis « stabilité », ça veut dire aussi... il faut coller à ça toute la question de la compromission au niveau du développement de l'enfant. […] Ce n'est pas le choix que nous avons fait, nous avons fait le choix d'aider les parents, de les accompagner à mieux exercer leur capacité parentale, mais, dans les circonstances où il y a impossibilité, nous croyons que l'enfant a le droit d'avoir un projet de vie permanent, qui sera évidemment déterminé ou ordonné par le Tribunal de la jeunesse.

[ 22 ] The Court of appeal emphasized the importance of the Court's discretion in the application of s. 91.1. The Court wrote: [2] [71] La lecture de certains jugements de la Cour supérieure et de la Cour du Québec laisse voir que, dans l'ensemble, les tribunaux sont réfractaires à interpréter l'article 91.1 de la Loi comme signifiant qu'une fois la période maximale de placement provisoire atteinte, le tribunal perd son pouvoir d'apprécier la situation de l'enfant[28].

Au cas contraire, sa discrétion se limiterait à sanctionner l'effet juridique de l'écoulement du temps avec comme seule conclusion possible l'ordonnance de mesures permanentes, opinion généralement rejetée par la jurisprudence. […] [94] L'ensemble des dispositions de la Loi attribuant un pouvoir d'intervention au tribunal ne laisse voir, d'une façon ou d'une autre, que la compétence qu'il exerce sur l'enfant s'épuise par le simple écoulement du temps, si ce n'est le cas où l'enfant cesse de l'être lorsqu'il atteint sa majorité.

Toute forme d'automatisme nie la pleine reconnaissance du principe conféré par l'article 3 de la Loi. En effet, une telle interprétation est de nature à priver le tribunal de sa capacité d'apprécier la situation de l'enfant selon son intérêt. Je ne peux donc concevoir que l'article 91.1 de la Loi échappe au principe selon lequel toute décision prise sous son empire doit l'être dans l'intérêt de l'enfant et dans le respect de ses droit. (Citations omitted) [ 23 ] The child is two years old. He experienced very traumatic events and emotional rejection during his early childhood.

It is not sufficient for the mother to change her mind to convince the Court that it will be possible to return the child to her care in the short term. [ 24 ] The mother’s other children are not in the same situation. She has a bond with them. There is no situation of abandonment or emotional rejection. [ 25 ]

Section 2.4(5) of the Youth Protection Act reminds us that a child’s perception of time differs from that of adults. [ 26 ] Over the last two years, the child was not a priority for his mother. She did not try to have regular contact with him in order to develop a bond. Even when it was discovered that he was physically abused by his foster mother, she did not express her intention to take the necessary steps to have her child back. [ 27 ] On August 2017, he was placed under the care of Mr. and Mrs. C-D. He developed an attachment bond with them shortly after his placement.

He shows signs of positive and secure attachment with the foster parent. [ 28 ] The Court must emphasize the child’s interest. In the case of Racine v. Wood , Wilson J. wrote the following at page 185: [3] … But it is the parental tie as a meaningful and positive force in the life of the child and not in the life of the parent that the court has to be concerned about.

As has been emphasized many times in custody cases, a child is not a chattel in which its parents have a proprietary interest; it is a human being to whom they owe serious obligations . … (Underlining added by theCourt) [ 29 ] In the case at bar, there is no preponderant evidence that this situation is an exception under s. 91.1(4) of the Youth Protection Act .

The Court is of the opinion that the life projects for the child respect his right to have stable living conditions in a secure and loving environment. [ 30 ] The foster father specifically stated that he will facilitate contact between the child and his family. He will also promote the child’s Inuit culture by encouraging him to participate in activities in the village and to learn Inuktitut at the daycare, as well as other activities. He has planned to live in the northern territories until his retirement from his job as a teacher.

The child has the opportunity to grow up surrounded by his native Inuit culture. [ 31 ] The foster parents have expressed their wish to take care of the child until he reaches the age of majority. They provide him with everything he needs and ensure his stability, safety and development.

FOR ALL THE ABOVEMENTIONED REASONS, THE COURT: [ 32 ] GRANTS this application; [ 33 ] EXTENDS the decision or order rendered on November 1, 2017; [ 34 ] DECLARES that the security or development of the child X, born on […], 2016, continues to be in danger; [ 35 ] ORDERS that the child be entrusted to a foster family, namely the family of Mr. C and Ms.

D, until he reaches the age of majority; [ 36 ] ORDERS that all contact between the child and the mother and his siblings be determined by the Director with respect to the terms, frequency and degree of supervision; [ 37 ] ORDERS that the mother remain sober in the presence of the child; [ 38 ] ORDERS that the mother refrain from all violent behaviour in the presence of the child; [ 39 ] ORDERS that the mother report in person or by telephone, at regular intervals, to the Director to inform him of the current situation;

[ 40 ] ORDERS that the mother take an active

part in the application of any of the measures ordered by the Tribunal; [ 41 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the child and the child’s family, until […], 2034; [ 42 ] ENTRUSTS the situation of the child to the Director of Youth Protection of A, who shall then see that the measures are carried out. __________________________________ RENÉE LEMOINE, J.C.Q. Mtre Cassandra Neptune Attorney for the child Mtre Sarah Bourgeois Lessard Attorney for the applicant Mtre Angèle Tommasel Attorney for the mother Date of hearing: May 23, 2018