2022 QCCQ 12072, 2022 QCCQ 12072

Protection de la jeunesse — 227106 2022 QCCQ 12072 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF […] TOWN OF […] Youth Division No: 640-41-002425-202 DATE: October 17, 2022 ______________________________________________________________________ BY THE HONOURABLE NATHALIE SAMSON, J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X, born on […], 2019 [SOCIAL WORKER 1], in her quality of authorized person by the Director of Youth Protection A Applicant and A Mother and B Father ______________________________________________________________________ JUDGMENT ON AN APPLICATION FOR EXTENSION ( sections 95(1) (2) and 75 , Youth Protection Act , CQLR., c.

P-34.1 ) ______________________________________________________________________ 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 commits an offence and is liable to a fine (ss. 9.2, 9.3 and 135 Y.P.A. ). [ 1 ] The Director of Youth Protection has applied under the first and second paragraphs of

section 95 of the Youth Protection Act [1] for the revision and extension of a decision rendered on September 9, 2021, by the Honourable Christian Leblanc, J.C.Q. who declared that the security and development of the child were still in danger. [ 2 ] The Director of Youth Protection is recommending that the child remain in the same foster family to which she has been entrusted since she was about a year old, until she reaches the age of 18 years. This foster family is a non-Indigenous family that does not speak Inuktitut.

They have been living up North for many years and have no plans to move in the next few years. [ 3 ] On May 11, 2022, the child had been entrusted for twenty-three months and the maximum placement period provided by the law had been reached. [ 4 ] At the hearing, the parents admitted that the security and development of their child is still in danger but asked that the child’s placement in a foster family be for a period of one year instead of until the age of 18 years.

After hearing the evidence, counsel for the child told the court that a placement of nine months would meet the child’s needs and be in her best interest. The parents and counsel for the child said that the parents need time to go through the necessary steps to be able to have their child returned to them.

The mother added that she doesn’t want her child to be placed in a foster family that is not Indigenous until she reaches the age of 18 years, because her child will not be able to speak Inuktitut or learn her culture and will not be surrounded by her community. [ 5 ] The Director argued that the best interest of the child is to be placed until she reaches the age of 18 years because the maximum placement period provided for by the law has been reached.

QUESTION IN LITIGATION [ 6 ] Is it in the best interest of the child for the Court to give priority to the child’s stability since the maximum placement period has been reached, as set out in the law, or should the Court give priority to the criteria of the best interest of the Indigenous child as provide for under Quebec law and federal law? [ 7 ] The Director argued that a child is a child, and even an Indigenous child needs stability. The child has been entrusted to the

same foster family since October 4, 2021, and she is adapting very well. The Director added that the parents and the foster parents have a good relationship. The applicant said that the parents are merely scared because the family is not Inuk. [ 8 ] The applicant argued that the parents display alcohol consumption issues and conjugal violence issues and that they have not taken any concrete steps to address their issues. The mother has not completed the steps required to attend the [organism A], as she was supposed to do. The applicant claims the mother left the child in her dirty diapers in September 2021.

In May 2022, the mother failed to bring the child back to the foster family after a visit and she was found heavily intoxicated in the presence of the child. Police assistance was required. In October 2022, the mother was intoxicated and fell to the ground while carrying the child on her back. [ 9 ] The parents admitted their alcohol consumption issues and violence issues. The mother said that the conjugal violence is no longer part of their lives.

The mother explained that one of the social workers with social services told her that she didn’t have to go to [organism A] anymore and this is the reason why she didn’t go. As counsel for the child said, there is a lot of confusion. The mother seems honest and wants to go to [organism A] with her daughter. She is ready to take steps to have her child returned to her. The parents no longer live together and are trying to find solutions to their problems. The mother asked for more access rights. She only sees her child twice a week. She would prefer four times a week.

The foster father stated that the child is always happy to see her mother when they have contact. THE EVIDENCE CONCERNING THE SEARCH FOR A FOSTER FAMILY ACCORDING TO THE LAW [ 10 ] The applicant testified that she asked the parents to provide the names of foster families. The mother called the Director on a regular basis and provided her with the names of possible foster parents for her daughter. One was refused as a foster parent because her own children are presently followed by the Director. The other one had been assessed two years earlier and refused as a foster family.

The Director has not re-assessed this family. The applicant stated that they cannot do more than that. Then, the applicant received the names of the present foster family and stopped the search. [ 11 ] The applicant testified that she did not check in other communities for foster families because she put the best interest of the child first. She preferred to find a family in the same community as the parents than in another community. She added that it will be more difficult to organize contact if the family is outside the community.

The foster home department sent one e-mail to the families in Town A but didn’t receive a positive answer. The applicant does not know how many families have been called, youth services doesn’t have a list. [ 12 ] The mother testified that she would prefer that her daughter be placed in Town B with her family rather than in Town A with non-Indigenous people. The applicant didn’t ask her to find a name outside her community, but she could check with her parents or family who live in Town B. She mentioned that at least she could then have virtual meetings with her daughter every day.

According to the mother, the Director does not want to find a foster family other than the current foster family. ANALYSIS [ 13 ] The Director has not complied with provincial or federal law. The best interest of this Indigenous child is not met.

FEDERAL LAW [2] [ 14 ] According to section 10(2) of the Act respecting First Nations, Inuit and Métis children, youth and families (the federal law ) , primary consideration must be given to the importance for the child of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which she belongs and of preserving the child’s connections to her culture. Section 10(3)(

d) of the law specifies that we must consider 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 . Finally, section 16(1) of the federal law indicates that there is an order of priority to be followed when placing an Indigenous child: (

a) with his parents; (

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

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

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

e) with any other adult. [ 15 ] Clearly, the Director failed to respect these priorities here. [ 16 ] The Director did not reassess on an ongoing basis whether it was appropriate to place the child with a parent or with another adult member of the child’s family, contrary to section 16(3) of the federal law. PROVINCIAL LAW [3] [ 17 ] The alternative living environment of an Indigenous child, under the provincial law, must be in the following order of priority: (

a) the child’s extended family; (

b) the members of his community; (

c) members of a different community of the same nation as the child’s nation; (

d) members of a nation other that the child’s nation; or (

e) any other environment [4] . [ 18 ] It is clear in the present situation that the Director did not make the effort to find a foster family according to the priorities set out under the law. More than that, the Director must enter in the child’s record the reasons justifying the decision that was made [5] . [ 19 ] In the Renvoi à la Cour d'appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis , [6] the Court of Appeal explains the effects, over time, of removing Indigenous children and placing them with non-Indigenous families:

[ translation ] [130] Overrepresentation is a deep-seated problem in Quebec as well, [107] despite amendments to the Youth Protection Act [108] and despite the various agreements entered into between the government and Aboriginal communities. [109] The Viens Commission pointed out this documented fact in no uncertain terms: While many voices were heard, they all point to the same conclusions: the current youth protection system has been imposed on Indigenous peoples from the outside, taking into account neither their cultures nor their concepts of family.

Even worse, many believe the youth protection system perpetuates the negative effects of the residential school system, in that it removes a significant number of children from their families and communities each year to place them with non-Indigenous foster families.

This speaks to the sensitive nature of this issue and the major challenges involved. [110] [131] According to the Honourable Jacques Viens, there is “no doubt that, for Indigenous peoples, the youth protection system has reached its limit”. [111] Indeed, the agreements contemplated in ss. 37.6 and 37.7 of the Youth Protection Act do not allow for the exercise of genuine self-determination, and only one nation has managed to enter into an agreement contemplated in s. 37.5, after nearly 20 years of negotiation. [112] [132] Even more recently, the Commission Laurent reiterated a similar finding: One of the significant consequences of applying the YPA, without adapting it to the realities of Aboriginal peoples, is the overrepresentation of Aboriginal children in the youth protection system.

A number of those who testified pointed out that the current application of the YPA results in negative, if not discriminatory, effects on Aboriginal families and, consequently, the overrepresentation of these children in the youth protection system. [113] [133] This excessive removal of Aboriginal children in Quebec and across Canada by state agents has devastating effects on these children and their communities, as does the fact that the services offered do not take their cultures into account. [114] There are numerous causes of this overrepresentation, although they are interconnected. [ 20 ] Legislative changes in Quebec and at the Federal level came as a result of numerous commissions of inquiry and their recommendations to the government. [ 21 ] The laws have been amended to respect the interests of Indigenous children.

Now, people who are given responsibilities towards the children by law must apply them. [ 22 ] The Director argued that the child’s stability should be the priority. The Court has no choice here but to give priority to the federal law and declare that the Director must reassess on an ongoing basis the appropriateness of the child’s return to her family or to another family member pursuant to section 16(3) of the federal law.

FOR THESE REASONS, THE COURT: [ 23 ] GRANTS in part the application for revision and extension; [ 24 ] REVIEWS and EXTENDS the decision rendered on September 9, 2021; [ 25 ] DECLARES that the security and the development of the child are still in danger; [ 26 ] ORDERS that the child be entrusted to a foster family, chosen by the institution operating a child and youth protection centre, namely Mrs. C and Mr.

D until July 31, 2023; [ 27 ] DECLARES that it is too early to make a decision with respect to a permanency plan, as the Director has not respected the order of priority set out under the federal and provincial laws; [ 28 ] ORDERS that the access rights of the parents be provided by agreement between the parents and the Director and in the absence of agreement, the Court ORDERS the following minimum access rights: - four (4) visits per week including one (1) visit on Saturday from 12:30 p.m. to 6 p.m. and one (1) on Sunday from 12:30 p.m. to 6 p.m.; [ 29 ] ORDERS that the mother take the necessary steps to register for [organism A] with her child as soon as possible; [ 30 ] If the mother completes the program at [organism A], AUTHORIZES the reintegration of the child with the parents; [ 31 ] ORDERS the Director of Youth Protection to note every step taken and the dates of those steps to find a foster family in accordance with

section 131.5 of the Youth Protection Act [7] ; [ 32 ] ORDERS the Director to comply with the law and to file in the court record the list of searches made to find a foster family in Town A and in the other communities before the next court date in accordance with

section 131.5 of the Youth Protection Act [8] ; [ 33 ] ORDERS the Director of Youth Protection to inform the person responsible for youth protection services in the community A of the child’s situation; [ 34 ] In the absence of such a person, ORDERS the Director of Youth Protection to inform the person who assumes a role in child and family services matters in the community A, in accordance with

section 131.8 of the Youth Protection Act [9] and ORDERS that

information to be filed in the court record; [ 35 ] ORDERS the Director of Youth Protection to notify the person informed of the situation in Town A of the date, time and place of the next hearing of this file, in accordance with paragraph 3 of

section 131.15 of the Youth Protection Act [10] ; [ 36 ] If the reintegration with the parents is not possible, ORDERS the Director to solicit the cooperation of the person informed of the child’s situation in Town A to foster the child’s cultural continuity inasmuch as possible, and ensure that the child is entrusted to an alternative living environment, in accordance with

section 131.8 of the Youth Protection Act [11] ; [ 37 ] ORDERS that the parents take an active

part in the application of any of the measures ordered by the Court; [ 38 ] ORDERS the parents to report in person, at regular intervals, to the Director of Youth Protection to inform him of the current situation; [ 39 ] RECOMMENDS that the parents seek help through the Social Services concerning their alcohol, drug and personal issues; [ 40 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the child and the child’s family; [ 41 ] ORDERS the police to cooperate in the execution of this judgment; [ 42 ] ENTRUSTS the situation of the child to the Director of Youth Protection A, who shall then see that the measures are carried out; [ 43 ] The whole until July 31, 2023. __________________________________ NATHALIE SAMSON, J.C.Q.

Mtre Adèle Cyr Cain Lamarre, s.e.n.c.r.l. Counsel for the D.Y.P. Mtre Cassandra Neptune Legal Aid Counsel for the child Mtre Elizabeth Pouliot Counsel for the parents Date of hearing: October 17, 2022