2016 QCCQ 4801, 2016 QCCQ 4801

Protection de la jeunesse — 162921 2016 QCCQ 4801 JO0374 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] Youth Division No: 525-41-030209-159 DATE : May 17, 2016 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE KAREN OHAYON, J.C.Q. ______________________________________________________________________ IN THE CASE OF: X Born [...], 2015 Director of Youth Protection A Applicant A Father B Mother ______________________________________________________________________ JUDGMENT (Section 38, Y.P.A.) ______________________________________________________________________ WARNING : Within the framework of the Youth Protection Act, no person may publish or broadcast information allowing a child or the child's parents to be identified.

Any person who contravenes this provision commits an offence and is liable to a fine (Y.P.A. sections 11.2.2 and 135). [ 1 ] The present judgment renders and gives reasons for a decision taken under advisement on April 12, 2015.

The Director of Youth Protection, (the Director), is asking the Court to declare that the security or development of the child is endangered as a result of a serious risk of negligence as well as psychological ill-treatment. [ 2 ] The child is currently entrusted to a foster home and the Director is recommending that the child remain in placement for a further six months along with a social follow up.

The objective of the intervention plan is to progressively reintegrate the child to her father’s home considering his remarkable progress since the beginning of the Director’s involvement. [ 3 ] The parents admit the majority of the allegations of the motion and consent to the measures proposed. [ 4 ] The child’s lawyer consents to the measures as well, being of the opinion that the proposal is in the child’s best interests. However, she raises an issue in relation to the Director’s application of the interim measures ordered on January 14, 2016 .

Essentially, it is alleged that the child was removed from the foster home of her maternal grandmother without judicial authorization and in breach of the interim order as rendered. [ 5 ] By doing so, she considers that the Director failed to properly apply the order and that consequently, the child’s rights were wronged. She asks the Court to take judicial notice of that fact in accordance with

section 91 in fine of the Youth Protection Act (the Act) but concedes that no additional measures would serve to rectify the situation. [ 6 ] The parents are of the same opinion and support the motion as presented. [ 7 ] The Director argues that the child’s rights were respected since the choice of foster home remains the Director’s prerogative. Alternatively, she submits that the decision to change foster families was made in good faith and should not lead to the conclusion that the child’s rights were wronged.

Issue [ 8 ] The only subject of contention concerns the respect, or lack thereof, of the child’s rights by the Director in the application of the interim measures. The issues to be determined by the Court are as follows: [9] Question 1: Did the Director remove the child from her grandmother’s home in violation of the interim measures

ordered on January 14, 2016? [10] Question 2: If so, did the violation of the order by the Director cause the child’s rights to be wronged? [11] Question 3: If so, what remedies, if any, should be applied? The state of Endangerment [12] The child’s situation was signalled to the Director on [...], 2015, the day after her birth.

The evaluation conducted over the following weeks by the youth protection delegate establishes that: - the mother consumes marihuana and did so during her pregnancy; - the father consumes marihuana regularly and has a criminal record for drug-related offences; - the parents have limited financial resources and are unable to adequately provide for the child’s basic needs; - the parents have a volatile relationship and argue frequently in the presence of the child; - the parents’ history indicates a lack of stability, a transient lifestyle and consumption issues; - their residence is unhygienic and disorganised; - the parents have difficulty taking on basic day to day responsibilities; [13] Prior to the release of the child from the hospital, various community organisations were solicited in order to provide the parents with a network of support and follow-up.

Their apartment, although small and sparsely furnished, was adequate and contained all the necessary materials for the child. [14] Both parents cooperated with the numerous professionals involved but were quickly overwhelmed by the extent of their new responsibilities. [15] By mid-September 2015, the apartment was infested with rats and cockroaches, the parents were facing eviction and their lifestyle was generally chaotic and disorganised. [16] Their relationship deteriorated in the process, resulting in escalating conflict, hostility, aggression and increased drug consumption, some of which occurred in the presence of the child. [17] On September 18, 2015, the mother left the residence in reaction to the situation.

Her impulsive and prolonged departure from the home led to the child’s emergency placement in a foster home on September 22, 2015. [18] On September 30, 2015, at the request of the Director, the Court ordered the entrustment of the child to the maternal grandmother, C, along with other provisional measures. A date for the main hearing was scheduled for December 10, 2015. Conclusion on the state of endangerment [19] The evidence produced establishes a state of endangerment for both reasons as alleged by the Director, namely a serious risk of negligence and psychological ill-treatment.

Each parent has acknowledged the numerous issues that have been identified. Moreover, they concede the negative impact on their daughter. [20] The parents are young and ill-equipped to deal with the responsibility of a child without proper preparation and support. The risk of negligence is apparent in the parent’s disorganised lifestyle, lack of structure and instability as observed by the youth worker. [21] Furthermore, their toxic relationship is a significant obstacle to the child’s well-being.

Although communication between the parents is minimal at present, their shared responsibility will require contact between them in the short and long term. It is essential that the child be protected from exposure to the animosity that has consistently characterized their relationship.

The interim measures [22] Following the order for provisional measures, the parents’ animosity towards each other persisted for over a month until they ceased communication altogether. [23] During the month of November 2015, both parents took steps to integrate parent-child resource centers, namely [center A] for the mother and [center B] for the father. [24] Although both parents appeared motivated to work on their difficulties, the father’s collaboration with the youth worker was inconsistent and lacked transparency. [25] Meanwhile, the child was doing well at her grandmother’s home as indicated in the Court Report: “X is doing well and reaching all her milestones.

Ms. C reports that X is an easy and playful baby. She is currently sleeping through the

night. X appears very attached to her maternal grandmother and aunt, Ms. D, who babysits her on a daily basis. X appears comfortable with both her parents. [1] ” [26] In December 2015, the youth delegate summarized the evolution of the situation as follows: “The parents are well intentioned and motivated to parent, however their situation remains unstable, while X’s vulnerability remains high. (…) Both parents lack knowledge on child rearing practices and require support in building the skills set required to adequately respond to X’s needs. Although the parents present with similar concerns, Ms.

B has acknowledged them and demonstrated a genuine desire to care for X in a safe manner and is prepared to do so in a structured setting as provided by [center A]. Even though Mr.

A has mobilized and obtained services from [center C] and [center B] to address the concerns to meet X’s instrumental needs, he continues to deny other risk factors and to lack transparency thus causing concerns in his ability to care for X on a daily basis [2] .” [27] Consequently, the youth delegate, [Social Worker 1], proposed an interim measure for the dual purpose of allowing both parents to further stabilize their situation while integrating the child to her mother’s care at [center A] before a final recommendation was made.

The Director’s proposal was formulated in the following terms: “ORDER that X be entrusted to a foster home, taking note that the home be that of her maternal grandmother, Ms. C, until January 15, 2016; ORDER that X be fully integrated into her mother’s care by January 15, 2016 on the condition that Ms.

B reside at [center A]. [3] ” [28] After giving the parties an opportunity to be heard, the Court rendered on December 10, 2015, among others, the following interim measures: ORDERS that the child be entrusted to the foster home of the maternal grandmother, C, until January 15, 2016; ORDERS that the child be fully integrated into the care of her mother by January 15, 2016 on the condition that the mother reside at [center A]. [29] The main hearing was scheduled to continue on April 12, 2016.

It was expected that the child would already be integrated to the care of her mother at [center A] by then. [30] On January 14, 2016 , a motion for provisional compulsory foster care was heard as a result of mother’s decision to leave [center A].

She felt unable to adjust to the rules and expectations of the resource and the child could therefore not be integrated into her care as provided by the previous interim measures. [31] The recommendation in issue was drafted by the Director as follows: “ORDER that the child, X be entrusted to a foster family, chosen by [center D], for a maximum period of thirty (30) days; TAKE NOTE that the child is in the foster home of her maternal grandmother; [4] ” [32] The Court granted the motion on January 14, 2016 in the following terms: ORDERS that the child remain entrusted to the foster home of the maternal grandmother C; TAKES NOTICE of the consent of all parties that the order remain until the next hearing date, April 12, 2016, before the honourable judge Karen Ohayon; ORDERS that the frequency and modality of contacts between the child and the parents be determined by the Director of Youth Protection; The alleged breach of the january 14, 2016 interim order [33] On January 22, 2016, youth delegate [Social Worker 3] removed the child from the maternal grandmother’s home and placed her in a foster home unknown to the child and her family. [34] It should be noted that Ms. [Social Worker 3] was not present at the hearing on April 12, 2016, having been replaced two months earlier by a new worker, [Social Worker 4].

As a result, the reasons for the abrupt transfer are unclear. [35] From the evidence presented, it appears that [Social Worker 3] formed the opinion that the maternal grandmother was not respecting the restrictions that she had imposed regarding contact between the mother and child.

It seems that the grandmother would have allowed the mother to be in the home without the Director’s approval. [36] Subsequently, and without the Court’s authorization, the child was removed from the only home that she had known since birth and placed with strangers. [37] It should be noted that the evidence presented does not establish with any degree of certainty what actual restrictions Ms. [Social Worker 3] imposed regarding contact with the child at that time and whether they were adequately communicated to the grandmother. As already mentioned, [Social Worker 3] was not available to testify.

[38] From the grandmother’s testimony, the Court concludes that she sincerely believed that the mother was authorized to visit. She explains that if she had known of the alleged restrictions, she would have respected them. [39] Ms. [Social Worker 3] provided the grandmother with no opportunities for explanations or discussion. The six month old child was removed summarily and without notice while the grandmother was absent from the home. [40] The relationship between the mother and the youth delegate suffered greatly as a direct consequence.

The mother, feeling betrayed, took a step back from the situation in order to maintain control of her emotions. Cooperation and communication took a back seat until Ms. [Social Worker 3] was no longer in the picture. Contact between the mother and the Director has only been re-established since March 22, 2016, following [Social Worker 4]’s replacement of [Social Worker 3]. The final measures [41] Since the hearing on December 12, 2015, the father has fully cooperated with all the professionals involved in his situation. He is still at [center B] and will soon be moving into their supervised apartment program.

He has also been consistently attending the “[center C]” program, the [programme A] and the social follow-up appointments. [42] These various services have served to help him acquire the skills to care for his daughter. Currently, there are no longer any concerns regarding basic care. At present, the focus of the [programme A] is to help with child stimulation and budgeting. [43] Visits with his daughter occur three times a week; overnights have recently begun and will continue weekly.

He is unquestionably attached to his daughter and completely focused on her needs when in her presence. [44] The father is undoubtedly committed to assuming full time care of his daughter. Nevertheless, he recognises that he needs more time to prepare for her arrival in order to ensure long-term success. Support and monitoring during the integration period is essential. [45] In the worker’s opinion, the father also needs to consider participating in services designed to deal with his drug use.

Although he insists that he never consumes marihuana in his daughter’s presence, total abstinence would certainly improve his capacity to adequately parent his child. [46] Regarding the mother, concerns exist pertaining to her circumstances since leaving [center A]. According to [Social Worker 4], she now resides with her boyfriend who has a lengthy criminal record and a history of youth protection involvement regarding his own children.

Nevertheless, the overall situation remains unclear given the mother’s lack of participation in the follow-up until recently. [47] Supervised visits between the mother and her child have been reinstated and are going well. The follow-up is slowly progressing. [48] After careful consideration of the evidence, this Court concludes that the Director’s proposal to maintain the child in a foster home for a further six months with social follow-up is in the best interests of the child. [49] The father’s dedicated participation in numerous services has demonstrated his commitment to his daughter.

Over the next few months, it is expected that he will solidify his personal situation while progressively taking over her care. [50] At the same time, the mother will have access to services that will allow her to develop her parental skills and build a positive relationship with her daughter. [51] The intervention will also provide the opportunity for the parents to learn how to communicate appropriately in the interest of their daughter.

The position of the parties regarding the breach of the child’s rights [52] The Director’s lawyer argues that only the Director has the authority to designate a foster family for the purpose of interim measures.

Although she acknowledges that the actual order does in fact specify the foster home of the maternal grandmother, the Director’s lawyer considers that the Court did not have the jurisdiction to render such an order. [53] While she concedes that the proper course of action would have been to apply for a revision in Superior Court, the Director chose not to do so. [54] The Director further speculates that Ms. [Social Worker 3] may have misinterpreted or misunderstood the court order and considers that her good faith should be taken into consideration. [55] Given that Ms. [Social Worker 3]’s state of mind is not in evidence, the Court will abstain from such an exercise. [56] The child’s lawyer argues that the Director obtained the consent of the parties to the January 14 th interim measures, hers in particular, as a result of the fact that the grandmother was already the designated choice .

In her opinion, the order reflects the spirit of the agreement and the choice made by the Director and any change required prior judicial authorization. [57] In the circumstances, she considers that Ms. [Social Worker 3]’s decision to precipitously change homes deprived the child of her right to remain in her grandmother’s home as well as the right to be adequately prepared for such a drastic change. She asks that the Court take judicial notice of situation but concedes that no further measures are required. [58] The parents both support the position expressed by the child’s lawyer.

Analysis [59]

Section 91 of the Act in fine provides that: “Where the tribunal concludes that the rights of a child in difficulty have been wronged by persons, bodies or institutions, it may order the situation to be corrected.” [60] A review of the case law on the subject establishes that the terms of

section 91 confer upon the Courts the power to declare of its own volition a breach of a child’s rights [5] . [61] In Protection de la jeunesse – 214 , the Court states: « …l’article 91 donne (au Tribunal), en quelque sorte, pour des cas très spécifiques et de manière ponctuelle, un pouvoir qui s’apparente à un pouvoir de surveillance et de contrôle. » [62] In other words, the law confers upon the Youth Court a power of supervision and control in exceptional cases. [63] Examples of situations giving rise to the Court’s intervention include the inadequate application of a court order as well as the transfer of a child from one resource to another without proper consultation and preparation. [64] The absence of prejudice or, as in the case at hand, the absence of an appropriate remedy, is not an obstacle to declaring a breach of the child’s rights. [65] In the words of Justice Marie Pratte: [145] Tout d’abord, l’atteinte à un tel droit ne doit pas être confondue avec le préjudice qui peut en découler.

Il est en effet possible que les droits d’un enfant aient été lésés, mais que ce dernier n’en subisse plus de préjudice au moment où le Tribunal examine la question. [146] Les droits d’un enfant peuvent donc avoir été lésés sans que preuve ne soit faite de l’existence, pour l’enfant, de séquelles tangibles [6] . [66] In the course of this exercise, the Court is not required to determine fault or responsibility but simply to identify the rights in question and to conclude as to whether or not they were respected. [67] At this stage, it appears relevant to note that on September 30, 2015, the Court originally entrusted the child to the maternal grandmother.

This followed a positive evaluation of the grandmother by the Director. The placement of the child with the grandmother was never called into question at any point in time prior to the January interim measures. [68] We’ll recall that following this, in December 2015, the Director asked the Court to entrust the child to a foster family and take notice that the foster family would be that of the maternal grandmother.

The Court ordered, along the same lines, that the child be entrusted to the foster family of the maternal grandmother. [69] The Director’s request to go from “entrustment” to “foster family placement” in December was the direct result of the grandmother’s approval as a “proximity foster family”.

This administrative change, which in fact has no bearing on the application of the Youth Protection Act, consequently led to an agreement between the parties for a modification of the child’s placement status. [70] Although the legal nature of the placement was modified, the evidence clearly establishes that the parties never envisioned that this would have an impact on the child’s placement. [71] On two occasions, the Court chose to name the grandmother specifically regardless of the wording of the Director’s recommendations.

This choice was deliberately made in recognition of the context and in order to preserve the rights of the child to stability and care within her extended family. [72] By doing so, the Court did not designate a foster family but rather confirmed a choice that had already been made by the Director. [73] That being said, the Director was required to either respect the order as rendered or take the proper legal recourse to have the decision overturned.

Disregarding the order was not an option. [74] The Court adheres to the words of our colleague, Mario Gervais: [30] Une abondante jurisprudence, unanime de surcroît, rappelle les devoirs de la Directrice d’exécuter et de mettre en œuvre les décisions de la Cour, indépendamment de son opinion quant à leur bien-fondé.

En cas de désaccord, les recours en révision judiciaire, le cas échéant, et en appel peuvent être exercés par la Directrice. [31]

En cas de bris d’ordonnance par la Directrice, cette jurisprudence comporte habituellement des commentaires sévères, incluant des blâmes à son égard [7] . [75] In the case at hand, by disregarding the order as well as the spirit in which it was rendered, the Director also disregarded the child’s rights as provided by the Act, specifically:

Section 3: Decisions made under this Act must be in the interest of the child and respect his rights.

In addition to the moral, intellectual, emotional and material needs of the child, his age, health, personality and family environment and the other aspects of his situation must be taken into account.

Section 7: Before a child is transferred from one foster or facility maintained by an institution operating a rehabilitation centre to another foster family or facility maintained by an institution operating a rehabilitation centre, the child’s parents and the child himself, if he is capable of understanding, must be consulted. The child must receive the information and preparation necessary for his transfer”. [76] The result produced an unfortunate chain of events that cannot today be rectified.

The child was deprived of her right to be cared for by significant members of her family with whom she had most certainly developed a bond. [77] The decision to remove the child appears to have been made impulsively, without due consideration to the child’s well-being and development given her age and vulnerability. [78] The manner in which the decision was carried out was thoughtless and hurried, allowing no time for adjustment or preparation. [79] The mother’s subsequent distrust and anger towards the youth protection worker drastically affected the lines of communication between the two.

As a direct result, the mother has had very little contact with her daughter since then. For the same reasons, the grandmother has had none. [80] The evidence as a whole demonstrates that the child’s rights were in fact breached by the Director. [81] At this point, the plan to reintegrate the child to her father’s home renders the option of returning the child to her grandmother unworkable. Although there are a few months to go before the reintegration is completed, the child would not benefit from another displacement in the interim.

C onclusion [82] Question 1: Did the Director remove the child from her grandmother’s home in violation of the interim measures ordered on January 14, 2016? [83] Yes. The order was formulated in such a way that the Director had no discretion to make a change without first obtaining judicial approval. [84] Question 2: If so, did the violation of the order by the Director cause the child’s rights to be wronged? [85] Yes. The violation of a court order is in fact a breach of the child’s rights.

In this case, the child was abruptly removed from the home of an extended family member, without preparation and without due consideration to her best interests. Thus, the child’s rights under

section 3 and 7 of the Act were violated. [86] Question 3: If so, what remedies, if any, should be applied? [87] The proposed recommendations best serve the child’s interest. Displacing her again would surely exacerbate this unfortunate situation. All parties are of the opinion that she should remain in her current foster home until reintegration is complete. The Court agrees.

No additional measures are required in these circumstances. [88] REGARDING THE DIRECTOR’S MOTION FOR PROTECTION : [89] THE COURT: [90] GRANTS the motion; [91] DECLARES that the security and development of the child are endangered as a result of a serious risk of negligence and psychological ill-treatment; [92] ORDERS that the child remain entrusted to a foster home chosen by [center D]; [93] ORDERS that contact between the child and her parents be determined in accordance with an agreement between the parties, failing which, the frequency and modality of contacts will be determined by the Director of Youth Protection and ORDERS that contacts with the father be encouraged; [94] ORDERS that all potential babysitters for the child be approved by the Director of Youth Protection; [95] ORDERS that both parents abstain from consuming all mood altering substances when in the presence of the child; [96] RECOMMENDS that both parents undergo random drug testing at the request of the Director of Youth Protection and TAKES JUDICIAL NOTICE of their consent to do so; [97] RECOMMENDS that the mother complete a substance abuse assessment and follow through with any recommendations and TAKES JUDICIAL NOTICE of her consent to do so; [98] RECOMMENDS that the father participate in a program that addresses conjugal violence and anger management; [99] RECOMMENDS that the father continue to attend a parenting program and collaborate with the services of an educator;

[100] RECOMMENDS that the mother participate in a program that addresses conjugal violence; [101] RECOMMENDS that the mother engage in a parenting class or program; [102] ORDERS that a person working for a Child and Youth Protection Centre provide aid, counsel and assistance to the child and her family; [103] THE WHOLE until October 12, 2016. [104] REGARDING THE MOTION BY THE CHILD’S LAWYER TO DECLARE THAT THE CHILD’S RIGHTS HAVE BEEN WRONGED : [105] THE COURT : [106] GRANTS the motion; [107] DECLARES that the child’s rights under

section 3 and

section 7 of the Youth Protection Act have been wronged by the Director; [108] ORDERS that a copy of the judgment be sent forthwith to the Commission des droits de la personne et des droits de la jeunesse . SIGNED IN TOWN A On May 17, 2016 __________________________________ KAREN OHAYON, J.C.Q. Me Marie-Josée Paiement Attorney for the D.Y.P. Me Luce James Attorney for the child Me Guy-Luc Grondin Attorney for the mother Me François Pelletier Attorney for the father Dates of hearing: December 10, 2015 and April 12 and May 17, 2016