2013 QCCQ 8937, 2013 QCCQ 8937

Protection de la jeunesse — 132006 2013 QCCQ 8937 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] LOCALITY OF [...] Youth Court Division No: 760-41-004329-127 DATE: March 28, 2013 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE BEATRICE CLEMENT, J.C.Q. ______________________________________________________________________ X born [...] Child DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner -and- A, (deceased) -and- B JC0B11 Parents ______________________________________________________________________ JUDGMENT ______________________________________________________________________ CAUTION : The Youth Protection Act provides that within the framework of this Act, no person may publish or broadcast information allowing a child or the child's parents to be identified.

Whomsoever contravenes this

article is guilty of an offence and is liable to a fine [articles 11.2.1 and 135 Y.P.A.]. [ 1 ] The Director of Youth Protection presents a motion for protection concerning the child X , born on [...] . [ 2 ] The motion alleges that the security and the development of the child are in danger in reason of a situation of abandonment. Within measures of aid and counsel for six months, the Director proposes that Court entrust the child to his maternal grandparents, while allowing a progressive reintegration in foster care.

[ 3 ] The Court joins the hearing with that of the child's uterine sibling, Y . [ 4 ] The Court dispenses service of the motion to the father, who is of unknown address and uninvolved in his son's life since infancy. The child's attorney confirms her agreement as to the Director's proposal of measures. [ 5 ] ANALYSIS AND DECISION [ 6 ] The child resides with his mother and his half-brother Y . On September 11, 2012, the mother suddenly passes away. Both children are taken in by their maternal grandparents. [ 7 ] The parents separate when the child is but a few months old.

The father ceases contacts shortly thereafter and the child has no recollection of him. In fact, until summer 2012, the child believes that his father is Mr. C , his mother's estranged spouse and his brother's biological father. [ 8 ]

Article 38 of the Youth Protection Act , defines abandonment as follows: (a) “ abandonment ” refers to a situation in which a child's parents are deceased or fail to provide for the child's care, maintenance or education and those responsibilities are not assumed by another person in accordance with the child's needs; [ 9 ] The evidence demonstrates that the father's abandonment of his son is long-standing. [ 10 ] The maternal grandparents declare being able to receive the children on a short-term basis only, as the responsibilities of two young boys is too heavy a burden for them to shoulder, at this juncture in their lives.

No other members of the extended family are available to invest the brothers on a long-term basis. However, the family does wants to maintain significant involvement with the children. [ 11 ] Mr. C initially testifies that he wishes to care for both children. He states that he has a close relationship with them and considers X as his son. X resides with him during his common life with Ms. A from 2005 to 2008. He exercises access to both children until he leaves for Manitoba in October 2009. Until their mother's death, he communicates with them regularly; via the telephone, social networks or ''face time''.

He further indicates that although their separation was difficult, his relationship with the mother was cordial at the time of her death. [ 12 ] Since leaving the province, he sees the children on one occasion, namely in April 2011, when stays at the mother's home for approximately 10 days. [ 13 ] The Director alleges that Mr. C is not a significant presence in the children's lives due to his overwhelming absence. The mother affirms in various written declarations, that Mr. C has little involvement in the children's lives and is an abusive person with issues as to alcohol, drugs and gambling.

The most recent document dates from September 2011. [ 14 ] The Director also submits that Mr. C has a history of violence, which results in the end of the conjugal relationship with the mother. X remembers being a witness to him choking his mother when he was in kindergarten and phoning 9-1-1.

He pleads guilty to charges of assault against the mother, as well as charges of mischief, uttering threats and failure to comply with a condition of an undertaking, for which he receives a suspended sentence with a 1-year probation. [ 15 ] After considering the evidence, the Court concludes that until his departure for Manitoba, Mr. C assumes a significant place in X 's life. Since then, although Mr. C maintains telephone contacts that augment in the last year, his overall involvement is minimal.

The relationship with the mother evolves to the point at which she receives him in her home in April 2011, which contradicts her affirmations in the requests for service. [ 16 ] The evidence shows that Mr.

C does not provide for X 's care, maintenance nor education. [ 17 ] Consequently, the Court considers that the evidence satisfies the criteria for a determination of abandonment and declares that the security and the development of the child are in danger. [ 18 ] As to the measures, the caseworker testifies to the effect that the plan is a progressive integration in a permanent foster family, while maintaining contacts with the maternal grandparents.

It is unlikely that a resource will be available to receive both siblings, although the Court considers that such would reduce the impact of yet another separation. [ 19 ] At the Court's request, the Director proceeds to an assessment report of the Mr. C 's environment. The father collaborates with this assessment. He presently lives with his parents in a one-bedroom apartment. He wants to eventually receive his son, or both brothers, in his care.

He states his motivation to help the children and hopes that in the next year, he can secure employment and independent living to this end. [ 20 ] The Court cites the conclusions of the said report: Mr. C is not able at this time to provide for X and Y 's immediate physical needs due to his current living situation, and did not share a concrete plan for securing appropriate housing for himself and his children in Winnipeg, Manitoba. He only stated that he would do ''whatever it takes''. Mr.

C recognized the importance of his role as the economic provider for an intact family, but had limited experience in consistently participating in emotional and caregiving responsibilities for X and Y during the relationship and after the separation. Mr. C minimizes or denies his role in incidents of family violence, and is unable to recognize the impact of family violence on children. He blames others for the estranged relationship he has with his children. Mr. C has struggled with addiction issues in the past and says that he is sober.

He is currently struggling with some mental health issues, and faces vocational challenges, but has appropriately used clinical and vocational interventions and support. Mr. C struggles

with impulse control, can admit to inadequacies in his behaviours but denies responsibility. He also struggles with cooperating with the social workers at Centre jeunesse A probably because he feels unrecognized as X and Y 's father. He wants to, at the very least, maintain regular contact with his children. X and Y require that Mr. C continue to collabo-rate with the social workers at Centre jeunesse A and that he cooperates with the children's maternal grandparents. The children require that contact with their father be consistent and safe. (Assessment report, evidence D-16, pages 6-7) [ 21 ] Mr.

C sees X once under supervision, since their mother's death. X is evasive and doesn't seek proximity. He subsequently refuses telephone contacts. [ 22 ] The children have gone through numerous difficult periods in relation to instability in their mother's life (mental and physical health issues, alcoholism) and to elements of domestic violence. They are very close and Y depends on his brother's presence for reassurance. [ 23 ] The children require stability and security to help them develop and heal the pain of their mother's passing.

The situation dictates that they transition anew in alternate, and possibly separate, milieus, which will cause further precariousness. [ 24 ] The Director of Youth Protection requests that the Court take act of the elaboration of a permanency plan for the child. As there are actually no viable family members available to receive the child, it is clear that such a plan would entail his entrustment to an alternate milieu on a long-term basis. [ 25 ] The Court considers that it is premature to proceed to a permanency plan for X .

More particularly, it is imprudent at this stage, to disassociate the brothers situations. They share common histories and needs. Their interests dictate that their futures remain intertwined. They constitute each other's family environment. [ 26 ] The Court determines that the period of measures serve to verify the extent at which Mr. C will take the necessary steps to implicate himself and occupy a significant place in his son's life, and alternately, in X 's life.

As evolution of the situation remains possible and the provisional period of placement is not expired, the Court considers that the measures, and the Directors mandate, must continue to privilege the brother's common interests. [ 27 ] The Court further considers that it is appropriate to foster the relationship between X and Mr. C . [ 28 ] The evidence demonstrates that a bond exists between Mr. C and X , its significance hobbled by the history of conjugal violence, the absence of contacts and probably, a measure of unresolved anger on X 's part. Until last year, he considers Mr. C as his father.

His feelings need to be the object of exploration and clarification, as they are in stark contradiction to his brother's, who retains an affectionate response to his father. [ 29 ] FOR THESE REASONS, THE COURT: [ 30 ] GRANTS the motion; [ 31 ] DECLARES that the security and development of the child are in danger; [ 32 ] ENTRUSTS the child to his maternal grandparents; [ 33 ] PERMITS the progressive integration of the child in a foster family, within the term of the present measures; [ 34 ] RECOMMENDS the integration of the child in the same foster family as his brother; [ 35 ] SUSPENDS the father's access rights; [ 36 ] ORDERS that the contacts between the child, his brother X and significant extended family members, be fostered; [ 37 ] ORDERS that contacts between Mr.

C and the child be determined following mutual agreement between the parties as to modalities, frequency and degree of supervision, and in respect of the child's expressed wishes; specifically, [ 38 ] PERMITS Mr.

C to have contacts with the child by phone or other technological means, as determined by a specific calendar to be elaborated with the Director of Youth Protection; [ 39 ] ORDERS that a person working for an institution or body provide aid, counseling or assistance to the child and his family for six months; [ 40 ] ENTRUSTS the situation of the child to the Director of Youth Protection of the Centre Jeunesse A for the execution of the measures. __________________________________ BEATRICE CLEMENT, J.C.Q. Me Caterine Caron Attorney for the Petitioner

Me Karine P. Poissant Attorney for the child Dates of hearing: November 23, 2012, January 30, 2013