r v. B, 2016 QCCQ 6482

Protection de la jeunesse — 162649 2016 QCCQ 6482 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-005007-151 760-41-005006-153 760-41-005004-158 760-41-005005-155 DATE: April 18, 2016 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X, born [...], 2009 Y, born [...], 2004 Z, born [...], 2002 A, born [...], 1999 Children ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner v.

B C Parents ________________________________________________________________ JUDGMENT ______________________________________________________________________ WARNING: The Youth Protection Act forbids the publishing or broadcasting of information allowing for 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 (sections 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] The Director of Youth Protection presents motions for protection concerning the siblings X, Y, Z and A, alleging that their security and development are in danger in reason of physical and educational neglect. In order to respond to the situation of endangerment, the Director seeks the application of various protective measures for 6 months, while maintaining the children in their maternal environment. [ 2 ] The mother consigns her admissions.

She contests the situation of endangerment alleged by the Director, stating that she has addressed her difficulties and is receiving a comprehensive package of services.

She presents that the further implication of the Director of Youth Protection is not justified and asks that the Court dismiss the motions for protection. [ 3 ] At the Director’s request, the Court dispenses service of the proceeding to the father, who is incarcerated in the United States and has had no contact with the children for numerous years. [ 4 ] After evaluating the evidence and in consideration of her mandates, the attorney for the children considers that the Director of Youth Protection fails to meet its onus demonstrating a situation of endangerment. [ 5 ] Context [ 6 ] Until December 2015, the mother resides with the children in the family home.

In reason of his incarceration, the father has no contacts with the children since 2009.

[ 7 ] In the last years, social services intervene punctually in regards to the family, yet there are no long term services put in place, nor previous judgments or agreements for the application of voluntary measures. [ 8 ] The mother states having requested aid from social services on a few occasions, mostly for financial support, but was always disappointed by the response. She is mistrustful of their interventions and generally uncooperative. [ 9 ] Over time, the family home becomes increasingly uninhabitable.

Repeated incidents of flooding, inadequate heating and upkeep contribute to the general degeneration of the family’s environment, including the pervasive presence of mould throughout the house. [ 10 ] The mother tries to maintain her home and makes certain efforts to improve the family’s living conditions, but personal challenges and a precarious financial situation impede any tangible improvements. She is unable to secure financing to undertake the repairs required as she has no clear title on the home, which she declares to belong to her husband and the paternal grandmother.

Furthermore, she states having a conflictual relationship with the paternal grandmother which leaves little in the way of resolution. [ 11 ] The Environmental Health Officer of the [Council A] inspects the home in 2014 and 2015. The resulting reports underline that the mould present vitiates the air quality in the house. The home is cluttered and poorly maintained.

Overall, the conclusion is that the condition of the house constitutes a health hazard and recommendations include that it be vacated until specific repairs are made. [ 12 ] The mother testifies not having been made aware of the recommendations of the first inspection in 2014. [ 13 ] Problematic issues exist as to the children’s school attendance and performance. Frequent absences and academic weakness is particularly present in the situations of Y and X. At the end of the previous school year, they are maintained at their present level. [ 14 ] During the summer 2015, the maternal grandmother passes away.

The mother states that this is a particularly difficult period for the family, as the maternal grandmother was a source of both financial and emotional support. [ 15 ] [Child and Family Services A] evaluates the situation of the children as of November 2015. The mother is openly uncooperative. She considers their implication unnecessary and invasive.

She refuses to sign authorizations allowing the Director to communicate with the school authorities or medical professionals. [ 16 ] In early December 2015, services are coordinated and mediated between [Child and Family Services A] and a family advocate from the Town A to solicit the family moving out of the home in view of the potential health risks.

As of December 10, 2015, the mother and her children reside in the [center A] of their community, in transitional housing. [ 17 ] On December 16, the Director presents the motions for protection, citing endangerment in reason of neglect on the physical and educational levels. [ 18 ] Since leaving her domicile, the mother participates in daily programming, dealing with issues of domestic violence, parenting, addiction, anger management, grief, self-esteem, nutrition, mind body and self.

She completes a 6 week educational program and is presently actively participating in a longer program. [ 19 ] The mother cannot secure financing for the repairs required on the house, as the title is unclear. She testifies to recognizing that the family’s return is not an option. The mother is actively seeking permanent housing for herself and her children by making applications through the appropriate authorities.

She states having espoused the wish to remain in her home, but recognizes that this is no longer a viable solution for her family. [ 20 ] The children are now assiduously attending school and show improved academic performance. [ 21 ] A progress report of the family’s evolution at the [center A] (M-1) offers a positive assessment of the mother’s participation in services and response to her children’s needs, concluding as follows: B continues to be a proactive parent and addresses the needs of her children when they arise. [ 22 ] While recognizing that the family’s situation improves following their leaving the family domicile, the Director cites many concerns as to the mother’s ability to continue her participation in the services required, her determination to return to the family home and a history demonstrating a lack of involvement as to her children’s needs.

These factors justify their continued implication. [ 23 ] As to the allegation of neglect educational level, the Director cites the children’s absenteeism and the mother’s lack of implication in their school follow-ups.

The fact that the mother refuses to cooperate with their services in signing authorizations is also put forth to justify the conclusion of neglect. [ 24 ] When questioned as to the additional services that can be offered by [Child and Family Services A], the caseworker suggests counselling for the mother and the entire family because of their involvement in hardships as well as possible grief counselling following the loss of the maternal grandmother. [ 25 ] Requests as to receiving copies of the children’s identity and health cards are to verify that the children benefit from their full coverage.

In view of the alleged danger that the mother returns to the family home, the Director further asks for an order of entrustment conditional to the children remaining at the [center A]. [ 26 ] Analysis and decision [ 27 ] The Youth Protection Act is a law of exception, applying measures in the cases of children of whom the security and/or development are in danger.

[ 28 ] In order to evaluate an allegation of endangerment, the Youth Protection Act stipulates the following: 38.2. A decision to determine whether a report must be accepted for evaluation or whether the security or development of a child is in danger must take the following factors into consideration: (

a) the nature, gravity, persistence and frequency of the facts reported; (

b) the child's age and personal characteristics; (

c) the capacity and the will of the parents to put an end to the situation in which the security or development of the child is in danger; (

d) the community resources available to help the child and the child's parents. [ 29 ] This intervention follows a particularly intense period of difficulties for the family, which add to an already fragile dynamic and difficulties resulting from a complex personal situation.

The mother makes efforts to address the needs of her children, but the evidence demonstrates that she is overwhelmed by these, which results in the situation degenerating on all levels. [ 30 ] The Court cannot retain that the mother was unaware of the recommendations emitted in October 2014 concerning the house, namely that the house was not habitable and constituted a danger for its occupants.

Even if such is the case, she was aware of the evaluation and certainly failed to actively take steps to be informed of the recommendations in order to take appropriate steps. [ 31 ] These numerous issues compound until the mother finally recognizes that her continued habitation in her home is impossible, and she decides to leave with her children in December 2015. [ 32 ] Notwithstanding, the evidence is convincing to the effect that the mother will not return to the home. She is not the owner and does not have the financial resources to make the renovations required to make the house habitable.

Furthermore, at the present time, there is a contentious issue with the paternal grandparents and the father, the registered owners, which prohibits the mother from reclaiming the property. As such, the Court retains that the mother has moved on and is seeking lodgings elsewhere with her family and that she further understands that her return to the house in its present state is contrary to her interests. [ 33 ] A comprehensive set of services are presently in place for the family, to which the mother is participating and collaborative.

The children are going to school on a regular basis and doing relatively well. Y presents certain behavioural issues to which the mother attends to with the support of the [center A]. [ 34 ] At the present time, the family’s situation is more stable and the mother is taking the necessary steps to receive services and respond to her children’s needs. [ 35 ] The Director bases much of its evaluation on hypotheses and hearsay, which are largely contradicted by the mother.

Citing significant events in its report (namely complaints received in the past), the Director chooses to not present direct evidence of the facts brought forth. [ 36 ] As an example, the consideration that ‘’The mother has had alcohol and drug abuse allegations that have been made against the mother need to be addressed’’ is denied by the mother and furthermore unsubstantiated by the evidence (Report to the Court).

That ‘’the mother uses excessive force when she discipline the children’’ is also the fruit of hearsay and cannot be retained by the Court to underscore an alleged situation of endangerment. [ 37 ] The mother’s refusal to collaborate with [Child and Family Services A], to remit the children’s cards or sign authorizations are not probative issues within the evaluation of a situation of endangerment and such is not stated by the legislator as factors of consideration.

Such factors are pertinent in the determination of protective measures, after the determination of the situation of endangerment. [ 38 ] The evidence demonstrates three elements which can be considered as proven and probative in the situation put forth by the Director. Firstly, the derelict state of the family home. Secondly, the mother not having responded adequately to such state, although the physical well-being of its occupants were being affected.

Third, the mother’s not seeking services in view of the family’s difficulties. [ 39 ] Although the Court certainly recognizes the challenges and the requirement of services, such were clearly in place when the motions were presented and furthermore, the mother has continued to demonstrate an intention to pursue these, as has been the case in the last months. [ 40 ] Consequently, after having evaluated the evidence, the Court determines that the Director fails to discharge its onus of demonstrating a situation of endangerment in reason of neglect. [ 41 ] The Court also evaluates the situation of the children in relation to a serious risk of neglect.

This reason of endangerment permits the Court to retain the necessity of measures in order to prevent a situation of neglect. To retain this situation, it is necessary that the evidence demonstrate an elevated probability that a situation of neglect will occur, the whole in function of the factors of

article 38.2, as cited above. [ 42 ] Again, the evidence does not justify this conclusion. The mother’s choices and efforts to date clearly overshadow the difficulties faced previously and stem the nature of the risk present, which doesn’t reach the qualification required by law to justify the application of protective measures.

[ 43 ] Such would certainly be different should the mother choose to return to the family home or fail to pursue the ongoing services. [ 44 ] FOR ALL THESE REASONS, THE COURT: [ 45 ] DISMISSES the motions for protection. __________________________________ BÉATRICE CLÉMENT, J.C.Q. Me Sarah Gaudry Staub Attorney for the Petitioner Me Michel Robert Attorney for the mother Me Karine P. Poissant Attorney for the children Date of hearing: February 15, 2016