2015 QCCQ 10584, 2015 QCCQ 10584

Adoption — 1577 2015 QCCQ 10584 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] Locality of [...] Youth Division No. 615-43-000230-149 DATE: January 23, 2015 ______________________________________________________________________ BY THE HONOURABLE MARC OUIMETTE, J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1], in his capacity as Director of Youth Protection of the Centre jeunesse A , having a place of business at […] in City A , District A , […] Petitioner and X, born on [...], 2011 Child−respondent and A Mother−respondent and B Father−respondent ______________________________________________________________________ JUDGMENT ON A MOTION FOR A DECLARATION OF ELIGIBILITY FOR ADOPTION (articles 543, 544, 559, 560, 561 and 562 C.C.Q., articles 110, 119, 175.2(3( a )), 813, 813.5 and 824.1 C.C.P., and section 71(4) Y.P.A.) ______________________________________________________________________ WARNING: The judicial files respecting the adoption of a child are confidential and no information that would allow the identification of the child, the child’s parents or tutor, or the adopters may be published or broadcast, except as required by law (article 815.4 of the Code of Civil Procedure and

article 582 of the Civil Code of Québec ). Introduction [ 1 ] The Director of Youth Protection seized the Court of a motion seeking to have X , born on [...] , 2011, judicially declared eligible for adoption. [ 2 ] The petitioner alleged that the parents did not in fact assume the child’s care, maintenance or education in the six months preceding service of the application, that is, from August 13, 2013 to February 13, 2014. [ 3 ] The mother was present at the hearing and assisted by an attorney. The child was absent, but was represented by an attorney.

The father was absent, although duly served. [ 4 ] The prospective adopters already care for the child as a foster family since May 17, 2012. Under a March 7, 2013 decision by Madam Justice Denyse Leduc, she was entrusted to them until her majority. [ 5 ] The mother contested the motion because she currently lives in City A and it is now easier for her to maintain contact with her daughter.

From birth until August 13, 2013 [ 6 ] The child lived with her parents from her birth ( [...] , 2011) until March 2, 2012, and she has lived with a foster family since. [ 7 ] The parents signed two agreements on voluntary measures, one for the period from September 15 to December 12, 2011, and the other from December 12, 2011 to March 19, 2012. [ 8 ] Between March 2 and March 5, 2012, the child was placed in a foster family under immediate protective measures. A decision on provisional measures extended the placement until March 19, 2012.

[ 9 ] Then followed a first placement in a foster family until September 14, 2012, which was extended until March 7, 2013. [ 10 ] On that date, Madam Justice Denyse Leduc ordered X ’s placement in a foster family until she reaches her majority. [ 11 ] Consequently, X has lived in a foster family since March 2, 2012; she was only seven months old at the time.

At the start of the reference period, in August 2013, she had been living in a foster family for over one and a half years. [ 12 ] From March 19 to September 14, 2012, the parents scheduled 10 contacts and seven took place. [ 13 ] From December 2012 to March 7, 2013, one single contact took place between the mother and the child, on March 6, 2013. [ 14 ] From March 7 to August 13, 2013, the parents saw their daughter five times.

Reference period from August 13, 2013 to February 13, 2014 [ 15 ] The motion for a declaration of eligibility for adoption was served to the parents on February 13, 2014. [ 16 ] During the reference period, the mother saw her daughter only once, on October 3, 2013. The father was absent at the time of the contact; he was incarcerated. [ 17 ] The parents have communicated very little with the foster family since the placement began. [ 18 ] During the reference period, the parents called three times, on October 22, 2013, November 15, 2013, and February 7, 2014.

They also gave their daughter a Christmas present, but she received it in February 2014. [ 19 ] During visits, the mother spoke to her daughter in English and Algonquin, despite the fact that she is growing up in a unilingual French environment. As a result, it is more difficult to bond. [ 20 ] The mother stated that she has to meet with the child at the youth protection centre, where it is difficult to establish a quality relationship. [ 21 ] The child reacts during contact and appears anxious.

Sometimes, she cries, shouts and clings to the foster mother’s neck. [ 22 ] The child has a significant attachment relationship with the foster family. She calls the parents [TRANSLATION] “Mommy” and [TRANSLATION] “Daddy”, and shows them a great deal of affection. [ 23 ] The mother contested the motion. She told the Court that she received services from the youth protection centre in French, and that the expectations, and even less an eventual adoption plan, were never clearly explained to her in English. [ 24 ] She testified that she moved to City A to be closer to her daughter.

She finds it difficult that her child lives in a unilingual French environment. [ 25 ] The mother admitted going through a difficult period when she used to drink a lot, particularly when the father was released from prison. The situation has changed, as she ended her relationship with the child’s father and has been sober since the summer of 2014. [ 26 ] The [Centre A] is a great support for her. The centre provides her with services to help her reorganize her life. Law [ 27 ] The provisions of the Civil Code of Québec relevant to the study of the situation are the following: 543.

No adoption may take place except in the interest of the child and on the conditions prescribed by law. No adoption may take place for the purpose of confirming filiation already established by blood. 1991, c. 64, a. 543. 559. The following may be judicially declared eligible for adoption: … (2) a child whose care, maintenance or education has not in fact been assumed by his mother, father or tutor for at least six months; … 1991, c. 64, a. 559; I.N. 2014-05-01. 561.

A child may not be declared eligible for adoption unless it is unlikely that his father, mother or tutor will resume custody of him and assume his care, maintenance or education. This unlikelihood is presumed. 1991, c. 64, a. 561; I.N. 2014-05-01. 33. Every decision concerning a child shall be taken in light of the child's interests and the respect of his rights.

Consideration is given, in addition to the moral, intellectual, emotional and physical needs of the child, to the child's age, health,personality and family environment, and to the other aspects of his situation. 1991, c. 64, a. 33; 2002, c. 19, s. 15. [1] [28] In accordance with the teachings of the Court of Appeal, the Court must proceed with a three-step analysis: 1) Constater que « ni les père et mère ni le tuteur n’ont assumé de fait le soin, l’entretien ou l’éducation depuis au moins six mois »(art. 559 (2) C.c.Q.); 2) Si tel est le cas, déterminer si les père et mère ont repoussé la présomption à l’effet qu’il est improbable que l’un d’entre eux « enreprenne la garde et en assume le soin, l’entretien ou l’éducation » (art. 561 C.c.Q.); 3) Si tel n’est pas le cas, exercer, dans l’intérêt de l’enfant, la discrétion que notre Cour lui a reconnue dans les arrêts Droit de lafamille-1544, (QC CA), [1992] R.J.Q. 617 (C.A.) et Droit de la famille-1914, (QC CA), [1996]R.J.Q. 219 (C.A.).[2] Analysis First step [29] Did the parents fail to assume the care, maintenance and education of the child during the six months preceding service of theapplication for eligibility for adoption? [30] For this step, the assessment of the parents’ involvement must be objective, as taught by the Court of Appeal in Droit de lafamille – 1544: Le juge de l'adoptabilité doit statuer, à partir des faits, à savoir si les parents assument de fait le soin, l'entretien et l'éducation de l'enfant.

Il est des cas difficiles, des circonstances particulières, qui l'amèneront à conclure que le parent - y compris le parent handicapé mental -qui n'assume pas de façon conventionnelle, assume néanmoins.

Mais cela ne signifie pas que celui ou celle qui n'assume pas du tout,assume pourtant, uniquement parce que, incapable de le faire, il ne mérite aucun reproche.[3] [31] In this case, the evidence shows that the child was placed in a foster family until she reaches full age, and that during thereference period there was only one visit and three phone calls from the mother, and a present. [32] It is up to the petitioner to establish by preponderant evidence that the respondents did not assume the care, maintenance andeducation of the child. [33] In her March 7, 2013 decision, Madam Justice Denyse Leduc ordered the child X’s placement in a foster family until full age,and also ordered the Director of Youth Protection to oversee the parents’ visits with the child (minimum visits, three hours once amonth, supervised by a third party).

Therefore, during the reference period, the parents did not satisfy that minimal requirement of atleast one three-hour visit per month. [34] As to this step, the Court concludes that the parents failed to assume the care, maintenance and education of the child during thesix-month period preceding the service of the motion. [35] The Court of Appeal has outlined the reasoning to follow when analyzing the evidence at this stage: [47] La Cour, à l'occasion de trois arrêts de principe, a fixé les critères qui doivent guider le juge de première instance dans ladifficile tâche d'apprécier la probabilité d'une reprise en charge d'un enfant.

Je les rappelle brièvement. [48] En premier lieu, la capacité parentale doit être appréciée non de manière générale, mais spécifiquement en relation avecl'enfant dont il s'agit : la capacité de donner des parents ne suffit pas, encore faut-il aussi que l'enfant puisse recevoir utilement ce que lesparents ont à offrir[16].

Cela suppose la possibilité d'établir un lien affectif avec l'enfant dont la preuve incombe, encore une fois, auxparents. [49] En second lieu, notre Cour a exigé que le parent fasse la preuve que la reprise de contacts avec son enfant est dans le meilleurintérêt de ce dernier[17]. [50] Enfin, toute la preuve soumise dans le cadre de l'article 561 C.c.Q. doit être analysée sous l'angle de l'enfant, non sous celui deses parents et sans référence aux intentions de ces derniers[18].[4] [36] The Court of Appeal also determined that a specific plan to resume responsibility for the child was necessary in order to rebutthe presumption of

article 561 C.C.Q.: (…) Le fardeau de renverser la présomption impose plus que la simple démonstration d'une possibilité de reprise en charge, encore que cettepossibilité, s'il en est, est ici bien vague. (…) Il faut donc conclure qu'en l'absence d'un certain projet de reprise en charge (et non seulement d'un désir de reprise de contacts), la

deuxième condition d'une déclaration d'admissibilité à l'adoption s'est également réalisée, celle de l'

article 561 C.c.Q. [5] Second step [ 37 ] Did the parents rebut the presumption that it is unlikely they would resume custody of their daughter and assume her care, maintenance and education ? [ 38 ] The mother has made efforts since receiving the motion for adoptability. She moved to City A and ended her difficult relationship with the child’s father. She is getting help from the [Centre A]. Thus, there are a number of indications that the mother is taking charge and getting her life in order. [ 39 ] The Court believes that the mother is not ready to resume responsibility for the child.

X has spent most of her young life with her current foster family, and has developed an emotional bond with the family. [ 40 ] The father was absent and no longer appears to have ties to his daughter. The mother’s contact was too infrequent to develop an emotional bond and to enable the significant attachment that binds children to their parents. [ 41 ] The Court notes that the mother does not have a specific plan to resume responsibility for X , that she is still reorganizing her own life, and that her efforts are belated: too little, too late.

Therefore, it concludes that the parents have not rebutted the presumption that it is unlikely they will resume custody of their daughter and assume her care, maintenance and education.

Third step [ 42 ] Although the parents have not assumed the care, maintenance and education of the child during the reference period, and despite the unlikelihood that they will resume responsibility for her, is it in the child’s interest to be declared eligible for adoption ? [ 43 ] The Court must assess the analysis of the child’s interests in light of the passage of time and the significant bonds. [ 44 ] The Court must also take into account that the child is of Aboriginal origin (Algonquin). [ 45 ] My colleague, Madam Justice Anne-Marie Jones, states in Adoption – 1212 : [591] La décision du Tribunal doit être prise en fonction du meilleur intérêt de l'enfant et dans le respect de ses droits.

Bien entendu, dans le cas d'un enfant autochtone, cet intérêt est pris dans son sens large et doit tenir compte des particularités culturelles et coutumières autochtones. [592] Cependant, le meilleur intérêt de l'enfant autochtone ne correspond pas nécessairement à celui des membres de sa communauté.

En effet, de la même façon que l'intérêt de l'enfant peut primer à l'occasion sur celui du titulaire de l'autorité parentale s'ils entrent en conflit [78] , « l’intérêt supérieur de l’enfant ne saurait être négligé ou bafoué au profit de l’intérêt supérieur du groupe [79] ». [593] Le droit d'un enfant d'appartenir à sa communauté doit être analysé de son point de vue, à partir de sa situation.

L'enfant est maintenant reconnu comme sujet de droit et conserve en toute circonstance son identité propre et son individualité distincte de celles de ses parents et de sa communauté. [594] La question du meilleur intérêt de X doit non seulement être analysé du point de vue de son héritage culturel, mais en tenant compte de l'ensemble de sa situation personnelle, c'est-à-dire, de son âge, de sa personnalité, de ses difficultés et de ce qu'elle a vécu depuis sa naissance en terme de liens affectifs et de déplacements. [6] [ 46 ] Contrary to my colleague, the Court was not given the opportunity to hear evidence on the repercussions of interracial adoption. [ 47 ]

Article 33 of the Civil Code of Québec [7] states that in assessing the child’s best interests, consideration must be given to the moral, intellectual, emotional and physical needs of the child, as well as the child's age, health, personality and family environment, and to the other aspects of the situation. [ 48 ] Concerning the child’s Aboriginal status, the Supreme Court ruled in Racine v. Woods that: The law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests.

In determining the best interests of the child, the significance of cultural background and heritage as opposed to bonding abates over time: the' closer the bond that develops with the prospective adoptive parents the less important the racial element becomes. [8] [ 49 ] The Court of Appeal judges, in M.-K.K. , [9] remind us that it is undeniable that a child’s Aboriginal identity is a very important factor, but that the change in filiation by adoption within the meaning of provincial legislation has no legal impact on the status of a child of Aboriginal origin as defined by the Indian Act . [10] [ 50 ] The evidence in this case does not support the conclusion of a high failure rate of interracial adoptions of Aboriginal children or the problems those children have in adolescence. [ 51 ] It would have been desirable for the child to grow up in her community, but the circumstances resulted in her placement with a non-native family instead of an Aboriginal one.

The decision to place her outside her community at a young age has prevented her from maintaining cultural and family bonds, and has resulted in her developing an attachment relationship with a non-native family. [ 52 ] It is contrary to the child’s best interests to deprive her of the only family she has known and with which she has forged emotional bonds. Although the mother is not in favour of the adoption, the circumstances of the case argue for the adoption.

[ 53 ] The Court concludes that the genuine interest of the child is to maintain the stability that she enjoys with her current foster family.

THEREFORE, THE COURT: [ 54 ] GRANTS the motion for a declaration of eligibility for adoption; [ 55 ] DECLARES JUDICIALLY ELIGIBLE FOR ADOPTION X , born on [...] , 2011; [ 56 ] CONFERS parental authority in respect of the child to the Director of Youth Protection of the Centre jeunesse A ; [ 57 ] ORDERS the provisional execution of this judgment, notwithstanding appeal; [ 58 ] ORDERS the clerk to send a certified copy of the judgment on the motion for a declaration of eligibility for adoption to the Director of Youth Protection, as well as the attorneys for the mother and the child; [ 59 ] THE WHOLE, WITHOUT COSTS. __________________________________ MARC OUIMETTE, J.C.Q.

Mtre. Tania Bélanger Centre jeunesse A Counsel for the petitioner Mtre. Sylvie Gourd for Mtre. Claude Cossette Counsel for the child−respondent Mtre. Mylène Grondin Bigué, Avocats Counsel for the mother−respondent Mtre. Angèle Tommasel Counsel for the father−respondent Dates of hearing: November 25 and 26, 2014 [8] Racine c. Woods , [1993] 2 SCR 173 , page 174 .