2014 QCCQ 18401, 2014 QCCQ 18401

Protection de la jeunesse — 146452 2014 QCCQ 18401 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-51-000144-149 760-51-000143-141 DATE: September 11, 2014 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X , born […], 2006 Y , born […], 2010 Children ______________________________________________________________________ [SOCIAL WORKER 1], interim assistant Director of Youth Protection of Centre Jeunesse A Petitioner -and- A Father -and- B Mother -and- C Tutor/Mise-en-cause -and- LE CURATEUR PUBLIC DU QUÉBEC Mis-en-cause ______________________________________________________________________ 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 seeking the designation of the maternal grandmother as tutor to the siblings X and Y, born respectively on […], 2006 and […], 2010. [ 2 ] Although the father receives service of the motion, he is not present at the hearing.

Seeing his default to appear, the evidence sustaining his lack of involvement as to his children as well as the children's best interests, the Court proceeds in his absence. [ 3 ] The mother and grandmother globally admit the allegations of the motion and agree with the conclusions sought by the Director. The attorney of the children presents no contestation as to the motion. [ 4 ] Context [ 5 ] The children are subjects of protective measures since August 2010, resulting from a situation of psychological ill treatment (exposure to conjugal violence) and a serious risk of neglect.

Since that time, the children reside with their maternal grandmother, Ms C, and her spouse. In this milieu, both children are evolving positively. They refer to their grandparents as parental figures. [ 6 ] Since the application of protective measures, the mother is collaborative in the intervention. She makes efforts to stabilize her personal situation and, although she still struggles with various personal issues, notably in relation to her mental health and substance abuse, she maintains a significant involvement as to her children.

[ 7 ] The mother resides in the same household as her children until spring 2012, moment at which she moves into her own apartment. Since that time, contacts are regular and the parties are able to agree to a

schedule and conditions, which benefit the children and correspond to the mother's capacities. [ 8 ] The mother agrees that she is unable to respond to her children's needs on a full time basis. [ 9 ] As of the children's removal from their parental environment, the father is generally uninvolved in the intervention. He is unresponsive to numerous requests from the caseworker for meetings. Although he seeks visitation on a few occasions, he fails and/or neglects to follow-through on the establishment of a calendar.

Only two contacts occur since the children's placement - the last on May 12, 2011. [ 10 ] The Director of Youth Protection confirms its intention to withdraw from the children's situation as a result of the tutorship. [ 11 ] The grandmother is aware of the importance of this commitment and is ready to assume this charge as to her grandchildren. She also understands that upon withdrawal of the Director, the children's contacts with their parents will be under her purview.

In this regard, both the mother and the grandmother request that the Court prohibit the contacts between the father and the children, effectively maintaining the judgment in force presently. [ 12 ] Analysis and decision [ 13 ] The Court cites the legislative foundation of the Director's request as provided in the Youth Protection Act : 70.1 If a child is in one of the situations described in

section 207 of the Civil Code and the director has taken charge of the child's situation, the director may apply to the tribunal to be appointed as tutor or to have a person he recommends appointed as tutor if he considers that tutorship is the measure most likely to protect the interest of the child and ensure the respect of his rights. Following the application, the tribunal may appoint a tutor if it considers, in the interest of the child, that such a measure is appropriate. The rules of the Civil Code apply to the tutorship, subject to the provisions of this Act. [ 14 ] As prescribed in the preceding article, the Court must conclude to existence of one of the conditions of

article 207 of the Civil Code , which provides: The director of youth protection or the person recommended as tutor by him may also apply for the institution of tutorship to an orphan who is a minor and who has no tutor, or to a child whose father and mother both fail, in fact, to assume his care, maintenance or education, or to a child who in all likelihood would be in danger if he returned to his father and mother. [ 15 ] Although the mother remains an integral part of her children's lives, her persistent personal difficulties impede her parental capacities.

She recognizes that her children are best left in the care of their grandmother, with whom they have a significant bond as well as sense of belonging. [ 16 ] As for the father, the Court refers to the determinations of the previous judgments providing protective services: ➢ January 5, 2011 (exhibit R-3): [10] Le père n'a pas vu ses enfants depuis la séparation du couple et n'a pas vraiment fait de demande à cet effet.

Madame D précise avoir vu le père à deux occasions depuis le 17 août 2010, soit en septembre et le 13 octobre 2010 et à ces deux occasions, avoir mentionné au père que s'il voulait des contacts il n'avait qu'à en faire la demande. Même si le père mentionne avoir tenté de rejoindre madame D à trois ou quatre reprises, il n'est plus certain s'il a fait une telle demande pour voir ses enfants lors de la rencontre du 13 octobre 2010, mais chose certaine, il n'a pas fait d'appels auprès de madame D après cette date.

The Court authorized the contacts between the father and the children according to an agreement between the parties and in the presence of a third party determined by the Youth Protection Director. The Court further recommends that the Director evaluate the paternal grandmother as a possible third party for the supervision of the contacts, and this, following the father's request to this effect. ➢ March 2, 2012 (exhibit R-4): [8] After an absence of almost one year, the father sees his children on but two occasions since the last judgment, namely on April 14 th and May 12 th 2011.

The father manifests a desire to see his children, but the results testify that he is unable or unwilling to be consistently available. When confronted about this situation by the Petitioner, he explains that he has had to concentrate on other personal issues. [9] The law provides that the Court must consider the passage of time from the children's standpoint. The father's relative absence in the last two years result that he is not a significant person in his children's lives. For Y this is particularly true, as his father has not been present for the larger part of his lifespan.

The evidence also shows that X demonstrates oppositional behaviors after the visits and when scheduled visits were cancelled. (…) [11] At this crucial juncture, the Court concludes that the resurgence of the father in his son's lives would be clearly disruptive, as well as possibly detrimental to the efforts put forth to eventually stabilize them in their maternal environment. Such a disruption may only be justified by the father demonstrating that he is prepared, able and willing to implicate himself in a consistent and

long-term manner in the intervention, and the contacts. The children's interests dictate nothing less. [12] The evidence establishes that no agreement will be forthcoming as to the father's eventual contacts, as the Petitioner considers that a prohibition is now necessary. Consequently, it is misleading to render such an order. [13] Considering the preceding, the lack of information as to the father's present situation and motivation, the Court orders the suspension of his contacts. ➢ June 4, 2013 (exhibit R-2): [15] The father reflects to the Court, his inherent right to contacts with his sons.

Nevertheless, said right is subservient to the children's best interests. The father's inaction in the last two years constitutes an abandonment that overrides his affirmation of change and underscores his inability to become a significant and consistent presence in his children's lives. The children's best interests dictating that their stability be the priority, the Court determines that the status quo be confirmed, therefore that there be no contacts with the father. [16] Notwithstanding, the father may continue to assume his parental role and responsibilities by participating actively in the follow- up.

Within the one-year order, the Court forbids any contacts between the children and their father, with other various measures of aid, counsel and assistance.

The Court also orders the parents to report in person at regular intervals to inform the Director of Youth Protection of their respective situations and takes act of the elaboration of an alternative life plan. [ 17 ] The evidence demonstrates that the father is consistently absent from his children's lives since their placement and this, despite the rights afforded him and the efforts of the Director of Youth Protection to integrate him in the interventions and offer aid, counsel and assistance in the rehabilitation of his parental role.

The determinations of the previous judgments remain current. [ 18 ] The evidence demonstrates that both parents are unable to assume the care of their children and that a return to their care would constitute an endangerment. [ 19 ] As provided by the law, the tutorship brings forth the end of the Director's implication (article 70.2 Youth Protection Act), therefore delegating to the grandmother the decisional role as to the contacts between the children and their parents, in default of a Court judgment. [ 20 ] To this effect, should the Court determine that the appointment of a tutor respects the conditions of the law and is in the best interests of the child, it may further, following

article 70.6 of the Youth Protection Act : When or after the tribunal appoints a tutor, it may prescribe any measure relating to the tutorship that it considers to be in the interest of the child; it may also prescribe, among other things, that personal relations between the child and the child's parents, grandparents or any other person be maintained, and determine how they will be maintained. [ 21 ] The Director's reports on the children's respective situations recommend that the Court confirm the status quo as concerns the parent's access. [ 22 ] As for the mother, the situation is well in hand, as both she and the grandmother are comfortable in their respective roles and respectful of the children's best interests.

The grandmother is able to monitor the visits and ensure that these benefit the children. After hearing the parties on this issue, the Court simply takes act of the existing agreement as to the mother's extended access. [ 23 ] As to the father, the evidence demonstrates that the prohibition order presently in force, remains in the best interests of the children. The grandmother petitions the Court to assume the decision as to this issue and agrees with a prohibition. The mother offers the same position. [ 24 ]

Article 70.6 YPA not only permits a large discretion as to measures, but specifically refers to orders maintaining personal relationships with parents.

Can this include forbidding contacts? [ 25 ] The Concise Oxford English Dictionary (University Press, 11 th edition, revised) defines the verb maintain in the following manner (our underlining): 1. cause or enable (a condition or situation) to continue. 2. keep at the same level or condition (a building, machine, etc.) by checking or repairing it regularly. 3. provide with necessities for life or existence. give one's support to; uphold. 4. assert something to be the case. [ 26 ] The children's interests dictate that any ambiguity as to the father's contacts be dismissed, in order to avoid contentions on this issue, which would invariably destabilize the family unit and consequently, the children.

The grandmother not being comfortable in this role, it belongs to the Court to exercise its jurisdiction. [ 27 ] In this case, to maintain the status of the relationship between the children and their father is to pursue the order prohibiting contacts. Consequently, the Court renders such an order. [ 28 ] FOR ALL THESE REASONS, THE COURT:

[ 29 ] GRANTS the motion; [ 30 ] DEFERS the tutorship of the children to Mrs. C; [ 31 ] ENTRUSTS the children to their tutor Mrs. C; [ 32 ] TAKES ACT of the existing agreement as to the extended access between the mother and the children; [ 33 ] PROHIBITS any contacts between the children and their father, Mr. A; [ 34 ] THE WHOLE without costs. __________________________________ BÉATRICE CLÉMENT, J.C.Q. Me Amélie St-Denis Attorney for the Petitioner Me Johanne Leduc Attorney for the mother Me Maryse Fournier Attorney for the children Date of hearing: September 11, 2014