2012 QCCQ 17412, 2012 QCCQ 17412

Protection de la jeunesse — 121553 2012 QCCQ 17412 JD1705 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] CITY OF [...] “Youth Division” Nos.: 405-41-001943-112 405-41-001942-114 DATE: 12 MARCH 2012 ______________________________________________________________________ PRESENT: HONOURABLE JUSTICE MICHEL DUBOIS, J.C.Q. ______________________________________________________________________ IN THE SITUATION OF THE CHILDREN : X born [...] 2005 -and- Y, born [...] 2006 -and- [SOCIAL WORKER 1] AND [SOCIAL WORKER 2] , persons duly authorized by the Director of Youth Protection A, […] Town A, (Québec), district A, […], Petitioner , -and- B , domiciled and residing […], Town B, (Québec), district B, […], -and- C , domiciled and residing […], Town C, Québec, district A, […], The parents . ______________________________________________________________________ JUDGMENT

______________________________________________________________________ And if parents want the courts to help them keep the fondness and affection of their children, they themselves must at least show an interest. [1] [ 1 ] In her detailed petitions of 20 May 2011 amended on 3 June 2011 and 26 October 2011 , the Director of Youth Protection asked the Court once again to review the situation of the children X, now eight years old, and Y, now five years and eight months old. [ 2 ] In particular, the Director asks the Court to revise the judgment of 23 June 2010 concerning these children and their family. [ 3 ] At the outset, the Court recalls that it is important to consider the content of the judgments of 3 December 2008 delivered by Mr.

Justice Guy Lecompte, and of 3 February 2010 and 23 June 2010 (the latter being the one the Court is asked to revise today), to get a good understanding of where this all started and how things now stand. [ 4 ] The record of the two children’s court protection files shows that adjournments were requested and obtained on 10 June 2011, 6 July 2011, 1 November 2011 and 16 December 2011. [ 5 ] As it turns out, this unusual delay did not disrupt the children’s lives, but it allowed the observation that their parents had abandoned them. [ 6 ] On 18 January 2012 , the Court was finally able to proceed, but it had to refuse a new petition for an adjournment from the father’s attorney, who found herself in the uncomfortable position of having a clear mandate from the father but an absent client (like last year). [ 7 ] The Court was privileged with a chance to carefully analyze an abundant body of uncontradicted documentary evidence (exhibits D-1 to D-16). [ 8 ] In essence, the Court concludes that this evidence is reassuring with regard to the enormous progress both children have made in their academic upgrading, and damning with regard to the two parents . [ 9 ] The Court recalls the context described in the judgment of 23 June 2010 explaining, in particular, how and why the children again had to be moved to a new life setting and a new city: Comme leur mère demeure dans une autre ville, desservie par un autre Directeur de la protection de la jeunesse, et comme elle a offert « une collaboration efficace, honnête et transparente depuis le mois de décembre dernier » (pièce D-2, p. 7), il est maintenant question que les enfants se retrouvent hébergés ensemble dans une famille d'accueil de la région où habite leur mère. (paragr. 17) L'idée de séparer les deux enfants paraissant nettement contraire à leur intérêt puisqu'à travers toutes les épreuves vécues, les deux enfants ont au moins eu la mince consolation de les vivre ensemble. (paragr. 18) Pour la mère, de toute façon, il était hors de question que ses enfants soient séparés pour satisfaire les exigences d'un milieu d'accueil qui a fait ce qu'il a pu pour aider ses enfants, mais qui a maintenant atteint ses limites. (paragr. 19) Les enfants continueront donc de vivre ensemble .

Selon le plan de match annoncé par la déléguée, ils intégreront une famille d'accueil dite de dépannage le 25 juin 2010 , ce qui entraînera un autre déplacement, une autre adaptation et peut-être une autre régression… Au cours de cette période de transition, le cadet des enfants bénéficiera d'une intervention chirurgicale le 9 juillet prochain et d'autres examens médicaux approfondis. (paragr. 20) Toutes les parties présentes admettent que nous sommes loin de la situation idéale et conviennent que faute de mieux, le plan de match proposé semble être la moins pire des options disponibles . (paragr. 24) Toutes les parties présentes sont conscientes que ce sont encore les enfants et toujours les enfants qui continueront de payer les erreurs des adultes.

Eux n'ont qu'à suivre le courant, à s'adapter, étant en quelque sorte condamnés à lutter et à réagir pour survivre! (paragr. 25) La mère exprime depuis peu le désir de reprendre ses enfants avec elle. Elle comprend que, pour le moment, son désir ne peut s'actualiser. Après tout, cela fait seulement six mois qu'elle a repris des contacts encore irréguliers avec ses enfants . (paragr. 27) Il faut noter que la mère et son conjoint se disent prêts à travailler et à améliorer ce qui peut l'être et à faire

partie des solutions aux problèmes des enfants. (paragr. 20) [ 10 ] This judgment of 23 June 2010 also expressed an opinion about the situation of the children’s father: Enfin, du côté du père des enfants, c'est le néant! (paragr. 34) Le père semble multiplier les mauvais choix dans sa vie. (paragr. 35) Outre l'idée d'avoir eu un cinquième enfant après être tombé en amour avec une adolescente et d'avoir continué de consommer du cannabis sur une base quotidienne croyant que cela n'avait aucun impact sur la manière dont il s'occupait de ses enfants (jugement du 3 février 2010, paragr. 9), le père a choisi de bouder le Directeur de la protection de la jeunesse parce qu'il le croyait responsable du signalement pourtant prévisible concernant son nouveau bébé. (paragr. 36) Le père s'est évidemment trompé de cible puisqu'il a visé en plein cœur de ses deux enfants innocents, lui qui avait été par la force des choses le seul parent et la figure parentale principale sinon exclusive de ses deux enfants pendant plus d'un an et demi. (paragr. 37)

Le fait qu'il affirme à la déléguée du Directeur de la protection de la jeunesse penser souvent à ses enfants ne signifie rien pour eux. Ses enfants n'ont pas besoin qu'il pense à eux. Ils veulent le voir et vivre de bons moments avec lui. (paragr. 39) Le fait qu'il ait encore une fois fait défaut de se présenter au tribunal constitue également un très mauvais choix que le Tribunal comprend, car le père n'avait pas beaucoup de raison d'être fier de lui. (paragr. 40) Le Tribunal écrivait le 3 février 2010 : What is important is not what the parents say they intend to do, but what they do… if they do it!

But so far, what the parents have done is hardly reassuring. The fact that the children have the two parents they have is what necessitates the continued presence of the Director of Youth Protection. As well as trying to help the children recoup their development delays, it is important to protect them from their parents’ instability, crises and lifestyle.

Instead, the parents need to be made aware of their responsibilities so that they mobilize rapidly […]. (jugement du 3 février 2010, paragr. 23, 24, 25 et 28) (paragr. 41) De fait, maigre bilan, la preuve révèle que la mère s'est mobilisée un peu mais pas assez et qu'elle devra le faire davantage… et que le père s'est lui-même exclu de la vie de ses enfants . (paragr. 42) [ 11 ] The evidence reveals that the mother did not follow through on her good intentions, which remained mere empty promises. [ 12 ] For months, the mother simply flouted the Director of Youth Protection’s representative, who was running after her to remind her that she had to do what she had said she would do. [ 13 ] Between the beginning of January 2011 and 18 May 2011, the mother did not see her children. [ 14 ] The mother saw her children for the last time on 30 May 2011 and spoke to them on the telephone for the last time on 4 July 2011 . [ 15 ] In contradiction to the commitments she made in court, the mother has refused to cooperate with the Director of Youth Protection and has only asked after her children once, on 17 August 2011. [ 16 ] The mother has moved at least five times since 23 June 2010.

She has found ways to say on a number of occasions, in particular on 23 March 2011 and in mid-October 2011, that she was letting the D.Y.P. have her children, that she was no longer available for them, no longer wanted to hear how they were doing, that she no longer wanted to see them or the D.Y.P. [ 17 ] The Court concludes that the mother’s intentions have been clearly expressed. [ 18 ] The mother, still as immature, unpredictable and unstable as ever, preferred to play mother to her new spouse’s child, confiding to the Director that she has become very attached to this child. [2] [ 19 ] The mother proudly announced to the Director of Youth Protection’s representative that she was carrying twins [3] (pregnant by her new spouse). [ 20 ] The mother was notified of the hearing dates and, of course, did not show up in court.

Told that the two children in the case had written her letters, she never came to collect them. [ 21 ] The mother acknowledged that her spouse was not always a good influence on her and that she was rather dependent on him, but she chose to live with her current spouse and dream of creating a new family (indeed, that is under way!). [ 22 ] On several occasions, the mother has refused to sign authorizations required for her two children, in particular for school and for the transfer of the children’s medical and speech therapy records. [ 23 ] In her report of 23 November 2011, the representative writes, with reason: Après avoir manifesté peu de collaboration et d'implication lors des derniers mois, la mère des enfants semble avoir décidé depuis l'été 2011 de se concentrer uniquement sur son actuelle grossesse, laissant derrière deux de ses enfants, ne venant même pas chercher les lettres que ceux-ci lui avait adressées.

Tenant compte de ses dernières paroles à l'égard de nos services le 24 octobre dernier qui n'étaient que des injures, madame s'est exclue elle-même de la vie de ses enfants , ignorant l'intérêt et les besoins de ceux-ci.

De nouveau, madame a choisi de se centrer sur elle-même et son conjoint ainsi que leur vie de famille en devenir, refusant de nous entendre . (pièce D-12, p. 6) (nos soulignements) [ 24 ] Indeed, the representative’s words seem severe, but according to the evidence, they faithfully reflect what is occurring. [ 25 ] Things are hardly any brighter where the father’s situation is concerned. [ 26 ] The evidence shows, first of all, that the father has not seen his two children since 14 February 2010, over two years ago .

One might as well say, for an eternity! [ 27 ] Fall of 2010 was a particularly eventful time for the father, as he was arrested for conjugal violence against his young spouse. The father also attempted to take his own life in October 2010.

[ 28 ] Feeling ashamed and guilty for giving priority to his romantic relationship with his new spouse, who had mistreated the two children in the case, the father has never asked to see his children. [ 29 ] The Court recalls that contact between the children and their father has never been forbidden by the Court or by the Director of Youth Protection. [ 30 ] It is the father who has made the choice to act as if his two children no longer existed and who has chosen to devote his energies to resuming conjugal life with his young spouse and their baby. [ 31 ] The father mentioned, through his counsel, that he was pleased at the progress made by his two children and has nothing but good to say about the foster family which is suitably meeting all his children's needs. [ 32 ] The father agrees for the children to continue living in this foster family until each reaches the age of majority. [ 33 ] The representative assigned to the father’s situation as collaborator in the case writes: Mr. collaborates in a minimal fashion with the Youth Protection Services.

He expresses the desire to take all his children back but has had no contact with X and Y in more than one year. A similar situation is being observed by Youth Protection in the case of the two older children, Z and A, where Mr. C has had no contact with the boys or with their foster family since mid-January 2011. […] The Youth Protection Services learned that Mr. C resumed living as a couple with Miss D in early January 2010 at his apartment […]. The father offers little or no collaboration with Youth Protection workers for the follow-up of his children.

He has been very passive and has not shown clear motivation to improve his parental capacities. […] Mr. C was unable to recognize the need for the extended services. He left the office of Youth Protection slamming doors and calling the Youth Protection workers carious names while swearing profoundly. He became very aggressive when the recommendation was contrary to his wishes. Mr. C has difficulties recognizing the needs of his children. He and his spouse continue to blame Youth Protection for the placement of Mr.

C's four children. […] The father lacks introspection about his personal situation. (exhibit D-2, p. 6 and 7) [ 34 ] For the siblings of the two children in the case who have the same parents, with regards to the judgment delivered on 7 December 2011 by Madam Justice Lise Gagnon (exhibit D-15) concerning A (eight and a half years) and Z (nine years and eight months), the Court notes first of all that no two children are the same and require the same measures. [ 35 ] The father was present at that hearing, with his counsel, and he also agreed for his two sons to continue to be entrusted to their foster family until the age of majority. [ 36 ] The judgment of 7 December 2011 concerning the siblings of the children in the case shows that the father did not wish to jeopardize the future of his children and that, if unable to take care of them, he did not intend to do them harm (exhibit D-15, p. 4). [ 37 ] In sum, the Court concludes that the children in this case were first abandoned by their father, then by their mother. [4] [ 38 ] This blunt observation is the only logical, reasonable and rational conclusion that can be drawn from the evidence as presented. [ 39 ] For their part, the children have benefited from specialized services and the commitment and dedication of a foster family that has worked hard and says it is ready to continue to provide a suitable response to all the major needs of each of the two children. [ 40 ] In this entire context, two points are at issue. [ 41 ] The father (through counsel, because he is absent) contests the petition for a ban on contact with the two children and contests the merits of the petition for withdrawal of the exercise of attributes of parental authority. [ 42 ] Regarding the first point at issue , the facts more or less speak for themselves. [ 43 ] Certainly, deciding the interest of the children must not be a pretext for punishing or rewarding a parent’s attitude. [ 44 ] It takes some nerve for a parent who has chosen not to have contact with his two children for over two years to dare instruct his counsel to oppose, on his behalf, proceedings to ban nonexistent contacts. [ 45 ] Especially since the evidence reveals that the father has given only one sign of attention to his children when, in a telephone call made on 11 August 2011, he asked the representative of the Director of Youth Protection for news of his children. [5] [ 46 ] The preponderance of evidence would indicate that the two children have never asked for him ( what is true of the father is also true here of the mother ) and that they have slowly but surely put down roots where they have been living for eighteen months. [ 47 ] In her report of 23 November 2011, the representative writes: La situation actuelle est positive pour les enfants, qui ne réclament ni leur mère ni leur père, associant les parents d'accueil comme étant « papa et maman », se projetant dans l'avenir à […] et au sein de cette famille.

Les réponses positives aux interventions démontrent qu'aujourd'hui et depuis août 2010, les deux enfants ont trouvé l'entière réponse à leurs besoins leur assurant stabilité, sécurité, amour et encadrement jusqu'à l'atteinte de leur majorité.

La réinstauration de contacts entre les enfants et leurs parents ne peut qu'être néfaste pour les enfants, tant au niveau de leur stabilité émotive que psychique. Il n'est pas dans leur intérêt d'avoir des contacts avec leurs parents.

Ces contacts ne répondraient aucunement à leurs besoins et seraient forcément à l'avantage des parents. […] La présente demande de suspension des contacts pour les deux parents fait suit à l'absence de mobilisation des parents afin de répondre aux besoins de leurs enfants et tenant compte de l'enracinement positif des deux enfants au sein de leur famille d'accueil actuelle. (pièce D-12, p. 6) [ 48 ] In the Court’s view, the judicial review mechanism provided for in

article 95 of the Youth Protection Act remains available to the parties if, for some reason, [6] new facts (for the moment as improbable as they are hypothetical) should emerge. [ 49 ] Concerning the second point at issue , withdrawal of the exercise of certain attributes of parental authority, it is true that the representative’s report dated 23 November 2012 (exhibit D-12) seemed to ground this petition simply on a concern for convenience and efficiency , which is not valid justification for an order of this kind. [ 50 ] The father’s attorney was right to raise this argument, which is well founded in law. [ 51 ] However, in the case of the mother , the entire body of evidence shows that, on several occasions, she demonstrated that her children were not a priority and that she no longer wanted anything to do with them or the D.Y.P. [ 52 ] Pointless delays have resulted in waits and postponement of information and services that the children needed . [ 53 ] As for the children’s father, it is rather through his inaction, and his own choice to exclude himself from his children’s lives for the last two years and more, that the matter needs to be analyzed, pragmatically and with an open mind. [ 54 ] The evidence reveals that the father has become a stranger for his children, who have very few memories of him. [7] [ 55 ] How would he be capable of consenting to or refusing health care or administrative or school authorizations in an intelligent, informed manner, when he no longer knows them, knows nothing about them and what has happened to them. [ 56 ] On top of that, there is his cooperation with the D.Y.P., which is half-hearted to say the least, and all the distressing feelings he has which could colour his decisions on whether or not to give permission, wanting to bargain or negotiate this or that, when it came time to contact him to ask for an authorization. [ 57 ] In the Court’s view, the interest of the two children requires that the people who take daily responsibility for meeting the specific needs of the two children be designated to take responsibility for making the decisions concerning them. [ 58 ] The foster parents have not stolen anyone’s place.

They have simply occupied the empty seats left by the parents, by agreeing to act as substitute parents who are present and attentive to the needs of the children in the case. [ 59 ] The idea is not to sanction the conduct of either of the parents, but indeed to decide on a measure that is conducive to the higher interest of the children . [ 60 ] The children’s attorney is right to recall that time has done its work , that the children have turned the page, that nothing concrete has come of the parents’ fine words and that the children are now somewhere else, in another family and, above all, he is right in insisting, that they are well . [ 61 ] The children’s attorney agrees with the orientation proposed by the Director of Youth Protection in the interest of her young clients. [ 62 ] In conclusion, the Court recalls and stresses that the judgment of 23 June 2010 also dictated that the Director of Youth Protection must clarify and develop a permanent life plan for the two children. [ 63 ] The evidence shows, more than overwhelmingly, that it is impossible for the children to return to either of their parents . [ 64 ] At the same time, the evidence shows that the children have no longer been shuttling from one living environment to another and that they have finally found a family where they can grow and achieve their potential, sheltered from the hectic lives of their parents and all the emotional storms that have buffeted them in the past. [ 65 ] A peaceful, calm, stable life is what the two children will continue to have in accordance with this judgment. [ 66 ] This is the proven interest of the two children in the case!

FOR ALL OF THESE REASONS, THE COURT: GRANTS the amended petitions; DECLARES that the security and development of the children X and Y are still in danger;

REVISES the judgment of 23 June 2010 concerning them; ORDERS that placement of the two children in the foster family of Ms. F and Mr. G continue until they each reach the age of majority, until [...] 2023 for X and until [...] 2024 for Y ; PROHIBITS , in the interest of each of the children, contacts between the children and their parents ; AUTHORIZES, on behalf of the children, contact with Ms.

E according to agreement with the Director of Youth Protection; WITHDRAWS from the parents the exercise of certain attributes of parental authority over the two children, in particular as regards authorizations concerning their health, education, schooling and participation in extracurricular activities, as well as authorizations for travel outside of Québec and the acquisition of a passport; GRANTS to Ms. F and Mr.

G, the parents of the children’s foster family, the exercise of the attributes of parental authority withdrawn from the parents; ORDERS that the children X and Y continue to receive the health care and services required by their condition; ORDERS that a person or persons working at the Centre jeunesse A or any other establishment or organization, be designated to continue providing aid, counsel and assistance to the children X and Y and to their parents if the latter expressly request it, until the children each reach the age of majority, until [...] 2023 for X and until [...] 2024 for Y ; ENTRUSTS the situation of the children X and Y to the Director of Youth Protection A to see that this order is carried out. __________________________________ Michel DuBois, J.C.Q.

M e Maude Lacour Counsel for the Youth Protection Director M e Maryse Pinsonneault Counsel for the father M e Maxime Bernatchez Counsel for the children Hearing date: 18 January 2012