2021 QCCQ 16594, 2021 QCCQ 16594

Protection de la jeunesse — 214669 2021 QCCQ 16594 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 640-41-002426-200 DATE: February 23, 2021 (written judgment rendered on April 16, 2021) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2015 [SOCIAL WORKER 1], Youth Protection worker, duly authorized by the Director of Youth Protection A, working in [...] Applicant and A, residing and domiciled at [...] Mother and B, residing and domiciled at [...] Father ______________________________________________________________________ JUDGMENT (Section 95 of the Youth Protection Act ) ______________________________________________________________________ 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 (DYP) asks the Court to declare that the security and development of the child X, born on [...], 2015, are still endangered. The DYP asks that the child remain with his parents until October 31, 2021. Position of the Parties [ 2 ] The mother is present by phone because she is in quarantine after having been in Montreal with her daughter for medical reason. She is represented by Me Angèle Tommasel.

She recognizes that the security and development of her child are still endangered and she agrees with the measures. [ 3 ] Even if dully served, the father is absent and not represented. The mother confirms that he agrees with the measures. Considering the best interest of the child and the consent of the parties, the Court proceeds in his absence. [ 4 ] X who is 6 years old is absent, but represented by Me Cassandra Neptune. On the behalf of her young client, Me Neptune submits that the recommended measures are in his best interest.

History of the Situation [ 5 ] On March 24, 2020 , the Court was seized with an application for protection. The child was traditionally adopted and lived with his adoptive parents. The parents have drug and alcohol consumption issues. X has important developmental delays, earing issues and he still wears diapers. The mother made several requests for medical services, but the child was still on a waiting list since December 2018. A report for sexual abuse from the part of the maternal uncle was evaluated. The mother pressed charged against her brother for the sexual abuse.

The mother was concerned about the possibility that X suffered from a FASD due to his biological mother’s consumption. During the investigation for the sexual abuse, X was entrusted to a foster family. This period showed the very strong bonds between X and his adoptive mother. X was assessed by Dr. Beltempo, a psychologist, who recommended various evaluations and follow-ups. [ 6 ] The mother made numerous attempts to obtain the child’s birth certificate and his medical card. It is difficult to obtain a birth certificate for a child traditionally adopted. She asked help from the DYP.

Without this birth certificate, the child cannot be registered at the daycare and there was not enough time before the school start to register him. [ 7 ] The Court declared that the security and development of the child were endangered [1] and entrusted him to his parents. The Court also ordered that the child receive health care and that all the recommendations set out by Dr. Beltempo be respected without any delay. The Court also ordered a prohibition of contact between the child and the maternal uncle, the whole until February 28, 2021. Facts

[ 8 ] The family situation evolved positively since the last order. X started school, he loves to go there and to play with his friend. Despite his difficulties, he is doing well academically. [ 9 ] The parents put good safety measures to insure the child would not be in contact with his maternal uncle. The maternal uncle tried twice to come into the house, but the parents succeed in making him out. [ 10 ] The police confirms that no event of violence were reported since the last order. [ 11 ] The parents still have consumption issues. The mother drinks 2 or 3 beers twice a month when the child is sleeping.

The father is drinking more and on a daily basis, still when the child is asleep. The father works during day time on a full-time job. [ 12 ] The mother is the principal caregiver. She is very collaborative. She still agrees that her child receive the medical services recommended by Dr. Beltempo and ordered by the Court.

The only point she did not agree with was the follow-up with the Social Services suggested by the DYP for the sexual abuse trauma, but during the hearing, she said agree because she was able to understand the purpose of such follow-up. [ 13 ] Regarding the other services, the DYP came at the nursing on August 21, 2020, to provide the Court order and the psychological evaluation requesting that consultations were arranged.

The DYP worker explains the delay between the decision rendered (March 24, 2020) and the communication with the nursing (August 21) by the facts that the mother was scared to present herself at the nursing due to Covid-19. The DYP worker was convinced that the Court decision and the psychological report were not enough to obtain the service and that the mother’s consent was necessary. [ 14 ] On November 16, 2020, the DYP came back at the nursing to know what was going on. The nurse asked for another copy of the documents and showed it again to the doctor.

On December 3, 2020, the DYP was informed that the child’s file had been assigned to Dr. Berry, pediatrician. At the time of the hearing (February 23, 2021) no appointments had been confirmed yet with Dr. Berry. Also, the child, is still on a waiting list for audiology. [ 15 ] The DYP worker also asked the nurse to fix the appointments for the other evaluations and is now waiting that the nurse call her back.

The nursing receives a lot of requests, and they have difficulty to provide appointments for everything. [ 16 ] The DYP is to the opinion that if the mother would not be supported by the DYP to obtain those services she would not be able to take care of her son’s medical situation. The mother is the most involved in the situation and she is the main caregiver.

But the father, who has a full-time job, stops his job anytime it is requested by the DYP and come at the office to meet with the DYP worker. [ 17 ] The DYP submits that the situation remain endangered, but no more for risk of physical abuse as no event of violence happened in the presence of the child.

Analysis [ 18 ] It is important to remind that in this situation, it was the mother who requested help to obtain medical services for her son, because she had difficulties and she needed to know more about that to be able to help him properly. [ 19 ] The only service she refused was the follow-up for the sexual abuse the child was a victim of.

Today, after receiving appropriate information about this follow-up, the mother agrees that such service be provided to her son. [ 20 ] Despite the developmental difficulties noted before, the child started school and he is doing very well and he loves going to school. [ 21 ] Unfortunately, despite the parents’ willingness, the DYP’s recognizance regarding the necessity of the services, the psychological evaluation and the Court order, the services are still not given and they are not given for few reasons.

First, the fact that the DYP worker considers that the consent of the mother is needed even if a Court order is rendered, moreover, following a non- contested hearing. Secondly, the fact that the DYP did not make any pressure to make sure that those services be provided to the child. [ 22 ] The DYP lawyer pleads that despite the fact that the DYP is the one who is responsible for making sure that the services are given to a child, he is not the boss of the medical services and has to follow the capacity of the health centre to provide the services even if it is ordered and/or recommended by another professional.

He adds that this situation is the same everywhere in the province of Quebec. The DYP really wishes to provide services, but he is restrained. [ 23 ] The Court reminds the principles established by

section 8 YPA : 8. The child and the parents are entitled to receive, with continuity and in a personalized manner, health services and social services that are appropriate from a scientific, human and social standpoint, taking into account the legislative and regulatory provisions governing the organization and operation of the institution providing those services, as well as its human, material and financial resources. The child is also entitled to receive, on the same conditions, appropriate educational services from an educational body.

Furthermore, the child and the parents are entitled to be supported and assisted by a person of their choice if they wish to obtain information or when meeting the director or any person the director authorizes. [ 24 ] And also the principle of

section 92 YPA: 92. Where the tribunal orders the carrying out of a measure with regard to a child, it shall entrust the situation of the child to the director, who shall then see that the measure is carried out.

Every institution and every educational body is required to take all available means to provide the services required to carry out the measures ordered. The same applies to every person and to every other body that agrees to apply such measures. [ 25 ] As many times reminded by the jurisprudence, all the children have the same rights, but the children followed by the DYP are intrinsically more vulnerable and, doing so, have to be prioritized to receive health services. [ 26 ] The DYP has the responsibility to put the appropriate pressure on the Health Center to be sure that the services will be provided.

In this situation, nothing was done, except for the DYP worker to contact the liaison nurse to see if she had news. [ 27 ] The DYP also has the responsibility to make sure that her delegates know that the consent of the parents is not needed to obtain such services. Moreover, when the services were initially requested by them and when the Court decision underlines the parent’s consent to the recommended measures. [ 28 ] In this specific situation, the mother was waiting for services for a few months before the previous decision and 5 months to provide the Court order to the nursing is unacceptable.

The Court was clear that those services had to be provided urgently. A detailed decision was rendered, and this decision stayed dead letter for 5 months. [ 29 ] As of today, the child is still waiting. Luckily, he is doing well at school, but it is not a reason to neglect his specificity and it is urgent to provide him with the services to avoid any difficulty in the future.

FOR THOSE REASONS, THE COURT: [ 30 ] GRANTS the application; [ 31 ] DECLARES that the security and development of the child X, born on [...], 2015, are still endangered; [ 32 ] DECLARES that the rights of the child were wronged by the Director of Youth Protection under

section 8 and

section 92 of the Youth Protection Act ; [ 33 ] ORDERS that the child remain with his parents; [ 34 ] ORDERS that the parents periodically report to the Director of Youth Protection on the measures they apply in their own regard or in their child’s regard to put an end to the situation in which the security and development of the child are endangered; [ 35 ] ORDERS that the child receive specific health care and services required by his situation; [ 36 ] ORDERS that the recommendations from Dr.

Beltempo be followed urgently, and more specifically: − ORDERS that X benefit from a full neurological comprehension exam; − ORDERS that X benefit from a consultation in a developmental clinic; − ORDERS that X benefit from medical evaluation and with a follow-up with a pediatrician; − ORDERS that X benefit from an evaluation by an audiologist for his language; − ORDERS that X benefit from a FASD evaluation; − ORDERS that X benefit from a consultation at Marie-Vincent Clinic to address his trauma; − ORDERS that X benefit from a follow-up with the Social Services regarding the sexual abuse trauma he was the victim of; [ 37 ] ORDERS that all those evaluations be done as soon as possible by any technological way if possible; [ 38 ] ORDERS the Director of Youth Protection to put the appropriate pressure to make sure the child could receive all those medical services in a timely manner; [ 39 ] ORDERS that the child attend school; [ 40 ] ORDERS that the parents take an active

part in the application of any of the measures ordered by the Court; [ 41 ] ORDERS that the child not come into contact with certain people designated by the Court, namely Mr.

C; [ 42 ] ORDERS that a person working for an institution or body, provide aid, counselling and assistance to the child and his family; [ 43 ] ENTRUSTS the situation of the child X , to the Director of Youth Protection A, who shall then see that the measures are carried out; AS CORRECTIVE MEASURES: [ 44 ] ORDERS that this decision be notified personally to Ms. [Social Worker 2], Director of Youth Protection B; [ 45 ] ORDERS that a copy of the present decision be notified to Commission des droits de la personne et des droits de la jeunesse; [ 46 ] THE WHOLE until October 31, 2021.

__________________________________ PEGGY WAROLIN , J.C.Q. Me Robert-André Adam, attorney for the Director of Youth Protection Me Cassandra Neptune, attorney for the child Me Angèle Tommasel, attorney for the mother Date of hearing: February 23, 2021