2016 QCCQ 17897, 2016 QCCQ 17897

Protection de la jeunesse — 168812 2016 QCCQ 17897 JA0940 QUEBEC COURT Youth Division Canada PROVINCE OF QUÉBEC DISTRICT OF [...] N° : 525-41-023528-102; 525-41-024481-111 DATE : May 4, 2016 ______________________________________________________________________ PRESIDING JUDGE : THE HONOURABLE MARIE ARCHAMBAULT, J.C.Q. ______________________________________________________________________ In the matter of: X , born on [...], 2010 Y , born on [...], 2011 THE DIRECTOR OF YOUTH PROTECTION Applicant and A , mother B , father Respondents ______________________________________________________________________ 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 ] As required under

Section 90 of the Youth Protection Act, the present judgment confirms in writing the decision rendered orally at the hearing held on May 4 th , 2016. [ 2 ] The Director of Youth Protection (the Director) seizes Court of two motions for revision of a decision rendered on May 24 th , 2013, by Judge Ann-Marie Jones. The Director is asking modification to two (2) of the measures rendered, maintaining that the children remain entrusted to their specific foster family until majority.

The modifications required pertain to the contacts between the children and their parents: the Director is asking a prohibition of contacts. The second recommendation is to the effect that the attributes of parental authority already withdrawn from the parents be granted to the foster parents (instead of the Director). [ 3 ] The parents admit that the children have remained in the same confidential foster family since the last court order. They ignore if the children are developing well or if they are attached to their foster parents.

Both parents are opposed to the prohibition of contacts sought by the Director. [ 4 ] At the conclusion of the hearing, counsel for the children is opposed to the prohibition of contacts sought by the Director and rather suggests that contacts take place as suggested by the expert psychologist. CONTEXT [ 5 ] The evidence reveals that the last contact the father had with the children dates back to March 2013 while the mother's last contact occurred in May 2013.

[ 6 ] Following incidents in February and March 2013 whereby threatening statements and anger were expressed by the father against youth protection workers, the visits between the children and their father were suspended until a meeting could take place and expectations discussed. [ 7 ] Efforts have been made by the Director, on numerous occasions, to meet with the father but to no avail. It is only in May 2015 that the father responded to the worker's efforts to reach him.

A meeting was held on June 12 th , 2015. [ 8 ] At the Court hearing of December 1 st , 2015, the father was opposed to the request of the Director to prohibit contacts, agreed to participate in an assessment to determine the best interest of the children (to resume contacts with their parents or not) and expressed his wish to receive aid, counsel and assistance from the Director. [ 9 ] The father is not present at the conclusion of the hearing. Despite his commitment to participate in the assessment and receive services, the father's currrent whereabouts are unknown.

He did not communicate with the Director and efforts made by the Director to reach him were to no avail. [ 10 ] Since 2013, it has been impossible for the Director to contact the mother. Her whereabouts were most of the time unknown not only to the Director but also to Dilico Anishinabek Family Care, an agency providing services to the mother from time to time. Every time the mother contacted the youth protection worker, she was invited to meet to discuss a resumption of contact.

It is only on September 24 th , 2015, that the mother contacted the worker, with the assistance of Dilico, at the request made by the Director the month before. [ 11 ] At the request of counsel for children, and with the agreement of all other parties, an assessment was required in order to evaluate if resuming contacts between the children and their parents, or on the contrary prohibit these contacts, would be in the best interest of the children and determine whether it would be detrimental to go one way or another. [ 12 ] As mandated, Dr.

Joseph Beltempo performed said assessment with the contribution of the foster parents and the mother. As mentioned earlier, the father did not participate. [ 13 ] As reported by the psychologist, "X complied and collaborated with the Examination.

All test results show that he has become well integrated within the Foster family for the past 3 years. [...] All the projective testing suggests that he is very happy and attached within this Foster Care context and that he has a very specific role, he is satisfied and happy. [...] Given the present family context, from X's point of view there is no current need to meet with his biological parents since he has no memories or recollection of them.

It must be noted that he might have emotional issues of anxiety and fear stemming from past history of emotional and/or physical abuse which may have impacted on his personality and body memories. He consciously has no actual memories of his biological parents. It is evident that X is thriving in his stable and nurturing home environment. His foster parents display warmth and emotional availability, and it is clear that X has developed a strong attachment to them. It is without a doubt that he views them as his psychological parents." [ 14 ] Concerning Y, the following

summary is made by the expert: " He [Y] is a very confident little boy and has a strong attachment and established relationship with his Foster parents. There is no evidence of underlying psychological fears. The themes of the projective drawings suggest emotional confidence and assertiveness. [...] It is evident that Y is thriving in his stable and nurturing home environment. His foster parents display warmth and emotional availability, and it is clear that Y has developed a strong attachment to them. It is without a doubt that he views them as his psychological parents.

Although Y does not recall any memory of his biological parents and explicitly refers to his foster parents as his only parents. ( sic ) [...] " [ 15 ] Nonetheless, the psychologist suggests that the children begin a process and preparation, as of September 2016, in view of supervised contact to be granted to the mother in December 2016.

As per the suggestion made by the psychologist, supervised visits with their mother could take place two to four times per year "for historical, family and specific cultural identify reasons. [...] Contacts are intended to uphold and maintain identification to family of origin, biological identify and specific cultural heritage." [ 16 ] The psychologist bases his recommendation on different elements summarized as follow.

" [...] there is scientific evidence, to suggest that visitation with biological parents have positive implications on children's overall development and mental health, even when the early attachment has been disrupted. It can be especially beneficial in helping the child develop a healthy sense of identify and self-esteem. It is important to note, however, that frequent and consistent contact is only recommended when reunification is the goal.

For X, contact with his Mother may help him resolve feelings of loss, abandonment and anger, and may also reconnect him to his specific native culture (Ojibway) as well as strengthen his cultural identify. Given that X has been entrusted into the care of his Foster parents until age of majority, frequent and consistent contact will not meet his needs at this time. [...]" [ 17 ] Emphasis is made on the fact that the children are doing well currently in their foster family and that it is time for them to be introduced with the idea that they have biological parents.

The psychologist claims that the children need to be introduced to their mother to "uphold and maintain identification to family of origin, biological identity and specific cultural heritage" and that in order to do so, as it is likely that the children will react negatively, the foster parents should be supported in the process and the children "need to want and accept to see their mother".

[ 18 ] The cross-examination of the expert-witness by the attorney of the Director brought relevant nuances to the testimony and report of the psychologist. [ 19 ] The Court cannot accept the scientific evidence raised as it does not apply to the situation of the children.

The suggestion that visitation with biological parents have positive implications on their development and mental health is drawn from a study group of children who were already having regular contacts with their parents and were to be reintegrated back in their care. [ 20 ] According to the psychologist, contacts with the parents may be beneficial in helping children to develop a sense of identity and self-esteem.

It has been recognized that the children have already developed a healthy sense of identify and self-esteem in the care of their foster parents. [ 21 ] The evidence reveals that the foster parents have taken the appropriate steps to ensure that the children have knowledge of their specific native cultures (Ojibway for the mother and Atikamekw for the father) and have ensured that the children participate in various activities. The foster parents read them books and tell them stories about their native cultures.

In fact, the foster parents have provided the children with the opportunity to become knowledgeable of their cultures while their parents have failed to do so up until now. [ 22 ] As the situation of the children evolve in time, they may express curiosity about their origins and express the wish and desire to meet with their parents or one of them. [ 23 ] Considering that very little is known of the mother and of her commitment, stability and ability to enter a process with a certain assurance of continuity, it is felt premature for contacts to be considered at this point in time. [ 24 ] The Director has not convinced the Court of the opportunity to prohibit contacts, from now on until majority, between the children and their parents.

It is possible and would only be natural, as time passes by, that the children ask questions about their parents and express a desire to know more about them and even to meet with them. [ 25 ] If and when the children express the wish and desire to meet their parents, provided that the parents have received services and kept in contact with the Director to ascertain for their commitment, motivation and ability to enter a process allowing continuity, the adults involved with the children (i.e. the Director, the foster parents and the parents (or parent)) will have to agree on a process to be followed in order for visits to resume.

If that should be the case, a frequency of two (2) to four (4) visits per year could take place if the Director considers the visits to be in the best interest of the children. The same logic applies if one child requests contacts with one parent.

AS A CONSEQUENCE AND FOR THESE REASONS, THE COURT: [ 26 ] DECLARES that the security and the development of the children are still compromised; AND, BY VIRTUE OF AND PURSUANT TO THE POWERS GRANTED UNDER SECTIONS 91 AND 91.1 OF THE YOUTH PROTECTION ACT, THE COURT ORDERS THE FOLLOWING MEASURES: [ 27 ] ORDERS that the children be entrusted to a foster family until their respective age of majority, that they be maintained in their present foster home and that this foster placement remain confidential; [ 28 ] SUSPENDS the contacts and visits between the children and their parents until such time that the adults involved with the children (DYP, foster parents and the parent requesting contacts) come to an agreement concerning contacts; [ 29 ] In addition, the Court IMPOSES the following conditions for contacts to resume: ▪ The child has to be in a stable condition; ▪ All the adults have to agree; ▪ The child has to have requested, in a way, a contact with the parent; ▪ The Director of Youth Protection has to be convinced that it is in the best interest of the child. [ 30 ] RECOMMENDS that the parents take the necessary steps for the children to be registered as Indians; [ 31 ] RECOMMENDS that the parents follow through with the recommendations made by the psychologist Peter Kelly; [ 32 ] ORDERS that aid, counsel and assistance be provided to the children and their family until their respective age of majority; [ 33 ] WITHDRAWS the attributes of parental authority from the parents (except surveillance) and GRANTS these attributes of parental authority to the foster parents. [ 34 ] ENTRUSTS the situation of the children to the Director of Youth Protection A, who shall then see that the measures are carried out; [ 35 ] ORDERS the execution of the present judgment by any peace officer, if necessary.

_________________________________ MARIE ARCHAMBAULT, J.C.Q. Me Sym Davis Attorney for the Director of Youth Protection Me Alec Flexer Attorney for the children Me Richard Brunet Attorney for the mother Me François De Vette Attorney for the father Date of hearing : May 4 th , 2016