2021 QCCQ 15430, 2021 QCCQ 15430

Protection de la jeunesse — 218869 2021 QCCQ 15430 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT […] “Youth Division” No: 525-41-033200-171 DATE: December 22, 2021 ______________________________________________________________________ PRESENT: THE HONOURABLE FRANÇOIS STE-MARIE, J.C.Q. ______________________________________________________________________ DIRECTOR OF YOUTH PROTECTION and X Born on […] 2017 child and A B parents and C applicant and Commission des droits de la personne et des droits de la jeunesse mise en cause ______________________________________________________________________ JUDGMENT

Section 81 of the Youth Protection Act (R.S.Q. c. P-34.1 ) ______________________________________________________________________ Warning : The Youth Protection Act prohibits the publication or broadcast of information allowing a child or the child’s parents to be identified. Every person who contravenes this provision is liable to a fine (sections 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] Mrs. C requests that the Tribunal grants her the status of party to the proceedings regarding the child X. If granted, this would permit Mrs.

C to access all the documents in the child’s legal file, to present evidence, to cross-examine witnesses and to potentially appeal the Tribunal’s decision. [ 2 ] The mother, the Commission des droits de la personne et des droits de la jeunesse (the Commission) and the child’s attorney are supporting her request. [ 3 ] The father and the Director of Youth Protection (the Director) are contesting Mrs. C’s application. They recognize her significant bound to the child but submit that her participation should be limited to the prescriptions of

article 83 of the Youth Protection Act . Questions in litigation [ 4 ] Is Mrs. C’s recognition as a party warranted for the requirements of the hearing? [ 5 ] Is it advisable to do so in the interest of the child? Context and Analysis [ 6 ] Mrs. C has cared for the child since her birth. [ 7 ] On December 12, 2017, the Tribunal declared that the child’s security or development was compromised due to a situation of neglect. [ 8 ] On April 9, 2018 the Tribunal ordered that the child remain placed in a foster family. At the time, the Director had to verify if a permanent plan could be established for the child in the northern communities.

[ 9 ] The child remained in Mrs. C’s foster family and, at one point, long term placement in her family was considered by the Director as a potential permanent plan for her. [ 10 ] On October 16, 2019, the child was removed from Mrs. C’s foster family due to allegations of sexual abuse on a former foster child by Mrs. C’s husband, Mr. D. [ 11 ] Following the child’s transfer, Mrs. C asked for contacts to be organized between her and the child.

Despite her requests, the Director did not organize contact. [ 12 ] At the December 19, 2019 hearing, the Commission intervened and recommended that the Tribunal consider entrusting the child directly to Mrs. C, at the exclusion of Mr. D. This orientation was supported by the child’s attorney. The Director and the parents were of the opinion that the child should remain placed in a different foster family. Following the hearing, the Tribunal entrusted the child to Mrs. C’s care as of December 24, 2019 and contacts between the child and Mr.

D were prohibited. [ 13 ] On January 22, 2021, a new signalement was made to the Director alleging that, despite criminal and youth protection conditions, Mr. D was still in contact with the child. The Director invoked immediate protective measures and the child was entrusted to her father’s care. [ 14 ] On January 26, 2021, the Tribunal dismissed the Director’s application for provi-sional measures. Since then, the child has remained entrusted to the care of Mrs. C. [ 15 ] At this point, evidence has not been presented regarding the state of Mr.

D’s criminal trial. [ 16 ] As the child was entrusted to her care, Mrs. C has been admitted at the hearing. In accordance with

article 83 of the Youth Protection Act , she will be allowed to testify, make representations and be assisted by an attorney during the hearing. [ 17 ] Considering the child’s best interest, Mrs. C submits that she should be permitted to play a more active role during the hearing. [ 18 ] Since October 2017,

article 81 of the Youth Protection Act reads as follow: “ 81. The child, the child’s parents and the director are parties to the hearing. The Commission may, ex officio, intervene at the hearing as if it were a party to it. The same applies to the Public Curator in tutorship and emancipation matters. Any person who wishes to intervene at the hearing in the interest of the child may, on an application, testify before the tribunal and make representations if the person has information likely to enlighten the tribunal, and may, for that purpose, be assisted by an advocate.

The tribunal may, for exceptional reasons, in urgent cases or if the parties present at the hearing consent to it, authorize the person to make the application orally. For the requirements of the hearing, the tribunal may grant a person the status of party to the hearing if the tribunal considers it advisable to do so in the interest of the child. The status of party remains valid until withdrawn by a decision or order of the tribunal. The director must, on request, inform a person who wishes to present an application under the third or fourth paragraph of the date, time and place of the hearing.” Is Mrs.

C’s recognition as a party warranted for the requirements of the hearing? [ 19 ] In order to receive a full picture of the child’s situation, is it useful, or necessary for Mrs. C to not only testify, but to present evidence, cross-examine witnesses and access the child’s file [1] ? [ 20 ] Justice Marie Pratte clarified the question the following way [2] : « Le statut de

partie répond aux besoins de l’enquête et de l’audition lorsqu’il apparaît nécessaire de l’accorder pour établir les faits en litige. Il ne suffit pas que le requérant détienne des informations susceptibles d’éclairer le Tribunal. Dans un tel cas, il est en effet suffisant, comme le prévoit d’ailleurs le cinquième alinéa de l’article 81 L.P.J., d’entendre cette personne.

Il doit plutôt être nécessaire, pour que le Tribunal ait accès à la « vérité » et qu’il ait un juste portrait de la situation, de conférer au requérant le droit de contre- interroger les témoins, celui d’en faire entendre d’autres ainsi que celui d’avoir accès aux pièces du dossier. » [ 21 ] The Tribunal will eventually have to decide if the child should be removed from Mrs. C’s care and entrusted to one of her parents. [ 22 ] In a decision regarding

article 81 of the Youth Protection Act , Justice Daniel Perreault mentioned the following [3] : « La présence de madame B. comme simple témoin, même assistée par un avocat, est loin d’être un gage que tout l’éclairage pourra être fait quant à la situation de l’enfant. […] Madame B. est au courant de faits et d’événements qui peuvent être hors de la connaissance des autres parties au litige ; il est probable qu’elle éclaire le Tribunal sur des faits que le Directeur de la protection de la jeunesse ignore ou, peut-être, ne désire pas mettre en preuve.

La demanderesse en intervention a la capacité d’ajouter à la preuve des données inédites, pertinentes au débat et susceptibles d’avoir une portée réelle sur l’issue du litige. » [ 23 ] In our situation, Mrs. C wishes to submit documentary evidence and present different witnesses at the hearing (her daughter Y,

the transport driver and a neighbour). Her witnesses would mainly testify around the child’s reactions, before and after going to the daycare and to visits with the father. At first glance, this evidence appears as pertinent to the main question in litigation. No other party is in a position to present this evidence. As the child’s daily caregiver, Mrs. C has access to information unknown to other parties. Her perspective of the Director’s previous intervention is also essential.

In order to have a complete picture, it will be necessary to allow her attorney to cross-examine the witnesses [4] . [ 24 ] The Tribunal is of the opinion that a risk exists that the evidence will be incomplete or imprecise should Mrs. C not be declared as a party to the proceedings [5] .

Is it advisable to do so in the interest of the child? [ 25 ] In a 2007 decision, Justice Michel Dubois defined the term advisable the following way [6] : « Il est donc raisonnable d’interpréter le mot « opportun » à l’article 81 L.P.J. dans le sens de « ce qui paraît indiqué, convenable, favorable, propice, indiqué, utile, à propos … » [ 26 ] Every party recognizes that Mrs. C is and has been playing a significant role in the child’s life. The child refers to her as “mom”. [ 27 ] Mrs. C is not in agreement with the Director’s main recommendation; to remove the child from her care.

She considers that she should continue to play a “crucial part” in the child’s life. [ 28 ] Mrs. C never submitted that she wanted to present evidence to defend herself of her husband or to correct an alleged injustice. As the child’s primary caregiver, she wishes to present her own perspective on what constitute the child’s best interest. [ 29 ] Regarding potential delays, the Honourable Marie Pratte wrote the following [7] : « En l’espèce, le risque d’allonger le débat est réel. Il est cependant surpassé par l’avantage, pour le Tribunal, d’avoir un portrait global de la situation.

Cette vue d’ensemble lui permettra de rendre la meilleure décision possible, tant dans le cadre de la requête en prolongation que celui de la requête en lésion de droits. » [ 30 ] Justice Pratte’s rationale applies perfectly to our situation: the benefits outweigh the disadvantages. [ 31 ] In order to render decisions in the child’s best interest, it is important for the Tribunal to receive complete and pertinent information.

The particular history of the child’s file has been laced with issues of lack of transparency… [ 32 ] As it appears from the April 12, 2021 judgment, due to its lack of transparency, the Tribunal declared that the child’s rights had been wronged by the Director of Youth Protection of the CIUSSS A. Since then, a different organisation (CIUSSS

B) is responsible for the child’s “prise-en-charge”. [ 33 ] In October 2020, the Commission presented an application with respect to a different encroachment of the child’s rights. The Tribunal has yet to receive full evidence and to render a decision regarding this application. [ 34 ] The Tribunal is therefore convinced that Mrs. C’s participation as a party during the hearing is necessary for the Tribunal to receive a complete and balanced picture of the child’s situation. Her testimony only would not be sufficient for the Tribunal to obtain the full picture of the child’s situation.

THEREFORE AND FOR THESE REASONS, THE COURT: [ 35 ] GRANTS Mrs. C’s application to be recognized as a party to the proceedings; [ 36 ] THE WHOLE without cost. ___________________________________ François Ste-Marie, J.C.Q. Written and signed on December 22, 2021 /cd Mtre Caterine Caron Counsel for the Director of Youth Protection B Mtre Dominique Douglas Counsel for the Director of Youth Protection A Mtre Marie-Josée Ayoub Counsel for the child Mtre Karine Leclerc Counsel for the mother Mtre Lilian Stah Counsel for the father Mtre François DeVette Counsel for Mrs. C

Mtre Sophie Papillon Counsel for Commission des droits de la personne et des droits de la jeunesse Date of hearing: December 14, 2021