2019 QCCQ 14519, 2019 QCCQ 14519

Protection de la jeunesse — 1911681 2019 QCCQ 14519 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-005136-166 760-41-005134-161 760-41-005135-168 DATE: July 17, 2019 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X born [...], 2015 Y born [...], 2009 Z born [...], 2007 Children ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION A Applicant v.

A B Parents ______________________________________________________________________ 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.).

The context [ 1 ] The Director intervenes since November 2015 in the situation of the siblings Z (11), Y (8) and X (2) [...], applying various protection measures in relation to elements of neglect in their family environment. [ 2 ] The children have been living in alternate environments since March 2017. The brothers remain under the care of Ms. C and her partner, whereas Z lives with her maternal grandmother, Ms. D. Overall, the children adapt well to their substitute environments and are evolving positively. [ 3 ] Successive judgments have been rendered.

The last judgment of October 22, 2018 extends for six months the protective measures in place, including the placement orders, while maintaining contacts following mutual agreement with their parents.

Positions [ 4 ] In consideration of the duration of the children’s placement and citing that the parents have not been able to sufficiently rehabilitate their respective situations to resume a full-time parental role, the Director of Youth Protection seeks a permanency order maintaining the children in their alternate environments until their majority. [ 5 ] As to the children’s contacts with their parents, the Director advances that the extensive access rights in place with their mother remain in their best interests. [ 6 ] In regards to their contacts with their father, which occur regularly every second weekend, the Director alleges numerous ongoing issues relating to his availability and application of routine, which justify their reduction to one day a month. [ 7 ] The children and their parents, represented by their respective attorneys, admit the continued situation of endangerment, which is also the reflection of the evidence.

They further recognize that the maximum delays of placement provided by the Youth Protection Act are attained. [ 8 ] The contentious issues concern the measures to be put in place in the respect of the children’s respective interests and the

objectives of the law, more precisely as to their placement and access to their father. [ 9 ] The mother alleges that she has made significant strides in her personal situation and that her acquired stability justifies that the Court suspend its final decision on the measures in order to permit her to further demonstrate her ability to autonomously assume her children’s needs. She suggests a short interim order, her ultimate objective being the reintegration of the children to her care. [ 10 ] The father agrees with the mother’s proposal, stating to being convinced of her acquired and durable stability. He contests changes to the access

schedule with his children. [ 11 ] Z and Y wish to return to their mother’s care and to continue to visit with their father as they do now. [ 12 ] X’s attorney, operating under a legal mandate, endorses the Director’s position in the best interests of her client as concerns the permanency plan. As to X’s access to his father, she pleads that the Director’s position is too extreme a reduction for her client, although she sees a need to attend to the ongoing issues in order to ensure that these are more beneficial.

Analysis and decision [ 13 ] When considering any decision as concerns the interests of children, the Court must take numerous factors into account, including their specific vulnerabilities, maturity and needs. This evaluation must also consider that a child’s notion of time is different than that of an adult. As such, the Court will concentrate on the contentious issues, a consent being submitted for the balance. [ 14 ] The first evaluation must be whether the Director satisfies the onus of proving that the children must remain in placement.

Is such is the case, as the maximum delays of placement are attained for all three children, the Court is required to consider rendering a decision which will stabilize them on a permanent basis (article 91.1 Youth Protection Act ). Exceptions can apply: If the security or development of the child is still in danger at the expiry of the periods specified in the first paragraph, the tribunal must make an order aimed at ensuring continuity of care, stable relationships and stable living conditions corresponding to the child’s needs and age on a permanent basis.

However, the tribunal may disregard the periods specified in the first paragraph if it is expected that the child will be returned to his family in the short term, if the interest of the child requires it or for serious reasons, such as failure to provide the services agreed upon . [ 15 ] This principles being stated, the Court proceeds to the review of the history of the intervention. [ 16 ] The first two judgments rendered determine that the parents struggle with their parental responsibilities in conjunction with their personal problems.

The application of a routine and a clear and consistent structure to their children remain significant issues. [ 17 ] The mother faces mental health issues (borderline personality disorder, anxiety). She is largely unable to take care of her children alone, having recourse to family members to support her. [ 18 ] However, it is noted that there is a slow but positive progression. [ 19 ] The last judgment rendered in October 2018 underlines that the maximum delays of placement are in play for X since the preceding March, and upcoming as to his siblings.

Recognizing the mother’s efforts to stabilize her situation, the Court endorses an agreement to extend measures for six months in order to verify the viability of a reintegration in the mother’s environment. The parties understand that the clock is ticking for the children and it is necessary to implement significant change in the short delay determined. [ 20 ] The Court will now resume and analyze the evolution of the situation since the last order while applying these principles.

The father [ 21 ] The Court retains from the evidence that the father is also a devoted parent who has his children’s best interests at heart. He is a hard worker and sensitive to his children’s needs, although he also struggles with his own personal issues and realities. [ 22 ] He cooperates with the follow-up and wishes to remain a significant part of his children’s lives. He sees the children every second weekend. He is unable to assume the children’s needs on a full-time basis, situation which he recognizes. [ 23 ] As to his access, the father fails to see any reasons why there should be a reduction.

He dismisses any issues which are problematic enough to incur such a decision. He declares having the intention to change his work

schedule to be more available for his children. He states that he intends to move shortly to a bigger apartment which will allow the children to have a bedroom. The mother [ 24 ] Ms D is a devoted mother who has the interests of her children as the center of her preoccupations. [ 25 ] Although the last order was destined to augment access in view of the children’s return, such was not possible for numerous reasons relating to the mother’s personal issues and dependencies.

After a period of absence in which she struggles with drug use and mental health issues, it is only in the last months that she maintains a certain stability. [ 26 ] Her focus has been and remains her children, such dictating the efforts that she has made to stabilize her personal situation.

The Court can do no other than to recognize that she has indeed come a long way since the beginning of the intervention to attend to significant and oftentimes overwhelming personal issues. [ 27 ] At the date of the hearing, the mother is able to demonstrate a personal stability and put forward a comprehensive plan towards the return of her children.

[ 28 ] Notwithstanding, after more than three years of services and efforts on her part, the Court determines that her parental capacities are at their apex and that further rehabilitation cannot be expected. Although some issues are resolved and she is now mostly stable, she remains with chronic issues with which she continues to struggle with on an ongoing basis.

Namely, her physical and mental health remain fragile and this, although she now takes care of respecting her follow-ups and is generally stable. [ 29 ] Her anxiety remains a factor which can flare up and impede her ability to be fully available for her children.

The evolution of the situation since the last order is replete with examples of such. [ 30 ] Such was the case during one of the few extended access periods which were possible since the last order, namely during the March school break when she became so overwhelmed that she was made the decision to suspend her access period to seek some psychological support.

Even though the Court underlines that she certainly made appropriate choices, this fragility is an issue which must be taken into account within the final evaluation of her capacity to care for her three young children, which all present varying degrees of specific challenges. [ 31 ] The mother continues to receive, and sometimes require, the aid of family members in the exercise of her parental responsibilities. This occurs on a less consistent basis and no longer constitutes the long-standing crutch it was previously.

Overall, she demonstrates an increased ability to see assume her children’s needs on a more autonomous basis. [ 32 ] Overall, the Court concludes that the rehabilitation process of the mother’s capacities and personal situation is ongoing, but because of cyclical resurgence of her difficulties, has not matched her children’s needs. Her ongoing fragilities on numerous levels and her background engender the continuation of the situation of endangerment. [ 33 ] The question is whether the mother can care for her three children on a full-time basis.

Such has not been the demonstration since the last order and this, although the Court is sensitive to the various complications in the mother’s life. She is certainly heading in the right direction, but the recent nature of her commitment and changes require continued prudence. [ 34 ] Therefore, the Court concludes that the mother is unable at the present time to meet the daily challenges relating to the parenting of her three children.

The Court therefore dismisses this option. [ 35 ] However, before concluding to the final measures, the Court continues its evaluation in view of the mother’s capacities as relates to the specific needs of each of her children. The children [ 36 ] Dismissing the reintegration of the children in their parental milieus at the present time, the Court proceeds to evaluate each child’s specific situations while applying the principles put in place in order to determine the measures best representing their interests. X [ 37 ] X has resided under the care of his foster family for the larger part of his life.

Even though he maintains a significant bone with each of his parents, the evidence demonstrates that his center is with his foster family and that to sever this connection would be detrimental to his equilibrium and development. [ 38 ] This, in conjunction with the fact that his parents are not in a position in the short term to respond to his needs, justify that the Court endorse the Director’s recommendations as to his placement on a permanent basis. Y [ 39 ] Y presents behavioural and developmental challenges which are significant and require a stable, consistent and stable environment.

He will require multiple specific services to accompany him and allow him to attain his potential. [ 40 ] In his foster environment, he is developing positively. [ 41 ] His vulnerabilities cannot allow him to suffer undue change nor inconsistency. [ 42 ] For the reasons cited, the Court comes to the conclusion that the mother cannot confront these challenges on a full time basis in a reasonable delay. The Court therefore also endorses the Director’s recommendations as to Y’s placement on a permanent basis.

Z [ 43 ] As for the orientation in Z’s situation, the Court makes certain distinctions towards the conclusion that the mother could undertake the care of Z in a short delay within a progressive reintegration which would equate what had been expected with the last order. [ 44 ] Of the three siblings, Z is not only the oldest, but the strongest and least vulnerable. This is not to say that she doesn’t have issues but these are of a lesser challenge than either her brother Y or X.

Her wish to return live with her mother reflects an understanding of the situation, both past and present. [ 45 ] As such, Z’s needs are more in tune with her mother’s parental capacities. [ 46 ] Other factors favor this conclusion: • Z already lives separately from her brothers, so there would be no impact on that front. • Her grandmother, who has generously been taking care of her while awaiting that the mother rehabilitate her situation, is an

available, constant and supportive presence to both. She testifies that she will remain present to support a reintegration process both during and after and this, notwithstanding the end result. • As both the mother and grandmother reside in the same vicinity, Z will incur no change as to her social or school environments. • The mother would be able to focus her attentions on Z’s full-time care and education while continuing to attend to her own personal needs. [ 47 ] The Court retains that an extension of measures until the end of the year will demonstrate the viability of Z’s return to her mother’s care.

Access rights [ 48 ] The parties indicate being confident in coming to a mutual agreement as the children’s access to their mother and this, including the progression dictated by the Court as concerns Z. The Court endorses such. [ 49 ] Such is not the case for the children’s access to their father. No agreement being at present possible, the Court must determine the access structure and schedule. [ 50 ] The children’s wish to continue to see their father without reduction is a testimony to the bond which exists between them.

Such is also the reflection of the father’s testimony. [ 51 ] Notwithstanding, the evidence demonstrates that there are issues which require attention and resolution. The children’s verbalizations and reactions in relation to the contacts are probative. As such, their tiredness after their contacts with their father is telling.

Their description of the routine, or more lack thereof, is also reflective of the situation. [ 52 ] The Court cites more problematic issues proven to its satisfaction: • The father’s apartment is not large enough to accommodate three children and they find themselves in a ‘’camping’’ situation, which is not conducive to their sleeping routine; • The father’s work

schedule has come in conflict with his access rights; [ 53 ] On the other hand, Mr. B is a credible witness and testifies with transparency as to his personal situation and the visitation. He tries his best, but it is troublesome to the Court that he fails to perceive and then act on the children’s verbalizations and reactions following visits. [ 54 ] There are adjustments required to ensure that his children are maintained in their routine during his access periods. This will be necessary in order to maintain the access at its present level.

The father agrees to cooperate in this vein and also names certain imminent changes in his employment and living environment which will also alleviate the difficulties observed. [ 55 ] Overall, the evidence convinces the Court that with certain adjustments destined to ensure the beneficial nature of contacts between the children and their father, it is possible to maintain the access

schedule in place. [ 56 ] As such, the Court considers that it is essential that the parties convene to a written contract as regards the children routine so as to not unduly disturb their functioning. This is especially pertinent for X and Y in relation to their specific needs. [ 57 ] The children also require their own bedroom and the expectation is that such will be the case in a short delay. [ 58 ] The conclusions reflect this determination.

FOR ALL THESE REASONS, THE COURT: [ 59 ] PARTIALLY GRANTS the applications for revision and extension of a Court order; [ 60 ] DECLARES that the security and the development of the siblings, Y, Z and X, are still in danger; Regarding Z : [ 61 ] ENTRUSTS the child to a foster family chosen by the Director of Youth Protection A, namely her maternal grandmother, Mrs.

D; [ 62 ] ORDERS that the contacts between the child and her mother be following an agreement between the parties in view of verifying the viability of a progressive reintegration for the end of the order; [ 63 ] ORDERS that the contacts between the child and her father be following an agreement between the parties and, in the absence of an agreement that they will occur every second weekend from Saturday to Sunday; [ 64 ] TAKES ACT that the father will be available and present during the contacts and that there will be an elaboration of a contract as to the child’s routine; [ 65 ] ORDERS that the parents take an active

part in the application of the measures ordered; [ 66 ] ORDERS that a person working for an institution or a body provide aid, counselling and assistance to the child and her family;

[ 67 ] ALL THESES MEASURES until December 31, 2019; Regarding Y and X : [ 68 ] ENTRUSTS the children Y and X to a foster family chosen by the Director of Youth Protection A, namely Mrs. C and Mr.

E; [ 69 ] ORDERS that the contacts between the children and their mother be following an agreement between the parties and in the absence of an agreement, that they take place one (1) weekend out of two (2); [ 70 ] ORDERS that the contacts between the children and their father be following an agreement between the parties and in the absence of an agreement, that they will occur every second weekend from Saturday to Sunday; [ 71 ] TAKES ACT that the father will be available and present during the contacts and that there will be an elaboration of a contract as to the children’s routine; [ 72 ] ORDERS that the parents take an active

part in the application of the measures ordered; [ 73 ] ORDERS that a person working for an institution or a body provide aid, counselling and assistance to the children and their family; [ 74 ] ALL THESES MEASURES until the children’s respective majorities: • [...], 2027, for Y; • [...], 2033, for X; [ 75 ] ENTRUSTS the situation of the children to the Director of Youth Protection A for the execution of the present judgment. __________________________________ BÉATRICE CLÉMENT, J.C.Q.

Me Anne-Catherine Bujold Attorney for the Applicant Me Johanne Leduc Attorney for the mother Me Michel Robert Attorney for the father Me Stéphanie Castagnier Attorney for the children Z and Y Me Annie Girard Attorney for the child X Date of hearing: July 15 and 17, 2019