2013 QCCQ 20665, 2013 QCCQ 20665

Protection de la jeunesse — 139183 2013 QCCQ 20665 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF […] Youth Division No. 540-41-003699-120 DATE: December 4, 2013 ______________________________________________________________________ PRESENT: THE HONOURABLE PIERRE HAMEL J.C.Q. ______________________________________________________________________ In the situation of: X Born on […] 2005 ______________________________________________________________________ JUDGMENT (section 95, 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 11.2.1 and 135 Y.P.A.). [ 1 ] On December 17, 2012, the Honourable Claude Melançon J. declared that the security and development of X were in danger pursuant to subparagraphs (

c) and (

e) of

section 38 of the Act and ordered his placement in a foster family for six (6) months. [ 2 ] On June 12, 2013, I declared that the child's security and development were still in danger pursuant to sections 38 (

c) and

e) of the Youth Protection Act and extended the child's placement in a foster family until June 30, 2014. [ 3 ] On November 7, 2013, the Director filed a motion for review of the decision under

section 95 of the Act for the following reasons: Since that date, the following new facts have occurred: 4.1 The child is exhibiting serious behavioural difficulties such as aggressiveness toward the foster family; 4.2 On November 5, 2013, the foster family expressed being overwhelmed by the situation and not able to offer the care and structure required by the child; 4.3 Under these circumstances, the child was entrusted to a reception center under immediate protective measures; 4.4 Since the last court order, the mother has not participate actively in the social follow up proposed;

4.5 The social worker has to call out the grand-mother when she wants to reach the mother as both of them refuse to transmit the mother's coordinates; 4.6 The mother has not contacted the social worker to arrange contacts with the child; [ 4 ] Considering the child's behavioural disturbance at the time and the position of the foster family, on November 7, 2013 Sophie Gravel J. ordered the provisional placement of the child in a rehabilitation centre because of the serious risk in keeping him with his foster family.

On that date, the mother was present, but left the courthouse before the Court heard the motion for mandatory provisional placement. [ 5 ] The Court proceeded with the hearing on the Director's motion for review on December 4, 2013. [ 6 ] Although the motion was served on her in accordance with the requirements of law, the mother did not attend the hearing. [ 7 ] On November 29, 2013, the Director filed in the Court record a report entitled Étude de la situation sociale de l'enfant en vue de l'audition devant la Cour du Québec – Chambre de la jeunesse .

The report was signed on November 26, 2013 by [Social Worker 1], the person authorized by the Director, following an orientation meeting, held on November 25, 2013, in which the mother did not participate. [ 8 ] The Director sought the child's placement in a rehabilitation centre and maintenance of all the other measures I ordered on June 12, 2013 which are compatible with the new request. [ 9 ] It was observed that X is increasingly oppositional with the foster mother, particularly concerning his homework and bedtime.

He is also increasingly aggressive toward the foster mother and in school, with the result that the foster family has asked that he be moved. His behavioural disturbance are such that a foster family would have difficulty dealing with them. The Court is of the opinion that only a specialized environment, a rehabilitation centre in this case, can deal with X's current problems. [ 10 ] The measures requested by the Director are entirely appropriate in the circumstances. X indeed has major behavioural disturbance, most of which are due to ill-treatment and inadequate parental attitudes toward him.

The child was not present at the hearing, but he was represented by an attorney and she consented to the measures recommended by the Director. [ 11 ] Besides moving the child for the reasons given earlier, the Director also asked the Court to declare that X's security and development are in danger because of abandonment, pursuant to

section 38 (

a) of the Act. [ 12 ]

Section 38, subparagraph ( a ), defines abandonment as follows: For the purposes of this Act, the security or development of a child is considered to be in danger if the child is abandoned, neglected, subjected to psychological ill-treatment or sexual or physical abuse, or if the child has serious behavioural disturbances. ( a ) " abandonment " refers to a situation in which a child's parents are deceased or fail to provide for the child's care, maintenance or education and those responsibilities are not assumed by another person in accordance with the child's needs; [1] However, as the motion as served on the mother shows, it does not mention the Director's request that the child's security and development be declared in danger for that new reason, i.e. subparagraph (

a) of

section 38 of the Act. That request was made orally at the hearing by the DYP's attorney. The attorney acknowledged that the motion did not mention the Director's wish to submit that issue to the Court and that it was raised only at the November 25 orientation meeting.

[22] The Director's request followed the November 25, 2013 meeting. Y, it was subsequent to the filing and service of the motion on the parties, as indicated by the report prepared after the orientation meeting, which states that the Director recommended that X's security and development be declared in danger for that reason. Questions in dispute [23] Can the Court declare the child's security and development in danger pursuant to subparagraph (

a) of

section 38 despite the fact that the mother was not formally informed of the Director of Youth Protection's request? [24] Although certain elements in the evidence could make it possible to consider that the child's security and development are in danger for that reason, can the Court fail to formally serve on the mother the Director's request for a declaration of endangerment for that additional reason? If it declared the child's security and development in danger for that reason, would it violate the fundamental right to be heard? Analysis [25] The mother did not take

part in the orientation meeting or in the discussion concerning that matter, and therefore was not informed of the Director's intention to ask the Court to declare that X's security and development are in danger for that reason. [26] What is more, as mentioned earlier, the proceeding served before the orientation meeting was held does not contain any specific allegation in that regard or any particular conclusion to that effect. [27] The Court raised that issue at the hearing and the Director's attorney acknowledged that the proceeding did not mention the Director's request in connection with

section 38 (

a) and made no particular request. [28] The Court does not believe that it can, in the circumstances, declare that X's security and development are in danger because he is in a situation of abandonment within the meaning of the Act. [29] Daniel W. Payette J., of the Superior Court, sitting in appeal from a decision of the Youth Division of the Court of Québec, allowed the appeal of an adolescent who had been placed in a rehabilitation centre by the trial judge without that issue having been raised at the hearing.

The Court indicated that, despite the fact that the Court of Québec in protection matters is not bound by the ultra petita rule, it must give the parties an opportunity to be heard on that issue. [30] His decision contains the following: [ [19] Le droit d’être entendu présuppose que les parties connaissent précisément l’objet du litige et puissent faire les représentations qui s’imposent avant que le juge ne rende sa décision. [20] Comme l’indique le professeur Garant, bien que dans un contexte de droit administratif, non seulement le justiciable a-t-il le droit de connaître qu’une décision sera rendue, mais encore l’objet de cette décision et les raisons qui poussent le Tribunal à la prendre et, le cas échéant, les griefs qu’on a contre lui. [21] En l’espèce, le débat entre les parties était circonscrit : il s’agissait pour la juge de déterminer si la mesure proposée par la D.P.J., à savoir de confier l’Enfant à une famille d’accueil, était justifiée en l’espèce ou si l’Enfant pouvait demeurer avec son père, comme le prévoyait la mesure antérieure.

[22] C’est sur ce débat qu’ont porté la preuve et les représentations des parties en fonction de motifs de compromission identifiés au préalable. Jamais les parties n’ont-elles été avisées que la juge envisageait un nouveau motif de compromission et encore moins qu’elle envisageait une mesure dont personne n’avait discuté. [23] Certes, la juge peut faire toute recommandation qu’elle estime être dans l’intérêt de l’Enfant.

Il est aussi vrai que la règle de l’ultra petita ne s’applique pas en matière de protection de la jeunesse. [24] Cependant si le Tribunal peut ordonner des mesures différentes de celles que lui proposent les parties, encore faut-il que celles-ci puissent intervenir au préalable, faire des représentations et soumettre une preuve en lien avec la mesure envisagée par le Tribunal . [2] ( Emphasis added ) [34] For the same reasons, the Court believes that it cannot rule on that issue without the mother having been served with the Director's request.

Of course, the mother can be criticized for not attending the hearing or the orientation meeting. However, proceeding on that issue without enabling the mother to express her point of view and submit evidence opposing the Director's contentions would constitute a denial of justice, in the Court's opinion. [35]

Section 6 of the Act requires the following: The persons and courts called upon to take decisions respecting a child under this Act must give this child, his parents and every person wishing to intervene in the interest of the child an opportunity to be heard. [36] The Court believes that any new request that does not appear in the initial request must be duly served on the parties, unless they are present at the hearing and have an opportunity to make representations. [37] Thus, the Court cannot rule on that issue in these circumstances and, therefore, the Director cannot, during the present order, justify intervention based on subparagraph (

a) of

section 38. [38] Of course, if the proceeding filed earlier had mentioned that issue or if the mother had attended the hearing or had had an opportunity to make representations, the situation would have been otherwise. [38] THEREFORE AND FOR ALL THESE REASONS, THE COURT: [39] allows the Director's motion in part; [40] REVISES its decision of June 12, 2013; [41] DECLARES that the security and development of X are still in danger pursuant to subparagraphs (

c) and (

e) of

section 38 of the Youth Protection Act ; [42] DISMISSES the Director's request that X's security and development be declared in danger pursuant to subparagraph (

a) of

section 38 of the Act; [43] OrdERS the placement of X in a rehabilitation centre until August 15, 2014; [44] MAINTAINS all the measures ordered on June 12, 2013 that are compatible with this judgment, namely:

[45] ORDERS that contacts between X and his mother be determined by the Director of Youth Protection in terms of frequencies, modalities, duration, place, in the best interest and need of the child and supervised by the Director of Youth Protection if needed; [46] ORDERS that the contacts between X and his maternal grandmother, Mrs.

A, be determined by the Director of Youth Protection and by agreement among the parties; [47] ORDERS the maternal grandmother not to put X in contact with his mother under any circumstances, except with the consent of the Director of Youth Protection; [48] ORDERS that therapeutic services be offered to X as per recommendations of the psychological assessment written by Catherine Cloutier; [49] ORDERS that certain attributes of the parental authority be entrusted to the Director of Youth Protection regarding health care, school and extracurricular activities as well as travels; [50] ORDERS that aid, counselling and assistance be provided to X and his family for the same period of time; [51] ORDERS that the situation of X be entrusted to the Director of Youth Protection of Centre jeunesse A for the execution of the enactment. [52] ORDERS the enforcement of this order by any peace officer, if necessary. __________________________________ PIERRE HAMEL J.C.Q.

Me Marie-Joëlle Soulières Counsel for the Director Me Annie Miele Counsel for the child [1] Emphasis added. [2] Protection de la jeunesse — 134853. 3 [TRANSLATION]

[19] The right to be heard presupposes that the parties are aware of the specific object of the dispute and can make the required representations before the judge renders a decision. [20] As Professor Garant indicates, although, in an administrative law context, not only does a party have the right to know that a decision will be rendered, but also the right to know the object of the decision and the reasons that the Court makes the decision, and, if necessary, the grievances against the party. [21] In the case at bar, the debate between the parties was circumscribed: the judge had to determine whether the measure proposed by the DYP, namely, that the child be entrusted to a foster family, was justified in the case or whether the child could remain with his father, as the prior measure provided. [22] The evidence and the parties' representations concerned that debate according to the grounds of endangerment identified beforehand.

The parties were never notified that the judge was considering a new reason for endangerment and, even less so, that she was considering a measure that no one had discussed. [23] Of course, the judge could make any recommendations she deemed to be in the child's interest.

It is also true that the ultra petita rule does not apply in youth protection matters. [24] However, although the Court can order measures that differ from those that the parties propose, they must be stated beforehand, representations must be made about them, and evidence must be adduced in connection with the measure considered by the Court . [Emphasis added.]