2016 QCCQ 18313, 2016 QCCQ 18313

Protection de la jeunesse — 169197 2016 QCCQ 18313 JL4031 COURT OF QUÉBEC Youth Division CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] N° : 525-41-031121-163 DATE: June 16, 2016 ______________________________________________________________________ PRESIDED BY : Mr.

JUSTICE CLAUDE LAMOUREUX, J.C.Q. ______________________________________________________________________ In the matter of : X Born on: [...], 2016 The Director of Youth Protection A applicant - and - A, the mother respondent ______________________________________________________________________ JUDGMENT (section 38 of the Youth Protection Act) ______________________________________________________________________ WARNING: The Youth Protection Act prohibits the publication or broadcasting of any information that may lead to the identification of a child or his parents.

Any person who contravenes this provision commits an offence and is liable to fine. [ Y.P.A. sections 11.2.1 and 135 ] [ 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 June 16, 2016 and renders a decision taken under advisement in regard to the Director’s request for authorization to register the child’s birth, as further explained later. [ 2 ] The Director of Youth Protection ( the Director) seized the Court with a motion under

section 38 of the Youth Protection Act requesting that the security or development of the child be declared to be in danger. [ 3 ] The Director alleges the following: 3.1. the child is seriously or repeatedly subjected to behaviour on the part of the mother or another person that could cause harm to the child, and the mother fails to take the necessary steps to put an end to the situation, more particularly but not restrictively in that:

a) the mother has been dating Mr. B for the past three (3) months and they have been living together, with the child, for the past month;

b) the child has been exposed to incidents of conjugal or domestic violence between the mother and Mr. B;

c) on one (1) occasion, Mr. B threatened to cut the mother’s throat with a knife;

d) on May 4, 2016, the mother had an argument with Mr. B, where he pushed the mother off the chair;

e) the mother left the apartment, leaving the child in his crib, and called the police;

f) when the police arrived, the mother was outside in front of the apartment and Mr. B was outside in the back of the apartment, leaving the child unattended in the apartment;

g) Mr. B was charged with assault and assault with a weapon or causing bodily harm and has a condition not to communicate in any way with the mother and the child; 3.2. the child is the victim of bodily injury by the mother’s boyfriend and the mother fails to take the necessary steps to put an end to the situation, more particularly but not restrictively in that:

a) during an argument between the mother and her boyfriend, Mr. B grabbed the child by the head in order to take him away from the mother;

b) as a result, the child got bruised on his forehead;

c) the mother did not bring the child to be seen by a doctor;

d) the mother minimizes the context leading to the child’s injuries, stating that it was an accident; 3.3. there is a serious risk that the mother is not providing for the child’s basic needs, more particularly but not restrictively in that:

a) the mother consumes marijuana every two (2) hours;

b) on May 4, 2016, Mr. B reported to the police that the mother often leaves the child alone; 3.4. on May 4, 2016, the child and the mother were transported to the hospital and the mother remained at the hospital with the child overnight; 3.5. on May 5, 2016, the mother stated that she was dependant on Mr.

B in many ways and would not consider a separation from him, even on a temporary basis; 3.6. when told that she would need to make a choice between going to a shelter with her child or for the child to be placed, the mother preferred the child’s placement; 3.7. from May 5 to May 6, 2016, the child continued to undergo testing in the hospital, while the mother returned home; 3.8. at the time of the child’s discharge from the hospital on the evening of May 6, 2016, the mother had returned and then stated that she would make the child her priority and would be able to keep Mr.

B away; 3.9. on May 6, 2016, immediate protective measure were invoked and the child was placed in a foster family; 3.10. on May 9, 2016, the Court extended the application of the immediate protective measures for a maximum period of five (5) working days; 3.11. concerns exist with respect to the mother’s ability to prioritize the child’s needs and around her relationship with Mr. B; 3.12. the mother is socially isolated and regrets calling the police; [ 4 ] As we’ll see, the child is presently entrusted to a foster family.

Today, the Court is recommending that for one year, the child remain entrusted to a foster family along with other supportive measures for the mother, including services for conjugal violence as well as a drug use assessment. The Director is also asking to have the legal authority to register the child’s birth because the mother has not done so, thus the child has no birth certificate. [ 5 ] No father has been identified by the mother. [ 6 ] The mother is present, assisted by a lawyer.

The child is represented by a court-appointed lawyer. [ 7 ] Through her lawyer, the mother agrees with the Director’s motion and agrees with the one year placement but asks the Court to authorize the child’s return to her in the last six months of the order if the situation allows. Both the Director and the child’s attorney are in agreement with this request. She agrees with all the other measures proposed but states that she has no intention of registering the child’s birth until he is returned to her care. [ 8 ] Various reports have been filed as evidence.

Further, the mother, through her lawyer, clarified a number of facts stated in the reports. Finally, the youth protection worker testified. [ 9 ] The Court essentially retains from this body of evidence that the mother, 20 years old, arrived in Town A around 3 years ago from an Inuit community ([community A]). While growing up, the mother was exposed to conjugal violence and substance abuse, leading to various placements throughout her adolescence.

Since being in Town A, she has been quite isolated although she says that she can count on certain family supports. [ 10 ] Throughout her pregnancy, the mother consumed drugs (and smoked cigarettes). [ 11 ] The child was born on [...], 2016.

[ 12 ] Shortly prior to the child’s birth, around February 2016, the mother began dating Mr. B (23). They began living together about two months later, around April 2016. [ 13 ] During their relationship, the mother and Mr. B would consume marijuana all day, about every two hours. [ 14 ] The mother stated that on one occasion, Mr. B threatened to kill himself with a knife. [ 15 ] Prior to May 4, 2016, there had been a few incidents of conjugal violence where Mr. B pushed or slapped the mother.

Also, the mother reported to various authorities (police, hospital, DYP) that in the week or two prior to May 4, during an argument, Mr. B had aggressively grabbed the child out of her arms, partly by the head. The next day, the child had bruising on his head. The mother did not have the child seen by medical authorities. She also did not deem it necessary to end her relationship with Mr. B. [ 16 ] On May 4, 2016, the mother and Mr. B got into another argument in their apartment. He pushed the mother down one time and she ran out of the apartment. Mr.

B followed her into the staircase and pushed her down again and held her head down. The mother fled, leaving the child in the apartment with Mr. B, and called the police. The mother informed the police that Mr. B carries a knife. The police went into the apartment, found the child unharmed and arrested Mr. B. [ 17 ] The Director became involved and had the child seen at the hospital. The baby was kept for observation from May 5 to 6, 2016. He was found to be healthy. [ 18 ] At that time, the mother stated that her plan was for her and the baby to return living with Mr. B as soon as he was released.

The Director gave the mother the choice of either going into a shelter with the baby or seeing the child go into foster care. The mother chose the latter. [ 19 ] Although the mother subsequently changed her mind, the Director deemed the situation too fragile and therefore took out immediate protective measures on May 6, 2016 and placed the child in a foster family. These measures were extended for one week by the Court on May 9. [ 20 ] On May 16, under

section 79 of the Youth Protection Act, the Court ordered the child’s provisional placement in a foster home until June 16, 2016. [ 21 ] During this one month interim, the mother missed an important meeting with the Director as well as two of seven visits with the child, one where she chose to give priority to friend in need and another where there was some type of confusion between the mother and the worker. [ 22 ] The mother had been offered contacts twice per week but recently asked that they be reduced to once weekly so that she can concentrate on getting her life back on track. [ 23 ] The mother appears to be making some progress in this regard.

She states that her relationship with Mr. B is over. She adds that she was never “dependant” on him, contrary to what the Director has stated. She also contends that she stopped consuming drugs. As well, the visits with her son have always been positive. Indeed, the mother is seen as being loving, appropriate and sensitive to her child’s needs. [ 24 ] The mother also wants it clearly understood that, contrary to what Mr. B told the police after his May 4 th arrest, she never left her child unattended. Of note, Mr.

B subsequently stated this was a lie. [ 25 ] The child is in a foster home able to keep him as long as needed but which is not culturally appropriate. The Director is open, for now, at looking at the child being transferred to an Inuit home but such a request must come from the mother. This is not the case presently. [ 26 ] As we’ve seen, the mother clearly has the potential to resume care of her child. [ 27 ] The mother must understand the importance of putting every effort into improving her situation so that the child may return to her care as soon as possible.

Failing to do so, there is the possibility that the Court will be asked to consider a permanent placement for the child. Birth certificate [ 28 ] As mentioned earlier, the child’s birth has not been registered. The mother states that she will not do so until the child returns to her care.

No other information was provided to the Court as to the reasons for her refusal. [ 29 ] The Director is asking for authorization to obtain a birth certificate given the importance that the child have one so as to establish who his parents are and allow the child to obtain a Medicare card. [ 30 ] This issue had been taken under advisement. [ 31 ] Birth certificates are issued by the Registrar of civil status (Registrar). The Civil code of Quebec [1] dictates the normal process for the Registrar to issue a birth certificate.

In essence, the Registrar first receives an attestation of birth from the person who delivered the baby (“accoucheur”) and then a declaration of birth from one or both of the parents. [ 32 ] Normally, no other person can make a declaration of birth without the parent’s authorization. However, there are exceptions in the law. For example, someone who takes custody of a newborn whose parents are unknown must declare the child’s birth within 30 days. In so doing, the person who took custody of the baby provides the Registrar with the parents’ names if they’re known.

[ 33 ] With the attestation of birth and the declaration of birth in hand, the Registrar draws up the birth certificate. [ 34 ] The Civil code of Québec sets out that, save exception, “[p]aternal filiation and maternal filiation are proved by the act of birth…” [2] [ 35 ] Filiation, or the legal determination of who one’s parents are, sets out who has parental authority with regard to a child.

Parents have various rights and responsibilities regarding their children, as set in the Civil code and in other pieces of legislation. [ 36 ] In addition to identifying one’s parents, birth certificates also officially identify a person’s names and their date and place of birth. It is also widely known that birth certificates are the basic document which allows one to obtain a health insurance card, a social insurance card, a passport, admission into a daycare or teaching institution, etc. [ 37 ] It is an essential document in Youth Protection proceedings.

Indeed, the Regulation of the Court of Québec states that a “ child’s identity, date of birth and filiation must be established … using a birth certificate . [3] [ 38 ] Even in youth protection cases that are not judiciarized, determining who the parents are is essential, for example in terms of identifying who to intervene with and who is entitled to receive information. [ 39 ] One can therefore understand the importance of birth certificates and the obligation for parents to have one drawn up. [ 40 ] In fact, not doing so can lead to the child being eligible for adoption once the child reaches the age of three months.

Indeed, the Civil code states that: “ may be judicially declared eligible for adoption …a child over three months old, if neither his paternal filiation nor his maternal filiation has been established ”. [4] [ 41 ] In the present case, without real explanation, the mother refuses to provide the Registrar with a declaration of birth. Thus, the Registrar is unable to prepare a birth certificate.

In principle, only the parents can do so however, as we have seen, given the importance of birth certificates, the legislator has provided an exception for someone who receives a newborn whose birth has not been declared. [ 42 ] The Youth Protection Act allows the court to withdraw from a parent the exercise of certain attributes of parental authority and grant that authority to the Director. As we have seen, the principle is that only one’s parents can make the “declaration of birth”.

It is therefore clearly an attribute of parental authority. [ 43 ] Given the importance of birth certificates and the mother’s unjustified and unreasonable refusal to take the steps to have one drawn up for the child, the Court will authorize the Director to do so in her place. CONSEQUENTLY, AND FOR THESE REASONS, THE COURT: [ 44 ] GRANTS the motion; [ 45 ] DECLARES that the security or development of X is in danger due to physical ill-treatment, psychological ill-treatment and serious risk of negligence within the meaning of

Section 38 of the Youth Protection Act. [ 46 ] IN VIRTUE OF THE POWERS CONFERRED UPON THE COURT BY

SECTION 91 OF THE YOUTH PROTECTION ACT: [ 47 ] ORDERS that the child be entrusted to a foster family; [ 48 ] AUTHORIZES the child’s reintegration at the mother’s home in the last six (6) months of the present order and if the situation allows it; [ 49 ] ORDERS that the frequency and modality of contacts between X and the mother be determined by the Director of Youth Protection, including supervision if needed and minimally once per week; [ 50 ] PROHIBITS any contact between the child and Mr.

B; [ 51 ] RECOMMENDS that the mother participate in a program for victims of conjugal violence; [ 52 ] RECOMMENDS that the mother receive a drug assessment and follow through with the recommendations; [ 53 ] WITHDRAWS from the mother her right and obligation to register the child’s birth and AUTHORIZES and ORDERS the Director of Youth Protection to do so; [ 54 ] ORDERS that, once obtained, a copy of the child’s birth certificate be filed into the Court record; [ 55 ] ORDERS a person working for [Centre A] to provide aid, counsel and assistance to the child and the family; [ 56 ] THE WHOLE FOR A PERIOD OF ONE YEAR; [ 57 ] ENTRUSTS the situation of X to the Director of Youth Protection A who shall see that these measures are carried out and these measures may be executed by any peace officer, if necessary.

_________________________________ CLAUDE LAMOUREUX, J.C.Q. M e Nadia Sabik Attorney for the applicant M e Judith Shapiro-Knight Attorney for the child Me Christophe Lafontant Attorney for the mother Judgment rendered verbally on June 16, 2016 CL/nl