2015 QCCQ 12201, 2015 QCCQ 12201

Protection de la jeunesse — 152296 2015 QCCQ 12201 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] LOCALITY OF [...] « Youth Court Division » N°: 525-41-028005-148 / 525-41-028007-144 / 525-41-028006-146 Date: March 25, 2015 PRESIDED BY: THE HONOURABLE TAYA DI PIETRO, Q.C.J. In the case of: X Born on […], 2003 In the case of: Y Born on […], 2005 In the case of: Z Born on […], 2007 [SOCIAL WORKER 1] , duly authorized by the Director of Youth Protection A Applicant -and- A , the mother -and- B , the father of X and Y The parents JUDGMENT

Section 95- 95.1 of the Youth Protection Act (L.R.Q., C. P-34.1 ) 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 ] JD2620 The Court was presented with a motion for revision of an order rendered by the undersigned, on February 14, 2014, whereby the children, X and Y and their half-brother, Z , were entrusted to the care of their mother with aid, counsel and assistance, for a period of two years. [ 2 ] The facts alleged in support of the motion for revision dated April 7, 2014, are as follows: 3.1. the mother battles depression and substance/alcohol addiction; 3.2. the mother has been provided with services from the […] Women’s Shelter; 3.3. the mother would tell the delegate that she was maintaining her sobriety when the delegate visited; 3.4. respite foster care has been provided; 3.5. on April 4, 2014, the mother did not present herself after school to pick the child up from the daycare and the police were called at 6:49 p.m.; 3.6. attempts were made to contact the mother by the police but they were unsuccessful, more particularly but not restrictively in that:

a) no one answered the door at the mother’s home;

b) a man sounding drunk would answer her phone, laugh and then hang-up; 3.7. the children were placed in foster home under immediate protective measures; 3.8. on April 7, 2014, the mother had still not contacted the Women’s Shelter nor the Director of Youth Protection and the delegate

was not able to locate her; 3.9. it is believed that the mother is not using the supports as she should be, and that she has relapsed; 3.10. the mother’s behaviour is a repeat of previous patterns and preventative measures are deemed to be ineffective at this time; 3.11. the children have reported previously that when the mother drinks, she is not able to care for them, they report being hungry and having to care for themselves; 3.12. [B] remains uninvolved and his whereabouts, unknown (reproduced with errors and/or omissions). [ 3 ] In light of the foregoing, the Director of Youth Protection (DYP) recommends that the children be entrusted to a foster family, with aid, counsel and assistance, as well as additional corrective measures, until they each reach the age of majority. [ 4 ] The mother, assisted by Me Shapiro Knight, admitted all the facts alleged in support of the motion.

She also consented to the children’s placement in foster care. However, she argued that the length of the order should be for a period of two years rather than until the children reach adulthood.

In the alternative, the mother highly approves of the children’s current foster parents and would like the children to be entrusted to them specifically. [ 5 ] X and Y’s father’s whereabouts remain unknown and the Court proceeded in his absence. [ 6 ] Z’s father is not declared on his birth certificate. [ 7 ] Me Sepinwall, representing the three children, did not make any admissions but reported that the children are happy in their current foster home and are prepared to remain there, although the eldest’s fondest wish would be to return to his mother.

He agreed with the mother’s position and argued that an order for a period of two years would be appropriate. [ 8 ] The Director filed Exhibits D-1 to D-3 as evidence: D-1: Court report, signed by [Social Worker 1], dated April 30, 2014; D-2: Addendum, signed by [Social Worker 1], dated August 11, 2014; D-3: Addendum #2, signed by [Social Worker 1], dated November 20, 2014. [ 9 ] In

summary, the evidence establishes that the mother continues to struggle with alcohol abuse. She candidly acknowledges her battle with alcoholism and honestly admits to recurring and even very recent relapses despite her repeated efforts to overcome her addiction. [ 10 ] She also acknowledges the impact of her substance abuse on her children’s lives and recognizes that foster care is necessary to offer them the safety and stability that they need. [ 11 ] There is no doubt that the mother loves her children deeply and she is visibly heartbroken by her inability to provide for their needs on a daily basis.

She also appears sincerely committed to continue her efforts to overcome her alcoholism and fulfill her parental responsibilities. [ 12 ] The mother summarized her position in a letter to the court as follows: I have been a single parent for the past 7 years without any support from my children’s father. I do not have family that is close by to support me either. I have been through trauma growing up and it has been very difficult to be a single parent raising 3 children on my own while struggling with my past. I was able to live soberly for a number of years and I believe I can do it again.

I have been working on myself for a while now and it is not an easy journey and I will continue to work on myself. Each time I have been to treatment, I have completed the program. I have recently found my passion in hairdressing and I would like to complete my hairdressing course. My goal is to have a stable life with my children and I am not giving up until I get there. Right now, my plan is to go back to treatment and I am also fortunate to have support at the […] Women’s Shelter.

I am not sure how much time I will need, but I would like to be given the chance and the hope that we can be a family together again. I request of the Court that I be given the chance to work on myself. I request placement be done for 2 years. If that is not the case, then I request that the boys be placed specifically with C + D. I have a good relationship with this family for many years + my boys are happy with them. [1] [ 13 ] Thus the only issue in dispute is the appropriate duration of the order to be rendered.

THE FACTS [ 14 ] In order to analyse the evidence, the Court must first examine the children’s history in detail. [ 15 ] Their situation was first reported to the Director in January 2009 when Z, the youngest, was only sixteen months old and Y and X were almost four and five years old, respectively. [ 16 ] The children were placed in foster care under immediate protective measures and their security and development were found to be in danger based on a serious risk of neglect resulting from the mother’s inability to care for her children when heavily intoxicated.

The children were returned to their mother on the condition that she receive a number of services to deal with her substance abuse. [ 17 ] On April 3, 2011, immediate protective measures were invoked again and the children removed from their mother’s care and

placed in foster care. [ 18 ] As it appears from the judgments dated June 16, 2011 [2] , the children had been suffering from chronic neglect as a result of their mother’s drinking and the two older children seemed especially affected (Y presented language delays and frequent urinating in bed at night whereas X appeared very distant from his mother and also frequently urinated in bed at night). [ 19 ] The children remained in foster care until February 10, 2012 when they were reintegrated to their mother’s care.

The children therefore spent ten months in foster care between April 2011 and February 2012. [ 20 ] As it appears from the judgments dated October 9, 2012 [3] , the mother relapsed again, soon after the children were returned to her care. In April 2012, she agreed to seek further services and to reside at the […] Women’s Shelter with her children in her efforts to maintain her sobriety. [ 21 ] Further relapses occurred in June 2012 and the mother was accepted to the City A Women’s Program with her three children which she completed in August 2012.

She then returned to the […] Women’s Shelter and finally appeared capable of returning home with her children by the end of September 2012. [ 22 ] The Court order was effective until October 2013. As it appears from the judgments dated February 14, 2014 [4] , by December 2013 immediate protective measures were invoked for a third time and the children placed in foster care following police involvement due to the mother’s intoxication. [ 23 ] Again, the mother made serious efforts to regain control over her life and the children were returned to her care.

However, the Court order was for a period of two years, as recommended by the Director, given the family’s history: [15] However, the cyclical recurrence of alcohol abuse over the course of many years more than justifies the length of the order sought by the Director of Youth Protection to ensure that the children’s needs are met and to reduce the risk of future relapses for the mother. [5] [ 24 ] Less than two months following the date of the order, the Director filed the most recent motions alleging yet another relapse. [ 25 ] It therefore clearly appears from the evidence that the children have been subjected to lengthy periods of instability and neglect since at least as early as January 2009.

Their situation has been reported to the Director a total of six times (in January 2009, February 2009, April 2011, December 2013, on April 4, 2014 and finally on April 8, 2014) They have been removed from their mother’s care under immediate protective measures on three separate occasions under traumatic circumstances for such young children. At the date of the hearing, they have spent over twenty months in foster care and the mother’s pattern continues to repeat itself despite her undoubtedly best intentions.

Moreover, it was not always possible to place the children together in emergency situations and as a result the children have been separated from each other on at least three occasions. In addition, the children have moved frequently, be it with their mother to accompany her for treatment in various residential facilities, or in foster care.

As summarized in the Addendum to the Court Report dated August 11, 2014: Despite the multiple attempts of in-treatment programs and accessing services of the [women shelter A] and [Pavilion A], A has continued to put Z and his siblings in high risk situations due to her substance use. As seen throughout this report, A has demonstrated the inability to maintain sobriety for long periods of time. Equally evident is the amount of instability Z and his siblings has faced in a short amount of time.

The children have experience (sic) five foster care placements and three changes to their school placement in five (5) years [6] (emphasis added). [ 26 ] The children have been placed with their current foster family from April 3, 2011 until February 10, 2012, for ten months, then from December 17, 2013 until February 14, 2014, for an additional two months, and finally from April 7, 2014 to date, meaning, at the time of the hearing, for an additional eight months. [ 27 ] The children have also spent time in respite care with the family. [ 28 ] Consequently, the foster family and the children have known each other for over three years and have lived together for over a year and a half. [ 29 ] The children are thriving in the foster family.

They are performing very well academically and they have become more expressive and outspoken. [ 30 ] Both foster parents testified at the hearing and affirmed without reservation their commitment to care for the children “for as long as we live”.

The foster mother describes the foster children as having truly blended with the family and formed a strong bond with the couple’s four children and two other foster children. [ 31 ] The foster parents appear to be remarkably caring, generous and compassionate. [ 32 ] Moreover, they have an excellent relationship with the mother and actively encourage the boys to maintain a strong bond with her. The foster mother brings the boys to visit the mother and approves of frequent contacts between the children and their mother. She has offered to welcome the mother to her home for visits.

She also offers her comfort and prayers when the mother appears distressed. [ 33 ] The mother calls the children on a daily basis and there are no signs of tension or resentment between the mother and the foster family. On the contrary, the mother acknowledges and appreciates the care they provide. THE LEGISLATION [ 34 ] The relevant sections the Youth Protection Act (YPA) are the following:

Section 3: Decisions made under this Act must be in the interest of the child and respect his rights. In addition to the moral, intellectual, emotional and material needs of the child, his age, health, personality and family environment and the other aspects of his situation must be taken into account.

Section 4: Every decision made under this Act must aim at keeping the child in the family environment. If, in the interest of the child, it is not possible to keep the child in the family environment, the decision must aim at ensuring that the child benefits, insofar as possible with the persons most important to the child, in particular the grandparents or other members of the extended family, from continuity of care, stable relationships and stable living conditions corresponding to the child's needs and age and as nearly similar to those of a normal family environment as possible.

Moreover, the parents' involvement must always be fostered, with a view to encouraging and helping them to exercise their parental responsibilities. If, in the interest of the child, returning the child to the family is impossible, the decision must aim at ensuring continuity of care, stable relationships and stable living conditions corresponding to the child's needs and age on a permanent basis.

Section 91.1: If the tribunal orders a foster care measure under subparagraph j of the first paragraph of

section 91, the total period of the foster care may not exceed (a) 12 months if the child is under two years of age on the date the order is made, (b) 18 months if the child is from two to five years of age on the date the order is made, or (c) 24 months if the child is six years of age or over on the date the order is made. When determining the duration of foster care, the tribunal must take into account the duration of any foster care measure applied to the same situation in an agreement on voluntary measures referred to in subparagraph j of the first paragraph of

section 54, as well as the duration of any prior foster care measure it ordered under the first paragraph. It may also take into account any prior period during which the child was placed or provided with foster care under this Act. 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. At any time during a period specified in the first paragraph, if the security or development of the child is still in danger, the tribunal may 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.

THE POSITION OF THE PARTIES [ 35 ] While the Director acknowledges that the total period in which the children have been in foster care has not exceeded the maximum duration prescribed under the YPA , the Director nonetheless argues that an order until the age of majority is necessary to provide the children with the stability and continuity of care to which they are entitled. [ 36 ] As for the mother, she opposes the children’s placement in foster care until the age of majority and invokes her firm resolve to redress the situation as well as her deep desire to have the children returned to her care.

A two-year order, she claims, would afford her the opportunity to make the necessary changes in her life. [ 37 ] Counsel for the children submits that the total period of foster care, which is twenty-four months given the children’s age, has not been exceeded, the children having been in foster care for only twenty months at the time of the final hearing.

He argues that an order until the age of majority prior to the expiry of the legal delays is an exceptional measure that is not justifiable under the circumstances. [ 38 ] Counsel refers to the criteria that must be met for the exception to apply as set forth by Justice Guy Gagnon in Protection de la jeunesse – 10174 : [106] Le cinquième alinéa de l'article 91.1 de la Loi envisage une situation exceptionnelle.

Il s'agit du cas où le D.P.J. peut mettre en avant un projet de vie durable à tout moment à la suite de la mise en place d'une ou de plusieurs mesures d'hébergement provisoire, sans toutefois que leur cumul excède la durée maximale des périodes d'hébergement fixées par le premier alinéa de l’article 91.1. L'application de cet alinéa suppose que:

a) une ou des mesures d'hébergement provisoire a ou ont déjà été mise(

s) en place;

b) la situation de l'enfant est toujours compromise que ce constat soit le résultat d'une décision antérieure du D.P.J. (articles 32

b) et 51 de la Loi) ou du tribunal (article 91 de la Loi);

c) la durée maximale des délais prévus pour des mesures provisoires n'est pas encore atteinte;

d) l'incapacité des parents à prendre l'enfant à charge est irréversible;

e) le D.P.J. est déjà en mesure de mettre en place un projet de vie durable. [107] Par cet alinéa, le législateur précise que les durées maximales établies par le premier alinéa de l'article 91.1 de la Loi ne constituent pas des minima. Il est donc possible de prononcer une ordonnance de placement à long terme à tout moment à l'intérieur d'un des délais prévus à cet alinéa. [7] [ 39 ] More particularly, counsel argues that the fourth criteria is absent, namely:

d) l'incapacité des parents à prendre l'enfant à charge est irreversible . He concedes that the four other criteria are met. He essentially argues that the mother’s incapacity is not irreversible and that an order until the age of majority is not warranted. He approves of the two-year order suggested by the mother.

ANALYSIS [ 40 ] No cases were submitted in which the courts have interpreted the meaning of the word irreversible. [ 41 ] In order to do so, it is important to recall the purpose of the legislation in establishing specific total periods of foster care which may not be exceeded as well as the general principles which guide the courts in applying the exceptions provided for by the YPA , both to make an order aimed at ensuring continuity of care, stable relationships and stable living conditions on a permanent basis before the delays have expired or to defer such an order although the delays have been exceeded. [ 42 ] The purpose of defining delays that ought not to be exceeded is to ensure that children benefit from stable living conditions and to prevent them from living indefinitely under uncertain circumstances.

In Protection de la jeunesse-10174 , Justice Gagnon writes: [70] L'intention du législateur apparaît des propos de la ministre tenus lors de la Commission parlementaire des affaires sociales le 5 juin 2006: […] c'est le nœud, l'article 22, l'article 52 sont le nœud en fait important de ce projet de loi là.

Si le gouvernement a choisi d'introduire des durées maximales de placement, c'est que le gouvernement souhaite mettre fin à ces nombreux allers-retours que les enfants vivent , les enfants qui sont sous la protection de la jeunesse, que les enfants vivent régulièrement [8] (emphasis added). [ 43 ] The courts, however, have consistently emphasised a large measure of discretion in the application of the principle and exceptions to any particular situation.

Each order must be specifically tailored to the circumstances of each individual child and blind mathematical computations leading to automatically imposed consequences are proscribed: [71] La lecture de certains jugements de la Cour supérieure et de la Cour du Québec laisse voir que, dans l'ensemble, les tribunaux sont réfractaires à interpréter l'article 91.1 de la Loi comme signifiant qu'une fois la période maximale de placement provisoire atteinte, le tribunal perd son pouvoir d'apprécier la situation de l'enfant .

Au cas contraire, sa discrétion se limiterait à sanctionner l'effet juridique de l'écoulement du temps avec comme seule conclusion possible l'ordonnance de mesures permanentes, opinion généralement rejetée par la jurisprudence. […] [89] La Loi ne prévoit cependant aucune forme d'automatisme qui oblige le tribunal à rendre une mesure permanente de façon aveugle à l'approche des délais prescrits. Le rôle du tribunal demeure entier.

Il ne peut se résumer à sanctionner simplement l'écoulement du temps sans égard à l'intérêt de l'enfant. [94] L'ensemble des dispositions de la Loi attribuant un pouvoir d'intervention au tribunal ne laisse voir, d'une façon ou d'une autre, que la compétence qu'il exerce sur l'enfant s'épuise par le simple écoulement du temps, si ce n'est le cas où l'enfant cesse de l'être lorsqu'il atteint sa majorité. Toute forme d'automatisme nie la pleine reconnaissance du principe conféré par l'article 3 de la Loi.

En effet, une telle interprétation est de nature à priver le tribunal de sa capacité d'apprécier la situation de l'enfant selon son intérêt. Je ne peux donc concevoir que l'article 91.1 de la Loi échappe au principe selon lequel toute décision prise sous son empire doit l'être dans l'intérêt de l'enfant et dans le respect de ses droits. [95] C'est d'ailleurs par le biais du quatrième alinéa de l'article 91.1 de la Loi que la rigueur de l'obligation faite au tribunal est tempérée.

Par cette disposition, le tribunal conserve un certain pouvoir discrétionnaire, lequel est balisé par les conditions qui y sont mentionnées. [9] [ 44 ] It is with these broad principles in mind that the court assesses whether the mother's inability to care for her children is irreversible or not. [ 45 ] The ordinary meaning of the term irreversible is "impossible to change".

Insofar as the mother's inability results primarily from her substance abuse it can be argued that it is reversible since she may succeed in remaining sober. [ 46 ] However, I believe that the critical question under the circumstances is to determine within which delay the inability may be reversible, if at all. [ 47 ] If the inability is irreversible within the short term following the expiry of the delays prescribed by the YPA , then, in my view, it must be considered irreversible for the purposes of determining whether the exception at sub-section 5 of

section 91.1 applies. [ 48 ] It is of little relevance from the child's perspective to know whether an inability is irreversible in absolute terms - rather, it is essential, in order to assess the child's interest, to know whether the inability is irreversible during the period within which the child can reasonably be expected to hope for a reversal or, in other terms, within which the child ought to be maintained in a situation of uncertainty.

[ 49 ] In other words, if there is no doubt that the inability cannot be reversed before the delays are exceeded, nor prior to the expiry of an additional delay that would give rise to the exception at subsection 4 of

section 91.1 (that is: “if it is expected that the child will be returned to his family in the short term”), then the delay must be deemed to be irreversible. [ 50 ] A narrower

interpretation of the requirement that the inability be irreversible - that is, categorically and absolutely irreversible, without any possibility for change, ever - would lead to an absurd result: it would prevent the court from making an order aimed at ensuring the child’s stability on a permanent basis, despite the absolute certainty that the situation is irreversible within a relatively short delay within which the court would be wholly justified to render just such an order. [ 51 ] Under the present circumstances, it should be recalled that it is not only the mother's substance abuse that has impacted her children, it is her numerous relapses over the course of the past six years that have caused major upheaval in her children's lives, as summarized at paragraph 25 above.

Even if the mother were to cease consuming any drugs or alcohol immediately, it would be impossible for her to demonstrate, within the prescribed delays, her ability to remain sober for a sufficient length of time to establish that the likelihood of exposing her children to the devastating effects of another relapse was minimal. As such, her inability to care for the children is irreversible.

Given the mother's long-standing history of substance abuse, she would need to prove a sufficiently long period of abstinence, measured in years not months, to demonstrate a significantly reduced risk of relapse. [ 52 ] The two-year order proposed by the mother appears to be totally arbitrary as she herself acknowledges at the last hearing that she is still drinking and does not know how long it will take her to stop. Her position for the moment is based purely on wishful thinking and there is no indication that she is less likely to relapse in the future than she has in the past.

There is no evidence that the children would not continue to be exposed to a serious risk of relapse and ensuing trauma and disappointment, especially considering the mother’s pattern of relapsing under stress, including the considerable stress resulting from having her three children under her care. [ 53 ] An order until the children reach the age of majority therefore appears necessary to ensure that the children do not continue to be exposed to the instability the new legislation was precisely intended to avoid. [ 54 ] The court's order must be rendered with a view to fulfilling the children's needs, respecting their rights and interest.

It cannot be primarily aimed at keeping the mother's hopes and motivation alive, however well-intentioned or deserving of compassion she may be. [ 55 ] The children are thriving in a loving foster family that is committed to their well-being and is also supportive of their mother and their relationship with her. [ 56 ] The court concludes that an order until the children reach the age of majority is not only possible but in their best interest. [ 57 ] The court nonetheless strongly encourages the mother to pursue her goals to be as present as possible for her children, knowing that, when and if circumstances change, an application for revision remains possible.

THEREFORE, THE COURT: [ 58 ] GRANTS the motions; [ 59 ] DECLARES that the security and development of the children, X and Y and Z , remain compromised under the Youth Protection Act ; AS FOR THE MEASURES, THE COURT DEEMS IT TO BE IN THE CHILDREN'S INTEREST TO ORDER THE FOLLOWING MEASURES: [ 60 ] TAKES JUDICIAL NOTICE that the Director of Youth Protection has identified the foster family of C and D to meet the children's long-term needs; [ 61 ] ORDERS that the children remain entrusted to the foster family of C and D; [ 62 ] ORDERS that the frequency and modality of contacts between the children and their mother be determined by consent amongst the parties; in the absence of an agreement between the parties ORDERS that contacts be authorized minimally once a week; ORDERS that contacts be encouraged taking into account the children’s wishes and interest; [ 63 ] PROHIBITS contacts between B and the children; [ 64 ] RECOMMENDS that the mother seek substance abuse treatment and counselling; [ 65 ] RECOMMENDS that the mother continue to access services through the […] Women's Shelter, including individual therapy; [ 66 ] RECOMMENDS that the mother submit to random drug/alcohol testing at the request of the Director of Youth Protection TAKING JUDICIAL NOTICE of her consent; [ 67 ] ORDERS that a person working for [Youth Protection Center] provide aid, counsel and assistance to the children and their family; [ 68 ] ENTRUSTS the situation of the children, X and Y and Z , to the Director of Youth Protection A, who shall then see that the measures are carried out; [ 69 ] ORDERS the execution of the present judgment by any peace officer, if deemed necessary; [ 70 ] THE WHOLE until the children each reach the age of majority, namely on […], 2021 in the case of X; on […], 2023 in the case of Y and on […], 2025 in the case of Z.

TAYA DI PIETRO, Q.C.J. Me Isabelle F. Loranger Attorney for the Director of Youth Protection Me Bernard Sepinwall Attorney for the children Me Judith Ann Shapiro Knight Attorney for the mother TD/vl