2022 QCCQ 14018, 2022 QCCQ 14018

Protection de la jeunesse — 228639 2022 QCCQ 14018 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] “Youth Division” N o : 450-41-008167-216 450-41-007669-204 DATE : March 29, 2022 Septembre 5, 2022 , for X September 5, 2022, for Y ______________________________________________________________________ BY THE : HONOURABLE LISE GAGNON, J.C.Q. ______________________________________________________________________ X Born on [...], 2021 Y Born on [...], 2019 Children -And - [SOCIAL WORKER 1] , person duly authorized by the Director of Youth Protection of the CIUSSS A Applicant -And- A -And- B Parents ______________________________________________________________________ JUDGMENT (article 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 9.2, 9.3 and 135 Y.P.A.). [ 1 ] The Director of Youth Protection (DYP) has been involved in the situation of Y since 2019 due to his parents’ substance abuse issues and a conflictual conjugal relationship that was putting Y at risk of neglect. Due to the forgoing, Y has been living with his paternal grandmother and her spouse since August of 2019.

[ 2 ] In the fall of 2020, when the Court reviewed the situation, the parents had made some progress but the DYP pleaded that the one-year maximum delay for placement was impending and that the parents’ situation remained too fragile to return Y to their care. Accordingly, the DYP recommended that Y be entrusted to his grandparents until his majority. [ 3 ] After hearing the evidence, the Court decided to delay that decision for six months, considering the parents’ efforts and some emerging results.

The Court wanted to evaluate if the parents’ situation was stable before deciding on Y’s life plan. [ 4 ] Following that decision, the DYP presented a motion for the grandparents to be appointed tutors to Y. [ 5 ] At the time this motion was presented, the mother was pregnant with her second child. The parents were maintaining their sobriety and their personal relationship was improving.

Moreover, the DYP informed the Court that he intended to recommend that the new baby remain with the parents. [ 6 ] Considering all of these elements, the Court decided to dismiss the DYP’s motion for a tutorship and recommended that the DYP reconsider Y’s life plan under the Youth Protection Act , in conjunction with the new baby to come: if X was safe and secure with her improved parents, Y’s life plan could feasibly be a reunion with his parents and sister; on the other hand, if the parents failed to maintain their progress on a mid-term basis, Y would remain with his grandparents. [ 7 ] Today, the DYP submits that the parents have been doing well since the last Court intervention and that X who is now 10 months old can remain with her parents despite a remaining risk of neglect stemming from the original situation. [ 8 ] For Y, however, the DYP submits that he has been living with his grandparents for 3 years now and that his best interests would be to stay with his grandparents until his age of majority.

The time of initial placement has been surpassed and Y is stable with his grandparents, pleads the DYP. Y’s history is different than X’s, says the DYP, and his best interests would be better served by not running the risk of re-integration with his parents. Extended visiting rights with his parents on weekends could be favoured according to the DYP’s vision. [ 9 ] The parties agree with the DYP’s recommendations for X. [ 10 ] However, for Y, the parents would like to regain his custody or work to regain it in the coming months. The parents want Y to benefit from his mother’s Inuit heritage.

The parents plead that the amended Youth Protection Act now prescribes that the Indigenous culture be preserved. X is raised with the benefit of her mother’s Inuit culture. The parents would also like Y to benefit from this maternal heritage. [ 11 ] The attorney for Y submits that the present situation is unique and might require a unique solution. Y has certainly found a stable life with his grandparents that must not be jeopardized.

On the other hand, the parents have remained stable for more than 18 months now and Y benefits from positive visits with his parents every week. [ 12 ] However, to protect Y’s stability without depriving him of a possible return to the parents, she recommends that Y’s situation be reviewed in a year.

This time frame would allow the Court to evaluate if the parents’ situation remains stable in the midterm, determine how Y reacts to the visitation rights at home that will increase shortly and decide at a reasonable future date what plan would be in his best long-term interests. [ 13 ] The Court is of the view for the reasons explained herein that the best interests of Y are better served by a progressive return to his parents. As for the delay to do so, a period of 6 months appears sufficient to accomplish the transition between two households. ANALYSIS 1.

The law [ 14 ] The Youth Protection Act was amended on April 26, 2022 with a new

preamble and sections that articulate the following principles: [ 15 ] The paramount principle is the interest of the child who is the primary consideration in application of the Act [1] . Under the umbrella of the interest of the child, other principles must be evaluated. In Y’s situation, these principles are the stability of the child, the importance of preserving his Indigenous culture and the law’s desire to keep siblings together. 1.1 The stability of the child [ 16 ] The Act’s

preamble prescribes that the emotional stability and security of a child are major determinants in ensuring the child’s healthy development [2] . [ 17 ] The Act prescribes that after a certain period of placement (one year in Y’s situation), if returning the child to his family environment is not in his interest, the decision must, on a permanent basis, ensure continuity of care and the stability of his relationships and of living conditions appropriate to his needs and age [3] . [ 18 ] Y has been living with his grandparents for three years. The usual delay to determine a life plan has been surpassed.

The Court must make a decision that will maintain his stability on a long-term basis. 1.2 The indigenous factor [ 19 ] The new

preamble of the Act prescribes that the courts must recognize the specificity of children who belong to minority groups, such as children belonging to ethno cultural communities [4] . [ 20 ] More specifically, the

preamble reads that Indigenous persons are best suited to meet the needs of their children and cultural

safety is essential to the well-being of Indigenous children. Interventions in respect of an Indigenous child must be carried out taking into account the circumstances and characteristics of the environment in which he lives so as to respect his right to equality and foster cultural continuity [5] . [ 21 ] Maintaining Indigenous culture has become an essential element to consider in deciding where the best interests of the child lie.

Section 131 of the Act highlights how important the role of Indigenous culture is in determining actions taken under the Act:

Section 131.1 The provisions of this

chapter are aimed at adapting the other provisions of this Act to the Indigenous people, taking into account historical, social and cultural factors that are specific to them. They also aim to foster (

a) a holistic approach; (

b) cultural continuity; …. (

e) the relationships of the child with multiple persons who are important to him. …..

Section 131.3 Every decision made under this Act in respect of an Indigenous child and any other intervention concerning him made under this Act must foster the cultural continuity of that child. Institutions, bodies and persons having responsibilities towards a child under this Act and persons called upon to make such decisions shall consider, as one of the possible interventions to be made in respect of the child and his parents, having recourse to the available customary and traditional care, if made aware of it.

Section 131.4 In determining the interest of an Indigenous child, in addition to the factors listed in the second paragraph of

section 3, the following factors must be taken into consideration: (

a) the culture of the child’s Indigenous community, including the language, customs, traditions and spirituality; (

b) the child’s relationships with his extended family and members of that community; (

c) the child’s access to the territory surrounding that community and other places that its members frequent; and (

d) the sociohistorical traumas of Indigenous people and their socioeconomic conditions. …… [ 22 ] The forgoing does not mean that cultural heritage is more important than the protection of the child. Otherwise, Indigenous children would have less protection than other children, which would be unfair. But it means that the Court must look into solutions that will maintain the child’s cultural heritage alive as much as possible.

The child should live with adults that are the most capable of transmitting his cultural heritage, but always, without jeopardizing his security and development. [ 23 ] This is a fine balance and must be evaluated carefully in each case.

Every child, family and community are unique. 1.3 Keeping siblings together [ 24 ] The Act also adds that when the child is removed from his family environment, keeping the child and his siblings in the same alternative living environment must be favoured, provided it is in the child’s interest. [6] [ 25 ] If this is a criteria to consider when children are to be entrusted to a foster home, it is certainly a criteria when it comes time to decide if a child should be separated from his sister who remains under the parents’ responsibility. 2.

The law applied to the facts 2.1 Is the return to the parents’ home in Y’s interest? [ 26 ] In September 2020, when the Court made its earlier decision, the criteria to decide if a life plan had to be ordered were different.

The DYP had to prove that the return was impossible. [ 27 ] At the time, the Court determined that the return was not impossible and that the interest of the child was to evaluate the situation over an additional 6-month period to see if the parents would maintain their improved situation and if Y’s return to his parents would be possible. [ 28 ] For a host of procedural reasons, the 6 months became almost 2 years. [ 29 ] Notwithstanding, the Court must now determine within the ambit of the Act whether Y’s return to his parents’ home is in his best interest or not. [ 30 ] In this very particular case, despite the fact that Y has been living with his grandparents for 3 years, the Court is not convinced

that Y’s best interests lie with maintaining him with his grandparents until his age of majority, as recommended by the DYP. [ 31 ] Firstly, the parents have maintained their stability and that is what the Court wanted to evaluate in September 2020 when the Court postponed the filing of a permanent life plan. [ 32 ] While the parents’ situation still needed to be improved in September 2020, since then, the parents have proven to be up to the task. [ 33 ] The father has been participating in a follow-up program with the Centre de réadaptation en dépendance A (CRD[A]) for substance abuse.

He also participated in a follow-up with [Organization A] for anger management. The mother has also benefited from a follow-up with CRD[A] and her file was closed because she has remained sober for a substantial period of time. [ 34 ] Both parents have been receiving help for their relationship at [Organization A]. [ 35 ] Both parents have remained sober and there has been no episode of conjugal violence for almost two years.

The various follow- ups have been yielding positive results to the point that the parents have maintained custody of X and that supervision during contact with Y was lifted. [ 36 ] Secondly, the parents have good parental skills and they are working as a team. The nurse from the Program SIPPE has only positive comments on the parents’ method of caring for X. The mother can meet the childrens’ needs. She is affectionate. She is singing songs to the children. She plays with them constructively. There is only one reserve. The mother has a hard time to put limits on Y’s behaviour.

She tends to laugh when he misbehaves and Y doesn’t take her seriously. This aspect of her educational methods could be worked on over time. [ 37 ] Thirdly, the mother is from an Indigenous background and speaks her native language, Inuktitut, with X. She would like her son to be raised in his mother tongue and culture, just like his sister which, according to the Act, should be encouraged because it is in the interest of the child. [ 38 ] Fourthly, Y sees his parents and X every week and the visits are so positive that the DYP wants to increase them to weekend visits.

For a life plan to work, it must be clear and easy to understand. As Y matures, he will be shortly asking questions: Why do I just see my parents on weekends while my sister lives with them? Why don’t I speak my mother’s native language as my mother and sister do? Why do I visit my parents every weekend if I am supposed to anchor myself at my grandparents’? This does not seem a clear life plan for a young child to understand. [ 39 ] Finally, the relationship between the parents and the grandparents which has been difficult while the parents were struggling with their problems has improved.

However, it remains fragile as the parents and grandparents have different views on who should have direction over Y’s future. Y could be exposed to a potential conflict of loyalty in a near future. 2.2 The life plan [ 40 ] The positive growing contacts between Y and his parents and his sister, combined with the progress of the parents, the exposure to Indigenous heritage, all militate in favour of an attempt to reintegrate Y with his parents. [ 41 ] To do so, a 6 month delay appears sufficient.

This will allow the Court to evaluate whether the parents maintain their stability and how Y adapts to the new family dynamic. [ 42 ] The parents and grandparents must now work in this direction with a sense of family collaboration. [ 43 ] The social follow-up will be maintained for a year to consolidate this life plan. FOR THESE REASONS, THE COURT: [ 44 ] GRANTS the present application for protection; [ 45 ] DECLARES that the security and development of the child X are in danger pursuant to

article 38 ( b ) (2) (serious risk of neglect) of the Youth Protection Act ; [ 46 ] PARTIALLY GRANTS the present application for revision in the situation of Y; [ 47 ] DECLARES that the security and development of the child Y are still in danger pursuant to

article 38 ( b ) (2) of the Youth Protection Act (serious risk of neglect); [ 48 ] ENTRUSTS X to her parents; [ 49 ] ENTRUSTS Y to the proximal foster family of Mrs. C and Mr. D; [ 50 ] AUTHORIZES in Y’s favour contacts with his parents after agreement and according to the modalities set with the Director of Youth Protection; [ 51 ] AUTHORIZES the progressive reinsertion of Y with his parents over a period of 6 months; [ 52 ] Once the reintegration completed, AUTHORIZES contact between Y and his grandparents according to his needs and the modalities set between the parties;

[ 53 ] ORDERS that the parents report periodically to the Director of Youth Protection on the measures they apply in their own regards or in their children’s regards to put an end to the situation in which the security or development of the children is in danger; [ 54 ] ORDERS that the parents take an active

part in the application of the measures ordered namely that they collaborate in the elaboration of the intervention plan and the social follow-up with transparency; [ 55 ] RECOMMENDS that the parents continue to participate in the SIPPE follow-up as long as necessary; [ 56 ] RECOMMENDS that the mother participate in the CRD[A] follow-up if she feels fragile again; [ 57 ] TAKES JUDICIAL NOTICE of the parents’ commitment to offer to their children an environment without violence, alcohol and drug abuse; [ 58 ] ORDERS that the parents inform the Director of Youth Protection without delay of any change in their situation; [ 59 ] ORDERS that a person working for the Director of Youth Protection of CIUSS A or any other establishment or body provide aid, counselling and assistance to the children and their family for a period of one year ; [ 60 ] ENTRUSTS the situation of the children X and Y to the Director of Youth Protection to see the measures are carried out. __________________________________ Lise Gagnon, J.Q.C.

M e Marie-Pier Trépanier For the Director of Youth Protection M e Karolanne Bonin For the mother M e Annie-Pier Babineau For the father M e Kim Dingman For the children Dates of hearing : March 29, 2022, & July 5, 2022 Last exhibits : D-11 (the Director),M-3 (the mother) and P-12 (the father)