2017 QCCQ 16626, 2017 QCCQ 16626

Protection de la jeunesse — 176347 2017 QCCQ 16626 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 105-41-000438-177 DATE: July 21, 2017 ______________________________________________________________________ BY THE HONOURABLE JANICK POIRIER, J.C.Q. ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION Applicant -and- X born on [...], 2011 Child -and- A -and- 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.). [ 1 ] Stating that the child is neglected and submitted to a serious risk of neglect, the director of youth protection (DYP) asks the Court to declare that his security and development are in danger. [ 2 ] Both parents deny that the DYP should intervene in their child's life. At the end of the hearing, the child's counsel shares the DYP's position. [ 3 ] The parties do not dispute that the family has to cope with some issues.

However, the Court has to determine if the child is neglected because of a lack of stimulation and/or if there is a risk of neglect because of the parents' drug use. [ 4 ] The evidence reveals the following situation. [ 5 ] The child is six-year old and, until recently, he lived with both parents. His grandmothers are also involved in his daily life. [ 6 ] Since his birth, the child's situation was reported to the DYP on several occasions.

In the past, the DYP seizes the Court with an application for protection once, but withdraws it the day of the hearing. [ 7 ] The situation is reported to the DYP, once more, on December 14, 2016. On that day, an incident takes place in school, where the child attends kindergarten. The child refuses to go home after school, he hides inside when it is time to go take the bus. He tells his teacher he wants to go to his nanny's. The teacher states that it happens a few times each week that the child does not want to go home. However, it grows out of proportion that day.

When she asks why he refuses to go home, the child tells his teacher that it is rough at home. [ 8 ] Someone from school tries to call the parents but does not succeed. Finally, the mother is reached and comes to school, with the grandmother. Meanwhile, the DYP is also asked to intervene, and two social workers arrive. The child becomes hyper, the mother blames the school for the situation and the child ends up leaving with his grandmother, while a social worker meets with the mother. [ 9 ] On that day, the mother tells the social worker she is a victim of domestic violence.

She also admits that sometimes the child can hear his father yelling at her. Afterwards, the mother denies providing that statement to the social worker, but the Court believes she

did. [ 10 ] At the time, the DYP's opinion is to the effect that the child is in need for protection for suffering from psychological ill- treatment, being exposed to conflicts between his parents. However, the DYP now states that it is not the case anymore, since the parents' separation and the Court should not retain that the child is in need of protection for that reason. [ 11 ] While assessing the situation, the DYP receives new reports concerning the child, in February 2017. The reports are about the child being at risk of sexual abuse, because of the presence at home of the mother's half-brother.

On that matter, the evidence reveals that the parents are not aware, at first, of that man's issues related to sexual abuse. They eventually learn it, from the social worker, after the man has left. [ 12 ] In fact, the mother's half-brother stays with them for about a month and is never left alone with the child. He never meets with the child afterwards. Therefore, the Court cannot conclude to a serious risk of sexual abuse. [ 13 ] As mentioned earlier, the DYP, after assessing the situation, argues that the child is in need of protection for being neglected and because of a serious risk of neglect.

More specifically, the DYP refers to a lack of stimulation and the parents' use of drugs. What is the relevant evidence on those topics? [ 14 ] As for a risk of neglect in relation with drugs, the evidence is close to non-existent. The mother tells the social worker both parents smoke marijuana, sometimes at night. Since they struggle with money issues, marijuana is a luxury for them and not a daily habit.

One could question the parents' priorities and morality, smoking drugs which are still illegal, but it does not, in the case at bar, cause a serious risk of neglect. [ 15 ] The alleged lack of stimulation is more worrying. [ 16 ] In order to decide on that matter, the Court has to globally assess the evidence, but to keep itself from speculating. [ 17 ] The DYP alleges that, since the child was born, multiple attempts to provide the family with services failed because the parents refuse any help but from a speech therapist. However, the evidence reveals a more balanced picture.

The child has regular medical follow-up and the mother is present at every appointment. He is also followed by a nurse for about two years. [ 18 ] Moreover, the mother participates to a program called Destination Famille, which offers weekly activities. She is also involved with her son's school, being a member of the governing board. [ 19 ] Nevertheless, the child's development suffers some delays. According to his teacher, his language, fine motor and social skills all need to improve.

The school principal, who also teaches gym, adds that the child, at the end of the school year, is still quite behind. [ 20 ] The incident that takes place in school on December 14, 2016, is also troubling. However, it may have to do with the parents' conjugal problems at the time, which lead to their recent separation. The Court believes the teacher when she says the child tells her it is rough at home. However, the parents' separation certainly has an impact on the ambience at home. [ 21 ] On December 14, the child is happy to see his mother, even though he does not want to leave with her.

The mother's reaction on that day has to be looked at. At first, she is mad when she comes to school. She is obviously not happy with the fact that the DYP was called. However, the mother calms down and cooperates with the social worker that night. The school principal adds that she is very frustrated on that day but her collaboration is generally good. [ 22 ] The mother tends to minimize her child's difficulties, but to which extent? [ 23 ] Several people, from the mother to the social worker, describe the child as very shy. He is quiet and will not talk to strangers.

The mother says, however, that he knows everything a child his age would know, but just will not say it. It is more likely that the real picture is less perfect. As noticed by the teacher, the child has some developmental issues. [ 24 ] Nevertheless, the evidence does not convince the Court that the mother refuses all services. As for the speech therapist, the child is on a waiting list for a while. When he finally sees an English-speaking speech therapist, the follow-up ends after about four meetings, because the professional would have quit his job.

In fact, what the mother refuses is to be involved with the DYP. [ 25 ] During the month between the two days of the hearing, the parents split up and the mother undertakes steps to move to [Country A] with her son. The DYP argues it is another reason to conclude that the child is in need of protection. The mother's plan raises concerns. The mother testifies about that plan, and foresees no difficulty. She says she will get her family allowances, has a one-year tourist visa and will sign up her son for school there. She also wishes to enter college. An old friend of her lives in City A.

She also knows a man, met online, who is willing to welcome them and help. That man would pay for their plane tickets. In the company of the mother, the social worker talks to him on the phone the day of the hearing. [ 26 ] The mother says she took a year to plan, because she has a child. She is confident that life will be better for herself and the child in [Country A]. [ 27 ] There is most likely some wishful thinking about how the mother foresees the move to a foreign country. [ 28 ] Obviously, the mother wants a fresh start for her and her son.

Asked about the child's needs, the mother answers: "to be judged as him not us". She adds that people in this area see him as his father's son. She probably suffers from being labelled and hopes for a better life for her son. [ 29 ] The mother says if she leaves, it will be with her son. She states she will make sure he has contacts with his father. Nevertheless, she believes the father, on his own, is not able to take care of the child on a daily basis.

[ 30 ] The father shares the mother's opinion about the fact that they do not want to deal with the DYP. He considers he does not need that help. As for the mother moving to [Country A] with the child, the father says it is heartbreaking and he will miss both of them. [ 31 ] The DYP considers that the child suffers from neglect, concerning education. The relevant

section of the youth protection act reads as follows: 38. 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, […].

In this Act, (a) […] (b) “ neglect ” refers to (1) a situation in which the child’s parents or the person having custody of the child do not meet the child’s basic needs, i. […] ii. […] iii. failing to provide the child with the appropriate supervision or support, or failing to take the necessary steps to provide the child with schooling; or (2) a situation in which there is a serious risk that a child’s parents or the person having custody of the child are not providing for the child’s basic needs in the manner referred to in subparagraph 1; (c) […] [ 32 ] The child's counsel shares the position of the DYP and pleads the child should not go to [Country A]. [ 33 ] The mother's plan to move to a distant country is not common.

However, such a project does not, in itself, put a child's security or development in danger. [ 34 ] After we put aside situations that are not present anymore, like conjugal conflicts or that are not supported by the evidence, like a risk of sexual abuse or a risk of neglect because of substance abuse, what is left? [ 35 ] The Court agrees with the DYP's counsel when she pleads that the mother's lack of worries is worrying. [ 36 ] Of course, the child is shy, that is undisputed. However, his timidity does not explain everything. He has some developmental delays.

The Court does not believe he is at the same level as the average kindergarten kid. The mother minimizes his difficulties. Doing so, can we conclude that she fails to meet his basic needs? [ 37 ] The mother is far from perfect. She is a young woman who struggles with the hazards of life. As she puts it she was "stuck in the system" when she was younger. She is very reluctant to youth protection services. However, she is involved and cooperates with other professionals, including school. [ 38 ] The child's situation is reported to the DYP on numerous occasions through the years.

Nevertheless, the Court has to decide from the submitted evidence. [ 39 ] That evidence, looked at and assessed as a whole, does not convince the Court, on the balance of probabilities, that the child's security or development is in danger. WHEREFORE , THE COURT: [ 40 ] DISMISSES the application for protection. __________________________________ JANICK POIRIER, J.C.Q. Me Mylène Pelletier-Rivet

Attorney for the applicant Me Annie Dupuis Attorney for the child Me Alexis Deschênes Attorney for the parents Dates of hearing: June, 6 and July 3, 2017