2020 QCCQ 13368, 2020 QCCQ 13368

Protection de la jeunesse — 209340 2020 QCCQ 13368 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 640-41-002131-172 DATE: October 6, 2020 (written judgment rendered on October 19, 2020) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2008 [SOCIAL WORKER 1] and [SOCIAL WORKER 2] , Youth Protection worker, duly authorized by the Director of Youth Protection A, working in [...] Applicant and A, residing and domiciled at [...] Mother and B , deceased Father ______________________________________________________________________ JUDGMENT ON AN APPLICATION FOR DISCONTINUANCE ______________________________________________________________________ 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 ] The Director of Youth Protection (DYP) filed an application to review a decision rendered on November 21, 2019, regarding the child X, born on [...], 2008. At that date the Court declared the security and development still endangered and entrusted the child to a foster family, namely Ms. C, until November 30, 2020. [ 2 ] An application for provisional measures was attached to the application under

section 95 YPA. The DYP submitted that the situation does not allow to maintain the child with Ms. C and suggested that he be entrusted to his aunt Ms. D until the hearing on the merit. The undersigned granted this application on March 17, 2020. [ 3 ] The hearing under

section 95 was fixed on May 19, 2020. Unfortunately, this hearing never proceeds as X was declared missing on March 21, 2020. Research was done, but without success. After X was declared deceased, the DYP filed a discontinuance. [ 4 ] This situation justifies a written decision. History of the situation [ 5 ] On November 21, 2017 , the situation of X was submitted to the Court. He was 9 years old. His father was deceased. His mother suffered from schizophrenia which affected her parental capacities. The mother did not respect her medical prescription.

The situation of X and his older brother was known from the DYP since April 2014. Voluntary measures had been signed and since that time, the children were entrusted to a foster family. X was entrusted to many different foster families since the beginning of the DYP involvement (around two years). He was at that time with Ms. E and he was doing well. The mothers had irregular contact with her son.

The Court declared that the security and development of X were endangered [1] and entrusted him to a foster family until July 25, 2018, with the help of an external educator. [ 6 ] On July 25, 2018 , the Court was seized with the revision and ratified a draft agreement. X improved his behaviour at school. He stayed at Ms. E, and he was still doing well. The Court entrusted him to Ms.

E until July 12, 2019. [ 7 ] On July 12, 2019 , because of the weather conditions, the family was not able to travel and the Court maintained the measures under a provisional order. [ 8 ] On September 9, 2019 , because X was hospitalized in Montreal following an accident with a firearm, the file was postponed and X was maintained in a foster family. [ 9 ] On November 21, 2019 , the Court revised the situation. Following the last order, X remained with Ms. E.

The beginning of his school year (2018-2019) was difficult because of his aggressive behaviour, but the situation improved a lot and no more intervention was needed on this aspect. X appreciated the E’s family a lot. He was there since November 15, 2017. Before that, he was transferred 21 times. He was stabilized well at the E’s family, which brought the DYP to request firstly a majority placement with the E’s family.

[ 10 ] Unfortunately, on August 14, 2019, X, after coming back home from hunting with Ms. E’s spouse, made a bad manipulation and was shooting himself in the head. After being medevaced to Puvirnituq, he was transferred to Montreal. He received surgery and stayed hospitalized in intensive care more than two months. He was unable to move nor to speak, but after the surgery, he recovered very well and in November, he was back in his village and was doing very well. Despite the regular medical follow-up he will have for the rest of his life, no sequelae were noted.

Once he was able to speak, he was seen by a child psychiatrist regarding suicidal risk whom confirmed that he had no worrisome behaviours nor ideation. [ 11 ] The E’s family stayed close to him in Montreal during the whole hospitalization. Just before X been back following his discharge, the DYP realized that the E’s family was evaluated , but not accredited as a foster family. Doing so, the DYP who requested at that time a majority placement, decided to proceed with the whole evaluation and looked at Mr. F’s criminal record. The DYP learned that Mr.

F was founded guilty of sexual contacts on a minor-aged of less than 16 years old in 2010, and he was also guilty of sexual exploitation on a youth aged in between 16 to 18 years old in 2015. Dr. Beltempo, the psychologist who was supposed to meet with X, was informed of this situation and of the necessity to remove X from the E’s family. After his meeting with X, he told the DYP representative to be very careful during the transfer because the risk that X feels rejected from the E’s or guilty, was very high.

Despite this recommendation, the DYP worker was totally unable to inform the Court of the modalities of the transfer and about X’s reaction. [ 12 ] X was entrusted to Ms. E’s daughter, Ms. C in the same village with a prohibition to be alone with Mr. F. Ms. C was not accredited as a foster family. [ 13 ] The Court declared that the rights of the child have been wronged and ordered as corrective measure that the process of accreditation has to take place urgently to reduce as much as possible the risk of prejudice for X who already had a very difficult year.

Because of the whole situation, the Court was not able to proceed with a long-term placement, even if the period of 91.1 YPA was reached. X had to wait again before making a long-term decision. [ 14 ] The Court decision was the following: [30] GRANTS the application; [31] DECLARES that the security and development of the child X, born on [...], 2008, are still endangered; [32] DECLARES that the rights of X have been wronged by the Director of Youth Protection; [33] ENTRUSTS X under the care of Ms.

C, as foster family if she is accredited as such; [34] ORDERS the Director of Youth Protection to prioritize the process of accreditation of Ms. C as a foster family; [35] Before this process of accreditation is completed, ORDERS the Director of Youth Protection to check the criminal record of all the adult living in Ms. C’s house; [36] ORDERS that X never be left alone with Mr. F; [37] ORDERS that the child attend school on a daily basis; [38] ORDERS that X receive all health care and services required by his situation; [39] ORDERS that the recommendations of Dr.

Joseph Beltempo in the situation of X are followed including any other evaluation he could recommend ; [40] ORDERS that Ms. C be informed of the recommendations made by Dr. Beltempo and that she receive help to apply those recommendations; [41] ORDERS that any recommendations made by the psychologist regarding schooling be communicated to the school and ORDERS the Director of Youth Protection to make sure those recommendations be applied; [42] RECOMMENDS that the mother seek help through Social Services concerning her personal issues; [43] ORDERS that the mother take an active

part in the application of any of the measures ordered by the Court; [44] ORDERS that a person working for an institution or body, provide aid, counselling or assistance to the child, his family and his foster family; [45] ORDERS that the mother report in person, at regular intervals, to the Director of Youth Protection to inform her of the current situation; [46] ORDERS that the modalities, frequency and degree of supervision of the contacts between the child and his mother be determined by the Director of Youth Protection; [47] ORDERS that the mother remain sober in presence of her child; [48] ORDERS that the exercise of certain attributes of parental authority regarding X be withdrawn from the mother and granted to the Director of Youth Protection by the Court, namely regarding health; [49] RECOMMENDS to the Commission des Droits de la Personne et des Droits de la Jeunesse to do an investigation in this file and INVITES the Commission to make any other recommendations;

[50] ORDERS the clerk of the Court of Quebec, Youth Division to notify this decision to the Commission des Droits de la Personne et des Droits de la Jeunesse; [51] ORDERS the execution of the present decision by any peace officer; [52] ENTRUSTS the situation of the child X , to the Director of Youth Protection A , who shall then see that the measures are carried out; [53] THE WHOLE until November 30, 2020. [ 15 ] On November 21, 2019 , Dr. Joseph Beltempo psychologist, signed his psychological report following the assessment he did about X earlier in November.

This report confirmed the recommendations made verbally to the DYP worker before the hearing of November 19, 2019. In this written report, the Court learned that X was the victim of another accident when he was 4 years old. It was a car accident and he was hospitalized in Montreal for a period which he describes as very long. We also learn that he had a twin brother who died at birth. Following the gunshot, he has loose his short-term memory. He appears very attached to his foster parents who were at that time, Ms. and Mr. F.

The psychologist was consulted regarding the impact of the accident on his psychological development and also to have counsel to prepare and to follow X in the process of foster family moving. The psychologist concluded that X has severe emotional deprivation and post-traumatic stress from the incident of August 2019, but X also had precursive traumatic incidents stemming from as early as age 4, which were untreated.

Finally, he concludes that the “test date shows that he has untreated and underlying depression as well as post-traumatic stress from longstanding unresolved childhood traumas.” [ 16 ] The psychologist recommended: 1. X be referred to a neuropsychological assessment by someone who has experience with brain damage and brain trauma . I would strongly recommend Dr. Alain Ptito, Ph.D., neuropsychologist (514-398-8906) at the Montreal Neurological Institute. I highly recommend a neuropsychological assessment on the condition that it has not been done . 2.

X is referred to the A social services counselor as soon as possible to help him process the sequel of the gunshot incident which occurred in August 2019. We also recommend the process (work trough) past traumas as he develops a working therapeutic relationship with the counselor. X is still young and would be amenable to such a process. X agreed to have individual counselling follow-up in order to focus on past traumas, before and after the recent gunshot incident. 3.

X receive help and support for the new trauma, which is about to happen in a view of his move away from the three year relationship with the foster parents. We would hope that he would be able to maintain the relationship with at least his Foster Mother and possibly even with his Foster Father, if deemed possible. However, by law of the Youth protection he needs to be moved, X need support as it occurs. [ 17 ] As mentioned, on March 17, 2020 , the undersigned was seized with an application for provisional measures. Ms. C had renounced to foster X, but the maternal aunt who fosters X’s brother raised her hand.

The Court entrusted X to his aunt, Ms. D. Facts [ 18 ] According to the police report [2] , Ms. [social worker 1], DYP worker, call the police station on March 21, 2020, around 13h00 to request help regarding X who was missing since March 19, 2019, around 13h00. According to Ms. [social worker 1], X would have gotten into a fight with another youth on March 19, and following that someone saw a person walking alone on the Bay, to the East side of the River, around 13h30. This witness cannot assert that it was X because it was too far even if he used his binoculars to see.

The description he was able to give corresponded to the description given by the aunt. [ 19 ] The police officers started to organize a large research operation with the collaboration of the NV. Many persons from the community were involved.

The Rangers' assistance was also required as well as planes and helicopters. [ 20 ] During this investigation, police officers received information from community members which is reported as follows in their report: 2020-03-22: Sgt Michael Cameron remembered that about 4 or 5 months ago X was in crisis (being suicidal in the mountain) and he had told Michael and Putulik Cameron that next time they will never find him. 2020-03-22: G came to say that on Thursday (March 19, 2020) around 17h00 he was there when X was beaten up by 3 other kids and he mentioned that he was punched to the stomach, to the head and to the back of the head and after that he left the area crying. [ 21 ] After discussing with X’s family, it was agreed to stop the research on March 24, 2020. [ 22 ] On May 18, 2020, the Court was seized with the application under

section 95. At that moment, X was still missing, but not declared deceased. The DYP was waiting for the family and community’s decision about the declaration of death. [ 23 ] Waiting for this decision, the hearing was postponed and the DYP announce his intention to file a discontinuance once this decision taken. [ 24 ] On May 18, 2020, the Court asked the DYP worker about X’s medical follow-up since last November 2019. The DYP did research and on May 22, 2020, transmitted a letter to the undersigned saying: Objet : Suivi dossier X N/D : [...]

V/D : 640-41-002131-172 Madame la Juge, Suivant l’audition de lundi dernier dans le dossier de X, la Directrice a tenté de communiquer avec les différents professionnels de la santé qui ont été impliqués, de près ou de loin, dans la situation de l’enfant. Malheureusement, dans le délai imparti, nous n’avons eu aucun retour d’appel. Nous savons qu’aucun rendez-vous n’a été pris avec le Dr Alain Ptito (praticien privé). Nous avons été informés que la référence avait été faite plus particulièrement pour évaluer les dommages au cerveau en lien avec la mémoire et les humeurs.

X serait sur la liste d’attente au Children Hospital Montreal, nous avons été informés que cet établissement serait en mesure de fournir un tel service pour l’enfant. Le jeune a un suivi actif avec l’Institut Mackay. Espérant le tout conforme, veuillez recevoir, Madame la Juge, nos salutations les plus cordiales. Me Karianne Asselin Cain Lamarre SENCRL karianne.asselin@cainlamarre.ca [ 25 ] On October 6, 2020, the Court was seized with the discontinuance.

The closure report mentions that “the community built a memorial on the island near where they believe he felt into the water and the hypothesis regarding the disappearance of the youth would be that he drowned into the ocean.” [ 26 ] The Court questioned the DYP worker to have an update of X situation between the last decision rendered in November 2019 and March 2020, particularly regarding the medical follow-up and his well-being. [ 27 ] The DYP worker confirms that Dr. Beltempo raises some questions in his evaluation about the suicidal risk.

For sure X repeated many times that the gun shot was an accident and that he was not suicidal. But Dr. Beltempo wrote: “One could question, for example, why he had a loaded gun, why he went to the shed, why he pointed a loaded gun under his chin. Although he is actively saying to everyone that he is not suicidal, one can be suspicious if the circumstances.” The DYP worker spoke with Dr.

Beltempo around May 22, 2020, and he confirms to her that the neuropsychological evaluation was to know more about that because it is questionable. [ 28 ] The DYP worker explains that when the Court asked question on May 18 about the appointment with the neuropsychologist, she was firstly under the impression that X was on a waiting list for all the services because the previous worker told her it had been done.

But when the Court asked for more details, she had to do more research and during her communication with the nursing in Town A, she realized that no communication occurred between the nursing and the Montreal Children Hospital. The doctor in Town A ignored about all the appointment X was supposed to have and if he was or not on the waiting list. [ 29 ] Doing so, the DYP worker had to communicate with the Montreal Children Hospital to see if X was on the waiting list for the neuropsychological evaluation and he was not.

Moreover, she realized at that time that the neurosurgeon and the neuropsychologist were not the same person and were not working in the same department. Doing so, a specific request should have been made to the neuropsychologist as recommended by Dr. Beltempo. [ 30 ] She confirms that the questions asked by the Court on May 18, brought her to make investigation that had not been done before. While on the phone with the specialist, she asked him to put X on the waiting list in case he is found. [ 31 ] Regarding the referral to the Social Services counselor, Ms. [social worker 2] ignores if it was done.

She personally invited X to meet with the Social Services, but the service is provided on a voluntary basis and X was quite shy and he did not feel he could need such service. [ 32 ] Ms. [social worker 2] describes X as a sad young boy, victim of bullying at school. She tried to give him tools to be able to answer the violence without violence.

She said: “he was sad inside.” Analysis [ 33 ] X is declared deceased and the Court has to grant the discontinuance. [ 34 ] Despite this discontinuance, the Court cannot remain under silent the fact that X, who was seriously injured did not receive the medical follow-up he is supposed to receive within the delay imposed by the gravity of his situation. [ 35 ] In November 2019, the Court declared that his rights were wronged. Despite this situation, a new worker was assigned to such serious situation and because of a misunderstanding about the medical evaluation he needs, the request was not done. Dr.

Beltempo suggested a specific doctor to do this evaluation and took time to indicate the phone number to reach him. It would have been very easy to communicate immediately with the office of Dr. Ptinto to confirm that X’s name was on the waiting list and could be seen urgently. The gravity of the action (pointing a loaded gun under his chin) and the seriousness of the possible consequences on his brain required strong intervention first to understand more the reason for such action and secondly to know more about the possible impact on his cognitive abilities.

[ 36 ] X was also affected by the change of his foster family and missed the traditional activities he did with his previous foster father. He was aware that he had the right to continue to see him and to go on the land with him, but he was not living with him anymore. Let’s remind that the Dr. Beltempo’s evaluation was done before the DYP announce to X that he would have to be moved to another foster family. At that moment, X ignored everything about this next transfer. Dr.

Beltempo did not know how X would react, but was aware that X would be very disappointed. [ 37 ] Because of absence of external educators in Town A, the first meeting with an external educator took place on February 26, 2020. It was also, at that date that the intervention plan was discussed and at that moment, X was already at his aunt’s place. [ 38 ] Obviously, X did not receive the intensity of service required by the situation contrary to the prescriptions of the YPA which required that the specific situation of the child be considered in each intervention.

Doing so, the following sections were not respected and consequently, X’s rights were encroached: 2.3. Any intervention in respect of a child and the child’s parents under this Act (

a) must be designed to put an end to and prevent the recurrence of a situation in which the security or the development of the child is in danger; 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. In the case of a Native child, the preservation of the child’s cultural identity must also be taken into account. 8.

The child and the parents are entitled to receive, with continuity and in a personalized manner, health services and social services that are appropriate from a scientific, human and social standpoint, taking into account the legislative and regulatory provisions governing the organization and operation of the institution providing those services, as well as its human, material and financial resources. 93. Every decision or order of the tribunal is enforceable as soon as it is rendered and any person contemplated in it must comply therewith without delay.

FOR THOSE REASONS, THE COURT: [ 39 ] GRANTS the discontinuance; [ 40 ] DECLARES that the rights of X have been wronged by the Director of Youth Protection under sections 2.3 a), 3, 8 al. 1) and 93 of the Youth Protection Act ; [ 41 ] BLAMES the Director of Youth Protection for the lack of intensity provided in this file, and the lack of follow-up; [ 42 ] RECOMMENDS to the Commission des Droits de la Personne et des Droits de la Jeunesse to do an investigation in this file and INVITES the Commission to make any other recommendations; [ 43 ] ORDERS the clerk of the Court of Quebec, Youth Division to notify this decision to the Commission des Droits de la Personne et des Droits de la Jeunesse. __________________________________ PEGGY WAROLIN , J.C.Q.

Me Adèle Cyr, attorney for the Director of Youth Protection Me Cassandra Neptune, attorney for the child Me Angèle Tommasel, attorney for the mother