2021 QCCQ 2592, 2021 QCCQ 2592

Protection de la jeunesse — 211470 2021 QCCQ 2592 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] “Youth Division” No: 525-41-033200-171 DATE: April 12, 2021 ______________________________________________________________________ PRESENT: THE HONOURABLE FRANÇOIS STE-MARIE, J.C.Q. ______________________________________________________________________ DIRECTOR OF YOUTH PROTECTION and X Born on [...], 2017 child and B C parents ______________________________________________________________________ JUDGMENT ON ENCROACHMENT OF RIGHTS

Section 91 of the Youth Protection Act (R.S.Q. c. P-34.1 ) ______________________________________________________________________ Warning : The Youth Protection Act prohibits the publication or broadcast of information allowing a child or the child’s parents to be identified. Every person who contravenes this provision is liable to a fine (sections 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] On January 22, 2021, a new report was made to the Director of Youth Protection. This signalement essentially alleged that Y (the child’s 6 year old foster sibling) mentioned that Mr. D comes to the home of Mrs.

E, despite the Youth Protection Court order and criminal conditions. The evaluation of this signalement was assigned to Mrs. [social worker 1]. [ 2 ] In her evaluation report, Mrs. [social worker 1] chose not to disclose to the Tribunal the existence and the content of the Entente multisectorielle interview and a second school meeting with Y in February 2021. [ 3 ] On February 24, 2021, the Tribunal raised the question of a potential situation where the child’s rights might have been wronged by the Director. The hearing on this specific issue was continued on February 26, 2021.

QUESTIONS IN LITIGATION [ 4 ] When the Director chose not to provide any information regarding the Entente multisectorielle interview with Y or her second school interview, did the Director encroach the child’s rights? [ 5 ] Can the Tribunal still trust the validity and accuracy of information provided by the Director in this specific file? [ 6 ] What corrective measures should be ordered? ANALYSIS 1.

When the Director chose not to provide any information regarding the Entente multisectorielle interview with Y or her second school interview, did the Director encroach the child’s rights? [ 7 ] In her Evaluation report [1] , Mrs. [social worker 1] listed different interviews done with “Y” to verify the allegations of the latest signalement: On January 22, 2021, Mrs. [social worker 2] (AM worker) met Y at her school. When asked who lived in her home, Y listed

different individuals including “daddy” (D). She reported that “daddy isn’t there all the time, mostly on weekends” [2] . Y also reported that her “daddy” was home for dinner last night. Y mentioned that she sleeps in bed with Mrs. E and Mr. D. On January 26, 2021, Mrs. F, (Y’s new foster family) reported to the Director that “Y spontaneously mentioned, on more than one occasion, that she sleeps with “mommy and daddy” when she has trouble sleeping” [3] . On January 27, 2021, Mrs. [social worker 1] met with Y at the foster family of Mr. and Mrs. F. During this interview, Y reported that she “ lives with “mommy”, “daddy”, Z, A, X (short for

X) and Wicket the dog. ” [4] She mentioned that “ she often goes into bed with “mommy and daddy ” [5] . She eventually reported “ that “mommy” was fighting in Court to have “daddy” and G back in the home. ” [6] She reported that “ daddy can never ever be in the house ”. She does not know where his other address is but that Z and A go to his house.” [7] She finally mentioned that “daddy” was present during last Christmas. On February 2, 2021, during transport to a medical appointment, Y mentioned to Mrs. [social worker 2] that Mrs.

E told her that social workers and cops were “ mean, bad and would hurt ” [8] her and that she should not speak with either. She also added that her “ daddy comes over a lot and sometimes he stays for a long time and sometimes a short time ” [9] . On February 9, 2021, during an interview at school with Mrs. [social worker 2], Y mentioned that she was afraid that “daddy” or her brothers would come into her bedroom [10] . [ 8 ] Mrs. [social worker 1] gave credit to Y’s previously listed verbalizations. She reported as a risk factor for the child the “ consistent and credible disclosures of (…) Mr.

D’s presence in the home (Y) ” [11] [ 9 ] Mrs. [social worker 1] concluded her report stating that the “ evaluation found the facts to be founded due to X’s foster sibling Y’s consistent and detailed disclosure of Mr. D’s recent presence in the home. It should be noted (that) Y’s disclosure was spontaneous and unprompted.

She was then able to consistently provide a clear, logical and detailed narrative to multiple people. ” [12] The Entente multisectorielle interview [ 10 ] In her Evaluation report, Mrs. [social worker 1] did not include any reference to the Entente multisectorielle interview done between Y and Sergent Detective Christine Harvey on January 28, 2021. [ 11 ] This information was only shared with the Tribunal on February 18, 2021, when the Commission des droits de la personne et des droits de la jeunesse deposited progress notes from the child’s file. [ 12 ] Following the January 28, 2021, Entente multisectorielle interview, we can read the following from Mrs. [social worker 1]’s progress notes: “During the interview, Y did not confirm the allegations made in the signalement and recanted statements made to Ms. [social worker 2] and H.

She stated that her family was made up of “mommy”, “daddy, G (past foster sibling removed from foster home in November 2019), Z, A and X (short for X current foster sibling). When asked if G lived with her she stated no and that he had not for a long time, when asked if “daddy” lived with her she stated no and not for a long time. She listed the members of her family who had attended Christmas 2020 and listed “mommy”, Z, A and X.

When asked what presents she had received she stated a toothbrush and chocolates.” [13] [ 13 ] It is important to note that, within the actual Court process, the Director’s first reference to the Entente multisectorielle was through an amended list of Exhibits deposited on February 22, 2021. The second school interview [ 14 ] In her Evaluation Report, Mrs. [social worker 1] did not refer to the second interview done at school with Y, Mrs. [social worker 2] and Mrs. [social worker 3]. During her testimony, Mrs. [social worker 2] mentioned that this meeting took place on February 12, 2021.

From Mrs. [social worker 3] recollection, that meeting took place on February 11, 2021. [ 15 ] During her testimony, Mrs. [social worker 3] recognized that she co-signed the Evaluation report. She mentioned that her role was to provide Mrs. [social worker 1] with clinical supervision. As Mrs. [social worker 1] was unavailable to meet with Y on February 11, 2021, she was asked to go to Y’s school accompanied by Mrs. [social worker 2]. This meeting led to the notes that were presented in evidence by the Commission. Mrs. [social worker 3] wrote the following in the progress notes [14] :

“Y reported feeling scared when her brothers come into her bedroom through her window at night. (…) When asked if anything else scares her, Y said no. She denied anyone else coming into her room. This SW then asked Y to describe more about feeling scared with Daddy, something she told [social worker 2] on Tuesday.

Y denied feeling scared of Daddy.” [ 16 ] This meeting ended with Y crying and saying her “daddy” was not in the home. [ 17 ] During her testimony, Mrs. [social worker 1] recognized that she should have reported the content of the Entente multisectorielle interview and the content of the second meeting with Y at her school. She acknowledged that this was a mistake. [ 18 ] Following the lunch break of the February 26, 2021 hearing, the Director’s attorney mentioned that she had personally spoken to Mrs. [social worker 4], Director of Youth Protection of the CIUSSS A.

Mrs. [social worker 4] recognized that the reports transmitted to the Tribunal should have been accurate and mention the different observations that led to its conclusion. [ 19 ] Within the Youth Protection Act , the legislator has established a system where the “social authority” (the Director of Youth Protection) intervenes and makes decisions before the “judicial authority” (the Court).

It is the Director’s prerogative and responsibility to receive and retain a signalement (articles 45, 45.1, 45.2); to decide to apply immediate protective measures or not (article 46); to conclude a provisional agreement with the parties (articles 47.1 to 47.5); to evaluate the signalement (article 49) (decide if the facts are founded and if the security or development of the child are compromised); to orient the situation (article 51) (propose an agreement on a short-term intervention, decide to sign voluntary measures or refer the matter to the Tribunal). [ 20 ] As we live in a “society of law”, when parties do not agree with each other, the situation in litigation can be referred to the Tribunal.

The Director then becomes a party, like the parents and the child. The Director’s role remains important and crucial. The Director is requested to present its clinical position based on the gathered information. It is essential that the Director present all the relevant information (facts) that led to his/her clinical decision. The pertinent facts should be reported accurately to the Tribunal.

It is only then that we can expect the Tribunal to make a decision in the child’s best interest. [ 21 ] On this topic, Justice Marie-Pierre Jutras writes the following [15] : “La bonne foi, l’honnêteté et la transparence des intervenants sociaux agissant en vertu de la

Loi sur la protection de la jeunesse sont les assises fondamentales à l’application de la Loi par le Tribunal. Dans toutes les affaires dont notre Tribunal judiciaire spécialisé est saisi, tous conviennent qu’il n’y a pas de place pour jouer à la cachette.

Il en va de soi même s’il n’est pas inutile de répéter que le Tribunal est en droit de s’attendre à avoir accès à toute l’information pertinente pour prendre une décision éclairée dans l’intérêt des enfants.” [ 22 ] On the importance of being transparent with the Tribunal, Justice Michel Dubois wrote the following [16] : “Il ne semble pas nécessaire d’insister outre mesure sur l’importance, en particulier pour le Directeur de la protection de la jeunesse qui est

partie dans tous les dossiers, généralement en demande, de faire preuve de transparence non seulement à l’égard des autres parties, mais surtout à l’égard du Tribunal.” [ 23 ] On the Director’s important and delicate role, Justice Martin Gagnon wrote [17] : “Le d.p.j. a l’obligation de soumettre un portrait complet et franc de l’ensemble de la situation d’un enfant, peu importe ses prétentions. Il n’a pas de cause à gagner, et l’intérêt de l’enfant doit toujours primer.

En dernier ressort, c’est le Tribunal qui doit trancher.” [ 24 ] In a situation similar to our file, Justice Carole Brosseau wrote the following [18] : “La transparence est non seulement de mise, mais nécessaire pour découvrir la vérité.” [ 25 ] The Director needs to remain transparent with the parties and with the Court. The Tribunal does not have agents who go in the community; in schools; in hospitals; in family homes. Agents who would meet with different individuals (parents, children, teachers, professionals) and make observations.

The Tribunal needs to count on the Director’s intervention to gather and report pertinent and valid information. [ 26 ] When the Director chose not to provide any information regarding the Entente multisectorielle interview with Y and her second school interview in February 2021, the Director encroach the child’s rights mentioned in sections 2.3, 2.4, 3 and 4 of the Youth Protection Act . 2.

Can the Tribunal still trust the validity and accuracy of information provided by the Director in this specific file? [ 27 ] At this point, the Tribunal cannot trust the validity and accuracy of information provided by the Director in this specific file. [ 28 ] Mrs. [social worker 1] and Mrs. [social worker 3] have made the deliberate choice not to include in their Evaluation Report, information that would contradict the orientation they chose to present to the Tribunal. [ 29 ] Many explanations were given to “cover” this mistake.

During her testimony, Mrs. [social worker 1] mentioned that “ it was too late to add ” this information to her Evaluation Report. This statement does not make any sense as the report was signed on February 12, 2021. Mrs. [social worker 1] then tried to explain why she qualified Y’s verbalizations as “consistent”, despite the fact that Y recanted on

two different occasions. Mrs. [social worker 1] mentioned that she considered that Y had been “contaminated” when she made her statements during the Entente multisectorielle interview as she “ had shot down in the parking lot ” before the meeting. Despite this, the interview took place nonetheless. The same rationale is mentioned for Y second school meeting. What appears clear for the Tribunal is that, at this point, if the evidence does not support its position, the Director will discard it.

These are clear indications that, in this specific file, the Director has a tunnel vision. [ 30 ] Following the latest signalement, Y was interviewed on five occasions. The Director even asked for a second Entente multisectorielle interview to be performed with Y The Director has been convinced, for a long period, that Mrs. E could not be trusted. In this situation, the Director is digging for evidence that would fit/support its theory. [ 31 ] The Tribunal also questions the professionalism and rigour of the Director in this file.

During her testimony, Mrs. [social worker 2], the Application of Measures Youth Protection worker in charge of the child’s situation, mentioned that she had not read all of the latest Evaluation report. Still, she came to Court to testify regarding the child’s situation. [ 32 ] Mrs. [social worker 2] and Mrs. [social worker 3] also reported that during the second meeting with Y at school, Mrs. [social worker 3] asked non-leading questions.

It is clear from the notes and the different testimonies that, at some point, suggestive questions were asked. [ 33 ] The Director finally recognized that mistakes were made, but not before half a day of hearing on the matter. 3.

What corrective measures should be ordered? [ 34 ] The Director’s and the father’s attorneys propose that the latest signalement be re-evaluated by the Director, taking into account the content of the Entente multisectorielle meeting and the second school interview with Y. [ 35 ] The mother’s, the child’s and the Commission’s attorneys have a strong doubt that the complete and accurate information would have been presented to the Tribunal without the Commission’s intervention.

They ask that the signalement be re-evaluated and that new workers be appointed to this file. [ 36 ] The child’s attorney also asks that her client not be submitted to genital examinations without the Tribunal’s authorization; that the Director’s unannounced visits at Mrs. E’s residence be limited to a maximum of two per week; and that the frequency of visits between the child and the father respect the rhythm and reactions of the child.

These recommendations were not supported by the evidence presented at this point. [ 37 ] Considering the analysis of the second question, it would be a mute exercise for the same Director of Youth Protection to re- evaluate the latest signalement and to continue with the “prise-en-charge” of this file.

THEREFORE AND FOR THESE REASONS, THE COURT: [ 38 ] DECLARES that the child’s rights have been wronged by the Director of Youth Protection of the CIUSSS A; [ 39 ] ORDERS that this judgment be notified personally to Mrs. [social worker 4], Director of Youth Protection of the CIUSSS A; [ 40 ] ORDERS that the January 22, 2021 signalement be re-evaluated by another Youth Protection worker from a different CIUSSS or CISSS; [ 41 ] ORDERS that the “prise-en-charge” of the situation of the child, X, be entrusted to a Director of Youth Protection from a different CIUSSS or CISSS; [ 42 ] REFERS the parties, including the new Director of Youth Protection, the Director of Youth Protection of the CIUSSS A and Me François DeVette to the Maître des rôles to fix a preparatory conference in front of the undersigned; ___________________________________ François Ste-Marie, J.C.Q.

Written and signed on April 12, 2021 /cd Mtre Dominique Douglas Counsel for the Director of Youth Protection Mtre Marie-Josée Ayoub Counsel for the child Mtre Karine Leclerc Counsel for the mother Mtre Lilian Stah Counsel for the father Mtre Sophie Papillon Counsel for CDPDJ Dates of hearing: February 24 and 26 2021