2020 QCCQ 14627, 2020 QCCQ 14627

Protection de la jeunesse — 2010103 2020 QCCQ 14627 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 640-41-002516-208 DATE: November 27, 2020 (written judgment rendered on May 10, 2021) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2019 [SOCIAL WORKER 1], Youth Protection worker, duly authorized by the Director of Youth Protection A, working in [...] Applicant and C, residing and domiciled at [...] Mother and D , residing and domiciled at [...] Father ______________________________________________________________________ JUDGMENT (Section 38 of the 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 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] The Director of Youth Protection (DYP) asks the Court to declare that the security and development of the child X, born on [...], 2019, are endangered under paragraphs (b) (1) iii, (

c) and (e) (1) of

section 38 [1] of the Youth Protection Act . [ 2 ] The DYP asks that Y, Z and A remain with the parents until July 8, 2021. For X and B, the DYP asks to entrust them to a foster family with a gradual reintegration under the parents’ care as soon as the situation allows it for the same period as the oldest ones. [ 3 ] The child has 4 siblings and the Court his also seize with their situations. Position of the Parties [ 4 ] The mother is present and represented by Me Angèle Tommasel.

She recognizes that the security and development of her child are endangered and she agrees with the measures for Y, Z and A and she contests the measures for X and B. [ 5 ] The father is present and represented by Me Élianne Villemur. He does not recognize that the security and development of his child are endangered, but if the Court declares the situation of endangerment, he agrees with the measures for Y, Z and A and he contests the measures for X and B. [ 6 ] The child is absent, but represented by Me Cassandra Neptune.

On her client’s behalf, Me Neptune submits to the Court that her situation is endangered for the alleged grounds and that the recommended measures are in her best interest. Facts [ 7 ] The family situation is known from the DYP since September 2015, when a report, regarding physical abuse for Y, risk of physical abuse for A and Z, psychological-ill treatment for the 3 children and neglect in terms of supervision for the 3 children, was received.

Following this report it took 2 years before voluntary measures were suggested and applied from August 2017 to August 2018. [ 8 ] On July 11, 2017, and March 30, 2018, 2 other reports were received, but not retained, and the previous measures were still ongoing. [ 9 ] On July 22, 2019 , the DYP retained a report regarding

section 38 (b) (1) iii and (

c) for the 4 children (Y, A, Z and X). [ 10 ] On January 9, 2020 , the DYP received a report regarding the child X about physical abuse. The report was also regarding a risk of physical abuse for the 3 oldest. During that event, the father would have hit the mother’s face and he would have assaulted the child X. Both parents were intoxicated at that time. At one point, the mother left the house with her other children, leaving X with her father. She went to her parents’ place to call the police. The maternal grandparents live in the same duplex. When the police arrived, the

mother went back to the house and saw that X had an injury on the face. The child was brought to the nursing, but the medical examination was non-conclusive as it was impossible to know what had happened. The children were scared. [ 11 ] On March 4, 2020 , Y, the oldest one, was met at school. She confirms that some event of conjugal violence occurred, mostly initiated by her father and always when he is intoxicated. She confirms that her parents had never been violent toward her nor her siblings. [ 12 ] The parents were met. The father was shameful about the situation of January 9, 2020.

He promised that such situation will not happen again. The mother, on her side, confirmed that they have conjugal issues, but they try their best to better communicate. The mother was agreed to sign a voluntary measures if the father would sign it, but the father refused to sign any kind of document with the DYP. [ 13 ] The maternal grandmother was also met and she confirmed the conjugal and alcohol consumption issues. She was sad and refused to give details about the situation. She deeply loves her grandchildren, and she is scared for their well-being.

Because of her health issues, she told not being able to take care of the children if needed. [ 14 ] On February 21, 2020 , the parents refused to sign a voluntary measures which had been suggested following the report received for the event of July 22, 2019, and January 9, 2020. The DYP worker recognized the long delay between the event of July 2019 and the proposition for voluntary measures in February 2020.

This delay is due to a lack of resources and she recognizes that the situation would have required a more urgent intervention. [ 15 ] The DYP worker signed his evaluation report on March 27, 2020, concluding that the security and development of the child were endangered under sections 38 (b) (1) iii, 38 (

c) and 38 (e) (1). This report mentions that, since July 22, 2019, the police had to intervene at least 7 times at the parents’ domicile because of conjugal violence while they were intoxicated and most of the time, the children were at home. [ 16 ] On June 8, 2020 , the mother was seen again intoxicated in the presence of the children.

She also breastfeed X while being drunk. [ 17 ] The orientation report was signed on July 9, 2020, and concluded that the children should remain under the parents’ care because the DYP “believed in the capacity of the parents to put an end to the current compromising situation by applying the necessary corrections with the help of youth protection.

As for now, we exclude the possibility to entrust the children under foster care, due to the lack of resources in the community and to the family safety net, as we do believe that it would be more harmful to their attachment link and their development than to provide an intensive and specific accompaniment.” [ 18 ] During the summer, the parents and X went to Town A for the mother to give birth. On August 13, 2020, while they were living at Town B, the father would have assaulted the mother and would have prevented her from heating X’s bottle. The police had to intervene.

On August 22, another event happened and the father was arrested again, as well as on August 29, when both parents would have been intoxicated. [ 19 ] On September 3, 2020, the parents were met by a DYP worker from Town C. They were non-collaborative and due to the past events, an immediate protective measure was applied and X was entrusted to a foster care. The Town D DYP worker called them, and the parents denied all the facts. [ 20 ] On September 8, 2020 , the Court entrust the child X to a foster family still in Town A on provisional measures.

On September 17, the mother requested that the father go back at home to take care of the older children and that her mother came in Town A to be with her. The mother said that her husband was not good for her. [ 21 ] During their stay in Town A, the parents had one visit together with the child, one other visit took place with the mother and the grandmother and one was cancelled due to the mother’s intoxication. Since the parents are back in Town E, no visit was organized. [ 22 ] The father went back home and took the children back under his care.

The DYP worker was scared about the possible consumption, but the father did not bring back alcohol from Town A and the unannounced visits were positive. [ 23 ] The mother gave birth to B on [...], 2020. The day after, a provisional agreement was taken and B was entrusted specifically to his mother. The father signed this agreement. On October 2, the mother was seen breastfeeding B while being intoxicated, as well as October 3 and 6. [ 24 ] The mother came back home on October 9, and the same day, she had been arrested and detained for assault on the father who was intoxicated.

The same day, an immediate protective measure was applied, and B was entrusted to a foster family. A few days later, the mother explained that the father had assaulted her and she assaulted him to self-defence. On October 10, after being back home, another police intervention was needed as the father assaulted her and she pressed charges. The father was detained for 3 days. [ 25 ] On October 13, a second provisional agreement was taken and B was entrusted specifically to his mother until November 12, 2020.

These measures had never been prolonged before the hearing on the merit. [ 26 ] On October 20, the mother would have had a four-wheeler accident with B in her amautik. She smelled alcohol at that moment. [ 27 ] On November 9, the mother was met and she spoke about her desire to have X back under her care.

Regarding her relationship, she had difficulty to give a clear position: she wants to protect her children, but she also knows that the children need their father. [ 28 ] On November 10, the grandmother informed the DYP that she changed her mind and would agree to foster X and to respect all the Court conditions to ensure her granddaughter’s safety.

[ 29 ] Y is described as calm and respectful. She likes taking care of her young siblings and she is very helpful. The DYP considers that she is at risk to be parentified due to the parents’ neglect to assume their responsibility. [ 30 ] Z is described as a very energetic and curious boy.

Analysis [ 31 ] The DYP asks the Court to declare that the situation of the children are endangered for 3 reasons: − Neglect in terms of supervision; − Psychological ill-treatment due to conjugal violence exposure; − Physical abuse on X and risk of physical abuse for the other children. [ 32 ] The situation of the family is known for a few years by the DYP and services have already been provided; [ 33 ] The situation presented this week to the Court started with a report of physical abuse in July 2019, and with another one 6 months later in January 2020.

The DYP alleged that the situation became worse in September 2020, when the parents were in Town A with X waiting for B’s birth. 1- Neglect in Terms of Supervision [ 34 ] The evidence provided does not permit to retain this ground of endangerment. Indeed, even if the parents recognize their alcohol consumption issues, nothing in the evidence shows that the parents had ever been both intoxicated to the point they were not able to take care of the children.

With the evidence provided, it is impossible to conclude that the children were unattended, for example, outside, or while the parents would have been passed out. [ 35 ] The most recent occurrence report provided is dated from January 2020, quite one year ago. The Court was not provided with any proof about a situation of neglect in terms of supervision, since that time. [ 36 ] Regarding the events in Town A before the birth, the father ignores everything. The mother admits some facts, but nothing permitting to conclude to a situation of neglect. [ 37 ] Is there any other evidence about those events?

No, but this evidence would have been easy to obtain. At least 3 different persons are supposed to have made interventions during that time: − The worker at Town B who is supposed to make a report for each problematic event; − The police officers who also make reports for each intervention; − Town C DYP worker who obviously open a file for X. [ 38 ] It would have been 3 reliable persons to testify, but none was present and no written declaration was provided. The only thing the Court has about this period of time is hearsay, which means nothing.

It is the same thing for the ATV accident where a police officer intervene, but he was not assigned to testify and no written report was filed. 2- Risk of Neglect [ 39 ] Even if the Court does not conclude to a situation of neglect, there is no difficulty to conclude to a situation of risk of neglect. Indeed, the parents recognize their drinking issues. Even if they say they stopped drinking, the addiction is still present, it has not been addressed and a risk of relapse is obviously well present.

While being intoxicated, they obviously put their children at risk. 3- Psychological Ill-treatment [ 40 ] The Court has the evidence that the children were witness of conjugal violence. The last episode admitted by the parents is recent. It was when the mother came back from Town A. The father said that he looked forward to the mother to be back, but he welcomes her being intoxicated, and both parents ended up in jail. The children witnessed everything and are obviously affected to see their parents acting like that. They will grow up thinking that it is normal.

For sure, the parents do not want that for their children, but it is what they impose to them. 4- Physical Abuse and Risk of Physical Abuse [ 41 ] This ground of endangerment is related to an injury that X would have had in July 2019. Those facts are denied and the evidence is totally silent on this aspect. Being impossible to conclude of a physical abuse on X, it is also impossible to conclude of a risk for the other children. 5- What Is Waiting From the Parents [ 42 ] When sober, the parents have very good parental capacities. The 3 oldest are going to school and nothing wrong was reported from the school.

That is very positive. The DYP also recognizes the fact that they were able to improve in the past. It is also noted that the children are very close to their parents to the point that it could be prejudicial to entrust the 3 oldest. [ 43 ] Doing so, the main issue is the alcohol consumption and the conjugal violence which come with. This addiction has to be addressed immediately. The parents want to remain sober and to change their life. They are, for sure, encouraged in this way, but they

need to know that it could be difficult to do that without professional services. They will have to seek help now with Social Services or any other resources in their community (Elders, Justice Committee, etc.). [ 44 ] Also, the Tribunal is convinced that the father’s addiction is worse than the mother’s. The mother could be badly influenced by the father. Doing so, the father will have to work hard to remain sober because when he consumes, he puts not only him in trouble but all the family.

The mother deserves to be helped and supported, not to be put into trouble. 6- The Situation of X and B [ 45 ] The DYP recommend that the 2 youngest be entrusted to a foster family. The foster family is in Town A. X is there since the beginning of September 2020. B, who is still with his parents, would have a place in the same foster family.

The DYP suggest that the contacts could occur according to the modalities ordered by the Court or according to the general rules which are around every 6 or 8 weeks. [ 46 ] This recommendation of placement is made because of the alleged situation of neglect and physical abuse. Also, the DYP worker submits that a choice has to be made between entrusting children far from their community and letting the children create bonds with such parents who put their children in danger.

She also adds that when it was time to look for a foster family, the DYP looked only for a long-term resource. [ 47 ] Such thinking demonstrates a deep ignorance of the most elementary principles of the YPA, of the C-92 (Act respecting First Nations, Inuit and Métis children, youth and families receives Royal Assent) and of the concept of the best interest of a child. [ 48 ] The evidence shows that X is very attached to her mother. The Court had chance, for 2 days, to see the parents interact with B and it is obvious that they give him very good care.

Saying that X and B would suffer less prejudice to be separated from their parents because they are young also shows the ignorance of the attachment theory. [ 49 ] The distance between Town A and Town E is the same as the distance between Town A and Town F. Moreover, it is easier to go to Town G than to go to Town E. If everything goes well, the plane take off from Montreal Airport at 9 am and the plane lands in Town E at 5h30 pm. Is it really realistic to make the children or the parents travelling like that with the weather conditions that we know? Not at all.

Nowhere else in the province of Quebec a child would have to travel such distance and to wait so long to see his parents. [ 50 ] Moreover, the reason why X had been entrusted urgently in September has not been proven. In such circumstances, the Court cannot maintain a placement which is not justified and in contradiction with the child’s best interest.

Also, knowing that no foster family was available in Town E, the DYP, who considers that a placement would be needed, had to think about other solutions to ensure the children's safety, the bonds between them and their parents and to resolve the situation of endangerment. [ 51 ] For all those reasons, the Court refused the placement requested and will order the immediate return of X and will impose measures to ensure the safety of the 5 children.

FOR THOSE REASONS, THE COURT: [ 52 ] GRANTS the application; [ 53 ] DECLARES that the security and development of the child X, born on [...], 2019, are endangered under paragraphs (b) (2) and (

c) of

section 38 of the Youth Protection Act ; [ 54 ] ORDERS that the child remain with the parents; [ 55 ] ORDERS that X travel from Town A to Town E with an escort on the first available place; [ 56 ] ORDERS that a meeting take place at least on December 4, 2020, with the parents and with relatives, if the parents accept that the relatives are present, to discuss about a safety net and the reliable person available to help the family; [ 57 ] ORDERS that the different services available for the parents be explained to them and that they be helped to reach those services; [ 58 ] ORDERS that an intervention plan be prepared which include those services; [ 59 ] ORDERS that unannounced visits be made at the parents’ place on a regular basis; [ 60 ] ORDERS that the clinical meetings between the parents and the Director of Youth Protection take place at home to facilitate the parents’ participation; [ 61 ] ORDERS that a community worker be present at each meeting to translate and facilitate the parent's comprehension; [ 62 ] ORDERS that the clinical meeting take place on a weekly basis as long as judged necessary.

According to the evolution of the situation, the frequency of those meetings could be reduced; [ 63 ] ORDERS that the parents periodically report to the Director of Youth Protection on the measures they apply in their own regard or in their child’s regard to put an end to the situation in which the security and development of the child are endangered; [ 64 ] ORDERS that the parents take an active

part in the application of any of the measures ordered by the Court; [ 65 ] ORDERS that the 3 older children attend a school on a daily basis;

[ 66 ] ORDERS that the parents remain sober and without any violent behaviour in the presence of the child; [ 67 ] ORDERS that the parents seek help through the Social Services concerning their alcohol and conjugal issues; [ 68 ] ORDERS that a person working for an institution or body, provide, aid, counselling or assistance to the child and the family; [ 69 ] ENTRUSTS the situation of the child X , to the Director of Youth Protection A, who shall then see that the measures are carried out; [ 70 ] THE WHOLE until August 30, 2021. __________________________________ PEGGY WAROLIN , J.C.Q.

Me Karianne Asselin, attorney for the Director of Youth Protection Me Cassandra Neptune, attorney for the child Me Angèle Tommasel, attorney for the mother Me Eliane Villemur, attorney for the father Dates of hearing: November 24, 26 and 27, 2020