2020 QCCQ 61, 2020 QCCQ 61

JG2072 Translated from the original French Protection de la jeunesse — 2023 2020 QCCQ 61 JG2072 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] “Youth Division” No.: 460-41-001722-172 DATE: January 14, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE MARIO GERVAIS, J.C.Q. ______________________________________________________________________ [YOUTH PROTECTION WORKER 1] , duly authorized by the Director of Youth Protection of the CIUSSS A Applicant - and- X, born on ..., 2014 Child-Respondent - and- D Mother-Respondent - and- E Father-Respondent ______________________________________________________________________ CORRECTED JUDGMENT [1] Sections 95(1) and (2) of the Youth Protection Act ______________________________________________________________________ WARNING: The Youth Protection Act prohibits the publication or broadcast of any information that would allow a child or the child’s parents to be identified.

Every person who contravenes this provision is liable to a fine ( ss. 11.2.1 and 135 YPA ). [ translation ] We intend to leave no stone unturned and to hear all those we can to make recommendations that are concrete, applicable, meticulous, and aligned with the expectations and values of society. … Sweetheart, I do this for you. From the moment you died, I named you [Tililly]. You could have been my granddaughter. - Opening remarks of Régine Laurent, President of the Special Commission on the Rights of the Child and Youth Protection

I. INTRODUCTION [ 1 ] In the night of April 28 to 29, 2019, a horrifying drama unfolded. Urgently called to the house, ambulance technicians found Y in critical condition. Y died in hospital on April 30, 2019. [ 2 ] A police investigation on the circumstances of Y’s death led to the filing of charges of criminal negligence causing death against the father and second degree murder against his spouse. The accused are awaiting trial. [ 3 ] This tragedy sparked an outcry and great consternation across Quebec. The government ordered a public coroner’s inquest.

The Special Commission on the Rights of the Child and Youth Protection was formed. An internal investigation of the CIUSSS A was triggered. [ 4 ] This case is not a prologue or a response to any of these processes, whose mission, on various levels, it is to shed light on this horrible tragedy, identify those responsible, or issue recommendations for legislative, systemic, or structural changes. [ 5 ] For the Court, this does not mean that it should turn away from Y’s situation, quite the opposite.

This child remains in the thoughts and hearts of all those who were involved in the hearing of the case at bar. [ 6 ] The objective here is to consider the situation of X, 5, and Z, 14, under the Youth Protection Act [2] ( YPA ) to order measures to ensure their security and development and to allow them to thrive. [ 7 ] X and Z have their own personalities and needs that are specific to them. Beyond their relationship with Y, these children are unique, special individuals, full-fledged legal actors whose best interests will in no way be compromised. II.

APPLICATIONS [ 8 ] The Director of Youth Protection (Director) has brought an application to review and extend an order concerning X and an application for protection concerning Z. [3] [ 9 ] The Director’s applications were heard separately, although many of the facts revealed by the evidence are relevant to both cases, which will appear from the judgments. [ 10 ] Counsel for both children also presented an application for a declaration of encroachment of rights concerning X.

In it, counsel alleges serious deficiencies and failings by the Director in executing the last order and the consequent obligations incumbent upon the Director under the YPA . [ 11 ] Finally, in the cases of both children, Média QMI inc. and Groupe TVA inc. have presented an application to authorize the presence of journalists Antoine Lacroix and Yves Poirer at the court hearings, to which the parties consent. [ 12 ] However, the Director responded by presenting an application for the Court to issue an order prohibiting the publication or broadcast of information concerning its hearings. III.

BACKGROUND [ 13 ] On May 30, 2018, the Court rendered an order declaring the security and development of X to be in danger for the following reasons: [4] – 38( c ): psychological ill-treatment; – 38( e )(2): serious risk of physical abuse by the father’s spouse. [ 14 ] That same day, the Court rendered an order declaring the security and development of X’s older sister, Y (7 years old), to be in danger for the following reasons: – 38( e )(1): physical abuse by the father’s spouse; – 38( c ): psychological ill-treatment; – 38( b )(1)(iii): neglect with regard to the child’s education. [ 15 ] As principle measures, the Court ordered that X and Y be maintained in the father’s environment, that the Director provide follow-up by social services, that the parents take an active

part in the measures ordered, and that the parents report periodically to the Director, the whole for a period of one year. [ 16 ] The order also provided for the suspension of contact between the mother and Y whereas contact between the mother and X was authorized, failing agreement between the parties, once every other week, in the presence of a third party authorized by the Director.

There was also the possibility of lifting the supervision, if the situation allowed. [ 17 ] The father’s living environment at the time included the father, his two children X and Y, the father’s spouse (“spouse”) and her son, Z. [ 18 ] At the time, Z was not the subject of the Director’s involvement. [ 19 ] On April 29, 2019, the Director received a report concerning X and Z and applied immediate protective measures. They were followed by provisional measures rendered by the Court ordering the placement of X with a foster family, and entrusting Z to a person

important to him during the proceedings. Moreover, X was to receive various health-related care and services and Z was to benefit from psychological follow-up when the time was right, as he did not want it then. Finally, contact between the children and their respective parents was suspended. [ 20 ] The Court also read the youth protection orders rendered prior to the order dated May 30, 2018, concerning X and Y, which orders resulted in the Director’s intervention on June 17, 2016.

They are a relevant and useful source of information, especially with respect to the conclusions of fact and law therein, and help put the family history in perspective. However, the basis for these orders is not up for debate; this hearing is not an appeal. [ 21 ] At the same time these orders were being rendered by the Youth Division of the Court of Quebec, the Superior Court, on ..., 2015 and ..., 2017, rendered judgments entrusting custody of X and Y to their father and granting the mother access rights to be supervised by organization A. The most recent of these judgments is still in effect. IV. ISSUES 1.

Was X physically abused by the father and his spouse? 2. Should contact between the mother and the child resume and if so, under what conditions and for what purpose? 3. Does the Director’s recommendation to prohibit contact between the child and his father have merit? 4. Who are the third parties with whom the child should or should not have contact over the next six months? 5. Were the child’s rights wronged by the Director? 6. Should the Court prohibit the publication or broadcast of information relating to its hearings in the cases of X and Z? V.

SITUATION AND ANALYSIS First issue: Was X physically abused by the father and his spouse? [ 22 ] First, the Director alleges the on-going psychological ill-treatment suffered by the child. The parties acknowledge that the security and development of the child continue to be in danger for this reason, a joint position with which the Court agrees. [ 23 ] Second, the Director alleges that since the last order, X has been physically abused by the father and his spouse. The father contests these allegations as they relate to him.

The other parties share the Director’s position. [ 24 ] The YPA states that the security and development of a child may be found to be in danger when the child has suffered physical abuse.

This ground of endangerment is worded as follows: 38( e )(1): a situation in which the child is the victim of bodily injury or is subjected to unreasonable methods of upbringing by his parents or another person, and the child’s parents fail to take the necessary steps to put an end to the situation; [ 25 ] In Protection de la jeunesse — 09179 , [5] Carole Brosseau J. defined the notion of physical abuse as follows: [ translation ] [92] But what constitutes physical abuse; what are its essential elements? The case law has already considered this question.

Ill-treatment is the use of excessive, immoderate, and unreasonable methods of upbringing to educate and care for a child. Ill-treatment must be assessed taking into consideration the child’s age, size, hardiness, and health. Its frequency should also be considered. [ 26 ]

Section 38.2 of the YPA lists the factors to consider when determining whether the security or development of a child are in danger.

These factors are: ➢ the nature, gravity, persistence and frequency of the facts reported; ➢ the child’s age and personal characteristics; ➢ the capacity and the will of the parents to put an end to the situation in which the security or development of the child is in danger; ➢ the community resources available to help the child and the child’s parents. [ 27 ] The onus of proof is on the Director, who must prove the allegations on a balance of probabilities. [6] This standard is met when the existence of a fact is more probable than its non-existence. [ 28 ] In this case, X is the only person who can inform the Court of the injuries he allegedly suffered. [ 29 ] X did not testify at the hearings.

The parties agreed on the need to dispense the child from testifying to guard him from any psychological harm he might suffer as a result. [ 30 ] In light of the joint position of the parties, the young age of the child, the incidents he witnessed on April 29, 2019, and the death of his sister Y, the Court dispensed the child from testifying in accordance with s. 85.2 of the YPA .

[ 31 ] Accordingly, the declarations X made to third parties become admissible evidence. These declarations will henceforth serve as testimony in that they are “admissible as evidence of the existence of the facts stated therein”. [7] [ 32 ] The Court can rule that there is endangerment on the strength of these declarations on the strict condition that “the reliability of the declaration[s] is sufficiently guaranteed”. [8] These guarantees may be intrinsic or extrinsic to the declaration and must be assessed in the context of the evidence as a whole.

However, they need not be corroborated. [ 33 ] The credibility and reliability of X’s declarations must be assessed while taking into consideration his personal characteristics, his peculiar perspective as a five-year-old child, and his level of maturity and development. This approach does not change the standard of proof, however, which remains the balance of probabilities. In R. v.

B. (G.) , the Supreme Court had the following to say on the subject: [9] [T]he judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults.

However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. ... [A] flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. … . While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. [ 34 ] In R. v.

W. (R.) , [10] the Supreme Court quoted the above remarks and added that it favoured assessing the credibility and reliability of a child’s testimony by adopting a flexible and individualized approach: [There] is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children.

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. … [W]e approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel.

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. [ 35 ] Here, the evidence of physical abuse rests on the video recording of the declarations the child made to a Sûreté du Québec investigator and his spontaneous declarations to the foster family. [ 36 ] On April 29, 2019, X met with the investigator Simon Guérard of the Sûreté du Québec at the police station in City A.

The sole purpose of questioning X was to obtain a description of the events that took place at his home the night before, which events led to Y’s death. [ 37 ] On May 6, 2019, the Director received a report that X was physically abused by the father and his spouse. [ 38 ] This triggered the multisectorial agreement and on May 10, 2019, X again met with Investigator Guérard, who was tasked this time with taking the child’s declaration in connection with this report. [ 39 ] At the outset, the investigator identified himself and added, for the purpose of the recording, that he was meeting with X and stated the date, time, and location.

Immediately, the child spontaneously corrected the investigator by telling him that his name was [hyphenated family name with the names of the father and his spouse]. Similarly, the child subsequently referred to the father’s spouse as [ translation ] “Mama” or [ translation ] “Mama F”. [ 40 ] The investigator explained to the child that he was trying to find out the truth. He gave him a few instructions to make their conversation easier by using concrete examples.

The investigator then presented hypothetical situations to be certain that the child understood. [ 41 ] The investigator then began questioning the child. The questions he asked were open-ended and never suggestive. [ 42 ] The salient points of the child’s declaration are: [ translation ] ➢ When I have a tantrum ..., he gives me cold showers; ➢ I don’t like cold showers. I only like hot showers. They feel good; ➢ He would put the cold shower spray on my face and I couldn’t talk.

He would put it back, take it off, put it back, take it off, put it back [the child simulated the shower head moving repeatedly from his face to his stomach]; ➢ It was my daddy ... and my mama, her name is F, who did that;

➢ They tied me up; ➢ That happened once [the child pointed to the parts of his body that were tied up]; ➢ It started with the cold shower; ➢ He would put it on my face, take it off, put it back, take it off [the child simulated the shower head moving repeatedly from his face to his stomach]; ➢ It was both of them [father and spouse who did this]; ➢ It was with daddy’s ... red belt; ➢ I couldn’t move; ➢ Because I didn’t listen to the instructions; ➢ I am mad with daddy. [ 43 ] Moreover, with respect to the child’s declarations to the foster family, they were all spontaneous and in the context of everyday life. [ 44 ] Thus, soon after the child arrived in the foster family, they noticed that the child was afraid at bath or shower time.

X asked about the temperature of the water and said [ translation ] “Are you going to spray me in the face with the hose” referring to what his “parents” did to him when he had tantrums or did not listen to their instructions. [ 45 ] The day after his arrival, X accidentally knocked over the foster mother’s coffee cup while playing with a scooter. Afraid, the child asked her if she was going to pull his hair. The foster mother reassured him, telling him that nothing of the kind would happen and that he was safe with them. [ 46 ] In the ensuing days, the child had a haircut.

The foster family noticed a bald spot on his head. They saw a pediatrician [pediatrician 1] on May 10, 2019, who made the same observation, that is, [ translation ] “loss of hair in patches”. [11] [ 47 ] The foster father is an ambulance technician by profession. On May 6, 2019, X saw the uniform in the bathroom. He asked his foster family if it was a uniform for a police officer or an ambulance technician, and then said [ translation ] “It happened to me too, I had Scotch tape”.

Another time, X offhandedly said [ translation ] “Daddy tapes my mouth shut, [12] and Y too”. [ 48 ] A few days later, during a car ride to go buy a belt, the child told the foster family [ translation ] “Sometimes, my daddy ties me to my bed with a belt”. [ 49 ] From the child’s declarations to the Sûreté du Québec investigator and the foster family, the Court accepts the following guarantees of reliability: ➢ The child’s interviews were always led non-suggestively by the investigator; ➢ The child’s declarations to the foster family were spontaneous.

His statements were triggered by various everyday situations experienced in the foster family; ➢ The child’s declarations to the investigator and foster family are consistent by and between themselves; ➢ The description of the cold showers suffered by the child as reprisal is detailed. The child describes the scene and mimics the actions of the father and his spouse. He refers to the consequence of the cold shower: his inability to speak when the water is sprayed in his face.

He details the reasons for being punished this way, connecting the cold showers to his tantrums or his disobeying instructions; ➢ The child’s affect is consistent with his declarations: • He fears bath and shower time in his foster family; • He was frightened after accidentally knocking over a coffee cup, fearing the consequence he believed was coming; • He was afraid of having his hair pulled; • The purchase of a belt immediately brought to mind the child’s memory of being tied to his bed with a belt. ➢ The child’s bald patch on a small surface is consistent, without being determinative, with the child’s remarks that the father’s spouse pulled his hair;

➢ The child identified the physical abusers as his “daddy” and his “mama F”. He took care to distinguish the physical abuse of having his hair pulled by attributing this action only to the father’s spouse; ➢ The original order stated that the father’s spouse physically abused Y, including pulling her hair. [ 50 ] In addition, the psychological assessment of the child [ translation ] “revealed signs of complex trauma.

There appear to be signs of hypervigilance with respect to sounds and remarks that recount experiencing anxiety-inducing methods of upbringing”. [13] Without necessarily specifically corroborating the physical abuse described by the child, this assessment nevertheless reveals the negative repercussions on X of the improper methods of upbringing used by those who had custody of him. [ 51 ] In light of the accumulated guarantees of reliability above, the Court finds that the reliability of X’S declarations is sufficiently guaranteed to allow the Court to rely on them. [ 52 ] To counter this evidence, the father submits the following. [ 53 ] During an interview with the Director, the father denied any form of violence against the child.

He even went so far as to imply that the Director might have [ translation ] “through leading questions, put words in X’s mouth about possible abuse”. [14] [ 54 ] The Court at once sets aside the hypothesis raised by the father in the individual meeting with the Director. This supposition is not based on the evidence and is nothing more than pure speculation. [ 55 ] At the hearing, the father chose not to testify.

He was compelled to do so, however, at the behest of counsel for the mother. [ 56 ] The father then evaded the questions about the events concerning Y that took place during the night of April 28 to 29, 2019. [ 57 ] The father reiterated his denial of any form of violence or unreasonable methods of upbringing against X. [ 58 ] The father declared that he was unable to explain what could have led X to utter the remarks that were reported to the Court. [ 59 ] The father acknowledged that either he or his spouse bathed X, but that the child had recently begun bathing himself without any assistance. [ 60 ] Looking back, the father declares that he was blinded by love.

He trusted his spouse’s ability to change and believed that she wanted to do so based on the steps she had taken to this end. [ 61 ] The Court assigns little probative value to the father’s testimony. Aside from the general denial, his testimony does not shed any light on the situation and, especially, presents no evidence likely to call into question the reliability and validity of the child’s declarations. [ 62 ] The Court concludes that the reliability of X’s declarations, in themselves and with respect to the evidence as a whole, is sufficiently guaranteed to make them probative and convincing.

Accordingly, the Court considers them to be proved. [ 63 ] The Court finds that the bodily harm suffered by the child is serious. The infliction of such injuries on a young child, so vulnerable, compromised not only his immediate security, but also his development. The child is dealing with psychological sequelae that, in all likelihood, will require professional, long-term care. [ 64 ] Finally, the father’s desire to put an end to the situation of endangerment is non-existent at the moment in light of his denial and refusal to accept any responsibility.

As for any genuine capacity he may possess to put an end to the situation, the evidence is silent on this point. [ 65 ] The Court concludes that the security and development of X are in danger on the ground that he has been physically abused by the father and his spouse. Second issue: Should contact between the mother and the child resume and if so, under what conditions and for what purpose? [ 66 ] The Director recommends entrusting the child to a foster family for a period of six months and progressively resuming contact between the mother and her child.

At the end of this period, a more long-term plan will be proposed, particularly with respect to the role and responsibilities the mother could assume for the child in the long term. In this respect, all options will be considered, including starting the process of progressively reinserting the child with his mother. [ 67 ] The mother consents to entrusting her child to a foster family.

She wants the resumed contact, even though progressive, to be more regular, however, so that she can regain the care of her child toward the end, or at the latest, at the expiry of the six-month period. [ 68 ] The father and counsel for the child share the Director’s position. A. The Law 1. International law [ 69 ] The notion of the best interests of the child appeared for the first time in international law with the adoption by the United Nations General Assembly, in 1959, of the Declaration of the Rights of the Child : [15] 2.

The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity.

In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration. [ 70 ] The principle of the best interests of the child in international law was repeated with increased force and rigor in the Convention on the Rights of the Child [16] (Convention). It is one of its guiding principles. The relevant provisions of the Convention in this respect are: 3.

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. … 9.

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. … States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. 18.

States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. [ 71 ]

Article 3 of the Convention assigns the status of “primary consideration” to the principle of the best interests of the child. The use of this term indicates that the best interests of the child must be a priority and take precedence over any other principle or consideration. [17] [ 72 ]

Article 9 of the Convention states the principle that a child should not be separated from his or her family, subject to the best interests of the child. [ 73 ]

Article 18 of the Convention sets out the principle that the parents have primary responsibility for the upbringing and development of the child; this duty must be exercised based on the child’s best interests. [ 74 ] The notion of best interests of the child is not defined in the Convention .

However, in its General Comment No. 14 , [18] dated May 29, 2013, the Committee on the Rights of the Children defined its scope. [ 75 ] First, the Committee says that States have a strong legal obligation to assess the best interests of the child; it is not a discretionary power. [19] The Committee also underlines that this principle is a threefold concept and includes a substantive right, a fundamental interpretative legal principle, and a rule of procedure. [20] [ 76 ] Thus, the best interests of the child must be considered independently and separately. The notion must be used as a principle of

interpretation when the meaning and scope of other provisions require

interpretation.

Finally, it entails procedural obligations when it becomes necessary to rule on this subject in a given case. [ 77 ] The Committee states that the best interests of the child is a “dynamic concept that encompasses various issues” [21] and is “continuously evolving”. [22] It must therefore be adjusted and defined taking into consideration the particular situation of each child. [23] [ 78 ] The Committee lists certain characteristics that must be taken into account when assessing the best interests of a child in a given case: [24] These circumstances relate to the individual characteristics of the child or children concerned, such as, inter alia, age, sex, level of maturity, experience, belonging to a minority group, having a physical, sensory or intellectual disability, as well as the social and cultural context in which the child or children find themselves, such as the presence or absence of parents, whether the child lives with them, quality of the relationships between the child and his or her family or caregivers, the environment in relation to safety, the existence of quality alternative means available to the family, extended family or caregivers, etc. [ 79 ] The Committee is of the view that the paramountcy of the principle of the best interests of the child is justified in light of the inherent characteristics of being a child. [25] Because children are less able to defend their own rights fully, these rights tend to be neglected if they are not highlighted and prioritized. [26] Accordingly, when the child’s interests are in conflict with those of other persons, the principle of the best interests of the child means that greater weight must be assigned to the child’s interests.

This approach fits into an international human rights law perspective because it makes it possible to acknowledge and promote the child’s human dignity. [27] [ 80 ] The Convention was ratified by Canada on December 13, 1991, and by Quebec on December 9, 1991. It was not, however, directly and explicitly incorporated into domestic law, but is an undertaking by Canada and Quebec to apply the Convention to all of its actions, including its legislation, policies, and various programs.

2. Domestic law [ 81 ] The provisions of the Youth Protection Act relevant to resolve this dispute are: 2.2. The primary responsibility for the care, maintenance and education of a child and for ensuring his supervision rests with his parents. 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. 4. Every decision made under this Act must aim at keeping the child in the family environment.

If, in the interest of the child, it is not possible to keep the child in the family environment, the decision must aim at ensuring that the child benefits, insofar as possible with the persons most important to the child, in particular the grandparents or other members of the extended family, from continuity of care, stable relationships and stable living conditions corresponding to the child’s needs and age and as nearly similar to those of a normal family environment as possible.

Moreover, the parents’ involvement must always be fostered, with a view to encouraging and helping them to exercise their parental responsibilities. If, in the interest of the child, returning the child to the family is impossible, the decision must aim at ensuring continuity of care, stable relationships and stable living conditions corresponding to the child’s needs and age on a permanent basis. [ 82 ]

Section 2.2 of the YPA sets out the principle that the parents have primary responsibility. [ 83 ]

Section 3 of the YPA proclaims the principle of the best interest of the child and the respect of the child’s rights. This provision repeats the wording of art. 33 of the Civil Code of Québec .

Section 3 YPA includes an additional aspect, however, in its list of factors to be taken into account, that is, the preservation of the cultural identity when evaluating the best interest of an Aboriginal child. [ 84 ]

Section 4 YPA sets out the principle of keeping the child in the family environment. [ 85 ] The interrelationship, and in some cases, the opposition between these various principles established in the YPA , have been the subject of copious case law. [ 86 ] In Protection de la jeunesse — 12249 , [28] Robert Proulx J.C.Q. repeated the position often taken in the case law that the interest of the child and the respect of his or her rights under s. 3 YPA [ translation ] “is the fundamental principle of the Youth Protection Act ”. [29] [ 87 ] In Re: X , [30] Ginette Durand-Brault J.C.Q. examined in greater detail the interrelationship of the principles set out under ss. 2.2, 3 , and 4 of the YPA by exploring two avenues.

The first was that these principles are on an equal footing, in which case the measures ordered must seek to reconcile them.

The second was that the interest of the child and the respect of his or her rights constitute the fundamental principle of the YPA and therefore have precedence over the other principles in this statute. [ 88 ] Durand-Brault J.C.Q., after undertaking a review of the Supreme Court case law, resolved this “Cornelian dilemma” [31] by deciding in favour of the paramountcy of the principle of the best interest of the child and the respect of his or her rights: [ translation ] [66] Beyond a shadow of a doubt, it appears from this judgment, like others where the fate of a child is concerned, whether it is a private conflict between the parents or an action initiated in the context of a public order statute like the Youth Protection Act , that the interest of the child is now indubitably recognized as the ultimate litmus test by which all the other principles must be measured.

The notion of attachment is at the forefront of the elements to consider when applying this criterion. [ 89 ] In Protection de la jeunesse — 0856 , [32] Gilbert Lanthier J.C.Q. considered the new wording of s. 4 YPA in 2007, which supported keeping the child in the family environment.

After completing his analysis, he found that the new s. 4 YPA did not in any way call into the question the primary consideration to be given to the principle of the best interest of the child under s. 3 YPA : [ translation ] [86] Some will claim that these new provisions have relegated the criterion of the best interest of the child to second place behind the Court’s obligation to first favour keeping and/or returning the child to his or her family environment.

[87] The Court considers that the Supreme Court of Canada judgments, among others, regarding the paramount application of the criterion of the best interest of the child still apply despite the coming into force of the new s. 4 of the Youth Protection Act on July 9, 2007. (Citations omitted.) [ 90 ] In Protection de la jeunesse — 10174 , [33] the Court of Appeal had to decide the scope of the discretion attributed to the Court at the expiry of the maximum placement periods set out under s. 91.1 YPA . That being so, France Thibault J.A. connected the

interpretation of this provision to ss. 3 and 4 YPA .

She then characterized the principle of the best interest of the child and the respect of his or her rights as being the [ translation ] “paramount consideration”: [ translation ] [77] The general scheme of the Youth Protection Act is to implement what is necessary to ensure the security or development of the child ( ss. 2 and 2.3 YPA ) according to a paramount consideration, in this case, the child’s best interest ( s. 3 YPA ). [ 91 ] The Court of Appeal concluded that the YPA did not provide that the Court automatically had to order a permanent measure at the expiry of the maximum placement period.

The judicial discretion belonging to the Court at that point, circumscribed by the YPA , was deemed essential to safeguarding the best interest of the child. [ 92 ] In Protection de la jeunesse — 0922417 , [34] Danielle Richer J. of the Superior Court had to decide the same question of law and adopted a similar approach by interpreting s. 91.1 YPA in conjunction with the principles set out in ss. 3 and 4 of the YPA . Richer J. settled the dispute by prioritizing the paramountcy of the interest of the child: [ translation ] [41] As for s. 91.1, the Court is of the view that it must receive a sufficiently flexible

interpretation to favour both the broad orientations of the statute arising from ss. 3 and 4, while promoting the judge’s discretion to assess the facts of the case, so that the interests of the child will prevail. [ 93 ] Having completed her analysis, Richer J. dismissed the Director’s appeal contesting the Court’s refusal to order the child’s placement in foster care until the age of majority at the expiry of the maximum period of placement. [ 94 ] With respect to art. 33 of the Civil Code of Québec , more recently, the Court of Appeal in Droit de la famille — 191265 reiterated that [ translation ] “the interest of the child is the primary consideration”. [35] [ 95 ] In light of the above case law, the Court intends to give the principles of the parents having the primary responsibility for meeting the child’s basic needs and of keeping the child in the family environment all the consideration and significance they deserve.

However, in the event of a conflict between these two principles and that of the best interest of the child and the respect of his rights, the latter will prevail. B. The mother’s situation 1. Brief history [ 96 ] The mother lived with X from the moment her child was born on ..., 2014, until July 17, 2014. The mother never assumed the care of her child alone. [ 97 ] On March 10, 2014, X and his mother participated in the Mother and child program offered by Resource A to receive services to develop her parenting skills. [ 98 ] In the treatment

summary prepared by this resource, the conclusion states: [36] [ translation ] We are of the view that the mother has the minimum abilities to meet her child’s basic needs in the short term. However, we are concerned by her limited ability to understand the evolution of her son’s development and needs, which are changing as he grows older. The mother has rigid thinking that adapts to change with difficulty and requires constant follow-up and detailed, simplified explanations.

Her anxiety remains a daily challenge that she must learn to manage more independently because, at the moment, in stressful situations, she needs outside help to try to reassure her. The mother is able to acquire new skills; however, she needs support on a daily basis, repeatedly, to do so. The same applies to everything concerning the steps she takes for herself and her important papers. Despite all the challenges, the mother is persistent and determined to stay with her son and to do whatever it takes to achieve her objective. [ 99 ] On June 5, 2014, X and his mother went to [Resource B].

This resource welcomes young mothers and their small children. It offers a living environment that is structured and services that aim to develop parenting skills, provide support for the physical and emotional care required by the child, and develop independence. X and his mother lived there until July 17, 2014. [ 100 ] Overall, the workers at [Resource B] noted shortcomings similar to those observed at [A resource]. Difficulty organizing and decoding the child’s needs were observed. Moreover, the mother’s anxiety could be overwhelming. Despite the mother’s good

intentions, the workers of this resource concluded [ translation ] “that the mother is not equipped with the parental capacity to continue her development”. [37] [ 101 ] Also, on February 5, 2014, the mother underwent a psychiatric assessment and the following diagnoses were made: [38] ➢ Probable borderline personality disorder, currently well compensated; ➢ Symptomatic attention deficit disorder, particularly decreased attention (secondary to hemodilution of the medication due to the pregnancy?); ➢ Known as having a mild intellectual disability; ➢ We have not seen any symptoms today that would be consistent with Tourette’s syndrome. [ 102 ] The mother’s psychiatric condition is, however, considered to be stable, and the psychiatrist wrote that [ translation ] “the patient does not currently present a condition requiring psychiatric care”. [39] [ 103 ] On [...], 2014, the Court entrusted the child to his father for a period of six months and ordered that contact between the mother and her child be supervised by a third party. [ 104 ] As of that date and until April 29, 2019, the child lived with his father in execution of orders by this Court and the Superior Court awarding him custody of the child, which decisions renewed supervised contact between the mother and the child. [ 105 ] Moreover, on [...], 2017, the Superior Court dismissed an application by the mother to have her access rights to her children Y and X supervised by her spouse instead. [ 106 ] In his judgment, Justice A concluded “[...]” [40] and “[...]”. [41] 2.

The mother, her spouse, and her other children [ 107 ] How has the mother’s situation evolved since the last youth protection order rendered by the Court on May 30, 2018? [ 108 ] As a backdrop, let us point out that in that order, the Court noted that the mother irregularly exercised her supervised access rights with her children: [42] [ translation ] [67] In the fall of 2017, she [the mother] even stopped seeing her children for a month and a half. [68] Since December 12, 2017, out of 21 possible visits, 11 actually took place with both children. [69] From February 28, 2018, until today, X benefitted from contact alone with his mother.

These visits generally went well. That said, for more than half the visits, X expressed a desire to end the visit early. In the other cases, he wanted them to continue. [70] The mother cancelled her visits on four occasions, often at the last minute. X reacted strongly.

He was inconsolable. [ 109 ] The last contact between X and his mother took place on May 28, 2018. [ 110 ] In the six months after the order dated May 30, 2018, the mother decided to suspend her contact with X. [ 111 ] The mother justified her decision by arguing her deep disagreement with the order dated May 30, 2018, providing, first, that her personal relationship with X would continue to be supervised and, second, that any other form of contact between her and Y would henceforth be prohibited. [ 112 ] The mother was afraid that by maintaining contact with X without doing the same with Y, her daughter would interpret the situation as her mother abandoning her or preferring X to her. [ 113 ] Overall, the mother’s position was that her children should receive the same treatment.

Therefore, either she had contact with both her children or she had none at all.

In light of the order dated May 30, 2018, she felt the second option was her only one. [ 114 ] In retrospect, the mother acknowledged that her thoughts and position took almost no heed of X’s needs or the potential consequences for him. [ 115 ] Also, the mother raised her own limits and her exhaustion due to her circumstances to justify withdrawing from X’s life during that time: ➢ She was shocked by and dejected about the May 30, 2018, order prohibiting her from having any contact with Y; ➢ She was primarily responsible for meeting the basic needs of her child A, who was two years old; ➢ She was pregnant with another child, B, who was born on [...], 2018. [ 116 ] The combination of these factors led the mother to feel overwhelmed and distressed and she considered suicide during this period.

She was often in tears, inconsolable, for hours at a time, curled up in a fetal position on her bed. [ 117 ] Wanting to pull herself together, the mother, after consulting people she trusted, decided to devote all her personal resources to

taking herself in hand, recovering some measure of well-being, bringing her pregnancy to term, and assuming the care, maintenance, and education of A, and later B when she was born, to the best of her abilities. To this end, the mother regretfully concluded that she had to temporarily suspend contact with X. [ 118 ] In November 2018, the mother considered that she had made enough progress to be able to resume her relationship with X.

On November 20, 2018, she called the new youth worker assigned by the Director to the family’s situation, Mr. [worker 2], and left a message to call her back. [ 119 ] On November 29, 2018, Mr. [worker 2] tried to reach the mother, unsuccessfully. [ 120 ] Furthermore, on November 21, and 29, 2018, the mother contacted the person in charge of supervising her contact with X at the [Organization A] to resume visits. [ 121 ] The mother was told that she owed [Organization A] $40 and that resumption of services was conditional on the reimbursement of this amount.

The mother agreed to go to the organization on December 5 to pay the debt. [ 122 ] During the telephone call of November 29, 2018, the mother told [Organization A] that she was not able to receive telephone calls.

This fact is important in a context where the mother maintains that Mr. [worker 2] never called her back after her November 20, 2018, call. [ 123 ] Although the Court believes the mother, it cannot find that Mr. [worker 2], who did not testify, [43] did not attempt to call her back, in light of the mother’s inability to receive telephone calls at the time. [ 124 ] Moreover, the Director’s ability to contact the mother by telephone or otherwise, from late fall 2018, to spring 2019, was further complicated by the mother’s housing instability, which will be discussed below, and by the fact that the Director had only the mother’s old cellphone number.

Although this telephone number was and remains active, the cellphone had been in the possession of G., an acquaintance of the mother’s, since about January 2019. Again, this assertion has a very vague aspect that does not exclude the hypothesis according to which the cellphone in question much earlier. [ 125 ] On December 5, 2018, the mother did not go to organization A, as agreed, to pay her $40 debt. The mother did not have the money at the time, given her very precarious financial situation. [ 126 ] In December 2019, the mother and her spouse separated.

They then agreed to share custody of their children A and B. The Court notes that the mother’s spouse and X and Y’s father are brothers. [ 127 ] From late March or early April 2019, until June 2019, the mother entrusted the children to her spouse. He was living with his own mother, Ms.

H (paternal grandmother of X, Y, A, and B). [ 128 ] During this time, the mother’s spouse assumed primary responsibility for the care, maintenance, and education of his children, despite some issues, particularly with respect to hygiene. [ 129 ] The mother remained involved with her children, however, by visiting with them regularly. Sometimes, the mother would stay for a whole weekend at the paternal grandmother’s home to benefit from an extended visit with her children.

The mother would then use the opportunity to give the children the care they required. [ 130 ] In support of her decision to entrust the children to her spouse for almost the entire spring season of 2019, the mother, in her testimony, submitted the following reasons: ➢ She was shaken by her separation and felt psychologically fragile, which affected her ability to meet the basic needs of A and B; ➢ She was experiencing housing instability: • In December 2018 and January 2019, the mother went to live with her brother in City B; • In February 2019, she found an apartment in City C that she shared with an acquaintance; • The building in City C became unsanitary and the mother returned to live with her brother in City B in May 2019.

He agreed to help her out for a short while; • During that same month, the mother found refuge with the mother of a friend in City C; • In June 2019, the mother temporarily moved into the paternal grandmother’s home; • In late July 2019, the mother moved into her own apartment. [ 131 ] It is noteworthy that the mother did not tell the Director about her many moves.

Consequently, the Director’s letters addressed to the mother remained unanswered. [ 132 ] This correspondence from the Director concerned issues of the utmost importance: ➢ In a letter dated December 3, 2018, Ms. [worker 3] invited the mother to get in touch with her to discuss the situation of Y, who was the subject of a new report. Ms. [worker 3] also told the mother that she had tried to call her, but had been unsuccessful; The letter was returned to the sender with the note “moved, address unknown”.

➢ On March 22, 2019, Mr. [worker 2] sent the mother a letter summoning her to a review committee to take place on April 9, 2019, concerning the situation of her children Y and X; The mother was absent from the review committee; In her testimony, the mother claimed that she did not receive this letter but that if she had, she would have assuredly been present; The Court believes the mother’s assertion, but ascribes this quid pro quo to her housing instability and her failure to apprise the Director of her many changes of address. [ 133 ] In fact, communication between the mother and the Director resumed in the hospital on April 30, 2019, when the mother was at Y’s bedside and a social services worker came to see the child. [ 134 ] From early June 2019 to late July 2019, the mother’s spouse left the paternal grandmother’s home to allow the mother to live there and take care of A and B. [ 135 ] From the moment the mother moved with A and B into her apartment in late July 2019, the mother and her spouse agreed on a new shared custody agreement for the children.

The mother then found herself to be the parent who was most present with the children. [ 136 ] On [...], 2019, the mother gave birth to a daughter named C, the third child from the mother’s union with her spouse. [ 137 ] In September 2019, the mother and her spouse resumed living together. The mother and the three children moved into the spouse’s apartment. [ 138 ] In October 2019, the family settled down more permanently in the mother’s apartment, where they live to this day. 3. The mother’s services [ 139 ] Over the years, the mother took

part in various services to improve her parenting skills and to develop positively on a personal level. The Court will refer to the most recent and relevant services. [ 140 ] From October 2016 to May 2017, the Director offered the mother and her spouse social follow-up services to put an end to a situation putting A at serious risk of parental neglect. [ 141 ] The mother and her spouse took

part in meetings held in the context of Program A offered by the CLSC. It was a preventive intervention program for families who present a greater risk of neglect. [ 142 ] The parents also benefitted from the support of a home educator and a social services worker, both due to the Director taking charge of the family. [ 143 ] In the context of these services, the mother and her spouse acknowledged their respective shortcomings and took an active

part in the measures to improve their parenting skills. The mother and her spouse made significant progress in this respect. [ 144 ] More specifically, with respect to the mother, she was [ translation ] “greatly involved” [44] in the follow-up services offered to better understand the needs of A and to meet them properly.

The mother made efforts to [ translation ] “work on her shortcomings” [45] and read a great deal to improve her knowledge. [ 145 ] Pleased with the progress of the mother and her spouse and considering that A’s security and development were no longer in danger, the Director put an end to the intervention in May 2017. [ 146 ] The parents voluntarily joined the SIPPE program offered by the CSLC (Integrated Perinatal and Early Childhood Services) to receive multidisciplinary services. [ 147 ] Except for an interruption between November 2017 and March 2018 due to a move, the family to this day receives the services dispensed through the SIPPE program. [ 148 ] Thus, Ms. [nurse 1], a nurse at the CIUSSS A, met with the mother, in particular when she was pregnant with B and C, as part of the food bank program for pregnant women (OLO).

Over time, Ms. [nurse 1]’s follow-up care greatly exceeded the initial mandate and she was offering the mother more personalized care. [ 149 ] Initially, Ms. [nurse 1] would go to the parents’ home every week. Shortly after C was born, these visits took place once every two weeks. [ 150 ] The mother established a relationship of trust with Ms. [nurse 1].

The mother was grateful to her for the quality and scope of the services that she offered, both to herself personally and as a mother, as well as to her family. [ 151 ] Under the SIPPE program, the family also received the services of Ms. [worker 6], a clinical activity specialist and psychoeducator with the CIUSSS A. Ms. [worker 6] offered social services follow-up on various fronts. She intervened with the parents to address their personal and relationship issues and to develop their parenting skills. [ 152 ] Ms. [worker 6] described the mother as being [ translation ] “a good client”.

Ms. [worker 6] was well received in the mother’s home and the mother showed interest in the services she offered. The mother listened, asked questions, and sought to apply the lessons and advice she received. [ 153 ] Although the mother’s progress is not linear, the overall picture reveals that what she learned favoured the development of her

parenting skills.

However, the mother’s impulsiveness remains a concern. [ 154 ] Ms. [worker 6] stated that the mother’s separation from her spouse led to a disorganization of the family that had consequences on the children, particularly on their hygiene and clothing in the spring of 2019. [ 155 ] Moreover, when Y died, the mother became temporarily less available emotionally and less present for her daughters, which the Court can easily understand. [ 156 ] For his part, the father of A and B, alone or with the help of a new girlfriend who was there for only a short while, was quickly overwhelmed by the scope of parental care required.

Caught off guard, the father neglected the children’s hygiene and failed to offer stimulation. [ 157 ] From the moment the mother once again became able to be the principle caregiver, the situation was resolved. Once the mother and her spouse resumed their relationship, he offered support and assumed some of the parental care for his children. [ 158 ] Finally, the mother and her spouse receive the services of an early childhood special education technician, Ms. [worker 7].

She works with the parents and the children, especially with respect to stimulation. [ 159 ] The steps taken by Ms. [worker 7], with her colleagues and in cooperation with the children’s daycare resulted in B recently beginning to receive occupational therapy services. [ 160 ] Since the services described above began, the mother has generally attended the appointments scheduled, except for the period of time when she was experiencing housing instability, during which she was most deeply affected by Y’s death. [ 161 ] The results of the mother’s progress, arising from her many follow-up services, were largely noted by Ms. [worker 4] and Mr. [worker 5].

In June and July 2019, they were tasked with assessing a report of parental neglect concerning A. It bears noting that they work for a separate, independent establishment, the CISSS B. [ 162 ] In the context of their assessment, Ms. [worker 4] and Mr. [worker 5] met with many people, including the mother and her spouse who attended all five interviews, visited the children’s living environments, and read abundant documentation. [ 163 ] The reproduction of the names of those who were met is relevant because it is so thorough: ➢ The child A; ➢ The child B; ➢ The mother; ➢ The mother’s spouse; ➢ Ms.

I, director of Daycare A; ➢ Ms. [worker 6]; ➢ Ms. [worker 7]; ➢ Ms. [nurse 1]; ➢ The paternal grandmother; ➢ Ms. [worker 8], director general of organization A ([organization B]). [ 164 ] The report prepared by Ms. [worker 4] and Mr. [worker 5] makes the following main observations: ➢ The mother is active and focused on her children’s interests; ➢ The children turn to their parents; ➢ The mother and her spouse are warm and affectionate with their children; ➢ The spouse’s apartment is relatively clean, properly furnished, and organized according to the children’s needs; ➢ The mother’s apartment is clean, orderly, and adequate; ➢ The mother is able to organize the family on a daily basis; ➢ Except for the more acute crisis period in the spring of 2019, the mother is able to maintain family stability fostering the proper development of her children; ➢ The mother is [ translation ] “energetic ... resourceful and proactive when faced with challenges and the needs of her children”; [46] [ 165 ] Ms. [worker 4] and Mr. [worker 5] were also of the view that while the mother and her spouse may still have some shortcomings, the qualities of one mitigate the challenges of the other, which they consider to be a balancing factor for the family. [ 166 ] Ms. [worker 4] and Mr. [worker 5] also noted that the fact that the mother and her spouse acknowledged those things they still

had to improve and their mobilisation concerning the many services already in place constituted important protective factors. [ 167 ] Accordingly, Ms. [worker 4] and Mr. [worker 5] concluded that the security and development of A were not in danger and the Director did not need to intervene with the family of the mother, her spouse, and their children A and B. [47] [ 168 ] This family has continued to progress positively since Ms. [worker 4] and Mr. [worker 5] wrote their report in late July 2019. 4.

Conclusion on the mother’s progress [ 169 ] The Court concludes that the mother has significantly improved her parenting skills and has made positive progress on a personal level. In this respect, it is undeniable that the mother’s accomplishments have exceeded the expectations and prognoses of the first professionals who were involved with her after the birth of her very first child, Y. [ 170 ] Certainly, the mother’s parenting skills still need help and her impulsiveness may lead her to make questionable choices.

Nevertheless, the evidence reveals that the mother has exceeded the threshold of competence required to assume custody of her three young children. [ 171 ] To be added to this conclusion is the mother’s perseverance with her current follow-up services and her desire to get the most out of them. The Court considers the mother to be a person capable of meeting the basic needs of her daughters and who is concerned with their well-being and their best interest. C. X’s situation [ 172 ] X is a young child who has experienced unfathomable difficulties. He was physically abused by the father and his spouse.

He was also exposed to violent acts, witnessing at least some if not all the serious injuries sustained by Y that led to her death. [ 173 ] At only 5 years old, X is already dealing with sequelae resulting from a toxic living environment and a difficult life story. [ 174 ] Ms. [worker 1], the caseworker assigned to X and his family between April and June 2019, referred the child to Ms. [psychologist 1], psychologist. [48] [ 175 ] Ms. [psychologist 1] was mandated to conduct a psychological assessment of the child to obtain a description of his psychological profile and to identify the care and health services required by his needs.

The assessment process started in mid-May 2019. [ 176 ] It revealed that X has a developmental delay with respect to his motor skills that is noticeable in his graphic performance and his balance. Moreover, the intellectual output is within the range of intellectual limitations, placing him in the 6th percentile. [ 177 ] The psychologist noted that the child makes remarks and adopts behaviours that are consistent with anxiety-inducing life experiences. The

interpretation of the tests suggest that the child has [ translation ] “massive anxiety” [49] and perceives personal relationships as [ translation ] “potentially dangerous”. [50] [ 178 ] When presented with images showing violent content, the child is overwhelmed emotionally, causing him to lose all his faculties.

An attitude of denial resulting from dissociation appears as a defence mechanism to [ translation ] “block access to experiences that are too anxiety inducing”. [51] The subject of food is also a source of concern for the child. [ 179 ] The psychologist concluded that the child presented serious indicators of a complex trauma and displayed hypervigilance with respect to noise, which strongly supports the hypothesis of post-traumatic stress. [ 180 ] Moreover, it appears clearly that the child’s adaptability was used to maximum capacity and must be preserved in the immediate future. [ 181 ] The psychologist explained that the child’s most pressing need is to evolve in a healthy, peaceful, safe, warm, and structured living environment capable of decoding his internal states, welcoming his comments, and intervening sensitively and cohesively. [ 182 ] Once the assessment process was complete, Ms. [psychologist 1] immediately began play therapy with the child.

This therapy will continue as long as necessary. [ 183 ] With regard to the relationship between the mother and the child, X appears to have developed a psychological parental bond with the father’s spouse, whom he identifies as his mother. The child consistently introduces himself to people as X [the hyphenated surnames of the father and his spouse]. The real mother, Ms. D, is absent from his discourse and his thoughts. [ 184 ] This is a consequence of the mother’s absence during a significant portion of his life.

Independently from the circumstances that led to this absence, from the child’s viewpoint only, he adapted by learning to live without her. [ 185 ] It bears noting that to a child, particularly a young child, the notion of time is different from what it would be to an adult.

The mother exercised her access rights very irregularly in the year that preceded the Court order dated May 30, 2018, then not at all in the year that followed it, despite the fact that they were allowed, and this situation can only have significantly contributed to fraying the bond that previously existed between the mother and child. [ 186 ] The mother’s significant absence from her son’s life, whatever the reasons, resulted in his turning to the female figure that was present on a daily basis, the father’s spouse, to meet his need for emotional investment. [ 187 ] For her part, the mother submits that the father and his spouse alienated her son from her to exclude her from her child’s life to explain the fact that her son considers the father’s spouse as his mother.

[ 188 ] The hypothesis of an alienation dynamic cannot be brushed aside as an element that contributed to X emotionally distancing himself from his mother. [ 189 ] Without being truly able to come to a conclusion in this respect, the Court is nevertheless troubled by the contents of the observation reports of the mother’s visits to X and Y, written by the organization A.

They report, with respect to their living environment, that the children had secrets to bear and feared reprisals. [ 190 ] Moreover, the father refused to let the mother assume certain parental tasks with the children during visits, assuming that they would be performed improperly (food intolerance of the children, etc.) [ 191 ] With respect to X’s health, the medical report of the pediatrician [pediatrician 1], [52] written in July 22, 2019, reveals that he was diagnosed with cerebellar ataxia [53] when he was 16 months old. [ 192 ] At the time, due to a lack of mobilization by the father and his spouse, the hospital’s efforts to assess the child’s medical condition in greater depth were unsuccessful, including during a recurrence of the disease in January 2017. [ 193 ] Dr. [pediatrician 1] nevertheless noticed the child’s positive neurological progress.

In retrospect, his hypothesis is that X had a post-infection cerebellar ataxia in remission. The child is, however, clumsy and has a jerky gait that could be the result of [ translation ] “greater motor issues and a developmental delay”. [54] [ 194 ] Dr. [pediatrician 1] recommended referrals to an occupational therapist and to a speech therapist. Moreover, if the cerebellar ataxia should resurface, a neuropediatric assessment will be required. [ 195 ] Dr. [doctor 1] is X’s family physician.

In her report, she indicated that she did not see the child for his periodical check-ups at 3 and 4 years old. [55] [ 196 ] When symptoms appeared indicating a recurrence of the cerebellar ataxia, she referred the child to a pediatric neurologist, but did not see the child again until he was entrusted to a foster family. [ 197 ] Dr. [doctor 1] examined the child with the foster family present on June 20, 2019.

She noted [ translation ] “a certain clumsiness with respect to gross and fine motor skills”. [56] She indicated that the child’s progress in this respect and with regard to language, as the foster family told her [ translation ] “appears to indicate that his delays are in part due to a lack of stimulation”. [57] [ 198 ] Dr. [doctor 1] recommended that the child be referred to an occupational therapist. [ 199 ] Moreover, rather fortunately, the child has been entrusted to an experienced foster family that has shown him exceptional devotion.

X is progressing well under the responsibility of people who meet each of the many requirements stated by the psychologist on the qualities sought for his living environment. [ 200 ] The foster family constitutes a source of kindness, comfort, and protection for the child. It is able to adapt its interventions when the child is suffering and when he expresses his fears.

It has implemented appropriate and consistent structure to reduce the child’s oppositional behaviour. [ 201 ] The stability of the environment and the predictability of the foster family’s routine, among other qualities, have contributed to calming X.

The child is particularly vulnerable in transitional periods, but these are addressed with firm but gentle support, which makes the child feel safe. [ 202 ] At the hearing, the mother unreservedly recognized the qualities of the foster family and expressed her gratitude to them. [ 203 ] The foster family also informed the Court that it could invest in the child only in the medium term. Because of their retirement plans, which are on the horizon, the foster mother could not commit to the child in the context of a permanency plan. D.

Measures to place the child in foster care and to supervise contact between the mother and her child [ 204 ] The parties agree to recommend the placement of the child in foster care for a period of six months. In light of the above observations, the Court agrees with this recommendation. [ 205 ] The objective of this placement and the terms for restoring contact between the mother and the child are contested. The Court intends to analyze them at the same time because they are so intertwined. [ 206 ] Let us first recall the principal teachings from the case law in this respect. [ 207 ] In Racine v.

Woods , [58] the Supreme Court established the premise that a child is not the property of a parent, but a full-fledged legal subject. So, the beneficial effects of maintaining personal relationships between the child and his or her parents must be examined from the child’s point of view: But it is the parental tie as a meaningful and positive force in the life of the child and not in the life of the parent that the court has to be concerned about.

As has been emphasized many times in custody cases, a child is not a chattel in which its parents have a proprietary interest; it is a human being to whom they owe serious obligations. [ 208 ] In P. (D.) v. S. (C.) , [59] the Supreme Court reiterated the approach putting the child and the child’s best interest at the centre of the analysis. The following excerpt has been used as a benchmark: The child should be at the centre of the courts' concerns as it is the child's rights which are at issue, not those of the parents.

The criterion of the child's best interests does not simply mean that the child must not suffer harm. …

It is the child, as I stated above, who should always be the focus, not the interests or needs of the parents. The right to access is a right designed primarily to benefit the child, not the parents. [ 209 ] In N. B. (Minister of Health and Community Services) v. L. (M.) , [60] the Supreme Court stated the prime importance of preserving the child’s emotional stability: The decision as to whether or not to grant access is a delicate exercise which requires that the judge weigh the various components of the best interests of the child.

It is up to the judge to determine which of the child’s interests and needs take priority. A child’s emotional stability is of prime importance. If the child is unduly disturbed by access, it is generally not granted. The evidence as to how access has been exercised is particularly relevant, since it relates both to the attitude of the parent and to the effects of the visits on the child. Every parent must place his or her child’s interests ahead of the parent’s own.

The parent’s inability to do so, and the harm suffered by the child, are factors that may result in access being prohibited. (Citations omitted.) [ 210 ] In Young v. Young , [61] the Supreme Court pointed out the distinct nature of judgments on custody and access rights in relation to other disputes and the factors to consider when considering the best interest of the child: In contrast to most issues that come before the courts, such decisions are "person - oriented" rather than "act-oriented" ... .

Courts are required to predict the happening of future events rather than to assess the legal import of past acts and judge the effect of various relationships on the best interests of the child, all the while weighing innumerable variables without the benefit of a simple formula. … Courts must attempt to balance such considerations as the age, physical and emotional constitution and psychology of both the child and his or her parents and the particular milieu in which the child will live. [ 211 ] Finally, in this same judgment and in P. (D.) v.

S. (C.) , [62] the Supreme Court indicated that it is not necessary to prove that harm has occurred because the assessment of the best interest of the child also includes a preventive aspect. [ 212 ] Let us now apply these concepts to the case at hand. [ 213 ] The evidence reveals that there is already a significant bond between the child and his mother. The reciprocal words and acts of affection expressed or offered each other, as appears in the visit reports prepared by organization A, are telling.

If for no other reason than the child was sometimes inconsolable when the mother cancelled a visit, [63] which is a probative though unfortunately painful manifestation of this. [ 214 ] However, because this bond has seriously deteriorated, does the interest of the child require that an attempt be made to rebuild it in the current state of the situation between the mother and the child? [ 215 ] We have seen how the mother has, through her many follow-up services, managed to sufficiently develop her parenting skills to be able to assume custody of A, B, and C.

In this respect, it is worth reiterating that the Director, in July 2019, was of the view that it no longer needed to continue its involvement with this family to ensure the security and development of the children. [ 216 ] The mother’s parenting skills, which used to be worrisome risk and vulnerability factors, are now a more positive component of the analysis. [ 217 ] Moreover, since the application for the review and extension of the order dated May 30, 2018, was brought, the mother has offered a convincing demonstration of her will and determination to re-establish the bonds with X and progressively assume a parental role with him. [ 218 ] In this respect, the mother was present for each of the 10 days of the hearing before the Court, even in the spring of 2019, when she was extremely affected and grieving the death of her daughter Y.

The mother has shown courage that attests to her real commitment to X. [ 219 ] The Court finds that the mother is now capable of being, with respect to the quality of the parental relationship, a positive and meaningful force in X’s life. [ 220 ] That said, the

section of this judgment discussing X’s evolution has highlighted a life so devastating and traumatizing it makes the blood run cold. At only 5 years old, life has left him battered and bruised. [ 221 ] The emotional stability of X is therefore a paramount consideration. This child’s adaptive capacity has already been used more than it should.

The extended and unexplained absence of the mother (from the child’s point of view), his living conditions in the father’s environment, the injuries suffered and those he witnessed, being abruptly ripped from his living environment, and his emergency integration into foster care are all ordeals that have left this child extremely vulnerable. [ 222 ] It is therefore essentially because the Court is convinced that renewing the bonds between the mother and the child will be beneficial for him, beyond everything the mother might have been to him in the past, that it intends to allow it. [ 223 ] In other words, the mother now has a lot to offer X, including one aspect of emotional investment that only she can offer permanently. [ 224 ] Astute clinical expertise and prudence will be necessary to begin this process, which must be done with sensitivity, progressively, and in line with the reactions, needs, and wishes of X.

[ 225 ] To this end, the child’s psychologist will have to work with the Director to establish the benchmarks of a concrete plan to reintroduce the mother to her child, from the beginning and at any time during the process. [ 226 ] Re-establishing contact between the mother and her child should therefore take place in the presence and under the supervision of the Director. [ 227 ] Let us be clear, the supervision required is based on the need for the mother and the child to receive professional support prior to, during, and after each visit to ensure every chance that this process will be successful.

Here, there is no question here that the supervision is to ensure the immediate security of the child. [ 228 ] In this sense, the Director should entrust this responsibility to the person it deems most competent and able for this purpose. There is no question, however, of resorting to the supervision offered by organization A or any such similar outfit.

The Court does not doubt the quality of the services offered by this organization, but considers that the particular, even unprecedented, situation of X does not fall within its mandate. [ 229 ] The Court intends to let the mother, the Director, and the child have the possibility of lifting the supervision, depending on the situation’s evolution. The intervention plan the Director must prepare should therefore state the objectives to be achieved and the means that will allow the supervision to be lifted.

The Court thinks, realistically, that the mother and child could benefit from unsupervised contact before the end of the next order. [ 230 ] The Court calls upon the mother’s sensitivity to her child to recognize that renewing the bond with her child may happen in fits and starts.

There may be some setbacks that will require adjustments. [ 231 ] When the next order expires in six months, the Director undertakes to return before the Court to report on the situation and explore the longer-term outlook, which is most wise. [ 232 ] All avenues would then be considered, including the possibility of reuniting the mother and child and, should that happen, a timeline for doing so.

This remark is all the more important because a permanency plan keeping the child with his current foster family is not possible, due to the reason stated above, and the child will have to be moved in the medium term. [ 233 ] The Court therefore rejects the mother’s proposed plan to renew contact so ambitious as to already plan for the reinsertion of the child with his mother toward the end or at the expiry of the six-month order.

For the Court to put the child on this path would be careless and reckless to the point of being inconsistent with the considerations addressed above. [ 234 ] Moreover, the mother refuses to give the Director access to the follow-up concerning her personal progress. At most, she agrees to inform the Director of her attendance.

The mother submits that she no longer trusts the Director and is afraid that she may invest less in her follow-up services if the information concerning her is disclosed to the Director. [ 235 ] The Court respects the mother’s decision and does not intend to require that confidentiality be lifted. [ 236 ] However, it is absolutely out of the question for the Court to blindly order the reinsertion of the child with his mother by assuming that the best-case scenario in the next few months will happen, despite all the intangible factors. [ 237 ] Clearly, the Court would prefer to take stock of the situation in six months, as the Director proposes, it being understood that no scenario will be refused from the outset concerning the longer-term approach. [ 238 ] The Court emphatically reiterates that the judgment it is about to render is based on the best interest of X, who is the primary consideration.

The principles of the primacy of parental authority and keeping the child with his family, especially at this point in his life and given his experience, must be subordinate to the child’s best interest. [ 239 ] Moreover, in the fall of 2019, the Director transferred the family’s file from the office in City A to the office in City D. With this decisio

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