2012 QCCQ 2873, 2012 QCCQ 2873

Unofficial English Translation Adoption — 1212 2012 QCCQ 2873 COURT OF QUEBEC YOUTH DIVISION CANADA PROVINCE OF QUEBEC DISTRICT OF [...] No. 525-43-005200-072 DATE: April 18, 2012 ______________________________________________________________________ PRESENT: THE HONOURABLE ANN-MARIE JONES, J.C.Q. ______________________________________________________________________ In the case of the child: X Born on [...], 2006 Director of Youth Protection A YOUTH AND FAMILY CENTRES Applicant v.

A Defendant and GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE) and cree regional AUTHORITY and CREE BOARD OF HEALTH AND SOCIAL SERVICES OF JAMES BAY (CBHSSJB) and ROBERT AUCLAIR, in his capacity as Director of Youth Protection of the CBHSSJB Interveners and ATTORNEY GENERAL OF QUEBEC Intervener ______________________________________________________________________ JUDGMENT ON A DECLARATION OF ELIGIBILITY FOR ADOPTION ______________________________________________________________________ WARNING : In adoption matters, it is forbidden to publish or broadcast any information that would allow the identification of a child, or his or her parents, tutor or adopters. [Article 815.4 of the Code of Civil Procedure of Québec and

article 582 of the Civil Code of Québec .] TABLE OF CONTENTS

1. CHRONOLOGY OF THE PROCEEDINGS…………………………………………..……… 4 2.

THE FACTS……………………………………………………..………………………………. 6 3. did The Director of Youth Protection A have jurisdIction to fiLe the APPLICATION for eligibility for adoption concerning X?………………………………………………………………………………… ……………… 18 3.1 Positions of the parties…………………………………………………….….…………… 18 3.2 Initial involvement of the [youth center A] and progress of the protection file……………. ……………………………………………………………………… ……... 19 3.3 Mother’s criticisms of the [youth center A] in the protection file…………………… ………………………………………………………………… …… 22 3.3.1 Did the [youth center A] determine too hastily that X’s file was one requiring “permanency planning” ? ………………………………………………………….. 23 3.3.2 Did the [youth center A] adequately inform the mother and encourage her to participate in the decision-making process concerning X?…….………………. 24 3.3.3 Did the [youth center A] hamper contact between the mother and the child?………… ………………………………………………………………………. 29 3.3.4 Was the [youth center A] bound to file an application for review before the Court before transferring the child to a mixed bank foster family?……...…….…………………………………………………………………… 32 3.3.5 Case law……………………………………………………………………………. 35 3.4 The [youth center A]’s jurisdiction to file the application for eligibility for adoption….. 36 4.

DOES THE CREE BOARD OF HEALTH AND SOCIAL SERVICES HAVE SOLE JURISDICTION OVER X BECAUSE SHE IS A CREE CHILD WHO IS A BENEFICIARY OF THE AGREEMENT ?…………………………..……..……..……..…………..…….. ……….. 39 4.1 Positions of the parties………………………………………………………………….... 42 4.2 Position of the Cree Board of Health and Social Services regarding the files of the [family A] children between June 2006 and September 2008…………………………….…………..…..…..…..…..…..…..………………… 43 4.3 Mother’s normal residence…………………………………..…….……….….…… 47 4.3.1 Positions of the parties………………….……..…..………..….….………..…… 47 4.3.2 The facts……...…………………………………………………..……………...... 48 4.3.3 Analysis……………………………………………………….……………………. 52 4.4 Jurisdiction of the Cree Board of Health and Social Services….………….….……. 61 5.

WAS X THE SUBJECT OF A CUSTOMARY ADOPTION?………….………………..…... 71 5.1 Positions of the parties…………………………….……………………………......…… 72 5.2 Factual background………………………….……………………...….…….………….. 72 5.3 What is a customary adoption?………….………………….……….………………….. 75 5.3.1 Testimony of Dr. Naomi Adelson….……….….….…....………………………. 75 5.3.2 Testimony of members of the community.…….………..……………………….. 77 5.4 Reference materials and scholarly commentary……………….……….……………. 80 5.5 Case law…………...…………………………………………………….……………….. 83 5.6 Analysis……….…………………………………………………………………………… 86

5.6.1 X’s first customary adoption…………….……………..……………………….. 86 5.6.2 X’s second customary adoption….….…….…….…...…...……………………. 87 5.7 Rule of judicial restraint………………….……………………..…...…………………… 92 6. APPLICATION FOR ELIGIBILITY FOR ADOPTION PURSUANT TO THE CIVIL CODE OF QUÉBEC …………………………………….….….….….………………… 93 6.1 Position of the parties…………………………………………….…………..……..…… 94 6.2 X’s background……………………………………………………………………………. 95 6.3 Expert witnesses…………………………………………………..…………..….……… 96 6.3.1 Testimony of the psychologist, Ann Bourget……………………………………. 96 6.3.2 Testimony of Dr.

Raven Sinclair………………………………………………….. 97 6.3.3 Testimony of Kenneth Richard……………………………………………………. 98 6.4 The law……………………………………………………………..…………….…..…… 100 6.5 Analysis……………………………………………………………..…………………… 107 6.6 Conclusions.……………….…………………………………………..………………… 112 [1] Before the Court is an application for eligibility for adoption concerning X, who was born on [...], 2006 and registered as thedaughter of A, no paternal filiation being declared. 1.

CHRONOLOGY OF THE PROCEEDINGS [2] A few clarifications are required regarding the proceedings in this case. [3] The application for eligibility for adoption filed by the Director of Youth Protection A Youth and Family Centres concerningthe child is dated September 24, 2007, and was filed with the registry of the Court of Quebec, Youth Division, on October 11, 2007. [4] On June 11, 2008, the mother admitted that she had not taken in hand the care, maintenance and education of her daughter,within the meaning of article 559 (2) of the Civil Code of Québec, for more than six months preceding the filing of the presentapplication for eligibility for adoption and that she had not rebutted the presumption that, within the meaning of

article 561 of the CivilCode of Québec, it is unlikely that she will resume custody of her daughter, thereby conceding the first two stages in the procedure foreligibility for adoption set out in case law. However, as regards the third stage, the mother has always contended that it was not in X’sbest interests to be declared eligible for adoption. [5] On September 12, 2008, the Crees of [community A], the [Association A] of [community A] and Chief BB filed a motion tointervene pursuant to

article 208 of the Code of Civil Procedure. The Court dismissed that motion from the bench (Adoption – 08540(C.Q., 2008-09-12), 2008 QCCQ 13225). [6] On April 24, 2009, the Court of Appeal upheld that decision (Adoption – 0915 (C.A., 2009-04-24 (judgment corrected on 2009-10-21), 2009 QCCA 806), and the motion for leave to appeal to the Supreme Court was denied ((S.C.C., 2009-10-29), 33185). [7] On September 30, 2008, the Grand Council of the Crees (Eeyou Istchee) and the Cree Board of Health and Social Services ofJames Bay filed motions to intervene.

The Court dismissed those motions on March 10, 2009 (Adoption – 0968 (C.Q., 2009-03-10), 2009QCCQ 5611 , [2009] R.J.Q. 1890). The petitioners appealed from that decision. [8] On February 4, 2009, the day after the mother’s re-amended defence was filed, the Attorney General of Quebec intervened inthe case pursuant to

article 99 of the Code of Civil Procedure. [9] The Court of Appeal, in a judgment written by the Honourable Marie-France Bich J.A. (Adoption – 09201 (C.A., 2009-08-21(judgment corrected on 2009-08-27), 2009 QCCA 1583 , [2009] R.J.Q. 2217), allowed the appeal and authorized, although in alimited manner, the interventionsof the Grand Council of the Crees (Eeyou Istchee) and the Cree Board of Health and Social Servicesof James Baywith respect to the constitutional and jurisdictional issues raised by the case: – Is customary adoption a right recognized by the Agreement, thereby rendering it a treaty right guaranteed under

section 35 of theConstitution Act, 1982, or is it otherwise recognized by Quebec law, in light of the applicable domestic and international law? – Does customary adoption, if recognized as such, supersede the provisions of the Civil Code of Québec and other relevant general lawsrespecting adoption and does it preclude the bringing or continuing of proceedings seeking a declaration of eligibility for adoption of a

beneficiary child under the Agreement , namely, the child X, assuming that she has been validly adopted in accordance with custom? – In light of, inter alia , the provisions of

Chapter 14 of the Agreement and of the Act respecting health services and social services for Cree Native persons , did the adoption of the child X fall under the jurisdiction of the Director of Youth Protection A or that of the Cree Board and its director of youth protection, Mary Bearskin, and, as the case may be, must the application for a declaration of eligibility for adoption be dismissed if it happens not to have been filed by the proper person or entity? [ 10 ] On these issues, the interveners supplemented the evidence on record by calling the following witnesses to testify: Philip Awashish, James Bobbish and Ted Moses, among the negotiators and signatories of the James Bay and Northern Québec Agreement (hereinafter, the Agreement ) on behalf of the Aboriginal peoples; James A.

O’Reilly, one of the attorneys representing the Aboriginal peoples during the negotiations for the Agreement ; and Roméo Saganash, the then representative of the Grand Council of the Crees. [ 11 ] In February 2010, the Cree interveners presented a motion to have Dr. CC, psychologist, testify and to authorize the filing of his report concerning the remaining bond between the child and her biological family, the possibility of the resumption of contact between them as well as the establishment of contact between the child and the customary adopters.

The Court dismissed that motion because it did not deal with the issues authorized by the Court of Appeal. [ 12 ] The mother then filed an application for the reopening of the evidence to have that witness testify. The Court rendered judgment on February 12, 2010, dismissing the mother’s application and giving reasons for dismissing the motion of the Cree interveners ( Adoption – 10376 (C.Q., 2010-02-12), 2010 QCCQ 13504 ).

The ruling of the Court of Appeal upholding those decisions was rendered on September 24, 2010 ( Adoption – 1019 (C.A., 2010-09-24), [2010] R.D.F. 643 ). [ 13 ] In November 2010, the mother and the Cree interveners sought to file certain documents into the Court record, a petition contested by counsel for Youth and Family Centres A (hereinafter, [youth center A]) and the child. Counsel for the Attorney General did not take position on the issue.

It was in this context that, in December 2010, the mother and the Cree interveners filed applications for the reopening of the evidence, de bene esse motions, as well as motions to reamend the Cree interveners’ motion to intervene and motions to re-reamend the mother’s defence. [ 14 ] On February 17, 2011, the Court dismissed the Cree interveners’ application for the reopening of the evidence and their de bene esse motion, but allowed them to reamend the conclusions of their motion to intervene, so that, among other things, they would be consistent with the notice they had sent the Attorney General on January 7, 2011, under

article 95 of the Code of Civil Procedure . [ 15 ] On the same date, the Court dismissed the mother’s application for the reopening of the evidence and her motion to re-reamend her defence. The Court, however, granted the mother’s de bene esse motion in part and allowed, under

article 815 of the Code of Civil Procedure , the filing of some of the requested documents, which confirmed or supplemented the testimony heard and the exhibits filed into the record. [ 16 ] Arguments were heard on June 1 and 4, 2009, and continued on March 11, 16, 18 and 31 and April 1, 2011. Notes and authorities were submitted by the parties between April 15 and June 10, 2011. 2.

THE FACTS [ 17 ] The facts in this case are of paramount importance since they stretch over a number of years, and several jurisdictional and constitutional issues were raised by the parties. [ 18 ] X was born on [...], 2006, in the [hospital A].

She is a Cree child who is a beneficiary of the Agreement. [ 19 ] Her mother, A, was 29 years old at the time and one of thirteen children from a family that has experienced its share of difficulties She has three other children: Y, born on [...], 1995; Z, born on [...], 1997, and B, born on [...], 1999. [ 20 ] While the mother was living in city A with two of her children, Y and B, she became pregnant again. X’s biological father is not stated on her birth certificate. The evidence shows that his given name is C, he is of South American origin and the mother is still in contact with him.

During her pregnancy, the mother returned to her community of [community A]. [ 21 ] On March 14, 2006, a change was made in the registry of Aboriginal peoples so that the mother was once again registered as residing in [community A]. The extract taken from the registry and filed by the local registry officer for [community A], [worker 1, local registry officer], as Exhibit M-4 C, indicates that the date of the last change was March 14, 2006—departure: 2002-09-12, return: 2006- 02-02. [ 22 ] In June 2006, Z, X’s sister, told her mother that her maternal uncle, D, had been sexually abusing her for several years.

The mother went to the [community A] Healing Center with her daughter. The police and the Cree Board of Health and Social Services of James Bay (hereinafter, the Cree Board of Health and Social Services) were contacted. A report for sexual abuse was accepted pursuant to the Youth Protection Act , R.S.Q., c. P-34.1. Z was examined and treated, because she had contracted a sexually transmitted infection. [ 23 ] [Worker 2, social worker], a social worker in [community A] and the mother’s cousin, advised the mother to go with her children to the Centre A to receive services and wait for her brother to be arrested.

The mother decided to return to city A with her four children, however, and left [community A] a few days later. [ 24 ] After arriving in city A, the mother and her children lived for a few months at the Native Women’s Shelter of city A. In early October, she rented a low-rent apartment at Habitat Métis du Nord, located on A Street, and signed a lease ending on June 30, 2007. She enrolled her three older children in two neighbourhood schools, furnished her apartment and had a telephone land line installed.

[ 25 ] The mother sent X’s birth certificate to the local registry officer for [community A]. According to extract taken from the registry of Aboriginal peoples, filed as Exhibit M-4 D, the child was registered therein on September 12, 2006. [ 26 ] The mother then began abusing alcohol again and sometimes left her children alone, the oldest children having to take care of X.

On November 19, 2006, the situation of the four children was reported to the Director of Youth Protection of the [youth center A], after their mother had left them without supervision for over sixteen hours. [ 27 ] The mother had gone to a bar she usually frequented and had drunk alcohol and taken amphetamines (Speed) during the evening. She was taken to the hospital by the police following an argument as she was leaving the bar.

The children subsequently stated that this was not the first time their mother had left them alone for a long period of time. [ 28 ] After the report was sent, the [youth center A] implemented immediate protection measures and the children were placed in foster care. Since no family was able to take in all four children, the three older children were placed in the foster family of Ms. E and X was placed in the foster family of Ms. F, where she remained until July 2007.

X was eight months old at the time of her placement. [ 29 ] On November 21, 2006, Lucille Beauchemin J. granted the [youth center A]’s motions to extend the immediate protection measures for five business days, pursuant to

section 47 of the Youth Protection Act . The mother did not attend the hearing, despite the assessment caseworker’s [worker 3, assessment caseworker] efforts to contact her. [ 30 ] When the mother met with Ms. [worker 3, assessment caseworker] on November 24, 2006, she confirmed the situation and said that she was havingthoughts of suicide. She said, however, that she was prepared to do everything in her power to get her children back. The caseworker explained the situation as follows on page 3 of the social study report, dated January 18, 2008, and filed as Exhibit M- 25: Ms A sometimes contemplates suicide.

She feels alone and is still affected by her sister’s suicide last year. She loves her children and doesn’t know why she makes such bad decisions. She reported being willing to take any necessary steps to get her children back and correct the situation. [ 31 ] On November 28, the mother signed an agreement with the [youth center A] pursuant to the Act respecting health services and social services , R.S.Q., c.

S-4.2, and consented to her children remaining in foster care for a 30-day period. [ 32 ] On December 1, 2006, [worker 4, social worker], a social worker, supervised the contact between the mother and the children that took place at the [youth center A]. [ 33 ] The visit scheduled for December 8 was cancelled because the mother did not return the telephone calls of [worker 3, assessment caseworker]. [ 34 ] On December 11, since Ms. [worker 3, assessment caseworker] still had not heard from the mother, she left messages in the mother’s voice mail saying that she wanted to meet with her and that the mother would have to undergo drug testing.

Ms. [worker 4, social worker] also left the mother messages, asking her to return her calls to set up a

schedule for visits with the children and reminding her of the importance of maintaining regular contact with them. [ 35 ] On December 12, 2006, a case conference concerning X was held. Her file was identified by the [youth center A] workers as a permanency planning file since X was under the age of six, she had been placed in a foster family and her situation might require long- term protection measures. [ 36 ] That procedure involves the development of a

schedule to be met in order to set up a concurrent plan. As a general rule, Plan A consists in maintaining the child in, or returning the child to, the family environment and Plan B consists in concurrently seeking another permanent solution for the child should Plan A not happen. [1] [ 37 ] That same day, as part of her intervention, Ms. [worker 3, assessment caseworker] contacted the [community A] social services to verify whether the children could be placed with their extended family or in the community.

She spoke with [worker 2, social worker], who advised her to contact [worker 5, social worker]. [ 38 ] On December 28, 2006, Gaétan Zonato J. granted the [youth center A]’s applications for provisional foster care under sections 76.1 and 79 of the Youth Protection Act and ordered the placement of the four children in foster care until January 23, 2007.

The mother did not attend the hearing. [ 39 ] [Worker 3, assessment caseworker] was unable to reach the mother for several weeks. [2] Faced with the mother’s lack of collaboration, the [youth center A] reviewer gave authorization for the three older children to have contact with G, the former foster mother of Y and B, during the Christmas holidays. [ 40 ] On January 10, 2007, [worker 3, assessment caseworker] spoke with [worker 5, social worker], a social worker with the Cree Board of Health and Social Services, who informed her that the members of the mother’s extended family were not in a position to take the children in because they had social problems and there were no foster families available in the community. [ 41 ] On January 16, 2007, an orientation table [3] took place at the [youth center A], in accordance with the regulations in force.

The mother acknowledged her difficulties and agreed to take specific steps to correct her personal problems, including undergoing treatment for her alcoholand drug issues, and having her parenting capacity assessed, so that she could regain custody of her children. [ 42 ] During that meeting, the permanency planning policy, including the concurrent plan, was explained to the mother. However, she was reluctant to propose an alternative plan for her children, because she wanted them back.

The mother stated, however, that she wanted to consult her cousin, [worker 2, social worker], a social worker with the Cree Board of Health and Social Services, before suggesting who in her extended family members might be able to take her children in. The caseworkers informed the mother that she had

to provide them with the names of these members of her extended family so that those resources could be assessed. [ 43 ] As for the fact that she had seen her children only once in the previous two months, the mother explained her lack of participation in visits by saying that she found the supervised visits at the [youth center A] tedious. [ 44 ] Furthermore, since it was necessary to place X in another foster family, it was stated that the possibility of integrating her into a mixed bank foster family should be explored.

In accordance with the permanency planning policy, the next meeting was scheduled for three months later, to reassess the mother’s progress and the concurrent plan. [ 45 ] On January 19, 2007, a second supervised visit took place between the mother and her children. The mother arrived on time and the children were very happy to see her. [ 46 ] On January 23, 2007, Guy Lecompte J. declared the security or development of the four children to be in danger pursuant to

section 38 (

e) of the Youth Protection Act , i.e., the mother’s behaviour and lifestyle put them at risk of moral or physical danger. Lecompte J. ordered the placement of the four children for one year in a foster family designated by the Director of the [youth center A]. [ 47 ] The mother attended the hearing and agreed to the measures recommended by the [youth center A].

It should be noted that Lecompte J. knew the family situation well, as the situations of Y and B had been referred to him from 2002 to 2004. [ 48 ] Lecompte J. mentioned in paragraph 16 of his judgment [4] that the Director of Youth Protection should establish a permanency plan if the mother did not resolve her drinking problem: [16] The mother today agrees with the DYP recommendations. She must understand that the DYP will have to develop a long term permanent/alternative to the children’s home plan for the four of them.

If she does not seriously address her drinking problem, the Court will have no choice but to make an order aimed at ensuring continuity of care, stable relationships, and stable living conditions corresponding to the children’s needs and age on a permanent basis. [ 49 ] The mother confirmed her commitment to the measures ordered by Lecompte J. on February 12, 2007, by signing the intervention plan, [5] in which she undertook, among other things, to enter the [Centre B] on March 4 for treatment and to undergo an assessment of her parenting capacity before March 1.

It was also provided that visits with her children would take place once a week, on Thursdays. [ 50 ] On February 22, 2007, a supervised visit took place between the mother and the children at the [youth center A]. The mother was accompanied by a female friend. [ 51 ] On March 1, 2007, the mother had another supervised visit with her children at the home of the three older children’s foster family. [ 52 ] Unfortunately, the mother did not go to the [treatment centre B] on March 4 and the [youth center A] caseworkers did not hear from her until May 29, 2007.

The three older children were angry that they could no longer reach their mother on her cell phone. [ 53 ] After the mother failed to go to the treatment centre, [worker 6, implementation of measures], the caseworker responsible for implementing the measures, tried in vain to contact her several times.

On March 12, 2007, he filled out the mixed bank foster family application forms. [ 54 ] On March 14, 2007, a [youth center A] social worker filled out the questionnaire entitled “Summary of Key Questions on Assessing Parenting Capacity” by following the instructions in the “Summary Record of the Toronto Parenting Capacity Assessment Guidelines”, [6] which purports to assess the mother’s parenting capacity. The caseworker recommended that all four children be placed permanently given the mother’s chronic problems.

Because the [youth center A] caseworkers were no longer in contact with the mother, the questionnaire was filled out without consulting her. [ 55 ] By April 16, 2007, when the permanency planning meeting was held, the [youth center A] caseworkers still had not heard from the mother, who had yet to undergo any treatment for her drug and alcohol problems. The decision was made to move X to a mixed bank foster family. [ 56 ] To that end, the adoption service tried to find a foster family that was appropriately matched with X from a cultural standpoint.

An Aboriginal family from the [area A] was approached but later withdrew. [ 57 ] The mother contacted the [youth center A] caseworkers on May 29, 2007, from the Native Women’s Shelter of city A. She explained to [worker 6, implementation of measures] that she had been evicted from her dwelling because she owed rent and complaints had been lodged about the racket she made when she drank with H, an Aboriginal friend.

She said she intended to enter the [treatment centre B] on June 10, because she wanted to regain custody of her children. [Worker 6, implementation fo measures] informed her that steps had been taken to move X to a mixed bank foster family, and the mother responded that she was against that plan. [ 58 ] At the mother’s request, [worker 6, implementation of measures] agreed to organize a visit between her and her children on June 6, provided she first underwent drug and alcohol testing. With the help of the shelter caseworker, the mother took the test.

It was negative, although the mother admitted to [worker 6, implementation of measures] that she had been drinking a few days prior. [ 59 ] The mother did not show up for the visit, however, and the older children were very disappointed. They tried to reach her by phone but were unsuccessful. [ 60 ] On June 4, Ms. [worker 7, adoption service], of the [youth center A] adoption service, informed [worker 6, implementation of measures] that another mixed bank family had been found for X: a lesbian couple, one half of which was of Ojibway descent, with an adopted son of Cree ancestry.

[ 61 ] After a few visits, X integrated this mixed bank foster family on July 6, 2007, for a long-term placement, including the possibility of adoption. [ 62 ] On June 6, 2007, [worker 6, implementation of measures] called the Cree Board of Health and Social services and spoke with [worker 8, social worker], who had replaced [worker 5, social worker], about getting therapy for Z.

Ms. [worker 8, social worker] asked him if the children had been placed. [ 63 ] On June 10, the mother did not go to the [Centre B ] to begin her drug and alcohol treatment program. [ 64 ] [Worker 6, implementation of measures] signed the July 19, 2007 intervention plan. [7] He noted that X was in good health and developing well in her mixed bank foster family. He also stated that the mother had disappeared and that she should not have contact with her daughter. [ 65 ] An individualized review meeting took place on July 26, 2007, regarding the files of the four children.

The decision was made to implement Plan B (the concurrent plan), i.e., permanency planning for each of the four children outside their family environment, given the mother’s lack of collaboration in the social intervention and her lack of involvement with her children. [ 66 ] On July 27, 2007, [worker 6, implementation of measures] spoke with I, of the Cree Board of Health and Social Services, to obtain the children’s Cree beneficiary numbers. [8] [ 67 ] On October 9, [worker 6, implementation of measures] received a call from Ms. [worker 9, treatment centre], caseworker at the [treatment centre B], informing him that the mother had entered treatment on September 23, 2007, for five weeks. [ 68 ] On October 11, 2007, the [youth center A] filed the present application for eligibility for adoption with the registry of the Court of Quebec. [ 69 ] A copy of the application for eligibility and a notice under

article 813.5 of the Code of Civil Procedure were served on the mother at the [Centre B] on October 16. She was notified that she had to appear within 20 days, failing which a hearing to proceed by default would take place on December 10, 2007. [ 70 ] On October 17, a telephone conference took place between [worker 6, implementation of measures], the mother and Ms. [worker 9, treatment centre]. Mr. [worker 6, implementation of measures] informed the mother that Y, Z and B were still with the same foster family and that X had been placed with a mixed bank foster family.

The mother told him she would be attending the hearing in December concerning the adoption file and that she would send him a letter to be given to her three older children. [ 71 ] On October 22, 2007, X began attending daycare three days a week and went there full time as of December. [ 72 ] On October 25, [worker 6, implementation of measures] gave the three older children the letter from their mother.

They were happy to hear from her. [ 73 ] Since the mother did not appear on November 5, the application for eligibility for adoption was placed on the December 10, 2007 roll for hearing by default. [ 74 ] On November 6, the mother contacted [worker 6, implementation of measures] to inform him that she had completed her treatment and was living with one of her sisters in [borough A]. She gave him a phone number where she could be reached. [ 75 ] On November 13, 2007, an orientation table [9] was held; the mother attended, accompanied by a caseworker from the Native Women’s Shelter.

She wanted her children back, but acknowledged that she was not able to care for them at that time. It was stated that the mother opposed X’s adoption and that the hearing for the application for eligibility would be held on December 10.

The main recommendations that would be submitted by the [youth center A] to the Court at the hearing to extend the protection measures scheduled for January 2008 were as follows: that X remain in her mixed bank foster family for one year, and that a prohibition of contact order between X and her mother and siblings be made. [ 76 ] On December 10, the mother appeared at the hearing for X’s eligibility for adoption.

The case was postponed until December 19 because the mother had not filed an appearance and was not represented by counsel. [ 77 ] On December 11, 2007, the mother phoned [worker 10, team leader], the Human Relations Officer/Team Leader of the Cree Board of Health and Social Services of James Bay, concerning her children and told her that she wanted them to return to [community A].

Ms. [worker 10, team leader] took down the information and placed a note in the files for the social worker. [10] [ 78 ] On December 19, the case respecting the eligibility for adoption was postponed until January 9, 2008, because Lecompte J. (to whom the case had been referred) recused himself, since the cases of all four children had been referred to him for protection measures. [ 79 ] On December 20, 2007, the [youth center A] filed applications for an extension under

section 95 of the Youth Protection Act concerning all four children. In addition, applications for provisional foster care were filed on January 17, 2008, since Lecompte J.’s orders expired on January 23, 2008. [ 80 ] On December 21, 2007, a supervised visit took place between the mother and her three eldest children. [ 81 ] On January 7, 2008, [worker 6, implementation of measures] considered allowing monthly visits between X and her mother. [11] [ 82 ] The mother did not attend the hearing of January 9, 2008, in the case respecting the eligibility for adoption.

Her attorney asked for a postponement in order to confirm his client’s cooperation, in which case, he would file a defence. Gaétan Zonato J. postponed the case until January 23, 2008.

[ 83 ] On January 10, [worker 6, implementation of measures] went to the apartment on [B Street] in [borough A]. There he met H, an Aboriginal friend of the mother’s, and two young men who were carrying a case of beer. These people confirmed that the mother still lived at that location. [ 84 ] On January 16, [worker 6, implementation of measures] went back to the apartment. During that meeting, the mother acknowledged that she was unable to resume custody of her children because of her lifestyle. She admitted that she drank and took cocaine.

She told [worker 6, implementation of measures] that she wanted her children to be entrusted to the care of members of her extended family in [community A] and provided the names of her uncles J and K. [ 85 ] The next day, [worker 6, implementation of measures] faxed a letter to the Cree Board of Health and Social Services in [community A], asking to be told of any concerns regarding J and K. [12] [ 86 ] On January 23, 2008, the four applications for provisional foster care, filed by the [youth center A], were referred to Guy Lévesque J. He ordered the foster care of the three older children.

In X’s case, he ordered her placement in a foster family and granted, at the [youth center A]’s petition, that the name and address of the family remain confidential and that contact between the child and her mother be suspended. He set the hearing on the merits before Lecompte J. for March 14, 2008. [ 87 ] That same day, in the case respecting the eligibility for adoption, the Court granted counsel for the mother’s withdrawal application, given that his client had not attended the January 9 hearingand that it was impossible for him to contact her by phone or mail.

The case was postponed until January 29 and the mother was given notice that the Court would proceed by default if she was absent on that date. [ 88 ] On January 29, 2008, the mother attended the hearing with her new counsel, Mtre Josée Lefebvre. A

schedule was set for the filing of the mother’s defence and the [youth center A]’s reply. The hearing on the merits was set for March 13. On February 22, an order was made for X to be represented by counsel. [ 89 ] On February 6, 2008, [worker 5, social worker], a social worker with the Cree Board of Health and Social Services, called [worker 6, implementation of measures] and informed him that, the previous evening, she had received a request from the mother that members of her extended family be assessed as foster families for her children.

Ms. [worker 5, social worker] told him that there were concerns with the family, but that she had agreed to proceed with the assessments. She reiterated that there were few local foster families for the children and that they often had to assess families outside the area. [ 90 ] That same day, the mother had a supervised visit with her three older children in a shopping centre.

She then informed [worker 6, implementation of measures] that she wanted her children to be entrusted solely to the care of members of her extended family, not to members of her community. [13] [ 91 ] On February 22, 2008, [worker 6, implementation of measures] received a fax from [worker 11, social worker], a social worker with the Cree Board of Health and Social Services, informing him that the

summary assessments of K and J showed they would be capable of taking care of the children. [Worker 6, implementation of measures] phoned [worker 12, social worker], a social worker in [community A], and told her about the contradictory information that her colleague, Ms. [worker 5, social worker], had given him.

Ms. [worker 12, social worker] told him that not all the members of the extended family had problems and mentioned that complete assessments would follow. [ 92 ] On February 29, 2008, after being informed of the childrens’ situation, Bryan Bishop, the then director of Youth Protection for the Cree Board, contacted [worker 6, implementation of measures] and asked him why the children had not been placed in their community. Mr. [worker 6, implementation of measures] explained the information received by his staff. Mr.

Bishop recommended that the [youth center A] ask the Court that the children be placed in foster care until full age and that the files then be transferred to [community A]. [ 93 ] Subsequently, Bryan Bishop sent an email to AA, the [youth center A]’s Director of Youth Protection at the time, informing her that the Cree Board of Health and Social Services wanted to intervene in the files.

He said he had no objection to the [youth center A]’s recommendations, i.e., that X be declared eligible for adoption and that the three other children be placed in foster care until they each reach full age, provided the files then be transferred to the Cree Board of Health and Social Services so that the children could be placed in the Cree community. [ 94 ] Then followed a series of emails in which Brian Bishop stressed that the reality of social services in the [region B] differs from that in city A, while AA raised the fact that the [youth center A] had been involved in the children’s cases for over a year and that it was only very recently that the Cree Board of Health and Social Services had identified people who might take in the children. [ 95 ] On March 11, 2008, [worker 6, implementation of measures] received the assessments of J and K and noted that they were very positive. [ 96 ] On March 13, the hearing for the case respecting the eligibility for adoption was postponed until June 11, 2008. [ 97 ] On March 14, 2008, Lecompte J. was informed that the parties wanted to discuss and take cognizance of the assessments of J and K.

The protection cases were therefore postponed to June 13, 2008. Lecompte J. maintained the measures already ordered for the three older children.

In X’s case, he maintained her placement in a confidential foster family and, after hearing the testimony of [worker 6, implementation of measures] and the mother, ordered that contact between the child and her mother and siblings be suspended pending judgment on the application for eligibility for adoption. [ 98 ] On April 10, 2008, the [youth center A] filed a motion for authorization to proceed with X’s psychological assessment, including her bonding with the mixed bank foster family with which she was living. The mother did not attend the April 18 hearing of that motion.

Her attorney informed the Court that she had spoken with her client and that she was ambivalent about the assessment of her daughter. Counsel for the child felt that it was in X’s interests to be assessed. The Court allowed the motion and ordered the child’s

psychological assessment. [ 99 ] On June 11, 2008, as part of this case, counsel for the [youth center A] called as witnesses [worker 6, implementation of measures], resource social worker; Ann Bourget, psychologist; and [worker 13, social worker], a social worker with the adoption service; and declared its case closed. [ 100 ] The opinion of the expert, psychologist Ann Bourget, was that X should not be moved because this might cause her to suffer great psychological harm and the consequences could be devastating on her emotional development. [ 101 ] For her part, the mother called as witnesses [worker 10, team leader], a social worker in charge of social services in [community A] for the Cree Board of Health and Social Services; [worker 11, social worker], a resource social worker for the Cree Board; and the mother’s uncle, J.

They testified that it was in X’s interest to be legally adopted by her great-uncle. The health problems of L, J’s wife, were discussed. [ 102 ] The hearing was set to continue on September 12, 2008. [ 103 ] The hearings for the extension of the protection measures sought by the [youth center A] were held before Lecompte J. on June 13, 2008. The mother was absent. In the cases of Y, Z and B, the Court declared that their security and development were still in danger and ordered that they be placed with a foster family chosen by the [youth center A] until they each reach full age.

He noted that Y and B would be entrusted to the care of their great-uncle K and his wife, M, and that Z would be entrusted to the care of her great-uncle J and his wife, L. [ 104 ] In X’s case, Lecompte J. ordered that the measures ordered earlier be maintained, including her placement with a confidential foster family and the suspension of contact with her mother and siblings pending judgment on the present application for eligibility for adoption. [ 105 ] At the end of the school year, in June, the caseworkers with the Cree Board of Health and Social Services came to city A to pick up Y, Z and B, and take them to [community A] to entrust them to the care of their great-uncles. [ 106 ] On July 14, 2008, J went to the office of the local registry officer for [community A], [worker 1, local registry officer], and registered his address as X’s permanent address.

Ms. [worker 1, local registry officer] agreed to register that entry in the registry of Aboriginal peoples because he told her that he was in the process of traditionally adopting X. [ 107 ] In August, the mother agreed to the customary adoption of her daughter by her uncle J and his spouse, L.

The Band Council of [community A] adopted a resolution ratifying the customary adoption. [ 108 ] On September 5, 2008, the mother’s attorney filed into the Court record a notice of disclosure of a medical report concerning L. [ 109 ] On September 12, 2008, the Crees of [community A], the [Association A] and Chief BB filed a motion to intervene according to

article 208 of the Code of Civil Procedure , which is mentioned in the chronology of the proceedings. The Court dismissed this motion from the bench and set the continuation of the hearing for September 30. [ 110 ] In the evening of September 19, 2008, Z was withdrawn on an emergency basis from the home of J by the caseworkers of the Cree Board of Health and Social Services because of problems in that environment. The facts alleged involved sexual touching of Z by the great-uncle and the precarious health of L.

Z was subsequently entrusted to the care of [worker 12, social worker]. [ 111 ] Around September 21, the caseworkers of the Cree Board of Health and Social Services met to discuss X’s case. They consulted their list of adoptive families in order to find another family that could take the child in. Ultimately, the N-O couple was assessed with a view to adopting X. [ 112 ] On September 29, 2008, O and N met with the mother in a conference room at the offices of counsel for the mother and the Cree interveners in city A. Several other people were present at the meeting.

The mother agreed to X’s customary adoption by the N-O couple and the couple agreed to customary adoption of X. The document dated September 29, 2008, attesting the consent to X’s traditional adoption, was filed into the Court record as Exhibit M-6. [ 113 ] At the hearing of September 30, 2008, the Grand Council of the Crees (Eeyou Istchee) and the Cree Board of Health and Social Services of James Bay filed the motions to intervene that were mentioned in the chronology of proceedings.

On August 21, 2009, the Court of Appeal authorized the interventions on the constitutional and jurisdictional issues raised by this case. [14] [ 114 ] In December 2009, the N-O couple and the Cree Board of Health and Social Services filed applications in X’s protection case to be granted the status of party, under

section 81 of the Youth Protection Act , and to obtain access rights to the child. In addition, the mother filed an application for review under

section 95 of the Act petitioning for contact with her daughter. However, the applications were adjourned sine die at the request of the applicants in July 2010, because, among other things, the N-O couple had just separated, a complaint had been filed with the order of psychologists against Dr. CC, psychologist, and the mother was having problems. [ 115 ] Subsequently, with the parties’ consent, the following documents were filed into the Court record: – A letter from N, dated March 25, 2011, in which she stated that her intentions in regard to X remained the same as on September 29, 2008.

She mentioned the couple’s separation therein, adding that, when X returned to [community A], she would have custody of X and Mr. O would have access rights. – An affidavit, dated May 13, 2011, attesting that the mixed bank foster parents had separated, that X remained with the foster mother

she called “Mommy”, and her foster brother, P. She went with P to the home of the foster mother she called “Q” every other weekend. [ 116 ] The Court took the case under advisement on June 10, 2011. 3.

Did the [YOUTH CENTER A] Director of Youth Protection HAVE JURISDICTION TO FILE THE APPLICATION FOR ELIGIBILITY FOR ADOPTION CONCERNING X? 3.1 Positions of the parties [ 117 ] Counsel for the [youth center A], the child and the Attorney General contend that the [youth center A] had jurisdiction to handle the situation of X and her siblings following the November 19, 2006, report and to subsequently decide her course, including the filing of an application for eligibility for adoption. [ 118 ] Counsel for the mother and the Cree interveners contend that the Cree Board of Health and Social Services has sole jurisdiction over the child because she is a Cree child who is a beneficiary of the Agreement and her mother “normally resident” in [community A] .

Therefore, the [youth center A] could apply only the emergency measures of November 2006 and did not have jurisdiction to file the present application for eligibility for adoption. However, they do not contest the jurisdiction of the Youth Division of the Court of Quebec. 3.2 Initial involvement of the [youth center A] and progress of the protection file [ 119 ]

Section 31 of the Youth Protection Act provides that a director of youth protection is appointed for each institution operating a child and youth protection centre. The second paragraph of that provision grants each director of youth protection territorial jurisdiction: 31. A director of youth protection shall be appointed for each institution operating a child and youth protection centre.

The director shall be appointed by the board of directors of the institution on the recommendation of the executive director, after consultation with the agency, the bodies and the institutions operating a local community service centre or a rehabilitation centre in the territory served by the institution operating a child and youth protection centre.

The director shall act under the direct authority of the executive director. [Emphasis added.] [ 120 ] The Youth and Family Centre A [youth centre A] is the child and youth protection centre that, pursuant to the Act respecting health services and social services , R.S.Q., c.

S-4.2, is designated as being responsible for offering social services in youth matters to the English-speaking population on the territory of the island of city A. [15] It is in this capacity that, in November 2006, the [youth center A] received reports concerning the situation of X and her siblings, after the mother had left them alone for a full night. [ 121 ] According to

section 82 of the Act respecting health services and social services , the mission of a child and youth protection centre includes offering, in the region it serves, emergency social services required by the situation of a young person pursuant to the Youth Protection Act , R.S.Q., c. P-34.1, which all the parties acknowledge. In the situation that concerns us, the [youth center A] applied immediate protection measures for a period of 48 hours, pursuant to

section 46 of the Youth Protection Act , and placed the four children in foster care. [ 122 ] Furthermore,

section 32 of the Youth Protection Act provides that the Director of Youth Protection—of the [youth center A] in this case—has certain duties: 32. The director and the members of his staff authorized by him for that purpose have the following exclusive duties: (

a) to determine the admissibility of the information regarding the situation of a child whose security or development is or may be considered to be in danger; (

b) to decide whether or not the security or the development of a child is in danger; (

c) to decide on the direction of a child; (

d) to review the situation of a child; (

e) to decide to close the record;

(

f) to exercise tutorship; (

g) to receive the general consents required for adoption; (

h) to apply to the tribunal for a declaration of eligibility for adoption; (

i) to decide to file an application for an order for the disclosure of information under the second paragraph of

section 72.5 or to disclose information under the second paragraph of

section 72.6 or under

section 72.7. . . . [Text of

section 32 of the Act before the amendments of July 9, 2007.] [ 123 ] The Director of the [youth center A] therefore analyzed the reports, as required under paragraph (

b) of

section 32 of the Act , and concluded that the security and development of the four children was in danger. As sections 51 and 53.1 of the Act provide, the [youth center A] took charge of the situation of the children, decided their course and referred the matter to the Court. [ 124 ] On January 23, 2007, Lecompte J. declared that the security and development of the four children was in danger pursuant to

section 38 (

e) of the Act , [16] because of the behaviour and lifestyle of the mother. He issued final measures and ordered the children’s placement in foster care for one year. He entrusted their situation to the [youth center A] Director so that, in accordance with

section 92 of the Act , she could ensure that the measures ordered were carried out. Orders for extension were subsequently issued. [ 125 ] The [family A] children having been placed in foster care on the territory served by the [youth center A],

section 67 of the Act did not allow the [youth center A] Director to transfer their files to another Director of Youth Protection: 67. A director shall not entrust the taking in charge of a child’s situation to another director unless the domicile of the child’s parents is situated in the territory served by the institution operating the child and youth protection centre for which such other director works.

However, the case of a child shall not be entrusted to another director if the child is provided with foster care in a place situated in the territory served by the institution operating the child and youth protection centre for which the director who has taken charge of the child’s situation works. [ 126 ] That

section nevertheless allows two youth protection directors to collaborate for the purpose of taking charge of a child, [17] and that is what occurred in the cases of the three other [family A] children. [ 127 ] First of all, it is important to recall that the mother, who was represented by counsel, never challenged the fact that the cases were heard in the District A, [18] or raised the [youth center A]’s jurisdiction.

Moreover, the mother always gave an address in city A to the [youth center A] caseworkers and when she testified in Court, [19] at least until December 2009, when she filed an application for review in X’s protection case. [ 128 ] In addition, with the exception of the suspension of contact with her daughter, the mother consented to the measures recommended by the [youth center A], which were ordered by Lecompte J. with respect to all four children.

The mother knew full well that her children were placed in non-Aboriginal foster families in the city A area, not to mention the fact that the family had been followed by the [youth center A] from 2001 to 2004 and that Y and B had been placed for long periods in foster care in the city A area with their mother’s consent.

Furthermore, the mother confirmed her consent to the measures ordered when she signed the intervention plan on February 12, 2007. [20] [ 129 ] Moreover, on the faith of the information provided by [worker 5, social worker], a social worker with the Cree Board of Health and Social Services, that there were no foster families available in the community of [community A] to take the children in and that the members of the extended family had social problems, the [youth center A] Director sought out foster families from among her own resources, in the city A area: A.

Yes, I spoke to Miss [worker 5, social worker] to inquire about the contact information for the family and, basically, what she reported at that time was that she did not recommend that the children be sent to the extended family because there was a lot of social problems in the community. There was current and previous DYP involvement with various family members and what she told me was that the family was unfortunately perceived as outcast within the community itself and that the grandparents were often in the bush and that the kids were all over the place. I don’t have more details about that expression. Q.

You’re doing quotation marks? A. “ All over the place ”. Because I don’t really know if that means that they were left unsupervised or they were sent to other people, but there was a concern about that. And so I asked about the possibility of foster homes and, at that point, they did not have any availabilities within the community.

[Transcript of the testimony of [worker 3, assessment caseworker], 29-05-2009 at 10–11.] [ 130 ] Also, contrary to existing legislation in Ontario, Manitoba and Nova Scotia, there is no mechanism in the Youth Protection Act providing for formalities for contact between the different youth protection directors in a case where an Aboriginal child is placed or moved. There is no provision for written notices, be they to the DYP of the parent’s community of origin or to the band council. [ 131 ] What is more, the mother never judicially contested the orders rendered by Lecompte J.

The measures he ordered concerning the four children are still in force and continue to apply, including the suspension of contact between X and her mother, since, in July 2010, the mother withdrew her application for review in which she sought resumption of contact.

Therefore, X is still receiving protection services on the territory served by the [youth center A]. 3.3 Mother’s allegations regarding the [youth center A] in the protection file [ 132 ] The mother argues that the [youth center A] lost jurisdiction because the Director of Youth Protection exceeded the powers granted by the Youth Protection Act by: [21] [TRANSLATION] (

a) transferring the child X to a mixed bank foster family on July 6, 2007, without the Court’s specific authorization pursuant to

section 95 of the Youth Protection Act ; (

b) failing in her duty to foster the defendant’s participation and involvement in the decision–making process respecting her children, and more particularly in the decisions dealing with the child X; and also, failing in her duty to adequately inform the defendant of the steps taken regarding the child X, especially in the context of the child’s transfer to a mixed bank foster family; (

c) by preventing the defendant from having access to her child X, in violation of the January 23, 2007 judgment rendered by the Honourable Guy Lecompte J., when no suspension of contact between the defendant and her daughter had been ordered, so as to promote bonding between the child and the mixed bank foster family. [ 133 ] It is important at this stage to emphasize that the criticism levelled at the [youth center A] cannot result in a loss of jurisdiction, since no provision of the Act respecting health services and social services provides for that consequence.

If the Director of Youth Protection lost jurisdiction, the child would be without protection. However, the Youth Protection Act allows a judge of the Court of Quebec, in a case where the situation of a child in difficulty is referred to the judge, to conclude that the child’s rights have been violated by persons, bodies or institutions. The Act allows the judge to examine the impact of the faulty measures concerning the child and his or her family and, if necessary, order that the situation be corrected.

These questions should therefore have been addressed in the context of the protection file. [ 134 ] That said, let us examine the mother’s contentions. 3.3.1 Did the [youth center A] determine too hastily that X’s file was one requiring “permanency planning”? [ 135 ] The mother contends that the [youth center A] acted hastily in determining that the child’s file required permanency planning as of December 2006. [ 136 ] It must be borne in mind, however, that the family had been followed by two directors of protection between 1998 and 2004.

The family was known to the [youth center A] services, as Y and B had been placed in foster care for long periods in city A because of the mother’s persistent issues with substance abuse , depression and instability. [22] [ 137 ] Considering the history of the placements and the nature, gravity and chronicity of the facts reported, the [youth center A] had to take the mother’s past into account in its analysis of the family situation, in contrast to what counsel for the mother contends. [23] [ 138 ] Moreover, given X’s age and the mother’s history of problems, the file was determined to require permanency planning in accordance with the Policy and Procedures on Permanency Planning for BYFC Children , which provides that all children under six years of age placed in foster care and their siblings are the intended targets of the protocol. [24] The protocol came into effect on November 17, 2003 and was revised in January 2005, May 2006 and January 2009.

Although the version filed in the Court record is that of January 2009, the development of permanency planning for children who cannot remain in their family environment has nonetheless existed for many years. [ 139 ] That procedure provides for the development of a concurrent plan. Under Plan A, the mother resolved her problems of depression and drug and alcohol dependency, andregained custody of her children. If that plan was not realized, Plan B consisted in the development of permanency planning for the children outside their family environment.

The record of the January 16, 2007 meeting of the orientation table, Exhibit M-27, indicates that the files of the four children were determined to require permanency planning. The DYP could not wait indefinitely before developing a permanency plan, since the Regulation respecting the review of the situation of a child provides that the review report must be submitted within a certain period of time not exceeding 12 months. [ 140 ] Unfortunately, the mother did not succeed in keeping her commitments and it proved impossible to return the children to her.

As proof, the three older children are now the subject of orders of placement in foster care until they each reach full age. [ 141 ] In fact, in his January 23, 2007 decision, Lecompte J. gave quite a clear indication of his perception of the children’s situation. He noted the history of the family’s situation in paragraphs 9 et seq. of his judgment and warned the mother that permanency planning

would have to be carried out for the children if she did not get herself together.

The permanency planning had to be developed during the order, so that the [youth center A] could present it at the hearing slated for January 2008. [ 142 ] In any event, the question of whether the [youth center A] determined too hastily that X’s file required permanency planning is not actually relevant when determining eligibility for adoption since the mother conceded the first two stages for adoption. 3.3.2 Did the [youth center A] adequately inform the mother and encourage her to participate in the decision-making process concerning X? [ 143 ] The mother alleges that the [youth center A] Director failed in her duty by not informing the mother of the decisions regarding X and by not encouraging the mother to participate in them. [ 144 ] From the start of the [youth center A]’s intervention, the mother acknowledged the grounds of endangerment and her need to change her lifestyle.

She wanted to get her children back and said she was prepared to do everything in her power to achieve this. However, in November and December 2006, it was very difficult for the [youth center A] caseworkers to reach her and secure her cooperation. Thus, they were able to set up only one contact between the mother and her children during that period.

Note as well that she did not attend the hearing of December 28, 2006, when Gaétan Zonato J. granted the [youth center A]’s applications for provisional foster care under sections 76.1 and 79 of the Act and ordered the placement of the four children in foster care until January 23, 2008. [ 145 ] Furthermore, the mother was adequately informed of her children’s situation, since it was discussed in detail on three occasions: • On January 16, 2007, at the time of the orientation table, [25] the caseworkers explained to the mother the Policy and Procedures on Permanency Planning, including the development of a concurrent plan.

They also informed her of the possibility that X might be placed in a mixed bank foster home: As this child (

X) will need to be moved to another foster home, the issue of mixed bank foster home needs to be explored. • On January 23, at the hearing before Lecompte J., the mother was represented by counsel and gave her consent to the measures recommended by the [youth center A]. [Worker 3, assessment caseworker] testified concerning the family situation and Lecompte J. mentioned in paragraph 16 of his judgment [26] that the Director of Youth Protection would establish a concurrent plan for the children if the mother did not resolve her alcohol abuse issues. • On February 12, the mother signed the intervention plan, [27] which provided in detail for the objectives of the intervention, and the measures and activities in which she had to participate. [ 146 ] Given all that, the mother knew full well that Plan A consisted in the children’s return to her if she completed treatment and corrected the situation, and that Plan B consisted in finding permanent foster care for her children in another environment, if she did not correct the situation.

In fact, in her testimony, the mother said she remembered the plan. [28] She was certainly able to understand the process, particularly since Y and B had been placed in foster care and she had subsequently resumed custody of them. [ 147 ] At the orientation table of January 16, 2007, the mother was also consulted about the people able to care for the children. The caseworkers asked her at that point to provide them with the names of members of her extended family that could take in her children, so that these resources could be assessed.

The mother responded that she wanted to consult her cousin [worker 2, social worker], a social worker in [community A], before naming members of her extended family who could take in her children.

That was an appropriate response in the circumstances, since [worker 2, social worker] was well aware of the family situation, having been the caseworker present in June 2006 when Z had disclosed the sexual abuse of which she was a victim. [ 148 ] Unfortunately, the mother did not contact [worker 2, social worker] or provide the [youth center A] caseworkers with the names of members of her extended family, although her uncles K and J had taken care of her older children in the past. [ 149 ] It was not unreasonable for the [youth center A] caseworkers to ask the mother to provide the names of people in her extended family who could take care of her children, since they did not know any and Ms. [worker 5, social worker] had told [worker 3, assessment caseworker], a week earlier, that the members of the extended family were not in a position to take in the children because they had major social problems. [ 150 ] The evidence clearly shows that the mother was reluctant to accept the idea of developing a concurrent plan because she still thought she could regain custody of her children.

As [worker 6, implementation of measures] testified in February 2007, the mother wanted her children to remain in city A until she finished her treatment at the [Centre B], so that she could get them back afterwards. [ 151 ] It was only on January 16, 2008, that the mother clearly told [worker 6, implementation of measures] that her lifestyle was incompatible with resuming responsibility for her children. When he asked her whether she would be able to take care of X, she answered in the negative.

It was at that meeting that she gave him the names of her uncles and the very next day, [worker 6, implementation of measures] sent a fax to the Cree Board, asking for information about any concerns regarding K and L. [ 152 ] The mother’s reluctance toward developing a concurrent plan also explains the fact that she took no steps with the Cree Board of Health and Social Services prior to December 11, 2007, to inform the caseworkers of her children’s situation and seek the caseworkers’ assistance so that the children could return to [community A].

[ 153 ] It seems obvious that between March 1 and October 17, 2007, the [youth center A] caseworkers could not inform the mother of the decisions taken regarding her children and X’s transfer to her mixed bank foster family, since the mother had disappeared and was not taking

part in the social follow-up. When the mother briefly resurfaced in late May 2007, however, she was informed of the decision made on April 16, 2007, to transfer X to a mixed bank foster family, a decision she opposed before disappearing again. [ 154 ] The [youth center A] caseworkers had no way of contacting the mother. Besides, according to the last paragraph of

section 2.3 and

section 91 (

b) of the Youth Protection Act , it is the parents’ responsibility to take

part in the social follow-up and to cooperate with the Director of Youth Protection. [ 155 ] The parents retain their parental authority, although they are not asked to make decisions on a daily basis in regard to their children. Consequently, even though her children had been placed, it was the mother’s responsibility to continue to exercise her parental responsibilities to the extent possible. [ 156 ] Pursuant to

section 2.3 of the Youth Protection Act , the Director must, in intervening, favour the parents’ participation. The parents must, in return, take an active

part in applying the measures, in order to put an end to the situation endangering the security or development of their child: 2.3 Any intervention in respect of a child and the child’s parents under this Act (

a) must be designed to put an end to and prevent the recurrence of a situation in which the security or the development of the child is in danger ; and (

b) must, if the circumstances are appropriate, favour the means that allow the child and the child’s parents to take an active

part in making decisions and choosing measures that concern them. Every person, body or institution having responsibilities under this Act towards a child and the child’s parents must encourage the participation of the child and the parents, and the involvement of the community. The parents must, whenever possible, take an active

part in the application of the measures designed to put an end to and prevent the recurrence of the situation in which the security or development of their child is in danger . [Emphasis added.] [ 157 ] So the mother had an obligation to participate in the social follow-up, which she failed to do. [ 158 ] In his order of January 23, 2007, [29] Lecompte J. indicated that the mother had to fully collaborate with the Director of Youth Protection: ORDERS that the mother fully collaborate with the Director of Youth Protection delegate in order to put an end to the previous situation of the children; [ 159 ] When a parent collaborates insufficiently and does not become involved in the social follow-up, the Director of Youth Protection must continue to implement the intervention plan, including permanency planning, and to apply the measures ordered to meet the child’s needs. [ 160 ] In 1992, the report of the working group assessing the Youth Protection Act , entitled La protection de la jeunesse, plus qu'une loi (youth protection, beyond the law), [30] better known as the Jasmin Report, states, on page 19, under heading 4: Le sens du temps chez l'enfant (a child’s sense of time), that it is of paramount importance to take into consideration a child’s perception of time in order to be able to meet that child’s needs: [TRANSLATION] It is quite clear that vulnerability varies according to age and that, for toddlers, time can be a decisive factor in their development.

For all children, the time spent waiting for a judgment deciding their fate is suspended time that must be kept to a minimum . The need for contemporaneous interventions must respond to the child’s sense of time, to which the system, which claims to protect the child, must adjust. We must therefore exercise our responsibilities in consideration of the child’s perception of time and with continuous concern for promptness . In short, we must set our time by the child’s psychological clock. [Emphasis added.]

[ 161 ] This principle, according to which the Director of Youth Protection in charge of a child’s situation must act diligently, since the child’s perception of time has great importance, was inserted into the Youth Protection Act through

section 2.4: 2.4 Every person having responsibilities towards a child under this Act, and every person called upon to make decisions with respect to a child under this Act shall, in their interventions, take into account the necessity . . . (5) of opting for measures, in respect of the child and the child’s parents, which allow action to be taken diligently to ensure the child’s protection, considering that a child’s perception of time differs from that of adults , and which take into consideration the following factors: (

a) the proximity of the chosen resource; (

b) the characteristics of cultural communities; (

c) the characteristics of Native communities. [Emphasis added.] [ 162 ] In 1994, the report of the Committee of experts on the revision of the Youth Protection Act , entitled La protection des enfants au Québec : une responsabilité à mieux partager (the protection of children in Québec: a responsibility to be better shared), underscored with approval the fact that the Jasmin working group had stated that a child’s perception of time should be reflected in all decisions concerning him or her, page 33, under the heading 3.4: “Une intervention diligente” (diligent intervention): [TRANSLATION] This principle was introduced, inter alia , because of the concern stemming from the observation that many children who were placed, were place forlong periods of time and experienced many changes of foster resources, without any measures aimed at stabilizing their situation in the longer term being considered. . . .

The members of the Committee recognize the paramount importance of acting promptly at all stages in the intervention process, particularly where young children are concerned. [ 163 ] In the case at bar, the [youth center A] caseworkers noted that the mother was not taking

part in the social follow-up and that she had taken no steps to resolve her alcohol and drug abuse issues. Nor could they predict when she would return. [ 164 ] X was one year old when her mother disappeared. Her foster family was not able to keep her on a long-term basis and it was therefore necessary to move her. Given that, the [youth center A] Director had a duty to find a resource able to take care of the child on a long-term basis.

Indeed, in X’s interest, it was of paramount importance to avoid subjecting her to successive moves. [ 165 ] In the circumstances, everything was done to encourage the mother’s involvement and to motivate her to exercise her parental responsibilities. She no doubt had good intentions, but it is clear that she was unable to correct the situation.

Yet, if she had collaborated in the social follow-up and provided the names of members of her family to be assessed, there is a strong possibility that her four children would have returned to their community before late June 2008. [ 166 ] Ultimately, the evidence shows that the mother was duly informed of the decisions taken in regard to her children when it was possible for the [youth center A] caseworkers to reach her, but she never made an effort to take

part in the social follow-up. 3.3.3 Did the [youth center A] hamper contact between the mother and the child? [ 167 ] The mother and the Cree interveners contend that the [youth center A] hampered contact between the mother and her daughter by taking steps intended to weaken the child’s emotional bonds with her mother and siblings, and foster the forging of exclusive emotional bonds between the child and the mixed bank foster family, including, in particular, by seeking and obtaining a court order prohibiting any contact between the child and her siblings or the defendant. [31] [ 168 ] In this case, the evidence has shown that the [youth center A] caseworkers tried to encourage contact between the children and

their mother between November 19, 2006 and March 1, 2007. At the time of placement, [worker 3, assessment caseworker] and [worker 4, social worker] had scheduled weekly visits between the mother and her children. However, that frequency was impossible because the mother did not collaborate sufficiently. [ 169 ] Thus, between November 19, 2006 and January 16, 2007, it was difficult to reach the mother and only one visit took place, on December 1, despite the caseworkers’ phone calls reminding the mother of the importance of preserving regular contact with her children.

During the orientation table of January 16, 2007, the mother explained that she had seen her children only once because she found the supervised visits at the [youth center A] tedious. [ 170 ] Afterwards, the mother had contact with her children on three occasions—January 19, February 22 and March 1, 2007—before disappearing without giving any news.

What is more, she did not appear for the June 6 visit, and did not ask for contact with her children before December 2007. [ 171 ] The evidence shows that the mother did not see her children during that period and that the [youth center A] is blameless on this count since [worker 6, implementation of measures] had organized contact for June 6, but it was the mother who did not appear. [ 172 ] It was only on December 10, 2007, after the hearing on this application for eligibility that the mother asked [worker 6, implementation of measures] for contact with her children. [32] By that date, X had not seen her mother for nine months. [ 173 ] In the circumstances, before contact could be resumed, the [youth center A] caseworkers were entitled to verify whether the mother was still engaging in substance abuse and to question her ability to be regular in her contacts, in the child’s interest.

In addition, Lecompte J.’s order provided that the frequency and terms of contact between the child and her mother be determined by the [youth center A].

That order gave the [youth center A] broad discretion in organizing contact between the child and her mother. [ 174 ] It must also be considered that the present application for a declaration of eligibility for adoption had been filed and that the mother, even though the proceedings were served on her October 16, 2007, has not yet been relieved of her failure to appear. [ 175 ] Despite everything, on January 7, 2008, [worker 6, implementation of measures] planned to allow monthly visits between X and her mother.

However, he was able to observe, during the visit of January 16, 2008, at the mother’s home, that she was still engaging in substance abuse and had not yet changed her lifestyle. The [youth center A] Director made the decision at that point to petition for the suspension of contact between the mother and the child, and file an application to that end in the days that followed. [ 176 ] The suspension of contact was granted by Lévesque J. on January 23, 2008 on an interim basis until the hearing on the merits.

On March 14, after hearing the testimony of the mother and [worker 6, implementation of measures], Lecompte J., who had been aware of the family situation for a number of years, allowed the [youth center A]’s application and ordered the suspension of contact between the child and her mother and siblings. [ 177 ] The mother did not appeal from that decision, making it res judicata . [ 178 ] On that issue, the Quebec Court of Appeal indicated in 2001, in M.-C.G. v.

Ma.Gé. , that the judge to whom an adoption case is referred cannot question the merits of protection judgments concerning a child that have not been appealed from, because they are res judicata : [33] [TRANSLATION] [1] The appellant invites the Court to question the merits of DuBois J.’s judgment rendered in March 1998, when that judgment was not appealed from and is res judicata . [ 179 ] Applying that principle, Mario Gervais J., in Adoption – 1134 (C.Q., 2011-04-01 (judgment corrected on 2011-05-02)), 2011 QCCQ 2745 , SOQUIJ AZ-50739098 , after an exhaustive review of the case law, examined the issue of the importance of protection judgments in an adoption case and concluded that there was a particular application of the doctrine of res judicata in that area: [TRANSLATION] [424] Examining all these decisions, starting with J.G.F. (C.A., 2001-09-10), REJB2001-25794 , supra , which enshrined the principle of res judicata with respect to earlier protection judgments in an adoption case, up to the limit laid down by Bich J.A. in Adoption – 09158 , 2009 QCCA 1491 , regarding the recklessness of [TRANSLATION] “ unreservedly ” finding support or comfort in the facts observed in the protection judgments, the Court notes the following: 1 Prior youth protection judgments are res judicata , in the strictest sense, in adoption matters.

Thus, the conclusions of protection judgments and the facts intrinsically related thereto cannot be challenged in the adoption case ; 2 The situation endangering the child’s security or development that was accepted in the protection judgment, such as parental neglect, sexual abuse, physical abuse or the other situations provided for in the Youth Protection Act , constitutes the context for the anal

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