2013 QCCQ 9008, 2013 QCCQ 9008

Protection de la jeunesse — 132007 2013 QCCQ 9008 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] LOCALITY OF [...] Youth Court Division No: 760-41-004330-125 DATE: March 28, 2013 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE BEATRICE CLEMENT, J.C.Q. ______________________________________________________________________ X born [...] Child DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner -and- A, (deceased) -and- B JC0B11 Parents ______________________________________________________________________ JUDGMENT ______________________________________________________________________ CAUTION : The Youth Protection Act provides that within the framework of this Act, no person may publish or broadcast information allowing a child or the child's parents to be identified.

Whomsoever contravenes this

article is guilty of an offence and is liable to a fine [articles 11.2.1 and 135 Y.P.A.].

[ 1 ] The Director of Youth Protection presents a motion for protection concerning the child X , born on [...] . [ 2 ] The motion alleges that the security and the development of the child are in danger in reason of a situation of abandonment. Within measures of aid and counsel for six months, the Director proposes that Court entrust the child to his maternal grandparents, while allowing a progressive reintegration in foster care.

As well, the Director proposes that the father's contacts be determined following mutual agreement and under the supervision of a third person. [ 3 ] The Court joins the hearing with that of the child's uterine sibling, Y. [ 4 ] The parties consign their admissions to the Court record. At the final hearing on the applicable measures, the father and the child's attorney confirm their agreement as to the Director's proposal of measures. [ 5 ] ANALYSIS AND DECISION [ 6 ] The child resides with his mother and his half-brother Y. On September 11, 2012, the mother suddenly passes away.

The children are taken in by their maternal grandparents. [ 7 ] The parents separate in 2008. The father affirms seeing both children on a regular basis until his return to his home province of Manitoba in autumn 2009. [ 8 ] The father's involvement as to his son, particularly following his return to Manitoba, is the subject of contention. [ 9 ] The father testifies that he has a close relationship with both boys. He considers Y as his son. Until their mother's death, he communicates with them regularly; via the telephone, social networks or ''face time''.

He indicates that although their separation was difficult, his relationship with the mother was cordial at the time of her death. Since leaving the province, he sees the children on one occasion, namely in April 2011, when stays at the mother's home for approximately 10 days. [ 10 ] The Director alleges that the father is essentially estranged from his son. The mother affirms in various written declarations, that the father has little involvement in the children's lives and is an abusive person with issues as to alcohol, drugs and gambling.

The most recent document dates from September 2011. [ 11 ] Furthermore, the Director alleges that the father has a history of violence, which results in the end of the conjugal relationship with the mother. Y remembers being a witness to seeing the father choke his mother when he was in kindergarten and phoning 9-1-1.

The father pleads guilty to charges of assault against the mother, as well as charges of mischief, uttering threats and failure to comply with a condition of an undertaking, receiving a suspended sentence with a 1-year probation. [ 12 ] After considering the evidence, the Court concludes that although the father maintains certain long-distance contacts, more particularly in the last year, his involvement as to his son's care is minimal since he moves to Manitoba.

Since their separation, the relationship with the mother evolves to the point at which she receives him in her home in April 2011, which counteracts the affirmations made in the claims for service in her written declarations. [ 13 ]

Article 38 of the Youth Protection Act , defines abandonment as follows: (a) “ abandonment ” refers to a situation in which a child's parents are deceased or fail to provide for the child's care, maintenance or education and those responsibilities are not assumed by another person in accordance with the child's needs; [ 14 ] The father's choices and subsequent circumstances result in the crucial diminishment of his parental role, and consequent significance in his son's life.

His virtual absence for over half of X 's life constitutes the basis of the abandonment. [ 15 ] At the Court's request, the Director proceeds to an assessment report of the father's environment. The father collaborates with this assessment. He presently lives with his parents in a one-bedroom apartment. He wants to eventually receive his son, or both brothers, in his care. He states his motivation to help the children and hopes that in the next year, he can secure employment and independent living. [ 16 ] The Court cites the conclusions of the said report: Mr.

B is not able at this time to provide for Y and X 's immediate physical needs due to his current living situation, and did not share a concrete plan for securing appropriate housing for himself and his children in City A , Manitoba. He only stated that he would do ''whatever it takes''. Mr. B recognized the importance of his role as the economic provider for an intact family, but had limited experience in consistently participating in emotional and caregiving responsibilities for Y and X during the relationship and after the separation. Mr.

B minimizes or denies his role in incidents of family violence, and is unable to recognize the impact of family violence on children. He blames others for the estranged relationship he has with his children. Mr. B has struggled with addiction issues in the past and says that he is sober. He is currently struggling with some mental health issues, and faces vocational challenges, but has appropriately used clinical and vocational interventions and support. Mr. B struggles with impulse control, can admit to inadequacies in his behaviours but denies responsibility.

He also struggles with cooperating with the social workers at Centre jeunesse A probably because he feels unrecognized as Y and X 's father. He wants to, at the very least, maintain regular contact with his children. Y and X require that Mr. B continue to collaborate with the social workers at Centre jeunesse A and that he cooperates with the children's maternal grandparents.

The children require that contact with their father be consistent and safe. (Assessment report, evidence D-16, pages 6-7) [ 17 ] The maternal grandparents declare being able to receive the children on a short-term basis only, as the responsibilities of two

young boys is too heavy a burden for them to shoulder, at this juncture in their lives. No other members of the extended family are available to invest the brothers on a long-term basis.

However, the family does wants to maintain significant involvement with the children. [ 18 ] Consequently, the Court considers that the evidence satisfies the criteria for a determination of abandonment and therefore declares that the security and the development of the child are in danger. [ 19 ] As to the measures, the caseworker testifies to the effect that the plan is a progressive integration in a permanent foster family, while maintaining contacts with their maternal grandparents.

It is unlikely that a resource will be available to receive both brothers, although the Court considers that such would reduce the impact of yet another separation. [ 20 ] As to contacts with the father, they consider it appropriate to respect X 's rhythm in this regard and provide for supervision. [ 21 ] The father's sees X once under supervision, since the mother's death. X recognizes his father, and although there is a certain reserve, is affectionate and happy to see him.

Overall, weekly telephone contacts are positive. [ 22 ] The children have gone through numerous difficult periods in relation to instability in their mother's life (mental and physical health issues, alcoholism) and to elements of domestic violence. They are very close and X depends on his brother's presence for reassurance. [ 23 ] The children require stability and security to help them develop and heal the pain of their mother's passing.

The situation dictates that they transition anew in alternate, and possibly separate, milieus, which will cause further precariousness in their situation. [ 24 ] Except for the following, the Court estimates that the recommendations respect the rights and the best interests, of the child. [ 25 ] The Director of Youth Protection requests that the Court take act of the elaboration of a permanency plan for the child, as they consider that there no viable family members available to receive the child.

Consequently, it is clear that such a plan would probably entail his entrustment to an alternate milieu on a long-term basis. [ 26 ] The Court considers that it is premature to prone such a plan and this, considering that there is lieu to verify the extent at which the father will take the necessary steps to implicate himself and occupy a significant place in his son's life.

The evidence demonstrates that a bond exists between father and son, which can possibly form the basis of a more substantial relationship, should the father be able and willing to offer the necessary efforts and choices. [ 27 ] The child's best interests dictate that the six-month period of the measures serve to weigh the father's implication and ultimately, the viability of him bringing to fruition his plan to be able to receive his son.

To date, the Court notes that there are little concrete steps taken to this effect. [ 28 ] As evolution of the situation remains possible and the provisional period of placement is not expired, the Court considers that the measures, and the Directors mandate, must continue to privilege the principles which the Youth Protection Act dictates, more particularly in its

article 4 (underlining by the Court): 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 corres-ponding to the child's needs and age on a permanent basis. [ 29 ] The relationship between the child and his father requires construction and it is the Director's mandate to apply the measures to this end.

The intervention deals with the additional challenges resulting from the geographical distance between father and son. This should not impede that the contacts be regular and significant. The Court calls on the Director of Youth Protection to facilitate meaningful long distance contacts, which should take advantage of the technological means actually available.

Particularly, internet exchanges allowing visual interaction permit a contact that is more personal and real for a child of X 's age, and therefore more significant. [ 30 ] FOR THESE REASONS, THE COURT: [ 31 ] GRANTS the motion; [ 32 ] DECLARES that the security and development of the child are in danger; [ 33 ] ENTRUSTS the child to his maternal grandparents; [ 34 ] PERMITS the progressive integration of the child in a foster family, within the term of the present measures;

[ 35 ] RECOMMENDS that the child integrate the same foster family as his brother; [ 36 ] ORDERS that the father undertake an active

part in the application of the measures designed to put an end to the situation which the security or development of the child are in danger; [ 37 ] ORDERS that the father report periodically to the Director of Youth Protection as to the evolution of his situation; [ 38 ] ORDERS that the contacts between the child and his father be upon agreement between the parties as to the frequency, modalities and degree of supervision; [ 39 ] PERMITS the father to have weekly contacts with his son by phone or other technological means, as determined by a specific calendar to be elaborated with the Director of Youth Protection; [ 40 ] PERMITS the withdrawal of supervision following agreement between the parties; [ 41 ] ORDERS that the contacts between the child, his brother Y and significant extended family members, be fostered; [ 42 ] ORDERS that a person working for an institution or body provide aid, counseling or assistance to the child and his family for six months; [ 43 ] ENTRUSTS the situation of the child to the Director of Youth Protection of the Centre Jeunesse A for the execution of the measures. __________________________________ BEATRICE CLEMENT, J.C.Q.

Me Caterine Caron Attorney for the Petitioner Me Karine P. Poissant Attorney for the child Dates of hearing: November 23, 2012, January 30, 2013