2022 QCCQ 12320, 2022 QCCQ 12320

Translated from the original French Protection de la jeunesse — 225952 2022 QCCQ 12320 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF […] LOCALITY OF […] “Youth Division” No.: 640-41-002756-226 DATE: November 17, 2022 ______________________________________________________________________ BY THE HONOURABLE JACQUES LADOUCEUR, J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1] , youth protection worker, duly authorized by the Director of Youth Protection of the [Designation], working in Village A, district of A Applicant and X, born on […], 2021 Child and A Mother and B Father ______________________________________________________________________ JUDGMENT [1] (English version translated from the original French) ______________________________________________________________________ WARNING: The Youth Protection Act forbids the publishing or broadcasting of information allowing for a child or the child’s parents to be identified.

Any person who contravenes this provision commits an offence and is liable to a fine ( sections 9.2 , 9.3 and 135 Y.P.A. ). Table of contents 1.

PREAMBLE ............................................................................................................................ 2 2. BACKGROUND ..................................................................................................................... 7 3. ISSUES ................................................................................................................................... 9 4.

ANALYSIS .............................................................................................................................. 9 4.1 Encroachment of rights ........................................................................................................ 9 4.2 The applicable measures .................................................................................................. 23 4.2.1 The facts underlying the declaration of endangerment ........................... 23 4.2.2 The placement of the child ............................................................................... 25 4.2.3 Minimum contact between the child and his family .................................. 28 5.

THE STATUS OF THE BIOLOGICAL FATHER ............................................................ 29 3

PREAMBLE [ 1 ] In 2006, during the general consultation on Bill 125 (

An Act to amend the Youth Protection Act and other legislative provisions ) concerning, inter alia , the enactment of

section 91.1 of the Youth Protection Act ( Y.P.A. ) on placement periods, Quebec Native Women and the Regroupement des Centres d’amitié autochtones du Québec filed a joint brief titled “Is the history of the Aboriginal residential schools in danger of repeating itself ?”. It states the following: Fear of authority is one of the direct consequences of the Aboriginal residential school experience. The members of our nations perceive the Youth Protection Branch (YPB) as a state organization that comes to their communities for the sole purpose of taking their children away from them.

Parents are afraid of the YPB and do not trust it . The YPB represents a threat to them and their families, and they have more trust in services provided by the community. They feel that it is setting traps for them and that its attitude in the vast majority of cases is abnormal. They feel judged, even before the first meeting. They do not feel that their case has been truly evaluated or that the situation has been explained to them in a way they can understand or allow them to take action themselves to change things. According to them, the YPB and especially its social workers take the facts out of context.

They believe it exaggerates the facts and creates problems that did not exist. Our members also feel that it labels some families even before their case is evaluated. They believe that the YPB does not take account of our culture and that its actions run counter to our values and family system, i.e., the extended family. Moreover, Aboriginal families consider that the YPB, in taking their children away from them, is taking away their authority and their children’s respect for them.

This leads inevitably to a rupture in the emotional bond between the parents and the children . … We must also consider the needs of the remote communities. Children there are almost always placed a considerable distance from their homes. Parents, who are unfortunately very often without work, cannot maintain contact with their children. The YPB then decides that these parents are not very interested in their children and requests long-term placements . Is this a fair and equitable way to assess the situation?

We believe that the YPB turns too quickly to the solution of long-term placements of Aboriginal children and does not give parents the time needed to regain control of their situation and eliminate any sources of risk for the children. [2] [Emphasis added.] [ 2 ] Also, in 2015, the mandate of the Truth and Reconciliation Commission (the Commission) ended with the filing of its report.

The mandate of the Commission was to inform all Canadians about what happened in the Indigenous residential school system, to document the truth of the survivors, their families, the communities, and everyone personally affected by the reality of the Indigenous residential schools, and to provide recommendations (“Calls to Action”). [ 3 ] In its report, the Commission stated, “The impacts of the legacy of residential schools have not ended with those who attended the schools.

They affected the Survivors’ partners, their children, their grandchildren, their extended families, and their communities”. [3] [ 4 ] The following call to action is set out in the report: 1) We call upon the federal, provincial, territorial, and Aboriginal governments to commit to reducing the number of Aboriginal children in care by: … iii. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the history and impacts of residential schools . … v.

Requiring that all child-welfare decision makers consider the impact of the residential school experience on children and their caregivers . [4] [ Emphasis added.] [ 5 ] The federal government recently enacted the Act respecting First Nations, Inuit and Métis children, youth and families [5] (the federal Act ), which came into force on January 1, 2020. [ 6 ] The

preamble of the federal Act states: Whereas Parliament recognizes the legacy of residential schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices; Whereas Parliament recognizes the disruption that Indigenous women and girls have experienced in their lives in relation to child and family services systems and the importance of supporting Indigenous women and girls in overcoming their historical disadvantage; Whereas Parliament recognizes the importance of reuniting Indigenous children with their families and communities from whom they were separated in the context of the provision of child and family services; … Whereas Parliament affirms the need to respect the diversity of all Indigenous peoples, including the diversity of their laws, rights, treaties, histories, cultures, languages,

customs and traditions, … to address the needs of Indigenous children and to help ensure that there are no gaps in the services that are provided in relation to them , whether they reside on a reserve or not, to eliminate the over-representation of Indigenous children in child and family services systems , to enact legislation for the benefit of Indigenous children, including First Nations, Inuit and Métis Nation children; [Emphasis added.] [ 7 ] For its part, the Government of Quebec amended the Youth Protection Act [6] to include, inter alia, provisions specific to Indigenous persons, which came into force on April 26, 2022. The

preamble of the Y.P.A. states: AS Indigenous persons are best suited to meet the needs of their children in the manner that is the most appropriate; AS cultural safety is essential to the well-being of Indigenous children ; AS interventions in respect of an Indigenous child must be carried out taking into account the circumstances and characteristics of his community or of another environment in which he lives so as to respect his right to equality and foster cultural continuity ; [Emphasis added.] [ 8 ] Last, in Renvoi à la Cour d'appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis , [7] the Court of Appeal stated: [ translation ] [93] For nearly one century, the federal government applied a policy for the assimilation of Aboriginal peoples.

In order to achieve this objective, it deliberately chose to separate Aboriginal children from their parents and natural environment and have them attend residential schools . [94] The end of the residential school system, however, did not spell the end of the forced separation of Aboriginal children from their families. Provincial child welfare services effectively took over from the residential schools when, following the adoption of s. 88 of the Indian Act , provincial governments began to offer child welfare services to Aboriginal populations on reserves.

For Aboriginal families and communities, the impact of this new situation was just as devastating. Some children were simply moved from residential schools to foster families within the provincial system .

Furthermore, some provinces, being of the view that the federal government should bear the costs of services offered to Aboriginal families and children, did not immediately take on the duties transferred to them, and some were only inclined to intervene when there was a danger of death. [95] When provincial governments began to intervene on a more regular basis, pursuant to funding agreements with the federal government, they effectively perpetuated the assimilative policy embodied in the residential school system.

Thousands of children were removed from their natural environment and adopted out to non-Aboriginal families : The provincial social workers assigned to reserves assessed child safety and welfare by mainstream cultural standards. They received little or no training in Aboriginal culture. They were not trained to recognize problems rooted in generations of trauma related to the residential schools. Instead, they passed judgment on what they considered bad or neglectful parenting . As a result, beginning in the 1960s, provincial child welfare workers removed thousands of children from Aboriginal communities.

It has been called the “Sixties Scoop.” Aboriginal children were placed in non-Aboriginal homes across Canada, in the United States, and even overseas, with no attempt to preserve their culture and identity. The mass adoptions continued between 1960 and 1990. The Sixties Scoop children suffered much the same effects as children who were placed in residential schools. Aboriginal children adopted or placed with white foster parents were sometimes abused. They suffered from identity confusion, low self-esteem, addictions, lower levels of educational achievement, and unemployment.

They sometimes experienced disparagement and almost always suffered from dislocation and denial of their Aboriginal identity. … [97] The devastating effect of what is referred to as the “Sixties Scoop” —which resulted in the mass adoption of Aboriginal children— is at the root of major identity and behavioural issues . In her expert report, Christiane Guay discusses studies that have shown the negative impacts of these adoptions. Some children had difficulty identifying with the culture of their foster family, while others suffered from racism and from the stereotyping of their native culture.

In many cases, the fact that they were trapped between two cultures caused [ TRANSLATION ] “these children to suffer from a negative self- image and drove many of them to seek comfort in alcohol and drugs to escape their suffering. … Commentators have also shown that these problems also led to suicidal thoughts or a greater propensity for crime …”.

… [99] Until the 1990s, over 150,000 Aboriginal children attended residential schools run by religious organizations and funded by the Government of Canada.

Thousands of these children suffered physical, psychological and sexual abuse during their stay in these schools. [100] As documented in the report of the Truth and Reconciliation Commission and that of the Viens Commission , among others, the legacy of the tragic history of residential schools and of the Government of Canada’s assimilation policies can be seen in the significant disparities noted between Aboriginal and non-Aboriginal populations in terms of education, income, health and social life. It is also reflected in the racism and the systemic discrimination Aboriginal individuals face .

This is a proven fact that only those who lack awareness of the facts and the law would question. … [Citations omitted; emphasis added.] [ 9 ] During their interventions and when determining and applying measures for Indigenous children and families, everyone involved in the youth protection system must be sensitive to and have specialized knowledge of the cultural, historical, and social realities of Indigenous peoples as well as the legal provisions governing their actions from the very start of their interventions, in a consistent, continuous, and conscientious manner, until the end of their intervention. [ 10 ] This matter, concerning the child X, reveals that this is not the case. 2.

BACKGROUND [ 11 ] The mother gave birth to the child on […], 2021, when she herself was 17 years old, having been born on […], 2004.

Although his name does not appear on the birth certificate, everyone acknowledges that B is the biological father. [ 12 ] In fact, the child’s given name is the biological father’s surname. [ 13 ] In the months preceding the child’s birth, the father [8] was violent with the mother. [ 14 ] Another incident of conjugal violence (he kneed her several times, hit her in the face, and pulled her hair) occurred around December 17, 2021. [ 15 ] Then there was a car accident on December 23, 2021, when the father was driving the vehicle while intoxicated and hit a container.

The mother, who was sober, was in the car with the child in her amautik . [ 16 ] In view of this situation, the Department of Youth Protection (DYP) agreed on a plan with the mother for her to stay with the child in Village B with members of her family as of December 27, 2021. [ 17 ] The mother returned on January 4, 2022, and a plan was again established to implement measures to protect the child. [ 18 ] That evening, the caseworker received information that the mother had left the child on the father’s doorstep (which the mother denies).

Consequently, immediate protective measures were implemented. [ 19 ] From that time on, the mother behaved angrily and aggressively towards the DYP and was no longer cooperating, given that her child had been removed from her. [ 20 ] The child was placed in various foster families under an order for provisional measures valid until March 2, 2022, the date to which the case was postponed for the purposes of submitting an agreement. [ 21 ] No agreement was reached, however, and the hearing of the case was postponed to June 9, 2022.

Due to a death in the mother’s family, the case was postponed to September 8, 2022. [ 22 ] Meanwhile, the child has been placed in a non-Indigenous foster family in Town C, in the south of Quebec, since March 2022. [ 23 ] During that period, the only access the DYP proposed so that the mother could see her baby, who was only a few months old, consisted of Facetime “meetings”, which the mother refused because she wanted to have physical contact with her child. [ 24 ] During the hearing on September 8 and 9, 2022, the DYP asked that the child’s placement in the foster family be extended, while the mother wanted the child to be entrusted to the maternal grandmother. [ 25 ] The hearing was adjourned and continued to October 6, 2022, because during her testimony, the caseworker raised new facts in connection with sexual offences committed against a young child by the maternal grandmother’s son, who lives in the family residence. [ 26 ] Prior to the October hearing, the Court sent a notice to the parties stating that it wanted to assess whether the child’s rights have been encroached upon by the DYP’s conduct in this case. [9] [ 27 ] Ultimately, counsel for the child and counsel for the mother acknowledged that the security and development of the child are in

danger under

section 38 (e)

(2) Y.P.A . , that is, that there is a serious risk of physical abuse in view of the father’s conduct and the maintenance of his connection with the mother, and under section 38(1) (iii) Y.P.A . with respect to education, as the evidence reveals serious deficiencies by the mother in this regard. [ 28 ] They were also of the view that several of the child’s rights have been encroached upon. 3. ISSUES [ 29 ] 1. Have the child’s rights been encroached upon? If so, what corrective and remedial measures should the Court order? [ 30 ] 2. What measures are applicable in this case? [ 31 ] 3.

What is the biological father’s status? 4.

ANALYSIS 4.1 Encroachment of rights [ 32 ] The Court considers it essential to first address the issue of the encroachment of the child’s rights. [ 33 ] Indeed, it is not necessary to set out the events in detail to be able to see from the outset the extent to which the DYP acted in violation of those rights. [ 34 ] Both counsel for the child and counsel for the mother are of the view that the child’s rights under sections 3, 4, 4.4, 7, 131.3, and 131.4 Y.P.A. and sections 9(1) , 9(2) , and 10(1) to 10(4) of the Act respecting First Nations, Inuit and Métis children, youth and families (the federal Act ) have been encroached upon. [ 35 ] The Court adds

section 4.3 and sections 131.1 and 131.5 Y.P.A . as well as sections 11 and 16(3) of the federal Act . [ 36 ] These provisions read as follows. First, under the Youth Protection Act : 3. The interest of the child is the primary consideration in the application of this Act. Decisions made under this Act must be in the interest of the child and respect his rights .

In addition to the moral, intellectual, emotional and material needs of the child, his age, health, personality and family environment, including the socioeconomic conditions in which the child lives, and the other aspects of his situation must be taken into account. 4. Every decision made under this Act must aim at ensuring continuity of care as well as the stability of the child’s relationships and of living conditions appropriate to his needs and age. Therefore, keeping the child in his family environment should be favoured, provided it is in the child’s interest.

If keeping the child in his family environment is not in his interest, priority must be given to entrusting the child to the persons most important to him, in particular the grandparents or other members of the extended family. If it is not in the interest of the child to entrust him to such persons, the child must then be entrusted to a living environment most closely resembling a family environment.

If returning the child to his family environment is not in his interest, the decision must, on a permanent basis, ensure continuity of care and the stability of his relationships and of living conditions appropriate to his needs and age. … 4.3. Any intervention in respect of a child and the child’s parents under this Act must, if the circumstances are appropriate, favour means that allow the child and his parents to take an active

part in making the decisions and choosing the measures that concern them . 4.4. Persons having responsibilities towards a child under this Act and persons called upon to make decisions with respect to a child under this Act shall, in their interventions , (

a) treat the child and the child’s parents with courtesy, fairness and understanding, and in a manner that respects their dignity and autonomy; (

b) act diligently to ensure the child’s security or development, given that a child’s perception of time differs from that of adults; (

c) take into consideration the proximity of the chosen resource; and (

d) take into account the characteristics of ethnocultural communities, including when choosing an alternative living environment for the child . … 131.1. The provisions of this

chapter are aimed at adapting the other provisions of this Act to the Indigenous people, taking into

account historical, social and cultural factors that are specific to them. They also aim to foster : (

a) a holistic approach ; (

b) cultural continuity ; (

c) the responsibility of each community in respect of its children and families; (

d) the priority intervention of providers offering health services and social services to the community to prevent the situation of an Indigenous child from being taken in charge by the director; and (

e) the relationships of the child with multiple persons who are important to him . … 131.3. Every decision made under this Act in respect of an Indigenous child and any other intervention concerning him made under this Act must foster the cultural continuity of that child . Institutions, bodies and persons having responsibilities towards a child under this Act and persons called upon to make such decisions shall consider, as one of the possible interventions to be made in respect of the child and his parents, having recourse to the available customary and traditional care, if made aware of it. 131.4 .

In determining the interest of an Indigenous child, in addition to the factors listed in the second paragraph of

section 3, the following factors must be taken into consideration : (

a) the culture of the child’s Indigenous community , including the language, customs, traditions and spirituality; (

b) the child’s relationships with his extended family and members of that community ; (

c) the child’s access to the territory surrounding that community and other places that its members frequent; and (

d) the sociohistorical traumas of Indigenous people and their socioeconomic conditions . 131.5. Where an Indigenous child must, under this Act, be entrusted to an alternative living environment, the living environment chosen must be the one that, considering the interest of that child, is suitable for him in the following order of priority : (

a) the child’s extended family; (

b) members of his community; (

c) members of a different community of the same nation as the child’s nation; (

d) members of a nation other than the child’s nation; or (

e) any other environment. The director must enter in the child’s record the reasons justifying the decision made under the first paragraph. [ Emphasis added. ] [ 37 ] The provisions of the federal Act state: Principle — best interests of child 9

(1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child. Principle — cultural continuity

(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts: (

a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people; (

b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity ; (

c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected ; (

d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and (

e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered .

… Best interests of Indigenous child 10

(1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration . Primary consideration

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture . Factors to be considered

(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including : (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life ; (

d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs; (

g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and (

h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Effect of services 11 Child and family services provided in relation to an Indigenous child are to be provided in a manner that : (

a) takes into account the child’s needs, including with respect to his or her physical, emotional and psychological safety, security and well-being; (

b) takes into account the child’s culture ; (

c) allows the child to know his or her family origins ; and (

d) promotes substantive equality between the child and other children. Family unity 16

(3) In the context of providing child and family services in relation to an Indigenous child, there must be a reassessment, conducted on a ongoing basis, of whether it would be appropriate to place the child with (

a) a person referred to in paragraph (1)(a), if the child does not reside with such a person; or (

b) a person referred to in paragraph (1)(b), if the child does not reside with such a person and unless the child resides with a person referred to in paragraph (1)(a). [Emphasis added.] [ 38 ] Let us now consider this. 4.1.1 Steps taken to find a foster family [ 39 ] The Court notes that the child has been placed in a non-Indigenous foster family in Town C, in the south of Quebec, since late March 2022, with C and his spouse D. [ 40 ] At the Court’s request, the DYP filed the document titled “Foster home search steps” [10] to establish the steps taken before placing the child in the non-Indigenous family. [ 41 ] A reading of this table reveals several omissions and deficiencies.

For example, certain calls were made, but there was no

follow-up when there was no answer. That was the case for the call made to Ms. E on February 8, 2022, and the call made to Ms. F on March 1, 2022. [ 42 ] The table reveals that information was provided in early March 2022 to the effect that Ms. G’s daughter might be able to take care of the child. Calls were made on March 1 and 2, 2022, to G and her spouse to obtain their daughter’s contact information, but they received no response. According to the table, there was no follow-up. [ 43 ] Two “general calls” were made on March 7 and 8, 2022, for Region 2.

Nothing in the table indicates that such a call was also made for Region 1. [11] [ 44 ] In addition, these “general calls” and a verification conducted with the mother to find out if she knew anyone who could take the child in were made after the permanency plan committee of four persons from the DYP decided the following on March 3, 2022: “ We will proceed to the child’s placement in the South”. [Emphasis added.] [ 45 ] According to the table, a request was submitted to the Centre intégré de santé et de services sociaux de Region 1 to find a foster family. No explanation was provided as to why.

The most plausible explanation is that there seems to be a network of contacts among DYP caseworkers and former DYP staff members, because the couple to whom the child was entrusted includes a man who worked for the DYP in [Territory] for three years. [ 46 ] No further steps were taken to find a foster family in [Territory] for five months, until August 30, 2022.

The steps taken at that time were unsuccessful. [ 47 ] As counsel for the child noted, not only were no specific steps taken with a particular family during this five-month period, but there were also not even any “general calls” made. [ 48 ] The obligation to inquire is a continuous obligation, however, as Lucille Godin J.C.Q. noted in Protection de la jeunesse – 208153 . [12] Nevertheless,

section 16, paragraph 3 stipulates that the opportunity to be placed with a member of his family must be assessed regularly . This is a right that belongs to the children . That’s why on October 28 th 2020, the Court recommended to the Director to do so. It should be done during the present order as well.

Should the situation be revised by the tribunal, the Director will have then to provide the Court with the evidence of all the necessary means taken to assure this child’s right. [Emphasis added.] [ 49 ] [Social Worker 1] , the applicant’s director of multiservice programs, testified that the DYP checked with the seven communities of Region 2 (the “general call”) but that they were not able to find a foster family due to the fact, she said, that it is more difficult to place a baby, considering the care required and the cost that such care entails. [ 50 ] That being said, [Social Worker 1]’s statement regarding the scarcity of foster families for Inuit babies instead shows the importance of doing everything possible to try to find a foster family in [Territory] and avoid placing an Inuit child in the south of Quebec. [ 51 ] The applicant filed a protocol on the placement of children in foster families outside of [Territory], prepared by the Centre de santé et de services sociaux [Designation]. [13] [ 52 ] [Social Worker 3], the DYP’s interim assistant director, testified on the protocol.

She has been working in the North for a dozen years. Although she does not have personal knowledge of this case, she is aware of the protocol and in fact participated in its preparation. [ 53 ] The protocol includes a [ translation] “decision-making algorithm”, in which the order of priority for the child’s placement is described as follows: [ translation ] 1. Significant person; 2. Accredited foster family; 3. Calls / Research in all Region 1 communities; 4. Request for inter-institutional transfer, prioritizing: (

i) An environment where siblings are present, or an environment permitting the preservation of cultural identity; (ii) Other Indigenous environments; (iii) Other. 5. Reference to the protocol on the placement of children outside of [Territory]. [ 54 ] The Court notes that the protocol indicates that it was updated on January 25, 2021, such that, among other things, no reference

is made to the significant amendments to the Y.P.A . in connection with Indigenous children that came into force on April 26, 2022. [ 55 ] In fact, the protocol refers to

section 2.4 of the Y.P.A. , which has since been repealed. It also refers to

section 3, the last sentence of which read “In the case of a Native child, the preservation of the child’s cultural identity must also be taken into account”. This part of

section 3 has also been repealed. [ 56 ] Concerning the federal Act , we can find section 10(2) which reads like this: Primary consideration

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture. [ Emphasis added.] [ 57 ] When asked about the factors set out in [ translation ] “subsection 3”, Ms. [Social Worker 3] referred to the last sentence of

section 3 of the Youth Protection Act . This is concerning, especially since the factors set out in subsection 3 of

section 10 of the federal Act are numerous. [14] [ 58 ] Subsection 2 of

section 10 is the only reference made to the federal Act in the protocol. [ 59 ] In fact, the protocol contains mostly administrative instructions applicable in situations where a child is placed in a family outside of [Territory]. [ 60 ] When questioned by the Court, Ms. [Social Worker 3] said that ultimately the goal is to find the best person to take the child in charge. [ 61 ] As counsel for the child emphasized, she added the following: “The child is not a native before what he needs” and “a child is a child, the culture won’t go first”. [ 62 ] This answer is shocking and shows the lack of consideration for the cultural aspect of the child. [ 63 ] Ms. [Social Worker 3]’s reasoning is simplistic.

Everyone agrees that the primary consideration is the interest of the child. But the concept of the interest of the child must be adapted to Indigenous children so as to foster cultural continuity, applying a holistic approach. [15] [ 64 ] In KA NIKANITET : Pour une pratique culturellement sécuritaire de la protection de la jeunesse en contextes autochtones , authors and social workers Christiane Guay, Lisa Ellington, and Nadine Vollant state the following: [ translation ] In Quebec, the YPA is organized according to principles based on North American concepts of family, education, and social intervention.

Consequently, the Quebec Act leaves little room for different cultural concepts and remains insensitive to the socio-historical realities discussed in the first part of this book. These principles include the interest of the child, parental responsibility, attachment, permanence, and diligence. … First, one of the premises of the YPA is that every child is a subject of law who benefits from State protection due to his or her age and vulnerability. One of the principles arising from this premise is the primacy of the interest of the child.

The definition of the interest of the child has evolved over time, but it has become the paramount consideration in all decisions made with respect to a child (Clouet, 2014), whether in family law or youth protection. That means that ultimately, the interest and well-being of the child prevail over the rights of the child’s parents ( s. 3 , YPA ). The State can therefore impose measures on parents without their consent.

Generally speaking, it can be said that decisions made in regard to children in Quebec convey a rather individualistic vision of the interest of the child, which is markedly different to the manner in which it is perceived within First Nations communities and Inuit villages.

For example, the Declaration of the Rights of First Nations Children provides that the “interest of the child and respecting the child’s needs and rights includes the interest of the family, of the community, and of the Nation, and particularly emphasizes the protection of identity, culture, traditional activities and language” ( DRFNC , s. 12). This definition reflects the values and the foundations of the family for Indigenous peoples discussed in

Chapter 1. For Indigenous peoples, the child is not considered a separate entity from his or her family and community. On the contrary, the child develops his or her autonomy and identity through the connections he or she makes with all the members of his or her family and with the traditions of his or her community (International Bureau for Children’s Rights, 2015). From an Indigenous perspective, the interest of the child must be understood as a comprehensive and holistic concept, which always includes an identity aspect.

Thus, preserving the child’s cultural identity and maintaining connections with his or her family and community of origin, as well as with his or her language and territory, are also factors to consider in determining the interest of an Indigenous child. [16] [ 65 ] It is clearly from the perspective described in this passage that the legislature added sections 131.1 et seq. of the Y.P.A .

However, the actions of the youth protection workers (and the courts) must also reflect this reality. [ 66 ] Ms. [Social Worker 3]’s remarks ([ translation ] “the goal is to find the best person”) are concerning in view of her functions and her position of hierarchical authority over the other employees. 4.1.2 Contact between the child and his mother, grandmother, family, and community

[ 67 ] There has been no contact between the child, his mother, his grandmother, his family, and his community since his placement in the south of Quebec. [ 68 ] In this respect, the DYP adopted a completely unacceptable and paternalistic attitude. [ 69 ] In fact, the DYP flagrantly breached its own protocol on the placement of children in foster families outside of [Territory], [17] which provides the following: [ translation] STEP 7: Organize contact between the child and his family All employees must ensure that a first contact in [Territory] with the family and the child is organized quickly following the youth’s placement.

Youth protection asks that every child placed outside the territory of [Territory] go to his or her community of origin at least two (2) times a year, with the possibility of increasing the number of annual visits, except in exceptional circumstances. … It is important to note that the caseworker assigned to the file must send the cultural identity bulletin to every foster family preparing to welcome an Inuit child or who has an Inuit child in its care.

This bulletin seeks to ensure that foster families are officially informed of the procedures to follow for visits and contact between the child and his or her family. The employee must ensure that the foster family undertakes to comply with this agreement with youth protection. [Bold emphasis in original; underlining added.] [ 70 ] The only “contact” that the DYP caseworker offered the mother was Facetime contact. That is ridiculous.

The baby is only a few months old, and it is easy to understand that Facetime contact is of no value. [ 71 ] During her testimony, however, Ms. [Social Worker 3] refused to admit that such contact was useless; she tried to justify it and ended by saying that it could allow the child to recognize the mother’s voice … [ 72 ] As a result of the DYP’s actions, there are reasonable grounds to believe that the DYP did not want the child to have contact with his mother, grandmother, family, or community so that it could ultimately justify the child’s long-term placement in the foster family in the south of Quebec. [ 73 ] No first contact in [Territory] with the family and the child was organized quickly following the child’s placement.

Not only was it not organized quickly, but it was not organized at all. [ 74 ] C, one of the two foster family parents, confirmed that the DYP never asked him or offered to travel to the North with the child. [ 75 ] Are we to understand that the “cultural identity bulletin” referred to in the protocol was not sent to him either? [ 76 ] The mother did her best to express her distress and her desire to see her child, but it was in vain, considering the closed position taken by the DYP. [ 77 ] The supplementary report dated August 10, 2022, [18] states the following: “ On April 6 , 2022, the mother called us asking about news about her son and to see him ”. [Emphasis added]. [ 78 ] The report indicates that an appointment was scheduled for the next day but that the mother did not attend. [ 79 ] Despite the DYP’s knowledge that the mother wanted to see her child, no steps were taken to follow up with her. [ 80 ] According to the report, it was only two months later, on June 9, 2022, that the caseworker spoke to the mother while she was in a car. [ 81 ] The caseworker says that she proposed a Facetime meeting between the mother and her son but that the mother refused, “stating that she wanted to see her son now”.

That was her basic right. The caseworker added: “when we explained the reality of the situation,” the mother became completely disorganized. It is understood here that she found out that her son was in the south of Quebec. [ 82 ] The caseworker placed the mother in an impossible situation. She faulted her lack of cooperation to justify the absence of contact with the child, whereas she should have understood that the mother’s lack of cooperation arose largely from the fact that she could not see her child. [ 83 ] To better understand the mother’s reaction, let us imagine the opposite situation.

A baby who is only a few months old, living in Town C, is removed by the DYP from his or her non-Indigenous maternal environment and placed in an Inuit foster family in [Territory], more than 1,600 km aerial distance away, [19] and the only “contact” offered to the mother is Facetime contact.

Obviously, this would be considered scandalous. [ 84 ] In addition, the DYP is aware that the mother was herself subject to the DYP’s intervention in her childhood, such that obtaining her cooperation is potentially more problematic. [ 85 ] In short, it is easy to understand that for a mother (and a grandmother) whose child is placed with White people in the south of the province over 1,600 km away, the situation is tragic and very painful. To deny them contact other than through FaceTime with the child for several months is cruel and unacceptable.

What is more, it is a flagrant violation of the rights of the child.

4.1.3 Cultural continuity [ 86 ] Step 8 of the placement protocol [20] provides the following: [ translation] STEP 8: Implement means to preserve the child’s cultural identity It is crucial for Inuit children living outside of [Territory] to maintain a cultural connection with their community and their culture of origin . To maintain this connection, every foster family living outside of [Territory] has an obligation to implement concrete means to ensure this preservation of cultural identity. This preservation is essential so that the child develops a sense of belonging and identity as an Inuk.

To that end, the caseworker assigned to the file must prepare an intervention plan in collaboration with the Youth Centre caseworker from the territory where the child is located within one (1) month following the child’s placement .

The plan must identify a minimum of three (3) means that the foster family will implement to ensure that the child’s cultural identity is maintained. … The foster family must be informed of the means determined to preserve the child’s cultural identity. [Emphasis added.] [ 87 ] Here, in addition to the absence of contact, the DYP violated the fundamental principles of the Act and its own protocol by not taking any steps to establish an intervention plan to preserve the child’s cultural identity. [ 88 ] In short, there was a complete and absolute rupture between the child and his mother, his extended family – including his grandmother, his community, and his Inuit origins. [ 89 ] Ms. [Social Worker 3] tried clumsily to justify herself by saying that the protocol referred to the “intervention plan” in connection with the applicable measures.

That explanation has no value. [ 90 ] Ms. [Social Worker 3]’s way of seeing things is in fact consistent with her perspective expressed at the outset, whereby the objective was to find the best person . In short, this perspective disregards the issue of the best environment for the child in connection with his cultural identity. [ 91 ] The DYP’s position that they acted correctly in this child’s case is worrisome.

It suggests that this manner of proceeding is the norm, and that consequently other very young children have been subjected to the same treatment, although Ms. [Social Worker 3] admits that visits with the family should have taken place but does not explain why no caseworker took steps in this regard. [ 92 ] It is also necessary to seriously question the intentions of the DYP, whose actions had the consequence of not favouring the child’s bond with his mother, his extended family including his grandmother, and his community, while consolidating his bond with his current foster family.

This, like the absence of contact, is likely to favour the child’s long-term placement in this foster family . [ 93 ] The DYP’s knowledge of the impact of its actions on the potential rupture of the bond is undeniable.

To suggest otherwise is akin to concluding that the DYP is unaware of basic child development principles. [ 94 ] In fact, the way the DYP acted shows an intention to favour or wilful blindness to the possibility that the child placed in the current family could remain there ideally until he reaches full age, without concern for the important legal considerations with which it must comply in regard to Indigenous children. [ 95 ] Due to the number and seriousness of the encroachments of rights committed by the DYP in this case, and considering the DYP’s denial in this regard, we can seriously consider the systemic nature of these violations of the Act , more particularly in connection with young Inuit children placed outside of [Territory] with White people, especially since several questions remain unanswered. [ 96 ] The principal caseworker in this case, [Social Worker 2], began her testimony on September 8, 2022.

When questioned by the Court about certain allegations and the nature of contact proposed to the mother, the caseworker became emotional, and the Court suggested she takes a break.

When the hearing resumed, the caseworker was absent, and counsel for the DYP asked that her testimony be deferred to a later time. [ 97 ] It would have been preferable for her testimony to continue, but the case was nevertheless adjourned to early October to allow the DYP to comply with a request made by the Court and so that a written application could be prepared and sent to the other parties regarding the admissibility of some new evidence in connection with the sexual offences. [ 98 ] However, when the hearing resumed on October 6, 2022, Ms. [Social Worker 2] was absent and therefore could not complete her testimony, [21] and none of the parties were able to cross-examine her. [ 99 ] The Court finds it necessary to say that this situation is troubling and potentially systemic and that the intervention of the Commission des droits de la personne et des droits de la jeunesse appears necessary.

This will in fact be part of the “corrective” and “remedial” measures ordered by the Court and set out in further detail in the conclusions of this judgment. [ 100 ] In this regard, some of the measures ordered by the Court will apply to future employees of the DYP because it is foreseeable that the child will be subject to measures under the Y.P.A. for several months. 4.2 The applicable measures

4.2.1 The facts underlying the declaration of endangerment [ 101 ] Although the situation of endangerment is admitted by the parties, it is useful to describe the facts underlying it. [ 102 ] As mentioned above, the father is violent with the mother and was in fact imprisoned from April to August 2021 and for a few months between May and September 2022. [ 103 ] According to the police incident reports, the following incidents occurred: • On February 3, 2021, the father beat the mother, who was in very bad shape after having to jump from the second floor of the building.

She was sober, but the father was not when he was arrested; • On April 23, 2021, the mother called the police station in the afternoon. She was crying because she was afraid of the father, who had threatened to kill her the previous evening after accusing her of cheating on him. He scratched her shoulders with his nails and punched her lip on the left side; • The father was in prison from April to August. When he was released, and following the birth of the child, he was in regular contact with him; • On December 17, 2021, the mother went to the father’s home to get the baby, and she put him in her amautik .

The father yelled at her because he wanted wine, and he threatened her. He kneed her some twenty times and hit her in the face. She made some calls to find alcohol. They went to the co-op, and someone brought her home. During this assault, the father said that it would not bother him if the child was not breathing. The mother told the police officers that she was afraid of the father; • On December 23, 2021, the accused went to see the mother because he wanted alcohol. The father’s mother was present and consumed a large quantity of alcohol with the father.

The father took his mother’s car keys, and the mother got in the car with him, with the baby in her amautik . The father accused her of stealing alcohol from him and was violent.

According to the mother, she had left the baby with the father two nights earlier, and the father subsequently refused to give him back to her, so she stayed with him; [ 104 ] Following the incident on December 23, the DYP agreed with the mother that she and the child would go live with relatives in Village B. [ 105 ] On December 27, the father’s mother contacted the DYP to explain that the mother had left the child at her home without any food and that he was crying because he was hungry.

She said that it was not the first time this had happened. [ 106 ] The mother stayed in Village B until January 4, 2022. [ 107 ] Upon her return, the DYP proposed a 30-day placement to assess the situation. [ 108 ] As no place was found to take in the child, it was agreed that the child would remain with the mother and the maternal grandmother for the night. Later, however, the father’s mother received a call informing her that the child had been left on the father’s mother’s doorstep. The mother denies this, and the DYP adduced no specific evidence on the subject.

In any event, the child was at the father’s mother’s home. That is when emergency measures were implemented, and the child was removed from that environment. [ 109 ] On January 6, 2022, the mother met with the DYP to discuss a provisional agreement. During the discussion, she became aggressive and was not cooperating. [ 110 ] The DYP refused to allow her to see her son, but the mother nevertheless went into the room where her child was. She picked him up aggressively, grabbing him by his clothing and turning him around in her arms.

Police assistance was requested as the mother made suicidal remarks. [ 111 ] Since that time, the mother has been reacting to the DYP’s intervention and the fact that her child was removed from her care. [ 112 ] On January 10, 2022, she went to the DYP offices and said she had COVID-19 and that she would transmit it to them. She again made suicidal remarks. [ 113 ] Two days later, the mother apparently went to the father’s home and threw rocks at his window. On the same day, a caseworker spoke to the mother by telephone. The mother said she wanted her son or she would commit suicide.

The child was finally placed with the maternal great-grandmother on February 11, 2022. Five days later, however, the maternal great-grandmother withdrew her commitment as the mother did not comply with the conditions of the placement. [ 114 ] On February 21, 2022, the mother showed up at the police station naked and intoxicated by alcohol.

The police had to keep her for the night so that she could sober up. [ 115 ] On February 25, 2022, she went to the DYP office and demanded to have her son back while uttering threats. [ 116 ] On February 28, 2022, the mother confirmed that she had ended her relationship with the father because he had physically assaulted her again. [ 117 ] The child was placed in a non-Indigenous foster family in the south of the province in March 2022, and there was therefore no interaction between the mother and the child until September 2022. 4.2.2 The placement of the child

[ 118 ] Due to the mother’s difficulties, everyone agrees that placing the child with her is not appropriate. [ 119 ] The mother suggested that the child could stay with the maternal grandmother. [ 120 ] The DYP asks for an extension of the placement in the foster family where the child is currently, with a male couple living in Town C. [ 121 ] One of them previously worked for social services in [Territory]. [ 122 ] It seems that there is a prolific family network for the placement of Inuit children, as the mother of the foster father who worked in [Territory] also worked there and has a two-year old Inuit child who has been placed in her home until the child reaches full age.

The foster father’s aunt, who also lives in Town C, has a six-year old Inuit child placed with her until the child reaches full age. [ 123 ] The foster father’s testimony reveals that he is attached to the child and takes care of him properly. For the moment , it is the most appropriate solution for the child. [ 124 ] When asked about his openness to a short- or long-term placement, he answered positively.

It is clear, however, that he and his spouse are above all seeking the placement of an Inuit child with them until the child reaches full age, like his mother and his aunt previously obtained. [ 125 ] The alternative proposed by the mother raises many questions, and the evidence is limited. [ 126 ] At the outset, it should be noted that the mother did not testify because she left the courtroom in reaction to the caseworker’s testimony and did not return. [ 127 ] The evidence reveals that the maternal grandmother, who works for the social services centre, has all the skills to take care of the child, despite the DYP’s assertions.

The DYP relies on the fact that the maternal grandmother was not able to protect the mother from the violence she apparently suffered as a child, although there is no evidence to support such a statement. [ 128 ] On the other hand, it is admitted by all that a three-year-old child was the victim of an incident of sexual touching in February 2021 by G, the grandmother’s son who lives in the family home, while the grandmother was in Town D. [ 129 ] Also, the applicant claims that the grandmother did not intervene with respect to her son G’s sexual abuse of his daughters B and H when they were younger. [ 130 ] However, the video statement made by the grandmother to the police reveals that G never admitted those facts to her, nor was he charged with them.

This allegation by the DYP has no foundation in the evidence. [ 131 ] Actually, part of the grandmother’s testimony during her video examination concerns the fact that her husband was convicted of sexual assault in 2017 and sentenced to five months in prison. The maternal grandmother said that she did not remember this, which raises some questions. However, that case did not concern an offence committed against a child. [ 132 ] Counsel for the child aptly referred to a judgment rendered by Peggy Warolin J.C.Q., in which she found that there was no risk of sexual abuse.

The father had been convicted of sexual assault against a young adult, and he was subject to the obligation to register his name as a sex offender. There was no risk because the conviction dated back several years, among other things. [22] [ 133 ] The Court notes that the DYP conducted an assessment of the maternal grandmother as a foster family , [23] but the child’s placement with the maternal grandmother is not considered a placement in a foster family.

Therefore, if we can draw inspiration from these rules, non-compliance is not an impediment. [ 134 ] The assessor had a discussion with the maternal grandmother and consulted the SOQUIJ directory to determine whether the child’s maternal grandfather and his uncle G had been convicted of sexual offences.

He concluded that due to the presence of such convictions, “this is an automatic refusal”. [ 135 ] With respect to the assessment of the physical premises, he wrote: “it was not needed due to the criminal records”. [ 136 ] We therefore know little about the environment. [ 137 ] It goes without saying that if the grandmother’s son G remains in the residence, it is not appropriate for the child to be placed there. [ 138 ] The grandmother proposed that her son go live with another one of her sons, but neither of them testified in this regard. [ 139 ] As for the child’s mother, the grandmother suggested that she go live with another one of her daughters, but no concrete steps were taken in this regard either. [ 140 ] In the circumstances, the option proposed by the mother cannot be considered at this time. [ 141 ] Accordingly, the only realistic alternative is placement in a foster family. [ 142 ] The Court notes that the time limits are running and that a bond is being formed with the current foster family.

At the same time, the actions (or inaction) of the DYP have not helped maintain the bond between the child and the mother, family, and community. [ 143 ] The Court is of the view that a placement ending the week of March 27, 2023, is the appropriate time limit in the circumstances. A date will be reserved during that week for the case to be heard.

[ 144 ] The Court notes that a serious issue will be raised at that time if the DYP intends to seek the placement of the child until he reaches full age. Indeed, there is no maximum placement period set out in the Act respecting First Nations, Inuit and Métis children, youth and families . [ 145 ]

Section 4 of the federal Act provides: For greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act . [ Emphasis added.] [ 146 ] Also, although it is not currently in force,

section 131.12 Y.P.A . shows the intention of the Quebec legislature concerning

section 91.1 Y.P.A . and its application to Indigenous children: The total period for which an Indigenous child may be entrusted to an alternative living environment is not limited by sections 53.0.1 and 91.1 if a family council has been formed. [ 147 ] That being said, this issue can be debated in due course. 4.2.3 Minimum contact between the child and his family [ 148 ] It is essential not to perpetuate the DYP’s line of thinking and actions over the past few months with respect to contact.

Contact must be extensive and sufficient to promote the child’s cultural continuity. [ 149 ] Thus, for the moment, in-person contact between the child and his mother and maternal grandmother must take place for a minimum of five consecutive days a month. Such contact will take place in Town D or Town C and in Village A or Village B, on an alternating basis.

The child is authorized to sleep over at the grandmother’s home. [ 150 ] In this regard, the Court orders the DYP to assess the grandmother’s living environment, taking into account the comments the Court made above on the subject and to send the assessment to the parties (including the maternal grandmother) at least ten (10) days before the next hearing. [ 151 ] Moreover, if the child sleeps over at the grandmother’s home, her son G must not be there. [ 152 ] For the time being, contact between the mother and the child is permitted with the DYP’s supervision.

However, it is premature to allow her to sleep over at the grandmother’s home if the child is there.

Accordingly, any sleepovers must take place without the mother being present. [ 153 ] The DYP may make unannounced visits to the grandmother’s home. 4.2.4 Psychological assessment of the mother [ 154 ] The DYP asks that a psychological assessment of the mother be conducted to assess her parenting skills, among other things. [ 155 ] The Court agrees with this proposition on the condition that the assessment is conducted by a psychologist who is familiar with Indigenous culture. [ 156 ] In addition, a copy of this judgment should be given to the professional to provide him or her with a portrait of the situation. 5.

THE STATUS OF THE BIOLOGICAL FATHER [ 157 ] After the hearing and before receiving the parties’ written arguments, the Court considered the status of the biological father for the purposes of applying the Y.P.A. and invited the parties to provide the Court with their arguments on the subject. [ 158 ]

Section 1 (

e) of the Y.P.A. defines the term “parents” as “the father and the mother or the parents who are not deprived of parental authority and any other tutor”. [ 159 ] At the outset, it should be noted that all the parties acknowledge that B is the child’s biological father and that it was further to the declaration of birth made by mother accompanied by a representative of the DYP that the words [ translation ] “father undeclared” were entered. [ 160 ]

Article 523 et seq . of the Civil Code of Québec state: 523. Paternal filiation and maternal filiation are proved by the act of birth, regardless of the circumstances of the child’s birth. In the absence of

an act of birth, uninterrupted possession of status is sufficient. 524. Uninterrupted possession of status is established by an adequate combination of facts which indicate the relationship of filiation between the child and the persons of whom he is said to be born. 525. A child born during a marriage, civil union or de facto union or within 300 days after its dissolution or annulment or, in the case of a de facto union, its end, is presumed to have as the other parent the spouse of his mother or of the parent who gave birth to him.

… 526. If maternity or paternity cannot be determined by applying the preceding articles, the filiation of a child may also be established by voluntary acknowledgement. 527. Maternity is acknowledged by a declaration made by a woman that she is the mother of the child. Paternity is acknowledged by a declaration made by a man that he is the father of the child. 528 . Mere acknowledgement of maternity or of paternity binds only the person who made it. [ 161 ] Marie Pratte J.C.Q. stated the following in Protection de la jeunesse – 13242 : [24] [ translation ] [124]

Section 1 (

e) of the Youth Protection Act defines the terms parents as follows: “ the father and the mother of a child or, where applicable, any other person acting as the person having parental authority” . [125] As the civil law is the backdrop to youth protection law, the Youth Protection Act must obviously be consistent with the Civil Code of Québec . The words father and mother used in this provision must therefore be given their legal meaning, that is, the father and the mother of a child are those who are legally recognized as such under

article 523 et seq . of the Civil Code of Québec . … [ 162 ] More recently, in Protection de la jeunesse – 192882 , [25] Pierre Hamel J.C.Q. granted the status of parent to the biological father even though his filiation did not appear on the act of birth. In that case, the mother, the DYP, and counsel for the child did not object to the fact that the Court considered the biological father to be the child’s father. [ 163 ] In this case, as mentioned above, everyone acknowledges that B is the biological father.

Counsel for the child is of the view that he should be recognized as such for the application of the Y.P.A. , while counsel for the mother did not respond to the Court’s request for clarification other than to say that the mother’s position has always been to recognize Mr. B as the biological father. [ 164 ] The DYP’s argument against granting him the status of parent for the application of the Y.P.A. is based primarily on the fact that he is not declared on the birth certificate.

With respect to possession of status, it argues that the evidence is insufficient and that there are not enough facts indicating the relationship of filiation with Mr. B. [ 165 ] With respect to the presumption of paternity, the DYP is of the view that there is no evidence that the mother was married or in a civil union with him when the child was born. The applicant is correct in this regard, except that she fails to consider the amendment to

article 525 of the Civil Code of Québec , which came into force in June 2022. The amendment adds “ de facto union”, such that “[a] child born during a … de facto union or within 300 days after … its end, is presumed to have as the other parent the spouse of his mother or of the parent who gave birth to him”. [ 166 ] With respect to voluntary acknowledgement, the applicant submits that such acknowledgement cannot have an impact on his legal status at this time and that the steps taken for a declaration of paternity must be made before the Superior Court.

She refers, inter alia , to the following passage from the judgment rendered on June 20, 1986, by Gontran Rouleau J.S.C. in AZ-50936943 . [ translation ] A person can claim to be the biological father, but if filiation is not proved by the act of birth, confirmation must be obtained by judgment further to valid evidence.

Legally, the child at issue in this case has only one parent, a mother, because the act of birth provides no surname or given name of a father. … In sum, the respondent does not have the power to grant G.L. the status of parent, that is, of the child’s father, within the meaning of the Youth Protection Act or the relevant provisions of the Civil Code . [26] [ 167 ] The Court notes that in that case, [ translation ] “no evidence of possession of status was made in accordance with the provisions of

article 573 C.C., and no voluntary acknowledgement established filiation in accordance with the provisions of

article 577 et seq. C.C.”. [27] [ 168 ] The situation here is very different, and counsel for the child provides a good

summary of the facts in his written arguments. The child was born on […], 2021. Before that, two incidents of conjugal violence involving the mother and the biological father occurred in February and April 2021. [ 169 ] Following the birth of the child, the mother and the child stayed with the maternal grandmother, and the biological father visited them. [ 170 ] Due to previous incidents of violence, the biological father had criminal conditions prohibiting him from being in contact with the mother except to see his child. [28]

[ 171 ] The evidence presented by the applicant also reveals that the mother continued to see the biological father and that she frequently brought him to the home of the biological father’s mother, where she would leave the child. [ 172 ] There were also incidents between the mother and the biological father in December 2021, while they were a couple. The biological father was later detained until August 2022.

During the mother’s scheduled visit with the child in September 2022, he came to the DYP office with her, and the caseworker present let him in to have contact with the child (ignoring the prohibition ordered by the Court). [ 173 ] In addition, the mother’s statement dated December 23, 2021, prepared by the Kativik Regional Police Force (exhibit D-7), indicates the following: R4 : Two nigths ago, I brought my baby to him so my baby can see his father … Q5 : What is the nature of your relationship with B R5: He is back from jail since august. As soon as he was back, he wanted me to go back with him.

I was in couple with him from august to a week ago. A week ago he beat me up and I broke up with him. [Emphasis added.] [ 174 ] In short, regardless of the perspective from which we analyze the situation, whether possession of status, presumption of paternity, or acknowledgement, the only conclusion is that B meets the criteria to be recognized as the father for the application of the Y.P.A . [ 175 ] It would certainly be useful, as counsel for the child suggests, for him to apply to the Superior Court to obtain such acknowledgement.

However, the Court notes that the Superior Court sits infrequently in [Territory] in civil matters, and only in Village E, as the administration of the files takes place at the Town F court office. It is therefore unrealistic to think that such steps can be taken. [ 176 ] That being said, acknowledging the status of father for the application of the Y.P.A . does not mean that the status is automatic.

Here, in addition to the fact that he is the biological father, several items of evidence support the Court’s conclusion. [ 177 ] The Court also agrees with counsel for the child’s argument that it is in the interest of the child for the father to be recognized as such because of the various provisions of the Y.P.A . that aim to keep the child in his family environment. [ 178 ] Counsel cites the following excerpt from an

article written by author Mtre Claude Boisclair. [ translation ] The “parent” plays an essential role in the application of the Youth Protection Act . The parent’s absence would paralyze the entire voluntary measures process . The parent’s role is also important in the judicial process. The Act was designed to protect the child when his or her health or development is in danger; it does not seek to remove the “parent” from the child’s life, except in situations where returning the child to his or her parents has, for all practical purposes, become unlikely as a result of their lack of cooperation. The first paragraph of

section 4 confirms the undeniable role of the parents by stating that decisions made in regard to the child must contemplate the child’s remaining in his or her natural environment, and if the child must be removed, the second paragraph of

section 5 provides that every effort must be made to return the child to his family, where possible. The participation of the “parent” is the only realistic means of achieving this goal. Otherwise, how can the parent be convinced to accept the help offered if he or she is not personally involved. [29] [ 179 ] Author Mario Provost also notes the importance of the parents’ involvement in the protection process. [30] [ 180 ] The acknowledgement of the status of father for the application of the Y.P.A. has significant consequences.

Among other things, the parents must be consulted on the application of immediate protection measures, and their consent is required for the application of voluntary measures. They must be formally served notice when proceedings are filed before the Court.

Reports and exhibits must also be served on them. [ 181 ] Last, the father and the mother may also seize the judicial authorities if they disagree with a decision made by the DYP. [ 182 ] As counsel for the child noted, the acknowledgment of B’s status of father for the purpose of the application of the Y.P.A. is not an acknowledgment or an admission that he has good parenting skills. But that is not the question. [ 183 ] In its conclusions, the Court will therefore include terms regarding B’s status of father for the purpose of the application of the Y.P.A .

FOR THESE REASONS, THE COURT: [ 184 ] DECLARES the security and development of the child X, born on […], 2021, to be in danger; [ 185 ] ORDERS the child’s placement in a foster family for a period ending on March 31, 2023, at the latest; [ 186 ] ORDERS that in-person contact between the child and his maternal grandmother and his mother be supervised by the Director of Youth Protection with respect to the frequency and terms and with respect to the presence of a third person if deemed necessary; minimum contact is as follows: • Contact with the mother and/or the grandmother every month for a duration of five (5) consecutive days, alternating between

Town D (or Town

C) and [Territory ]; [ 187 ] AUTHORIZES the child to sleep over at the maternal grandmother’s home, on condition that G is not present at any time while the child is in the home; [ 188 ] AUTHORIZES , pursuant to the DYP’s assessment, the mother to be present in the maternal grandmother’s home when the child is there, in accordance with the terms, if any, to be determined by the DYP; [ 189 ] AUTHORIZES the DYP to make unannounced visits to the maternal grandmother’s home when the child is there; [ 190 ] ORDERS the DYP to complete the home assessment in regard to the possibility of entrusting the child to the maternal grandmother and ORDERS that the report be sent to the parties at least ten (10) days before the next hearing date; [ 191 ] ACKNOWLEDGES B as the father of the child for the purpose of the application of the Youth Protection Act ; [ 192 ] PROHIBITS all contact between the child and his father, except in accordance with the terms that may be fixed by the DYP; [ 193 ] ORDERS the mother and the father to remain sober at all times during contact with the child; [ 194 ] ORDERS the mother to submit to a psychological assessment to determine her parenting skills, conducted by a professional who is familiar with Indigenous culture; [ 195 ] WITHDRAWS the exercise of certain attributes of parental authority from the parents and GRANTS it to the maternal grandmother, in particular with respect to health, attendance at daycare, travel, and obtaining a passport; [ 196 ] ORDERS the DYP to provide aid, counselling, and assistance to the child and the child’s parents for a period of twelve (12) months; [ 197 ] ORDERS the mother to follow the advice and recommendations of the DYP with respect to the development and/or improvement of her parenting skills, according to the terms, if any, to be established pursuant to the psychological assessment; [ 198 ] ENTRUSTS the child’s situation to the Director of Youth Protection for the execution of this judgment. [ 199 ] ORDERS every peace officer to cooperate in the execution of this judgment, if required by the Director of Youth Protection; [ 200 ] ORDERS the DYP to serve the English version of this judgment on the father once it is filed in the court record; [ 201 ] FIXES the hearing of the application under

section 95 Y.P.A. for March 28, 2023, in Village A, and ORDERS the court clerk to reserve a period of time for this purpose immediately and to enter it on the roll; WITH RESPECT TO THE ENCROACHMENT OF RIGHTS, THE COURT: [ 202 ] DECLARES that the rights of the child set out in sections 3 , 4 , 4.3 , 4.4 , 7 , 131.1 , 131.3 , 131.4 , and 131.5 of the Youth Protection Act and sections 9(1) , 9(2) , 10(1) to 10(4) , 11 , and 16(3) of the Act respecting First Nations, Inuit and Métis children, youth and families have been encroached upon by the Director of Youth Protection of the [Designation]; WITH RESPECT TO CORRECTIVE AND REMEDIAL MEASURES, THE COURT: [ 203 ] ORDERS the DYP to continue taking steps to find an Inuit foster family that could take the child in; [ 204 ] ORDERS the DYP to implement an intervention plan, in particular addressing the preservation of the child’s cultural identity; [ 205 ] ORDERS the DYP to diligently review and update its protocol on the placement of children in foster families outside of [Territory] within thirty (30) days; [ 206 ] ORDERS that the protocol then be sent to all its employees along with instructions that they are to take formal notice of said protocol; [ 207 ] ORDERS that all new employees are to be given the new version of the protocol and the instructions to take formal notice of it; [ 208 ] RECOMMENDS that a training session on Inuit history and culture be implemented by the Department of Youth Protection and given to all its current and future employees; [ 209 ] ORDERS the court clerk to send a copy of this judgment immediately by registered mail to the Commission des droits de la personne et des droits de la jeunesse along with a letter indicating that, at the Court’s request, they are asked to take formal notice of this judgment and more specifically the conclusions concerning it; [ 210 ] STRONGLY RECOMMENDS that the Commission des droits de la personne et des droits de la jeunesse conduct an investigation in view of the potentially systemic nature of the process that has led to the placement of Inuit children in non-Indigenous families outside of [Territory] and that such investigation cover a minimum period of two (2) years preceding the date of this judgment. __________________________________ JACQUES LADOUCEUR, J.C.Q.

Mtre Justine Carli For the applicant Mtre Michaël Pereira For the child Mtre Angèle Tommasel For the mother Date of hearing: September 8 and 9, October 6, 2022