2022 QCCQ 14262, 2022 QCCQ 14262

Protection de la jeunesse — 229143 2022 QCCQ 14262 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 635-41-000569-142 DATE: December 12, 2022 (written judgment only) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2014 [SOCIAL WORKER 1] Applicant and A Mother and B Father And COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE Impleaded party And C Impleaded party And DPJ DU CIUSSS A Impleaded party ______________________________________________________________________ MODIFIED JUDGMENT (Section 95 of the Youth Protection Act ) ______________________________________________________________________ WARNING: The Youth Protection Act (Y.P.

A) 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.). CONSIDERING the decision rendered on November 28, 2022; CONSIDERING the mention that the DYP worker must be present for the first contact between the child and Mr D had been forgotten in the paragraph [270] THE COURT modifies the judgement to add this mention and to make it conform to paragraph [206].

TABLE OF CONTENTS Context ......................................................................................................................................... 3 History of the Situation ........................................................................................................... 3 Facts .............................................................................................................................................. 4 1- X’s specific situation ................................................................................................. 5 2- The organization of the transfer from Mrs.

C's place to the new foster family 5

3- January 2020 - Options Looked by the DYP as Provisional Measures ....... 7 4- Communication Between Mrs. C and the DYP After the Transfer ................ 7 5- Contacts between X and Mrs. C following the transfer ................................... 8 6- The options looked by the DYP as final measures ........................................... 9 7- Situation since X’s return at home in March 2020 ............................................ 9 8- Relation between Mrs.

C and the biological parents ..................................... 11 9- Steps Taken to Maintain the Cultural Heritage ................................................ 11 10- Mrs.

E, foster mother suggested by the parents ............................................. 12 11- January to April 2021 – Reopening of the inquiry requested by the DYP, the modified application for encroachment of right and reopening of the inquiry requested by the father ........................................................................................................................... 12 12- The modified application for encroachment of rights ................................... 16 13- January 2022 – Reopening of the Inquiry Requested by Mrs.

C ................. 18 14- Mother’s Situation .................................................................................................... 19 15- Father’s Situation ..................................................................................................... 20 Analysis ...................................................................................................................................... 23 1- The application for revision .................................................................................. 23 A- The living environment .............................................................................................. 23 B- Placement in [the Territory A] requested by the parents ..................................... 25 C- Duration of the Measures .......................................................................................... 27 D- Contact with the biological family ............................................................................ 27 E- Mediation ..................................................................................................................... 28 F- Contact with Mr.

D ...................................................................................................... 29 2- The application for encroachment of rights ..................................................... 30 A- The encroachment of rights ...................................................................................... 30 1. The best interest of the child (section 3 YPA), the opportunity for Mrs. C to be heard (section 6 YPA) and the obligation to consult Mrs.

C before the transfer (section 7 al. 3 YPA) ...................................................................................................................... 30 2. The child's rights to communicate (section 9 YPA) ........................................ 31 3. The child's rights to receive information appropriate to her age and her understanding (section 2.4(2) YPA) ........................................................................................... 33 4. The child's right to be treated with courtesy and respect (Section 2.4(1) YPA) 34 5.

Sections 1 and 4 of the Charter ......................................................................... 34 B- Correctives measures ................................................................................................ 34 1. Notifying of the Decision and memorandum ................................................... 36 2. Therapy for the Child and the Foster Mother .................................................. 36 3. New DPY and new workers ................................................................................ 36 4. Mediation between Mrs.

C and the new DYP workers .................................. 37 5. Meeting with X at school and conclusions to be sent to the school. ........... 37 Context

[ 1 ] The Director of Youth Protection (DYP) asks the Court to review a decision rendered on November 10, 2015, regarding the child X, born on [...], 2014. At that date the Court declared the security and development still endangered and entrusted the child to Ms. C until she reaches her majority. [ 2 ] Initially, the DYP submitted that the situation does not allow to maintain the child under Ms. C’s care neither to return to her parents. The DYP recommended at the beginning that she be entrusted to a foster family but after few months of hearing, the DYP recommended that she remain with Mrs.

C. [ 3 ] The Commission des Droits de la Personne et des Droits de la Jeunesse (Commission) files an application for encroachment of rights. [ 4 ] Mrs. C, the foster mother of the child has been declared "intervener party" under

section 81 YPA. [ 5 ] The Directeur de la protection de la jeunesse du CISSS A ([Center A]) intervened at the hearing. [ 6 ] The hearing took place on many days. The Court was also seized with applications for provisional measures during the process and 3 reopening of inquiry had been authorized. Most of the hearing took place under the strict restrictions from the Public Health due to Covid-19 pandemic. History of the Situation [ 7 ] On July 7, 2014 , the situation of the child was submitted to the Court. At that time, she was 3 months old.

The family was known from the DYP as an older sibling of X was already the object of a decision from the Youth chamber and entrusted until majority because of neglect and physical abuse. During her pregnancy, the mother did not respect the medical recommendations. She gave birth in Town A. She was not collaborative and left the hospital without informing where she would be. The father was detained for crime with violence. Also, the father was known to have sexually abused all his other daughters [1] . The mother had alcohol abuse and anger management issues.

The child had been entrusted down south on protective measures, but the DYP was looking for a foster family in [the Territory A] and planned to transfer the child as soon as one foster home would been found. The Court declared that the security and development of the child were endangered [2] and entrusted the child to a foster family until January 23, 2015, with the possibility of clarifying a life plan. The Court also ordered that both parents be assessed by a psychologist or a psychiatrist. [ 8 ] On January 21, 2015 , the Court revised the situation. X was 9 months old.

The parents’ situation remained the same. They did not take steps to address their personal issues. The father had been violent towards the mother at least twice since the last order. X remained in the same non-Inuit foster family since the beginning of her placement. The paternal grandmother asked to be assessed as a foster family. The DYP committed to perform this assessment.

The Court entrusted the child to a foster family and ordered that she receive health care services such as occupational therapy, the whole until May 21, 2015. [ 9 ] On May 21, 2015 , the Court was seized with another application for revision. X was 13 months old, and she was still living in the same foster family. The parents get separated but reunited just before the Court. The parents were facing the same difficulties for which they did not seek help. They suggested family members to foster X but those suggestions were made just before the hearing and the assessments could not have been completed.

The mother was pregnant and motivated to change her way of life. She planned to entrust [the Therapy Center A] during the summer 2015. Despite the maximum delay of placement reached, the Court prolonged the placement at Mrs. C’s place for another six months. [ 10 ] On November 10, 2015 , the Court revised the situation. X was 19 months old. As ordered, she continued to live with Mrs. C since her birth. The parents continued to struggle with alcohol addiction and conjugal violence issues. The parents still never sought help. The mother gave her newborn through traditional adoption.

She did not go to [the Therapy Center A] due to her pregnancy, but she planned to enter in January 2016. The parents’ relationship remained very chaotic. The Court entrusted the child to Mrs. C until she reaches her majority. [ 11 ] On October 29, 2019 , the Court was seized with an application for provisional measures and entrusted the child to a foster family. This measure was prolonged on December 10, 2019, and on January 30, 2020. In the interval, the Commission intervened and the hearing under

section 95 started as scheduled on March 19, 2020. Facts [ 12 ] The DYP filed an application for revision because a young adult who was fostered in the past by Mrs. C and her spouse, Mr. D disclosed that Mr. D would have sexually abused her. The abuse would have occurred approximately six years before (around 2013). This report was received on October 16, 2019, and the same day, the 3 children fostered by Mrs. C, including X, were removed from the home. [ 13 ] The evidence provided by the DYP regarding the person who took the decision to remove X is contradictory.

Indeed, the [Center A] D.Y.P. worker said that the decision was taken by [the Center B] D.Y.P. after receiving the information about the report from [Center A]. On her side, the [Center B] D.Y.P. worker testifies that the decision was taken by [the Center A] and the [Center B] D.Y.P. was informed right after. [ 14 ] X and her 2-year-old foster sister were entrusted to an emergency foster family, the F family, in the same area, which prevented X from having to change schools. 1- X’s specific situation [ 15 ] X is diagnosed with an important anxiety issue and a severe form of eczema.

She is followed by a pediatrician. Mrs. C explains that X had a lot of difficulty to adapt to the daycare and it took around one year before Mrs. C be able to drop her at the daycare without staying with her for a while. Depending on what happens during the day, X could have a lot of difficulty to sleep. Mrs. C is used to stay

close to her until she falls asleep to secure her. [ 16 ] X is also known to have some developmental delay and some concerns were raised about a possible FASD. She benefits from a follow-up with a speech therapist, and she is closely followed by a pediatrician. The FASD evaluation could be done when she will turn 6 or 7 years old. Mrs. C confirms that it was in her intention to make sure that X could benefit from this evaluation. The DYP also consider that this evaluation should be done. 2- The organization of the transfer from Mrs.

C's place to the new foster family [ 17 ] Mrs. [Social Worker 2], the [Center A] DYP worker, responsible for X’s file as collaborator explains the circumstances of the transfer made on October 16, 2019. [ 18 ] The department of evaluation and orientation requested to each worker at measures application for the 3 children (X, her foster sister and her foster brother) to pick up the children where they were (X and her brother were at school, the foster sister was at home) and to wait for further instruction.

Mrs. [Social Worker 2] pick-up X at school and went to the MacDonald restaurant to wait her colleagues and the other children. She told X that she would not sleep at home for a few days without mentioning for how long. [ 19 ] X reacted strongly to her transfer. Upon her arrival, she cried a lot, she constantly asked for her “Mommy [3] ”, she had a lot of difficulty to fall asleep, and she urinated in her bed. [ 20 ] The F family provided a written declaration to explain the situation of X and their concerns.

The relevant extracts are the following: - "As an emergency foster home, we are used to receiving children in various states of neglect and abuse. With X, it was a very different placement.

She was clean, appropriately dressed and there were no obvious signs of any neglect on her." - "… X cries every single night for her mom." - "As of more recently X has started crying so hard for her, she begins to hyperventilate, her eyes become very wide and she does not blink during this time, she does not want to be physically consoled in any way, but she does not want to be left alone, and she flaps/waves her hands in front of her body while she is crying," [ 21 ] The DYP worker is not surprised by X's reaction at the transfer to the [Family F].

She knows that X has an attachment issue and according to her, such reaction is a normal and healthy form of grieving after her separation from Mrs. C. [ 22 ] X started asking questions to the [Family F] about her return at home. The [Family F] were informed that they could not give any answer before having more instruction. Indeed, before giving more details to X, Mrs. [Social Worker 2] took some advice from [the Therapy Center A]. Mrs. [Social Worker 2] informed X that she would not go back home in the presence of the [Family F].

At the beginning X was listening without saying anything and she started crying a lot. Mr. [Social Worker 2] also considers that those cries are a healthy way to express her emotions. [ 23 ] Following her transfer, X started art therapy, but those sessions were stopped on the doctor recommendations because X was crying all the time. The [Center A] DYP accepts to start again those sessions as soon as the doctor recommends it. [ 24 ] Mrs. [Social Worker 2] confirms the very close relation between Mrs. C and X and between X and her little foster sister.

It’s because of those very strong bonds that the DYP made sure that the two girls would be entrusted at the same place. [ 25 ] Before October 16, 2019, Mrs. [Social Worker 2] had no concerns regarding X’s wellbeing at Mrs. C’s place. X identified Mrs. C as her primary care giver and her parental figure. She is convinced that X’s needs were fulfilled by Mrs. C and the collaboration was very good. [ 26 ] Mrs. [Social Worker 1], [the Center B] D.Y.P. worker had met with Mrs. C and X in May 2019 during a home visit in Town B. She reminds that X was very attached to Mrs. C. This home visits went very well.

X had opportunity to see her parents and extended family members. The visit was very positive, and Mrs. C was very collaborative. 3- January 2020 - Options Looked by the DYP as Provisional Measures [ 27 ] The F family was very concerned by the situation of the child and tried their best to help her to adapt to her new environment.

To avoid another transfer, they notify the DYP about their willingness to foster X on a long-term basis. [ 28 ] This option was not retained by [Center A] as this foster family as a status of emergency foster and not long term. [Center A] absolutely wants to maintain the available places as emergency foster because it’s very difficult to find emergency foster family. Doing so, [Center A] was looking for a long-term foster family for X.

On his side, the [Center B] D.Y.P. considers that it would be in the best interest of X that she could remain at the Desmarais’ place and hopes that [Center A] will change its position. Mrs. [Social Worker 2] shares the same position. [ 29 ] For the [Center B] D.Y.P., steps were made to look for an Inuit foster family but there is no one, and in the specific situation of X, the DYP does not consider that it would an option to entrust her in the North.

Indeed, even if the visits in the North are going well and the parents are very patient with her, she never lived there, she does not speak Inuktitut and it would be too drastic a change in her life. She does not need such change with her anxiety issue. 4- Communication Between Mrs. C and the DYP After the Transfer [ 30 ] When the immediate protective measure had been taken in October 2019, Mrs. C was not authorized to receive information about the reason why X and her two other foster children were removed. She was only informed that there is a criminal allegation about

someone living in the house. Mrs. C and her husband immediately offered that this person, her or her husband would go live somewhere else to be sure that the children could stay in the house, but despite repeating this suggestion by calling, e-mailing and sending text message [4] , they never received any answer about this suggestion. [ 31 ] Mrs. C was finally informed about the allegations on October 30, 2019, when her husband called her from the police station.

Few minutes later, a DYP worker called her to confirm that her husband was charged for sexual assault on a minor, but without further details. [ 32 ] Mrs. C explains that following the transfer, she took advice with a lawyer from the Foster Families Association and following those suggestions she and Mr. D tried to reach Mr. [Social Worker 3] from the [Center A] foster department. This first contact was to discuss about the modality to give to the children their belongings. [ 33 ] As Mrs.

C did not receive any news, a friend who had been DYP worker suggested she asks the date of court to participate to the hearing. She planned to send an e-mail to the DYP worker to know the date of hearing but as she did not have the e-mail address, she communicated with the receptionist who refused to give her this information. [ 34 ] Following that, Mr. D try again to call Mr. [Social Worker 3] who confirmed that someone will come to pick up the personal belonging and he told him to stop calling the DYP. [ 35 ] A meeting was supposed to take place between Mrs. C and the foster department. Mrs.

C postponed this meeting once and the meeting finally took place on January 19, 2020. The objective was to discuss about the fact that Mr. D would stay somewhere else, but Mrs. C said that the DYP representatives were not open to discuss about that. [ 36 ] Her contract with [Center A] was terminated officially on February 20, 2020. 5- Contacts between X and Mrs. C following the transfer [ 37 ] On December 12, 2019, Mrs. C spoke with the [Center B] D.Y.P. worker and asked about the organization of the phone called that was planned.

The DYP worker answered that it will take a longer time because the evaluation from a psychologist is needed to adequately prepare X to this “goodbye call”. Mrs. C was very sad and after that day, she never received any news from the DYP after. [ 38 ] The DYP worker confirms that it was indeed the intention to organize a goodbye call, but before the contact could take place, everything was stopped when a report for physical abuse was received [5] . [ 39 ] In December 2019, a Court decision was rendered regarding the two-year-old girl, X's foster sister, who had been removed from Mrs.

C at the same time and entrusted to the F family. The Court entrusted back this little girl to Mrs. C to the exclusion of Mr. D and it was very difficult for X to see her sister leaving. During few weeks X was ignoring where her sister was but a friend at school told her that her sister was back with Mrs. C and the situation became more and more difficult for X. [ 40 ] On one occasion, X went to the grocery store with Mrs. F and they met with Mrs. C. A written statement was provided describing the meeting and it is relevant to produce some extracts: […] I brought X with me to the grocery store, we saw Mrs. C.

X was a bit taken aback when she first realized who she was looking at. She gave Mrs. C a big hug and had a quick little conversation with her. […] When I brought her back home, she opened the front door and exclaimed, "I saw my mommy!!!". She was so happy, and she mentioned it to every person individually for the rest of the day. She also had an easy time falling asleep that night, when usually she does not. There is regularly lots of crying and screaming before bed, but not that night, […] Shortly after (the DYP workers) came to our home for an emergency meeting that needed to include me.

They stated that due to my "history with the agency" they were concerned that I had arranged for a visit between X and Mrs. C. They stated that it is not their intention to have visits take place between them and that if we see her again in the store, we are to avoid contact with her. It was also stated during this meeting that if we continued to bump into Mrs. C in public places then we would need to start limiting X's time in the community, and then they might need to consider moving her from our home. [ 41 ] At the hearing in March 2020, the DYP worker was still planning to organize contacts between X and Mrs.

C by April 2020. Mrs. [Social Worker 2] confirms that no contacts took place except the one at the grocery store. 6- The options looked by the DYP as final measures [ 42 ] Until August 2020, the DYP maintained the position that X could not go back living with Mrs. C. According to her, Mrs. C cannot be a reliable person anymore to foster X because she would have supported her husband by denying the allegations and by denigrating the plaintiff. Moreover, since October 16, 2019, Mrs.

C is not anymore accredited as a foster family by [Center A] and the Ungava DYP cannot change this situation. [ 43 ] The DYP is conscious that the Court could entrust X to Mrs C as third party but considers that would not be in the best interest of X for the same reason. [ 44 ] In such situation, according to the DYP worker, X would be more at risk because, due to absence of contracts between Mrs. C and the DYP, the worker would not be authorized to search Mrs. C's house. They would be only authorized to have planned meetings with her in a place chosen by Mrs. C. The DYP is concerned that Mr.

D could be in the house without the possibility to know it. Mrs. [Social Worker 2] absolutely wants unannounced visits are authorized because she does not trust the couple C-D. [ 45 ] The DYP worker insists on the fact that X must create bonds with someone else because the return at Mrs. C is not an option anymore. [ 46 ] The Commission did not share the same position and asked, as provisional measures, that the child to be returned to Mrs. C's

place at the exclusion of her spouse which the Court did on March 27, 2020. [ 47 ] The hearing continued until June 2021. Due to technical issues, some of the lawyers had to provide writing pleadings. The evidence provided to the Court during that hearing in the following: 7- Situation since X’s return at home in March 2020 [ 48 ] Since December 2019, when the Court entrusted back the little girl to Mrs. C, Mrs. D moved from the family house and took his own apartment. As ordered by the Court, the little girl was never put in contact with Mr.

D since December 2019 and X was not in contact with him neither since her return in March 2020. [ 49 ] Mrs. C is still in relation with Mr. D and he is still authorized to see his two sons. For the exercise of those contacts Mrs. C or her adult daughter drive her sons somewhere and Mr. D come to pick up them at that place. She asserts that all measures are taken to be sure that the children are never in contact with Mr. D. For example, when she has to see him, she has help from family members to take care of X and her little sister. Mrs.

C repeats that she wants the best for her foster children, and she commits to respect the judicial process and the court decision. [ 50 ] Mrs. C knows that if Mr. D is declared guilty, he will be detained and for sure, he won’t have contact with X. If he is acquitted, for Mrs. C, that will make no change as she commits to respect a prohibition of contacts that could be imposed by the Youth Division event if it’s until X reaches her majority. [ 51 ] She was questioned about the fact that X could ask questions about Mr. D, and she could be curious to know where he is. Mrs.

C affirms that she will always protect X and the most important for X is to be at home in her own environment. She said being very concerned by X wellbeing and according to her X would be destabilized anywhere else she would be. The only place where she would feel well is at her place, in the only house that she knows. Mrs. C does not intend to speak about the situation with X and understands that she needs to protect the child. [ 52 ] Mrs. C also confirms that the DYP workers are welcome anytime at her place to make sure that the children are well and that she respects the court conditions.

She asserts that she always collaborated with the DYP, and she will continue to do so despite the event of October 2019. [ 53 ] Until October 2019, Mrs. C was a foster family for the previous 14 years and she fostered 36 children including majority placements. She is married to Mr. D for 24 years. She has biological children who are not biological children of Mr. D, but he raised them. [Center A] DYP worker confirms that until the event of October 2019, the relation with Mrs. C was very positive and she was very collaborative. [ 54 ] Mrs. [Social Worker 2] has concerns because she saw 3 cars in front of Mrs.

C’s house, the 3 same cars that were present before Mr. D’s departure. Doing so, she is concerned by the fact that he could be at home, or he could come frequently. Mrs. C asserts that those 3 cars are at the name of Mr. D, but he never comes, and he never drives those cars. She is the primary driver for each. [ 55 ] Mrs. [Social Worker 2] also has concerns because she feels like Mrs. C avoid her. She explains that she tried to communicate with her by phone and by e-mail, but she never receives answer back. [ 56 ] Mrs. C does not have the same position.

She said having no issue with Mrs. [Social Worker 2] even if she recognizes that she communicates mostly with the worker responsible for the file of the 2-year-old girl. Generally, the two workers come together so, she considers that she does not need to communicate twice to say the same thing. For example, if the first one

schedule a meeting and tell her that Mrs. C will be present, it’s not necessary for her to confirm the meeting with Mrs. [Social Worker 2] also. [ 57 ] Mrs. [Social Worker 2] went home since X’s return but due to Public Health restriction, she remains in the entrance with her mask and her gloves. X did not want to see her and ran away when she arrived. [ 58 ] Mrs. C tried to reassure her, but X is very choosy about the person she accepts in her life, so she will need a certain period of time before being at ease again with Mrs. [Social Worker 2]. [ 59 ] According to Mrs.

C, X is doing very well since her return at home. She is very happy to be there, she has no more night terrors, she sleeps, and she eats very well. [ 60 ] Since X’s return, the biological mother called only once, on March 31 to have news and the father called on X’s birthday and on May 25, 2020. 8- Relation between Mrs. C and the biological parents [ 61 ] Mrs. C testifies about the very good relation she had until October 2019 with X’s biological parents. They asked her to be X’s Godmother and she accepted.

The father wrote a letter to thank her for the good care she provided to his daughter. [ 62 ] Unfortunately, after the report from October 2019, the relation changed. Mrs. C tried to reach the father in December 2019 but shortly after the DYP worker told her not to communicate with them alleging that Mrs. C had put pressure on them to ask for X to be entrusted back to her. The Court did not hear any evidence about this possible pressure. 9- Steps Taken to Maintain the Cultural Heritage [ 63 ] Questioned about that aspect, Mrs.

C confirms that before the DYP suggested her a cultural plan, she already had contacted an Inuit organization and X was supposed to start Inuktitut classes. One of her neighbours works in Town B and speaks with X in Inuktitut. She also practises some traditional art. Also, each time, she travels in the North for the home visits, she buys some items (books, dolls,

etc.) and she made steps to find someone who could read stories in Inuktitut and record it for X to be able to listen to it. The two-year-old girl fostered at her place is also an Inuit child. [ 64 ] Before the report of October 2019, Mrs. C went three times in Town B: when X was 18 months old, when X was 3 years old for her baptism and she went in May 2019. 10- Mrs. E, foster mother suggested by the parents [ 65 ] Mrs. E lives in Town B. She is a foster family for the [ Center B] D.Y.P. since 2006. She is an interpreter for the Court and for various organizations in Town B.

She is a facilitator for the program " good touch / bad touch " provided at school in each grade. Since 2012, she is also an intervenor for the DYP for the youths in difficulties. [ 66 ] She is living with her husband, and she is fostering 4 children including long-term placements. [ 67 ] X's biological mother spoke with her when they met each other at the grocery store in November 2019 and the mother asked her if she would accept to foster X. Mrs. E knows X’s grandmother and she also fostered X’s paternal aunt in the past. Mrs.

E immediately accepted she called the DYP office to let them know about her intention. [ 68 ] The DYP was supposed to come at her place to speak about the situation, but the meeting was cancelled as the DYP considered that it was not in the child’s best interest to be fostered by Mrs. E in the North for 2 reasons: - because of X's needs to receive a speech therapist follow-up - because Mr. E already fosters 4 children which is the maximum authorized. [ 69 ] X was also supposed to have a visit at Mrs. E’s place in the month of December 2019, but this visit was cancelled for the same reason. [ 70 ] Mrs.

E testify having difficulty to understand the reasons given by the DYP. Indeed, she ever fostered 6 children in the past and Mr. [Social Worker 4], responsible for the foster department for the [Center B] D.Y.P. told her that she does not have reached the maximum number of foster children allowed. [ 71 ] Mrs. E was questioned about the fact that X does not speak Inuktitut, but she is not concerned by that. Indeed, her foster children also speaks only English, and she is totally bilingual. She is also conscious that X could have some difficulties to adapt to a new way of life.

She is ready to take more time with her to be sure that she feels secure and welcome in her home. She is ready to maintain contact with Mrs. C if the Court decides so and with the parents under the Court and DYP prescriptions. 11- January to April 2021 – Reopening of the inquiry requested by the DYP, the modified application for encroachment of right and reopening of the inquiry requested by the father [ 72 ] In January 2021, the DYP files an application under

section 95 alleging that the prohibition of contact between X and Mr. D is not respected. According to the DYP, X would have reported few events where Mrs. D would have been present and would have slept in the family house. [ 73 ] Following that disclosure, on January 22, 2021, the DYP took an immediate protective measure and entrusted the child to a foster family living in the same area. X had been maintained in the same school. According to the DYP, she had adapted very well to her new environment. [ 74 ] Added to the fact that, according to the [Center A] DYP workers, Mrs.

C had stopped collaborating, the child's disclosure brought the DYP to reconsider the position about a possible entrusted in a foster family up north. The DYP was evaluating that option. [ 75 ] On February 5, 2021, the Court rendered a provisional measure, entrusted the child back to Mrs. C and authorized the reopening of the inquiry. The relevant facts on which the decision was based on are the following: - CONSIDERING the allegation that Mrs.

D would frequently be at home come only from verbalization that X would have made to a new worker; - CONSIDERING this worker was not present to testify; - CONSIDERING the context of the meeting between the child and this worker is totally unknown; - CONSIDERING the direct evidence provided by the Commission to the fact that Mr. D had never been present in the house since the last decision; - CONSIDERING that reasonable measures are taken by Mrs. C to ensure the respect of the Court condition; - CONSIDERING the regular presence of police vehicles in front of Mrs.

C’s house in different periods of the year; - CONSIDERING the direct evidence provided to the fact that X was not at school at least between January 26 and January 29, 2021; - CONSIDERING X’s learning difficulties; - CONSIDERING the testimony of the DYP worker about X’s wellbeing since her removal without having spoken with her;

- CONSIDERING the direct evidence about X’s strong reactions when the DYP came at home to remove her from Mrs. C; - CONSIDERING X suffers from attachment issues and anxiety; - CONSIDERING the very strong bonds between X and Mrs. C and X and her foster siblings; - CONSIDERING the absence of communication between the DYP and Mrs. C about X’s verbalization and about X’s situation since her transfer; - CONSIDERING the total absence of evidence of any risk of prejudice for X to be maintained at Mrs. C’s place; - CONSIDERING the prejudice for X to be removed from Mrs.

C’s place in such circumstances; [ 76 ] As ordered, X came back home. Soon after her return, another topic of disagreement between the DYP and Mrs. C comes up. It's regarding the modality of access to the house for unannounced visits and regarding the meeting between the DYP worker and the child at school. [ 77 ] Mrs.

C filed an application for provisional measures and asked the Court to specify the modality of contacts. [ 78 ] On March 24, 2021, the Court rendered the following decision: - CONSIDERING the reopening of hearing which will be heard in the following weeks; - CONSIDERING the decision on provisional measures rendered on February 5, 2021; - CONSIDERING the application under

section 76.1 filed by Mrs.

C, the foster mother asking to establish a maximal frequency for the unannounced visits made by the DYP at her place and at school with the child; - CONSIDERING the evidence provided by each party; - CONSIDERING the numerous contradictions in the evidence between the description of the unannounced visits from the part of the DYP and from of the Foster family and the Commission; - CONSIDERING the contradictions between the description of those visits made by the DYP worker in her testimony and the description made in the evolution notes; - CONSIDERING the order to provide aid, counselling and assistance to the child, her family and her foster family; - CONSIDERING that according to the law, the situation of the child is entrusted to the DYP; - CONSIDERING the importance for the child to be able to create a bond with the Application measures worker, to have confidence, and to communicate freely with her; - CONSIDERING the importance to make sure that the child is safe at home and the court order is respected; - CONSIDERING that confidence between the child and the Application measures worker is possible only if the child feel secure with her; - CONSIDERING that the confidence is impossible to establish if the child cries during those meetings to the point that "she had to repeat herself several times to be understood through her tears". - CONSIDERING that those meetings have to be pleasant for the child if we want to be able to do a proper clinical work; - CONSIDERING the purpose of the unannounced visits which is to verify the presence of Mr.

D in the house; - CONSIDERING that the unannounced visit is not to perform an inquiry through the child; - CONSIDERING it's important to maintain flexibility to the DYP to fulfill his mandate and to be able to meet the child if for example the child makes some worrisome verbalizations; - CONSIDERING that the Application measures worker and the Evaluation and orientation worker have two different mandates; - CONSIDERING the necessity to find an appropriate balance in this situation to be sure that everyone will be able to fulfill his or her mandate properly, honestly and in the best interest of the child; - CONSIDERING the application measures worker is responsible for the file of another child fostered by the foster mother and doing so has to come at least twice a week in the house; - CONSIDERING the importance to limit the number of people in contact with the child to make sure that she feels secure with the DYP worker; - CONSIDERING the importance to respect the child's pace; The Court: GRANTS partially the application for provisional measures;

AUTHORIZES unannounced visits at the foster mother's place to make sure that Mr. D is not present in the house for a maximal frequency of once a week; ORDERS that visits be performed by Mrs. [Social Worker 5], the application measures assigned to the child's situation or another application measures worker assigned to this file if Mrs. [Social Worker 5] leaves her job.

AUTHORIZES Mrs. [Social Worker 5] or her replacement to meet with the child during those visits; AUTHORIZES unannounced visits at school to meet with the child at a period where there is no impact on her learning after verification with the teacher, for a maximum of once a week; ORDERS that those visits be performed by Mrs. [Social Worker 5], the application measures worker assigned to the child's situation, or another application measures worker assigned to this file if Mrs. [Social Worker 5] leaves her job; CONFIRMS that this frequency of unannounced visits does not limit the communications, visits, etc., that could be done by the evaluation orientation team if needed; MAINTAINS all the previous measures rendered not in contradiction with the present decision. [ 79 ] The Commission filed a modified application for encroachment of right to be heard during the reopening. [ 80 ] Following the decision on the provisional measures, the DYP renounced to present any evidence regarding the fact that Mrs.

D would have been at home in contradiction with the Court order. [ 81 ] Doing so, the Court proceeded only on the modified application for encroachment of rights filed by the Commission. The parties agreed to proceed in April 2021. [ 82 ] In the interval, the father also filed an application for reopening of the inquiry. He alleged different aspects on which he would like to be authorized to produce evidence. After hearing the positions of the parties, the Court authorized the reopening on certain aspects, the following: - The regular presence of Mr. D at Mrs.

C's place, - The improvement of the father's personal situation, - The difficulty to organize the contacts between the child and her father, - The interest of the paternal aunt to foster the child. [ 83 ] Finally, the hearing was scheduled to take place in June 2021, instead of April 2021. 12- The modified application for encroachment of rights [ 84 ] The Commission alleged that: - In September 2020, the child had been met at school and questioned about Mr. D presence at home and the DYP had no concerns about any breach of conditions from him or from Mrs. C. - On October 22, 2020, Mrs.

C was recognized as a foster family. - In January 2021, the new [Center A] worker met the child and asks similar questions. At that moment, the answers given by the child raised some concerns about a possible presence of Mr.

D at home. - On January 22, 2021, the [Center B] D.Y.P. took immediate protective measure and entrusted the child to a foster family. - On January 27, 2021, another DYP worker (evaluation) asked suggestive questions to the child despite the C-15 [6] planned the day after. - On January 28, 2021, the child was met by a sergeant detective at the police station. - During that interview, the child repeated that Mr. D never come at home and that she had not seen him for a very long time.

She ended the interview in tears saying that she missed her family. - On February 2, 2021, a [Center A] DYP worker brought the child to a sexual abuse clinic at the Montreal Children’s Hospital. The child had been physically examined by 3 doctors. - On February 5, 2021, the child was entrusted back under Mrs. C following Court decision - No contacts took place between the child and Mrs. C between January 22 and February 5, 2021. - The child returned to school on February 9, 2021, after 2 weeks of absence. - The same day, the child was met at school by a [Center A] DYP worker about Mr. D's presence at home.

The child disclosed being scared by her brother and her daddy. - On February 11, 2020, 2 [Center A] DYP worker came back at school to ask other questions to the child. That time, the child denied

fearing something other than her brothers taking her iPad. Other suggestive questions were asked to her about Mr. D's presence at home. The child ended the interview in tears asking to see her mommy. - Mrs. C was not made aware of this interview. - The day after, the child was reluctant to go to school. [ 85 ] Dr. Beltempo, psychologist who signed the child's psychological evaluation testified at the hearing. The information that he had before performing the psychological evaluation is mostly in contradiction with the evidence heard by the Court.

His testimony demonstrated that the DYP workers had chosen the information they had provided to him and the way that they had provided to him. [ 86 ] Regarding a possible placement in the North, Dr. Beltempo is of the opinion that such transfer would be traumatizing for the child. If it is the chosen option, a very specific attention should be paid to this transfer, a strict preparation should be done and the participation of Mrs. C to support the child should be requested.

He added that the Native children have a high capacity to develop a community attachment, but it is not the case for X as she had been raised in the South and she had developed an attachment exclusively to Mrs. C. [ 87 ] More generally, Dr. Beltempo insists on the important to avoid another rupture of links in the situation of X who already suffered from 2 ruptures (October 2019 and January 2021). Doing so, Dr. Beltempo does not recommend removing X from Mrs C's care.

If removal is to be done, it must be for very serious reasons and with an appropriate preparation. [ 88 ] Mr. [Social Worker 6], the [Center B] D.Y.P. testifies. He does not have a full knowledge of the situation and admits his disagreements with some intervention made by the [Center A] DYP. [ 89 ] He considers that X is at risk to be victim of sexual abuse due to the presence of Mr. D at home and that, as DYP, he cannot fully protect the child due to Mrs. C’s non-collaboration. [ 90 ] As the other DYP workers, Mr. [Social Worker 6] considers that, even if no contact had been organized between X and Mrs.

Harvey after January 22, 2021, it's obvious that X had pressure from Mrs. C to change as such her version. [ 91 ] He maintains the request to remove the child from Mrs. C's care. He does not suggest entrusting her up north because she always lived down south, but as for now, he has no plan for the child, his team being actively looking for a new foster family. [ 92 ] For different reasons, the hearing that was supposed to take place on 4 days, had been prolonged and the Court ended that

part in September 2021. The lawyers were authorized to produce written comments. The Court took the decision under advisement after having received the 7 written comments. [ 93 ] The Court has no difficulty to conclude that all the facts alleged by the Commission had been proven. [ 94 ] The DYP failed to demonstrate the contrary. The witnesses working for the DYP provided laconic and contradictory testimonies. Few of them had selective memory and lack of objectivity. [ 95 ] The Court note that Justice Ste-Marie was seized with the situation of X's 2-year-old foster sister.

The allegations on that situation were based on the disclosure that X would have made at school about the presence of Mr. D. Doing so, Justice Ste-Marie was seized with the same facts. He also concluded that the DYP had a lack of transparency and lack of professionalism. 13- January 2022 – Reopening of the Inquiry Requested by Mrs. C [ 96 ] On January 21, 2022, after having heard the parties, the Court authorized the reopening of the inquiry requested by Mrs. C. The evidence to be provided was regarding the end of the criminal process for Mr. D. [ 97 ] The hearing took place on April 25, 2022. [ 98 ] Mr.

D testifies. He explains the relation and the strong bonds that he had with X until she was removed from the house in October 2019. When she came back, he already lived somewhere else to respect the criminal and the Youth Chamber conditions. He never had contact with her since that time. [ 99 ] In November 2021, he had been acquitted of the criminal charge and doing so, he had no more criminal conditions to respect. The conditions imposed by the youth chamber being the same, he maintained the same way of life. [ 100 ] He confirms being ready to respect all the conditions imposed by the court.

But he also considers that the family should be progressively reunited. [ 101 ] Mrs. C testifies that X is regularly asking for Mr. D. She is missing him, but Mrs. C does not know what to say. She cannot make any promise because she ignores how long the situation will remain. It could remain for many years. [ 102 ] Mrs. C also considers that it would be in X’s best interest to start the contact with Mr. D because X is convinced more and more that if Mr. D does not come at home, it's because he does not love her anymore. [ 103 ] Mrs. [Social Worker 7], the new [Center B] D.Y.P. reviewer testifies.

She is in charge of X's situation since September 2021, and she had never met with Mrs. Harvey. [ 104 ] Mrs. [Social Worker 7] recommends that if there is contact with Mr. D, that those contacts take place in a neutral environment to assure X's safety.

[ 105 ] She is conscious that X is doing well at Mrs. C's place, and it is confirmed by the school, so, the DYP does not ask anymore that X be removed from Mrs. C's place. [ 106 ] Mrs. [Social Worker 7] would like that the relation between the DYP and Mrs. C improve. Mrs. [Social Worker 7] suggests a new start in the relation between the DYP, Mrs. C and the parents. Mrs. [Social Worker 7] also adds that Mrs.

C's desire to protect X could be erroneously interpreted as a lack of collaboration and it is important to understand the perception of everyone. [ 107 ] Mrs. [Social Worker 7] already contacted a psychologist who could support the DYP worker in charge of the file. Mrs. [Social Worker 7] appeared to be very proactive and to have the open mind that missed in this file since the beginning. [ 108 ] She will also encourage regular contact up north and knowing that the DYP cannot afford for the travelling fees more than 2 times a year, she is ready to look for financial support.

Between the physical contacts, she also wants to facilitate the video calls. 14- Mother’s Situation [ 109 ] As mentioned earlier, the hearing took place on many days. The mother was mostly absent from the hearing despite the steps taken to ensure her presence. [ 110 ] The evidence shows that she is still struggling with her alcohol consumption issues.

In November 2019, she came in Town A for a visit with X, but due to her level of intoxication, she was kicked off from the hotel and the visit had been cancelled. [ 111 ] Despite her intention to entrust a therapy centre back in 2015, she never went, and she never sought help from services available in her community neither. She is now working at the [Place A], and she is on a waiting list to have her own house. [ 112 ] When X’s situation was reported in October 2019, the DYP asked her to look for a foster family in the North. She suggested different names including Mrs.

E, but it was always refused, and the mother had the feeling that the DYP had already decided to maintain X in the South. The mother absolutely wants her daughter to be back in the North to be raised according to the Inuit traditions. [ 113 ] The mother testified about her childhood. She became an orphan at 11 years old and was entrusted to foster families until 18 years old. She came back in her community at 21 years old and she had a lot of difficulty to adjust. She had a baby at that time, and she was mostly homeless.

She is scared that her daughter has the same difficulties. [ 114 ] The mother confirms the good relationship that she had with Mrs. C until October 2019 when she found that Mrs. C’s attitude changed. She asserts that she never had any pressure from Mrs. C for X to be entrusted back to her. [ 115 ] The Court accepted to prolong the hearing to give the mother the opportunity to testify again. She was reluctant to come at the Court, but she finally attended the last day. [ 116 ] She misses her daughter. She did not see her for the last 2 years.

She maintained her desire to see her daughter entrusted to an Inuit foster family up north. 15- Father’s Situation [ 117 ] Contrary to the mother, except few moments, the father attended all the hearing. Even when the Court was not able to provide him with an interpreter. [ 118 ] The father absolutely wants his daughter to be entrusted in the North. For him, it’s very important that she evolve in an Inuit environment and to learn where she comes from. [ 119 ] He is not scared regarding the fact that X would not have a reference point once in Town B.

According to him, she can adapt herself and the most important is that she could evolve in her culture and close to hers. [ 120 ] As she ever came, she knows the town of Town B. She also knows her parents and different family members. She never had difficulty to connect with them. [ 121 ] He is not concerned by the language barrier because for him, it’s the main reason why X should be entrusted in the North. She must learn Inuktitut and she has to be raised in the Inuit traditions and Inuit culture. [ 122 ] The father explains that since few years now, he works hard to improve his situation.

He had been able to stop drinking and to stop consuming drugs. He absolutely wants to remain sober. He receives good support from Mr. G from the A network. [ 123 ] This network is an Inuit organization offering services mostly for men. The activities are land-based and in connection with Inuit culture. [ 124 ] Mr. G spoke with the father for the first time in January 2019. At that moment the father was in a halfway house. Once back in his community in April 2019, the father started having meetings in person.

His objective was to stop being on and off in detention. [ 125 ] Also, since his release, the father attended Isuarsivik Treatment centre and succeed. The sobriety was the key considering his alcohol consumption brought him in jail. M. G reports that it had been difficult for the father to maintain sobriety since most of his family members have alcohol consumption issues and he did not have his own house. Being living with one or another, he was in presence of consumers. [ 126 ] M. G is proud of the father's improvements since the beginning of the follow-up.

He has a job, he can control his consumption, and he is out of trouble.

[ 127 ] In October 2019, the parents ended their relation. The father was very upset to see that the mother was continuing consuming, and he decided to get separated. Mr. G help them with the process. Both parents appreciated being able to do it peacefully. [ 128 ] The father is now living with a new girlfriend and her children. He committed not to drink in the presence of her girlfriend's children. The DYP is involved in their life and has assessed the impact of X's father in their life.

The DYP authorized him to be in their presence as long as there is no consumption nor violence. [ 129 ] The father was preoccupied by the court process. He asked Mr. G to support him and to accompany him during the meeting with the DYP. [ 130 ] He realized the important benefice of the collaboration with the various services. He commits to collaborate also with the DYP. [ 131 ] The father meets with the DYP worker every 2 weeks. [ 132 ] During a recent meeting with the DYP, the father understood that the DYP had an opening to entrust X up north. Mr. G was present and understood the same thing.

He offered to the father to work on his situation to improve enough to see that possibility to be realized. [ 133 ] The father held a family counsel and obtained the insurance that his family members would help him. He also met with the school to confirm that X would be welcome. [ 134 ] The father now has his own house.

He regularly practises traditional activities. [ 135 ] After few weeks, the father asked the DYP if he could do something else to be sure that X would come back, but the DYP answered him that there is nothing more to do considering that the plan if for X to stay in the South. [ 136 ] The DYP worker confronted him with his criminal priors. The father answered, "What is in the past is in the past". The DYP worker understood that he did not feel concerned by his past. A better knowledge of the Inuit perception from the DYP worker would have avoided such

interpretation. [ 137 ] On that topic, the Court would like to underline the fact that a previous decision rendered by the Youth Chamber mentions that the father had sexually abused his children. The evidence provided to the Court demonstrates that he has indeed priors for sexual assault but not on his children. He was charged with assault on a minor. The victim is the mother of his twins. She was 15 years old at that moment.

She gave birth to the twins when the father was in detention for that infraction. [ 138 ] The DYP put a lot of emphasis on the father's priors, but it is important to take into consideration the whole situation. First, he does not deny it, he served his jail sentences and since his release his situation is going better and better. He is in relation with a lady. She has children and to satisfy the DYP, they both accepted to take measure to protect those children.

The father respects his commitment, and the Court has no reason to think that X would be in danger in the presence of her father. [ 139 ] The DYP asserted that the two persons suggested by the father as potential foster family (Mrs. E and Mrs.

H) had been dully assessed by the foster department but surprisingly, the father never received any report from that. [ 140 ] Regarding Mrs. C, he confirms that he had a very good relationship with her before and he was very thankful for the good care she provided to his daughter. Now, the situation changed, and he is not able to trust her anymore. He is also very surprised to see that she fights so much to have X back under her care. [ 141 ] The visits up north went well and were positive, but the father deplores that Mrs. C is always present with the child.

Doing so, it's difficult for the biological family to have a certain closeness with the child. On their side, Mrs. C and the DYP worker indicate that X has difficulty to interact with her father, but she is fully at easy with the children of her age. [ 142 ] Also, the father would prefer that the visits take place in June and July because the weather is better to do activities with X. But each time, it's refused because it does not fit with Mrs. C's schedule. The visits are also too short, and he has the feeling that it is always a rush. [ 143 ] The father recognized that Mrs.

C maintained a good link with X's paternal grandmother. They see each other in Town A with X each time the paternal grandmother had to go down south for medical reasons. X is attached to her paternal grandmother. [ 144 ] The paternal grandmother confirms the great bonds that she has with X. She offers to foster X and considers that it would be in the child's best interest to live in the North and to finally get in touch with her cultural heritage. [ 145 ] After hearing the testimony of Mrs. [Social Worker 7], the new reviewer, the father confirms being ready to have a new start with Mrs. C.

Analysis 1- The application for revision [ 146 ] X’s situation was reported following a criminal charge against Mrs. C’s spouse for sexual gestures towards a foster adolescent which should have occurred six years ago. [ 147 ] The DYP took an immediate protective measure considering that the security of the child could be endangered due to a serious risk of sexual abuse by Mr. D and entrusted the child to another foster family. [ 148 ] During the investigation, Mrs. C was met in November and would have pronounced denigrating words about the plaintiff and

would have maintained that she considered her husband innocent. [ 149 ] Due to this position and attitude, the DYP considered that Mrs. C was not a protective factor for X and decided to remove her definitively from this foster family. [ 150 ] Mrs. C on her side maintains that since the beginning (October 16, 2019) she offered to remove from the house the suspect. At that time, it’s not contested that the foster family ignored who the suspect was.

This suggestion was not considered, and X was maintained in her new foster family. [ 151 ] During that time, X, who suffers from high anxiety, reacted very strongly, and constantly asked for her “Mommy”. The new foster family tried her best to reassure the child, but it remained very difficult for X to fall asleep every night as she cried a lot. [ 152 ] As everyone agrees, the criminal allegations against Mr.

D required an investigation and an immediate intervention from the DYP to ensure the protection and the safety of the child. [ 153 ] Once this intervention was made, the question was to know what the best interest of the child was considering the whole situation and her specific needs. A- The living environment [ 154 ] On this aspect, the Court does not share the position of the DYP and agrees with the position expressed by the Commission. [ 155 ] Indeed, X’s residence is Mrs.

C’s place, as she has been living there since she was 10 days old, and as it was ordered by Justice Gravel in November 2015, after being satisfied by the life plan presented by the DYP. [ 156 ] The non-contested evidence shows that Mrs. C wished to collaborate with the DYP and made many attempts to communicate with the workers, but they refused to speak with her. Mrs. C had a plan to offer, and this plan was never considered. However, this plan had been applied since the return of the 2-year-old girl and the DYP had the opportunity to evaluate if it works or not.

As shown by the non-contested evidence, nothing wrong had been reported since this child’s return. [ 157 ] The concerns raised by the DYP worker are regarding the fact that Mr. D could be hidden in the house, but those concerns are based only on the DYP worker’s fears and perceptions but not on concrete facts. [ 158 ] Moreover, the evidence provided does not permit the Court to conclude that X would suffer from a serious risk of sexual abuse according to

section 38 e) 2. [ 159 ] The serious risk of sexual abuse must be proven by the DYP according to the principles established by the jurisprudence which require that the risk should not be based only simple conjectures nor on hypothesis. [ 160 ] The whole situation must be considered and as mentioned earlier, in this situation the fact that the two-year-old girl was reintegrated at Mrs. C’s place since December 2019 and X since the end of March 2020 without any incident, is the best evidence to convince the Court about the willingness of Mrs.

C to respect the Court order and to protect the child. [ 161 ] Moreover, it’s important to remind the fact that X always lives at Mrs. C’s place. She is the only one parental figure that she knows and according to the non-contested evidence, Mrs. C always fully and properly answered the child’s needs. She was always proactive to assure X’s well-being regarding her health, emotional, psychological and cultural needs. [ 162 ] According to the prescription of the YPA, the withdrawal of a child from his or her environment should be an exception.

Doing so, all the other ways to protect a child must be considered to ensure his or her stability. [ 163 ] In this situation, despite the suggestion made by Mrs. C, nothing else than a removal was considered. If a serious discussion had occurred between the DYP and the foster family, a solution could have been found easily. [ 164 ] Finally, everyone agrees to the fact that X had been highly affected by her separation from her “mommy”. Moreover, X was known to be very anxious and very attach to Mrs. C. She has important need to be reassured and has eczema which is a physical consequence of her anxiety.

These personal characteristics must be seriously considered in the decision to be taken in the best interest of the child. [ 165 ] The Court does not share the DYP’s position alleging that the frequent periods when X cries out for Mrs. C are a healthy way to grieve after the separation. This position is not sustained by any reasonable evidence, nor any professional opinion, only by hearsay. [ 166 ] The relevant sections of the YPA are the following: 3 .

Decision made under this Act must be in the interest of the child and respect his rights In addition to the moral, intellectual, emotional, and material needs of the child, his age, health, personality and family environment and the other aspects of his situation must be taken into account. In the case of a Native child, the preservation of the child's cultural identity must also be taken into account. 4 . Every decision made under this Act must aim at keeping the child in the family environment.

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

a view to encouraging ad helping them to exercise their parental responsibilities. [ 167 ] In application of those sections, the whole situation justifies that X be entrusted back to Mrs. C as it is the most appropriate place to answer her needs and to respect her best interest. [ 168 ] The new reviewer of the [Center B] DYP, Mrs. [Social Worker 7] share this opinion and her approach will help to reduce the tensions accumulated during all that process. B- Placement in [Territory A] requested by the parents [ 169 ] The parents request that X be entrusted to a foster family in the North.

This option cannot be granted by the Court for various reasons. [ 170 ] Firstly , the Court must consider that X had been entrusted to a specific foster family by a Court decision after the life plan had been exposed and explained to the satisfaction of the Court.

The judge concluded that this placement was in the child’s best interest because the parents were not able to care for their child at that moment nor in the future. [ 171 ] X was already in this foster family before this decision and it’s among others due to the attachment she had created with her foster mother, that the Court concluded that the life plan was in her best interest. Following the decision, X continued to develop that bond which became stronger and stronger with Mrs. C. [ 172 ] She also developed bonds with her environment, and she started going to school, having some friends, etc.

Despite the measures taken by Mrs. C to make X in contact with the Inuit culture, X remains a child raised in Town A, speaking English, and familiar with her environment. [ 173 ] The home visits she had in Town B and the visits from her parents in Town A were not enough to consider that X, knowing her attachment issue, and anxiety disorder, could be able to adapt to a new environment, a new language, a new culture a new school, etc. [ 174 ] As already mentioned, the attachment to her actual environment, is not new.

It started a few years ago and now the Court must consider the actual situation. [ 175 ] The Court understands and totally shares the importance for an aboriginal child to be maintained close to his family, to his culture, to his community. This principle is the principle established by the YPA and more recently by the Bill C-92 and the new YPA. [ 176 ] Unfortunately, in this specific situation, the Court cannot consider that X is familiar with her biological family members, with her Inuit culture and with the community of Town B.

Her situation is totally different than the one of a 5-year-old child who must be removed from his parents to be entrusted in Town A. Town A would not be his environment would not represent his culture and this child would have no reference point there. [ 177 ] It’s the same thing for X: she has no reference point in [Territory A] and her need for stability is more important than her need to adapt to the culture of her biological parents. The Court underlines the word “actually” because the Court must consider the actual situation.

The Court does not have to anticipate her needs and her wish in few years which, obviously, could change. [ 178 ] Dr. Beltempo has the same opinion and does not recommend to entrust the child in [Territory A]. [ 179 ] The court would like to underline that the potential foster families suggested by the parents appeared all very reliable. The paternal grandmother is obviously very preoccupied by her granddaughter's situation. Mrs.

E, known by the Court as Court translator, is a very reliable person and the Court is convinced that she is very concerned by X’s wellbeing and would be ready to do anything she can to answer X’s needs. The issue is not there. The issue is the fact that X is not able to adapt herself to such different environment. [ 180 ] This conclusion is according to the prescription of section 10

(3) c) of Bill C-92 which mentions that: 10(3) . To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including:

c) the nature and strength of the child's relationship with his or her parent, the care provided ad any member of his or her family who plays an important role in his or her life; [ 181 ] If the paternal grandmother and / or Mrs. E are still available in the future, for sure, they could be an asset during the visits in the North and their collaboration could be very beneficial in this situation. [ 182 ] Secondly , the Court is seized with an application filed by the DYP for revision of the decision to entrust X until majority to Mrs. C.

The Court is not seized with an application for revision from the parents with a specific conclusion to entrust her to Mrs. E or to the paternal grandmother. Doing so, the possibility offered to the Court is to maintain the child under Mrs. C’s care or to entrust her to a foster family chosen by the DYP. [ 183 ] On this aspect, the DYP’s position to the fact that maintaining X at Mrs C’s place would jeopardize the child’s return under her biological parents’ care is very difficult to understand.

This position was elaborated by the DYP’s lawyer during the plea but was not at all the subject of the evidence provided during the hearing. Rather, the witnesses called by the DYP maintained the position that the parents’ personal situation had not changed and a return under their care was not an option. By chance, this is not the new reviewer's position. C- Duration of the Measures [ 184 ] Regarding now the duration of the measures, there is no reason not to order until X’s majority. Indeed, she is living there since

her birth, and she has very strong bonds with Mrs. C. The actual circumstances of the situation fulfill all the criteria established by the Court of Appeal under

section 91.1 to render a long-term decision. Doing so and knowing that such long-term decision had already been rendered, there is no reason to order a placement under Mrs. C’s care for a shorter duration. D- Contact with the biological family [ 185 ] This aspect raised many concerns. [ 186 ] Both parents missed their daughter, and it is her fundamental rights to develop and to maintain contact with them and to do so with her culture. [ 187 ] Since October 2019, each party involved in this situation had been affected in different ways by the events.

They developed some fears, some perceptions and everyone was on guard. [ 188 ] That brought trust issues, and progressively a lack of collaboration. At the same time, everyone testifies about the good relation between the parents and the foster mother before the event. [ 189 ] This relation must be rebuilt and the last day of the hearing permitted to start this rebuilt. Mrs. [Social Worker 7]'s positive testimony gave the impulse for this new start. Work still must be done, but we are in the right path. [ 190 ] Part of this work is the organization of the contacts between the child and her parents.

Those contacts must take place mostly in the North to favour the contact with the extended family members and to give the opportunity to the child to practise traditional activities with them. [ 191 ] The Court will impose a minimal frequency of contacts of 3 times a year and recommends that those contacts take place at the following period: - 5 days during the Christmas Holidays. - March Break, Easter or long weekend of May - Minimally one week during the summer with a preference for the month of July to benefit from the good weather. [ 192 ] The Court can only recommend specific periods because the measure is for a long period of time (until majority), because of the travelling issues (bad weather, flight cancellation, etc.), and because of the school calendar for the following years. [ 193 ] That being said, a planned trip that has to be cancelled for various reasons will have to be rebooked at the sooner occasion to respect minimal frequency. [ 194 ] The parents are for sure welcome to come in Town A to have visits with their daughter.

The Court is aware of the travelling fees but at the same time, the parents must understand that their child must go to school, and it is difficult for her to travel too much. [ 195 ] The Court encourages the parties to increase minimal frequency and the duration of the contacts as for example during the summer. It's important to keep in mind that those contacts must be a pleasure for the child, and she has to be encouraged to develop bonds with her biological family.

Also, more she will grow up, more she will be able to travel alone. [ 196 ] To facilitate those physical contacts, the parties will have to encourage maintaining regular contacts by phone and or by video calls. To make sure that the contacts take place, the Court will impose a minimal frequency, but would prefer that those contacts be natural and that the child be at ease to communicate with her parents and with her other family members as often as she wants without any necessity to obtain a previous authorization.

This practice must come progressively with the time. [ 197 ] Before it could become natural, the Court impose a minimal frequency of once every two weeks for each parent (the father for one week and the mother for another one). A calendar will have to be prepared in accordance with the school calendar of the child, her extracurricular activities and the parents' schedule. The Court invites the parties to be flexible to modify the calendar if needed (sickness, impediment, bad connection, etc.), to communicate between each other to inform about any issues and to reschedule the planned contact at another moment.

E- Mediation [ 198 ] Everyone should gain back confidence in the others. As mentioned, the foster mother as well as the parents were deeply affected by the events. It will be important for the benefit of the child that everyone accepts to close this sad

chapter of their lives. [ 199 ] Everyone deeply cares for the child. They love her so much and this love was so obvious during the hearing. She cannot be so loved and so torn at the same time by the most important persons in her life. [ 200 ] Each one must accept to forgive, to rebuild the relation and to understand the perception of the others. This objective will be possible with the help of the DYP and could take the form of a mediation session or another meeting that the parties would accept. The Court suggests as for example a supper at Christmas time. F- Contact with Mr.

D [ 201 ] The Court already concludes that the evidence did not demonstrate any risk of sexual abuse according to the law. [ 202 ] The conclusion is not based on the acquittal. This conclusion is based on the fact that the DYP did not provide any evidence of risk of sexual abuse according to the prescription of the law.

[ 203 ] The fact that the plaintiff refused to testify at the criminal process did not have any impact on the Court decision. The explanations given by the Crown attorney to justify the plaintiff's refusal to come at the Court has no impact neither as it is only hearsay. [ 204 ] In the absence of evidence of any sexual abuse, the Court has no reason to limit the contact between the child and Mr. D. [ 205 ] Moreover, the evidence shows that she misses him to the point that she supposes that he does not love her anymore. She had express that to Mrs. C, to friends and to her lawyer.

The fact that she did not express that to the DYP worker is not surprising. Indeed, each time, she pronounces his name, she is removed from Mrs. C's place. [ 206 ] The Court does see any need of restriction of contacts except the fact that the child did not see him since a long time. Doing so, and only for this reason, the Court will order that the first contact take place in a neutral environment in the presence of a DYP worker. [ 207 ] The Court ignores if any other Court decision from the youth chamber limits the presence of Mr. D at home.

If there is one, for sure, it will have to be respected and it will have an impact on X's situation. [ 208 ] If there is no such condition preventing Mr. D to be in contact with other children in the family, the Court authorizes Mr. D to come back home after the first contact according to the modality the D-C family will consider to be appropriate. [ 209 ] The Court has no reason to impose any other restrictions. [ 210 ] The Court heard the parents' concerns. It's important that they understand that the Court decision must be taken in accordance with the evidence. On his side, Mr. D and Mrs.

C must understand the parents' concerns. They live far, they do not have access to the whole situation and at their place, Mr. D and Mrs. C would have the same concerns. [ 211 ] The parents deserve to be reassured and to achieve this goal, the Court invites the parties to keep an open mind and to have an honest discussion as soon as they are ready to do so. Mr. D’s participation to such meeting could be helpful. 2- The application for encroachment of rights A- The encroachment of rights 1. The best interest of the child (section 3 YPA), the opportunity for Mrs.

C to be heard (section 6 YPA) and the obligation to consult Mrs. C before the transfer (section 7 al. 3 YPA) [7] [ 212 ] The relevant sections are the following: 3. Decision made under this Act must be in the interest of the child and respect his rights. In addition to the moral, intellectual, emotional, and material needs of the child, his age, health, personality and family environment and the other aspects of his situation must be taken into account. In the case of a Native child, the preservation of the child's cultural identity must also be taken into account. 6 .

The persons and courts called upon to take decisions respecting a child under this Act must give this child, his parents and every person wishing to intervene in the interest of the child an opportunity to be heard. 7 . […] […] The alternative living environment to which the child is entrusted must also be consulted unless doing so would be contrary to the interest of the child. [ 213 ] The evidence does not provide any facts that could have justified, in this situation, not to consult Mrs. C. The evidence does not show in which way the best interest of the child would have been affected if Mrs.

C had been consulted on October 16, 2019. [ 214 ] Rather, as mentioned earlier, the court can see only advantages to discuss with Mrs. C at that moment. Even if she was ignoring the exact reason for such immediate protective measures, she had a plan to offer and if something had to be modified in this plan, the discussion was possible as requested by

section 6 YPA. [ 215 ] The only reason provided to justify the fact that the consultation was not possible is the fact that a police investigation was ongoing. The Court does not see in which way, a communication exclusively with Mrs. C would have created a prejudic

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