2022 QCCQ 13185, 2022 QCCQ 13185

Protection de la jeunesse — 224854 2022 QCCQ 13185 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 640-41-002772-223 DATE: July 14, 2022 ______________________________________________________________________ BY THE HONOURABLE NATHALIE SAMSON, J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1], youth protection worker, duly authorized by the Director of Youth Protection A, working in [...] Applicant And X, born on [...], 2022 Child And A Mother And B Father ______________________________________________________________________ JUDGMENT ______________________________________________________________________ WARNING: The Youth Protection Act prohibits the publication or broadcast of any information that would allow a child or the child’s parents to be identified.

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

SUMMARY [ 1 ] The measures suggested by the Director do not respect the best interests of the Indigenous child, nor do they comply with the Youth Protection Act [1] or the Act respecting First Nations, Inuit and Métis children, youth and families [2] . REMINDER [ 2 ] The child concerned is from an Inuit family living in the town A.

On May 20, 2022, when the child was three months old, she was placed by the Director of Youth Protection with a foster family located in the [Region A]. [ 3 ] The Director of Youth Protection applied to the Court to have the security and development of X, born on [...], 2022, declared to be in danger under sections 38(b)(2) and 38( e)(2) of the Youth Protection Act [3] . [ 4 ] Consequently, the Director of Youth Protection asked the Court to entrust the child to the same foster family in the [Region A] until July 31, 2023, and to order other measures to resolve the situation.

The child is four months old and has been entrusted to a foster family since March 3, 2022. [ 5 ] At the hearing, the child and the mother were represented. The father was absent but duly served on June 23, 2022. The parties agreed that the security and development of the child are in danger under sections 38(b)(2) and 38(

e) of the Youth Protection Act [4] .

Returning the child to her family is not an option at this time, and everyone agrees that she must live in a substitute environment. However, the mother did not agree to the child being placed in a foster family in the [Region A]. As mentioned at the hearing on provisional measures on May 26, 2022, she wants more visits with her child. She denies being disinvested from the life of the child. ISSUES [ 6 ] Have the rights of the child provided for by law been respected? [ 7 ] Do the measures proposed by the Director of Youth Protection respect the best interests of the Indigenous child in this case?

THE LAW APPLICABLE TO AN INDIGENOUS CHILD [ 8 ] As explained by the honourable Renée Lemoyne in Protection de la Jeunesse-206762 [5] , provincial and federal youth protection legislation coexist and are concurrent and even complementary in application. Legislative provisions specifically applicable to Indigenous children The Youth Protection Act [6] : [ 9 ] The Youth Protection Act sets out provisions specific to Indigenous people. It is essential to reiterate the sections that guided the Court in its decision. [ 10 ] The

preamble of the law clearly indicates that the best interests of the I ndigenous child must be considered by all stakeholders who must make decisions in relation to an Indigenous child: [ … [ AS the protection of children is a collective responsibility that requires the mobilization and collaboration of all the resources in the community in order to limit the State’s authority intervention in the lives of families under this Act to exceptional situations; AS a child’s perception of time differs from that of adults because he is still developing; […] AS it is important to recognize the specificity of children who belong to minority groups, such as children belonging to ethnocultural communities; 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; […] 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.

[ … ] 4.2 Where the child is removed from his family environment, the parents’ involvement must always be fostered, with a view to encouraging or helping them to exercise their parental responsibilities, provided that such involvement is in the interest of the child.

In such circumstances, the director must, in addition to planning the child’s return to that environment, make plans for an alternative project aimed at ensuring, without delay, continuity of care and the stability of the child’s relationships and of his living conditions on a permanent basis in the event that a return to his family environment would not be in the interest of the child. 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. 4.5 Institutions, bodies and 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 (

a) encourage the participation of the child and the parents, and the involvement of the community; and (

b) cooperate with each other and see to obtaining in an optimal manner the cooperation of resources in the community; they act in concert with those resources willing to cooperate with them, to ensure that their interventions are coordinated. [ 11 ] Moreover, the Youth Protection Act [7] specifically describes the best interests of the Indigenous child :

CHAPTER V.1 PROVISIONS SPECIFIC TO INDIGENOUS PEOPLE DIVISION I INTRODUCTORY PROVISIONS AND GENERAL PRINCIPLES 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. DIVISION II SOCIAL AND JUDICIAL INTERVENTION […] 131.8. Despite

section 72.5, as soon as an Indigenous child must be removed from his family environment to be entrusted to an alternative living environment, the director must inform the person responsible for youth protection services in the community of the child’s situation. In the absence of such a person, the director shall inform the person who assumes a role in matters of child and family services within the community. The director shall then solicit the cooperation of the person informed of the child’s situation in order to foster the cultural continuity of that child and, as far as possible, ensure that the child is entrusted to an alternative living environment in accordance with

section 131.5. […] § 5. — Judicial intervention 131.15. A person responsible for the youth protection services of an Indigenous community or, in the absence of such a person, the person who assumes a role in matters of child and family services within an Indigenous community or the representative designated by such a community may, in the course of a proceeding concerning an Indigenous child belonging to that community, testify or submit observations, including in writing, before the tribunal, and may, for those purposes, be assisted by an advocate.

The observations mentioned in the first paragraph may cover, in particular the culture, history and traditions of the community, the characteristics of the Indigenous child’s living environment and the various services available to the child and his family. Except in the case of an application under

section 47, the director must, as soon as possible, inform the person responsible for the youth protection services of an Indigenous community or, in the absence of such a person, the person who assumes a role in matters of child and family services within an Indigenous community or the designated representative of the Indigenous community, of the date, time and place of the hearing of any application concerning an Indigenous child belonging to that community, of the subject of such an application and of the person’s right to participate in the hearing to the extent provided for in this section. [Emphasis added.] An Act respecting First Nations, Inuit and Métis children, youth and families [8] [ 12 ] The federal law also requires the Director of Youth Protection to respect the best interests of the Indigenous child: 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 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 ndigenous 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. Principle - substantive equality

(3) This Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the following concepts: (

a) the rights and distinct needs of a child with a disability are to be considered in order to promote the child’s participation, to the same extent as other children, in the activities of his or her family or the Indigenous group, community or people to which he or she belongs; (

b) a child must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression; (

c) a child’s family member must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression; (

d) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which a child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people under this Act, including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people; and (

e) in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children.

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 ex- posed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; (

h) and any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Consistency (4) (Subsections (1) to (3) are to be construed in relation to an Indigenous child, to the extent that it is possible to do so, in a manner that is consistent with a provision of a law of the Indigenous group, community or people to which the child belongs. […] Placement of Indigenous Child 16

(1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority: (

a) with one of the child’s parents; (

b) with another adult member of the child’s family; (

c) with an adult who belongs to the same Indigenous group, community or people as the child; (

d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or (

e) with any other adult. Placement with or near other children

(2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child’s family, must be considered in the determination of

whether a placement would be consistent with the best interests of the child. Customs and traditions

(2.1) The placement of a child under subsection (1) must take into account the customs and traditions of Indigenous peoples such as with regards to customary adoption . Family unity

(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.] BACKGROUND The situation of the parents [ 13 ] Since the last Court hearing, on March 10, 2022, the situation of the parents remains highly unstable. They have alcohol consumption and conjugal violence issues and are not taking steps to address these issues. [ 14 ] The father was recently released from prison where he was detained after breaking his criminal condition of not consuming alcohol.

He has started a six months’ therapy program regarding his alcohol consumption. [ 15 ] The mother is known to the Director of Youth Protection for her alcohol consumption issues and her aggressive behaviour. The child’s siblings are currently followed by Youth Protection for neglect of their educational needs and physical abuse by the mother. The mother has been staying at [Centre A], in Town B, since early February 2022. During her stay at [Centre A], the mother was found intoxicated on multiple occasions.

On [...], 2022, the mother went into labour and was taken to the hospital by the police because she was highly intoxicated and aggressive. She then gave birth to the child. On March 2, 2022, the parents were met by a social worker, and the mother admitted to consuming one gram of cannabis and six beers every day during her pregnancy. The father also admitted to struggling with alcohol consumption issues. On March 3, 2022, an incident of conjugal violence occurred between the parents, and the father was arrested.

The situation of the child [ 16 ] On March 2, 2022 the child was discharged from the hospital, and an immediate protective measure was applied to entrust the child to a foster family. Considering the mother’s alcohol and drug consumption during her pregnancy, the child presents a high risk of needing medical attention. The parents refused to cooperate with the Director of Youth Protection many times before finally agreeing to sign the authorization to provide primary health care for the child.

The child is a highly vulnerable baby and needs a stable caregiver to answer her basic needs. [ 17 ] From March 3 to March 27, 2022 , the child remained entrusted to a foster family in Town B. During that period, the Director of Youth Protection took steps to find a foster family within the community. The parents submitted two family members who could potentially foster the child upon her return to the community. However, after verification with the family members, both refused to foster the child.

The applicant stated that no members of the child’s family or Inuk person were available to foster the child. [ 18 ] Between March 28 and May 20, 2022 , the child was placed with a non-Inuk teacher in Town A. The parents visited the child six times during the eight weeks that the child was in Town A. The foster mother worked during the day, and the child was too young to attend daycare. The child was under the care of the Youth Protection workers, at the office, during the day. The applicant testified that, in Town A, the child cannot be enrolled in daycare until she is eight months old.

After asking the applicant, the Court learned that no steps had been taken by the Director to put the child on the daycare list and that no verification had been done to find out if there would be a space for the child by [...], 2022, her eight-month birthday. The applicant does not know if there is a waiting period for daycare up North. Could the daycare centre have made an exception for this child and enrolled her before her eight-month birthday? We do not know. [ 19 ] The parents had planned visits with the child every day between April 1, 2022, and April 7, 2022, but never presented themselves.

On April 7, 2022, the mother had bruises on her face and explained that the parents missed the visits because there was an episode of conjugal violence. On that occasion, the mother stated that she and the father still have episodes of violence when they are intoxicated. At the hearing, the mother added, through her lawyer, that it was not because she did not want to attend the visits, it was because she could not. [ 20 ] Since May 20, 2022 , the child has been entrusted to a foster family in the [Region A].

Steps taken by the Director of Youth Protection with regard to compliance with the law [ 21 ] The Director filed a report of the steps taken to find a foster home as exhibit D-11. The applicant does not know the date of this report. The applicant explained that the foster home department prepared this document. She became involved going forward and added the steps she took. Her duty is to look among family members and close friends. The foster home department, for its part, has to call accredited foster families.

With respect to this report, we do not have the dates of the calls made to the families in question, we do not know how many calls were made, we do not know when the calls were made, and we do not have the name of the person who made the calls. [ 22 ] The applicant explained that the steps to find a foster family were taken a few days after the child was born. The families she called did not accept the child because she was too young. Indeed, the report indicates that most of the time, the reason gave by the family was that the child was too young.

In June, the mother proposed her sister C and her boyfriend D as a foster family. The applicant has some reservations regarding this resource since the application of follow-up measures for their youngest child just ended on May 19, 2022, and Mr. D has a criminal record that includes sexual abuse charges. The mother’s lawyer asked the applicant why we do not see the name of the mother’s sister in the report, exhibit D-11. The applicant explained that it was after May 20, 2022 and that the report was written before that date.

The applicant stated that they stopped the research for a foster family in [Region B] when the child was entrusted to the foster family in the [Region A] on May 20, 2022. [ 23 ] The report indicates that the foster home department made one “call to all” on both coasts: Ungava Bay and Hudson Bay, before May 20, 2022. The applicant testified that the foster home department made a “call to all” in the entire province of Quebec, but this is not written in the report, and she does not know when this call was made, apart that it was before May 20, 2022.

The Court wonders how the applicant could be aware of this fact if it was not her who made the list and the “call to all” at the provincial level is not found on the list. Moreover, she testified that it was not her duty. The applicant said that they did not verify with the members of the Cree Nation, and they did not verify with the members of another nation.

The applicant did not know why they did not verify with the members of another nation. [ 24 ] The applicant wrote in her report [9] that the child did not develop a significant attachment bond with the parents, since she was entrusted to a foster family right after her birth and had only little contact with her parents. The Court wonders how we could promote the child’s attachment and emotional ties with her parents if the child is entrusted to a foster family in the [Region A]. How can the mother create a significant attachment with the child when she is that far away?

The applicant wrote in her report [10] that reintegration into her parental environment seems unlikely and that the child needs stable caregivers. [ 25 ] The applicant testified that the foster family came up North in June 2022, and the mother was able to see her child. She explained that the visit was very positive and that it was a really beautiful moment. The foster family is used to coming to the community because they have two other Inuit children under their care and plans to visit the community a few times a year, maybe more.

The applicant testified that they made some verifications to register the child at the daycare in the [Region A]. She added that the Director can also arrange visits between the child and the parents in Town B. They can organize video conferences too, but the mother does not like them very much. The father could participate in video conferences; it is possible for him to do so from the therapy centre.

ANALYSIS [ 26 ] The mother’s lawyer and the child’s lawyer argued that the Director must make the necessary efforts to find a family for the child in [Region B], but they did not plead on either the director’s responsibilities regarding the law or the best interest of the child in regard with the law. [ 27 ] After taking into consideration the documentary evidence, the testimony and the positions of the parties, the Court finds that the evidence is sufficient to declare that the security and development of the child are in danger under sections 38(b)(2) and 38(

e) of the Youth Protection Act [11] . [ 28 ] Returning the child to her environment is not an option at this time, and everyone agrees that she must live in a substitute environment.

The Director of Youth Protection asked the Court to entrust the child to the same foster family in the [Region A] until July 31, 2023. [ 29 ] However, the measures suggested by the Director do not respect the best interest of the Indigenous child, nor do they comply with the Youth Protection Act [12] or the Act respecting First Nations, Inuit and Métis children, youth and families [13] . [ 30 ] The applicant was clear in her statement, they stopped the research for a foster family in [Region B] after the child was entrusted to the foster family in the [Region A] on May 20, 2022.

We understand that, at that moment, the Director assumed that the child’s foster family would be the foster family in the [Region A]. The director did not continually reassess whether it was appropriate to place the child with a parent or with another adult member of the child's family, contrary to section 16(3) of the federal law. [ 31 ] The applicant does not know why they did not check with the other nations, as required under sections 131.5 of the Youth Protection Act [14] and section 16 (1) of the federal act.

The applicant did not know that she was obliged to indicate the reasons for not checking with the other nations in the child's report. She therefore did not write it in the child's report, as required by the second paragraph of

section 131.5 of the Youth Protection Act [15] .

[ 32 ] The applicant does not know who represents the person responsible for youth protection services in the community or the person who assumes this role in the community in accordance with new

section 131.8 of the Youth Protection Act . [16] She was not aware of this provision of the Act . It would therefore be surprising if this person was notified of the placement of this child in foster care by the Director as required under the same

section of the Act . [ 33 ] The Director of Youth Protection has not complied with the law at all. The amendments to this Act have been in force since April 22, 2022. The Youth Protection Act [17] is of immediate application and of public order. [ 34 ] The Court finds that the best interests of this Indigenous child were not met. The search for a family for this child took place from March 3 to May 20, 2022, a period of approximately eleven weeks.

During this period, fourteen calls were made in the parents' village, one call "to all" was made at the provincial level and one call "to all" was made for the Ungava Bay and Hudson Bay region. All of the people contacted refused to take the child because the child was too young. The Director of Youth Protection did not check with the daycare centre in Town A or any other daycare centre in the [Region B] to see if they would take the child before she was eight months old. On May 20, 2022, the Director found a family in the [Region A], and the child has been placed there since that date.

No other search was made afterwards, and this fact was confirmed several times during the applicant’s testimony. [ 35 ] In the 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 [18] , the Court of Appeal explains the effects, over time, of removing Indigenous children and placing them with non-Indigenous families: [130] Overrepresentation is a deep-seated problem in Quebec as well, [107] despite amendments to the Youth Protection Act [108] and despite the various agreements entered into between the government and Aboriginal communities. [109] The Viens Commission pointed out this documented fact in no uncertain terms: While many voices were heard, they all point to the same conclusions: the current youth protection system has been imposed on Indigenous peoples from the outside, taking into account neither their cultures nor their concepts of family.

Even worse, many believe the youth protection system perpetuates the negative effects of the residential school system, in that it removes a significant number of children from their families and communities each year to place them with non-Indigenous foster families.

This speaks to the sensitive nature of this issue and the major challenges involved. [110] [131] According to the Honourable Jacques Viens, there is “no doubt that, for Indigenous peoples, the youth protection system has reached its limit”. [111] Indeed, the agreements contemplated in ss. 37.6 and 37.7 of the Youth Protection Act do not allow for the exercise of genuine self-determination, and only one nation has managed to enter into an agreement contemplated in s. 37.5, after nearly 20 years of negotiation. [112] [132] Even more recently, the Commission Laurent reiterated a similar finding: One of the significant consequences of applying the YPA, without adapting it to the realities of Aboriginal peoples, is the overrepresentation of Aboriginal children in the youth protection system.

A number of those who testified pointed out that the current application of the YPA results in negative, if not discriminatory, effects on Aboriginal families and, consequently, the overrepresentation of these children in the youth protection system. [113] [133] This excessive removal of Aboriginal children in Quebec and across Canada by state agents has devastating effects on these children and their communities, as does the fact that the services offered do not take their cultures into account. [114] There are numerous causes of this overrepresentation, although they are interconnected [ 36 ] Legislative changes in Quebec and at the Federal level came as a result of numerous commissions of inquiry and their recommendations to the government.

The laws have been amended to respect the interests of Indigenous children. Now, the people who are given responsibilities towards the children by law must apply them. The time limits in this case. [ 37 ] On March 10, 2022, the child was placed in care for a maximum of 60 days, in accordance with

section 76.1 of the Youth Protection Act . On May 10, 18 and 19, 2022, the Director attempted to request an extension of this measure, but the file was postponed each time due to a backlog of cases. On May 20, 2022, the child was placed in a family in the [Region A], and the search for a family in an Indigenous environment was stopped. On May 26, 2022, the judge of the Court of Québec declined jurisdiction, since the maximum period of 60 days provided for by law had not been respected.

The Director of Youth Protection appealed the case, and on June 1, 2022, the Superior Court issued a safeguard order keeping the child in foster care. On June 23, 2022, the Honourable Claudia Prémont, J.S.C., maintained the child in foster care until the hearing on the merits on July 13, 2022. [ 38 ] From May 20, 2022 to July 13, 2022, no search for a family in an Indigenous environment was made by the Director.

What is deplorable in this situation is that the notion of time is not the same for a child as it is for an adult and that time here is of the utmost importance with regard to decisions made in the best interests of the child. It is unacceptable that while the Director is not fulfilling his obligations under the law, he is keeping the child in a foster home separated from her community by an immense distance. There is no access by car, and the flight hours and stops are insurmountable between the [Region A] and Town A.

In addition to stopping the search for a foster family and not respecting the law, the Director of Youth Protection appealed to the Superior Court to be authorized to exceed the maximum 60-day period provided for by law by pleading the best interests of the child. The legislator has set a maximum period of

60 days because these time periods are crucial in the young life of a child. It is clear under

section 4.4 of the Youth Protection Act [19] that the Director must act diligently to ensure the child’s security or development, given that a child’s perception of time differs from that of adults . [ 39 ] In order to make a decision in the best interests of the Indigenous child, the court believes that it is imperative that the Director conduct a search for a foster family in accordance with the order of priority set out in the provincial and federal legislation and do so intensively as soon as possible in order to comply with the legislation. [ 40 ] The Court has no choice in this case but to ask the Director to comply with the law as soon as possible in order to respect the rights and interests of the child.

FOR THESE REASONS, THE COURT: [ 41 ] GRANTS this application in part; [ 42 ] DECLARES the security and development of X, born on [...], 2022, to be in danger under

section 38, paragraphs (b)(2) and (e) (2) of the Youth Protection Act [20] ; [ 43 ] ORDERS that the child be entrusted to a foster family chosen by the institution operating a child and youth protection centre; [ 44 ] ORDERS that the child be gradually reintegrated under the care of the parents as soon as the situation allows it; [ 45 ] ORDERS that the child and the child’s parents take an active

part in the application of any measures ordered by the Court; [ 46 ] ORDERS that contact between the child and the parents be determined by the Director of Youth Protection with respect to the modalities, the frequency and the degree of supervision; [ 47 ] ORDERS that the child’s parents report in person, at regular intervals, to the Director to inform him of the current situation; [ 48 ] ORDERS that the parents remain sober in the presence of the child; [ 49 ] ORDERS that the parents abstain from engaging in any violent behaviour in the presence of the child; [ 50 ] RECOMMENDS that the parents seek help through social services or any other appropriate services for their personal issues; [ 51 ] ORDERS the Director of Youth Protection to take all the necessary steps to find a foster family in accordance with

section 131.5 of the Youth Protection Act [21] , as soon as possible; [ 52 ] ORDERS the Director of Youth Protection to note the dates of the steps and every step taken to find a foster family in accordance with

section 131.5 of the Youth Protection Act [22] ; [ 53 ] ORDERS the Director of Youth Protection to inform the person responsible for youth protection services in the community of Town A of the child’s situation; [ 54 ] In the absence of such a person, ORDERS the Director of Youth Protection to inform the person who assumes a role in child and family services matters in the community of Town A, in accordance with

section 131.8 of the Youth Protection Act [23] ; [ 55 ] ORDERS the Director to solicit the cooperation of the person informed of the child’s situation in Town A in order to foster the child’s cultural continuity as far as possible, and ensure that the child is entrusted to an alternative living environment, in accordance with

section 131.8 of the Youth Protection Act [24] ; [ 56 ] ORDERS the Director of Youth Protection to notify the person informed of the situation in Town A of the dates, time and place of the next hearing of this file, in accordance with paragraph 3 of

section 131.15 of the Youth Protection Act [25] ; [ 57 ] ORDERS that child’s name be put on the list of the Town A daycare, as soon as possible; [ 58 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the child and the child’s family until OCTOBER 19, 2022; [ 59 ] ORDERS the execution of the present judgment by any police officer; [ 60 ] ENTRUSTS the situation of the child, X, to the Director of Youth Protection A, who shall then see that the measures are carried out; [ 61 ] THE WHOLE until October 19, 2022. __________________________________ NATHALIE SAMSON, J.C.Q. Mtre Justine Carli-Trudeau

Cain Lamarre, s.e.n.c.r.l. Counsel for the applicant Mtre Cassandra Neptune Centre Communautaire juridique A Counsel for the child Mtre Angèle Tommasel Angèle Tommasel, counsel Counsel for the mother B Unassisted Father Date of hearing: July 14, 2022