2017 QCCQ 6082, 2017 QCCQ 6082

Protection de la jeunesse — 172673 2017 QCCQ 6082 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 145-41-000479-151 DATE: April 4, 2017 ______________________________________________________________________ BY THE HONOURABLE CELESTINA ALMEIDA, J.C.Q. ______________________________________________________________________ A Applicant -and- THE DIRECTOR OF YOUTH PROTECTION Respondent -and- X born on [...], 2010 Child -and- B -and- C Parents ______________________________________________________________________ JUDGMENT (Section 81 Y.P.A) ______________________________________________________________________ JA1013 WARNING: The Youth Protection Act forbids the publishing or broadcasting of information allowing for a child or the child’s parents to be identified.

Any person who contravenes this provision commits an offence and is liable to a fine (sections 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] The Court is seized with an application for intervention presented by the maternal grandmother of the child to be declared a party to the proceedings according to section 81 (2) of the Youth Protection Act .

She is asking the court to grant her party status. [ 2 ] This request is presented in the context of an application for revision and extension presented by the Director of youth protection (DYP) to entrust the child to a foster family until her majority. [ 3 ] At the hearing, the grandmother and the mother are present and both are assisted by their attorneys. The child is absent but also represented by a lawyer. [ 4 ] In the father’s case, he was not served with the proceeding in due time, but he was made aware of the present application by the grandmother. Therefore, he renounces to the delays of notification.

He was to be present at the hearing, but a close member of his family passed away, therefore was unable to attend. Furthermore, a letter signed by him is filed; stating the above and also that he is in an agreement with the grandmother’s request. In the best interest of the child, the case will proceed. [ 5 ] The mother and the father agree that party status should be granted to the maternal grandmother.

However, this intervention is contested by the DYP and the child’s attorney. [ 6 ] The DYP prosecutor submits that several assertions of the application filed by the grandmother are in connection with her dissatisfaction about her granddaughter’s education regarding her lack of knowledge of the Micmac culture and language, compared to the orientation recommended by the DYP. [ 7 ] She adds that party status should not be granted to the grandmother because she does not meet the criteria retained by the jurisprudence.

Moreover, the evidence that the grandmother wishes to present can be submitted as a witness or as an interested person. FACTS [ 8 ] After the child’s birth, she lived at her grandmother’s house with her mother for a period of time.

[ 9 ] At that time, the grandmother was not home all the time because she was attending school in City A, but she came back home every second weekend. [ 10 ] The grandmother was very involved in the first three years of the child’s life. In fact, she was often taking care of the child. [ 11 ] At the time, she noticed that her daughter was not doing well; she called Social services to get help. The mother of the child became very upset towards the grandmother and refused her to have further contact with the child.

In fact, she cut all contact with her. [ 12 ] The child is 6 years old, and she has been entrusted to a foster family since August 2014. [ 13 ] The mother pleaded guilty to an assault charges against the child. Those events led to the child’s initial placement. [ 14 ] When the child was entrusted to a foster family, the grandmother was on vacation in City B and was informed of this. [ 15 ] Since the child has been living with the current foster family, the grandmother has access to her granddaughter and benefits from visits. [ 16 ] The grandmother has been living in City A for the past years.

When she comes to City B, she always calls the DYP to have access to her granddaughter. [ 17 ] On July 23, 2016, the grandmother sent a letter to the youth delegate to communicate her intention to gain custody of her granddaughter. [ 18 ] The grandmother already has the care of other grandchildren. [ 19 ] The grandmother’s environment was recently evaluated and is suitable for the child; LAW APPLICABLE [ 20 ] Sections 5, 6 and 81 of the Youth protection Act [1] (YPA) are applicable in this case, they read as follows: 5.

Persons having responsibilities regarding a child under this Act must inform him and his parents as fully as possible of their rights under this Act and in particular, of the right to consult an advocate and of the rights of appeal provided for in this Act. In the case of an intervention under this Act, a child as well as his parents must obtain a description of the means and stages of protection and rehabilitation envisaged towards ending the intervention. 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. 81. The tribunal shall hear the persons concerned and the advocates representing them. The child, the child’s parents and the director are parties to the hearing. The Commission may, ex-officio, intervene at the hearing as if it were a party to it. The same applies to the Public Curator if a tutorship is concerned.

For the requirements of the hearing, the tribunal may grant any other person the status of party to the hearing if it considers it expedient to do so in the interest of the child. The status of party remains valid until withdrawn by a decision or order of the tribunal. [ 21 ] The granting of party status under

section 81 of the Youth Protection Act must meet the criteria of opportunity in the child’s interest and respond to the needs of the inquiry. [ 22 ] To achieve that, the Court must analyze the pros and cons of granting or not, in the interest of the child in question, at this point in her life and in the context revealed by the evidence, the party status . [ 23 ] This analysis cannot ignore that this status implies, as a consequence, to place the person recognized in this role, in the same position as the parents. Moreover, the objective pursued by

section 81, is not to allow a person to produce evidence or to restore the facts concerning the child’s situation. [ 24 ] In regards to that assertion, in the case law Protection de la jeunesse-107050 , our colleague Daniel Perreault [2] , define that priority objective intervention under

Article 81 is that of the child’s interest and not the objective pursued by the person asking to be recognized as a party:

“[14] L’objectif prioritaire de l’intervention doit être en fonction de l’intérêt des enfants et non de l’objectif poursuivi par les personnes qui demandent à intervenir. D’ailleurs, la loi est entièrement articulée en fonction de cet intérêt des enfants. Qui plus est, les enfants sont représentés par un avocat, car leur intérêt peut-être différent de celui de leurs parents.

Celui qui est désigné afin de protéger l’intérêt spécifique des enfants, ce qui lui permet de recommander au Tribunal des mesures qu’ils croient appropriées pour les enfants et même de faire des recommandations différentes de celles du Directeur de la protection de la jeunesse.” [ 25 ] The Tribunal retains that the jurisprudence in the matter of the granting of the party status must be interpreted restrictively. [ 26 ] To analyze the legitimacy of this request, the Court can be inspired by the criteria which were developed by the jurisprudence [3] . [ 27 ] What about the present case?

EVIDENCE [ 28 ] At the hearing, the grandmother, the mother, the social worker and the child psychologist testified [ 29 ] First of all, when asked why she wants to get involved in the process as a party, the grandmother answers it’s because she wants to advocate for her daughter and her granddaughter. Plus, she feels that her granddaughter does not receive any education about her culture or her language. Nobody teaches her the Micmac language or her cultural heritage. [ 30 ] The grandmother mentions that the conflict between her daughter and herself is resolved.

However, when asked if her daughter provides her information about this case or the proceedings regarding her granddaughter, she replies that she does not receive any information on that matter because when she approaches the mother with the subject, she becomes upset, frustrated and refuses to answer. [ 31 ] In the past she was not involved because she was led to believe that the child would be back with her mother. When she learned that the DYP was entrusting her granddaughter until her majority, she decided to intervene.

She has a strong bond with her and even if they were separated for a long period of time, this bond was still present. [ 32 ] She states that nobody knows her granddaughter as she does. She is not happy with the fact that when she asks her granddaughter questions about her aboriginal culture, she does not know anything. She says that the child does not know what it means to be a member of the first nation. [ 33 ] In fact, she also worries that the child does not have any knowledge about the traditions and the language of the Micmacs.

Basically, her goal to become a party is for her granddaughter to learn her cultural heritage and the language of her community. [ 34 ] On cross-examination, she admits that her granddaughter is learning the Micmac language and also traditional dances. [ 35 ] It is hard for her to obtain any information from her own daughter because she is confused and becomes easily upset when she asks her questions.

It is difficult to have information regarding this case. [ 36 ] Since last summer, she has had the following contacts with the child • Two weeks during the summer vacations (June-July); • A few other times, she saw her during her brief visits in City B; • Thanksgiving (briefly because her own father passed away); • 4-5 days during Christmas holidays. [ 37 ] The main reason for her request to be a party is because her own daughter needs someone beside her to advocate for her and also her granddaughter. [ 38 ] The social worker states the goal is always for the children to be back with the parents if the situation is suitable.

In this case, the mother was not able to achieve that. [ 39 ] She heard from the grandmother in the summer of 2015 when she called to have visitation with her granddaughter. [ 40 ] She indicated that the child cares for her grandmother, but she always mentions that she does not want to stay for a long period of time because she misses her foster family. [ 41 ] She explains that at first when the child was placed, the grandmother was not implicated in the child’s life due to the refusal of the mother. [ 42 ] She is not allowed to disclose information to the grandmother due to the confidentially of the files.

She has spoken a few times with the grandmother and she admits having received her letter dated June 23, 2016. [ 43 ] DYP are aware that the grandmother wishes to have the custody of the child but there are other aspects that have to be considered. [ 44 ] The psychologist who follows the child gives her assessment of the situation in regards to the child. She started her follow up with her in 2016. During their sessions, they often speak about her family and, of course, her grandmother.

[ 45 ] The child loves her grandmother but she does not miss her as compared to her foster mother. She likes to go to her grandmother’s for visits mostly because she likes to see her cousins, but she only wants to stay for a few days. [ 46 ] She is uncomfortable talking about her foster family to her grandmother because she is afraid she will get mad. The child feels that her grandmother his fighting to get her and she dislikes it.

Overall, she thinks that the link between the child and her is present but not as significant as inferred by the grandmother. [ 47 ] At the end, the mother states that she wishes that her mother be a party because she has the means to help her and her daughter. Furthermore, she wants her mother to be beside her. ANALYZE AND DECISION [ 48 ] After reviewing the criteria retained by the jurisprudence in order to determine whether the party status should be granted to a person who requests it, the prosecutors of the child and of the DYP argue that these criteria are not met here.

The Court also agrees with that position. [ 49 ] Among other things, we cannot say that the grandmother has new data since the information concerning the child can be provided by the parties implicated, namely the mother, the Director of Youth Protection and the father.

More information can also be available through the testimony of other persons involved in the child’s life. [ 50 ] Even, if the testimony of the grandmother can probably be useful, it has failed to demonstrate the necessity and appropriateness of its intervention as a party since the elements that she wants to bring to the attention of the Court will be submitted as part of her testimony. [ 51 ] In addition, it is worth mentioning that the child is represented by counsel who is mandated to protect the child’s specific interest and to make recommendations in this regard. [ 52 ] Moreover, recognition of the party status to the grandmother is likely to have effects on the child. [ 53 ] Besides, the mother is also duly represented, so the need for the grandmother to advocate for them is not a valid reason and it does not follow the criteria sustain by the case laws. [ 54 ] After hearing the testimony of the grandmother, it seems some sort of conflict persists between her and her daughter.

If they were on such good terms why does the mother not answer the questions or give information to the grandmother concerning the child. [ 55 ] The relationship between them is too fragile. The participation of the grandmother as a party is likely to create difficulties during the process if once again a disagreement arises between them.

This could put the child in an awkward position. [ 56 ] In addition to this exceptional nature of the closed-door child welfare-related hearings and the right of parents and children to privacy, it is obvious in this matter that the mother refuses to give information to the grandmother.

This shows that the mother is not, in fact, willing to disclose any information to her, or else she would have done it. [ 57 ] Furthermore, the evidence reveals that problems exists between the grandmother and the foster family involved in the child’s life and that the participation of the grandmother as a party is likely to exacerbate and places the child in a situation of conflict of loyalty. [ 58 ] In conclusion, the Court considers that there are other means available for the applicant to be heard.

As mentioned by our colleague, justice Daniel Perreault, in his comments that may apply to the present situation [4] : “ [13] Le désir de la grand-mère maternelle de donner son point de vue quant aux modalités de contacts a peut-être un fondement factuel, mais nul besoin d’avoir un statut de

partie pour témoigner devant le Tribunal. Dans ses requêtes, la grand-mère mentionne avoir des éléments de preuve pour le Tribunal. Elle a sûrement des arguments à présenter, mais elle pourra tout simplement les faire valoir en venant témoigner. Il n’y a rien dans la preuve entendu qui nous permet de croire que le statut de

partie lui permettrait d’en apprendre plus au Tribunal sur la situation des enfants. Même si les commentaires de la grand-mère peuvent avoir un impact sur les modalités de contacts entre les enfants et leur père, sa présence à

titre de

partie n’est pas justifiée, car son seul témoignage est suffisant à cette fin.” [ 59 ] For all the above reasons, the Court thinks that it will not be in the best interest of the child to allow the grandmother to be a party, but it is appropriate for her to be an interested person. WHEREFORE, THE COURT: [ 60 ] DISMISSES the application to intervene made by the maternal grandmother; [ 61 ] GRANTS the maternal grandmother the status of an interested person. __________________________________ CELESTINA ALMEIDA, J.C.Q. Me Katherine MacLeod

for the applicant (grandmother) Me Louyse A. Lemieux for the DYP Me Annie Dupuis for the child Me Alexis Deschênes for the mother Mr. C the father (absent) Date of hearing: March 8, 2017 [2] 2010 QCCQ 20212 , paragraphe 14 .