2023 QCCQ 9625, 2023 QCCQ 9625

Protection de la jeunesse — 235739 COURT OF QUÉBEC 2023 QCCQ 9625 YOUTH DIVISION CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] No: 525-41-036237-196 525-41-036238-194 DATE : September 14, 2023 ______________________________________________________________________ IN THE PRESENCE OF : Mr.

JUSTICE CLAUDE LAMOUREUX, J.C.Q. ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION FOR THE CENTRE INTÉGRÉ UNIVERSITAIRE DE SANTÉ ET DE SERVICES SOCIAUX A applicant and X born on [...], 2006 Y born on [...], 2006 adolescents and A B (deceased) parents ______________________________________________________________________ J U D G M E N T (SECTION 95 OF THE YOUTH PROTECTION ACT ) ______________________________________________________________________ WARNING: The Youth Protection Act prohibits the publication or broadcasting of any information that may lead to the identification of a child or his parents.

Any person who contravenes this provision commits an offence and is liable to a fine. [ Y.P.A. articles 9.2. and 9.3 and 135 ] [ 1 ] The Court is seized of Applications filed pursuant to

Section 95 of the Youth Protection Act (Act) by a person duly mandated by the Director of Youth Protection ( the Director ) to revise an order rendered by the undersigned on January 12, 2022 entrusting the adolescents to their half-brother, Mr. C, and his partner, Ms. D, with other corrective measures, the whole until their age of majority. [ 2 ] The Director alleges the following: 3.1. the situation in the home of Mr. C and Ms. D has progressively gotten worse since the last court date; 3.2. Mr. C heavily consumes illicit substances, including marijuana, cocaine and pills of some sort;

3.3. Mr. C is reported to have a gambling addiction problem; 3.4. Mr. C is unemployed and does not collect welfare; 3.5. information is to the effect that Mr. C is neglecting the needs of the adolescents by using the money and funding which they receive for their own needs, on himself and his addictions instead; 3.6. consequently, the adolescent and her sister have not been eating properly and at times not even able to get to school since Mr. C used the money provided by the school for an Opus card, on himself instead; 3.7. Mr. C and Ms.

D have had numerous arguments, including several incidents of conjugal violence which the adolescents have been witness to; 3.8. there have been approximately four (4) to five (5) known incidents of conjugal violence which have necessitated police intervention, with criminal charges currently pending; 3.9. it was primarily Ms. D who was able to meet the basic needs of the adolescents and not Mr.

C; 3.10. however, as the relationship between the couple deteriorated, and after they had a newborn baby who had greater immediate needs than the adolescents, the situation slowly but surely deteriorated on that level as well; 3.11. around the month of May 2023, Ms. D left Mr. C, with the purpose of ending their relationship; 3.12. during the past year, she had left on two (2) other prior occasions as well; 3.13. on or around June 7, 2023, Ms. D returned to live with Mr. C and the adolescents; 3.14. in the middle of the night of June 6, 2023, Mr.

C gathered the adolescents and their belongings, and vacated their home; 3.15. information is to the effect that Mr. C surreptitiously moved with the family in the middle of the night because he owed three (3) months of rent dues, as well as owing around 3000$ for the oil bills; 3.16. between June 7, 2023 and June 12, 223, there have been three (3) police interventions due to arguments between Ms. D and Mr. C; 3.17. on June 12, 2023, Ms. D finally left Mr. C and has stated that this time it is for good; 3.18. Mr.

C is not capable of adequately caring for the adolescent’s needs on his own, and they are at serious risk should they remain in his care; 3.19. both the adolescent and her sister have expressed wanting to go live with the mother of a friend of X’s; 3.20. unfortunately, the family proposed by the adolescents does not meet the requirements of the Director of Youth Protection, in order to become an entrustment home; 3.21. the adolescent and her sister therefore require placement in a foster family at this time. [ 3 ] It should be noted that since an emergency hearing held on June 21, 2023, the adolescents are entrusted to Mrs.

E, the mother of X’s friend who is mentioned in the application. [ 4 ] Today, the Director is principally recommending that the adolescents remain entrusted to Mrs. E until their age of majority. Mrs. E was provisionally assessed and accepted as a resource for the girls and is in the process of being assessed as a proximity foster parent. [ 5 ] The father is deceased, and the mother has not been involved with the adolescents in about two years. Her whereabouts remain unknown despite the Director’s various attempts to locate her.

Thus, by consent, the Court proceeds in her absence. [ 6 ] The adolescents are both present, each assisted by respective counsel. They both admit the allegations of the applications and agree with the Director’s recommendations. [ 7 ] Mrs. E is present and agrees to take care of the two adolescents until their majority and to collaborate with the Director. [ 8 ] The reports filed as evidence clearly substantiate the need to have the two adolescents cared for by someone other than their brother C, the latter having failed to meet the adolescents’ various needs.

As alleged and reported-on by the Director, the adolescents were exposed to conjugal violence, police interventions and their brother’s alcohol and drug abuse. The money provided to the caregivers to ensure their needs was not used for that purpose. The adolescents’ medical and dental needs were neglected. [ 9 ] This led to the girls first being entrusted to Ms. D for a few weeks prior to being cared for by Mrs. E, where they remain. [ 10 ] C’s whereabouts are currently unknown and the adolescents do not want to return to his care. Ms.

D is currently not in a position to care for the girls. [ 11 ] The two girls are doing very well in Mrs. E’s care and wish to remain there. [ 12 ] The only issue that was raised at the hearing was the possibility for the Court to proceed by way of a “draft agreement” in a context where both parents are absent , the father being deceased and the mother’s whereabouts being unknown.

[ 13 ] The Director, principally, pleaded that this was not possible whereas the Court concluded that this was possible, but still agreed to proceed without a draft agreement [1] but to explain in the present judgment the reasons why proceeding by way of a draft agreement would have been possible. [ 14 ] The Youth Protection Act provides the following: 76.3. At any time, including after a settlement conference, the parties to the proceedings may submit a draft agreement or a settlement to the tribunal or to the judge who presided over the settlement conference.

The draft agreement or settlement submitted under the first paragraph may have been reached with only one of the parents where the other parent is unable to express their will, cannot be found despite serious efforts to locate them, or where they, having not, in fact, assumed responsibility for the care, maintenance and education of the child, abstain from becoming involved owing to indifference. The tribunal may order the parties to put any draft agreement or settlement in writing and to file it. 76.4.

After verifying that the measures proposed in the draft agreement or settlement respect the rights and interest of the child , the tribunal or the judge who presided over the settlement conference may order the implementation of those measures or any other measure it or he considers appropriate. (our emphasis) [ 15 ] The Director argues that paragraph 76.3(2) of the Act is clear in only allowing draft agreements with both or one parent, but not in the absence of both parents.

It is further argued that this is consistent with the provisions of the Act regarding “provisional agreements” (sec. 47.3) or “voluntary measures” (sec. 52.1) where the Director is authorized to reach such agreements with one parent, but not in the absence of both parents. [ 16 ] As mentioned earlier, the Court does not agree. [ 17 ] The Act was silent in terms of proceeding by way of a draft agreement in the absence of parents prior to an amendment adopted in 2022 [2] .

This amendment added to paragraph 76.3(2) the three situations which allow for draft agreements in the absence of parents: the parent is unable to express their will, cannot be found or abstains from becoming involved. [ 18 ] A review of the parliamentary debates which brought about this amendment shows that the Legislator’s intent was not geared towards excluding draft agreements when both parents are absent, but to set out the scenarios where the Court could proceed when a parent is absent. [3] [ 19 ] It is therefore not surprising that the Act specifies the conditions under which draft agreements are allowed with one parent but does not formally disallow them in the absence of both parents. [ 20 ] Further, the Court agrees with the opinion expressed by our colleague Justice Jacky Roy [4] who recently examined this exact question and explained why, in his view, draft agreements are possible even in the absence of both parents: [8] L’article 76.3 LPJ se retrouve au

chapitre de l’intervention judiciaire. L es dispositions d’une loi s’interprétant les unes par les autres en donnant à chacune le sens qui résulte de l’ensemble et qui lui donne effet (art 41.1 de la Loi d’interprétation. RLRQ, c. I-16 ) , cet

article doit notamment s’interpréter à la lumière des autres dispositions qu’on retrouve à ce

chapitre et qui confèrent au Tribunal divers pouvoirs en matière de gestion des instances. [9] Parmi ceux-ci, mentionnons : - Le pouvoir du Tribunal d’instruire l’affaire en procédant notamment à toute l’enquête qui donne ouverture à sa décision ou à son ordonnance. (art. 77 LPJ) - La possibilité pour le Tribunal d’accorder une dispense de signification ou de notification pour des motifs exceptionnels (art. 76 al. 4 3

e) et, conséquemment, d’instruire l’affaire, même en l’absence des deux parents. - La possibilité pour le Tribunal, à

titre de mesures de gestion, de prendre d’office ou sur demande des mesures propres à simplifier ou à accélérer la procédure et à abréger l’instruction, notamment en invitant les parties à soumettre un projet d’entente (art 76.0.5 LPJ) .

[10] Qui plus est, l’article 85 LPJ renvoie à l’article 9 du Code de procédure civile , lequel impose aux tribunaux l’obligation de veiller à la saine gestion des instances : 9. […] Il entre dans leur mission d’assurer la saine gestion des instances en accord avec les principes et les objectifs de la procédure.

Il entre aussi dans leur mission, tant en première instance qu’en appel, de favoriser la conciliation des parties si la loi leur en fait devoir, si les parties le demandent ou y consentent, si les circonstances s’y prêtent ou s’il est tenu une conférence de règlement à l’amiable. [ 21 ] Justice Roy goes on to conclude that excluding draft agreements where both parents are absent is inconsistent with these legal principles, principles which the Court is obliged to uphold. [ 22 ] In addition to subscribing to these arguments, the undersigned notes that even if the parties propose a draft agreement in the absence of both parents, the Court still has the obligation to ensure that the rights and the best interest of the child are respected [5] , failing which a hearing can take place. [ 23 ] By using the terms “ may order ” at

section 76.4, the Legislator gives the judge the discretion to proceed or not by draft agreement in regard to all aspects of the case, including the child’s rights and best interest. [ 24 ] Thus, the Court sees no reason to forbid draft agreements when both parents are absent: the same procedural safeguards exist, and the Court can still decide to forego the draft agreement and hold a hearing if there are valid reasons to do so. [ 25 ] In fact, obliging that a hearing take place in the case of adolescents, as is the case here, strips away their right to, and the advantages of, proceeding by way of a draft agreement.

Proceeding by draft agreement allows the adolescents (1) to participate more fully in the process (ie. set out the relevant facts and the most appropriate measures), which is one of the guiding principles of the Act [6] , and (2) to avoid the stress of a hearing. To name but those two advantages. [ 26 ] Thus, from both a legal and more clinical perspective, the Court cannot justify why children whose both parents are absent should be penalized by not being able to benefit from the advantages of proceeding by way of a draft agreement when they or their attorney and even the Court see fit.

After all, “ the interest of the child is the primary consideration in the application of this Act .” [7] [ 27 ] Thus, the Court concludes that draft agreements are possible even when both parents are absent for the reasons specified at paragraph 76.3(2) of the Act. [ 28 ] AS A RESULT AND FOR THESE REASONS, THE COURT : [ 29 ] DECLARES that the security or development of the adolescents remain compromised; [ 30 ] ORDERS that the adolescents be entrusted to the care of Ms.

E; TAKING JUDICIAL NOTICE that she has been provisionally authorized as a kinship foster family and will be assessed as a kinship foster family; [ 31 ] ORDERS that the coordinates of Ms.

E remain confidential to all family members; [ 32 ] SUSPENDS contact between the adolescents and their mother until she meets with the delegate three (3) consecutive times in order to assess her mental health status and commitment; If such contacts were to resume, ORDERS that the frequency and modality of contacts between the adolescents and their mother be determined by the Director of Youth Protection, including supervision if deemed necessary and taking into account the adolescents’ wishes and best interest; [ 33 ] [ 34 ] ORDERS that the frequency and modality of contacts between the adolescents and Mr.

C be determined by the Director of Youth Protection, taking into account the adolescents’ wishes; [ 35 ] ORDERS the adolescents not to have contact with Mr. F; [ 36 ] ORDERS that Ms. E ensure that the adolescents have no contact with Mr.

F; [ 37 ] WITHDRAWS from the mother the exercise of her attributes of her parental authority in regard to consents for the adolescents’ medical needs, education, extracurricular activities, travel needs, applying for a passport, and GRANTS this exercise to Director of Youth Protection; [ 38 ] AUTHORIZES the Director of Youth Protection to exchange information with all service providers involved with the family; [ 39 ] ORDERS that the adolescents receive all required medical, dental and psychological services; [ 40 ] ORDERS that all the necessary steps to complete the process of applying for curatorship for Y are undertaken; [ 41 ] ORDERS the DYP to follow through with the relevant recommendations from X ’s psychoeducational assessment, TAKING JUDICIAL NOTICE of X’s agreement to obtain therapeutic services in the community; [ 42 ] ORDERS a person working for the Centre intégré universitaire de santé et de services sociaux A to provide aid, counsel and

assistance to the adolescents and their family; [ 43 ] THE WHOLE UNTIL THE ADOLESCENTS’ AGES OF MAJORITY; [ 44 ] ENTRUSTS the situation of the adolescents, Y and X, to the Director of Youth Protection of the Centre intégré universitaire de santé et de services sociaux A for the purposes of the execution of this judgment; [ 45 ] ORDERS the execution of this judgement by any peace officer, if necessary. _______________________________________ CLAUDE LAMOUREUX, J.C.Q.

Signed on November 14, 2023 Me Georgia Limperis Attorney for the Director Me Delphine Robert Attorney for X Me Marie-Josée Ayoub Attorney for Y Hearing date: CL/nl September 14, 2023 [4] Decision rendered on September 1, 2023, in file number 525-41-031782-162.