[1]  The appellants seek leave to appeal out of time from a decision of the Court of Quebec, Youth Division, rendered by Judge Dominique Wilhelmy, j.c.q., on July 27, 2023, concerning the child X.

[2]  Only the Director of Youth Protection [hereinafter referred to as “DYP”] opposes the present application, on the grounds that the arguments raised in the notice of appeal do not meet the criteria to be relieved of the failure to file the appeal in a timely manner.

[3]  For the reasons set out in more detail in this judgment, the Court dismisses the application.

[4]           On June 1, 2023, the DYP filed an application for revision of the decision rendered on December 20, 2022, regarding the situation of the child-appellant, born on [...], 2020.

[5]           The said decision ratified an agreement between the parties in which all agreed to entrust the child to a foster family with numerous support measures for the mother and child, until June 30, 2023.

[6]           On June 1, 2023, at the hearing on the review of the child’s situation, the DYP maintained that the child could not be returned to her mother and recommended that she remain with her current foster family until she reaches the age of majority.

[7]           On the same day, the child’s attorney asked the court to declare that the DYP had infringed the child’s right, by not placing her in her Inuit community. The hearing on these two applications was postponed to a later date. Provisional measures were ordered to maintain the status quo in the meantime.

[8]           On July 20, 2023, the child’s attorney filed an originating application regarding the infringement of her client’s rights.

[9]           On July 26, 2023, a hearing is held on the application for review under section 95 of the Youth Protection Act[1] and on the application concerning the infringement of the child’s rights.

[10]        The mother is Inuit and a native of Nunavik. She was present at the hearing via videoconference. However, the decision notes that she fell asleep at one point. She also “began to cry and shout that everything was a lie and then the video disconnected; she never reconnected”[2].

[11]        As for the interested party, Mr. B, he claims to be X’s biological father. His own mother is from the island of Antigua, while his father is from the island of Barbados in the Caribbean Sea. At the time of the hearing, the interested party was incarcerated. He was 51 years old at the time and was not listed as the child’s father on her birth certificate. He had not had any contact with the child X since June 2022. His relationship with the mother was fluctuating. He had submitted the wish that the child be placed with a member of his own family, as they don’t know the child.

[12]        On July 27, 2023, the trial judge ruled that the child’s situation was compromised. She ordered that the child be placed with the foster family she had been with since birth, until she reached the age of majority. Finally, she dismissed the application regarding the infringement of the child’s rights.

[13]        On August 17, 2023, the trial judge issued her written decision.

[14]        In her decision, she upheld all of the orders made orally at the July 27, 2023 hearing.

[15]        However, the decision was not communicated by the court office to the attorneys for the mother, the child and the DYP until October 12, 2023. The attorney for the interested party was notified of the decision on October 23, 2023.

[16]        On November 13, 2023, the child’s attorney filed a notice of appeal in the court file, which notice of appeal was amended on December 5, 2023, to obtain leave to appeal out of time.

[17]        The leave to appeal is jointly held by the child, the mother, and the interested party.  

[18]        Section 103 of the Youth Protection Act provides as follows:

[19]        Thus, the Court can only authorize an appeal filed out of time if the two (2) criteria set forth in section 103, para. 2, of the Youth Protection Act are met, namely:

[20]        Moreover, this is a discretionary power, not an automatic one[3].

[21]        What is the case here?

[22]        On this point, the appellants submit that the initial delay in filing the notice of appeal was due to circumstances beyond their control. Indeed, because they did not receive the decision or the notice of judgment from the court office in a timely manner, they were unable to file the appeal within the prescribed period.

[23]        Although the written decision was rendered on August 17, 2023, the attorneys for the mother, the child and DYP did not learn of the decision until October 13, 2023.

[24]        Moreover, the interested party’s attorney did not receive it until October 23, 2023.

[25]        The attorneys for the appellants submit that the time limit to be imposed on them should run from October 23, 2023, the date on which all parties were able to take cognizance of the decision.

[26]        As to this first aspect, the DYP’s attorney does not contest the lack of notification of the decision, since she herself did not receive the decision until October 13, 2023.

[27]        Considering the fact that court’s office failed to transmit the decision and the notice of judgment to all the parties within a reasonable time after Judge Wilhelmy had rendered it, the calculation of the period for appeal should not begin until October 2023, the date on which all the parties involved became aware of the decision in question.

[28]        The Court concludes that the parties were unable to act and comply with the formalities of the Youth Protection Act.

[29]        Pursuant to section 103 of the Youth Protection Act, the appellants have the burden of proving that their appeal has a reasonable chance of success.

[30]        Thus, the notice of appeal must allege an error of law or a palpable and overriding error that justifies overturning the trial judgment.

[31]        The appellants put forward several grounds in support of their application against the judgment undertaken.

[32]        The first ground of appeal is as follows[4]:

[33]        In this ground of appeal, the appellants contend that the trial judge did not give sufficient weight to the importance of maintaining an ongoing relationship between the child, her maternal family and her Nunavik Inuit community, in order to preserve the child’s ties to her territory, language and culture.

[34]        By placing the child with a non-Inuit family, they say, the trial judge would be in breach of sections 103.1 to 103.5 of the Youth Protection Act, as well as sections 9, 10 and 16 of the Act respecting First Nations, Inuit and Métis children, youth and families[6] [hereinafter referred to as the “Federal Act”].

[35]        The appellants main contentions are that the judge made her decision by keeping the child in her current foster family, while the evidence did not support the facts retained by the court, namely, including that there were no foster homes available in Nunavik to take in the child.

[36]        They also criticized the trial judge for failing to consider evidence that the respondent had not followed up with the nineteen foster families contacted, who, moreover, had not responded to the initial telephone call.

[37]        In the absence of any evidence that the said verifications had not been carried out, they consider that the trial judge committed a palpable and overriding error by failing to consider these elements of the facts, thereby rendering her decision unreasonable.

[38]        The second ground of appeal is that the trial judge erred in fact and in law in concluding that the cultural plan submitted by the respondent was sufficient as a measure to protect the rights of the child to maintain cultural continuity, as required by the Federal Act.

[39]        The appellants contend as follows[7]:

[40]        In addition, the appellants submit that the trial judge failed to take sufficient account of the testimony of the foster parents, who expressed reservations about the implementation of the cultural plan.

[41]        The third ground of appeal concerns the errors made by the trial judge in her reasons for dismissing the application for infringement of the child’s rights.

[42]        The appellants argue as follows[8]:

[43]        The appellants submit that the child, having been deprived of contact with her community for an extended period of time, has no point of reference with Nunavik. Consequently, there is a prima facie infringement of the child's rights. The trial judge committed a significant error of law. This error of law could not be excused by the respondent's inability to travel to Nunavik in 2021 and 2022, submitting that the excuse of the pandemic could not in itself be a reason, since there was no evidence in the court file indicating that travel to Nunavik was prohibited by the government during that entire period.

[44]        Finally, by their fourth ground of appeal, the appellants submit that the trial judge erred in law in concluding that the child could not be placed with the family of the biological father, the interested party, since she did not know the biological father or his family. She erred in law in finding that it was not possible to entrust the child to unknown persons by referring to the father's family.

[45]        The appellants submit that the errors of law and fact committed by the trial judge are crucial and demonstrate a lack of consideration for the particular context in which Inuit children find themselves, including, among other things, the fact that numerous studies demonstrate the negative effects of uprooting children from their family or community of origin and their subsequent difficulties in identifying with the host family’s culture.

[46]        Thus, the notice of appeal raises in general terms errors of law and mixed errors of fact and law committed by the trial judge in the application of the Youth Protection Act, but also of the Federal Act.

[47]        They also criticize the trial judge's interpretation of the evidence in her analysis.

[48]        In order to assess whether the appeal has a chance of success, the Court took cognizance of the judgment undertaken to assess whether, on its face, there was a possibility of allowing the appeal.

[49]        A detailed examination of the judgment under appeal makes it possible to dismiss the appellants' complaints. The trial judge considered the evidence submitted by all the parties during the hearing.

[50]        In the course of her analysis, she correctly set out the grounds to be taken into account, with regard to the Youth Protection Act, but also with regard to the Federal Act.

[51]        She correctly applied the latter law to X's particular situation, taking into account her physical, emotional, social and spiritual aspects. There is nothing in the criticisms made of the judgment undertaken to support the contention that there was a palpable and overriding error in her analysis of the child's situation in the circumstances of the case.

[52]        The Court reiterates that the test requires an examination of the nature and seriousness of the issues raised and the advisability of submitting them to the Superior Court judge, in order to assess whether the appeal has a reasonable chance of success. In this regard, it should be recalled that the Superior Court's power of appeal is similar to that of any appellate court[9].

[53]        As the Supreme Court has repeatedly stated, notably in Housen v. Nikolaisen[10], an appellate court "must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities"[11]. The appellate court must therefore refrain from intervening "in the absence of a legal error or a palpable and overriding error"[12] and must show deference to the trial court.

[54]        In the present case, the appellants' grounds of appeal invite the Court to re-evaluate the evidence. Indeed, the appellants contend that the trial court did not sufficiently consider certain elements.

[55]        Sufficiency in this case requires a re-evaluation of the evidence, which is not the role of the Superior Court when it hears an appeal from a decision of the Court of Quebec.

[56]        Nevertheless, the appellants do not clearly identify the palpable and overriding errors, or how they are palpable and overriding from a legal standpoint.

[57]        Throughout her decision, the trial judge gives reasons for her decision considering the law as applied to the specific situation of the child X.

[58]        It is also clear that the attorneys present the same arguments on appeal as they did at the trial. The Court summarized them as follows: that the child was placed with a non-Inuit family until she reached the age of majority, that she would not be in contact with her culture, that she could not be placed with her father's family, and that the child had no access to the Far North during the pandemic.

[59]        These arguments were all presented to the trial judge, as is clear from her decision, and she did not accept them. She gave reasons for her decision, stating that, even if certain arguments could have been justified, given the child's situation, it was not in the child's best interest to consent.

[60]        The trial judge concluded as follows[13]:

[61]        She considered that the child had formed a bond with her foster family, that she had no point of reference in Nunavik, that her potential for adaptation to the North had been described by the psychologist as an earthquake, and that, given her age, her emotional state would be shaken if she were uprooted from her current foster family[14].

[62]        The means of appeal must convince prima facie that the decision would be affected by palpable and overriding errors rendering it unreasonable. The purpose of an appeal is not to retry a case in the hope that the appellate court will substitute its judgment for that of the trial judge, since this is not the role of an appellate court.

[63]        On the question of the infringement of the child's rights, the trial judge concluded as follows[15]:

[64]        The application of the legal principles derived from the Youth Protection Act and the Federal Act must be adapted to the situation of each child. These legal principles are intended, among other things, to protect First Nations, Inuit and Métis peoples from assimilation, but they cannot be considered in a vacuum, and this must not result in the needs of a two-year-old child being disregarded. The grounds of appeal deal only with the first aspect, i.e., the preservation of her culture, without taking into account the second aspect, i.e., her needs given her young age.

[65]        In reading the judgment undertaken, the trial judge considered all the principles. The burden of proof is now on the appellants to show how the decision is vitiated by errors of law or of fact and law. None of the grounds for appeal raised any such errors in the judgment undertaken.

[66]        Finally, as to the lack of evidence of the impossibility of travelling to Nunavik during the pandemic, this ground of appeal must also fail. In fact, it is a matter of judicial and public knowledge that Nunavik's public health and public safety authorities imposed measures restricting travel to Nunavik and quarantine periods for essential persons travelling there during the Covid-19 pandemic.

[67]        Having analyzed the grounds of appeal, the Court concludes that the application for leave to appeal has not been shown to have a reasonable chance of success.

[68]        DISMISSES leave to appeal;

[69]        ALL, without costs, given the nature of the case.