CHAPTER
IV
PROVISIONS
APPLICABLE TO THE YOUTH DIVISION
DIVISION I – MATTERS OF PROTECTION
SUBDIVISION I
CONSULTATION AND WITHDRAWAL OF A RECORD OR EXHIBIT
No record
may be withdrawn from the office of the court, except in cases
of appeal, evocation, judicial review or at the request of or
with the authorization of a judge.
Having been
identified by the clerk, and ascertained as to his right, a person
authorized by law may consult a record or obtain a copy of an
exhibit in a record.
The clerk
shall then make note of the name of that person in the record
and of the exhibit of which a copy has been remitted.
SUBDIVISION
II
RECORDS,
PLEADINGS AND EXHIBITS
The clerk
shall open a record for each case brought or for each information
filed before the court, and all pleadings filed therein must bear
the full record number.
Where the
situation of several children or adolescents is examined and based
on the same evidence, a copy of all exhibits, minutes, stenographic
notes and judgments shall be filed in each of the other records,
unless the court decides otherwise.
All the pleadings
in a record must be fastened thereto in such a way that they cannot
become easily detached. The same applies to any exhibits that
can be kept in a record.
When the record
is forwarded to the court or the judge, an updated statement of
the plumitif shall be filed therein and all prior statements destroyed.
The name and
date of birth of the child or adolescent shall be inscribed legibly
on each record.
The receipt,
certificate of post office registration or any other document
attesting to the transmission of a notice, a subpoena or a copy
of a judgment must be filed in the record and attached to the
appropriate exhibit.
All pleadings
must be legibly written on one side of a sheet measuring 21.5
X 35.5 cm. The reverse side of the sheet must indicate the nature
and subject of the pleading, the record number and the names of
the parties, as well as the name, address, postal code, telephone
number, fax number and computer code of the attorney of the party
filing the pleading.
In the event
that the party is representing himself, the attorney’s computer
code and fax number are not required.
All pleadings
filed by a party shall be signed by his attorney. In the event
that this party is not represented by an attorney, his pleading
shall be signed by himself.
The exhibits
and written documents filed must bear the record number and an
identifying letter attributed to each party. They must also be
numbered consecutively and be accompanied by a list.
The code letters
are as follows:
D:
for the Direction de la protection de la jeunesse;
E: for the child;
M: for the mother;
P: for the father;
PM: for the father and the mother;
I: for the intervenor;
C: for the Commission des droits de la personne et des
droits de la jeunesse;
MC: for the impleaded party;
PG: for the Attorney General;
R: for the applicant in adoption cases.
109. The
date of birth of a child and the identity of his parents must
be proved in accordance with the provisions of the Civil Code
no later than at the beginning of a hearing on the merits of a
statement for the purposes of protection.
110. Upon
receipt of a pleading or an exhibit, the clerk shall number it
and mark upon it the date it was filed and the number of the record
in which it was filed.
111.
All accessory demands must be made in writing in the form of a
motion and, unless an exemption from doing so is granted by the
court, must be presented separately.
112.
Each of the parties must, in an affidavit, attest that the child
is not already the subject of a motion, action or judgment of
the Court of Québec or of another court, or of an agreement
between the parties or with the director of youth protection and,
where applicable, provide a copy of such motion, action, judgment
or agreement.
The same applies
when the alleged facts are the subject of a criminal prosecution
and, where applicable, a copy of the information, the undertakings
and the judgment must be provided.
If, during
the proceedings, the interests or rights of the child are likely
to be affected by the procedure described in the preceding paragraph,
the party or his attorney who has knowledge thereof must immediately
inform the court by means of an affidavit, which will be filed
in the record.
Any party
who wishes to file an evaluation, a report, a study or an expert
opinion for the benefit of the court, must file this document
in the record at least three days before the hearing and transmit
a copy thereof, within the same period, to the attorney of each
of the parties or to the party himself if he is not represented,
unless he is exempted from this obligation by the court.
A copy of
all notices of appeal and all decisions rendered in appeal of
a judgment of the court must, as soon as they are received, be
sent by the clerk to the judge whorendered judgment in first instance.
SUBDIVISION
III
ROLLS
AND HEARINGS
Separate rolls
with respect to the hearing of cases in matters of protection,
adoption and young offenders shall be drawn up by the clerk.
Where a date
for the presentation of a motion must be set, the judge or the
clerk shall set the hearing according to the availability of the
court.
The court may, if it deems it expedient, order a written contestation
and set the time limit within which this contestation must be
filed as well as another date for the hearing of the case.
No case shall
be adjourned solely by the consent of the parties or due to their
absence.
All motions
for adjournment of a case set for proof and hearing shall be presented
in writing, with the reasons in support thereof, to the coordinating
judge or a judge designated by him, at least eight days before
the date set for the hearing. Such motion must be preceded by
a notice of one clear juridical day transmitted to all the parties.
Notwithstanding
the above time limit, if the reasons for the adjournment are known
less than eight days before the date set for the hearing, the
coordinating judge or a judge designated by him may receive an
oral motion for adjournment following a notice of one clear juridical
day transmitted to all the parties.
This section
does not limit the authority of the trial judge to grant an adjournment
for exceptional reasons.
In the absence
of the judge, the clerk may adjourn any hearing, in accordance
with the law, for a set period that shall not exceed the next
session.
SUBDIVISION
IV
AUDIO
OR STENOGRAPHIC RECORDING
The clerk
shall make an audio recording of the arguments.
If there is
no audio recording, the services of a stenographer shall be required
and the latter shall record the arguments during the hearing.
If the judge so requires, the stenographer shall also record the
addresses.
Unless there
is an appeal, the recording of the arguments may not be copied,
transcribed or translated, except with the authorization of the
court, which shall determine the terms and conditions governing
access to and communication of such recording.
The transcription
of the audio recording or of the notes taken by the stenographer
shall be kept separately from the record, in a place indicated
by the clerk.
SUBDIVISION
V
MINUTES
OF THE HEARING
The clerk
shall draw up the minutes of the hearing in accordance with the
form provided for this purpose, and shall enter therein:
(1) the
record number and, where applicable, the identification number
of the tapereel;
(2) the names of the parties in attendance, including, where
applicable, that of the child and, in criminal and penal matters,
that of the adolescent;
(3) the date and time of the beginning and the end of the hearing
and, where applicable, the tape position numbers;
(4) the name of the judge presiding over the hearing;
(5) the names of the attorneys and, where applicable, their
computer code or box number;
(6) the names of the clerk and the stenographer, where applicable;
(7) a reference to the Act under which the case is brought,
as well as the nature of the case or, in criminal and penal
matters, a reference to the Act under which the offence is alleged
to have been committed by the adolescent;
(8) the name, age, capacity and address of each witness, as
well as the name of the party calling them to testify;
(9) where applicable, the swearing-in of the interpreter and
his address;
(10) a description of the exhibits filed and the classification
code assigned to each one;
(11) the admissions and confessions;
(12) the different stages of the hearing;
(13) the decision of a party not to be represented by an attorney;
(14) the conclusions of any judgment, decision, order or measure
rendered at the hearing by the judge and the tape position numbers
of the mechanical recording of these decisions, with the exception
of those pertaining to objections to evidence that are simply
noted;
(15) the grounds for any decision pertaining to a motion for
adjournment.
SUBDIVISION
VI
JUDGMENTS AND ADVISEMENTS
The clerk
must ensure that a record is complete before sending it to the
judge for hearing or for advisement, and that it contains, among
other things, the pleadings and the exhibits, as well as the studies,
factums and reports filed in support of the proceedings, numbered
in order by date of filing. If the record is incomplete, the clerk
must notify the attorneys of that fact so that they may take the
necessary action to complete it, in the time limit set by him,
and must leave a note in the record indicating that they have
been so notified.
Should a party
fail to file an exhibit required by the judge, or complete his
oral or written address within the time limit set at the hearing,
the judge shall take the record under advisement in the state
in which it is found upon the expiry of this time limit.
SUBDIVISION
VII
APPEARANCE
AND WITHDRAWAL OF AN ATTORNEY
The appearance
of an attorney who wishes to represent a party may be made at
the hearing, but must be confirmed by the filing of a written
appearance in the record of the court.
An attorney
who wishes to consult a record without having filed a written
appearance must present a written authorization from the person
contemplated in section 96 of the Youth Protection Act in order
to have access to the record.
An attorney
who has appeared for a party may not withdraw from the record
unless he obtains authorization to do so from the court.
SUBDIVISION
VIII
DESTRUCTION
OF RECORDS
Access to
a record which is to be destroyed as provided in the Youth Protection
Act is prohibited from the day on which the child reaches 18 years
of age, except where the periods of appeal have not expired.
Where the
destruction of a record is provided for under the Youth Protection
Act, the inscription in the alphabetical index, the plumitif and
the audio recording of the notes taken by the stenographer, as
well as any transcription of this recording or these notes pertaining
to such record, must be destroyed at the same time as the record.
The records
referred to in section 96 of the Youth Protection Act must, within
three months of the date on which access thereto was prohibited,
be transported to an appropriate place for incineration or shredding
by two persons designated in writing by the clerk for this purpose.
The records
shall be incinerated or shredded in the presence of these two
persons and the clerk, who shall draw up a report of these events.
The report
of the destruction of the records must contain: the numbers or
serial numbers of the records destroyed and the date, place and
means used to destroy them.
SUBDIVISION
IX
CHANGE
OF DISTRICT
A party who
files an application in compliance with the prescriptions of the
second paragraph of section 95.1 of the Youth Protection Act in
a district other than that where the previous order was rendered
must attach to this application a certified copy of the relevant
exhibits of the record concerned, including a copy of the judgments
and the psychosocial and expert opinions filed during prior hearings
SUBDIVISION
X
ABSENCE
OR INCAPACITY OF A JUDGE
In the event
of a judge’s absence or inability to act in a district and
insofar as the hearing of witnesses is not required, the coordinating
judge of this district may designate a judge to rule on all emergency
applications, provisional measures and preliminary or accessory
applications to a proceeding, by any means of communication that
is acceptable to this judge.
DIVISION
II
MATTERS
OF ADOPTION
SUBDIVISION
I
CONSULTATION
AND WITHDRAWAL OF A RECORD OR EXHIBIT
No record
may be withdrawn from the office of the court, except in cases
of appeal, evocation or judicial review, or at the request or
with the authorization of a judge.
SUBDIVISION
II
RECORDS, PLEADINGS AND EXHIBITS
134. With the exception of section 104, sections 101 to
114 shall also govern matters of adoption,with the necessary modifications.
135.
The motions presented for the purposes of placement or revocation
of an order of placement and the applications for adoption pertaining
to a given child, as well as the attendant pleadings, shall be
kept in the same record.
All other
applications and the attendant pleadings shall be kept in separate
records.
136. The
given name and surname proposed for the child must be inscribed
on each record, along with the child’s original given name
and surname between brackets if they are different.
In matters
of approval of a proposed adoption, the given names and surnames
of the applicants shall be inscribed in the record.
137.
Exhibits shall be kept in the record beyond the one-year time
limit in accordance with the directives of the chief judge issued
under article 331.9 of the Code of Civil Procedure.
138.
The clerk shall transmit to the director of youth protection having
jurisdiction in the place where the child resides or, if the child
does not reside in Québec, to the person who was the last
to have charge of the child, a notice of any judgment of eligibility
for adoption or for placement and adoption rendered concerning
a child, indicating the child’s original and proposed names.
139.
Unless the court authorizes the parties to receive a copy of the
judgment to be rendered, the clerk shall transmit to the parties
a certificate attesting to any judgment declaring a child judicially
eligible for adoption and, where applicable, to any order for
placement or adoption judgment.
SUBDIVISION
III
ROLLS
AND HEARINGS
140. Sections
115 to 119 shall also govern matters of adoption insofar as they
are applicable.
141.
The clerk shall inscribe applications made by way of a declaration
on a general roll for proof and hearing on the merits according
to their date of inscription, and shall notify the parties or
their attorneys thereof by certified mail.
142.
The inscription for proof and hearing must indicate the nature
of the case and the time required for the proof and hearing.
143.
The clerk shall inscribe applications made by way of a motion
on a separate roll, and these applications shall be heard according
to the court’s availability during a sitting devoted to matters
regarding adoption.
144.
Applications in adoption cases must be presented to the court
by the party himself or by his attorney.
145.
In the case of general consent to adoption, the court shall hear
the application for placement presented by the director of youth
protection on the date set for its presentation, unless the adopters
have informed the applicant of their desire to be heard, in which
case the court shall refer the hearing to a later date and the
attorney shall notify the adopters of this referral.
SUBDIVISION
IV
AUDIO
OR STENOGRAPHIC RECORDING
146. Sections 120 to 122 shall apply, with the necessary
modifications, to this Division.
SUBDIVISION
V
JUDGMENTS
AND ADVISEMENTS
147.
Section 124 shall apply, with the necessary modifications, to
this Division.
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