Warning
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Ontario Court of Justice
DATE: 2025-03-07
COURT FILE No.: Stratford FO-24-985
Between:
Huron-Perth Children’s Aid Society
Applicant,
— AND —
M.L., J.R. and R.S.
Respondents
Before Justice K.S. Neill
Heard on March 5, 2025
Reasons for Judgment released on March 7, 2025
B. Tuer — counsel for the applicant society
S. Anand — counsel for the respondent mother
D. Russell — duty counsel for the respondent father
No appearance by or on behalf of R.S., kin caregiver even though served with the motion.
Neill, J.:
[1] The motion before the court deals with who can give consent to medical treatment under the Health Care Consent Act (“HCCA”) for a child who is in the temporary care of kin subject to a supervision order.
Background:
[2] The subject child C.L. is almost 7 months old. The Society has long-standing history with the respondent mother (“the mother”). Her two children G.L. (3 ½ years old) and J.P.L. (2 ½ years old) were placed in an approved kinship placement with R.S. in November, 2023 pursuant to a supervision order and continue to reside there. These two children are the subject of separate protection proceedings.
[3] As indicated below, C.L. is now also placed with R.S.
[4] There are concerns regarding C.L’s father (“the father”) as he struggles with mental health and anger issues. Due to a domestic violence incident between the parents in July, 2024, there are criminal conditions that the father shall have no contact with the mother.
[5] Following C.L’s birth, he was placed with his mother pursuant to several different safety plans and voluntary agreements, including for the mother to reside with the paternal grandparents and with approved friends. By September 16, 2024, a new safety plan was put in place whereby C.L. was residing with the mother at an approved home in St. Marys, with a network of support coming into the home on a daily basis and an approved friend staying overnight with her for a period of time. All access between C.L. and the father had to be supervised by someone approved by the Society, which included the paternal grandparents.
[6] On October 10, 2024, paramedics responded to a 911 call to a home in Stratford regarding a child who was not breathing. When paramedics arrived, they found the father caring for C.L. The father was shaking C.L. and acting erratically. C.L. was breathing, but lethargic, with blood in his nose, bruising on his back and chest and was severely dehydrated. C.L. was transported to the hospital. A joint investigation with the police was initiated. The results of this investigation are unknown.
[7] The mother acknowledged permitting the father to care for C.L. that night without the approval of the Society. There were concerns that the father may have been using drugs at the time.
[8] On October 11, 2024, the Society obtained a warrant to bring C.L. to a place of safety. A Protection Application was commenced and on October 17, 2024, a temporary without prejudice order was made placing C.L. in the care of R.S., subject to society supervision, along with his two older brothers. The mother was granted a right of access to C.L. a minimum of three times per week supervised or unsupervised at the Society’s discretion. The father was also granted a right of access to C.L. supervised or unsupervised at the Society’s discretion.
[9] The matter was before the court on several occasions since October 17, 2024. The mother retained counsel in November, 2024. On December 16, 2024 the temporary without prejudice order was made temporary.
[10] Both parents have filed Answers, but no affidavits in response to the Society’s motion.
[11] On January 21, 2025, C.L. was hospitalized due to a fever and vomiting. He was diagnosed with meningitis, and a blood infection. C.L. had to be transferred to London Health Science Centre. C.L. was quite sick while in the hospital. On January 24, 2025, he required intubation and sedatives and was admitted to the ICU.
[12] The Society approved for the mother to have visits with C.L. while he was at London Health Science Centre every day for 3 hours. The Society arranged for taxis to take the mother to the hospital. However, she has missed some visits due to illness and appointments.
[13] There have been difficulties with both the Society and the kinship caregiver, R.S. in communicating with the mother. The mother lost her phone and had to obtain a new number. The mother indicated that she had issues with her phone as it did not hold a charge. At one point, she did not have access to her phone and believed that she left it at the hospital.
[14] There has also been conflict between R.S. and the mother so R.S. has requested that the hospital provide updates about C.L’s health directly to the mother.
[15] On February 14, 2025, C.L. was transferred to Stratford hospital.
[16] C.L. was scheduled to have an MRI on Friday February 28, 2025. The mother did not attend her scheduled visit at the hospital on February 24, 2025 so was unable to speak with the medical professionals about C.L.
[17] The mother wants to sign any consents for medical treatment for C.L. However, the mother has difficulties communicating, is not always accessible by phone, does not keep her phone charged and calls go to voicemail.
[18] C.L. has been in the care of R.S. since October 17, 2024. The hospital requested that she be the person to consent to medical treatment as she is the primary caregiver present day-to-day at the hospital. The doctors have assumed that it is R.S. who can give consent to treatment for C.L.
[19] On February 24, 2025, the Society brought a Form 14B motion without affidavit evidence that the kin caregiver, R.S. be permitted to consent to treatment on behalf of C.L. pursuant to the HCCA. The mother opposed this request, and therefore a temporary motion was brought by the Society on February 27, 2025 with affidavit evidence seeking to have the supervision terms related to C.L. in the care of R.S. to include that she have authority to give or refuse treatment for C.L. pursuant to the HCCA.
[20] The mother has responded to this motion, but the father has not.
The mother’s response:
[21] The mother indicates that the hospital will not communicate with her directly regarding C.L.’s medical issues. Further, the Society does not always update her on C.L.’s condition.
[22] The mother acknowledges that she has issues with her phone and email and difficulties getting in touch with her at times. She acknowledges that sometimes she is unreachable.
[23] The mother would like to continue to make medical decisions for C.L. Her request is that:
(a) The mother shall sign all consents for medical treatment for C.L. and if she cannot be reached, that the father sign such consents.
(b) If both parents are not available, then R.S. shall sign the consent for medical treatment.
(c) The parents shall be informed and provided with details of the medical treatments.
Health Care Consent Act:
[24] The Health Care Consent Act governs who may give consent to treatment for an incapable person. It is clear that C.L., being less than 7 months old, is not capable of consenting to his own treatment. C.L. is young and vulnerable, and treatment decisions are needed to be made for him on a frequent basis, especially as most recently when he was hospitalized.
[25] Pursuant to the HCCA, the following persons are able to consent to treatment on behalf of an incapable person:
List of persons who may give or refuse consent
s. 20 (1) If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described in one of the following paragraphs:
The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.
The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.
The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.
The incapable person’s spouse or partner.
A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.
A parent of the incapable person who has only a right of access.
A brother or sister of the incapable person.
Any other relative of the incapable person.
Requirements
(2) A person described in subsection (1) may give or refuse consent only if he or she,
(a) is capable with respect to the treatment;
(b) is at least 16 years old, unless he or she is the incapable person’s parent;
(c) is not prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf;
(d) is available; and
(e) is willing to assume the responsibility of giving or refusing consent.
[26] The HCCA also gives a health practitioner the authority to provide emergency treatment without consent, as follows:
Meaning of “emergency”
s. 25 (1) For the purpose of this section and section 27, there is an emergency if the person for whom the treatment is proposed is apparently experiencing severe suffering or is at risk, if the treatment is not administered promptly, of sustaining serious bodily harm.
Emergency treatment without consent: incapable person
(2) Despite section 10, a treatment may be administered without consent to a person who is incapable with respect to the treatment, if, in the opinion of the health practitioner proposing the treatment,
(a) there is an emergency; and
(b) the delay required to obtain a consent or refusal on the person’s behalf will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm.
Emergency treatment despite refusal
s. 27 If consent to a treatment is refused on an incapable person’s behalf by his or her substitute decision-maker, the treatment may be administered despite the refusal if, in the opinion of the health practitioner proposing the treatment,
(a) there is an emergency; and
(b) the substitute decision-maker did not comply with section 21.
Consent for Medical treatment for a Child subject to a Temporary order:
[27] When a court is dealing with the temporary placement of a child on a Protection Application, s. 94 of the Child Youth and Family Services Act (“CYFSA”) outlines the hierarchy of orders that the court can make as follows:
s. 94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.
Criteria
(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).
Placement with relative, etc.
(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.
Terms and conditions in order
(6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,
(a) reasonable terms and conditions relating to the child’s care and supervision;
(b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and
(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.
[28] C.L. is placed with R.S. pursuant to a temporary order made under s.94(2)(c) of the CYFSA, which order was not opposed. Therefore, it is conceded by the parents that there is a risk that C.L. is likely to suffer harm in the care of either parent that cannot be alleviated by supervision terms at this time. However, the parents are clear that they would like to work towards having C.L. returned to their care.
[29] The terms placing C.L. in R.S.’s care do not include a right to consent to medical treatment.
[30] The CYFSA deals with when medical treatment on behalf of a child can be made under s. 110 of the Act, which includes both final interim society care orders and temporary orders.
[31] Section 110 of the CYFSA provides that:
Child in interim society care
110 (1) Where a child is in interim society care under an order made under paragraph 2 of subsection 101 (1), the society has the rights and responsibilities of a parent for the purpose of the child’s care, custody and control.
Consent to treatment — society or parent may act
(2) Where a child is in interim society care under an order made under paragraph 2 of subsection 101 (1), and the child is found incapable of consenting to treatment under the Health Care Consent Act, 1996, the society may act in the place of a parent in providing consent to treatment on behalf of the child, unless the court orders that the parent shall retain the authority under that Act to give or refuse consent to treatment on behalf of the incapable child.
Exception
(3) The court shall not make an order under subsection (2) where failure to consent to necessary treatment was a ground for finding that the child was in need of protection.
Court may authorize society to act re consent to treatment
(4) Where a parent referred to in an order made under subsection (2) refuses or is unavailable or unable to consent to treatment for the incapable child and the court is satisfied that the treatment would be in the child’s best interests, the court may authorize the society to act in the place of a parent in providing consent to the treatment on the child’s behalf.
[32] With respect to temporary orders for placement of children, pursuant to s. 94(7), when a court makes a temporary order placing a child in society care pursuant to s.94(2)(d), section 110 (child in interim society care) applies with necessary modifications. Therefore, when a child is in the temporary care of the society, the society can make medical decisions on behalf of an incapable child.
[33] However, if the child is temporarily placed with kin pursuant to s. 94(2)(c), the kin cannot make medical decisions for the incapable child pursuant to s. 110. The terms of the temporary order placing the child with kin may authorize them to make medical decisions on behalf of the child so that they are a “person who is lawfully entitled to give or refuse consent to treatment in the place of a parent”, pursuant to s. 20 of the HCCA.
[34] The parents are able to make medical decisions as they have a right of access to C.L. pursuant to s. 20(1) under the HCCA.
[35] Justice O’Connell recently dealt with the issue of making medical decisions for a child in the temporary care of the Society in Children’s Aid Society of Toronto v. A.V.G.. Her decision outlined the following principles:
At the temporary care and custody stage of a child protection application, there has been no finding that a child is in need of protection. The child is temporarily not in the care of a parent while plans of care are being investigated and the case is moving forward. As Justice Katarynych stated in Children’s Aid Society of Toronto v. L.P.:
“The legislature never intended the “temporary” adjudication flowing from the temporary motion hearing to trump the protection hearing, nor did it intent a temporary custody order in favour of a children’s aid society to be ‘proof’ of the finding in need of protection claim advanced in the protection application.”
Justice Katarynych further states that when the child is in the temporary care of the Society:
“The legislature does not intend a judge to dictate the manner in which the society exercises its discretion in medical decisions for a child entrusted to its care by the court. Once the temporary custody order is granted, the court withdraws. It is the society’s discretion that dictates what will and will not be authorized for the child – and like all decision-making for the child under the C&FSA, it must be done in a manner that promotes the primary objective of the Act to serve the child’s best interests, protection and well-being.”
[36] On this motion, the court is not asked to rule on who can consent to a specific medical treatment for C.L., such as a blood transfusion as in many other litigated matters. The court is only asking to clarify generally who is permitted to make treatment decisions for C.L. on a temporary basis. There is no evidence that when the mother has been available to make medical decisions for C.L. that her decisions have not been appropriate. There was only one recent concern that the mother wanted a second opinion whether C.L. should have the services of an Occupational Therapist, which could have unnecessarily delayed C.L. in obtaining these services.
[37] Someone must be available to make medical decisions for C.L and it is the kin caregiver who is the one who has been mostly available to medical professionals to make these decisions. The situation would be different if C.L. was in the temporary care of the Society and it is clear that the Society would make those decisions. The CYFSA contemplates that if the parent is unavailable or unable to consent to treatment, the court can authorize the society to consent to treatment. [See s. 110(4) CYFSA.]
[38] The Society’s motion requests that in making medical decisions for C.L., R.S. must make reasonable efforts to first consult with the parents if circumstances permit. Therefore, that initial effort to obtain consent must be made. The mother agreed that R.S. could make medical decisions if she is unavailable. However, she wants to make the decision if she is available to do so.
[39] The father does not oppose R.S. making medical decisions if the parents cannot be contacted. Given the circumstances of C.L. being brought to a place of safety and being rushed to the hospital while in the father’s care, I do not find that it is appropriate that he make medical decisions for C.L. at this point.
[40] As C.L. is only in the temporary care of R.S. and no protection findings have been made, I find that the mother should still make medical decisions for C.L. if she can be contacted. However, this should not be an onerous task to try to track her down. If the mother does not respond to a request to make a medical decision, then R.S. should be able to make that decision. The Society should ensure that the parents are both informed of medical decisions that have been made regarding C.L.
[41] Therefore, there shall be the following temporary order:
The mother, M.F. shall have the authority to give or refuse consent to treatment for the child, C.L., born […], 2024 and shall serve as the substitute decision-maker for C.L. in accordance with s. 9 of the Health Care Consent Act.
Should the mother be unavailable after one effort is made to contact her to give such consent or refusal of consent to treatment, then the kin caregiver, R.S. shall have the authority to give or refuse consent for treatment for the child, C.L.
The Society or R.S. shall advise the parents and provide details of all treatment decisions made for C.L. as soon as possible.
[42] This matter was previously adjourned to a settlement conference on March 20, 2025 at 2 p.m. in-person. Briefs to be filed.
Released: March 7, 2025
Signed: Justice K. S. Neill
[1] 2024 ONCJ 157
[2] Supra.
[3] Supra.
[4] See s. 110(4) CYFSA.