W ARNI NG

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (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.

Court File and Parties

COURT FILE NO.: FC-22-CP24-2 DATE: 2023/06/01 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF LMB born 2008

BETWEEN:

Children’s Aid Society of Ottawa Applicant

AND

LMB (child) And PB (father) And LB (mother) Respondents

Counsel: Danielle Marchand for the Applicant Respondents are Self-Represented Suzanne Y. Cote for the Child

HEARD: May 24-26, 29 2023 by video conferencing, oral decision given May 31, 2023

REASONS FOR DECISION

P.E. Roger

[1] The Children’s Aid Society brings this Application. It seeks an order under s. 164 of the Child, Youth and Family Services Act, S.O. 2017, c. 14, Sched. 1 (“CYFSA”), committing the Child to a secure treatment program at Syl Apps Youth Centre (“Syl Apps”), in Oakville, Ontario.

[2] The Child, born in 2008, opposes the Application, as does the Child’s mother. The father supports the Application.

Overview

[3] This Application was conducted in English and French. The decision is written in English as this was asked by the Child. The decision shall be translated if requested by either parent.

[4] This is an extremely serious case. It involves a 14-year-old who has been described as intelligent, but with many serious issues. The Child’s condition and management have been described as complex. She has spent most of her time, since August 2020, in some form of psychiatric institutional settings. During the last year, she has been involved in many incidents of self-harm. These include intentional mismanagement of her diabetic condition; eating batteries, glass, and nails; cutting herself; and serious incidents of head banging. Some of these put her life at risk and required urgent medical interventions, including surgical interventions to remove what she ingested. In some instances, serious incidents happened despite the Child being hospitalized and under observation by nursing staff.

[5] The Child has been hospitalized at the Children’s Hospital of Eastern Ontario (“CHEO”) continuously since January 2, 2023. Events of self-harm are nonetheless frequent. For her safety, she is under near constant supervision, and her activities are extremely limited. The two psychiatrists from CHEO who testified agree that the Child is regressing and not doing well at CHEO. The consensus amongst these doctors is that the Child should not be in an acute care hospital, but in a secure treatment environment where she can receive required treatment and hopefully reintegrate schooling and some other social interactions.

[6] Last year the Child’s mother brought a secure treatment application under s. 164(1), seeking the treatment that she now opposes. Justice M. Smith of this Court then made an order for secure treatment, see L.M.L.B. v. L.M.B., 2022 ONSC 4194. As a result of this Order, the Child was admitted to secure treatment at Syl Apps mid-July 2022 until her discharge on December 6, 2022. Her return to her mother did not go well and within hours of being home, the Child was urgently admitted to CHEO. The Child stayed at CHEO until December 23, 2022, when she was admitted to an Ottawa group home. That also did not go well; the Child ingested various objects and intentionally mismanaged her diabetic condition. She had to be seen at CHEO during this placement for the management of her diabetes and on January 2, 2023, she was admitted to CHEO for a surgical intervention to remove what she had ingested. She has been at CHEO since, under almost constant observation, to limit further acts of self-harm. Nonetheless, she continues to self-harm.

[7] Representatives of Syl Apps testified that the Child was discharged early from Syl Apps on December 6, 2022, because the Child’s mother refused to accept treatment recommendations suggested by Syl Apps. They said that as a result, they could no longer provide appropriate care for the Child. Syl Apps was so concerned about the child’s required discharge that they reported this to the Society. This resulted in a protection Application and in the Child being placed in the temporary care of the Society. As the child is currently in the Society’s temporary care, the Society now brings this Application.

[8] The Child opposes the Application. She wishes to go home and be with her family and siblings. Counsel for the Child argues that criteria (a), (b), and (e) of s. 164(1) have not been met. She concedes that criteria (c), (d), and (f) have been met. She also argues that it is not in the Child’s best interests to be ordered into secure treatment because even if the ordered period of commitment is 180 days, s. 165(2) of the CYFSA will require that the Child be released after 60 days because the Society is the Applicant under a Temporary Society Care Order. She says that this is not in the Child’s best interests because it will be disruptive and too short to provide any helpful treatment to the child.

[9] The mother argues that none of the criteria at s. 164(1) have been meet, and that an order for secure treatment is not in the Child’s best interests. She alleges that Dr. Smalley was not a credible or reliable witness, that he cannot be believed and that his evidence was not admissible. She also asked, in her closing submissions, if not at Syl Apps, where should the Child be temporarily placed because none of her parents now reside in Ontario. I explained that this issue is not currently before me. She argued that a placement at Syl Apps is not in the Child’s best interests because it would be limited to 60 days and because the Child’s access to financial funding is now at risk because the mother recently moved to Québec City.

[10] The father supports the Application. He agrees with the psychiatrists who testified that Syl Apps is the Child’s only option.

Analysis

[11] Section 164(1) of the CYFSA provides:

Commitment to secure treatment: criteria

164 (1) The court may order that a child be committed to a secure treatment program only where the court is satisfied that,

(a) the child has a mental disorder;

(b) the child has, as a result of the mental disorder, within the 45 days immediately preceding,

i) the application under subsection 161 (1),

(ii) the child’s detention or custody under the Youth Criminal Justice Act (Canada) or under the Provincial Offences Act, or

(iii) the child’s admission to a psychiatric facility under the Mental Health Act as an involuntary patient,

caused or attempted to cause serious bodily harm to themself or another person;

(c) the child has,

(i) within the 12 months immediately preceding the application, but on another occasion than that referred to in clause (b), caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to themself or another person, or

(ii) in committing the act or attempt referred to in clause (b), caused or attempted to cause a person’s death;

(d) the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to themself or another person;

(e) treatment appropriate for the child’s mental disorder is available at the place of secure treatment to which the application relates; and

(f) no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances.

[12] McMaster Children’s Hospital v. L.R.-U., 2019 ONCJ 496 provides, at para. 26:

1. The loss of a young person's liberty is a very serious matter. Decisions that have the potential of resulting in such a loss are not to be made arbitrarily.

2. An order committing a child to secure treatment is to be considered as a remedy of last resort.

3. The applicant bears the onus to demonstrate why the young person should be (or continue to be) committed to a secure program against the child's wishes.

4. To fulfill its onus the applicant must: a. adduce clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five criteria has been met. b. direct evidence from the psychiatrist whose opinion evidence resulted in the child's admission.

5. The court cannot make a ruling on the basis of a summary procedure. It is the applicant's obligation to lead oral evidence and the child is entitled to test that evidence.

6. The evidentiary standard on such applications is that the evidence must be trial worthy. It is not permissible to lead or rely on inadmissible hearsay or on hearsay opinion evidence given only in written form.

7. The court is required to review the evidence with respect to each criteria carefully and exhaustively; and be satisfied that the preponderance of evidence with respect to each of the criteria, supports a finding that the particular criteria has been established;

8. The court may only make an order committing, or extending the committal, where it is satisfied that all of the criteria in subsection 164(1) (secure treatment applications) and ss. 167(1) (extension applications) have been met.

9. The court retains the discretion to decline to make a committal order, even in cases where all of the criteria have been met.

[13] As noted above, even if the six criteria of s. 164(1) have been established, the Court retains the discretion not to make a secure treatment order if it is not in the child’s best interests. Indeed, secure treatment is a highly intrusive procedure.

[14] Mental disorder is defined at section 157 of the CYFSA to mean a substantial disorder of emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgments.

[15] Regarding criteria (b) and (c), there must be a nexus between the mental disorder and the act of causing serious bodily harm or attempt to cause it.

Criteria (a)

[16] Counsel for the Child argues that the evidence does not establish that the Child has a substantial disorder of emotional processes, thought or cognition, which grossly impairs her capacity to make reasoned judgments; that a mere diagnosis is not sufficient. She and the mother submit that Dr. Smalley, from CHEO, gave diagnoses, but did not opine that the Child suffers from a mental disorder because he did not testify how her condition impacted her judgment. The mother also alleges that Dr. Smalley is not reliable or credible because he had to constantly refer to his notes.

[17] Dr. Smalley was probably not sufficiently prepared for his testimony. I agree that at times he struggled to remember events, and frequently needed to refer to the Child’s substantial chart at CHEO. This caused him difficulty as the Child’s CHEO chart apparently includes approximately 10,000 pages. Nonetheless, he generally appeared to do his best to answer questions, often after consulting the chart, and I do not find that any of this negatively impacted his credibility or reliability because his evidence is supported or certainly not contradicted by the evidence of the other witnesses.

[18] Dr. Smalley has been the Child’s most responsible physician since January 9, 2023. He indicated that the Child needs a high level of required observation because of her aggressive and self-harming behaviour, and that this requires two staff always assigned to the Child.

[19] Dr. Smalley testified that the Child suffers from psychiatric disorders, including Oppositional Defiance Disorder, Reactive Attachment Disorder, parent-child relationship problems, and questioned whether she also had Conduct Disorder. The Child also suffers from Type 1 Diabetes. He described the Child as argumentative and defiant. He said that because of her conditions, the Child struggles with her responses, and that some of her behaviours are also directed at others.

[20] Dr. Smalley witnessed probably ten episodes involving the Child, sufficiently serious to warrant physical restraints. Although he did not use these words, what he described clearly amounts to substantial disorders of emotional processes, thought or cognition, which grossly impairs the Child’s capacity to make reasoned judgments. He testified that the Child intentionally ingests foreign objects, intentionally misuses her insulin, and intentionally seriously bangs her head on walls. He said that the Child head bangs sufficiently hard to make holes in the wall, and the evidence indicates that the window of her room at CHEO is covered to prevent the Child from hurting herself. He said that the Child ingests dangerous objects and that she describes all of this to him as an effort to return home. He said that she represents a risk of harm to herself and others, and that events occur almost daily, with about 45 events occurring in May 2023 alone, despite the Child being under the supervision of two staff. Dr. Smalley’s testimony goes beyond providing mere diagnoses. The substance of his testimony makes it clear that the Child has a mental disorder as defined in the CYFSA.

[21] To a lesser extent, Dr. Zuijdwijk, an endocrinology specialist at CHEO who manages the Child’s diabetes since July 2019, also described the Child’s impaired capacity to make reasoned judgment. For example, she testified that the Child knows how to manage her diabetes, yet intentionally mismanages her condition to self-harm. She described an incident on January 9, 2023, when the Child intentionally administered herself an overdose of insulin. As well, the Child occasionally refuses to eat or excessively eats. The Child mismanages her diabetes intentionally, knowing that it could result in serious health risks.

[22] While the evidence indicates that the Child is intelligent and insightful, the Child’s persistent serious misbehaviour cannot be said to be reasoned judgment, or simply bad judgment. Dr. Smalley’s evidence regarding his observations of the Child’s behaviour establishes that the Child’s ability to make reasoned judgments has been impaired by a substantial disorder. Indeed, the Child has repeatedly demonstrated serious self-harming behaviour that is linked to her mental disorder. Dr. Smalley and Dr. Gandy both testified that the Child’s environment at CHEO reinforces poor behaviour and her efforts to engage in self-injurious behaviour. Dr. Smalley said that the Child is only getting worse at CHEO and described an alarming amount of aggression and deterioration.

[23] Assessing the evidence, I am satisfied, on a balance of probabilities, that the Child suffers from a mental disorder as defined at section 157 of the CYFSA.

Criteria (b)

[24] Counsel for the Child, and the mother, argue that an event of serious bodily harm has not been established within the required 45 days. Counsel for the Child argues as well that the nexus between the diagnoses and the harm has not been met. The mother also argues that Dr. Smalley was not credible and was biased because he knows some of the representatives of Syl Apps.

[25] Having interacted professionally on a few occasions with Syl Apps and representatives of Syl Apps does not constitute evidence of bias. Rather, to some extent, this is expected within such a specialized community. An informed person, viewing the matter realistically and practically, would not think that because of this Dr. Smalley is somehow biased.

[26] The Application was started on April 27, 2023. Forty-five days immediately preceding is March 13, 2023. Dr. Smalley’s testimony was not as specific as it could have been. Nonetheless, the sum of his evidence is clear that the Child has been at CHEO since January 2, 2023, and that she has since, regularly, caused or attempted to cause serious bodily harm to herself or others. He said that serious events involving the Child occurred daily. This obviously covers the relevant period of March 13 to April 27. Dr. Smalley said that events included regularly ingesting foreign objects, mismanaging her insulin, and serious events of head banging that damaged the wall. He said that events involving the Child often required physical and chemical restraints and described a child seizing any available opportunity to seriously harm herself. These are not minor events. Although described generally, his evidence about these events provides a sufficient description of the nature of the events, and sufficiently establishes that these were not minor events, occurring during this time, but events serious enough to require medical intervention or treatment.

[27] The evidence of Dr. Smalley establishes that within the relevant period, the Child has clearly been engaging in repeated self-harming behaviour, which constitutes, attempts to inflict serious bodily harm on herself because of her mental disorder. The evidence clearly demonstrates that the Child’s acts were intending to harm. As such, the facts of this case are quite different from those of Ontario Shores Centre for Mental Health Sciences v. C.S., 2016 ONCJ 894.

[28] Criteria (b) has therefore been met.

Criteria (c)

[29] This point is conceded by counsel for the Child.

[30] The mother correctly argues that some of what relates to this is hearsay, as the notes of CHEO were not entered as a business record because the notice provided by the Society to the mother and the Child was short of the seven days required by s. 35 of the Evidence Act, R.S.O. 1990, c E.23. For example, Dr. Smalley reviewed the hospital notes and indicated that he understood that on January 2, 2023, which is prior to his becoming involved in the care of the Child, the Child was admitted at CHEO for ingesting screws, magnets, batteries, and nails, and underwent surgery for their removal. This was admitted as narrative to support Dr. Smalley’s ongoing psychiatric diagnoses and opinions about the Child.

[31] Dr. Smalley also used CHEO’s notes to refresh his memory. For example, the events of January 9, 2023, when he was just starting as the Child’s most responsible physician. Although he did not see the child grab an insulin injector and administer herself an insulin overdose, he participated, on the psychiatric side, in the ongoing diagnosis and treatment of the Child for what he considered was an intentional and serious attempt by the Child to harm herself. The same is applicable to the events of February 11, 2023, when the Child ingested several foreign objects, repeatedly banged her head, and had to be restrained.

[32] Moreover, in addition to what he knows indirectly as a member of the CHEO team looking after the Child and as the Child’s most responsible physician, he testified that he has personal knowledge of about ten serious events involving the Child attempting to cause herself serious bodily harm because of her mental disorder. Although he could not remember the precise specifics of these events, he remembered that they were sufficiently serious to require restraints, and he remembered that some involved serious head banging (sufficient to damage the wall). Although general, he nonetheless provided a sufficient description of the serious nature of these events.

[33] As well, as indicated above, Dr. Zuijdwijk testified that the Child knows how to manage her diabetes. She said that the Child intentionally mismanages her condition to self-harm. She described an incident on January 9, 2023, when the Child intentionally gave herself an overdose of insulin. She explained that the Child occasionally refuses to eat or excessively eats to impact her blood sugar. She testified that the Child mismanages her diabetes intentionally, knowing that it could result in serious health risks. Dr. Gandy also provided evidence relevant to this period.

[34] As indicated earlier, Dr. Smalley’s evidence provides a nexus between the Child’s mental disorder and her self-harming behaviour.

[35] The evidence is sufficient to meet criteria (c).

Criteria (d)

[36] This point is conceded by counsel for the Child.

[37] The mother argues that Syl Apps could not prevent the Child from harming herself. She argues that Dr. Foti and Mr. McNamme, from Syl Apps, were not credible. She argues that Dr. Foti contradicted himself, and that Mr. McNamme appeared to be reading something. She also argues that the child’s ongoing funding from Service Coordination is now uncertain (because the mother recently moved to Québec City), and she argues that Syl Apps, without this additional funding, will not be able to prevent the Child from harming herself.

[38] The mother’s arguments relating to the uncertainty of ongoing funding in Ontario is a self-inflicted argument that is devoid of merit. The mother recently moving to Québec City is, at best, unexplained. The mother led no convincing evidence why this was suddenly required, so close on the heals of the Society becoming involved. The mother’s testimony that she moved to Québec City to be close to family is simply not credible, considering how the mother defensively refused to answer a question from the Court about which family member(s) live in Québec City - she provided a vague and unresponsive answer. As well, the mother did not ask any of the two witnesses from Syl Apps any questions attempting to link Syl Apps’ ability to prevent harm to the Child to the availability of any outside source of funding. Moreover, the Child is currently under the protection of the Society, within this province. Consequently, the mother’s arguments about the availability or impact of not receiving any outside funding for the Child are without merit.

[39] Dr. Foti and Mr. McNamme were nervous. Their past relationship with the mother was difficult, and this was apparent during their respective testimony. Syl Apps is prepared to accept the Child but will communicate only with the Society. Considering all of this, they were both occasionally defensive. Nonetheless, their evidence is credible and reliable because it is not contradicted, and because during their respective testimony each conceded the obvious. For example, Dr. Foti was candid when answering questions about the viability of a 60-day placement and about how it is usually better for children to be near their parents. Concerning the allegation that Mr. McNamme was looking at or reading something, Mr. McNamme was asked about this and confirmed that he was not, which I accept.

[40] The evidence of Dr. Foti and Mr. McNamme was also consistent with that of Dr. Smalley, Dr. Gandy, and Dr. Zuijdwijk, all from CHEO. These three CHEO doctors testified that the proposed secure treatment at Syl Apps would be effective for the Child. Dr. Gandy and Dr. Zuijdwijk were called by the mother.

[41] Dr. Gandy was the Child’s treating psychiatrist from January 2021 until July 2022, when the Child left CHEO and was committed at Syl Apps, and again in December 2022 when she returned to CHEO. He has not been involved in the Child’s care since January 2023, when Dr. Smalley took over her care at CHEO. He described the Child’s diagnoses while she was in his care. These are described in the decision of Justice M. Smith, mentioned above. He described the Child’s serious self-injurious behaviour while under his care, again this is described in the decision of Justice M. Smith.

[42] Dr. Gandy described an attempted discharge plan in January 2021, which did not proceed because of the Child’s violent behaviour. He said that the Child could not be safely discharged with family or friends, and they looked for other options and resources in the community. A placement with Robert Smart was eventually unsuccessfully attempted.

[43] During the period between February 2022 and July 2022, Dr. Gandy testified that CHEO had two staff assigned to the Child. He said that on difficult days, the Child was aggressive, posed a risk of harm, and had to be restrained, both physically and medically. He described a binging behaviour that also put the Child at risk considering her diabetes. His evidence confirms that the Child understands the risks associated with her diabetes, and that she intentionally mismanages it. He said that she “weaponized” her diabetes, and that this represented a significant risk for her. I note that parts of Dr. Gandy’s evidence fall within the 12 months prior to the Application being issued on April 27, 2023, and could be applicable to the criterion at s. 164(1)(c). I note as well that his evidence generally confirms the evidence of Dr. Smalley. Dr. Gandy also confirmed that Syl Apps could manage the Child’s diabetes, with the help of CHEO.

[44] About the Child’s best interests, Dr. Gandy confirmed that remaining at CHEO harms the Child, and that the only option for the Child is a secure placement at Syl Apps. He said that he sees “no other way”.

[45] Dr. Zuijdwijk confirmed that Syl Apps can manage the Child’s diabetes.

[46] Dr. Foti confirmed that Syl Apps would be effective to prevent the Child from causing or attempting to cause serious bodily harm to herself or others. He described Syl Apps’ preparation and treatment plan. Syl Apps provides both a secure environment, and the possibility of developing the Child’s interactions, which is not available in a hospital setting. He described sufficient resources and staff. Moreover, the evidence indicates that the Child did well at Syl Apps during her last placement, that she improved, and probably could have done better had the mother not interfered.

[47] In this regard and relating to the early discharge from Syl Apps on December 6, 2022, I prefer the evidence of Dr. Foti and Mr. McNamme to that of the mother because the mother has a history of conflict with the Child’s medical providers, including Syl Apps, CHEO, and Robert Smart. The mother has made numerous complaints against Dr. Smalley. She refused to cooperate with the Society, to the detriment of the Child. As well, the evidence indicates that the mother inundated medical professionals who were caring for the Child with emails, causing a point person to occasionally have to be appointed to communicate with the mother because she overwhelmed staff. Further, the evidence indicates that if the mother perceives that she has been poorly treated or insulted by someone, she will prioritize receiving an apology over the best interests of the Child.

[48] By way of example about the above, the mother felt that she had been insulted by Dr. Foti. He testified that he apologized for what he said. He stated that the mother refused all recommendations and plans of care from Syl Apps during the last placement. He said that this made the Child’s ongoing treatment impossible, and that the decision to discharge the Child was difficult. He said that the mother refused to allow Syl Apps to communicate with CHEO or Robert Smart and refused their recommendations for the required discharge. He said that the mother’s systemic involvement interfered with the appropriate processes to meet the Child’s needs. The mother did not deny any of this during her testimony.

[49] Another more recent example is the mother’s refusal to see the Child while the Child is currently at CHEO, apparently since about February 2023, because the mother perceives that she has been insulted by Dr. Smalley. The mother refused to answer questions about how this might impact the Child’s best interests, during her cross-examination. She gave a vague, unresponsive answer. She was also asked if she would visit the Child, whether at CHEO or at Syl Apps and she refused to answer, saying that she wants to avoid false accusations about the impact of her visits.

[50] Drs. Smalley and Foti understand the Child’s needs, as well as the treatment opportunities available at Syl Apps. The expert evidence clearly establishes that the only available and effective option to prevent the Child from causing or attempting to cause serious bodily harm to herself is the secure treatment program at Syl Apps.

[51] Criteria (d) has been met.

Criteria (e)

[52] For criteria (e), it must be demonstrated that the secure treatment is available and that it is appropriate for the child.

[53] Both counsel for the Child and the mother submit that Syl Apps is not appropriate because of the possibility that s. 165(2) of the CYFSA will limit the Child’s attendance to 60 days. Dr. Foti candidly admitted that it would be detrimental for the Child to leave after 60 days, that 180 days would be better. He said that 60 days is not worth the efforts as it would cause too many transitions for the Child.

[54] However, the evidence is clear that a place is available for the Child at Syl Apps and that a place is immediately available. Every day that the Child is not in secure treatment is detrimental to the Child, hence the urgency. As well, the evidence is clear that Syl Apps is the only appropriate option for the Child. Nothing else is currently available, despite the Society having explored possible options.

[55] The mother has provided no evidence about her proposed plan to have the Child assessed at a Québec City hospital and then transferred into some appropriate treatment program near Québec City. Furthermore, Dr. Gandy testified, assuming there was evidence supporting this plan, that its implementation would be months away, and that every day that the Child stays in a hospital setting, she deteriorates. He said that anything that creates delay is not in the Child’s best interests.

[56] As was the case at the earlier hearing before Justice M. Smith, all doctors involved with the Child are concerned with her current hospital setting. The Child needs proactive treatment and because of the nature of the hospital setting, she is not getting what she requires. Dr. Foti opined that given the Child’s presentation, the secure nature of an institution like Syl Apps and its treatment programs is necessary and needed for the Child.

[57] I am similarly impressed with the amount and quality of the work that Dr. Foti and his team, and that CHEO and its team, have put together in preparation for a possible order of secure treatment for the Child. I find that Syl Apps has all necessary resources to receive the Child, meet all the Child’s needs, and implement the appropriate treatment for the Child.

[58] What is argued is a “possibility” that the placement will be limited to 60 days. I do not know at this time how the parents will react assuming a successful placement and successful start at Syl Apps. The mother could change her mind should she realize that this is in the best interests of the Child. Moreover, I have communicated with the Regional Senior Judge responsible for our region and have been informed that if a trial is required, all reasonable efforts will be made for a trial to be timely scheduled.

[59] Considering the above, the mere possibility of an early release, despite its potential detrimental impact on the Child, pales in comparison with the otherwise ongoing detriment of remaining at CHEO, and potential benefits to the Child should a sufficiently long commitment occur (which at this time seems probable).

[60] Criteria (e) has been met.

Criteria (f)

[61] This point is conceded by counsel for the Child.

[62] The mother’s arguments are focused on her plan that the Child be assessed at a Québec City hospital to be transferred to some available treatment centre or program near Québec City, and that because she has moved, the Child has no parent in Ontario, which she alleges could impact available resources.

[63] The Society has provided clear evidence of their efforts at identifying and pursing other possible options, and none is possible. This was clearly described by Ms. Soucy. On the topic of exploring other options, I note the mother’s refusal to cooperate with the Society. Indeed, until very recently the mother refused to disclose her new address to the Society, impending their efforts, and refused to sign required consents to allow the Society to explore a suggested placement with the maternal grandmother (who resided near Ottawa).

[64] As indicated above, the mother has presented no evidence to support these arguments, and s. 91 of the CYFSA appears applicable to the question of jurisdiction.

[65] The evidence of Drs. Smalley and Gandy is clear.

[66] It is clearly established that there is no less restrictive method of providing treatment appropriate to the Child’s mental disorder. I am satisfied that Syl Apps is the only option for the Child and that all suitable options have been explored.

[67] Criteria (f) has been met.

Residual Discretion

[68] Counsel for the Child and the mother submit that even if I find that the six criteria have been met, an order for secured treatment to Syl Apps should not be made because, they allege, the proposed plan is not in the Child’s best interests. Counsel for the Child limits her arguments about this to the “possibility” of the Child’s committal being limited to 60 days because of s. 165(2) of the CYFSA. The mother also argues that she will be far from the Child if Syl Apps is ordered, which she says is not in the Child’s best interests and argues the possibility of some loss of funding because of her recent move to the province of Québec.

[69] I have already dealt with most of the above arguments, see above. Briefly, the 60 days argument is not a sufficient possibility when compared to the certainty that the Child currently has no other option and constantly regresses every day that she remains in a hospital setting. On the topic of distance between mother and Child, the mother was near the Child until she recently moved, yet she has refused to see the Child since February 2022, even virtually, and she refused to answer when asked whether she understands how this is impacting the Child. Dr. Smalley suggested a parenting capacity assessment, which could be conducted at a hospital near Syl Apps. Considering the evidence, it is not currently clear how the Child being near Toronto will have more of an impact on her mother’s visits.

[70] Moreover, when Dr. Gandy was asked about this by the mother, he compared the ongoing prejudices to the Child of remaining in a hospital setting with the benefits for the Child of Syl Apps despite being far from her parents and said that the priority for the Child at this moment is to be in a centre that better meets her long-term needs. That irrespective of distance from her parents, Syl Apps is in the Child’s best interests as he sees “no other way”.

[71] The Child has been at CHEO since January 2, 2023, and other than Syl Apps, there are no other discharge plan for the Child. The in-patient unit at CHEO is meant for acute care. Because of the type of setting offered by CHEO, there are no proactive therapeutic treatment plans at CHEO. Drs. Smalley and Gandy clearly said that it is not in the Child’s best interest to remain at CHEO.

[72] Syl Apps has experience with the Child and has taken necessary steps to ensure appropriate treatment for the Child. The evidence also indicates that the Child will have more freedoms at Syl Apps than what is currently available at CHEO. Not only will the Child receive needed therapy, but she might also have the opportunity to socialize.

[73] Syl Apps will be supported by CHEO. Dr. Zuijdwijk testified that CHEO has been having meetings with Syl Apps and she believes that they have adequate resources to manage the Child’s diabetes. If any intervention is necessary, a nearby hospital is available.

[74] I am convinced that the secure treatment at Syl Apps is in the Child’s best interests. It is the only viable option, and there are no other less restrictive alternatives. Syl Apps is the only option that provides the Child with appropriate therapeutic interventions to hopefully treat her mental health disorders.

Appropriate Length Committal

[75] The Society argues that 180 days is required. During closing submissions, Counsel for the Child and the mother did not make submissions on the appropriate length of committal.

[76] The evidence clearly establishes that the Child suffers from serious mental health disorders. There have been multiple admissions to CHEO’s in-patient psychiatry unit. With the most recent admission at CHEO, the Child’s condition has deteriorated.

[77] Dr. Smalley testified that to stabilize the Child’s behaviours, a long-term therapeutic process is needed. He said that extensive work is required, involving long term psychotherapy. The Child’s aggressive behaviours need to be contained. The Child needs to be given the opportunity to engage in pro-social activities.

[78] It is clear from the evidence, that sufficient time is required to allow for the development and implementation of a therapeutic treatment plan. When last at Syl Apps, the Child was there from July to December 2022, which was not sufficient.

[79] Considering the evidence, the Child’s complex presentation, and required treatment, a committal of 180 days is appropriate and necessary. Any shorter period would probably be insufficient for Syl Apps to implement appropriate treatment for the Child.

Conclusion

[80] The Application is granted.

[81] The Child shall be committed to the secure treatment program at Syl Apps Youth Centre for a period of 180 days. While the Child is under the care of the Society, all communications between Syl Apps and the mother shall be through the Society.

P.E. Roger J.

Released: June 1, 2023

COURT FILE NO.: FC-22-CP24-2 DATE: 2023/06/01 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF LMB born 2008

BETWEEN:

Children’s Aid Society of Ottawa Applicant

AND

LMB (child) and PB (father) AND LB (mother) Respondents

REASONS FOR DECISION

P.E. Roger J.

Released: June 1, 2023