Court File and Parties

Court File No.: Halton 408/14 Date: 2015-11-23 Ontario Court of Justice

Between:

Syl Apps Youth Centre, Dr. Rod Evans Applicant,

— AND —

M-F. M. Respondent.

Before: Justice Victoria Starr

Heard on: September 30, October 27, 2015

Reasons for Judgment released on: November 23, 2015

Counsel

Melanie de Wit — counsel for Syl Apps Youth Centre

M-F. M. — on her own behalf

Robert Murdoch — counsel for the Office of the Children's Lawyer, legal representative for the young person

VICTORIA STARR J.

OVERVIEW

[1] This case addresses the subject of secure treatment and appropriate planning for the release of a mentally ill child who is on the cusp of adulthood.

[2] 17 year old A.M. has been committed to Syl Apps Youth Centre ("Syl Apps"), a secure treatment facility since March 2014. Her commitment there has been extended a number of times by virtue of four previous orders (September 18, 2014, March 25, 2015, September 30, 2015, and October 27, 2015).

[3] The applicant on behalf of Syl Apps has brought an application for a further 180 day extension of A.M.'s commitment in that secure treatment program. A.M. opposes any further extension of her committal to secure treatment.

[4] A.M. turns 18 on December 24th, less than a month away. If the extension is granted the period of A.M.'s committal will extend into adulthood.

[5] The application was brought by physician, Dr. Rod Evans, under Part VI (Extraordinary Measures) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended ("the Act").

[6] A.M. is the young person before the court and her mother is the respondent. Gary Watson is the administrator of the Syl Apps.

[7] The hearing of this extension application began on September 30, 2015. At that time the court adjourned the hearing so that counsel could provide the court with case law addressing the issue of what constitutes an appropriate plan of care for a young person on release from the secure treatment program – the fifth criteria as set out in subsection 120(5) (e) of the Act. The hearing continued on October 27, 2015 and at its conclusion, the court reserved its decision and indicated that it would provide a written decision and reasons.

[8] The last two orders extending A.M.'s committal were each for a further 30 days, and were made on consent to accommodate the adjournments on September 30, 2015 and October 27, 2015. The most recent order will expire on November 26, 2015.

THE COURT'S DECISION

[9] This court grants a further 180 day extension of A.M.'s committal to Syl Apps, commencing November 26, 2015, the date when the current order expires. These are the court's written reasons for this decision.

THE POSITION OF THE PARTIES

[10] Gary Watson on behalf of Syl Apps and A.M.'s mother consent to an extension of A.M.'s commitment in Syl Apps.

[11] The applicant's position is that it has satisfied its onus to establish that all five criteria in subsection 120(5) have been met. As such, an order extending A.M.'s commitment to Syl Apps should be granted. The five criteria that must be satisfied pursuant to subsection 120(5) are:

• (a) the child has a mental disorder;
• (b) the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to himself, herself or another person;
• (c) no less restrictive method of providing treatment appropriate for the child's mental disorder is appropriate in the circumstances;
• (d) the child is receiving the treatment proposed at the time of the original order under subsection 117(1), or other appropriate treatment; and
• (e) there is an appropriate plan for the child's care on release from the secure treatment program.

[12] A.M. concedes that Syl Apps has met the first four of these criteria. She opposes the extension of her commitment to secure treatment at Syl Apps solely on the basis that the applicant has not established the last criteria - that there is an appropriate plan for her care on her release from Syl Apps.

THE ISSUES

[13] The two contested issues this court must decide are:

• (a) Whether there is an appropriate plan for A.M.'s care on her release from the secure treatment program; and,
• (b) If so, what length of extension of A.M.'s committal is appropriate.

THE EVIDENCE

Sources

[14] Only Maria Zazzarino, Intensive Resource Coordinator ("IRC") with the Intensive Support Resource Coordinator Program and A.M.'s mother gave evidence at the hearing. The balance of the evidence before the court consists of two affidavits sworn by Ms. Jessica Ducharme, Sly Apps Clinical Case Coordinator: one sworn on September 17, 2015 and the other sworn on October 23, 2015. A Secure Treatment Extension Report, dated September 9, 2015, prepared by Ms. Ducharme and Dr. Jennifer Hawes (Syl Apps Lead Manager – Forensic Service), is attached to Ms. Ducharme's September 17, 2015 affidavit. A letter dated October 20, 2015, written by Maria Zazzarino, is attached to Ms. Ducharme's October 23, 2015 affidavit. Both Ms. Zazzarino's letter and the Secure Treatment Extension Report were admitted as evidence in these proceedings, on the consent of the parties.

A.M.'s CLINICAL PROFILE, TREATMENT, PROGNOSIS AND NEEDS

[15] A.M. was admitted to Syl Apps on March 7, 2014. She had been transferred there from McMaster Children's Hospital due to self-harming, and violent and aggressive behaviors towards others.

[16] A.M.'s mental health diagnoses include: Autism Spectrum Disorder, Mild Intellectual Delay, Tourette's syndrome, Attention Deficit Hyperactivity Disorder (ADHD) and Obsessive Compulsive Disorder (OCD).

[17] A.M. has exhibited severe and chronic self-harming behaviours and aggression towards others. In the 3 - 4 years prior to her admission to Syl Apps, her self-harm, violent, and aggressive behaviors included: drinking bottles of mouthwash, swallowing bottles of medication, swallowing batteries, and involvement with police due to ongoing aggressive behaviors towards others.

[18] Since her admission to Syl Apps, A.M.'s self-harm behaviors have included: inserting objects into her body cavities, swallowing objects, head banging, superficial cutting, jumping\falling down flights of stairs, inserting her fingers into electrical sockets, self-induced vomiting, and self-strangulation\choking with her hands, clothing, cords, and fruit. At times she has required hospitalization due to obstruction of her airway from ingesting items and for wound care\sutures from head banging. A.M.'s self-harm behaviors are chronic and severe.

[19] Two recent incidents highlight the fact that A.M. remains at significant risk of severe harm. On October 18, 2015, A.M. swallowed a razor while on a pass at her parents' home, necessitating an emergency hospital attendance. On October 21, 2015, she defecated and re-ingested the razor while in the care of Syl Apps, prompting another hospital attendance. Both incidents occurred despite the high degree of structure, supervision, and support provided to A.M. by her treatment team and parents.

[20] A.M.'s display of aggression towards others has included: punching, kicking, biting, throwing objects and threats to physically or sexually assault staff or peers. Other concerning behaviours exhibited by A.M. include: attempting to AWOL internally from staff; displaying highly sexualized behaviors both verbally and physically by removing all of her clothing in front of the staff; and making false sexual allegations against another youth which she has recanted. Most recently, A.M. also became aggressive towards her parents and attempted to swallow a bottle of pills.

[21] Due to the severity and chronic nature of A.M.'s behaviours, A.M. is at great risk of significant harm. To protect her, various steps have been taken at various times. For example:

• (a) A.M. has been placed on enhanced monitoring, with a 2:1 staff team;
• (b) In December 2014 A.M. was moved to her own unit to decrease stimulation in her environment and to implement a behaviorally based management plan;
• (c) At times, A.M. has also been restricted in terms of her access to hygiene containers and packaging as well as utensil privileges due to security and safety risks.

[22] In addition to ensuring that A.M. is placed in a highly structured and supervised setting with 24 hour monitoring to prevent or minimize her ability to harm herself, A.M. receives intensive daily treatment at Syl Apps from a multidisciplinary team involving psychiatry, psychology, social work, a behavior specialist, art therapist, and child and youth workers. A.M. is currently working under a dialectical behavior therapy framework to develop skills in understanding and managing her emotions. She continues to take prescribed medications which are monitored by wellness staff and psychiatry. In addition, a clinical behavioral specialist has been brought in to assess A.M. in her environment at Syl Apps with a view to making suggestions about different strategies Syl Apps can employ to reduce A.M.'s life threatening behaviors. A.M. has also worked with behavior therapists from Monarch House, who have come to assess A.M. in her environment at Syl Apps, and provide recommendations to her staff team on how to manage her difficult behaviors.

[23] The high level of supervision and structured environment that Syl App's is able to provide to A.M. coupled with the intensive treatment services she receives, have been effective. For example in the first two months of her committal to Syl Apps, the number of critical incidents decreased from approximately 70 in March 2014 to approximately 64 incidents in April 2014. By May 2014, A.M.'s incidents had decreased to 36. Since the date of the last extension (March 25, 2015), A.M. has incurred approximately 157 incidents of self-harm and aggressive behaviors which equates to roughly 25 – 26 a month. Currently, A.M. has small pockets of safe days, on a few occasions going 4 to 6 days without an incident. She has further improved with her bedtime routines and there has been a decline in incidence after being secured in her room at night.

[24] For integration purposes, a pass program was developed and implemented by A.M.'s parents and the Syl Apps treatment team. To date, A.M. has had over 60 unsupervised passes in the community with her parents. Of that 60, A.M. has had 35 successful passes in the community with no behavioral concerns while on pass or upon return.

The Plan and its Contingencies

[25] As A.M. will soon turn 18, the time is fast approaching when she will no longer meet the age criteria for secure treatment and will have to be moved to the community. Syl Apps has been working to create a plan for her upon release, or as they put it, a plan for her transition and reintegration into the community.

[26] As a patient with complex mental health diagnoses and needs and who remains at significant risk of serious harm given the chronicity and severity of her behaviours, the clinical recommendation for A.M. is treatment in a structured, secured, and supervised environment. Such an environment will keep her safe, support her treatment needs, and decrease her self-harm and aggressive behaviors.

[27] Placement settings that would approximate the kind of placement setting A.M. requires do not appear to exist in the adult sector. It is therefor necessary for a placement setting to be customized for her. This in itself is challenging but the challenge is compounded by the limited community resources available (including residential treatment placements) and as well, given the limited sources of funding for young persons who are 18 and with A.M.'s clinical profile and needs.

[28] Maria Zazzarino has been involved with A.M.'s case management in the community. She has been working with the service resolution team in identifying an appropriate placement, additional supports, and funding for A.M. in her home community. She testified that the plan is for A.M. to be released to a residential placement in the adult sector available through Developmental Services of Ontario (DSO). It is also through the DSO that A.M. would be able to access the highly specialized treatment and supports she will require upon release from Syl Apps.

[29] She gave details of the efforts made to ensure that the plan comes to fruition. As a first step it was necessary for A.M, to be deemed DSO eligible. This step has already been completed as in the summer of 2015, A.M. completed an assessment that resulted in her being deemed eligible for a referral to DSO.

[30] The next steps for this process include intake interviews with A.M., family members, and her clinical team for the purposes of reviewing A.M.'s critical and risk profile and establishing the necessity requirements for reintegration within a community placement.

[31] Part of the DSO planning also involves requesting a plethora of services and supports through the DSO process. These will include: residential supports, community participation supports, and specialized services such as counseling, behavior management, speech and language, dual diagnosis and service coordination.

[32] Unfortunately, the DSO application and necessary referrals to residential placements and services through the DSO cannot be initiated until A.M. actually turns 18. Even at that point, A.M. will be placed on various registries\waitlist for a fully-funded bed, services and supports. Under cross-examination Ms. Zazzarino admitted that the waitlist for a fully funded DSO bed coupled with the inability to be placed on the waitlist for placement and specialized services until A.M. turns 18, raises the real possibility that it could be a year before A.M. can actually access a fully funded bed.

[33] Ms. Zazzarino gave evidence about Syl App's contingency plan. The plan, if a DSO bed and services are not yet available by the time A.M. is released into the adult sector, is for her to transition to a Transitional Age Youth (TAY) placement. TAY settings provide residential placement for transitional youth (youth 17+ years old) who have varying degrees of developmental delay and\or autism and who are deemed DSO eligible, while they wait for a fully funded DSO bed. Passport funding for such services as counseling and life skills is available. Placement and funding through TAY is available until the youth reaches age 24.

[34] Syl Apps has already initiated this parallel process. Part of the planning process has involved exploring and identifying a residential setting through TAY. So far, a number of TAY settings have agreed to receive and review a referral package to determine A.M.'s eligibility.

[35] Ms. Zazzarino's evidence is also that through TAY there is a possibility of a group home setting in Oakville. The plan is for it to have three adults in it and there is a possibility that A.M. would be the third with the potential of having her own basement unit. When questioned under cross-examination about how a basement unit in the proposed group home could physically accommodate A.M. and the two staff A.M. needs around the clock to supervise her, Ms. Zazzarino said her information is that it will be suitable for three people. Unfortunately, it has not yet been purchased and this raises the possibility that the space will not ultimately be available for A.M.

[36] Ms. Zazzarino also said that even after a TAY placement is found, the services A.M. needs will still need to be purchased. A plan to secure such funding is underway through a process that she hopes will result in A.M. receiving Complex Special Needs Designation (CSN). A CSN designation is available to children\youth under the age of 18 with a diagnosis of a developmental disability. It provides funding for an intensive level of service where there are serious complex concerns\challenges. A presentation was made recently to the Children's Review Committee for A.M. to receive this designation.

[37] Unfortunately in order for the Children's Review Committee to consider the request for CSN designation, a comprehensive plan of support is required to be developed. The IRC is in the process of gathering the required information and submitting it to the Children's Review Committee. Thus, whether A.M. will be deemed eligible for CSN funding has yet to be determined.

[38] The IRC has also consulted with System Wise, a service resolution mechanism within the central west region. She intends to present A.M. to the committee on October 29, 2015. The purpose of the meeting is to obtain suggestions from various participating community agencies. The goal is to identify additional appropriate service providers available in adult mental health services community, including housing, counseling and case management.

[39] A.M.'s mother testified that she and her husband have nothing in place for A.M. and that they would not be able to keep her safe if she was released to their care. As such, residing in the family home on her release from Syl Apps is not an option being explored at this time. A.M.'s mother did indicate that she and her husband have the financial means to assist in supplementing services for A.M. for a significant period of time. Indeed, they have already supplemented some of the services offered to A.M. at Syl Apps by paying for such things as the behavioral services.

Length of Committal Term

[40] Ms. Ducharme's evidence is that the clinical team at Syl Apps recommends a six-month secure treatment extension for A.M. to allow time for further stabilization of her high risk behaviors, and to allow time for a residential treatment placement in the adult sector to be identified. Further, once a placement is secured and it is determined whether or not A.M. will meet the criteria for Complex Special Needs funding, time will be needed to develop and implement a highly supported reintegration plan so as to mitigate the risk of setbacks while A.M. transitions into the community.

THE LEGISLATIVE FRAMEWORK

[41] In this case section 120 is the key section that applies.

[42] Pursuant to subsection 120 (1), the application and order for an extension of an order made under subsection 120(5) may only be made without the young person's consent, if the young person has not yet attained the age of 18 and the application and order are made before the expiry of the period of commitment.

[43] The criteria for extending a young person's commitment to a secure treatment facility is set out under subsection 120(5) of the Act as follows:

(5) Criteria for extension. -- The court may make an order extending a child's commitment to a secure treatment program only where the court is satisfied that,

(a) the child has a mental disorder;

(b) the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to himself, herself or another person;

(c) no less restrictive method of providing treatment appropriate for the child's mental disorder is appropriate in the circumstances;

(d) the child is receiving the treatment proposed at the time of the original order under subsection 117(1), or other appropriate treatment; and

(e) there is an appropriate plan for the child's care on release from the secure treatment program.

[44] As directed in subsection 120(6) of the Act, when making an order under subsection (5) above, the court must specify in the order a period not exceeding 180 days for which the child shall be committed to the secure treatment program.

[45] Subsections 118(4), 120(2) and 1(1) of the Act are also relevant due to the close proximity of A.M.'s 18th birthday. As a result of that looming milestone, the length of the extension sought would, if granted, result in A.M.'s commitment to Syl App's secure treatment program against her will, well beyond her 18th birthday.

[46] Subsection 118(4) makes clear that the court has the authority to make an order prior to the young person's 18th birthday that will extend the period of commitment beyond her 18th birthday. In effect, such an order secures the commitment of a young adult who has not given her consent to be committed to a secure treatment program, until the term of the order made before she turned 18, expires.

[47] Subsection 120(2) is relevant in this case because A.M. is not expected to consent to a further committal term after she turns 18 years and the restrictions in that subsection explain the applicant's change in position at the hearing with respect to the length of the extension. Its plan is to make another application to extend A.M.'s committal shortly before she turns 18. Subsection 120(2) makes clear that where a person is kept in the secure treatment program pursuant to an order made under subsection 118 (4) after attaining the age of 18 years, any further application to extend the person's commitment must be made with the consent of the person. That subsection also stipulates that in such instances, the application and order must be made before the expiry of the period of commitment. It also stipulates that only one further order extending the person's commitment to the secure treatment program may be applied for and granted.

[48] I have finally also given consideration to subsection 1(1) as it outlines the Act's purposes. Subsection 1(1) states:

1. (1) The paramount purpose of this Act is to promote the best interests, protection and wellbeing of children.

[49] The forgoing sections and thus, the court's power to extend the committal of a young person to a secure treatment program comes under the title of "EXTRAORDINARY MEASURES" in a special portion of the Act – Part IV. This placement has been interpreted in a number of cases as a clear signal within the legislation that the committal of a young person to a secure treatment facility is a highly intrusive procedure where the liberty of the young person is at stake.

[50] The enumeration of specific criteria coupled with the conjunctive nature of the criteria in subsection 120(5) serve as legislative safeguards against the arbitrary loss of a young person's liberty. So too do the general principles that have emerged from the small body of jurisprudence available in this area of law. Nowhere is this more apparent than in Nasmith J.'s decision and reasoning in the case of Re A.(J.), supra. In that case he comments extensively on the application of the criteria, heavy evidentiary onus, and the obligation of the court.

[51] These are the key guiding principles that emerge from the early case of Re A.(J.), supra to safeguard against the arbitrary loss of a young person's liberty:

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 made arbitrarily;

2. The applicant bears the onus to demonstrate why the young person should continue to be committed to a secure program against her wishes;

3. To fulfill its onus the applicant must adduce clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five criteria has been met;

4. 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;

5. The court may only make an order extending the committal where it is satisfied that all five criteria in subsection 120(5) have been met.

[52] It is within this legislative context and with these guiding principles in my mind that I have considered the evidence and decided the issue of whether the applicant has met its onus to show that there is an appropriate plan of care for A.M. on her release from the secure treatment program at Syl Apps.

ANALYSIS

The First Four Criteria

[53] As conceded by A.M. through her counsel, the applicant has met four of the five criteria for an extension of her committal. After reviewing the affidavit evidence of Ms. Ducharme, and hearing the oral evidence of Maria Zazzarino and A.M.'s mother, I am satisfied that the first four criteria have been met. Specifically, and having regard to all of the evidence recounted above, I find that:

• (a) A.M. has a mental disorder;
• (b) She is receiving the treatment appropriate for her mental disorder at the time the original order was made;
• (c) Syl Apps continues to be effective in preventing A.M. from causing or attempting to cause serious bodily harm to herself; and,
• (d) Syl Aps is the least restrictive method of treatment appropriate for A.M.'s mental disorder in the circumstances. Indeed, there was no evidence of any other treatment method available, let alone less restrictive, presented to the court for its consideration.

[54] I turn next to the main issue - whether Syl App's has met its onus to show that there is an appropriate plan of care for A.M. on her release from the secure treatment program.

The Submissions with respect to S. 120(5)(e)

[55] The applicant submits that all subsection 120(5) (e) requires, is that the applicant advance a course of action regarding recommended placement and services with some assurance that it will be able to implement that plan, but which allows room for contingencies and fluidity depending on the child's actual situation and the actual available resources at the end of the period of secure treatment. In support of its position the applicant relies upon the case of Hamilton Children's Aid Society v. S. (S.) 2012 CarswellOnt17217, and in particular, upon Justice Chappel's comments at paragraphs 41:

41 In my view, in interpreting section 120(5) (e) of The Child and Family Services Act it is necessary for the court to be realistic of the ability of the Society and care providers to engage in this type of predictive analysis and about the resources available in the community. Section 120(5) (e) in my view requires the Society to advance, as suggested by Ms. Watts, a course of action regarding recommended placement and services with some assurance that it will be able to implement that plan, but which allows room for contingencies and fluidity depending on the child's actual situation and the actual available resources at the end of the period of secure treatment. I am satisfied that the Society has met this onus.

[56] The applicant submits that the plan it has proposed meets these criteria and thus, the criteria in subsection 125(1)(e) has been met.

[57] A.M. submits that the applicant has failed to establish that there is an appropriate plan of care upon her release from Syl Apps. She submits that to meet its onus under subsection 120(5) (e), the applicant must identify a clear and precise plan for A.M.'s care when she is discharged from secure treatment. Mr. Murdoch submitted that the closer the young person gets to adulthood, the less time there is available. This creates greater need for a more detailed, clear and precise plan for the young person upon release. In this case, he submits, all the evidence establishes is that there have been excellent and extensive attempts made to create a plan for A.M. upon her release but with most of the balls still up in the air, there is, no clear and precise plan.

[58] Ms. Dewitt's submission in reply is that Mr. Murdoch's approach is too onerous and unrealistic. Further that his approach calls for the applicant and for the child's care providers to essentially try to engage in the impossible task of predicting precisely the state of the child's progress in six months, what placements will be available at that time, where, as well as the precise resources that will be available and/or appropriate for the child, having regard for the state of her progress at that time. In support of this position she also relies on the comments of Justice Chappel found at paragraph 40 of her decision:

40 I wish to address Mr. Murdoch's argument regarding the proper approach to section 120(5) (e) of The Child and Family Services Act . As I indicated previously, his view is that the plan required by this section is one with full and complete details regarding all aspects of the child's care, including identification of all specific resources that are being recommended. While I agree that the test in this case is not the child's best interests, and that the court must adopt a strict approach to the determination of the criteria to be met, in my view the approach suggested by Mr. Murdoch is too onerous and is unrealistic. In a situation such as this one where the request is to extend secure treatment for a period of 180 days, his approach calls for the Society and for the child's care providers to essentially try to engage in the impossible task of predicting precisely the state of the child's progress in six months, what placements will be available at that time and where those placements may be and what precise resources might be available and/or appropriate for the child, having regard for the state of his progress at that time.

What Section 120(5)(e) Requires

The Test

[59] I have not followed the approach taken by Justice Chappel in Hamilton Children's Aid Society v. S. (S.), supra, for several reasons. First, that case is distinguishable on its facts. In that case Justice Chappel dealt with the situation of a 15 year old boy, not a child on the cusp of turning 18, like A.M. In addition, while the length of the extension being considered was the same (180 days), the extension would not extend the period of commitment well beyond the child's 18th birthday and thus, a time when the consent of the young adult would ordinarily have to be secured before an extension can be granted.

[60] Another key difference is that in the case before Justice Chappel, it had proven difficult to formulate the full specifics of a plan for the child's care, in part because of a lack of information about when the child would be discharged and the state of his progress and treatment needs at the end of the committal term. In the instant case, there is very little that must be left to prediction when it comes to A.M.'s situation; the evidence clearly establishes A.M.'s clinical profile, the significant supervision and structure she will require to be kept safe, as well as the intense daily supports and specialized treatment she requires. There is no evidence to suggest that any of these factors are likely to change to any significant degree over the proposed 180 day period.

[61] Second, the use of the word "appropriate" in subsection 120(5)(e) calls for the court to conduct an evaluative analysis based upon the particular facts of the case before it. While the test articulated by Justice Chappel and her consequent acceptance of something slightly more than a "a plan to plan" as an appropriate plan for the child in that case, using this as the standard measurement in every case, sets a very low bar. Such a low bar would unduly fetter the exercise of judicial discretion when deciding whether a particular plan is or is not appropriate, based upon the facts before it.

[62] In my view, the judge hearing an application must be permitted to adjust the bar of propriety based upon the facts before it. For example, consider a situation where the extension sought is likely to be the last extension granted, by virtue of the operation of subsection 120(2), the proximity of the child's 18th birthday, and the child's steadfast opposition to continued committal. In such circumstances, greater emphasis will likely be placed on ensuring that there is an established and suitable placement for the child by the end of the committal period. In such cases a more detailed and specific plan with respect to placement and services may be called for and "a plan to plan" will not, in such cases, suffice.

[63] Further, in cases such as AM.'s where her clinical profile and needs are stable and unlikely to change in any significant way, it may be quite realistic to expect the applicant and care providers to engage in a predictive analysis about the child's needs and the resources that will be available in the community when the child is released. To require that the test articulated by Justice Chappel be applied in all cases would, in effect, prevent the presiding judge, from considering such factors in her determination of whether the proposed plan is appropriate. Given these considerations, I view the test articulated by Justice Chappel as the minimum standard to apply when measuring the propriety of a plan.

[64] It is impossible to articulate a "one size fits all" test to be applied in every case and in my view this is not what the legislation calls for. The qualifier "appropriate" used in the subsection 120(5) (e) called for the court to embark on an evaluative assessment of the plan at a particular point in time. It is thus, far more helpful to adopt a more principled approach and to focus on the analytical framework to be applied. Unfortunately, the subsection offers no guidance as to the analytical framework to be applied. It is to that issue to which I now turn.

The Framework and Approach Adopted and Applied in this Case

[65] In my view the evaluative analysis required is a multilevel one. It must, because of the use of the word, "appropriate", and phrases, "plan for the child's care" and "on release from the secure treatment program", include at least four parts:

• (a) The identification of the proposed care and an assessment of whether the proposed care will be sufficient to meet the young person's expected need for care on release;
• (b) The identification and evaluation of the plan to get there or course of action proposed to be followed;
• (c) An assessment of the likelihood that the applicant will be in a position, by the time of the young person's release, to implement the planned care; and,
• (d) Whether, any lack of detail or deficiency in the proposed plan of care, contingencies, weaknesses, or other factor is reasonable given the child's situation and any other relevant circumstances.

[66] Below I have flushed out the nature of the analysis at each of these stages of the analysis.

Part A: Identification and Evaluation of the Child's Needs and the Proposed Care

[67] At the first stage of the analysis the court must consider whether the proposed care is suited to meet the needs of the child. To do this the court will need to determine:

• (a) The expected needs of the young person upon her release;
• (b) The supports that will be required to meet those needs;
• (c) The supports available in the community, including when they will be available and who will provide them; and,
• (d) Whether the available supports will be suitable and sufficient to meet the expected needs of the young person for care at the time of her discharge.

Part B: Identification and Evaluation of the Plan to get there (Proposed Course of Action)

[68] The second stage of the analysis, which is identifying and evaluating the applicant's proposed course of action, necessitates an examination of the evidence relating to the planning process. Here, the evidence will be examined to determine:

• (a) The specific steps that the applicant proposes to take; and,
• (b) Whether the proposed steps will, if successfully followed, result in securing the necessary supports and services required to meet the particular young person's care needs.

Part C: Assessment of the Likelihood that the Applicant will be able to implement the Proposed Plan of Care within the Timeframe sought

[69] In the third stage, which is evaluating whether the plan is realistic or likely to come into fruition by the end of the committal term, the court will need to assess two things: the strength of the planning process, and, the degree to which the success of the plan is dependent upon future events. A strong planning process is one that:

• (a) Includes a task list;
• (b) Includes a schedule or timetable for each step – when must they be taken if the plan of care is to be implemented by the end of the committal period; and,
• (c) Identifies contingencies and includes a plan to address them; and,
• (d) Has a strong implementation strategy.

[70] The chances that a particular plan will mature within the necessary timeframe can depend upon the degree to which it is dependent upon future events or circumstances. It goes without saying that the greater the number of contingencies or things that could go wrong, the less likely it is that the applicant will be in a position to implement its proposed plan of care at the end of the committal period. These risks can be mitigated by strong contingency planning. Thus, the court must include as a part of its analysis an assessment of the nature and number of contingencies. It will also have to know the steps being taken to ensure that these contingencies materialize in time.

[71] The existence of an implementation strategy also increases the likelihood of success. An implementation strategy is a planned process designed to pull all the plan pieces together to ensure collectively there are no missing pieces and that the plan is both moving forward and remains feasible. At its most basic, the strength of an implementation strategy is measured by:

• (a) The level of commitment on the part of those involved; and,
• (b) Whether there is someone in charge of the process, tracking its progress and following up.

Part D: Overall Reasonableness of the Plan

[72] In the final stage of the analysis the court must decide whether any lack of specificity or precision in the plan, uncertainty about its suitability, frailties in the planning process, or degree of uncertainty about the applicant's ability to implement the plan, is reasonable in all of the circumstances. Considerations at this stage that call for greater tolerance and acceptance of a plan's weaknesses could include:

• (a) The child's actual situation;
• (b) An inability to predict the child's treatment needs due to the child's placement in the diagnosis or treatment process or due to the evolving nature of her progress;
• (c) The lack of available resources in the community;
• (d) The need to secure appropriate designations and funding;
• (e) Restrictions on the timing of applications for services;
• (f) Applicable waitlists and the inability to control the young person's position thereon;

[73] Another relevant and significant consideration, depending on the case, may be the proximity of the child's 18th birthday and the consequent closing of the window of opportunity to continue the child's committal to secure treatment. This latter factor may give rise to a greater need for specificity and precision in the establishment of a placement and services, a more defined planning process and implementation strategy and as well, a greater need for assurance that the plan will successfully come to fruition at the end of the committal period.

[74] Using this framework I turn next to my evaluation of whether the applicant's proposed plan of care for A.M. on her release from Syl Apps is appropriate.

Is the Proposed Plan for A.M. on her Release Appropriate

Part A: Identification and Evaluation of A.M.'s Needs and the Proposed Care

[75] The primary plan that the applicant identified for A.M. is this:

• (a) A.M. will remain in secure treatment at Syl Apps for as long as she continues to meet criteria;
• (b) Syl App's will apply for a further extension closer to A.M.'s birthday, so as to maximize the amount of time A.M. may remain in their secure treatment program;
• (c) To develop a highly supported reintegration plan to mitigate the risk of setbacks while A.M. transitions into the adult community;
• (d) To transition and release A.M. to a D.S.O. residential treatment placement with access to DSO funded services once a fully funded DSO bed is identified, in accordance with the reintegration plan.

[76] While the outline of the plan is identified, the evidence barely addresses the questions that the court would need answered in order for it to be satisfied that the proposed placement will provide sufficient support to meet the anticipated need of A.M. for care on her release.

[77] The court did have some evidence about what A.M.'s needs will be. She will require a placement with significant structure, supervision, and supports to both keep her safe, support her treatment needs, and decrease her self-harm and aggressive behaviors. There was however, very little in the way of evidence about what A.M.'s anticipated treatment needs will be, except that she will require daily medication therapy, psychiatric and wellness supports to ensure that her medication therapies are monitored and maintained. Ms. Zazzarino also indicated in her oral evidence that A.M. will require life skill development supports as well.

[78] The evidence did not address, in any meaningful way, the supports available in the planned DSO placement. For example, it had no real evidence of the type of residential placements available through DSO, the type of services and supports available through the DSO program, or, of the type of funding available to purchase services and supports that may be needed but which are not available through DSO.

[79] It seemed to me that counsel expected the court to be familiar with the DSO program and what is and is not available in such a placement. There was no challenge, however, by A.M. about the suitability of a DSO residential placement or services to meet her needs. A.M.'s challenges focused instead on the applicant's failure to identify a specific residential placement and whether a fully funded bed will be available by the time of her release.

[80] For these reasons there is a great deal of uncertainty in my mind about whether a DSO placement will be suitable to meet A.M.'s need for care on her release.

Part B: Identification and Evaluation of the Applicant's Plan to get there

[81] The evidence is sufficient to allow me to conclude that there is a strong planning process in place. The steps in the process are clearly defined in the evidence and include:

• (a) Obtain a D.S.O. designation;
• (b) Conduct the intake interviews with A.M., family members, and her clinical team for the purposes of reviewing A.M.'s critical and risk profile and establishing the necessary requirements for reintegration within a community placement;
• (c) Apply for a DSO residential placement and DSO service programs once A.M. turns 18; and,
• (d) Once A.M. turns 18, request the plethora of services and supports A.M. will need through the DSO process including: residential supports, community participation support and specialized services such as counseling, behavior management, speech and language, dual diagnosis and service coordination;
• (e) Place A.M. on the necessary waitlists for DSO services and supports; and,
• (f) Develop and implement a reintegration plan for A.M.

[82] I am satisfied that there is some form of a timetable for the steps and that the timetable is being and will be followed. The first step, obtaining a DSO designation has been completed. The next step is to apply for A.M. to access the DSO residential and service program. Unfortunately, the application cannot be made until A.M. turns 18 (December 24th). The plan is however, to make the application as soon as she is 18. The balance of the steps to securing a fully funded DSO bed and services cannot be taken at this time. There was also some evidence that Syl Apps is working on a reintegration plan, for example, through the community pass program that it has implemented and met with some success to date.

[83] I am, on the evidence before me, satisfied that the applicant has identified the specific steps that it needs to take and that if all of these steps are successfully followed that they will eventually result in A.M. securing a fully funded bed with services and supports within the DSO program.

Part C: Assessment of the Likelihood that the Applicant will be able to implement the Proposed Plan of Care within the Timeframe sought

[84] The DSO plan is highly contingent on a number of future events, the least of which being applying for a DSO placement and requesting the plethora of services and supports A.M. will need, through the DSO process. The hold up in moving forward is mostly tied to A.M. turning 18. The other, far more serious, contingency associated with the DSO plan is that it may very well take longer than any extended period of committal for A.M. to access a fully funded bed and DSO services. Ms. Zazzarino's evidence, however, identified a strong contingency plan.

[85] To address the high risk that neither a fully funded DSO bed nor access to the specialized services available through the DSO program will be secured in time for A.M.'s release, the applicant has initiated a parallel process (a contingency plan). Her evidence is that this process or plan is:

• (a) To locate and secure a TAY community treatment placement and service funding;
• (b) To apply for and obtain a Complex Special Needs designation for A.M. so that CSN funding can be made available to purchase any additional services that A.M. will require;
• (c) Once CSN eligibility has been determined and CSN funding is available, to develop a highly supported reintegration plan to mitigate the risk of setbacks while A.M. transitions into the TAY community.
• (d) Transition A.M. to the TAY placement.

[86] Although all the pieces are still up in the air, I find this contingency plan to be a strong one. It is a process that is well underway. For example, efforts are already underway to locate a suitable TAY placement. Ms. Zazzarino's evidence is that so far, a number of TAY settings have agreed to receive and review of referral packages to determine A.M.'s eligibility and there is a possibility that A.M. will be placed in a group home in her community – Oakville. The plan would be for A.M. to occupy the basement unit and share access to the common space along with the other two planned residents. Unfortunately, the group home has yet to be purchased and while Ms. Zazzarino seemed confident that it would be she admitted that it is not a sure thing. She was adamant however that if it was purchased, it would be a suitable space for A.M. and could accommodate, for example, her round the clock 2:1 staffing needs.

[87] In addition, efforts to ensure CSN funding is secured to purchase that the specialized services that A.M. requires and which are not covered by TAY's passport funding are also well underway. A presentation has already been made to the Children's Review Committee and the IRC is in the process of gathering the information required to put together a comprehensive plan of support required to be submitted to the Children's Review Committee.

[88] The TAY and CSN plan would, if they come to fruition, be effective in addressing the uncertainty surrounding when a fully funded DSO bed will be available because a young person can remain in the placement and eligible for TAY funded services until she is 24 years of age. To the extent that there may be a delay in CSN funding, I am somewhat assured by the evidence of A.M.'s mother that she and her husband could support A.M.'s service needs while A.M. is a TAY residential placement by providing supplementary funding for services.

[89] The consultation and presentation process with System Wise is evidence of even further contingency planning. If productive, other appropriate service providers available in the adult mental health services community including housing, counseling and case management, will be identified and pursued.

[90] In this case there is also very strong implementation strategy. Ms. Zazzarino is very involved with A.M.'s case management in the community. She has been working with the service resolution team in identifying an appropriate placement, additional supports, and funding for A.M. Specifically, Ms. Zazzarino has been coordinating, tracking, and following up on the steps required to secure DSO services, TAY services, and CSN funding. The evidence also establishes that Ms. Zazzarino, and by extension the team at Syl Apps, are highly committed to ensuring the two plans come to fruition.

Part D: Overall Reasonableness of the Plan

[91] In my view, the closer a young person is to her 18th birthday, the greater the call for specificity and detail with respect to the plan of care as well as greater certainty about whether the plan of care will be capable of being implemented on the young person's release.

[92] Given the stability and predictability associated with A.M.'s clinical profile and needs and the very short window of time left to extend her committal to the secure treatment program at Syl Apps without her consent, one would have expected that by this time the applicant would have been in a position to present the court with a far more developed and detailed plan of care for her on her release than it has.

[93] Instead, the court has been presented with a plan of care on her release that has a significant lack of specificity and detail about both the DSO and TAY plans. This is so particularly in regards to the availability of appropriate services and appropriate residential placement as well as in relation to the applicant's ability to secure the necessary services and placement by the time A.M. is released. Even the reintegration plan is underdeveloped. Further, there are still many steps to be taken and a number of contingencies.

[94] In determining whether the proposed plan of care for A.M. is appropriate one must evaluate its state from the standpoint of what is reasonable given the circumstances, including the child's situation. At this stage of the evaluative process I have considered a number of circumstances. First, I have considered the unique situation of A.M.: her complex diagnoses and the number of treatment services and supports she requires on a daily basis; her age; the severity and chronicity of her self-harm behaviors; and, the significant safety measures she requires as she continues to be at very high risk of very serious self-harm.

[95] A.M.'s situation is such that she requires a highly tailored, individualized, and resource intensive placement upon her discharge both to meet her ongoing treatment needs and to keep her safe. As a result of all of these factors, discharge planning for A.M. is very complex and challenging.

[96] Second, I have considered that the difficulty planning for A.M. is further compounded by the limited resources available (including residential treatment placements) including the limited sources of funding for young persons in the adult sector. Further, there are wait lists for services and a myriad of hoops to jump though in order to access those resources. In A.M.'s case the situation is much worse as there simply are no placements or constellation of services in the community that could, in their present form, meet the needs of A.M. given her clinical profile.

[97] I have also considered the fact that a great deal of the uncertainty and lack of detail relates to factors beyond the applicant's control. Such circumstances include:

• a. The applicant's inability to apply for a DSO residential placement or make a referral for specialized services within the DSO program until A.M. turns 18;
• b. That there will be waitlists for many of the required DSO services and for a fully funded bed;
• c. The applicant's inability to predict or control where A.M.'s position will be on any waitlists and thus, the timing of when all of the services A.M. will require will be available;
• d. The current unavailability of a suitable TAY residential placement; and,
• e. The fact that TAY passport funding is insufficient to purchase the highly specialised services that A.M. will need.

[98] Finally, I considered Syl App's very strong planning process, contingency plan, and overall implementation strategy. Syl Aps has identified the tasks that must be taken, and has taken many of them already. These include securing A.M.'s DSO designation. Its contingency plan is also well developed and well underway with steps such as applying for CSN eligibility and making referral applications for a TAY residential placement already competed.

[99] I have also taken into account the strength of Syl App's implementation strategy. The source of this strength comes from the designation of a highly committed individual, Ms. Zazzarino, as the individual charged with keeping the two community based portions of the two plans on track ad moving forward. These strengths and the progress made to date leave me with sufficient assurance that, at the very least, Syl Apps will likely be in a position to implement its "Plan B" by the time A.M. is released, so long as no less than 180 day extension is granted.

[100] Having considered all of these circumstances I find that the lack of detail to the applicant's plan, the incomplete status of the planning process, and the uncertainty about whether the applicant will be able to implement one of its two plans upon A.M.'s discharge, is reasonable.

Has the Applicant Met its Onus?

[101] After considering all of the foregoing, I find that the applicant has an appropriate plan of care for A.M. on her release from the secure treatment program at Syl Apps. As such, I also find that the applicant has satisfied its onus to show that all of the five criteria for an extension of A.M.'s secure treatment have been met and that an order extending A.M.'s commitment to Syl App's secure treatment program should be made. I turn next to a consideration of the length of the extension required.

THE LENGTH OF THE EXTENSION

[102] One of the reasons advanced for the length of the extension sought is that it will allow time for A.M.'s behaviours to further stabilize. The application of such reasoning is firmly rooted in the objective of promoting the best interests and well-being of children which in turn finds its home under the umbrella of the paramount purpose of the Act.

[103] In cases involving younger children, such a reason may warrant significant weight. However, as children approach their 18th birthday the objective of promoting the best interests and wellbeing of children is, in essence, in its death throes with the birth of the principle of autonomy and an adult's right to choose or decline treatment looming on the horizon.

[104] The need to recognize this shift can be inferred from the fact that in most instances in the Act the court loses all jurisdiction over the young person on her 18th birthday. It can also be inferred from the existence and operation of subsection 120(2), which clearly forbids the court from making an order extending the committal of a person who is 18 years or older, without the consent of that young adult and only then only once more.

[105] It is only by operation of subsection 118(4), another extraordinary measure, that a young person may be kept in a secure treatment program beyond her 18th birthday and until the order made prior to that date, expires. Given the foregoing, the primary objective of this extraordinary measure cannot be the promotion of the best interests, protection and well-being of children. It can only be meant to serve as a bridge to allow time to address any challenges to the implementation of the appropriate plan of care for the young person on her release into the adult care sector in the community.

[106] Thus, the focus when deciding the length of the extension in situations such as this, where subsection 188(4) will apply, must be on the time needed to implement the plan of care on the young adult's release. In this case, given that A.M.'s birthday is fast approaching, I have focused and given weight to the factors relating to the need for time to develop, implement and transition A.M. to the adult sector.

[107] The length of the committal term sought in the application in this case is 180 days. At the hearing, Ms. Dewitt suggested that a more appropriate length of time would be either a 90 day extension or an extension to a day shortly before A.M.'s 18th birthday. The rational for this shift in position is that such an order, given A.M. is not likely to consent to a further extension after her 18th birthday, affords Syl Apps an opportunity to maximize the length of A.M.'s committal to its program by paving the way for it to make one last extension application before A.M.'s consent is required.

[108] This is not a valid consideration in determining the length of the extension for two reasons. First, granting an extension to a day shortly before A.M.'s 18th birthday would be tantamount to allowing the applicant to do an end run around the spirit of the legislation and in particular, around subsection 120(2) which makes it clear that the court does not have jurisdiction to commit a person over the age of 18 without that person's consent.

[109] Second, and more importantly, a 90 day extension period or an extension to a day shortly before A.M.'s 18th birthday is not supported by the evidence. There is no chance, based on the evidence before me, that Syl Apps will be in a position to implement either of its two plans either by December 24th or even within the next 90 days. All the evidence in this case points to the need for this court to grant the longest extension it can – a further 180 days. Indeed, the evidence before is that a 180 day extension is required for a number of purposes directly related to the plan of care for A.M. on her release:

• (a) To allow time to identify and secure a residential treatment placement in the adult sector through TAY and DSO.
• (b) To allow time for a determination of whether or not A.M. will meet the criteria for Complex Special Needs funding;
• (c) To allow time, once a placement and funding has been secured, to develop and implement a highly supported reintegration plan so as to mitigate the risk of setbacks while A.M. transition into the community or put another way, maximize A,M.'s chances of successful transition.

[110] Considering the evidence, the complexities of A.M.'s situation and of planning for her, and given that so many balls with respect to both plans remain up in the air, there can be no finding but a finding that 180 days is warranted, necessary, and appropriate. Any shorter period of commitment would not be sufficient to firm up either plan for A.M., let alone secure her successful transition to the adult sector.

CONCLUSION AND ORDER

[111] For the reasons set out above, I grant the application to extend A.M.'s committal to the secure treatment program at Syl Apps for a further 180 days, commencing November 26, 2015. The draft of this order (copy attached) has been signed by me.

Released: November 23, 2015

Signed: "Justice Victoria Starr"