WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) PROHIBITION: 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) IDEM: ORDER RE ADULT — 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.

85.— (3) IDEM — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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 Information

Date: January 13, 2017

Court File No.: FO-14-00000105-0003

Ontario Court of Justice

In the Matter of The Child and Family Services Act, R.S.O. 1990, c. C.11

And in the Matter of T.A.N., a child apparently in need of protection

Parties

Brant Family and Children's Services (operated by The Children's Aid Society in the County of Brant)

Applicant

- and -

K.N.

Respondent

- and -

J.B.

Respondent

Appearances

• B. McQuestion / M. Handelman — Counsel for the Applicant
• C. Mota-Duarte — Counsel for K.N.
• J.B. — In Person
• M. Bulbrook — Office of the Children's Lawyer

Reasons for Judgment

Before the Honourable Justice K.A. Baker

On January 13, 2017 at Brantford, Ontario

BAKER, J. (Orally):

This is a hearing in relation to the assignment of the authority to make medical decisions for the subject child T.A.N., born in 2015 and now aged 13 months.

Background and Prior Involvement

The family has been involved with child protection authorities in relation to both the subject child and the mother's older child, N., now aged two. The concerns identified by the Society were domestic violence between the mother and the father of N., mother's substance abuse, mother's parenting capacity and mental health concerns. As a result of these concerns, the older child, N. was the subject of child protection proceedings between the dates of April 9th, 2014 until July 22nd, 2015. An agreed statement of facts signed July 15th, 2014 in relation to that child was entered into evidence. It provides for protection findings pursuant to sections 37(2)(b)(i) and (ii).

The agreed statement of facts also provides that N. had experienced some medical conditions that the Society worker understood to include a diagnosis of fail to thrive. The mother apparently did not accept this diagnosis. At one point when the treating physician recommended that N. be admitted to hospital, mother wished to secure a second opinion before acceding to the admission.

Subject Child's Medical History

When T. was born she was rapidly diagnosed with significant cardiac defects. She remained in hospital after her birth until sometime in August 2016. Whilst in hospital she underwent surgery for her condition. During those eight months of hospitalization after birth, the mother provided all consents required by the medical professionals to authorize any necessary medical treatment for the child. No issue with respect to the adequacy of mother's judgment in making those decisions was identified during the course of this hearing.

As of the time the child was ready to be discharged from hospital in August 2016, the Society remained concerned about mother's ability to actually care for the child. Accordingly, it prevailed upon the mother to sign a temporary care agreement which saw the child placed with the maternal grandparents. The mother however, continued to be significantly involved, and had liberal access to the child over that time period. The child remained in need of comprehensive medical care and other services including physiotherapy, occupational therapy, and other things. Consents to such treatment and services that were provided were given by the maternal grandparents, and the mother, working in conjunction with the Society.

Care Plan and Progress

The child remained medically fragile. A worker was assigned from the Lansdowne Children's Centre in the form of Ms. Adrien, who testified. Ms. Adrien met with the family four times between September and December 2016. She developed a care plan with the family setting out objectives for T. Ms. Adrien observed that T. made slow but consistent gains over the timeframe. Ms. Adrien would have expected that such progress would be slow given the child's medical fragility.

By November 11th, 2016, the mother had withdrawn her consent to the temporary care agreement, which provided for the kin arrangement with the grandparents. The parties then negotiated a collaborative services agreement whereby the mother assumed primary care of the child, with the strong, and indeed daily, hands-on support of both maternal grandparents. After this point, the mother had the responsibility to provide any consents necessary for the child to continue to receive the comprehensive care that she requires. Mother did, however, clearly consult with her parents, and the Society remained involved. No problem seems to have been identified with respect to mother's judgment on the issue of consenting to medical and other care over that timeframe, prior to the child's admission into hospital.

Recent Hospitalization and Events

On November 29th, 2016, T. was admitted to hospital when she developed a viral infection. She remained in hospital until December 1st, 2016 when she was discharged back to mother's care. The mother testified that the precipitating event for seeking medical care that led to the child's admission into hospital at that time was a fever combined with diarrhea. Although the child continued to struggle with fever, even at the time of discharge, medical staff felt that she could be cared for at home.

On December 6th, 2016 the child again appeared to be unwell. Ms. Adrien was in the home for an appointment sometime that afternoon. Ms. Adrien noted the child was unwell; at one point the child gagged and regurgitated bile, but this was a fairly frequent event. However the child was clearly physically uncomfortable and her eyes were observed to be somewhat glassy. The mother asked Ms. Adrien whether the child should be taken for medical care. On the basis of her very extensive experience in providing infant and child development, as well as her own parenting experience, Ms. Adrien agreed that the child should be seen by a physician.

There is some dispute as to when Ms. Adrien actually left that day. In any case the plan had been for the mother to call the child's comprehensive medical treatment team at McMaster Children's Hospital to ask their opinion about obtaining medical care for the child. Mother did not do so however. The reason for this was mother lacked the ability to make a long-distance call on the phone accessible to her. The maternal grandfather, who testified, said that at some point in that late afternoon and evening, the child rallied and her temperature became close to normal. By 2:30 a.m. on December 7th, 2016 however, the child was clearly in medical distress and the family rushed her to McMaster University Children's Hospital emergency room. The child was admitted immediately. Any consent required for that admission must have been provided by the mother.

The child was then placed in the pediatric critical care unit. She has remained there to date.

T. was apprehended by the Hamilton Children's Aid Society on December 9th, 2016. The Society has been very critical of the mother and family's delay in seeking medical care for this child over the afternoon of December 6th into the early morning hours of December 7th, 2016. I have not been provided with any evidence and no argument was advanced that the delay contributed to the significant worsening of the child's condition that subsequently occurred. Neither is there medical evidence to support any contention that such delay constituted medical neglect of the child's needs.

The mother and maternal grandfather provided evidence that was quite capable of explaining the delay. This child was indisputably medically fragile. She was also teething. The nurse who was providing home care had suggested to the family that the fevers the child was regularly sustaining over the fall and early winter of 2016 might have been related to the teething. The family seems to have been of the understanding that hospitalization was not required for the child as long as the child's temperature remained not higher than 102 degrees Fahrenheit, and there were no other pressing medical concerns. No evidence to the contrary was noted.

It must have been very difficult for a family dealing with a child perpetually on the edge of medical crisis to know the precise instant at which medical attention was required.

Current Medical Status and DNR Concerns

Since the most recent hospitalization, the child has suffered a cardiac arrest. Her current condition is such that the medical staff understand that she is without sight or hearing. She is expected never to be capable of living an independent life. She seems to be suffering ongoing discomfort and even pain, and is on analgesic intravenous medication as a result. One of the child's pediatricians at McMaster Children's Hospital, Dr. Roy, has indicated the medical team is worried what the child would be put through by way of resuscitation attempts should she experience another cardiac arrest. The clear implication of course is that a DNR order, or do not resuscitate order, is under consideration by the medical staff. In fact, Dr. Roy apparently raised concern with the child service worker, Ms. Hatton, about mother's current refusal to consent to such an order.

This issue was first brought before the court by way of an urgent motion by the Society seeking an order for the appointment of the Office of the Children's Lawyer to represent the child's interests. In the supporting affidavit, the child service worker, Amanda Hatton, stated the following:

"It is the Society's position that legal representation for the child is required on an urgent basis given the child's current medical health, the requests of the child's treating medical team at McMaster Children's Hospital, the consent regarding the child's treatment and the mother's refusal to provide the consent sought by the child's treating medical team at McMaster Children's Hospital."

As became evident as the evidence was being set out, the hospital had not actually sought consent regarding a particular treatment that had been refused by the mother. That particular paragraph, then, might have been something of an overstatement of the situation. It seems, quite understandably, to have triggered considerable distress to the mother, who worries that the Society is proposing to consent to the implementation of the do not resuscitate order.

Legal Issue

The issue before me today is not whether a do not resuscitate order is in the child's best interests. It is instead about who has the authority to make that decision and other medical decisions necessary for the child. Prior to today's date, there was a temporary without prejudice order placing the child in the care of the Hamilton Children's Aid Society. Today, on consent, that order was varied to a temporary order placing the child in the care of the Brant Children's Aid Society. Under the authority set out at s.52 of the Child and Family Services Act, this would, prima facie, give the Society the authority to make any necessary medical decisions for the child. The mother seeks an order pursuant to s.62 of the Child and Family Services Act, vesting in her the authority to make any necessary medical decisions, including as to whether to accept or reject any proposal for a DNR order.

Burden of Proof

As a preliminary issue, I note the Society takes the position that given a temporary order has been made, the mother bears the burden of showing it should be changed. I do not agree. This particular situation was certainly not contemplated when the first temporary without prejudice order was rendered. Today, when the mother consented to the temporary order, she'd already made it very clear that she was seeking this limitation on the Society's authority with respect to giving or withholding medical consent. I see this as a de novo consideration of the issue, and it seems to me, for reasons which I will elaborate upon, that the onus is on the Society to show that the mother should be stripped of the right to make medical decisions for the child.

I say this for several reasons. First, the Act provides that the least intrusive intervention consistent with the child's best interests, protection and well-being should be undertaken. Surely the least intrusive order is that which preserves the parents' right to make critical decisions.

I also note that s.106 of the Act, which provides that subject to section 51(4) and section 62 of the order, the parent of a child in care retains any right that he or she may have to direct the child's education, religious upbringing, and to give or refuse to consent to medical treatment. The preamble of that section makes, which makes it subject to sections 51 and 62 directs the court back to those sections for jurisdiction. But it seems to me that the plain wording of the provisions indicates a legislative intent that absent good reason, the parent should retain the authority to make these vital decisions.

Mother's Demonstrated Competence

Here, the medical records entered into evidence, together with the evidence of the Society workers, make it clear that mother has always taken a vital interest in the medical information concerning the child. She has consistently asked good questions to further her information. She calls the hospital every day and visits very regularly. This is not necessarily daily, but given her other obligations, including attendance at the methadone clinic and her obligations to her son, as well as the distance involved between Hamilton and Brantford, this is understandable.

The Society has clearly recognized the mother's ability to make good decisions for the child, because throughout this hospitalization, the child service worker, Ms. Hatton, has persistently directed hospital staff to secure mother's consent for any necessary procedure. Although for some reason no written consents have been signed, mother has provided all verbal consents, and there haven't been any issues.

There certainly is some evidence that mother has at times engaged in drug use. This is denied by the mother, but certainly her involvement with the methadone clinic and her very regular drug testing at least suggests that this has been an issue in the past. Drug use could certainly impair a parent's ability to make critical medical decisions for a child. But there is no evidence that this actually has been an issue at any point through the child's life, when the mother has been called upon to make the medical decisions for the child.

Second Opinion Issue

The OCL cross-examined the mother in relation to her insistence on a second opinion when faced with the suggestion that her older child should be admitted to hospital. I don't see that the evidence before me today sustains any notion that this represents a lack of judgment or appropriate care. Obtaining a second opinion to me, seems a prudent course where a parent has reservations about a particular course of action that's being suggested. There is no suggestion that this preference in any way compromised N.'s health or medical condition at the time. It was also a discussion that took place in June 2014, two-and-a-half years ago, when this young mother would presumably have been about 18 years old. I don't see it as being sufficient to displace the clear evidence that mother is now capable of making any necessary decisions regarding the child's medical care.

I see no reason to change what has been the effective status quo of the mother making the medical decisions for this child as they arise.

Critical Nature of DNR Decisions

And in this case, the stakes are vastly higher. There is no more important medical decision that a parent could be faced with than whether to accede to the imposition of a do not resuscitate order. It only makes sense to me that absent compelling evidence that a parent is incapable of making a decision that is consistent with the best interest of a child, the authority to give or refuse consent, should be that of a parent. If the medical personnel consider the mother is not in fact making the choice that is in the child's interest, they have an avenue of redress, being a Consent and Capacity Board application.

It seems to me that there needs to be a clear adjudication on the merits of the decision-making authority so the physicians in the hospital know who they are dealing with in providing information about their recommendations and in seeking consent. In this case, given her success so far, and given the nature of the interests, that authority should be that of the mother.

Order

Accordingly, for oral reasons given, temporary order to go. The Respondent, K.N. shall have the authority to consent to and authorize any medical treatment for the subject child pursuant to s.62 of the Child and Family Services Act.

Case Management and Procedural Matters

Now, I know that Justice Edward initially touched this matter on December 22nd, 2016, that seems to be the single incident when he was involved; he simply adjourned it over. It seems to me that now I have a fairly thorough understanding of the background, it would probably be appropriate to remain with me for case management. So, where would you like to go from here?

Access Provisions

MR. MCQUESTION: Perhaps before we address that issue, Your Honour, with respect to the December 14th, without prejudice order ...

THE COURT: Right.

MR. MCQUESTION: Your Honour has addressed the first paragraph of that order. There's still the issue of the access. And so I would suggest that, you know, that needs to be confirmed in, in some way, or, you know, the access piece.

THE COURT: I'm not sure I understand, what's the issue about the access?

MR. MCQUESTION: Well, that the court order of December 14th lays out what the access will be.

THE COURT: Right.

MR. MCQUESTION: So, in, even if you could just confirm whether that paragraph, paragraph two continues to be in effect.

THE COURT: Yes.

MR. MCQUESTION: I would assume, given your silence on it that it would be ...

THE COURT: Yes, I have ...

MR. MCQUESTION: ... but in speaking with counsel I, I think that it was felt that it would be beneficial to have confirmation of that.

THE COURT: All right. Well, I haven't made any order changing the access. My understanding, it would be continued to be at the discretion of the Society. Is that going to be in issue, Mr. Mota?

MR. MOTA: No, Your Honour ...

THE COURT: Okay.

MR. MOTA: ... we, we would consent to maintaining status quo as far as the order is concerned.

MR. MCQUESTION: Then I ...

THE COURT: Simply to clarify ...

MR. MCQUESTION: ... believe it would ...

THE COURT: ... that the act, the discretion is that of the Brant Society.

MR. MCQUESTION: Yes. Yes.

THE COURT: So I've added to the endorsement, access to the parents shall be at the discretion of the Brant Children's Aid Society. Does that clarify the issue?

MR. MCQUESTION: It's sufficient for my purposes, Your Honour. I do know that the mother, well the, the parents were afforded, I suppose, additional rights as worded in the previous order, so I don't know if Mr. Mota might take exception to the absence of that additional ...

THE COURT: Any concerns in that regard, Mr. Mota?

MR. MOTA: I think it should be, it, it should be as well that that should be included, that, so long as the child is in hospital the parents may have access in accordance with the hospital's policy regarding visitation. I think that's maintaining that status quo is, is appropriate given the circumstances. Now ...

THE COURT: Just a moment, please.

MR. MOTA: Yuh.

THE COURT: So I've added to the endorsement: The access to the parents shall be at the discretion of the Brant CAS and supervised in its discretion so long as the child is in hospital the parents may have access in accordance with the hospital's policy regarding visitation. That provision essentially mirrors the original order of Justice Lefreniere.

MR. MOTA: Okay. Now Your Honour did mention that you, you wanted to take over case management of this file. I don't have any issue with that, I think that that's a prudent course. I did want to point out to Your Honour though that we do have a January 19th to be spoken to date in front of Justice Edwards as scheduled as our next date, and so we may want to change that to something on, on Your Honour's schedule.

THE COURT: That makes sense, Mr. Mota. So let's vacate that date. When do you think would be a good time to come back to be spoken to?

Return Date and Procedural Deadlines

MR. MCQUESTION: There's a couple things I'd, in, in considering that question. One is that there's a meeting anticipated with hospital staff, I've been led to believe it could be next week. Additionally there's some procedural matters as far as, in speaking with the father, I've alerted him of the January 19th date, which is now vacated, and a new date will be set, but he hasn't filed any materials. His time to do so expires tomorrow. So I'm not sure if Your Honour wants to delve into such procedural matters but I did, sure something to consider. When setting a new date.

THE COURT: Right. So what are you going to suggest in terms of a return date, Mr. McQuestion?

MR. MCQUESTION: Perhaps three weeks.

THE COURT: I'm not even sure we have a to be spoken to that rapid, but let's see what we've got. Next available?

REGISTRAR/CLERK: I have February 3rd.

THE COURT: Does that give you enough time?

MR. MOTA: That'd be appropriate, Your Honour.

MS. BULBROOK: I will have to send Ms. Macdonald as my agent on that day. Thank you.

MR. MCQUESTION: So I'm not sure then if Your Honour wishes to address proactively the timing of the filing ...

THE COURT: Right.

MR. MCQUESTION: ... of the deadlines today or leave it reactively for the 3rd.

THE COURT: Are there any other issues that you see today, Mr. McQuestion, other than just father having an extension of time?

MR. MCQUESTION: Well, the Society too. So the Society's plan of care is due tomorrow as well.

THE COURT: It's not ready, I gather.

MR. MCQUESTION: It is ready.

THE COURT: It is ready. Okay.

MR. MCQUESTION: It is ready, it just has to be pen to paper and served and filed.

THE COURT: Okay.

MR. MCQUESTION: So it would seem ...

THE COURT: A little more time?

MR. MCQUESTION: A, a week even, would be sufficient.

THE COURT: Society shall until January 20th, 2017 to serve and file its plan of care. So, Mr. B., would you like to come forward, please. Mr. B. you haven't served and filed any answer and plan of care. The rules provide if you don't do that within 30 days then the proceeding can go on without your participation, or involvement; you wouldn't be entitled to any further service of materials. Your time is going to be up as in tomorrow. I don't know where you stand. Did you wish to serve and file an answer and plan of care and be involved in this litigation.

J.B.: Yes.

THE COURT: Okay. So can you do that within 30 days?

J.B.: I think so.

THE COURT: Can you do it prior to February 3rd? The reason I ask is because that's the date that the lawyers are suggesting, and I think it would make a lot of sense for us to have your answer and plan of care before we come back to court. So is that something that would be possible, or do you need 30 days?

J.B.: The more time the better, I guess.

THE COURT: Why is that?

J.B.: More time is always better, I guess.

THE COURT: Not when it's in relation to children who are the subject of litigation, then more time means more delay and it's not necessarily better. So, are you going to hire a lawyer?

J.B.: I'm going to try, yes.

THE COURT: I see. What have you done so far to try and get a lawyer?

J.B.: I just looked into it.

THE COURT: What does that mean?

J.B.: I made some phone calls.

THE COURT: Uh-huh. Did you find anybody who's willing to take your case?

J.B.: Yes.

THE COURT: Okay. So, are you in a position to retain this person to take your case.

J.B.: Yes.

THE COURT: Okay, well that's certainly good news.

J.B.: Was the date February 3rd?

THE COURT: That's right.

J.B.: Yeah, that's fine.

THE COURT: That's fine?

J.B.: Yeah.

THE COURT: So you can do your answer and plan of care then, by, say, February 1st?

J.B.: Yeah.

THE COURT: Okay, thank you very much. Respondent father shall have until February 1st, 2017 to serve and file his answer and plan of care. In the meantime Ms. Bulbrook I'm cognizant of the submissions that you made with respect to whether or not the OCL would have wanted to accept this referral had they had notice of it in advance. So if you wish to bring a motion to address whether or not the OCL should remain representing this child in the meantime you can make it returnable on that date and we'll address it then. I don't think I need to make an endorsement in that regard, and hopefully you won't have any trouble if that's the course that the OCL elects.

MS. BULBROOK: Thank you.

THE COURT: Anything else?

MR. MCQUESTION: No, Your Honour.

THE COURT: Thank you very much, and I thank counsel for their patience in dealing with this matter, and I thank staff for hanging in there so late today on a Friday. Thank you.

WHEREUPON THESE PROCEEDINGS WERE ADJOURNED

Certificate of Transcript

Form 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I, Karen Kearns, ACT ID 6335686389 (Authorized Person), certify that this document is a true and accurate transcript of the recording of BFACS v. N. and B. in the Ontario Court of Justice held at 44 Queen Street, Brantford, ON taken from Recording 0211_5_20170113_083601__5_BAKERKAT.dcr, which has been certified in Form 1.

This certification does not apply to the Reasons for Judgment / Reasons for Sentence which may have been judicially edited.

February 1, 2017

Original signed by "Karen Kearns"

(Signature of Authorized Person(s))

Office of the Children's Lawyer