WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication.
Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
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.
87.— (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 Information
Ontario Court of Justice
Date: 2018-12-12
Court File No.: Brampton 20067/18
Between:
C. (Applicant)
— AND —
PEEL CHILDREN'S AID SOCIETY (Respondent)
— AND —
L.S. (Respondent)
— AND —
A.S. (Respondent)
Before: Justice A.W. Sullivan
Heard on: November 7 and 16, 2018
Reasons for Judgment: Oral Reasons and Decision on November 22, 2018 – Written Reasons and Decision December 12, 2018
Counsel
- Claire Millgate (Justice for Children & Youth) — counsel for the applicant, C.
- Alex De Melo — counsel for the respondent, Peel Children's Aid Society
- Lisa Feldstein — counsel for the respondent, L.S.
- A.S. — Self-represented
Decision
SULLIVAN J.:
Introduction
[1] This is the court's decision in a temporary care and custody motion pertaining to the child KS who is 15 years old.
[2] The Protection Application in this matter was commenced by the child KS with the assistance of her counsel, Justice for Children and Youth.
[3] This is not the usual route of these protection matters, however, it is permitted within the governing Legislation, the Child, Youth and Family Services Act 2017 (CYFSA), section 81(4) and 94(2)(d).
[4] The Respondents in this matter are the parents LS and AS, and the Children's Aid Society for the Region of Peel (CASP).
[5] KS was in the temporary without prejudice care and custody of the Respondent mother LS, pursuant to an order dated September 19, 2018 pending the outcome of this temporary care and custody motion.
[6] On November 22, 2018, I provided the parties with an oral decision and indicated that I would have this written decision completed within two weeks.
The Temporary Order
The Temporary Order is:
That KS, born […], 2003, is placed in the temporary care and custody of the Children's Aid Society Region of Peel, pursuant to section 94(2)(d) of the Child, Youth and Family Services Act 2017.
On a temporary basis the Children's Aid Society of the Region of Peel may act in place of the parents LS and AS in providing consent to treatment for the youth KS, born […], 2003 pursuant to section 110(4) of the Child, Youth and Family Services Act 2017.
All access between KS and her parents and family members is to be as agreed to between the parties considering K's views and wishes.
Position of the Parties
[7] In the notice of motion filed on behalf of the youth KS she seeks the following order:
a) That KS be placed in the care and custody of the CASP, pursuant to section 92(2)(d) of the Child, Youth and Family Services Act, 2017 (CYFSA).
b) That CASP be authorized to act in the place of a parent in providing consent to treatment for the youth and on her behalf pursuant to section 110(4) of the CYFSA.
[8] The Respondent parents argue in this motion that the Applicant, their daughter KS, is not a child in need of protection in the past or today but rather a youth in need of treatment.
[9] The Respondent CASP share the above position and that the youth's parents, LS and AS, have historically done everything necessary to locate residential treatment options for KS and that there is no risk of her being a child in need of protection but that she requires treatment.
Temporary Care and Custody Motion
[10] The Applicant youth, KS, commenced this motion as there is a need to clarify who should have the ongoing care and custody and ability to make medical/treatment decisions for her.
[11] There is a need to clarify this as there is a degree of urgency. KS argues that her mother, who is her current legal guardian and substitute decision maker, has been unwilling and is unable to resume care of KS even when no other options of community placements are available for KS.
[12] KS argues that this situation has created confusion amongst community service providers and has placed her, as a youth with high special needs, at risk of physical harm coming to her in that she has been in the community on her own.
[13] When this motion was argued KS resided in Peel. She was in a supportive living building, a condo unit on her own, with some support staffing the building. The support staff are from a community service provider known as Family Options.
Temporary Care and Custody Test – Subsection 94(2) of the CYFSA
At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply stated, this is a two-part test that the society has to meet.
The onus is by its nature not a difficult onus for the agency to meet since the standard of proof is made low by the very wording of the Act: "reasonable" grounds, a "risk", and "likely" harm, and "adequate" protection for the child. This illustrates that the order sought is intended to be a temporary order while the matter moves through the courts and the focus is on protecting the child in that short term. Children's Aid Society of Dufferin County v. A.T., 2011 ONCJ 52. In this case, a mother, who otherwise parented her child well, obstinately refused to give the father access and the child was placed temporarily with the father.
The Divisional Court has held that a Society seeking an order for temporary Society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies Society intervention. L.D. v. Durham Children's Aid Society and R.L. and M.L., 21 R.F.L. (6th) 252, [2005] O.J. No. 5050 (Ont. Div. Ct.). The burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent's care. CCAS of Toronto v. M.L.R., 2011 ONCJ 652.
The first part of the two-part test only has to be met against one of two parents who had charge of the child. Either will do. It is a low threshold. Children's Aid Society of Algoma v. S.M.M., 2014 ONCJ 12.
A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act): Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.
The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. CCAS of Toronto v. J.O. 1, 2012 ONCJ 269.
The Facts Argued
Overview
[14] KS has recently turned 15. She was born on […], 2003. She has been diagnosed with Obsessive-Compulsive Disorder (OCD) and likely residual symptoms of posttraumatic stress disorder. Her diagnosis has been linked to trauma that she experienced as a result of sexual abuse from a paternal uncle when she was about 9 years old.
[15] KS does not agree with this diagnosis and does not acknowledge the incidents of sexual abuse.
[16] It should also be noted that KS does not wish to be called by her name. She also does not recognize her last name. She does not recognize that she has a history. She does not recognize that she has a family. She also is not prepared to recognize the trauma that has caused her emotional health to be so fragile today. She has asked to go by the name K (this name is different than her legal name). I will refer to her by K, except in the Order made above in this Motion.
[17] K further does not want her mother or father to have any involvement in her health decisions or day-to-day care. K does not share her health information with her mother LS. Therefore LS is unable to make informed treatment decisions for her daughter.
[18] LS, her mother, remains the substitute decision maker for K but K does not trust her as a decision-maker regarding her care.
[19] On May 16, 2018, the Consent and Capacity Board decided K is incapable with respect to decision-making regarding her own medication.
[20] Since mid-2017, K has refused to take any medication or participate in any form of treatment. She also refuses to reside in any facility that might be considered a treatment facility.
[21] K does not consent to taking any medication and in practice her doctors, for ethical reasons, do not administer the medication without her consent.
[22] K does have the capacity to make all of the decisions regarding her treatment, including decisions about residential treatment and disclosure of her medical information.
[23] K does not want to have a relationship with her mother and father. The evidence is that the last time she spoke with her mother, LS, was approximately over one year ago. She refers to her mother as the "decision-maker."
The Main Position of the CASP in this Motion
[24] Peel CAS argued that if K was placed in its care it is not for them to provide directly a therapeutic setting or treatment for her that the professionals and everyone except K recognizes she would benefit from.
[25] Further, CASP argues that they are not the lead agency for mental health services and/or high needs children in Peel, but rather they are a member at the table of Service Resolution of Peel which in this instance is the lead or principle agency designated by the Ministry and is made up of different community agencies. CASP is a support at the table to the parents. The Ministry referred to by the Society is the Ministry of Children and Youth Services. CASP also indicates that the Peel Children's Center is the lead agency for youth mental health needs in Peel.
[26] CASP deposes that K has been primarily in the care of her mother and LS who has been actively working to ensure that the needs of her daughter are met. K's parents separated several years ago. Ms. LS has been working with Peel Children's Center and subsequently brought K's complex needs to Service Resolution Peel to obtain a "Complex Needs Designation" which now has been recognized.
[27] CASP argues:
Ms. LS's goal has always been to have her daughter to be able to return to her home once K has made some progress on her severe obsessive-compulsive disorder behavior.
Ms. LS has worked collaboratively with all medical authorities to authorize and support all recommended treatment options for her daughter.
KS currently has been found not to be at risk of harming herself or others; therefore at this time her complex needs are not sufficiently serious for medical authorities to be able to provide her with involuntary treatment.
Peel CAS has found LS to be an appropriate caring parent who has been able to direct the service needs of her daughter.
There is no open protection file at this time as K did not meet the child protection eligibility requirements of the Ontario child welfare eligibility spectrum as a child protection case.
LS, Respondent Mother's Efforts to Care for K
[28] LS argued in her affidavit filed in response to this motion that she has historically been involved in K's treatment since the traumatic incident of abuse and has made numerous efforts to ensure that K has had necessary services.
[29] LS and AS, the parents of K are separated and have joint custody of their daughter. K after the incident began avoiding visiting with her father believing that his house was contaminated and has been primarily residing with her mother until June 2017.
[30] LS recognizes that KS needed residential treatment because of her illness.
[31] LS found residential treatment and indicates that her efforts as such does not constitute abandonment of her daughter. In June 2017 her daughter agreed to go to Hinks Dellcrest Residential Treatment Program.
[32] From this facility the Peel Children's Center in Mississauga was located for KS. This service was closer to where K had lived with her mother in the past.
[33] LS indicates that she worked with the staff at the Peel Children's Center to address her daughter's needs attending numerous meetings and planning for her daughter.
[34] In March 2018, LS took a one-month break and her caregiving role as she required this for her own health. It was at this point that she explains that her relationship with her daughter K changed.
[35] From this point in time K has rejected her mother. LS however continued in her attempts to arrange services for her daughter and K did not want to spend any time with her mother and does not want this through to today.
[36] It is recognized by all parties that because K is refusing treatment that this has most likely worsened the progression of her illness.
[37] As noted above it is common position that she does not believe she has had a past, she refuses at times to change her clothes and often does not shower after urinating and defecating in her clothes. She wears at times ripped skirts and her pants down, exposing her breasts and vulvar areas and denies that she has private parts.
[38] LS and AS outlined in their material that they are both loving and caring parents and have been trying to obtain for the past four years proper treatments and residential placement for their daughter with limited success. LS has over the past four years obtained the assistance of eight different facilities for her daughter in an attempt to obtain professional assistance to explore treatment care and advocate for her daughter's well-being.
[39] The parents indicate that due to the lack of proper resources in Ontario, their daughter's resistance to accept help, coupled with the fact that healthcare professionals are not prepared to force oral medication on their daughter, although she has been found incapable of making medical decisions, that these combined issues have made it extremely difficult for their daughter to recover.
[40] The parents argue that there is no evidence that their daughter will suffer physical harm because of their failure to care for, provide for, supervise or protect. They argue that to date the child has not experienced any harm.
[41] They argue that they have not abandoned their daughter and wish her to return home when K has received treatment and is capable and ready to return home.
[42] The parents further indicate that if the Children's Aid Society for the Region of Peel was made the substitute decision-maker for K, that there is no evidence to support K's assertion that K would be willing to work with CASP regarding treatment that has been proposed by her healthcare professionals.
[43] They argue that such an order is simply a band-aid solution and is catering to, and playing along with, their daughter's delusions rather than confront the serious issues she faces.
Three Events Leading to this Temporary Care and Custody Motion
[44] It is an agreed fact between the parties that in May and August 2018 while K was residing at the Peel Children's Center the center staff could not manage her needs primarily due to the difficulty it experienced around K's hygiene. A third interruption in her care occurred in September 2018 from the Pioneer Youth Services placement for similar reasons.
[45] These 3 events were:
In April/May 2018 KS was hospitalized at the Brampton Civic Hospital.
In July/August 2018 KS was hospitalized at the Oakville Trafalgar Hospital.
In September 2018 Pioneer Youth Services discharged K.
[46] This motion today is in part in relation to the above three events.
[47] K's position is that her parents and in particular, Ms. LS, who had care and custody of her prior to this application being brought, has refused to resume caring for K, when the above placements broke down at Peel Children's Center in May and August 2018. This was repeated a third time in September 2018 from Pioneer Youth Services and no other placement option was available at the time.
[48] On each of these occasions the CASP refused to bring K in to protective care.
[49] It is argued that the community placements and the hospitals asked that K be picked up, as she was being discharged and services discontinued. On each of these occasions the parents would not pick up or could resume care of their daughter and CASP refused to step in and place K in its care although K requested this.
[50] It is argued that this put K as a youth at risk of physical harm as there was a failure to care for, provide for, supervise or protect her pursuant to section 74(2)(b)(i) and/or her parent is unavailable to exercise custodial rights when a child is in a residential placement and the parent refuses or is unable or unwilling to resume the child's care and custody, pursuant to sec 74(2)(k) of the CYFSA.
[51] The legal grounds and facts argued by the youth in this motion are not in relation to treatment care going unaddressed or being refused by K's parents. This issue of treatment is collateral to the central focus of this inquiry as K refuses treatment and to work with or even to recognize her parents as substitute decision-makers for her treatment needs. I will return to this in my reasons below.
K's Evidence Regarding the Above Three Placement Breakdowns
[52] From K's August 31, 2018 Affidavit, Tab 3 of Vol 1 she states the following:
a) On or around April 30, 2018 I was moved from The Peel Children's Center in Caledon Ontario where I had been since August 21, 2017. Here I did not consent to any treatment and I did not agree to meet with any psychiatrists or psychologists or counselors.
b) On or about April 30, 2018 I was admitted to the William Osler health system hospital in Brampton Ontario (Brampton Civic) on a Form 1.
c) While at the Brampton Civic I was placed on a Form 3, certificate for involuntary admission, and a Form 33, which is a notice to me that I was found to be incapacitated to consent to treatment because of a mental disorder. I appealed both of these Forms.
d) At my May 15, 2018 Consent and Capacity Board hearing, I was found not to meet the criteria for an involuntary patient but the form 33 was upheld regarding my incapacity to provide consent to treatment. I continued to disagree that my decision-maker could make decisions regarding my treatment.
e) I became a voluntary patient and was not consenting to stay at the Brampton Civic Hospital. The hospital began to attempt to look for a suitable placement for me as the Peel Children's Center refused to re-admit me. At this point in time the Brampton hospital contacted the Children's Aid Society who refused to take me into care.
[53] At this point in the testimony K indicates that her mother, whom she refers to as her decision-maker, refused to pick her up from the hospital. Ultimately the Peel Children's Center agreed to take her back into their program on a short-term basis until a more permanent placement could be found and she returned to the Peel Children's Center on June 5, 2018.
[54] K goes on to depose that she contacted CASP asking to be brought into their care and completed a formal intake with CASP on July 16, 2018. She recalls at this time speaking with a social worker, Bhakti Shah, as well as this social worker supervisor Dean Lashington, who informed K that from their perspective she had a guardian and there was no protection concerns regarding her guardian being her mother.
[55] At this stage of the review of the evidence I turn to the affidavit filed on behalf of the parents by Ms. LS, K's mother found at Tab 1 of Volume 2 of the Continuing Record.
[56] It should be noted that in this affidavit Ms. LS does review in a comprehensive fashion the background history of her daughter leading up to the application brought by her daughter and the reasons surrounding her daughter's mental health. She also reviews K's mental health history and importantly the efforts to access services for her daughter, all of which I have considered.
[57] In relation to the discharge and whether she was prepared to pick up her daughter, as the Brampton Civic could no longer assist, Ms. LS states the following:
- While K was involuntary at Brampton Civic Hospital, Peel Children's Center decided to discharge her. This led to an issue as to where she would go. The Children's Aid Society was contacted.
[58] LS attached as exhibit "F" to her affidavit a correspondence that she received from the social worker (patient and family experience worker) at the Brampton Civic Hospital and her 4 page email back of June 25, 2018.
[59] In this email LS voices her dissatisfaction about the care her daughter received and her frustration regarding how the Consent and Capacity Board hearing was conducted. She indicates that she was not told that she could speak at this hearing.
[60] LS stated the following when she was told by Dr. Bakht on May 1, 2018 at a meeting that her daughter's hospitalization was a short stay:
… I explained that my daughter could not come and live with me after her stay due to her illness and PCC was not able to take her back as she was beyond their ability to help her, both the Doctor and Doug Baptistie agreed to supporting an application to Ontario Shores.
[61] After explaining her experience regarding the recording of information by the staff of her daughter's behavior around hygiene and care, which she felt was not thorough, LS further goes on to state in this email to the Patient Experience Representative the following:
… We were at the two week point and the hospital was refusing to complete the application to Ontario Shores as they had previously said they would. They wanted her to leave the hospital but I told them she could not go home or back to the treatment center as I was told they would call CAS and she would be discharged to them. CAS is for children who are abused or neglected in their homes, this is not the case with my daughter, she is ill and needs treatment and no one at the hospital seems to be willing to help her. I was not in agreement with this nor was I okay with her being there voluntarily.
During my daughter's stay we had three case conferences to discuss where she could go once discharged from the hospital. Doug was in attendance at the first and third one. May 23 was the first conference with Doug attending by phone. He informed us that an application was not filed for Ontario Shores and that K would be discharged from the hospital the next day as she was not in need of their services any further. Doug said she would be discharged, when I asked to who as I not picking her up he was said to CAS even though CAS was at the table saying they did not have a bed for her and one not be able to take her. I previously met with CAS and inform them I did not want them to take my daughter as I was concerned for her safety in their care especially with her inability to wear clothing properly. I was not happy with the way the conversation was going especially when we were discussing my daughter defecating and him telling me that she was not doing it and that there were many other kids who needed the help in bed more than my daughter…
At the last conference, I got extremely upset as we were continually having conversations around the fact that my daughter has nowhere to go with no resolution in sight. I was asked what I wanted. I said I would like her to be at PCC until a bed became available at a place where the form 33 could be upheld. This was agreeable to everyone at the table was my understanding.
Now that there is a bed available at Ontario Shores, as she has been accepted, I cannot get her there because it's a voluntary bed and she is refusing treatment. I want her there on an involuntary basis so the form 33 can be upheld. I am now being told that this can only happen if it's a hospital to hospital transfer and I'm being told that Brampton Civic will not take her back and send her there. This is absurd…
[62] At this point I will review the evidence from the Children's Aid Society of Peel regarding the issues surrounding the discharge from the Brampton Civic Hospital. This evidence is located in the affidavit of Dean Lashington, supervisor, dated September 30, 2018, Tab 6 Volume 1 of the Continuing Record, paragraphs 5 and 6:
… On May 13, 2018 the mother was clear, at the hospital case conference, that she wants to parent her child and does not want her child in society care.
… On May 13, 2018 Doctor Butler, PCC psychiatrist, indicated in a report that K has been diagnosed with Obsessive-Compulsive Disorder (OCD). She was prescribed anti-OCD oral medication but has refused to take it. Dr. Bakht, Brampton Civic Hospital, as stated that K has no insight into her mental health.
…The mother's commitment towards K was evident. She has been committed and involved in doing what is in K's best interest. As there is a commitment, protective and involved parent, the society does not have grounds to open a child protection file.
[63] Mr. Lashington goes on in this affidavit to state that through Service Resolution Peel they have researched over 30 residential service providers and the only potential provider that could accept the youth is Pioneer Youth Services in Kitchener.
[64] In their evidence CASP notes that on August 28, 2018 the mother indicated that the parents have joint custody of their daughter and they both want the child to get treatment. The mother is very clear that she wants to maintain custody of her child.
[65] From the case notes not filed by the CASP but filed by K there are many contacts between the CASP and Ms. LS in 2017 around the time that K was placed at PCC. It is evident in these historical notes that Ms. LS was trying her best to arrange for services for her daughter.
[66] It is also quite clear that Ms. LS indicated to CASP that if her daughter K signed out or left treatment she would refuse to resume care of her because she can no longer cope with her daughter's mental health needs.
[67] In these case notes there are references to the 1st event at the Brampton Civic Hospital when the hospital was attempting to discharge K and the Peel Children's Center was refusing to re-admit her.
These CASP notes reveal the following:
… Case to be rated as a 4.1 B and opened as a 12 hour response to further assess concerns regarding the child being abandoned as both mother and PCC residential program is receipt refusing to care for the child. Internal and external record checks completed. Family has history with the society in legacy file 66357. No other internal or external record found on CPI and, fast-track, e-forms or as a provider.
[68] The notes go on to discuss the fact that K was not found to be incapable regarding her voluntariness at the hospital. The notes further indicated that at this time 22/5/18 to 24/5/18 the CASP was aware that Ms. LS would not be accepting her daughter back home because of the need for further treatment.
[69] There was a discussion of the Brampton Civic Hospital dropping K, the youth, off at a shelter on her own as K's mother was not planning to pick her up from the hospital.
A case note dated 25/5/18 authored by CASP social worker B. Shah contains the following information:
… Child Advocate, Ruth Hislop, expressed her concern that no plan has been worked out for K although she has been in the hospital for several weeks now. She stated it is frustrating for the parent to be in this ambiguous situation. Ruth indicated that if hospital does discharge K tomorrow and she believes CAS should step up to take her into their care.
I advised the repeated society stand of having no protection concerns and no significant grounds to bring K into care also advise the table that society does not have beds that can provide the treatment and support that K requires. I also can indicated that mom has expressed that she does not want C(K) in society's care as she thinks K needs treatment.
LS at this point stated she is frustrated and anxious about the situation in that she wants K to be safe wherever she is. LS indicated she does not want K to be in a foster home but if hospital were to discharge her as planned, she would rather have K safe in the care of the society than on the streets.
[70] At this point there are two further case notes filed by K. One indicates that the CASP legal department is being contacted to alert them about a placement alert and an impending discharge in bringing the child into care.
[71] The next one at 25/5/18 later that day indicates that based on a discussion with a supervisor at CASP (that Ms. B. Shah the Society social worker) has learned the following:
… the Ministry as instructed that the hospital should not be discharging the child tomorrow or in any time before community case conferences held to discuss the next steps. Therefore, in the event that the hospital calls after-hours regarding discharging the child, they have to be communicated about the Ministry direction and that we cannot bring her in care until the next case conference happens.
[72] I indicated to all parties when I provided my oral decision in this matter that I am concerned about how these case notes were not filed by the CASP, who has a duty to do so. This I further examine below in my findings and discussion section of this decision.
[73] This above, first event, was resolved on a temporary basis as the Peel Children's Center eventually agreed to continue to assist K and re-admitted her between the dates of June 5 to August 29, 2018.
[74] However there was the second event, another hospitalization that occurred in this period of time at the Oakville Trafalgar Memorial hospital between July 26 and August 29, 2018.
[75] The evidence presented regarding the second event is further explained below. It should be noted that during this time Peel Children's Center again indicated that it would be discharging K and this led to a second standoff between different interests in the community and the parties, in particular the parents, regarding the physical care of K with nobody stepping up to take responsibility to physically care for her.
Second Event
[76] On August 24, 2018, K was admitted to Oakville Trafalgar Hospital and placed on a form 1 and then a form 3. The main concern at this time was that Peel Children's Center was unable to address K's needs and there was an inability on her behalf to care for herself.
[77] K in her affidavit of August 31, 2018 recalls the following:
On August 27, 2018 Doctor Brown told me that he was preparing to discharge me from the hospital. However no one agreed to take me into care. Peel children's center refused to pick me up from the hospital and formally ended their service agreement with me the next day. The decision-maker refuse to take me, and there was no way I would have agreed to go with her. The Society and Halton Children's Aid Society also refused to take me into their care.
Between August 27 to 29/2018 I was a voluntary patient at the hospital and did not consent to stay there. However, I could not be discharged into the care of any caregiver, as the society had refused to take me into their care and the decision-maker also refused to pick me up from the hospital. In the afternoon of August 28, 2018 I spoke to staff at Oakville hospital about signing myself out and leaving by myself. I made a plan to leave and call the police and the society from outside the hospital. However, in the end I stayed at the hospital on the night of August 28, 2018.
[78] LS, K's mother, in her reply affidavit Tab 1 of Volume 2 states the following about this second event:
K subsequently had an admission at Oakville Trafalgar hospital in August. Her psychiatrist Doctor Brown thought she would respond to treatment but again we ran into issues of K not consenting to treatment and not wanting or able to force oral medication. Doctor Brown raised the possibility of a community treatment order if we could build a case over time with her repeated clinical behaviors be able to force treatment. I was told I needed to wait for my daughter to be a physical harm to herself or to someone else in accordance with the Mental Health Act in order to get her the help she needs and override her ability to refuse it.
[79] Ms. LS does not address the issue of her refusal/inability to pick up her daughter. She also does not touch on the refusal by CASP when there was a discharge of her daughter from this hospital and that K also planned to leave.
[80] Ms. LS does state that despite the difficulty at the discharge at the eleventh hour there was a transfer of K to Pioneer Youth Services.
In the affidavits filed by the CASP to this motion the following explanation was provided regarding this second event:
[81] In Dean Lashington's September 13, 2018 affidavit, he states at paragraph 21:
Oakville Trafalgar Memorial Hospital gave notice to Ms. S that they were ready to discharge K on August 28, 2018. Ms. S notified the hospital that she was unable to resume care of her daughter at this time, as she believed her daughter needed treatment before returning home.
[82] CASP in the balance of the affidavit again talks about its position that treatment was what is required and did not focus on how in this instance the child K could be on her own and no one willing to pick her up and care for her including CASP.
[83] In K's initial motion material she filed through her counsel's office a series of correspondence between her counsel and the counsel for the CASP. K's counsel underlines the need for her to come into care. The society indicates in its return correspondence simply that the CASP has not identified any child protection issues.
[84] Within this group of correspondence there are case notes from Oakville Trafalgar Hospital that clearly indicate the social workers at the hospital where in touch with both the mother and CASP and neither were prepared to care for the youth. The hospital social worker indicates that they don't understand this situation. They are puzzled by the position of both the parents of the youth, her caregivers, and the stance of CASP.
[85] Each indicated to the institutional hospital that K needed care and that was their focus when the hospital administration and doctors decided they were discharging K. At this point K was discharged as there was no legal basis to hold her against her will and the adults in her life needed to come and care for her.
[86] In my review of the case notes from the hospital and the communication with both K's mother and CASP, it is clear the hospital is puzzled and is at its wits' end in terms of what it might do in this circumstance. The hospital is asking for the recognized protection authority in the area, CASP, to care for K.
[87] The above evidence was within the initial documents filed for this motion and not within Volume 3 of K's reply evidence, which the CASP and the parents argued should not be considered by me in this motion.
[88] I accepted the notes that dealt with the three events and explain this further in my reasoning below.
[89] In Volume 3 are case notes that were in the possession of CASP and released at a request for disclosure by K while preparing for the motion which were not filed by the CASP as noted above.
[90] A review of these notes again repeat a similar pattern where both Ms. LS in speaking with CASP clearly indicates that she is not picking up her daughter and informs CASP on one occasion where she can be reached if required as she was required to be out of town for a day or so.
[91] It is quite clear in reviewing these notes that the child K was about to leave the hospital on her own. CASP was aware of this as was Ms. LS.
[92] A review of these notes indicates that effectively there is a standoff between the hospital, Peel Children's Center, the mother, and CASP in which the child is caught in the middle and extremely frustrated that her voice is lost in this process.
[93] More to the point, I find that again with this second event, K is left without a caregiver and given who K is, with her mental health profile and how she presents physically, she is a vulnerable youth.
[94] She should not have to worry about her care and is a youth in need of protection if this risk keeps repeating itself, as it did for a second time with this event with her parents stating they would not be caring for her upon discharge and no plan to do so was in place.
[95] In fairness to K's mother and father, Ms. LS stated to the PCAS worker on August, 27, 2018 during a telephone conference the following:
… K is "sick and it's not my fault that the system is not working for her."
[96] I further find concerning the following information from PCAS supervisor, Dean Lashington on 28/8/2018 at 8:00 a.m. Mr. Lashington records the following message from Dora Lee Pope, social worker from the Oakville Trafalgar Hospital:
…She said she has been given directive to discharge the child at 11 a.m. and she is calling early to let me know that is what will happen. She knows that I said CAS is not involved but the child will not go home and her mother and PCC won't come to get the child so CAS has to. The hospital Administration says she has to leave by 11 a.m. and if that doesn't happen then it goes to the Ministry and from Ministry to Ministry….There is no easy solution to this.
[97] The second event and standoff concluded with K staying at the hospital an extra two nights against her wishes and eventually a placement at Pioneer Youth Services was located. It must be recognized that at this point in time that K (with all of her vulnerabilities) was in the community on her own in a public hospital at 15 years of age and free to go.
The Third Event
[98] While residing at Pioneer Youth Services, K was in touch with the Office of the Provincial Advocate Children and Youth. K began working with an advocate from this office. K did not consent to her stay at Pioneer Youth Services.
[99] When K raised this with her Advocate she was directed to speak with a resource coordinator through Peel Children's Center who directed that she speak with the CASP.
[100] K explains in her affidavit of October 5, 2018 that she was advised on September 17, 2018 by the staff at Pioneer that she was to be discharged on September 27, 2018.
[101] In a second affidavit filed by CASP by Ms. Wendy O'Hare she states at paragraph 24, Volume 2 Tab 8 of the Continuing Record:
On September 27, 2018 I informed Ms. S that K had refused to go to the condo placement in Mississauga (Family Options) so arrangements were made by Peel Children's Center to have her stay in a hotel in Oakville, staffed by Family Options, on a temporary basis.
[102] On that date transportation was arranged to take K to the Mississauga placement, Family Options. K explains that she refused to go to the Mississauga placement. She explains the following in her affidavit:
I refused to leave with the patient transport service. After a half an hour I walked by myself to a nearby Tim Hortons and then to a shopping mall. Nobody followed me. I was gone for about four hours.
Later in the afternoon, Maria (Child Advocates Office) and the society met me at the shopping mall. Maria told me a hotel room had been booked for me in Oakville and that Family Options had agreed to supervise me there for about five days. I went with Maria to the hotel room and stayed there on the night of September 27, 2018.
[103] Further evidence was led in K's affidavit that the following day she called the hotel front desk and complained that she was not being permitted to leave her room by the staff that were there to monitor her. Based on this the front desk attendant asked if she wanted to call the police and she agreed to do so.
[104] Apparently a few minutes after this telephone call to the front desk the staff permitted K to leave the room. When she reached the lobby the attendant told her the police officers were on their way. She indicated that she had been permitted out of the room and she went to a local Tim Horton's.
[105] Within a short time several police officers, with their guns drawn, approached the outside of the Tim Horton's where K was sitting. Three officers came in and spoke to her and she explained what had occurred and the officers then left.
[106] When she returned to the hotel the Family Options staff informed her that she can no longer stay in the hotel and that she would have to go to the Mississauga placement.
[107] K refused to go to the Mississauga placement and a worker indicated that if she refused she was going to call the police which the worker did. Three hours passed and the police arrived and informed K that if she did not get into the staff vehicle they would handcuff her and put her in the vehicle.
[108] K goes on to explain that the police were angry at her and eventually herded her into the staff vehicle that brought her to the Mississauga placement on September 28, 2018.
[109] K's mother, LS, states the following regarding this third event:
That on September 26, 2018, K's lawyer brought to my attention that K refused to go to this new supportive living arrangement because she viewed it as treatment and because it was located in the Peel Region where her parents reside.
[110] LS goes on to explain that she learned her daughter requested to be in a foster home, group home or stay at Pioneer Youth Services, where she had previously refused to stay.
[111] LS also deposes that K's refusal to stay in the Peel Region indicates that she fully knows who her family is, as they all live in the Peel Region in Mississauga.
The CASP Evidence Regarding the Third Event
[112] The affidavit of Ms. Wendy O'Hare located at Tab 8 of Volume 2 of the Record contains the CASP's responding evidence regarding this third event where K was wandering in the mall on her own.
[113] Ms. O'Hare indicates that on September 26, 2018 Ms. LS met with staff at Family Options and reviewed the intake admission package and signed the service agreement. It was at this point that the Peel Children's Center was to send a private transportation to bring K to Mississauga.
[114] Ms. O'Hare indicates that she received a telephone call on September 28, 2018 in which there was a crisis with K's placement at the hotel in Oakville where she was waiting.
[115] Police arrived at the evening after K refused to go to the Mississauga placement.
[116] Ms. O'Hare explains:
That when Halton police arrived, they spoke with K and advised her that she could not be left alone because of her age and directed her to go with the staff to the condo in Mississauga. After several hours, K eventually went with Family Options staff to the condo in Mississauga.
[117] Ms. O'Hare explains that on October 3, 2018 she spoke with K's mother and explained how K did not wish to stay in Mississauga and would be open potentially to a placement at Lutherwood which is not in the Peel region. Ms. O'Hare explains how LS was open to completing an application to place K on the Peel Regional Police Vulnerable Persons Registry and was prepared to complete the application and that LS advised Ms. O'Hare that she would be out of town that afternoon and would return on Monday but would be accessible via telephone.
[118] Ms. O'Hare explains in detail the efforts made by the CASP along with the community resources to explore over 30 placement options for K. It is also explained in this affidavit the difficulties that K presents given her mental health. The affidavit further notes the youth's demands to be moved from the current placement which is a condo setting in Mississauga with support staff from Family Options.
[119] Ms. O'Hare further deposes that K's parents have been willing to support K and a parental role and available to work with community around planning for K's needs and K's needs cannot be met in a foster care setting and that the community is better equipped to provide the long-term support and services that K needs and that there are no current child protection concerns.
[120] In the course of completing this hearing and when I was providing my oral reasons I heard that K has now been placed in a Family Option's residence in the Oakville area. She resides on her own with staff in the building.
Ruling on Affidavit in Reply dated November 1, 2018 filed on behalf of Youth Volume 3 of the Record
[121] Each of the parties have filed affidavits except for the father AS who relies on the pleadings and the factum filed on behalf of the mother LS.
[122] K, the youth, filed 2 affidavits and a factum in support of her Motion.
[123] CASP filed 2 responding affidavits.
[124] Ms. LS filed a responding affidavit and factum.
[125] The youth K also filed a reply Affidavit dated November 1, 2018 which contained 32 exhibits consisting of PCAS case notes and emails/correspondence.
[126] The CASP and the parents raised an argument at the start of this motion that the content of the case notes, Volume 3, is not proper reply and also some notes contain historical events pertaining to the care of the child by her mother that predates the recent events leading up to this motion. They also argued that they have not had an opportunity to comment and respond to the contents of the case notes. They point to Rule 14(20)3:
The moving party on a motion may file evidence in reply to any new matters raised in a responding party's pleading.
[127] It is argued that the case notes are not in reply to new matters raised for the first time by the Respondents in their responding pleadings.
[128] K's counsel argued that some of the notes are in reply to the information as framed by the Respondents particularly about the protection issues regarding the youth K and her mother and other notes in particular about the three events noted above.
[129] Further, it was argued that these notes were in the control of the Respondent CASP at all times and were only made available very recently before the motion due to timing. Note that at no time was it suggested that CASP was delaying the disclosure. It was a matter of timing from the date requested to the motion date.
[130] It is noted the CASP has an obligation to disclose. It is argued that the subject matter of the notes were known to both the Respondents as it is primarily their communication between each other as well as communication between the society and institutions caring for K more recently. Further it is argued that not all of the circumstances as known by the Society have been laid out in CASP's pleadings and for this reason it is proper reply.
[131] I indicated that I would decide as to what I would rely on if anything in Volume 3 which contains these notes at the outset of this decision.
[132] In relation to evidence as it pertains to child welfare protection files at a temporary care and custody motion stage and principles regarding disclosure, I note the following:
Section 94(10) of the Child, Youth and Family Services Act indicates the court may use the following evidence on motions dealing with adjournments:
For the purposes of this section, the court may admit an act on evidence that the court considers credible and trustworthy in the circumstances.
[133] Further I note that Justice S. Sheer in his Family Law bench book provides the following on the obligation of a Society (CAS) with regards to disclosure obligations and duty to the court in child protection matters:
Duty of Society- to ensure that its pleadings are fair and well balanced. Full and frank disclosure means that the society must include evidence that may be helpful to the parent. Hastings CAS v. SA.(A) [2007] O.J. No. 5467. Due to the special powers granted under the Act to the Society, the Society has a duty to act with fairness and reasonableness and must always exercise good faith and respect the rights of all persons: See, for example, Children and Family Services of York Region v. E.(P.) O.J. No. 4884 (Ont. S.C.J.); and Children's Aid Society of London and Middlesex v. S.(E.V.P.), 2004, 1 R.F.L. (6th) 68 (Ont. S.C.J.).
The Society has a duty to reassess its position as circumstances warrant over time. See: Children's Aid Society of the Niagara Region v. D.(W.), Children's Aid Society of the Niagara Region v. B.(C.), [2005] O.J. No. 3878 (Ont. S.C.J.); Children and Family Services of York Region v. E. (P.), [2003] O.J. No. 4884 (Ont. S.C.J.); and Children's Aid Society of London and Middlesex v. S.(E.V.F.).
[134] I particularly wish to underline the following in this regard:
It has long been recognized that the Society, as an agent of the State, is not an ordinary litigant and the adversarial concept of winning and losing does not apply: see Catholic Children's Aid Society of Metropolitan Toronto v. P.M. (1982), 36 O.R. (2d) 451 (Ont. Prov. Ct.). The Society must act with "fairness and reasonableness," exercise good faith, due diligence and reason. An aggressive litigation strategy has no part in child protection cases and is contrary to the Society's role. The Society must understand it is the court that determines the child's future, relying on the Society to present all relevant evidence in a fair and just manner. The court does not "rubber stamp" decisions previously made by supervisors or management at the Society. Children's Aid Society of Hamilton v. E.O..
The Society's duty of disclosure does not simply involve delivery of case notes to parents' counsel. The duty extends to disclosure to the court. After all, the Society and the court are guided by the paramount purpose in the CYFSA. The Society, as with Crown counsel in a criminal case, is not to focus on winning the case, but, rather, to seek a determination that is in the best interests of the child. Further, the court has the responsibility of making that determination and is not to simply "rubber stamp" decisions of the Society. Children's Aid Society of Hamilton v. E.O..
Late Filing of Evidence
[135] When children are involved, if the evidence is relevant, necessary and probative to the matters in issue, the court should take an expansive and not a technical approach to its admission. See Winton v. Loforco. This principle certainly applies to child protection cases where courts are tasked with ensuring the safety, protection and best interest of children. Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784.
[136] In reviewing the notes I would have expected that the CASP would have lived up to its obligation and provided to the court a fulsome picture of the circumstances surrounding at the minimum the three incidents as noted above in May through September 2018 that involved all three parties before me today.
[137] Returning to Volume 3 in this motion, I find that CASP should have had this information attached to its affidavits when reviewing with the court the circumstances surrounding "the challenges/difficulties" as the respondents describe the events surrounding the discharges of K from the Brampton and the Oakville hospitals and in addition to the events surrounding the breakdown of the services provided by Pioneer Village leading to K being on her own without proper supervision in the community at a mall, given who she is and her needs and how she presents herself.
[138] The Peel CAS has a higher duty in these matters. I am not certain why it did not provide this information to the court in its materials. I recognize the challenges that K poses and I also recognize the assistance and support over a number of years that the CASP social workers have provided to this family. This however does not alleviate the above noted responsibility when providing all the evidence to the court in these sensitive matters to protect children if it is required.
[139] In any case this was objectively not helpful in this matter.
[140] I have in this decision taken into consideration principally the case notes that relate to the three events which I believe is fair as a backdrop to what each of the parties has said around the three events in their main affidavits before the filing of this reply affidavit.
Discussion/Decision Reasons
[141] In making this order placing K in the temporary care and custody of the CAS Peel, I acknowledge the long-standing efforts of her parents, in particular Ms. LS in providing care and custody to K first at home and then working to locate treatment in the community, when it became evident to Ms. LS that she could no longer care for K at home.
[142] I am aware of K's positions that:
She does not recognize her family.
That she has no past history or that she is not ill.
That she does not need treatment.
[143] I am also aware that the consequences of her mental health on her hygiene and behavior effectively have shut down the options available to her parents to care for her.
[144] Where I differ with the parents and the CAS Peel on this matter is that given all the circumstances that this is a treatment file with no protection concerns.
[145] In the evidence that I have reviewed above I see the extreme vulnerabilities that have been exposed on so many levels, that it is hard to avoid the fact that K has been exposed to, and will continue to be placed at risk of physical harm when dilemmas/struggles/challenges have occurred and will continue around who should care for her as no community option is available.
[146] I find this risk of harm occurred when K was left without care, by a parent who had charge of her, when Mr. and/or Ms. S did not step in, or could not step in, to physically care for their daughter until the next potential treatment placement could be located.
[147] No doubt K needs treatment. However, to focus on this before K returns home or before a caregiver would or could care for her, even for a few days until arrangements could be made, causes this case to be a protection file. Somehow the parents' historical work regarding treatment for their daughter blurs K's immediate care needs.
[148] K's best interest cannot be a struggle over treatment versus her care.
[149] I find the following facts clearly point to protection needs as follows:
In first instance we have a youth of 15 years old with mental health issues that make her vulnerable on many levels if on her own in the community.
K refuses to undergo any treatment and the professionals for ethical reasons will not force this on her.
She is not a danger to herself and the community and therefore cannot and should not be placed in a service setting that restricts her freedom. This would not further treatment goals and could be a violation of her charter rights that she has in our society which we cannot ignore.
The evidence clearly exposes the clear limitations of community placements and the fact that when and if it is not available her parents must be responsible to pick up the care of K until a next placement can be located.
K's mother herself has said having her home without treatment is not an option and before K can come home she requires treatment.
That the parents who had care and custody of K could not and/or would not care for her on three occasions, with escalating risks which culminated in the child being on her own in the community which all agree that for K, given her mental health and her presentation, places her in an extremely vulnerable situation.
I find she was in a situation of risk of harm.
[150] I do not accept the position of CASP that given the efforts of the parents to locate treatment for their daughter, and that in any case as it would not be CASP who would provide the treatment directly to K that therefore this is a treatment file and not one of protection.
[151] It is this thinking that created the blind spot of the CASP to its duties to simply care for a child when a parent is unprepared or unable to do so. This has nothing to do with the subjective love that a parent has or the subjective willingness of a parent to locate treatment.
[152] In this instance at times the community treatment providers could not continue with their care and the parent, who had care and custody of K was required to do so, or if unable to, then the CASP should have.
[153] As I stated to the parties in my oral decision, the above evidence that I have taken to review at length in this decision is regrettably the type of evidence that has emerged at inquiries into tragic deaths of children in our community.
[154] In addition K is not the first youth to yell and scream that they don't need any help of any sort and reject their parents.
[155] This behaviour is part of being an adolescent youth with a developing mind.
[156] This should not be the criteria for CASP to first assess objectively a situation based on its protection mandate as set out in the CYSFA when a situation presents itself.
[157] On each of the three events as I have described, when the institutions were saying they were not going to care for K and her parents also said the same, this is when PCAS should have acted. If not on the first occasion then why it did not do so on the second occasion and in particular the third occasion concerns me.
[158] I find that there is no valid explanation based on the evidence and the law that I have received before me to explain why the CASP did not carry out its mandate.
[159] In not doing so I find that CASP focused incorrectly on parental rights over the child's rights and the priority and objectives in the CYFSA that have not changed despite the recent amendments to the legislation, although many new factors need to be considered when assessing the protection needs of a child and how the family and community might address these if the evidence is there to support the same.
[160] The Supreme Court of Canada has clearly given us directions as follows in this regard:
Parent's rights secondary to child's welfare:
(1) The CYFSA requires a careful balancing of the paramount objective to promote the best interests, protection and wellbeing of children, with the value of maintaining the family unit. The legislation does not emphasize parental rights but rather recognizes the importance of maintaining the family unit as a means of fostering the best interests of children. The values and purposes outlined under section 1(2) must always be evaluated in contemplation of what is best for the child. A child-centered focus must not be lost at any stage of a protection hearing, see Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165. In CFSA v. K.L.W., [2002] 2 S.C.R. 519, the Supreme Court of Canada again affirmed that child protection legislation is about protecting children from harm and commented at para. 80: "It is a child welfare statute and not a parents' rights status."
[161] Further to the recent amendments to the CYFSA, we also have a heightened responsibility for us all to consider and hear the voice of a youth/child when it can be reasonably obtained.
In the CYFSA 2017 the views and wishes of a youth must be considered at the following stages:
At the Temporary Care Hearing: s. 94(11)
Placement with a relative s. 94(5)
Choosing a disposition s. 101
Making a custody order in a CP matter s. 102
Access s. 104 and 105
Care and custody pending appeal s. 121(4)
Extension of time limits for interim society care (formerly society wardship) s. 122(5)
Adoption s. 179(2)
[162] For K's voice to be heard, the matter should not have needed to be brought before the court. I find it is common sense that for the spirit of this legislative emphasis to be meaningful, it is incumbent on us all, outside and in the court process, to listen to the youth's perspective, if in all the circumstances what they say is reasonable.
[163] I find that what K says regarding her immediate care is reasonable given who she is and the circumstances but not reasonable on all issues and subjects in this file given her youthful mind and mental health obstacles.
[164] I further agree with K's counsel from Justice for Children and Youth in their submissions when they asked why was it so that K was allowed to remain in a vulnerable situation and/or put herself in harm's way for her voice to be heard, in order to obtain what is her right to protection from CASP, given the fact that her parents had clearly said that although they love her, she cannot come home before treatment.
[165] When I provided my oral reasons I did indicate that I in this respect do not see K's situation any different than a youth who is jammed up in the criminal youth justice system with several charges over a number of years and finally a parent says,…"sorry this time I will not be picking you up from the police and/or bail court, you need help."
[166] Routinely a CAS provides that youth with care when this type of situation occurs. This care is provided to youth who are often very difficult to service for emotional/mental issues, although not those like K as such, but with all of the immaturity that comes with an adolescent's mind.
[167] I also note that in this matter it was suggested, to a different degree from K's parents and CASP that K is aware, at some level of her action, which may be due to adolescent stubbornness. The argument is something along the lines that I must be careful that "the tail is not wagging the dog."
[168] I accept this. Indeed K's actions and positions are difficult. I have no argument with this. Her different positions are however coming from a youth's mind that is not fully formed and developed, this in general terms is well understood and should not be controversial.
[169] In addition, her mental health has created an additional barrier for her to be able to reason through what the adults are suggesting is in her best interest.
[170] She in many respects is like other challenging youth in conflict with their parents, who are not prepared to work with their parents and their parents are not prepared to work with them, unless something moves.
[171] In the meantime it is the responsibility of the CAS and this court to care for them when a parent is unable to exercise their care but might be able to exercise their custodial rights which is only part of the test of care and custody.
[172] This situation would not arise if the crisis situation and the gaps that have existed in the legal care for K could be avoided. Without a decision on this issue, more crisis situations occurring in the future in my opinion are very real.
[173] This creates a risk of K being placed in situations of physical harm, given who she is and how she presents in the community.
[174] She must also, I believe, be very scared and confused when these situation arise. I am certain her parents feel this as well themselves and know that she must feel this.
[175] In the care of the PCAS this legal obligation is clear and there is no ambiguous situation and no struggle over her physical care.
[176] As for K's medical/treatment needs, I heed and accept the following evidence presented by Dr. Brown in a reporting consultation note of 28/8/18:
The Peel Children's Center did not come in to pick the patient up to take her back on August 27, when she was given a discharge from this hospital.
She remains here today on August 28 as a voluntary patient. The patient's mother has advised us in the past that she could not manage this patient at home and will not take her home.
The Peel Children's Aid Society has been contacted and has indicated that they did not think that she is their responsibility to house at this point in time because she needs a treatment program.
Unfortunately, this young girl refuses to acknowledge she has a severe obsessive compulsive disorder and refuses to receive treatment. Unfortunately, she is also not able to receive any treatment authorized by her STM, i.e., her mother, for OCD as there is no injectable treatment that we can provide for this condition.
At the present time, this young girl needs placement in a therapeutic foster care setting. In this setting, an attempt can be made to establish a more trusting relationship with this young girl, so that she can perhaps begin to look at her disorder more flexibly and begin to consent to treatment. This will take some time, i.e., three to six months, in a caring therapeutic setting.
At the present time then, I am therefore recommending placement in a therapeutic foster home setting as soon as possible. This young girl remains a voluntary patient here at the hospital, but may decide to sign herself out as soon as possible at any moment. I think we need supports in place. Ideally, this should be the Peel Children's Aid Society. I have contacted the Halton Children's Aid Society, but they refused to intervene as they state she has been attached to the Peel Children's Aid Society before and her mother, i.e. her Substitute Decision Maker, lives in Peel.
[177] I also accept submission of her counsel regarding K's rights on the issue of treatment as follows:
Although K has been deemed incapable with respect to medication decisions, her wishes with respect to treatment remain relevant and must be considered by her substitute decision-maker. Her capacity may also evolve and change over time. K's substitute decision must be able to communicate with K regularly in order to take account of her wishes and any changes in capacity and make decisions that truly reflect her best interests.
A focus on treatment at all costs raises a further risk of harm. The Supreme Court of Canada has commented that forced medical procedures "must be one of the most egregious violations of a person's physical and psychological integrity" and can cause severe emotional trauma to a child. Furthermore, removing a child's agency over their body and ignoring their wishes undermines the trusting relationships necessary for long-term success and risks driving them further from willing participation in treatment.
The Society is needed to act as K's "treatment partner." Indeed, K has indicated she would be willing to share information with the Society about her day-to-day care and engage them in treatment decisions. In the past, service providers have commented she has worked well with staff when she has clear and consistent expectations delivered in a collaborative tone. She has already met with the Society's social workers and spoken openly to them about her preferences and needs.
[178] Given the above direction of the SCC and K's lack of trust towards her parents who were acting as decision-makers regarding treatment, combined with the evidence from Dr. Brown, this supports the need for CASP to be the temporary decision-makers regarding K's health and not her parents. I note the following: under the CYFSA, the society's ability to consent to medical treatment for the child, in the absence of parental consent to that exercise of society discretion, requires a court order removing custody of the child from his parents and entrusting it to the society. CAS Toronto v. L.P., 2010 ONCJ 320. The Society was allowed to make the child a temporary ward to obtain a necessary blood transfusion. B. v. CAS Toronto, 1995 9 RFL (4th) 157. Entitled to infringe s.7 of Charter in Jehovah Witness case. H. v. CAS Toronto 1996, 138 DLR 4th 194 (Ont. General Division). Refused where only 30% chance of success. CAS Toronto v. F., 1988 66 O.R. 2d 528.
[179] This is in her best interest and potentially might assist in her accepting future treatment if she can develop a trusting relationship with a worker or a team of workers from the Society.
[180] This is what K has said she would be open to and I accept this and have heard her voice. I also accept that this may not happen, however, that is K, the youth that I have before me now.
Temporary Order
a) that KS be placed in the care and custody of the CASP, pursuant to section 92(2)(d) of the Child, Youth and Family Services Act, 2017 (CYFSA); and,
b) That CASP be authorized to act in the place of a parent in providing consent to treatment for the youth and on her behalf pursuant to section 110(4) of the CYFSA.
Released: December 12, 2018
Justice A.W. Sullivan