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

Ontario Court of Justice

Date: 2018-02-22

Court File No.: Woodstock C245/17

Parties

Between:

Children's Aid Society of Oxford County Applicant

— AND —

N.J.W. S.M.L.B. D.L. T.S. Respondents

Before: Justice S. E. J. Paull

Heard on: February 6, 2018

Reasons for Judgment released on: February 22, 2018

Counsel

Danielle Lapare ………………………………….…………. counsel for the applicant(s)

James Battin …………..………………..… counsel for the respondents, D.L. and T.S.

Decision

PAULL J.:

Temporary Care and Custody Motion

[1] The Society has brought a motion seeking an order that M.L. born […], 2008, K.L. born […], 2008, and J.B. born […], 2012 be placed into the temporary care and custody of the Society, with access to the parents being in the discretion of the Society, or alternatively, if the children remain with the parents that they be subject to strict terms of supervision.

[2] The respondents D.L. (the children's father) and T.S. (their stepmother) oppose the Society's motion and dispute the need for Society involvement.

[3] By way of background the children M.L. and K.L. began to reside with their father in or about January 2012 and have remained there pursuant to a 57.1 custody order dated January 17, 2013. D.L. began residing with his common-law partner, T.S., in or about August 2013.

[4] The child J.B. began to reside with his father and stepmother in or about November 2013 and has remained there pursuant to a 57.1 custody order dated August 9, 2015.

[5] The Society takes the position that the children are at serious risk of harm on the basis that the parents are restricting and controlling the children's food intake to the point that they are malnourished and not growing as they should be as a result.

[6] The Society takes the position that the parents are fixated with proving that their children have either Prader-Willi syndrome and/or hyperphagia. The children have been exposed to numerous doctors and examinations, but the parents have resisted any medical advice that runs counter to their beliefs, particularly any advice that suggests that the parent's behaviour in controlling the children's food intake is primarily responsible for their food seeking behaviours.

[7] The respondents D.L. and T.S. (hereinafter referred to as the "parents") take the position that they are carefully monitoring and limiting the children's food intake based on medical advice and in response to the children's significant behavioural issues, primarily related to their fixation with food. Their position is that if they do not maintain careful control over the children's food intake the children will put themselves at serious risk by over eating. The children require close supervision at all times to ensure their safety because they will eat uncontrollably and will often ingest non-food items including soap and shampoo, bugs, and wood chips.

Legal Framework

[8] The legal test for me to apply on this motion is set out in subsections 51(2), (3), (3.1) and (3.2) of the Child and Family Services Act (the "Act") that read as follows:

Custody during adjournment

51(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the Society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the Society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the Society, but not be placed in,

• (i) a place of secure custody as defined in Part IV (Youth Justice), or
• (ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

Criteria

(3) The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b).

Placement with relative, etc.

(3.1) Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child's best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

Terms and conditions in order

(3.2) A temporary order for care and custody of a child under clause (2)(b) or (c) may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child and

(c) reasonable terms and conditions on the Society that will supervise the placement, but shall not require the Society to provide financial assistance or to purchase any goods or services.

Applicable Legal Principles

[9] 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 and conditions of an interim supervision order. 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.

[10] 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.

[11] 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.

[12] Subsection 51(7) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstances. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. Family and Children's Service v. R.O., [2006] O.J. No. 969.

[13] 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.

[14] Subsection 51(3.2) applies to an order being made in accordance with clause 51(2)(b) for a temporary supervision order. Catholic Children's Aid Society of Hamilton v. P. (C.R.), 2011 ONSC 2056.

[15] The onus of proof or criteria are the same when the Society is requesting a non-removal order pursuant to clause 51(2)(b) of the Act or a removal order pursuant to clauses 51(2)(c) and (d) of the Act - the issue to be determined in making the non-removal order under clause 51(2)(b) is whether or not the Society has reasonable grounds to believe that there is a probable risk that the child will suffer harm if reasonable terms and conditions of a supervision order are not imposed. Children's Aid Society of Halton Region v. Z. (T.A.), 2012 ONCJ 231, par. 20.

Factual Analysis

[16] In making this determination I have reviewed and considered the affidavits and attachments found at tabs 4, 5, 7, 9, 10, 12, and 13.

[17] The Society has a history of involvement with the parents. Since 2013 there have been numerous investigations primarily concerning the children's behaviours and that the children were not being given enough food. The parents and schools reported ongoing and serious behaviours around food seeking behaviour by the children in the home and at school.

[18] The children were seen by Dr. David Templeman, a child and adolescent psychologist in 2014. His opinion was the children did not have Prader-Willi syndrome, which is a genetic disease which does not allow them to control their food intake as they are always hungry, requiring extensive food controls to be in place. Rather, he felt it possible that M.L.'s hyper fixation on food was the result of a different type of hypothalamic dysfunction similar to Prader-Willi syndrome. However, after postulating this in his report dated February 28, 2014 he stated that,

"Having said that, the dramatic improvement that has been seen over the last six weeks with relatively simple behavioural strategies that have been consistently implemented and a significant dietary change would not be your typical course in a child with true hypothalamic dysfunction. It is possible these behaviours were learned behaviours that needed to be extinguished, in which case, as the parents and school continue to implement the strategies consistently over time there will be a continuing improvement in the disruptive behaviours, as well as the children's oppositionality and defiance. The best label under which to categorize these difficulties would be that of Parent-Child Relational Problems."

[19] Dr. Templeman strongly recommended the implementation of a rewards based behaviour modification program in the home and supported the need for a strict eating routine at home and at school.

[20] In 2015 FACS Elgin received referrals from M.L. and K.L.'s school regarding the children's lunches being inadequate. At that time FACS Elgin received information from Dr. Glenn Berall, a specialist at the Infant, Child and Adolescent Nutrition Clinic, who concluded the children were hyperphagic, which was similar in appearance to Prader-Willi syndrome, and is characterized by an abnormally increased appetite which required careful monitoring and supervision. At that time the children were also being assessed at CPRI in London. As a result of this information FACS Elgin closed its file in April 2015.

[21] Referrals regarding concerns for the children's limited food intake continued. On or about August 4, 2015 M.L. and K.L. were admitted to LHSC by Dr. N. Karp, a medical geneticist, for a full and comprehensive medical assessment and review of medical history.

[22] In a report dated August 12, 2015, Dr. Hukui, a member of the medical team involved in the children's assessment, noted that the twins had been admitted for monitoring of caloric intake, diet, and behaviours in the context of a long-standing history of hyperphagia and small stature. The report stated that the children did not exhibit any other clinical features to suggest Prader-Willi syndrome and that testing had previously been completed and the results were negative.

[23] The report noted that during their hospital admission both children,

"demonstrated restraint and satiety if provided with scheduled meals and snacks throughout the day. They could be redirected with distraction techniques if required. They were given age-appropriate foods without caloric restriction and demonstrated an appropriate weight gain."

[24] The multidisciplinary team involved in the assessment at LHSC indicated various criteria as being, "the minimal requirements for the safe discharge" of the twins into the parent's care. These criteria included, among other things, no caloric restrictions were warranted, no restrictions on types of food offered (except with the reasonable limitations on sugary candies and baked goods), with regular balanced meals and snacks throughout the day. It also recommended that the twins receive individual counselling through OECYC.

[25] The report also, "very strongly suggested" that the parents receive counselling themselves, and that the children and parents participate in programming through CPRI. A Parenting Capacity Assessment and FASD assessment were also recommended through the London Family Court Clinic, as well as unscheduled home visits by CAS to, "ensure a safe home environment in compliance with the above recommendations."

[26] Following the report some improvements were noted in the twin's growth and behaviours at school, such that Dr. Pavri, the pediatrician following the twins, concluded on November 27, 2015 the children were not malnourished and the parents were adequately feeding and monitoring the children. As a result the protection file was closed on January 27, 2016.

[27] Subsequent to the file closing similar referrals were received from the children's school, at this time Westfield Public School, regarding inadequate food for the children, and the child K.L.'s repeated disclosures about being denied food as a punishment, and that K.L. experienced high levels of anxiety.

[28] Throughout 2017 it was clear that the parents and school were at odds regarding the children's behaviours. The parents were of the view that the school did not comprehend the issues the children faced and the measures that were required to keep them safe. The school raised concerns about the parents' management of the children's issues around food, and in particular K.L.'s presenting mental health concerns as evidenced by her anxiety and a suicidal comment.

[29] In response to these concerns the Society received information from Dr. A.U. Segal, a psychologist, who confirmed the children had hyperphagia which is why the parents needed to be so strict with food and that this may feel like discipline to the children, but is necessary given their condition.

[30] The current involvement of the CAS began on September 14, 2017 following a referral from Dr. N. Karp, a geneticist at LHSC. Dr. Karp reported the parents were adamant that the twins have a genetic abnormality as the cause for the hyperphagia. Dr. Karp advised that genetic testing had been completed and there was no diagnosis of hyperphagia, and in fact the children were smaller than other children their age, which would be contraindicated with hyperphagia.

[31] Dr. Karp expressed concern that the children were not being given enough food, and that their obsession with food was the result of the parents highly restricting and limiting their food intake.

[32] The respondents provided the entire report of Dr. Karp to Dr. Flanders dated September 15, 2017. Dr. Karp reported that both parents were confrontational and insisted on various testing which she did not feel was warranted in the circumstances. The parents denied being confrontational but acknowledged they would be seeking another opinion.

[33] In her report Dr. Karp stated the following,

"I emphasized to them that I could not identify any particular genetic syndrome in twins and I thought their obsession with food was likely caused by the food restriction imposed on children by the parents. This is when the family left the room and said that they would seek a second opinion in Toronto. According to my records, it was Dr. Berall in Toronto who initially recommended restricting children's intake as if they had PWS and the parents informed me that this Dr. unfortunately passed away. Our pediatrics team did not agree with Dr. Berall's recommendations and recommended no dietary restrictions for the twins. I also mentioned today that the parents should not restrict their children's intake based on recommendations of our pediatrics team and our dietitian from August 2015.

I think twin's presentation fits well into the hyperphagia short stature syndrome (HSS). The genetic basis of this disorder is unknown and it is considered polygenic/multifactorial with environment playing a major role. Children with HSS syndrome exhibit hyperphagia but have short stature and poor growth. The condition is very rare and is observed in families where children have emotional deprivation; it originates from difficulty bonding to the caregiver and disturbances in mother-child relationship. A rapid catch-up growth has been observed in children when they were placed in a different social environment. For that reason I notified CAS of the situation and asked to reassess this family."

[34] On September 29, 2017 the Society received a referral from Dr. E. Cory, Director of Suspected Child Abuse and Neglect Program (SCAN) and the Feeding Clinic at Toronto Sick Kids Hospital. Dr. Cory had been contacted by Dr. Karp and Dr. J. Hamilton, an endocrinologist, both of whom referred the twins to her for assessment based on their concerns for the twins' condition.

[35] Dr. Cory had not assessed the children but had received and reviewed medical records. Dr. Cory was of the view that SCAN needed to assess the children which would require them to be admitted to the hospital for a period of time for observation and assessment, and proposed a meeting with all the medical professionals involved to discuss the best course of action. An appointment for the twins at SCAN was made, however, the parents did not follow through, as they did not agree it was necessary or appropriate in the circumstances.

[36] The parents remain opposed to the children being assessed by SCAN on the basis that they are following the advice of the children's current pediatrician, Dr. Flanders, and the dietitian Karen Balko. They also remained opposed to the Society workers interviewing the children, as they did not want them "traumatized further".

[37] On October 31, 2017 the Society received information from Dr. Flanders, who took over for Dr. Berall after he passed away, who indicated that he felt T.S. was convinced that the children have hyperphagia, however, reported that the children do not have any other signs of the condition, including obesity. Dr. Flanders did not support further testing for Prader-Willi syndrome as testing had already ruled it out and the children did not have the features of the syndrome.

[38] The children saw Dr. Flanders again in January 2018 and he provided a short report dated January 18, 2018 wherein he outlines his support for the parents' decision to implement food security measures including using appropriate locks and security cameras as medically necessary in the circumstances to keep the children safe.

[39] Dr. Flanders filed further reports regarding the children dated January 22, 2018 wherein he states the following:

1. Hyperphagia is defined as abnormally increased appetite for the consumption of food and is not a diagnosis per se, but rather a term that describes particular behaviour.

2. The children exhibit behaviours consistent with hyperphagia, however, he stated that it would be hard for him to conclude that any of the children have hyperphagia given that they do not over consume food. Rather the growth charts suggest that their growth may be inadequate and that they have not consumed sufficient calories on a day-to-day basis.

3. He states that it is possible the children exhibit insatiable appetite consistent with hyperphagia but that the caregivers have done, "such an extremely good job securing" the food environment that a, "little liberalization of caloric intake is all that is needed" to get the children's growth back on track.

4. However, he indicated he has been concerned for all the children over the past 6-9 months in that, despite his recommendations to the parents to increase the children's caloric intake, their growth has not increased as he would have expected.

5. He concluded for all the children that, "[c]hronic poor growth is of serious concern from a health and safety point of view."

6. With respect to the twins he reported that there was some weight gain noted at his most recent appointment which he felt suggested the parents, "have somewhat liberalized" the children's caloric intake. However he concluded that the weight gain, "remains suboptimal" and that he remained concerned about malnutrition and poor growth.

7. With respect to J.B., he concluded that, "I am pleased to say that based on my visit with J.B. last week, J.B. gained a reasonable amount of weight. This suggests that he is beginning to show signs of adequate growth which suggests that his caregivers are now giving him access to the appropriate amounts of nutrition".

[40] Dr. Siu, a geneticist from LHSC, contacted the Society on January 17, 2018, and indicated she had taken over the file from Dr. Karp as a result of the parents not accepting her medical opinions. Dr. Siu expressed concerns with how adamant T.S. was that the children had Prader-Willi syndrome and had provided her with a list of demands for testing. Dr. Siu shared the view of Dr. Karp that the children did not exhibit the necessary signs and that further testing was not necessary.

[41] The parents oppose the motion by the Society and view the Society's involvement as harassment and ill-informed. They do request in their affidavit the involvement of the Office of the Children's Lawyer. I agree in the circumstances and given the age of the children that OCL involvement is appropriate.

[42] The parents adamantly deny punishing the children with food restrictions or deprivation. It is their view that they recognize the children's needs and follow the appropriate medical advice for addressing those needs.

Court's Analysis and Findings

[43] With respect to the first part of the test to be applied at this stage of the hearing, I am of the view that the applicant has satisfied its onus of establishing on a balance of probabilities that there are reasonable grounds to believe that there is a real possibility that the children will likely suffer harm.

[44] I consider the medical reports filed by the parties, particularly those of Dr. Templeman, LHSC, Dr. Karp, and Dr. Flanders, to be credible and trustworthy in the circumstances. They are part of the large number of third-party professionals who have worked with the children and had the opportunity to make independent assessments based on their direct involvement.

[45] There is no question on the volumes of evidence before the court that the children exhibit significant and concerning behaviours particularly around fixation for food. The disagreement between the parties arises from the origins of these behaviours. The parents remain adamant that the children have hyperphagia and Prader-Willi syndrome phenotype and this is the origin of their behaviours.

[46] There is some medical support from Dr. Berall and more recently from Dr. Flanders, that the children may have hyperphagia and that the parent's strict supervision and restriction of food intake is an appropriate response.

[47] However, there is also a large and growing body of medical opinion, including from Dr. Flanders, that there are ongoing and serious concerns that the children are not receiving enough food and nutrition to support their growth. This has been a concern raised repeatedly over time. Medical staff at LHSC in 2015 concluded, when the twins were assessed on an inpatient basis, that they exhibited satiety and restraint with respect to their food intake and could be redirected when necessary. As outlined in their evidence the parents take the position that this is not the case while in their care or at school.

[48] As recently as January 2018, Dr. Flanders continues to have concerns with malnutrition in all the children because of the restricted caloric intake imposed by the parents. In 2014, Dr. Templeman felt the children's difficulties were categorized as a Parent-Child Relational Problem and strongly recommended a rewards-based behavioural modification program. The medical team from LHSC in 2015 also recommended the parents attend specific programming to assist in their ability to manage the children's behaviours, and that the children access counselling services. There is no evidence the parents sought these supports for themselves, and it is evident by their response to the concerns that they do not accept the possibility that the children's behaviours may be caused, even in part, by the manner in which they control the children's food intake.

[49] In spite of being part of the discharge plan from LHSC, the parents have not continued with OECYC for the children because they felt it did not have the capability to provide the services required. Further, the evidence supports that the parents continued to unduly restrict the children's caloric intake in spite of the medical evidence and the concerns raised by the medical team at LHSC and the current pediatrician Dr. Flanders.

[50] On the basis of these considerations, when the evidence is viewed in its entirety there are compelling grounds to find that there is a risk that the children will likely suffer harm in the parent's care based on the parents' persistent limitation of the children's caloric intake, and in not recognizing that their approach may be contributing to the food seeking behaviours.

[51] Given the volumes of medical evidence, and the number of medical practitioners who have been consulted, and the varied and at times conflicting opinions and concerns that have been offered, a thorough review by SCAN is warranted in the circumstances in order to assess the children's issues and the parent's response to them, and to formulate the most appropriate treatment plan moving forward.

[52] The more difficult issue at this interim stage is whether the children can be adequately protected by a supervision order with the parents, or whether the concerns are such that the least intrusive order consistent with the adequate protection of the children requires them to be brought into the care of the Society.

[53] While I am persuaded that the children are at risk of harm which justifies Society intervention, I am not convinced at this time that the children be placed in the temporary care and custody of the Society. Instead, strict terms of supervision with the children remaining with the parents will be, in my view, consistent with their adequate protection for the following reasons.

[54] Dr. Flanders has noticed weight gain in the children at his most recent appointment and he will continue to monitor them. Further, while Dr. Flanders stated that he had been concerned for several months about the restricted caloric intake of the children, his opinion as outlined in his reports of January 22, 2018 was somewhat equivocal regarding the issue of hyperphagia and the parent's response, in that he stated it is possible the children may have hyperphagia but do not exhibit signs of over eating and obesity because the parents have put appropriate measures in place.

[55] Further, apart from the children's behaviours around food, the evidence also indicates the children have maintained good attendance at school and have been successful academically.

[56] It is clear that the parents have a significant mistrust of the Society and view its involvement as unnecessary and harassing. However, for the reasons outlined herein they will be required, as part of the interim order that the children remain in their care, to work cooperatively with the Society under the terms of a supervision order, including cooperating with the SCAN assessment, and following Dr. Flanders' advice regarding liberalization of the children's food intake. The parents are also strongly encouraged to participate in the kind of programming that was recommended by Dr. Templeman and the team at LHSC, which may assist them in gaining new skills and insight into how their approach may be inadvertently contributing to the very behaviours in the children they are trying to address.

Order

[57] On the basis of all the considerations outlined herein there shall be an interim order as follows:

1. Motion at tab 3 withdrawn.

2. Temporary order per motion at tab eight paragraphs 1, 9, 10, 11, and 12.

3. An order for OCL representation for the children.

4. Matter adjourned to the previously scheduled settlement conference date of March 14, 2018 at 11:30 AM.

Released: February 22, 2018

Signed: "Justice S. E. J. Paull"