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: 2018-11-13

Court File No.: Woodstock C245/17

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

Motions Heard on: September 11, 17-19, and October 10, 2018

Reasons for Judgment released on: November 13, 2018

Counsel

Mary Ann Costea — counsel for the applicant

James Battin — counsel for the respondent(s), D.L. and T.S.

Susan Gordon — Office of the Children's Lawyer

PAULL J.:

Motions Before the Court

[1] There are two motions before the court. The applicant brought a motion at tab 15 of the Continuing Record seeking to vary the interim supervision order of February 22, 2018 by replacing it with an interim order placing the children in the temporary care and custody of the Society with access to the parents.

[2] The motion at tab 15 only includes the child J.L., however, with the consent of the parties the order of May 30, 2018 consolidated the motion at volume 4 tab 2 seeking interim Society care regarding the other two children, who had been apprehended while they were in Toronto.

[3] An interim without prejudice order was made in that jurisdiction on May 18, 2018 placing K.L. and M.L. in the temporary care and custody of the Society and the file was transferred to Woodstock. J.L. was not present in Toronto with his siblings and was the subject of the motion at tab 15 and an interim without prejudice order dated May 17, 2018 which placed him in the temporary care and custody of the Society.

[4] The other motion before the court is brought by D.L. and T.S. (hereinafter "the respondents") and found at tab 26 seeking, on an urgent basis, that the interim without prejudice order of May 17, 2018 placing M.L. in the temporary care and custody of the applicant be varied to an order placing him back in their care.

[5] Both motions dealing with the temporary care and custody of all the children are before the court and were argued together. As a result, the respondents are not required to establish urgency. However, the respondent's position with respect to the urgent need to address the placement of all the children, particularly M.L., will be discussed below.

[6] The OCL supports an order that the children be placed in the care of the respondents under terms of supervision.

[7] The parties, particularly the respondent's, have filed volumes of material in support of the motions and argument took place over five days between September 11 and October 10, 2018. I have reviewed the affidavits filed at tabs 4, 5, 7, 9-11, 14, 16-19, 22, 23, 25, 27, and 29-42, and those portions of the records and attachments that I have been directed to by counsel.

Background

[8] The three children subject to these motions are M.L. born 2008 (male), K.L. born 2008 (female), and J.L. born 2012 (male).

[9] The respondent, D.L. is the children's father, and the respondent, T.S. is his partner and the children's stepmother.

[10] M.L. and K.L. began to reside with their father in or about January 2012 and 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.

[11] J.L. 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.

[12] The Society brought a protection application first returnable February 9, 2018 seeking a six month order with the children remaining with the respondents subject to terms of supervision.

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

[14] The Society alleged that the parents are fixated with proving that their children have either Prader-Willi syndrome (a genetic disorder characterized in part by a constant state of hunger) and/or hyperphagia. The children have been exposed to numerous doctors and examinations, and the respondents resist any medical advice that runs counter to their beliefs, particularly any advice that suggests that their behaviour in controlling the children's food intake is primarily responsible for their food seeking behaviours.

[15] The applicant's initial temporary care and custody motion sought to maintain the placement of the children with the respondents pursuant to terms of supervision including that they cooperate with an assessment by the Suspected Child Abuse and Neglect Program (SCAN) at SickKids Hospital in Toronto. The applicant withdrew this motion in favour of a motion which sought temporary care and custody of the children in Society care.

[16] The respondents opposed any order and that motion was argued on February 6, 2018. The respondents took the position that they were 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 was that if they did not maintain careful control over the children's food intake they would be at serious risk by overeating. The children require close supervision at all times to ensure their safety because they will eat uncontrollably and will often ingest nonfood items including soap and shampoo, bugs, and wood chips.

[17] Reasons for Judgment were released on February 22, 2018 which granted an interim supervision order maintaining the placement with the respondent's and requiring that they cooperate with an assessment by the SCAN Program, and supervision terms including that the children not be punished through food restriction, limitation or removal.

[18] The court concluded at that time that there were compelling grounds to find that there was a risk that the children would likely suffer harm in the parent's care based on their persistent limitation of the children's caloric intake, and that they did not recognize that their approach may be contributing to the food seeking behaviours in the children.

[19] A copy of those Reasons for Judgment shall be appended to these Reasons.

[20] Following the interim order of February 22, 2018 the children, M.L. and K.L., were assessed by the SCAN Program and were inpatients in the General Pediatric Inpatient Ward at SickKids Hospital from May 1-14, 2018.

[21] M.L. and K.L. were apprehended with a warrant upon their discharge from SickKids Hospital on May 14, 2018, and J.L. was brought to a place of safety from the respondent's care on May 17, 2018.

[22] The current motion by the applicant was brought as a result of the assessments and opinions of Dr. Emma Cory, the co-director of the SCAN Program, and a consultant pediatrician in the general pediatric Growth and Feeding Clinic at SickKids Hospital.

[23] The parents brought their urgent motion seeking the immediate return of M.L. based on their view that his mental health had deteriorated significantly since the apprehension which resulted in his hospitalization. The parents maintain their position that there are no protection concerns with their care of the children and that the reports and opinions provided by Dr. Cory are fraudulent and patently incorrect.

The Law

[24] Section 94(9) of the CYFSA states that the court may at any time vary or terminate an order made under subsection (2), which provides the provisions governing adjournments of protection cases, and orders of temporary care that may be made pending these adjournments. Pending a hearing the court should make the least intrusive order that is consistent with the protection of the child from a risk of harm as outlined in section 74 of the Act.

[25] Justice Susan Himel in Children's Aid Society v. E.L., [2003] O.J. No. 3281 (O.S.C) para. 42, in writing about subsection 51(6) of the CFSA, which is now section 94(9) of the CYFSA, stated that the statute does not provide that the moving party on a variation motion must demonstrate a material change in circumstances. However, in order to give effect to the statutory scheme and recognizing that stability and continuity for children is desirable, it is appropriate to impose a threshold test of material change in the circumstances.

[26] The decision of Justice Himel was an appellate decision and is binding authority on this court. As such, before considering changing the temporary order made on February 22, 2018, the court must find a material change in circumstances since the making of that order.

[27] In Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784, Justice Stan Sherr summarized the test for the variation of the temporary care order during a protection proceeding as follows:

[84] The court will apply the following legal test to change a temporary placement order during the adjournment of a protection application:

a) The moving party has the onus of first establishing a material change in circumstances since the making of the last court order.

b) The court should take a flexible approach in determining what constitutes a sufficiently material change in circumstances. What is sufficiently material will depend on the circumstances of the case.

c) Once a material change in circumstances is established, a contextual analysis should be conducted by the court to determine if the placement order should be changed. The purposes in section 1 of the Act should always be at the forefront of the analysis. The following non-exhaustive list of factors should be considered, where relevant:

1. The nature and extent of the variation sought and the proportionality of the requested change to the change in circumstances since the making of the last order. In particular, the court should examine the extent to which the passage of time has yielded a fuller picture to the court about the child, the parent or any family and community member involved with the family.

2. The degree to which the change in circumstances reduces or increases the risk of harm to the child.

3. The extent to which the proposed change meets the objectives set out in section 1 of the Act and the expanded objectives set out in section 1 of the Child, Youth and Family Services Act, 2017 (CYFSA), which is in Schedule 1 to Bill 89.

4. The tiered considerations for temporary custody orders set out in section 51 of the Act that parallel other provisions of the Act that endeavour to keep the level of intervention proportionate to the child's need.

5. The best interest factors set out in subsection 37 (3) of the Act and the expanded best interest factors set out in subsection 74 (3) of the CYFSA.

6. When the trial of the case will take place. If the case will proceed to trial soon, the court needs to determine if the evidence of change is enough to change placement prior to a full testing of the evidence at trial. The risk is that the child's placement is changed just prior to trial and changed again after trial. This could cause considerable disruption to a child.

[28] With respect to the threshold issue of a material change Justice Sherr, in supporting a flexible approach in interpreting what constitutes a material change in circumstances, noted that if the new evidence points to making a different placement order courts should not be restricted by an overly technical interpretation of material change to make the appropriate order (para. 57 and 60).

[29] I agree with Justice Sherr who supported the view of Justice Kukurin in Children's Aid Society of Algoma v. A.D., 2010 ONCJ 760, that the change in circumstances required to change a temporary placement order should only need to be "sufficiently material", and what change will be sufficiently material depended on the circumstances of the case (para. 63).

Evidence

[30] Pursuant to this court's order of February 22, 2018 M.L. and K.L. were assessed through the SCAN program at SickKids Hospital as inpatients from May 1-14, 2018.

[31] Dr. Emma Cory, the co-director of the SCAN program, provided written reports dated May 8, 2018 for each child which outlined the assessments conducted and the results. The reports outline the information that was reviewed including extensive medical records, the documentation provided by the family, and information received from the school.

[32] Dr. Cory concluded the following with respect to both M.L. and K.L.:

1. Both were diagnosed with severe Failure to Thrive.

2. At the time of admission M.L. was 9 years 5 months old and his growth parameters were less than the 3rd percentile for weight and well below the 3rd percentile for height, and he had a delayed skeletal age of approximately that of a 7 year old.

3. At the time of admission K.L. was 9 years 5 months old and her growth parameters were just below the 10th percentile for weight and less than the 3rd percentile for height, and she had a delayed skeletal age of approximately that of a 6 year 10 month old.

4. In her medical opinion both had experienced chronic inadequate caloric intake over years which has resulted in poor weight gain, has contributed (partly or completely) to short stature and produced long-standing food seeking behaviours.

5. The parents have not altered their perspective that the children have a medical condition as the cause of the hyperphagia, in spite of the extensive contrary information available from medical providers, school providers and child protection agencies over the years.

6. No chronic underlying medical condition was identified to explain the severe Failure to Thrive. Extensive medical evaluation has not identified any underlying medical condition to explain the pattern of weight gain, and no symptoms were observed during the admission to suggest an underlying chronic medical condition impacting their weight gain. Neither M.L. nor K.L. have a medical condition causing hyperphagia.

7. While in the hospital the children were cared for by the general pediatrics inpatient team and consultations were obtained from the endocrine and genetics team. In the circumstances of the testing that had already been undertaken which ruled out a genetic basis, no further genetic testing was warranted.

8. With respect to K.L. growth hormone stimulation testing was completed on May 9, 2018 with preliminary endocrine interpretation of the results indicating that K.L. had borderline sufficient growth hormone stimulation results.

9. With respect to M.L. growth hormone stimulation testing was completed on May 9, 2018. M.L. was found to be growth hormone deficient on testing.

10. If the inadequate caloric intake in the children continues, they are at risk of health and developmental consequences including ongoing poor growth, permanent stunting of height and negative cognitive and psychological consequences. Caloric deprivation in young children can result in developmental complications due to the rapid brain growth typically occurring in this age group. The caloric deprivation is severe and chronic in the case of both M.L. and K.L., and as such may result in permanent developmental consequences.

11. During hospitalization both children demonstrated excellent catch-up weight gain as they did during their prior hospitalization at London Health Sciences Centre in 2015, with both children exhibiting satiety and their food seeking behaviours diminishing and normalizing.

12. Food seeking behaviours are expected in children like K.L. and M.L. who are experiencing chronic inadequate caloric intake. The food seeking behaviours in the children were the result of inadequate or inconsistently adequate access to appropriate caloric intake.

13. Dr. Cory made numerous recommendations including that they be provided with an appropriate balanced diet without portion restriction and no food restriction measures in place in the home or school environment, including no EA support related to monitoring of food intake, no need for escort or monitoring of bathroom privileges, no vest or external labelling indicating that it is dangerous to feed them, no locks or alarm systems to control access to food, no fluid restriction, and no need for video recording of mealtimes.

14. Their behaviour should be reassessed in the future in an environment with stability and appropriate access to calories. If behavioural concerns persist with adequate growth and access to calories, then an assessment of the children's general behaviour should be considered.

15. In the report regarding K.L., Dr. Cory noted that the medical report was released prior to the end of the hospitalization due to her "high level of child protection concerns associated with this case".

[33] As a result of the SCAN assessments M.L. and K.L. were apprehended on May 14, 2018, with J.L. apprehended on May 17, 2018.

[34] Dr. Cory has undertaken follow-up assessments of M.L. and K.L.. M.L. was assessed on June 14, 2018. In a report dated June 15, 2018, Dr. Cory concluded that he has, "demonstrated excellent weight and height growth in the interim since hospital discharge in the foster care environment".

[35] Dr. Cory was of the opinion that M.L. did not require any additional medical testing at that time based on his excellent progress with further follow-up to be undertaken. She noted that M.L. was previously found to be growth hormone deficient during his hospitalization, most likely related to chronic inadequate caloric intake, and that his height and growth will be closely followed. The tentative plan at the time of hospital discharge was to repeat the testing in 6 months if he was in an environment that confirmed appropriate access to food, however, she was of the opinion that if his height and growth continued to show such improvement it may not be necessary to repeat the testing.

[36] Dr. Cory was of the view that if M.L.'s height and growth normalized or showed significant improvement in the foster care environment it will confirm that his growth hormone deficiency during admission was secondary to chronic inadequate caloric intake.

[37] K.L. was assessed again on June 14, 2018, while accompanied by a Society worker and her foster mother. In a report dated June 15, 2018 Dr. Cory concluded that K.L. had excellent height gain and 100 g weight loss since hospital discharge. Since discharge K.L. had broken her left arm above the elbow on May 16, 2018 which required surgical pins and a cast. The report also noted the following:

1. K.L. had been in her current foster home since June 1, 2018 and the foster parent had not observed any sneaking or hoarding of food, and there were no concerns about K.L. trying to eat nonfood items or drinking from the toilet.

2. K.L.'s diet in the foster home was age-appropriate and she was not displaying any hyperphagia or food seeking behaviours.

3. There were several factors that could contribute to the lack of weight gain since the discharge including the left arm fracture and subsequent surgery with cast removal, an intercurrent illness with fever she experienced in the foster home placement, and the change/adjustment to a new caregiving environment with the change in foster home placement.

4. K.L. had no symptoms of a chronic medical condition impacting her weight gain.

5. K.L.'s height gain was excellent since discharge and Dr. Cory was of the view that if K.L.'s height velocity was normal by 6 months post discharge in an environment with confirmed access to appropriate food intake, she will not require further growth hormone testing.

[38] Dr. Cory conducted a further follow-up assessment of M.L. on July 26, 2018. He was accompanied to that appointment by his foster parents at the time and the Society worker. In the report dated July 31, 2018 Dr. Cory stated the following:

1. M.L. lost 200 g since his last appointment on June 14, 2018. Since that time M.L. experienced and intercurrent illness with some diarrhea in the last week which likely caused or contributed to the recent weight loss.

2. Since hospital discharge M.L. has shown initial rapid weight gain and more recently some weight loss. Overall his weight gain was close to age-appropriate since hospital discharge.

3. Since hospital admission on May 1, 2018 M.L. has had very significant height gain. At the time of hospital admission, M.L.'s height was equivalent to that of an average 5 ½-year-old boy. By July 26, 2018 his height had improved to that of an average 6-year-old boy.

4. At that time M.L. had been in his 2nd foster home for approximately 6 weeks. The foster parents reported that M.L. ate very large portions at meals during the first week in their care then the meal volumes gradually normalized. There had been no concerns about M.L. hoarding food. He came downstairs to the kitchen in the night during his first week in their home but this behaviour resolved (initially the foster parents put a lock on the kitchen door but were directed to remove it by the applicant shortly after).

5. Since his hospital discharge M.L.'s weight gain has been close to age-appropriate, and his height gain has been above average. He was eating an age-appropriate diet and was not demonstrating food seeking behaviours/hyperphagia with consistent access to adequate food.

6. M.L.'s overall progress since discharge is supportive of the previous conclusion that he has experienced long term inadequate caloric intake in the home environment.

7. With M.L.'s excellent height growth it is likely he will not require a repeat growth hormone stimulation testing.

8. M.L.'s general behaviour was a significant issue which had contributed to the breakdown of two foster placements. Dr. Cory recommended that he have an urgent behavioural assessment/support and that his new foster parents have support around behaviour management by a trauma-informed practitioner.

[39] Dr. Cory conducted a further follow-up assessment of K.L. on August 1, 2018, which she attended with the Society worker and her current foster mother. In a report dated August 3, 2018 Dr. Cory noted the following:

1. It was reported that K.L. was doing well, was eating well and her general behaviour was appropriate. There were no issues with hoarding or stealing food. The foster mother described K.L.'s food intake as appropriate and similar to other children her age, and she was not eating excessive amounts.

2. K.L. was described as an active girl and there were no issues with excessive thirst or concerns about her drinking from the toilet.

3. The report noted that, "K.L. had been making some recent comments to her foster mother about her health and growth. It was reported that she recently commented that she used to have Prader-Willi syndrome and hyperphagia and a problem with her hypothalamus but that this has gone away when she moved to foster care."

4. Dr. Cory concluded that K.L. had demonstrated appropriate weight gain and excellent height gain in the interim since her last clinic visit, and that K.L. is eating an age-appropriate diet and not showing any hyperphagia or abnormal eating patterns/behaviours.

5. K.L.'s overall progress since her admission to SickKids in May 2018 and in the foster care environment are supportive of the previous conclusions that she has experienced long term inadequate caloric intake in the home environment.

6. Dr. Cory recommended that K.L. receive supports by a trauma-informed mental health practitioner who can assist her in "processing her previous experiences of long-term calorie restriction and inaccurate messaging about a genetic disorder that is not present."

[40] J.L. was not part of the initial assessment at SickKids Hospital, however, given the concerns that were identified with M.L. and K.L., J.L. was assessed on an outpatient basis.

[41] Dr. Cory assessed J.L. on June 14, 2018 and provided a written report dated June 22, 2018. Present at the assessment were 2 Society workers and J.L.'s foster mother at the time.

[42] Dr. Cory obtained and reviewed medical records prior to the assessment, and reviewed the extensive documentation provided by the respondent's outlining concerns about the growth and feeding of all the siblings. Dr. Cory spoke by phone to J.L.'s teacher.

[43] The medical records for J.L. reviewed by Dr. Cory outlined the respondent's reports to other medical practitioners that J.L. exhibited extreme food seeking behaviours similar to his siblings including stealing food, never satisfied after meals, manipulating others to provide food, eating nonfood items like pillows, chalk and shoes, and telling others that his parents never feed him, etc.

[44] Following her review and assessment of J.L., Dr. Cory provided the following opinion in her report:

1. J.L.'s growth parameters were within the normal range with his weight in between the 25th and 50th percentile and his height in the 10th percentile. A review of his growth charts demonstrates that J.L. had periods of poor weight and height gain.

2. Dr. Cory concluded that the most likely cause or significant contributor to the periods of poor weight and height gain J.L. experienced was inadequate caloric intake. Dr. Cory noted that, "there is substantial documentation in health records and school records and in history provided by the stepmother in my previous meeting that J.L.'s parents have the opinion that he has an underlying medical condition associated with hyperphagia/food seeking behaviours. There has been extensive management strategies put in place by his parents to control J.L.'s access to food."

3. No medical condition has been identified in J.L. to provide a medical explanation for his food seeking behaviours, and the food seeking behaviours have reduced in the foster care environment.

4. No further medical testing was recommended for J.L. based on his recent improved growth and the reduction in food seeking behaviours in an alternate care environment.

5. A period of stabilization to adjust to his foster care environment and to gain safety around feeding issues is necessary, and following a period of stabilization further assessment of the impact of his previous experiences may be important to identify appropriate services to best meet J.L.'s needs.

[45] Dr. Cory made similar recommendations with respect to J.L. as she did for his siblings including that no food restriction/management measures need to be in place in the home or school environment and that he be provided with a balanced diet without portion restriction or calorie counting.

[46] J.L. was seen on July 26, 2018 for further follow-up with Dr. Cory however, a report has not yet been provided.

[47] The respondents strongly dispute the SCAN Program assessments, and the conclusions and opinions of Dr. Cory. They remain of the view that they were appropriately addressing the children's significant needs and were following the advice of the children's pediatrician, Dr. Flanders. They continue to feel strongly that further testing of the children is required to identify the underlying cause of the issues.

[48] As I noted in the Reasons dated February 22, 2018, Dr. Flanders saw the children in January 2018 and provided a short report dated January 18, 2018 in which he supported the respondent's food security measures including using locks and security cameras. He was of the view that these measures were medically necessary in the circumstances to keep the children safe.

[49] Dr. Flanders provided further reports dated January 22, 2018 wherein he stated (as noted at paragraph 39 of the Reasons dated February 22, 2018) the following:

1. Hyperphagia is defined as abnormally increased appetite for the consumption of food and is not a diagnosis per say, 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 stated 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, "chronic 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.L., he concluded that, "I am pleased to say that based on my visit with J.L. last week, J.L. gained a reasonable amount of weight. This suggests that he is beginning to show signs of adequate growth which suggest that his caregivers are now giving him access to the appropriate amount of nutrition".

[50] The respondents dispute the findings of Dr. Cory in part on the basis that she misapprehended the medical records, and further that the SCAN Program did not keep accurate calorie counts for the children during their admission.

[51] The respondents went to great lengths in their evidence to recalculate, using a Google calorie counter, what they believed to be the children's actual caloric intake while in hospital. They take the position based on their own calculations, and based on some discrepancies they found in the hospital records regarding the children's diet during their admission, that the children's weight gain was entirely the result of their low activity and extremely high caloric intake while they were in hospital. This was similar to their claims regarding the children's admission to London Health Sciences Centre in 2015 when, during that admission, they also showed rapid catch-up weight gain and a resolution of food seeking behaviours.

[52] The only additional information the court has from Dr. Flanders since the order of February 22, 2018 are brief follow-up reports for each child dated March 7, 2018 which all consist of the same statement that:

"I assessed the above-named patient and am pleased to report that he [she] continues to put on weight at a healthy rate. This suggests that the parents are successfully managing his [her] nutritional intake as recommended by our team."

[53] Since the children have been in the care of the Society they have experienced significant placement disruption. Upon coming into care the children were placed together and the foster parents immediately reported concerning behaviour in all the children. The children required constant supervision and were often "hands-on" each other and other foster children in the home.

[54] All the children were moved to separate foster homes in early June 2018.

[55] After his move on June 1, 2018 the new foster parents of M.L. also reported difficulties with his behaviours including noncompliance and aggression in the home and at school.

[56] That placement broke down and on July 31, 2018 he was moved to a treatment foster home in Waterloo through Bluewater Family Support Services.

[57] On August 22, 2018 while attending a camp M.L. had a "meltdown" involving acting violently towards other children and staff, which required the police and a CMHA nurse from the IMPACT (Integrated Police and Mobile Crisis Team) to attend.

[58] Staff had called 911 seeking assistance as M.L. was out of control, spitting, and attempting to stab the other children with scissors. M.L. spoke of wanting to die and to kill himself, attempted to bite the foster parent when he arrived, and only de-escalated when two police officers attended.

[59] On August 26, 2018 M.L.'s foster parents advised the Society that they would not be able to provide care for him after August 31, 2018 as a result of his challenging behaviours which included the following:

1. barricading himself in his room;

2. charging another youth and pinning him against the wall;

3. damaging property and hissing, yelling and swearing;

4. attempting to harm/kill the family's pets;

5. stating a desire to injure and kill other animals with a hammer, and ripping the heads off bugs and then playing with their body parts;

6. threatening to stab another child in the neck with a sharp object in the middle of the night;

7. kicking and hitting other children in the foster home, including head-butting a 4 year old girl who was playing outside with her sister;

8. stating it would be fun to burn down houses and asking for a lighter;

9. rapidly vacillating between screaming, swearing, and aggression and being affectionate.

[60] On August 27, 2018 while attending a soccer camp, M.L. was again out of control. M.L. was in the middle of the road, throwing rocks at cars and refusing to leave, and growling and being violent toward strangers in the park and staff attempting to redirect him. Police attended and M.L. was apprehended under the Mental Health Act and transported to Grand River Hospital and admitted into the CAIP Unit for a psychiatric evaluation. It was determined that he was a threat to both himself and others at the time.

[61] During his admission at Grand River Hospital on August 29, 2018 staff psychiatrist Dr. Al-Sarraf recommended that M.L. start on low doses of Vynanse to help him focus, and Abilify to help him regulate anger and aggression. Also, on September 5, 2018 Dr. Dyck prescribed a Ventolin puffer for M.L. as a result of significant breathing problems he was having. As a result of the "without prejudice" designation of the interim in care order the parents' consent for any treatment was sought. The parents refused all medications for M.L., including the puffer to assist him with breathing, and music therapy which had also been recommended.

[62] Following his assessment in Grand River Hospital, M.L. was transferred to a residential program through Vanier Children's Services.

[63] The respondents brought their urgent motion seeking immediate return of M.L. on the basis of their concerns for the safety of all the children, particularly M.L., in the applicant's care. The respondents deposed that when M.L. resided with them, "at no time did we see the behavioural difficulties evidenced by M.L. in foster care."

[64] Following K.L.'s move to a new foster home on June 1, 2018, Society worker Krista Hart and the foster parent observed that generally K.L. was comfortable in the home and getting along with her foster mother and the other children in the home. K.L. was observed by the foster mother to eat average sized meals similar to her own daughter, and that she helped herself to snacks and drinks without issue. No food seeking behaviours were observed.

[65] In June 2018 following the apprehension, the vice principal and teacher from K.L.'s school reported that K.L. no longer displayed food seeking behaviours, but did notice that K.L. was beginning to speak negatively about herself. Her teacher, Holly Powell, reported that K.L. engaged in some self-harming behaviour during an upset which included pulling her hair out and running into a door several times.

[66] More recently in August 2018 K.L.'s foster mother reported her behaviour had become more argumentative and disrespectful, however advised that by late August 2018 K.L.'s behaviour and attitude had significantly improved.

[67] The most recent observations of K.L. by the foster parent include:

1. there have been no food seeking issues and she does not steal or hide food;

2. she has been observed to eat no more than other children her age;

3. she expresses when she is full and displays no change in behaviour after eating different/sugary foods;

4. she helps herself to snacks and drinks without issue.

[68] On June 1, 2018 J.L. was placed in another foster home which had previously adopted his half-sister C. (4 ½ years old). The foster parents initially reported that J.L. had settled in well and was not demonstrating significant problematic or food seeking behaviours, and was eating normal size portions for a boy his age.

[69] However, they later reported that J.L. did take some Bouillion vegetable mix cubes and hid them in his room, but did not appear to eat any, and they reported concerns of J.L. eating markers and a book, and dry Nestea powder.

[70] As a result of J.L.'s challenging behaviours, he was moved again on August 10, 2018. Following this placement the foster parents reported some behaviours around throwing and hitting but these were short-lived and diminished over time and otherwise J.L. was an affectionate child.

[71] The foster parents noted the following since J.L.'s placement in their care on August 10, 2018:

1. J.L. displayed no concerning behaviour around food and is a healthy eater in terms of enjoying fruits and vegetables instead of sugary treats;

2. he will ask for food when hungry, eat age-appropriate portions, and will state when he is full;

3. he displayed no food seeking behaviours.

[72] Ms. Gordon, counsel for the children, reported that the views and preferences of the children have remained consistent both before and after being in care that they want to be at home, or otherwise have more visits with their parents.

Analysis

[73] Section 94(10) of the CYFSA states that:

(10) Evidence on Adjournments -- For the purposes of this section the court may admit and act on evidence that the Court considers credible and trustworthy in the circumstances.

[74] It must be noted, however, that the relaxed evidentiary standard in s.94(10) does not otherwise change the rules of evidence.

[75] As child protection cases must be brought before the court within five days of the child's removal to a place of safety, it is often necessary for the Society to advise the court about information it has learned from third parties, such as doctors or teachers, as there is not sufficient time to obtain direct affidavits from those persons. However, the longer the case goes on, the more important it becomes to produce direct evidence from third parties.

[76] Direct evidence from witnesses is likely to be more reliable, as it is not being interpreted or summarized by a third person. When courts are dealing with the protection of children and the intrusion by the state into a family, it is imperative that it be able to make decisions based on the most reliable evidence that can be presented.

[77] Further, judges must act as gatekeepers by taking a vigilant and rigourous approach to examining the reliability of expert evidence. This approach must be taken at all stages of a protection case, and not just at the trial stage. A preliminary finding against the parent at an early stage is likely to follow that parent throughout the protection proceeding. It has the potential to significantly impact the direction of the case and as such it is crucial that such a finding be based on reliable evidence. Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 661.

[78] In terms of the form of evidence at a temporary care and custody hearing Justice Katarynych in CAS Toronto v. M.A., 2002 O.J. No. 1432 (para. 64-72) sets out that cases must be dealt with justly:

1. Rule 2(2) requires that dealing with a case justly includes ensuring that the procedure is fair to all parties.

2. It is admissible evidence in writing that can be filed, not just any evidence.

3. Rule 14(18) requires that the affidavit should contain as much personal knowledge as possible. If from a third party, the source must be identified.

4. Past parenting evidence must be relevant. Issues of relevance, probative value and admissibility are still alive.

5. The affidavit material should set out at the beginning of the affidavit, the reasons for the intervention, why less disruptive steps were not taken, and what has been learned in the investigation to date. The parent's entire life should not be on parade.

6. There should be respect for the rules of evidence. Supposition, conjecture, speculation, innuendo, gossip, unqualified opinion, where qualified opinion is required have no place in an affidavit.

7. Exhibits should not be used as a substitute for proper evidence.

8. The affidavits should be proportionate. Factual inferences can be drawn from the evidence only if the facts alleged to support the inference are established by the evidence.

[79] For the reasons that follow I accept the evidence of Dr. Cory, as outlined in her reports filed, as credible and trustworthy, and further find that her opinions should be assigned significant weight in the circumstances.

[80] As the co-director of the Suspected Child Abuse and Neglect Program and a consultant pediatrician in the Growth and Feeding Clinic at SickKids Hospital in Toronto, Dr. Cory has the requisite expertise to conduct the assessments she did. The assessments by the SCAN Program were pursuant to an order of this court dated February 22, 2018. The respondents did not dispute the expertise of Dr. Cory, but were of the view that her assessments and review were flawed which rendered her opinions inaccurate.

[81] Given the complex medical and behavioural history of the children, and the vast quantities of historic medical documentation the expert opinion evidence of Dr. Cory is both necessary and highly relevant to the issues to be decided by this court.

[82] The weight the court assigns to any qualified expert opinions and recommendations depends on the nature and extent of the investigation and the facts upon which the expert based their recommendations. The court needs to examine how the assessment was conducted, including the process used, the extent of the contact, and any other relevant consideration when determining what if any weight to place on the opinions.

[83] The manner in which Dr. Cory conducted the assessments lends credence to the conclusions she reached in part based on the following factors:

1. She reviewed the vast medical histories of each child, school records, and documents provided by the respondent's, including the medical records the respondent's viewed as supportive of their position.

2. She had sufficient opportunity to conduct the assessments she did which, for M.L. and K.L., were undertaken directly on the basis of a two-week hospital admission, and directly with J.L. on an outpatient basis.

3. In addition to the initial assessments Dr. Cory undertook repeated in-person follow-up assessments and provided further reports. She also met directly with the foster parents at the follow-ups.

[84] While sworn evidence of Dr. Cory was not provided and would have been preferable, her detailed written reports were filed and, for the purposes of this motion, meet the standard for credible and trustworthy that is required.

[85] The parties' lengthy summaries in their affidavits of Dr. Cory's position were not helpful particularly in the circumstances of how long this matter has been outstanding, and would not have met the credible and trustworthy standard in the absence of Dr. Cory's written reports.

[86] For the reasons which follow I find that the evidence provided by the respondent's or on their behalf has not cast substantial doubt on the accuracy of Dr. Cory's observations and opinions, or established that her opinions were not grounded in reasonably based factual underpinnings.

[87] The respondent's position is that the difficulties experienced by the children since apprehension are solely the fault of the applicant and Dr. Cory. Mr. Battin suggested on behalf of his clients that the basis of the current concerns in the children is entirely due to the negligence and abuse of the applicant, and that the SCAN results amount to a fraud. With respect, the evidence does not support these characterizations.

[88] The respondents claimed that the assessments at the SCAN Program were ended unilaterally and prematurely by the Society because of the apprehension. As a result the additional time required to complete the evaluation of any underlying medical condition, including hormone and genetic testing, was not available. This characterization is not consistent with Dr. Cory's reports regarding M.L. and K.L. which indicate not only that the growth hormone testing was conducted, but that no other testing was warranted or planned. Dr. Cory was clear that the issue of the growth hormone testing would be reviewed at a later date if necessary, and she specifically addressed it in both the initial and follow-up reports.

[89] Further, in an email from Dr. Cory directly to T.S. dated May 10, 2018 (during the children's hospital admission) she confirmed that May 14, 2018 was the discharge date. Dr. Cory also noted in the report dated May 8, 2018 for K.L. that her medical report was released prior to discharge due to her "high level of child protection concerns", presumably to permit the Society to act on the reports prior to discharge of the children back into the parent's care. I do not accept that the applicant ended the admission at the SCAN Program unilaterally or prematurely, or that further testing was contemplated.

[90] The parents also challenge the assessments on the basis that the caloric intake of the children in the hospital was much higher than reported. The respondents used a Google calorie calculator to make their own calculations. This was of little assistance as it is not clear how accurate the calorie counting was of either the hospital or the respondents, or whether the Google calorie counter was an appropriate tool. There was insufficient evidence, including evidence of precise portion sizes and how calculations were made, to assess either party's method of counting calories.

[91] Further, and more importantly, concentrating on calorie counts misses the most relevant conclusion to be drawn from how the children were fed in hospital and subsequently in foster care -- that is, that the children exhibited satiety, diminished food seeking behaviours, and that overall have exhibited significant catch-up growth in height and weight.

[92] The respondents were of the view that Dr. Cory's recommendation to remove the extensive food restrictions that they had in place was "foolhardy and potentially can result in M.L.'s death". This has not been the case and, as identified by Dr. Cory and the foster parents, all the children including M.L. have exhibited catch-up growth and diminished or resolved food seeking behaviours when not in the parent's care.

[93] The respondents also contest Dr. Cory's conclusions on the basis that they were following the advice of Dr. Flanders and that he had not expressed concerns related to inappropriate or inadequate caloric intake. As was noted in the Reasons dated February 22, 2018 Dr. Flanders had raised serious concerns in his January 22, 2018 reports regarding the children's growth and caloric intake and that their chronic poor growth was a serious concern from a health and safety point of view.

[94] Further, there was a conspicuous absence of any detailed evidence from Dr. Flanders since the interim order of February 22, 2018, which would have been appropriate particularly since the respondents are relying primarily on him to support the notion that Dr. Cory was wrong and that they were feeding the children adequately.

[95] The only evidence from Dr. Flanders since February 22, 2018 is by way of his very short reports dated March 7, 2018 for each child wherein he states that they are putting on weight at a healthy rate. Unfortunately, Dr. Flanders provided no further detail and no response to the SCAN Program assessments, however, Dr. Cory reviewed and considered his medical records as part of the assessments.

[96] Dr. Flanders has not seen the children since apprehension and has provided no other medical reports or opinions. The follow-up appointments with Dr. Flanders scheduled for June 21, 2018 were cancelled. Dr. Cory noted in her June 15, 2018 report that she spoke to Dr. Flanders who indicated that his follow-up appointments were not necessary. In all the circumstances little weight can be placed on Dr. Flanders' evidence.

[97] The respondents were also of the view that M.L. and K.L. were the appropriate weight for their height. However, Dr. Cory was of the opinion, which I have accepted, that the children's height was likely impacted by their nutritional status, and if their height is stunted due to chronic inadequate caloric intake it is not appropriate to conclude that their weight gain in recent years is appropriate because it matches well with their height.

[98] The parents continue to insist the children have Prader-Willi syndrome and hyperphagia or there is some other medical or genetic condition which is the cause of their short stature and food seeking behaviour. They believe the children have an inability to feel satiated when they eat, which will lead to overeating which can result in severe physical injury or death if their food intake is not strictly monitored. They insist on further testing in spite of the negative results of all previous genetic testing. There is no current evidence that further testing is medically supported.

[99] The respondents took the position that the children's behaviour has escalated significantly since coming into care. They allege that M.L. in particular has deteriorated since apprehension and that, "at no time did we see the behavioural difficulties evidence by M.L. in foster care." They allege that the applicant is not able to provide the appropriate stability to manage M.L.'s behaviours.

[100] It is clear that M.L. in particular has displayed significant behavioural difficulties while in foster care which ultimately resulted in his hospitalization and current placement at Vanier Children's Services.

[101] However, the evidence filed by the parties, particularly by the respondents themselves, was replete with references that all the children displayed similar behaviours prior to their admission to the SCAN Program and the apprehension. Some examples include:

1. Dr. Cory noted in her report that T.S. had advised her that M.L. had significant behaviours in the home including "rages".

2. The respondents stated in their affidavit of February 1, 2018 they needed to physically restrain M.L. at times to "stop him from potentially hurting himself." They filed a photograph attached as exhibit E to that affidavit which showed D.L., himself a large man, forcibly restraining M.L. by laying partially over him during one of these episodes.

3. K.L.'s school reported in June 2017 that she experienced significant anxiety, and on one occasion prior to standardized testing she scratched her face and stated she wanted to kill herself.

4. During M.L.'s hospitalization at the end of August 2018, Dr. Al-Sarraf noted in his report that M.L. acknowledged having difficulty controlling his anger, had numerous suspensions from school for aggression, and that he had hit the family cat at one point when residing at home.

5. M.L. was suspended 6 times during the 2017/18 academic year prior to admission to SickKids Hospital because of aggression and behavioural concerns. Of the 6 suspensions 5 of them occurred between February 23, 2018 and April 20, 2018.

6. J.L.'s school reported he acts out aggressively at times, where he pushes and kicks, and that it can escalate quickly.

7. The school reported that K.L. was only "hands-on" or physical towards M.L., and that both M.L. and K.L. had been observed to display sexualized behaviours towards other children they liked. However, the parents had restricted M.L. and K.L. from participating in the puberty unit during health class.

8. M.L.'s teacher reported that he had been observed to "hump" or become aggressive towards female peers he liked, and that he could become verbally aggressive, throw items at the teachers, and be noncompliant.

9. M.L. was suspended from school on March 8, 2018 for sexualized behaviour.

10. In a report regarding M.L. prepared by Dr. Kizilbash dated May 18, 2015, it was noted that T.S. had advised that when M.L. was upset he "screams like an animal" and can be destructive.

11. T.S. stated that in December 2013 she sought a referral for counselling because M.L. went into K.L.'s room in the middle of the night and threatened to kill her.

12. Dr. Segal, in the report of March 14, 2017 regarding K.L., makes references to her rages and explosive episodes at school.

[102] In these circumstances, I do not accept the respondents' allegation that "at no time did they see the behavioural difficulties evidence by M.L. in foster care." On the basis of their own evidence this assertion is not borne out.

[103] In addition to these behaviours both the school and parents reported extreme food seeking behaviours in all the children prior to apprehension including eating nonfood items, garbage, rotten food, food off the floor, and stealing food. The parents also raised concerns about the children drinking out of the toilet if not supervised in the washroom.

[104] The parents instituted extreme food security measures, supported by various medical personnel including Dr. Flanders, involving locks and alarms to control access to food, security cameras throughout the home, strict food monitoring including videotaping the children when they eat, and keeping detailed food diaries.

[105] The respondents provided the school with an extensive set of instructions for staff to follow in terms of rules and restrictions around food for all the children. It includes requirements the children not be provided with any food by staff and that they be constantly supervised including to the washroom. The school was directed by the parents that the children wear orange vests when outside which say "Do not feed me", and were required to drink significant quantities of water before they were permitted to have their lunch at school. The school was directed to take the children's food away if they did not drink their water first. The children's pockets were also sewn shut to prevent them from hiding food.

[106] Overall, it is clear the children displayed significant behaviours before apprehension. These include M.L. displaying violent, threatening, and dysregulated behaviour. Now that the children are in care their behaviours in the home are more visible.

[107] This is not to say that M.L. has not displayed significant behavioural struggles post apprehension. He has had significant disruption with multiple placement breakdowns and a hospital admission. The concerning behaviours in M.L., and to a lesser extent in his siblings, that have been observed in foster care are also likely the result of their adjusting to their new environments following the extremely controlling environment and food deprivation they experienced in the respondent's care. This is consistent with Dr. Cory's recommendation that supports be put in place by trauma-informed practitioners and that a period of adjustment is required for all the children to gain safety around feeding.

[108] What is particularly important are the behaviours displayed by the children, including M.L., that have diminished or resolved since being removed from the respondent's care related to what had been serious, extensive, and chronic food seeking behaviours.

[109] On the basis of the foregoing, the respondents have not successfully challenged or discredited the conclusions Dr. Cory has reached, or significantly challenged the facts upon which her conclusions are based.

[110] In addition to her diagnosis of severe Failure to Thrive in K.L. in M.L., Dr. Cory was also of the view that the food seeking behaviours in all the children were the result of the inadequate or inconsistently adequate access to appropriate caloric intake, and that food seeking behaviours are to be expected in children who are experiencing chronic inadequate caloric intake. The validity of this opinion is supported not only by the overall catch-up in growth in height and weight that has been observed in K.L. and M.L. since they were removed from the respondent's care, but most importantly by the fact that the food seeking behaviours in all the children have substantially or completely resolved.

[111] Overall I find that there has been a material change in circumstances since the making of the interim order on February 22, 2018. The court now has the benefit of a thorough review and medical opinion of Dr. Cory and the SCAN Program that was not available for the earlier hearing. The observations and reports of Dr. Cory provide compelling evidence that the children are at significant risk of harm in the care of the respondents.

[112] The issue then becomes whether, based on the changed circumstances, the placement order of February 22, 2018 should be changed.

[113] For the additional reasons which follow the current circumstances necessitate that the children be placed in the temporary care and custody of the Society.

[114] In addition to prolonged and chronic inadequate caloric intake in the home environment, the children have also been exposed to extreme and unnecessary food control measures imposed by the respondent's over a long period of time at home and at school. Both have put the children at significant risk of physical and emotional harm and have very likely contributed to the serious behavioural issues in all the children, including aggression and dysregulation. This led Dr. Cory to recommend supports for the children by a trauma-informed mental health practitioner who can assist them in processing their previous experiences of "long-term caloric restriction and inaccurate messaging about a genetic disorder that is not present".

[115] Dr. Cory conducted a detailed assessment and made findings which go directly to the issues and degree of risk that are at the heart of this proceeding. The results of the assessments have provided the court with a fuller picture of the children's circumstances and take into account the complex medical history and the varying medical opinions that have been rendered.

[116] Of particular concern is Dr. Cory's opinion that further deprivation could lead to a greater likelihood of permanent developmental consequences and brain damage.

[117] The need to vary the prior order is further supported by the following factors which have also become apparent since the order of February 22, 2018 was made.

[118] The respondents have displayed no insight into the impact of their behaviours. In the Reasons dated February 22, 2018 I strongly encouraged the parents to consider that their approach was in fact supporting the behaviours that they were trying to address, and to seek the counselling support to assist them in learning new skills that was recommended by the team at LHSC in 2015. There is no evidence they have done this, and they have remained firmly committed to their views in spite of Dr. Cory's findings and the fact that the children's food seeking behaviours have diminished or resolved entirely since removal from their care.

[119] Of particular concern is the fact that the parents have continued with their controlling behaviour around food at access visits. At a meeting with Society staff on August 7, 2018 the parents acknowledged they understood Dr. Cory's recommendations around removing the restrictions and control they had imposed on the children around food. However, at supervised access there continued to be concerns with the respondent's controlling behaviour around food.

[120] In spite of the Society's direction based on Dr. Cory's recommendations, the parents continue to impose food restrictions at supervised access including using an alarm to signify times to snack and eat, and by not permitting the children to eat at other times when they ask.

[121] At an access visit on July 18, 2018 the respondents spoke of the rule they had for the children that if they get up from the table, the food goes away. Access supervisors have also observed since July 13, 2018 that T.S. continues to keep a food log for all the children during visits.

[122] At the visit on August 8, 2018 M.L. had been given some Mentos mints by the volunteer driver's grandson. T.S. found the mints in his coat pocket and took them away. When M.L. noticed they were missing he became extremely angry, yelling, hitting T.S., and throwing a chair and the lid for the garbage can. T.S. refused to give them back and threw them away.

[123] The respondents acknowledged that they were aware of Dr. Cory's recommendations and the Society's expectations around feeding at access, but indicated they would continue to deal with feeding issues in their own way.

[124] These examples indicate to me that the parents are unable or unwilling to change their behaviour of being highly restrictive and controlling around the children's access to food. They do not accept that their actions are creating a serious risk of harm for the children in spite of the compelling evidence to the contrary.

[125] If the respondents are not prepared to abide by the recommendations of Dr. Cory around food at access visits, then the Society may need to reconsider permitting them to provide meals, even if this necessitates amending the schedule and the duration of visits.

[126] In these circumstances I have no confidence that the parents would follow any order to remove the food restrictions they impose on the children, even if it were part of an order for supervision.

[127] Another significant concern I have relates to the issue of the respondents not cooperating with recommendations for treatment made by Grand River Hospital during M.L.'s recent admission.

[128] The respondents depose that they agree M.L. is in need of counselling, but only for the "emotional abuse and trauma perpetrated upon him by the applicant and Dr. Cory." When doctors at Grand River Hospital recommended various treatments for M.L. while he was in crisis they refused, including a recommendation for a puffer to assist him breathing and music therapy. These decisions were not reasonable or child focused in the circumstances.

[129] The court has also taken into consideration the children's views and wishes, given due weight in accordance with the children's age and maturity pursuant to section 94(11) of the Act. Ms. Gordon reports that the children have consistently expressed a desire to be at home.

[130] However, their views must be considered in context based on the circumstances of the significant risk that that I have found that exists while they are in the care of their parents.

[131] While views and preferences are important, the court should not allow the wishes of the children to be the sole basis for judgment while disregarding other evidence of what may actually be in their best interests. Ultimately the weight attached to any expression of preference depends on the particular circumstances and the degree of risk. In this case the high degree of risk must outweigh the children's wishes.

[132] The evidence supports the conclusion that the children have been exposed to serious caloric deprivation by the parents. The caloric deprivation has been severe and chronic in the case of M.L. in K.L., and has led to serious food seeking and aggressive behaviours in all the children. The parents continue to strongly resist any medical advice that runs contrary to their firmly held views, even when the evidence is clear the children's food seeking behaviours have diminished or entirely resolved since their removal from the home environment, and that they exhibit satiety and no excessive consumption when there are no food restrictions in place.

[133] 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-centred focus must not be lost at any stage of a protection hearing. Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165.

[134] When the evidence is viewed in its entirety there are compelling grounds to conclude that the children are at risk of physical and emotional harm in their parent's care and that the risk cannot be mitigated by terms of supervision. The least intrusive order consistent with the adequate protection of the children and consistent with their best interests is that they be placed in the temporary care and custody of the applicant.

Order

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

1. The motion at tab 26 is dismissed.

2. The motion at tab 15 is granted, and the order dated February 22, 2018 shall be varied by replacing it with the following interim order:

   i. The children shall be placed in the temporary care and custody of the applicant.

   ii. The respondents, D.L. and T.S., shall have access to the children as arranged with the Children's Aid Society of Oxford County and in the discretion of the Children's Aid Society of Oxford County as to frequency, supervision and circumstance.

Released: November 13, 2018

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