WARNING

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

The court has ordered the exclusion of the public from the hearing of this case under subsection 135(2) of the Courts of Justice Act and has expressly prohibited the disclosure of any information about the identity of the child. This subsection and subsection 135(3) of the Courts of Justice Act, which deals with the consequences of failure to comply with subsection 135(2), read as follows:

135.— (2) EXCEPTION — The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

(3) DISCLOSURE OF INFORMATION — Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information.

Subrules 31(5) and 31(6) of the Family Law Rules state as follows:

31.— (5) Contempt orders. — If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

(6) WRIT OF TEMPORARY SEIZURE — The court may also give permission to issue a writ of temporary seizure (Form 28C) against the person's property.

Court Information

ONTARIO COURT OF JUSTICE

Date: 2019-07-09

Court File No.: Halton 203/19

Parties

Between:

McMaster Children's Hospital, Dr. Jennifer Couturier

Applicant

— AND —

L.R-U.

J.U.

Respondent parents

Before: Justice Victoria Starr

Heard on: June 28, 2019 and July 5, 2019

Decision with written reasons to follow on: July 5, 2019

Written Reasons for Judgment released on: July 9, 2019

Counsel

Erica Baron and L. Osler — counsel for the applicant

L.R-U. & J.U. — on their own behalf

Sarah Clarke — counsel for the Office of the Children's Lawyer, legal representative for the Child

VICTORIA STARR J.:

Introduction

[1] The applicant, Dr. Jennifer Couturier, is a duly licensed psychiatrist at the Hamilton Health Sciences Centre McMaster Children's Hospital. Dr. Couturier treats 16 year old S.R.R-U ("S") as an inpatient and outpatient at the Hospital Eating Disorders Unit.

[2] Dr. Couturier applies for an Order pursuant to s. 164 of the Child, and Youth Family Services Act, SO 2017, c 14, Schedule 1, (the "Act" or "CYFSA") to admit S to the secure treatment program at the Syl Apps Youth Centre ("Syl Apps") for a period of 180 days.

[3] S opposes the application. She asks that it be dismissed.

[4] S's parents, L.R-U. and J.U., consent to the order sought by the applicant as does the Administrator of the Secure Treatment Program at Syl Apps, Gary Watson.

[5] This application was heard on June 28, 2019. Several witnesses gave oral evidence at the hearing, including her treating psychiatrist, the applicant, Dr. Jennifer Laura Couturier, the child's therapist through the McMaster Outpatient Service, social worker Jaime Thor, Samantha Hutcheson (aka Samantha DeBartollo) who is the social worker designated for Secure Treatment at Syl Apps, and the father. With the consent of the child, the evidence of the applicant included the oral evidence given at the hearing and that set out in Dr. Couturier's and Jamie Thor's affidavits both sworn June 25, 2019 with attached report.

[6] At the conclusion of the hearing the court placed its decision on reserve.

[7] It is this court's decision that S will be committed to the secure treatment program at Syl Apps for a period of 180 days. The court gave its decision with written reasons to follow, orally on July 5, 2019. What follows is the court's reasons for this decision.

General Legal Framework, Guiding Principles, and Approach

Legislative Direction

[8] Subsection 161(1) of the Act grants the Court the power to order a child be committed to a secure treatment program where the Court is satisfied that all six of the criteria outlined in subsection 164(1) of the Act have been met. The six criteria set out in that section are as follows:

164 (1) The court may order that a child be committed to a secure treatment program only where the court is satisfied that,

(a) the child has a mental disorder;

(b) the child has, as a result of the mental disorder, within the 45 days immediately preceding,

(i) the application under subsection 161 (1),

(ii) the child's detention or custody under the Child Criminal Justice Act (Canada) or under the Provincial Offences Act, or

(iii) the child's admission to a psychiatric facility under the Mental Health Act as an involuntary patient,

caused or attempted to cause serious bodily harm to themself or another person;

(c) the child has,

(i) within the 12 months immediately preceding the application, but on another occasion than that referred to in clause (b), caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to themself or another person, or

(ii) in committing the act or attempt referred to in clause (b), caused or attempted to cause a person's death;

(d) the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to themself or another person;

(e) treatment appropriate for the child's mental disorder is available at the place of secure treatment to which the application relates; and

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

[9] All six of these statutory criteria must be strictly met before an order can be made committing a child into a secure treatment program. In addition, the court also retains the discretion not to make a secure treatment order if it is not in the child's best interest even where the criteria are met. As noted by Justice Quinn in Children's Aid Society of the Niagara Region v. H.P., "no doubt the use of the word "may" in the opening words of subsection 117(1) [now subsection 164(1) ] and the discretion that it signals envisions situations where the requirements of subsection 117(1) have been met by the society, yet the court feels that a secure treatment order would not be in the best interest of the child."

[10] Where a child is 16 years of age or older, a physician may apply for the Order.

[11] Pursuant to s. 164(3) of the Act, where the applicant is a physician, an additional requirement must be met: the Court must be satisfied the applicant believes the criteria set out above are met. Dr. Couturier gave this evidence and thus, in this case, I am satisfied that this condition is met.

[12] Section 165(1) of the Act addresses the length of the committal term. It can be up to a maximum of 180 days. That subsection reads as follows:

165 (1) The court shall specify in an order under subsection 164 (1) the period not exceeding 180 days for which the child shall be committed to the secure treatment program.

[13] As section 166(1) makes clear, where the court makes an order under subsection 164 (1) the court is required to give:

(a) reasons for its decision;

(b) a statement of the plan, if any, for the child's care on release from the secure treatment program; and

(c) a statement of the less restrictive alternatives considered by the court, and the reasons for rejecting them.

Key Guiding Principles

[14] Secure treatment is a highly intrusive procedure that engages children's section 7 rights under the Charter. The Legislature has recognized this by placing the secure treatment provisions in a special part of the Act entitled "Extraordinary Measures" and by highlighting at section 158 of the CYFSA that secure treatment programs impose continuous restrictions on a child's liberty.

[15] It is important to understand at least some of what a young person may experience if committed to a secure treatment facility and thus, some of the consequences for the child, beyond the general loss of liberty. When a young person is committed to a secure treatment institution, the child is placed in a locked facility. Depending on the practices of the particular facility, this can be a place where:

a) they can be placed in de-escalation rooms (secure isolation) and which may be locked for periods of up to an aggregate of 8 hours per day;

b) their rooms may be locked at night;

c) they can be placed in restraints, which the Act defines as: a device, material or equipment that reduces the ability of a person to move freely, and includes handcuffs, flex cuffs, leg irons, restraining belts, belly chains and linking chains. In the case of Syl Apps, the evidence before this court is that they use Velcro cuffs and chemical restraints (where a drug is administered to the young person to reduce their ability to move freely); and

d) they receive constant monitoring and a significant loss of privacy. For example, see Ontario Shores Centre for Mental Health Sciences v. C.S., where a child was initially monitored constantly, 24 hours per day for two months by two staff members. Initially he was also placed in his own unit without other children.

[16] Obviously commitment to a secure treatment program also means that the young person is separated from their family. The significance of this cannot be overstated. Indeed, the Supreme Court of Canada has acknowledged, separation from parents and family, even for short periods has profound impacts on a child's psychological integrity. [See: New Brunswick (Minister of Health and Community Services) v JG, and Winnipeg Child and Family Services v KLW].

[17] As noted by Provincial Judge Nasmith in Re: A (J), "[i]n some respects, the consequences of a successful [secure treatment application] are more intrusive than punishment for a serious criminal offence." [See: Re J.A. (An Infant)].

[18] In recognition of the highly intrusive nature of this type of order and to ensure that this procedure complies with the Charter and the principles of fundamental justice, both the CYFSA and jurisprudence recognize that long-term secure treatment orders can only be made if the strict criteria are met.

[19] For example, in Children's Aid Society of the Districts of Sudbury and Manitoulin v. C.C., Justice Hambly stated at paragraph 1: "Given that this procedure is highly intrusive it is incumbent on [the] Court to consider carefully the strict legal pre-requisites that must pertain before any such order can be made."

[20] Although dealing with an application to extend the child's committal, the comments of this court in Centre for Addiction and Mental Health v. C.S., equally apply to initial applications for committal. In that decision the Court underscored the significance of such an extraordinary measure and the importance of strict adherence to the legislative direction at paragraphs 18 – 20 where it writes:

18 The court's power to order the committal of a young person to a secure treatment program comes under the title of "EXTRAORDINARY MEASURES" in a special portion of the Act - Part VI. This placement has been interpreted in a number of cases as a clear signal within the legislation that the committal of a young person to a secure treatment facility is a highly intrusive procedure where the liberty of the young person is at stake.

19 The enumeration of specific criteria coupled with the conjunctive nature of the criteria in subsection 117(1), together serve as legislative safeguards against the arbitrary loss of a young person's liberty.

20 So too do the general principles that have emerged from the small body of jurisprudence available in this area of law. One of those principles is that the applicant must adduce clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five criteria has been met.

[21] In M.C. v. Youthdale Treatment Centres (CFSA s.124), in dealing with similar, but less strict criteria, and dealing with a committal for a shorter period of time (review of an emergency secure treatment admission), the Child and Family Services Review Board ("CFSRB") dismissed the application because the first criteria was not met. Despite this it went on to address the balance of the criteria and why none of them were met. Not only does it confirm that there must be strict adherence to all of the criteria, but it added an additional general consideration. That is, that secure treatment is to be considered as a remedy of last resort. Specifically, it writes, in part, at paragraph 25 that:

To deprive a child of her liberty in order to more readily access community resources flies in the face of the use of secure treatment as an extraordinary measure of last resort that must only occur under the most narrow of circumstances.

[22] Further, in S.I. v. Youthdale, another CFSRB decision dealing with the same type of committal as the Board in Mc., the CFSRB specifically found that children's Charter rights are engaged when they face secure treatment. The CFSRB also noted that the many procedural protections in the legislation speak to the importance of a high standard of procedural fairness, where a child can be locked up (there for 30 days). A number of additional guiding principles are added by this decision and specifically with respect to procedure and the standard of evidence required.

[23] For example, the CFSRB noted the need for direct evidence from the psychiatrist whose opinion evidence resulted in the child's admission. The Board also refused to admit hearsay opinion evidence in written form and required the facility to call the psychiatrist if they wanted to rely on his written materials. The CFSRB further emphasized that the onus to establish the criteria is on the facility and that there is nothing permitting the CFSRB to make a ruling on the basis of a summary procedure. It noted that it is the facility's obligation to lead oral evidence and the child is entitled to test that evidence.

[24] In Kawartha-Halliburton Children's Aid Society v. M.W., the Ontario Court of Appeal addressed, among other things, the approach and standard to apply regarding evidence on summary judgment motions in child protection cases. It directs an approach of exceptional caution in the context of child protection proceedings. The Court of Appeal also directs courts to conduct a careful screening of the evidence to eliminate inadmissible evidence; and, directs that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. These directions are tied to the features of child protection litigation, which includes, the engagement of Charter rights and the court's obligation to take into consideration the reality of the child protection litigant.

[25] It stands to reason that the same approach and evidentiary standard as directed in Kawartha would apply in secure treatment cases. Child protection matters are covered under the same act but are not classified under the Act as one of the extraordinary measures. They do, however, especially when proceeding by way of summary judgment, have similarities. These include the engagement of Charter rights and very high stakes. The result in child protection cases, be it on motions for summary judgment or at trial, can include the separation of child from family for very lengthy periods, sometimes permanently. Given these similarities and the extraordinary nature of secure treatment orders, the standard to apply cannot be less than that which would apply in child welfare matters. I conclude therefore that the standard in secure treatment applications is that the evidence to be considered by the court must be trial worthy.

[26] Taking all of the foregoing into account along with the guiding principles this court summarized at paragraph 20 of its decision in Ontario Shores Centre for Mental Health Sciences v. C.S., the following emerge as the key guiding principles with respect to how the court is to safeguard against the arbitrary loss of a young person's liberty in the context of secure treatment applications, be they applications of first instance or applications to extend the committal:

1. The loss of a young person's liberty is a very serious matter. Decisions that have the potential of resulting in such a loss are not to be made arbitrarily;

2. An order committing a child to secure treatment is to be considered as a remedy of last resort.

3. The applicant bears the onus to demonstrate why the young person should be (or continue to be) committed to a secure program against the child's wishes;

4. To fulfill its onus the applicant must:

   a. adduce clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five criteria has been met;

   b. direct evidence from the psychiatrist whose opinion evidence resulted in the child's admission;

5. The court cannot make a ruling on the basis of a summary procedure. It is the applicant's obligation to lead oral evidence and the child is entitled to test that evidence.

6. The evidentiary standard on such applications is that the evidence must be trial worthy. It is not permissible to lead or rely on inadmissible hearsay or on hearsay opinion evidence given only in written form.

7. The court is required to review the evidence with respect to each criteria carefully and exhaustively; and be satisfied that the preponderance of evidence with respect to each of the criteria, supports a finding that the particular criteria has been established;

8. The court may only make an order committing, or extending the committal, where it is satisfied that all of the criteria in subsection 164(1) (secure treatment applications) and ss. 167(1) (extension applications) have been met.

9. The court retains the discretion to decline to make a committal order, even in cases where all of the criteria have been met.

[27] All of the foregoing have guided me in reaching my decision in this case. I turn next to outline the issues and then to my determination that the applicant has met her onus, on a balance of probabilities, to demonstrate that all six criteria have been met, and that the 180 day committal term is appropriate.

The Issues

[28] The issues on this application are:

(a) Whether the six criteria for an order pursuant to subsection 161(1) of the Act have been met; and,

(b) If so, what term of S's committal is appropriate?

Issue 1: Have All Six Criteria Been Met?

Criteria A: The Child Has a Mental Disorder

[29] It was not contested and this court finds that the applicant has met her onus to demonstrate that S has a mental disorder.

[30] Indeed, the evidence of her treating psychiatrist, the applicant, is clear, and I find that, she suffers from multiple mental disorders. Specifically, Dr. Couturier confirmed her diagnosis of these disorders and thus, I find S suffers from Obsessive-Compulsive Disorder, Anorexia Nervosa Binge/Purge Type, Major Depressive Disorder, and Social Anxiety Disorder. S also has a Learning Disability. S is further diagnosed with Borderline Personality traits.

Criteria B and C: Serious Bodily Harm

Criteria B: The Child has caused or attempted to cause serious bodily harm to herself or another person within the 45 days immediately preceding this Application

Criteria C: Within 12 months immediately preceding the Application, but on another occasion described in criteria B, caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to themself or another person

[31] Although they certainly identified the different events relevant to assessing whether Criteria B and C have been met, in submissions counsel in this case generally addressed Criteria B and C together. I will do so as well because many of the relevant legal principles are equally applicable to both criteria and because the background and overall context in which the relied upon events occurred is relevant to both determinations.

Background and Context: Key Evidence Relevant for Criteria B and C

[32] Below I set out key aspects of the evidence relevant to my assessment of both Criteria B and C.

[33] S has suffered with Anorexia Nervosa for over two years, with several admissions at Sick Kids Hospital and McMaster Children's Hospital, as well as the participation in the eating disorders day treatment program at McMaster Children's Hospital from January 2018 to May 2018. Subject to her hospital admissions, she has remained an outpatient with the McMaster Children's Hospital for two years.

[34] S often becomes medically unstable due to food and fluid restriction, as well as excessive purging, which necessitates admission to hospital and the placement of NG tubes and IV lines to rehydrate and re-nourish her.

[35] Anorexia Nervosa is the deadliest of all psychiatric illnesses, with a reported mortality rate of up to 20%. Half of the deaths that occur are due to suicide and half are due to the medical complications of the illness. These medical complications include low heart rate, which can result in cardiac arrest and death, low blood pressure, which can result in fainting with potential head injury, and with the binge/purge type of Anorexia Nervosa comes an added risk of blood chemistry disturbances that can result in acute and deadly heart rhythm abnormalities. Dehydration can also occur from lack of fluid intake and purging, which can lead to kidney damage and even death if the dehydration is severe.

[36] S's Obsessive-Compulsive Disorder makes it difficult for S to engage in treatment and recover from her eating disorder as she is driven to obsess about her body image and is very rigid in her thought process. She is unable to think flexibly about recovery and accepting her body in a healthy state.

[37] S's Major Depressive Disorder involves chronic low moods, lack of enjoyment in activities, suicidal ideation and self-harm, and other difficulties with sleeping, concentration, and energy levels.

[38] S also continues to struggle with Borderline Personality traits. S has demonstrated dangerous behaviour related to this condition. She has experienced chronic suicidal ideation, repetitive self-harm behaviours (including cutting, head banging, food and fluid restriction, purging, and most recently, attempting to drink windshield wiper fluid), feelings of emptiness, micro-psychotic episodes, chaotic and unstable relationships, and affect dysregulation with episodes of extreme anger.

[39] S's Social Anxiety Disorder includes fear of judgment by others. In the past, she has been unable to put her hand up in class, give presentations, and even write on a piece of paper.

[40] S's learning disability includes difficulties in understanding the non-verbal communication of other people. This makes it difficult for S to engage well in therapy as she lacks understanding and appreciation of others' emotions and responses to her.

[41] On March 19, 2019, S attended at the hospital for the follow-up of her Eating Disorder. During this visit, S reported that she had been struggling more lately with food and fluid restriction, and was seen in the emergency room on March 17, 2019 due to feeling lightheaded. She reported that she recently engaged in self-harm, and continues to have suicidal thoughts.

[42] On March 29, 2019, S was admitted to the Mental Health Assessment Unit at McMaster Children's Hospital on a Form 1 due to suicidal ideation voiced to her outpatient social worker, Jaime Thor. S arrived at her session with Ms. Thor expressing active suicidal ideation with a plan and intent to follow through but she would not disclose the plan or degree of intent.

[43] S was assessed by Dr. Bennett during this admission. S informed a registered nurse that she had thoughts about finding medication to overdose on and chemicals to drink at her parents' house. She also expressed interest in another plan involving buying Fentanyl off of known drug dealers to overdose.

[44] On March 30, 2019, Dr. Couturier met with S. S was reluctant to discuss her suicidal thoughts, and was medically unstable due to low blood pressure and a significant change in heart rate. S continued to report active suicidal thoughts to overdose, cut herself, or cease eating and drinking. She expressed feelings of depression and wanting to die.

[45] On April 1, 2019, S was discharged from the hospital, with instructions to abide by the steps outline in the safety plan that was prepared for her.

[46] On April 11, 2019, S was admitted to the Eating Disorders Unit at McMaster Children's Hospital due to a report that she had blood in her vomit, likely due to excessive purging, along with medical instability and progressive weight loss. She was admitted on a Form 1 as she was unwilling to be admitted voluntarily and was at high risk of a deadly complication of her eating disorder. She remained there until May 17, 2019.

[47] On April 12, 2019, Dr. Couturier met with S while she was in the hospital. S reported once again that she wanted to die and explained that she considered overdosing prior to attending hospital. She expressed concern with the possibility of gaining weight while in the hospital, and did not care if she had bleeding in her throat or stomach as she wished to die.

[48] On April 18, 2019, S reported that her mood had been worsening and repeated that she did not care if she died. On April 24, 2019, S had been put in restraints overnight as she was trying to pull out her NG tube. She had thoughts to end her life. On April 25, 2019, S continued to struggle with motivation and reported that she had thoughts to end her life but would not disclose the method she planned to use.

[49] On May 2, 2019, S expressed continuous fears about gaining weight and had passive suicidal thoughts. On May 7, 2019, S stated that, when discharged, she would not change her behaviour and instead, would continue to lose weight.

[50] An upper endoscopy was performed during this admission to look for a source of her GI bleeding (given the blood reported in her vomit), given the risk of bleeding internally to death. There were other concerning signs in that her hemoglobin had been declining rapidly, indicating she was bleeding internally. No internal bleeding or source of bleeding was found, however, the GI specialists prescribed medication to decrease the risk of GI bleeding. S continued to voice suicidal thoughts during this admission. She stated that she did not care if she died from her condition, and that she actually wanted to die. She stated that she did not want to go to Ontario Shores. NG tubes were required to deliver hydration and nutrition during this admission due to her lack of cooperation with oral nutrition. On May 17, 2019, S was discharged from the Eating Disorder Unit.

[51] Shortly after her discharge on Friday, May 17, 2019, S continued to engage in further self-harm behaviours. On Tuesday May 21, 2019, S presented to the hospital for a scheduled appointment with Ms. Thor. S explained to Ms. Thor that she had a challenging few days with lots of family conflict, including, over trying to prevent S from engaging in purging behaviours. She reported that Friday night after dinner, she had an urge to purge and started banging her head on the floor when her father blocked her access to the bathroom. S reported her head was bruised and that her father took her to the walk-in clinic Saturday morning where she reported she was diagnosed with a mild concussion.

[52] On Monday May 20, 2019, S, again, had a strong urge to purge. S's mother was blocking her access to the toilet and S was quite angry with her about this, yelling at her for about 30 minutes. She then locked herself in her bedroom and refused her mother or sister access to her room. S started banging her head on the door one time, but stopped once her mother threatened to call police. S reported she continued to feel suicidal, and had a plan and intent to follow through. S was discharged later that day following psychiatric evaluation and safety planning was completed.

[53] This pattern of self-harm continued thereafter. On May 23, 2019, S attended the emergency room at Guelph General Hospital after repeatedly banging her head against a wall. This occurred because her parents attempted to block her access to the bathroom to purge. S's parents called 9-1-1 and S required sedation in the emergency room due to agitation. During her stay in the hospital, S attempted to elope from the Emergency Room. She was later brought back by the police after one of the emergency physicians completed a Form 1. She was discharged on May 24, 2019.

[54] The next day on May 25, 2019, S was admitted again to the Eating Disorder Unit at the hospital, due to medical instability as a result of low heart rate and significant changes in orthostatic heart rate. S was admitted on a Form 1. She remained in hospital until discharged on June 3, 2019.

[55] During this admission S remained at high risk for medical complications including death, and she was continuing to self-harm while in the hospital. During this admission, S required almost continuous physical and chemical restraints due to behaviour of self-harm, attempts to elope, and multiple successful attempts to pull out NG tubes and IV lines.

[56] S repeatedly purged during this time, even with the knowledge that she was medically very ill. She fought against restraints in an effort to harm herself. She suffered soft tissue damage to her hand. She pulled out her own IV line and caused damage to her arm. She continued to voice suicidal thoughts that she wanted to end her life and that she also wished she would die from her eating disorder.

[57] On June 17, 2019, S attended at the hospital for a follow-up appointment with Dr. Couturier. During this visit, S reported ongoing intentional vomiting and continuous engagement banging her head against walls. When asked about suicidal thoughts, S reported that she is having a lot of them. She endorsed thoughts to overdose or ingest cleaning products. Her parents were required to lock all of these items in the basement as a result, but S stated she would make an attempt to obtain them anyway. S, again, stated she wanted to die.

[58] It was the evidence of S's father that for some time he and his wife have continued to struggle to keep S safe. They do their best to monitor her. They have taken all of the cleaning supplies and locked them in a cabinet in the basement and kept the basement door locked. Nonetheless, on June 15, 2019, S attempted to break the lock on the basement door to access the cleaning products and sharp objects in the basement so she could harm herself. Since then she has repeatedly tried to gain access to the basement so as to access the chemicals so that she can drink them.

[59] On June 19, 2019, S broke into the garage and was holding a bottle of windshield fluid when her father found her and had to physically remove the bottle from her hands, and physically remove S from the garage. S stated she planned to drink the bottle in order to end her life. She stated she planned to use sharp objects and cleaning products to end her life if she had the opportunity.

[60] On June 20, 2019, Dr. Couturier met with S at the hospital for another follow-up appointment. Over the prior few days, S ran away from home twice, once without shoes. Her parents and sister were out looking for her and had to call the police to assist in locating her. Later, when she was found her feet were cut. Although her father located her first, it was her older sister who was the one to retrieve her. She took her for ice cream. According to the evidence of S's father, S ate ice cream but when she got home she purged.

Additional Legal Principles Relevant to these Criteria

[61] With respect to the second and third criteria, I have given consideration to the additional legal principles set out below.

[62] First, there must be a nexus between the mental disorder and the act of causing serious bodily harm or the attempt to cause it. In other words, the serious bodily harm a child causes, or attempts to cause, must stem from a mental disorder. A child should not, for example, attend a secure treatment centre if it is possible the child was acting in self-defence.

[63] For example, in Children's Aid Society of the Districts of Sudbury and Manitoulin v CC, the court deemed that the evidence presented by the Children's Aid Society fell short of what was required to have the child, CC, committed to secure treatment. CC abused substances and alcohol, someone raped her during an incident in which she was conversing with undesirable individuals at the headquarters of an escort service, and she punched her sister in the face—reopening stitches that her sister had received in an unrelated incident.

[64] Justice Humphrey determined the nexus between the mental disorder and the threat of self-harm based on the child's gravitation towards undesirable associates and a lifestyle that put her at risk for harm was a case of poor judgment and not a lack of capacity to make reasoned judgments, and so the application was dismissed. The Child and Family Services Review Board has also confirmed being a victim of sexual assault does not equate to causing serious bodily harm to oneself.

[65] In Children's Aid Society of the Niagara Region v. H.P., the child had outstanding charges under the Youth Criminal Justice Act ("YCJA") for stabbing a student who had bullied her at school. Justice Quinn chose to disregard the stabbing incident because he did not have enough evidence to establish that the incident related to the child's mental disorder; he did not know whether the child had a case of self-defence against the student. Self-defence is one of many situations in which a child could cause serious bodily harm to another person for a reason that is not tied to her mental disorder. The purpose of secure treatment is to create a program for the treatment of children with mental disorders (CYFSA). Therefore, placing a child in a secure treatment program for behaviour that is not tied to a mental disorder would obscure the purpose of secure treatment. Moreover, such a placement would be an inappropriate imposition on a child's liberty rights.

[66] Second, with respect to the second criteria (Criteria B), the child must have caused or attempted to cause serious bodily harm a maximum of 45 days immediately preceding the secure treatment application, the child's detention or custody, or admission to a psychiatric facility under the Mental Health Act as an involuntary patient (CYFSA). The Act's use of the word "immediately" is a clear signal that 45 is a strict number that cannot be deviated from. Courts have taken this number and requirement seriously. In Weechi-It-Te-Win Child and Family Services v. F(DK), the court remarked it had grave concerns for the child's safety. It had been 52 days since the child had seriously harmed herself. The application failed on this requirement because it was brought a full seven days after the 45-day restriction.

[67] In Centre for Addiction and Mental Health v. C.S, this court remarks that a strict interpretation of this requirement is especially necessary, "given the extraordinary nature of the remedy, the jurisprudence with respect to the strict application of the criteria and heavy onus on an applicant to demonstrate that all criteria are met."

[68] With respect to the third criteria (Criteria C), the qualifying behaviour or act is broadened beyond an attempt to cause or causing serious bodily harm. It includes a substantial threat to cause serious bodily harm to themself or another person, evidenced by words or conduct of the child. However, the same reasoning in terms of adhering to the strict timelines as just discussed in the context of satisfying Criteria B, applies. The substantive difference is that the period is 12 months and not 45 days.

[69] Of critical importance is that the with respect to satisfying Criteria C, the event either cannot be the same one as relied on to satisfy Criteria B, or, if the same, must be one where the child caused or attempted to cause another person's death. This is because the underlying purpose of subsection (c) is different from (b). Its purpose is to show either, that the event relied on in subsection (b) is not an isolated incident; or, that the behaviour relied on in subsection (b) was so severe that the child caused, or attempted to cause another person's death.

[70] Third, both criteria use the phrase "serious bodily harm" and as such, causing, attempting to cause, and in the instance of Criteria C, or making (through word or act) a substantial threat to cause, serious bodily harm can warrant locking up a child in a secure treatment centre. By drawing a distinction between bodily harm and serious bodily harm, the legislature reinforces its intention that only severe circumstances justify secure treatment. To be serious, the harm must be "not trifling or superficial". For example, courts have indicated that cuts that require stitches are "serious". Cuts that do not require stitches are, on the other hand, likely not serious.

[71] In Re. JA, Judge Nasmith observed, "what is required under section 113 [now section 164 of the CYFSA is conduct that is not trifling; I also believe that it is conduct that is something more than minor assaults or nuisances. What is required is also more than an assault that causes bodily harm. The word serious has to have some significance." Judge Nasmith reviewed the criteria in relation to the child. In this case, the child made references to his life being expendable. During an altercation with staff at a residential placement, he hit a male staff member and kicked another staff member in the shins. At one point, the child possessed a lead pipe and during attempts to restrain him the child pulled a staff member's hair, scratched a worker's hand, and kicked another worker in the stomach. When the child was being escorted to court for an assault charge, he taunted a witness by waving a wire and threatening to light a book of matches. He also punched the witness in the arm. In another incident, the child twisted a staff member's arm; the arm reportedly had swelling afterwards.

[72] Judge Nasmith concluded that the disruptions described above do not constitute serious bodily harm. He underlined that none of these incidents required medical treatment. Instead, they were examples of "the type of behaviour that can be contrasted with what is to be considered as causing or attempting to cause serious bodily harm [emphasis in original]." His examples reinforced the high threshold of harm necessary to detain a child in a secure treatment centre.

[73] Further, and as noted by Justice Lacelle, harm can be "extremely worrisome" without crossing over into serious bodily harm.

[74] In Ontario Shores Centre for Mental Health Sciences v. C.S., I make it clear that there is a heavy evidentiary onus on the applicant. The applicant in this case stated that there had been 44 incidents of aggression between May and August. The applicant did not, however, provide any descriptions of those incidents. To admit a child to a secure treatment centre is to remove that child's liberty. Given the seriousness of the matter, all inferences drawn from those 44 incidents were to the benefit of the respondent child. In turn, I concluded that none of the incidents caused or involved an attempt to cause serious bodily harm.

[75] Finally, there is some suggestion in the jurisprudence that the court must find some form of "intent" in order to find that the child caused or attempted to cause serious bodily harm. For example, given the high threshold for the meaning of serious bodily harm, Justice Lacelle in KL v. MK, concludes that, without evidence of intent, she cannot assume the child, who had assaulted his father, intended to harm his father more seriously. In these circumstances, the intent to cause harm could not be found without more evidence. As a result, Justice Lacelle indicated that while the behaviour was worrisome, it could not meet the stringent definition of serious bodily harm.

Analysis

[76] Counsel for the child makes three key arguments in support of her position that the applicant has not met Criteria B and C: First, she argues that there is no nexus between the incidents relied on by the applicant and the child's mental disorder.

[77] Second, she argues that the child lacked the intention to cause or attempt to cause herself serious bodily harm. She submits that the child's intention in restricting her food and fluid intake and in purging is to lose weight so that she can attain the body image and weight she sees as right for her. It is not to cause herself serious bodily harm.

[78] Third, she argues that there is no evidence that S suffered serious bodily harm. In that regard she notes that the signs of serious injury such as suggested in the jurisprudence I have already referred to includes injuries requiring medical treatment, such as staples or stitches. In this case there were no staples or stitches. She submits that the examples the applicant gives as to the impact of S's behaviours (i.e. low blood pressure, low heart rate, asphyxiation, pneumonia, burst blood vessels and internal bleeding etc.) either never materialized (i.e. significant internal bleeding and pneumonia), or, where they did (low heart rate, heart arrhythmia, low blood pressure, and a small burst blood vessel from purging), were not serious. In those instances where they did manifest the medical complications were medically managed through such measures as GI feeding tube and IV. She argues that the manifestation of such complications, or the possibility of their manifestation are indicia of risk, not of harm and as the risk to S was managed in each instance, no serious bodily harm was caused and thus, S's behaviours never caused serious bodily harm.

[79] I will address these arguments in turn.

[80] First, with respect to "serious bodily harm": for some children, for example, ones suffering from a severe conduct disorder, serious harm will be evident from the signs of physical injury and with the severity determined by the course of treatment – i.e. the need for stitches, staples etc. However, serious bodily harm can also mean an impairment that substantially affects the individual's ability to function, or which substantially affects the healthy and normal functioning of the individual's body.

[81] For a child suffering from the mental disorders that S suffers from, the harm caused by the child's restriction of her food and fluid intake and from excessive and repeated purging is manifest from the very serious impact it has on normal and healthy bodily functioning, from the consequent medical complications, and from the need to obtain medical attention in order to be stabilized so that she does not die. Added to this is the nature of the complications Dr. Couturier identified the following as the potential consequences of S's behaviours: pulling out GI tubes can lead to the nutrition going into the lungs which can cause the child to aspirate and die, low potassium which can cause deadly heart arrhythmia; dangerously low heart rate and blood pressure, all of which can cause sudden death; and, illnesses as pneumonia.

[82] In this case, S's actions have repeatedly caused her heart rate to drop to dangerously low levels, and to low blood pressure, and heart arrhythmia. These drop to the point that she has placed herself at risk of dying, including suddenly. The consequences of her behaviour have been so serious that she has had to be hospitalized so as to be medically stabilized. There is no question that her behaviours have substantially and negatively affected the healthy functioning of S's body; harm. As medical stabilization is required to and as these forms of harm can lead, as the evidence before me indicates, to sudden death, they are neither inconsequential nor trifling. These forms of bodily harm, for S, are deadly serious.

[83] Further, I place little to no weight on the fact that S has not died and has never actually aspirated, gotten pneumonia, or suffered from internal bleeding. It is sufficient that she has suffered from dangerously low heart rate and blood pressure, and heart arrhythmia, any one of which could have killed her. The fact that even more serious harm or the ultimate harm, death, was not done, does not signal the absence of serious bodily harm or an attempt to cause serious bodily harm. What it signals is that her survival has been a matter of chance, good fortune, and timely access to vital medical care.

[84] The dangerously low heart rate and blood pressure are caused by S's compulsive, severe and repeated restriction of her food and fluid intake along with her purging, and by her inability to accept her body in a healthy state. These are all behaviours driven by her Anorexia Nervosa, Binge Purge Type Disorder and by her Obsessive Compulsive Disorder. As such, there is no question that S's behaviours and the resulting harm done stem from her mental disorders. The nexus is plainly obvious.

[85] In some cases, such as where the child assaults someone, it will be easy to pinpoint the date, time and specific act that caused the requisite harm. This is not the situation in this case. Here, the cause of the harm is not a single act but rather a series and pattern of actions culminating in the effect – serious bodily harm. It is thus, necessary to look at the compilation and pattern of behaviours leading up to the serious bodily harm to determine whether the behaviour resulted in the serious bodily harm identified.

[86] Turning to the question of intent to cause serious bodily harm. Evidence of specific intent is not the standard to apply in every case. There may be some cases (and this is one of them) where evidence of general intent will be sufficient. To put it more plainly, in some cases it will be necessary to demonstrate that the child intended the precise harm or result; in others, evidence that the child intended the act that caused the harm or result, will be enough. The degree or type of intent required may depend on such considerations as the nature of the causal connection, whether the child knew or ought to have known that her actions would or could cause serious bodily harm to herself or another person, and the child's mental disorder.

[87] It is true that S's specific intention each time she restricts food and fluid intake and purges is to lose weight so that she can attain what she perceives is the appropriate weight for her, this does not mean she lacks the requisite intent to cause serious bodily harm. Because of S's mental disorder and its negative impact on her desire and will to live and on the significant way in which these mental disorders impair her capacity and willingness to exercise good judgment, looking at her specific intention is of little assistance. In other words, to determine whether she intended to cause herself serious bodily harm, one cannot look to any one instance where she engaged in self-harm behaviour or to her specific intention on the occasions when she engaged in that behaviour.

[88] Instead, in S's case, to determine whether she intended to cause herself serious bodily harm, one must look at the collection and pattern of her behaviour, whether she knew or ought to have known that by continuing to engage in the behaviours the cumulative effect would be that she would cause herself serious bodily harm or bring about her death; whether she was aware that the chances these consequences would materialize was very high, and, whether despite such awareness and knowledge, she chose to continue to engage in the self-harming behaviors.

[89] S is well aware of and knows that continuing to engage in the pattern of behaviours she engages in is most likely going to lead to serious bodily harm to herself and that she is likely to die, if she does not stop. She has known this since at least early March 2019, and most likely well before that given all of her previous hospital admissions, therapies, etc. Starting in March 2019, alone, she has had to be hospitalized repeatedly because her behaviours have resulted in serious harm. She knows or ought to know that being hospitalized so as to be medically stabilized means the chances of such harm or her death have, since mid-March 2019, been exceptionally high. She has been told that if she continues she is likely to cause herself serious bodily harm and to die. Her comments about wanting to die and about not caring if she dies when discussing the consequences of her behaviour are a clear example of the level of her awareness and knowledge and of her disregard for these consequences despite this knowledge, she persists in repeatedly deciding and choosing to engage in these behaviours. All of this sufficient evidence of intent to cause serious bodily harm to herself.

[90] The events of June 19, 2019, when S broke into the family garage to access chemicals, and was found by her father in the garage with a bottle of windshield washer fluid in her hand and which she had lifted towards her mouth to drink satisfy Criteria B. The fact that she did not drink the fluid and could not in the moment when she lifted it to her mouth because the cap was still on does not diminish the seriousness of this attempt to cause serious bodily harm to herself. For the reasons that follow I find that it was a serious attempt on S's part to kill herself.

[91] This behaviour must be evaluated by placing it in context. In the days and months preceding this event, S had repeatedly expressed suicidal ideation, had formed a plan that included drinking chemicals to end her life, and had made repeated and persistent efforts to gain access to such chemicals. On June 17, 2019 she told Dr. Couturier that she wanted to die and that she had been thinking about overdosing or consuming cleaning products but had not decided. She also reported that she did not care if she died. Up to that point she had not been able to gain access to chemicals due to her parents having locked such substances in the basement and in a locked cabinet within it, and their vigilance and repeated efforts to block and restrict her attempts to access them. The one time she managed to gain access to a chemical, June 19, 2019, she attempted to drink it. In the days leading up to her admissions on June 20, 2019, she had also been severely restricting her food and fluid intake and was repeatedly purging.

[92] When her behaviour that day is viewed contextually by looking at her words and actions in the days and months that preceded the event (as the court did when evaluating a child's suicidal attempt in Centre for Addiction and Mental Health v. C.S.), the conclusion one must draw is that she had clear intention to kill herself by poisoning herself, and, made a clear attempt to do so on June 19, 2019. As such, her actions on that day amount to a clear attempt to cause herself serious (mortal) bodily harm. Given the evidence demonstrating that persistent suicidal ideation and active planning to commit suicide, are symptoms of several of her mental disorders, and considering the evidence regarding the suicide rate for people suffering from Anorexia, the nexus between her mental disorders and this attempt is plainly obvious.

[93] The events of May 25, 2019 could also be relied on as satisfying Criteria B. However, as I have found the June 19th event satisfies that criteria, the events on this day are examined in the context of satisfying Criteria C. Specifically, I find that S caused and/or attempted to cause serious bodily harm to herself on May 25, 2019. Again, I have already described the situation in greater detail earlier. In short, it is on May 25, 2019, that S, was admitted to the Eating Disorder Unit at the hospital, due to medical instability as a result of low heart rate and significant changes in orthostatic heart rate. It also appears that S had burst a small blood vessel due to her excessive purging. The injury or attempt at self-injury was caused by S's repeated acts of restricting her food and fluid intake and purging in the days and months leading up to her admission to hospital on March 25, 2019. These behaviours were all driven by her mental disorders. Her medical instability as a result of her low heart rate and blood pressure coupled with the possibility of sudden death as a result, are the badges of the serious harm she attempted to cause and caused.

[94] Although it is not necessary to go further, in the analysis, out of an abundance of caution I set out my finding that there are two other events which satisfy Criteria C. First, I find that S also made a substantial threat to cause serious bodily harm to herself on March 29, 2019. Again, the details are outlined earlier in this decision, however to summarize: on that day S expressed active suicidal ideation with a plan and intent to follow through. She reported that she had thoughts about finding medication to overdose on and chemicals to drink at her parents' house. She also expressed interest in another plan involving buying Fentanyl off of known drug dealers to overdose. S's suicidal ideation and active planning marked a significant change in her thoughts of suicide. This is the direct result of her mental disorder and its seriousness is obvious from death by suicide rate for individuals suffering from Anorexia Nervosa.

[95] Second, I find that S attempted to cause and actually caused serious bodily harm to herself on March 30, 2019. The fact of this is evident from her efforts to restrict her food and fluid intake and by purging in the days leading up to that date, with the result being that on March 30, 2019, S was medically unstable due to low blood pressure and a significant change in heart rate.

[96] For all these reasons I find that the applicant has met her onus to satisfy Criteria B and C.

Criteria D: The secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to themself or another person

Additional Legal Principles

[97] To satisfy Criteria D, it must be shown on a balance of probabilities that the secure treatment program will be effective in preventing the child from causing or attempting to cause serious bodily harm to herself or another person. When determining whether a program will be effective, the court must assess whether there is a real risk that the child will attempt to cause or cause serious bodily harm.

[98] In Ontario Shores Centre for Mental Health Sciences v. C.S., this court notes that "the reference to 'serious bodily harm' in this particular clause tells us that both the degree of risk and the type of harm are relevant considerations in the assessment and that to justify the young person's loss of liberty, both the risk and the likely harm must be substantial." If there is no real risk, then locking up a child in a secure treatment facility is not necessary.

[99] This criteria also requires more than simply establishing that a child would be less likely to cause serious bodily harm to herself or another person if they were placed in a secure treatment facility. To meet this criteria, a medical professional (doctor / psychologist) with knowledge of the secure treatment program must provide a professional opinion to establish that the specific treatment proposed for the child would be effective. This is an essential question that must be answered before a child is committed for an extended period of time to a locked facility against their will.

[100] As noted by Judge Nasmith in Re J.A. at para 51:

[i]n the result, there is actually no reliable evidence on the essential question whether the treatment would be effective. This would seem to me to be a fairly difficult test to meet in the best of circumstances but, at the very least, it would require a well-developed professional opinion based on familiarity with the programme being offered. Also, in my opinion, this test goes beyond merely arguing that, while J.A. was locked up, he would be less likely to cause serious bodily harm to someone.

Analysis

[101] S has been receiving treatment for over two years and specifically from McMaster since June 2017, either as an inpatient or outpatient. She meets with social worker Jamie Thor once a week and sometimes twice and with Dr. Couturier, at least once a week when in hospital. At the hospital S is traversed between the mental health unit and the eating disorders unit, depending on the care she needs. According to Dr. Couturier, S requires intensive Dialectical Behavioural Therapy ("DBT"). The hospital offers is some DBT skills programming but this is quite limited and nowhere near what Syl Apps offers. She also indicated that the hospital does not have the resources to address S's mental disorders that Syl Apps has. Finally, she pointed out that despite the passage of two years with multiple admissions to hospital, S has not engaged with DBT, and, the form of treatment they have to offer S is not working. In fact, especially since March 2019, S's behaviours have escalated and her condition has worsened, not improved. Dr. Couturier's evidence and opinion is clear,: is very likely given all of this and her behaviour during this most current admissions (repeated attempts to remove her feeding tube and IV and to purge), that S will continue to engage in these serious self-harming behaviours and thus, quite likely that she will again and repeatedly cause further serious bodily harm to herself

[102] According to Dr. Couturier, to treat S and to prevent her from causing herself serious bodily harm, S needs to receive intensive, longer term, and residential treatment for her mental disorders and at a level and intensity that far exceeds what the hospital (in patient or outpatient) can offer S. Dr. Couturier said that the eating disorders unit is not set up for long term care as it is an acute care unit. Patients generally stay for about 2 -3 weeks. Once they are medically stabilized and there is no immediate risk, the patient is then discharged. That is their practice standard. Jamie Thor's evidence is that she would not be able to meet with S more than twice a week.

[103] Preventing S from engaging in self-harm behaviour such as starving herself of food and fluids, head banging, purging etc. has also been very difficult. At the hospital nutrition is forced on her through the GI tube and IV, and through the use of restraints to prevent her from removing them. Dr. Couturier noted that S has spent most of her time during her current admission in her room and in restraints (either to in a chair or on her bed or a stretcher). I understood from Dr. Couturier's evidence that restraining S as is done in the hospital is due, in part to their staff to child ratio on the unit, and that being cuffed to her bed or a chair in her room, while effective, is not ideal or in S's best interests.

[104] S's father also described the level of vigilance and supervision he and his wife have to engage in to keep S safe at home and how difficult and ineffective this has been, even with his wife being on a leave of absence and even when they are both available to manage her together. Despite their efforts S has managed to elope from home, starve herself, purge, head bang, and attempted to drink windshield washer fluid. It is not a tenable situation and he does not think he and his wife can continue to keep S safe.

[105] Given the foregoing and for the reasons set out below, I find that Syl Apps would most likely be effective in preventing S from causing or attempting to cause serious bodily harm to herself.

[106] Syl Apps is a secure setting which specializes in managing and treating children like S with complex mental disorders and high risk behaviours. Syl Apps provides evidence based assessment and treatment for the children who are committed to the program. All of the children who are committed to secure treatment there are housed on one unit. There are eight beds on the unit. It offers long term residential treatment with the typical stay for children with S's disorders and high risk behaviours, being about six months.

[107] Syl Apps uses an inter-professional model of care consisting of psychiatry, psychology, social work, art therapy, recreation therapy, clinical case coordination and nursing. S will see a psychiatrist at least once a week and a therapist once a week or more frequently if that is what is required. If committed to the program Syl Apps can and will monitor her blood pressure and address her medication needs.

[108] The specific treatment program for S if she is committed to Syl Apps will include meal support, post-meal supervision due to purging, intensive DBT therapy, recreational therapy, a form of pet therapy (pet visits), education, and medication delivery. Family visitation and support will also be provided. Family therapy may also be available if needed and provided the child consents. Cognitive Behavioural Therapy is also a treatment option to manage S's anxiety.

[109] Further, Syl Apps offers a rewards and privileges program so that S would be motivated to eat and drink and they provide meal support to assist S in overcoming her Eating Disorder. The child and youth workers will be able to watch S's food and fluid intake carefully and encourage her to take in nutrition.

[110] To restrict the ability of children like S from purging, the doors to the bathrooms are locked for a time after meals. It is also of import that the skilled child and youth workers on the unit provide support to the youth and assist them all day long, 24/7, in learning to apply the skills they learn, including the skills learned in DBT. Between individual therapy at least once a week and sometimes more and where the child engages in DBT, and daily, constant coaching with respect to the skills, the child effectively gets 24/7 DBT coaching and therapy. This system would most likely prevent her from becoming medically unstable, and would deter self-harm and suicide attempts from starvation and purging.

[111] The program at Syl Apps also provides constant 24/7 supervision and a secure environment. The unit itself is staffed by child and youth workers at a ratio of one staff for every two children. When children are moving outside of the secure treatment unit they must travel between locked doors and the staff ratio to escort them everywhere is 2 staff for every one child. At night the child's room is locked from 11 p.m. to 7 a.m. During the night the staff perform visual checks at least every 15 minutes by shining a flashlight into the room through a window in the door.

[112] At Syl Apps the use of restraints is available. These can include physical restraints such as the application of Velcro cuffs or restraining techniques employed by staff trained in their application and use.

[113] It is highly unlikely with this level of supervision and monitoring that S would be able to elope and very unlikely that she would be able to engage in self-harm behaviours and suicidal attempts.

[114] Given all of this, it is more likely than not that S will receive the treatment she needs and that it will be effective in treating her mental disorders and in teaching her to addressing here assist in preventing S from engaging in self-harm behaviours.

[115] It is, at least at this point in time, very likely that S will attempt to remove her GI feeding tube and IV, and continue to attempt to restrict her food and fluid intake and that she will repeatedly attempt to purge. To safely monitor and care for S at Syl Apps with respect to her eating disorder, the hospital and Syl Apps have developed a guideline to ensure continuity of care and to minimize S's medical risk. This includes a plan with respect to S's food intake while at Syl Apps, and a plan to transfer S for admission to the hospital in the event that she removes her GI tube or IV (something Syl Apps cannot reinsert). Syl Apps also has the ability to limit S's ability to remove her GI and IV by restraining her either with Velcro cuffs or chemical restraints.

[116] Counsel for S submits that because Syl Apps cannot administer the GI or feeding tube if S pulls it out and will have to be transferred to McMaster to have them reinserted, diminishes its effectiveness. I do not agree. The level of monitoring, supervision and 24 hour coaching and modelling it would offer S, it is most likely to be highly effective in preventing S from starving herself, purging, and from being able to remove her GI feeding tube and IV in the first place. Further, even if she manages to do this, her action will not go unnoticed for very long and as a result, these will be re- inserted quickly, thus significantly reducing the risk of her becoming medically unstable and of suffering serious bodily harm.

[117] For all these reasons I find that the applicant has met her onus to demonstrate that this criteria has been met.

Criteria E: Treatment appropriate for the child's mental disorder is available at the place of secure treatment to which the application relates

Additional Legal Principles

[118] The use of the word "appropriate" in the context of Criteria E, requires that at least two conditions be met: first, the appropriate treatment must be available at the secure treatment program. Second, it must be appropriate for the child's mental disorder. For such a serious application, determining whether the program is available requires evidence that goes beyond a doctor's assumption a treatment will be available at a secure treatment centre.

[119] In Manitoulin, the physician's report suggested that the Robert Smart Secure Treatment Facility was the best setting for the child. The physician, however, did not provide evidence about specific treatments. While the physician's comments generally supported the criteria in subsection (e), the comments fell short of the specificity required to meet the criteria. Justice Humphrey noted that the institution, similarly, did not provide evidence about programs that were particular to the child's needs or the likelihood of the programs' success.

[120] Thus, a third condition to meet the test set out in section 164(1) (e), is that the doctors and institution must provide evidence about the specific treatments available for that specific child and the likelihood of the treatments' success.

Analysis

[121] There is much overlap between the tests to meet Criteria D and E and thus, many of the details I would have provided about the programs at Syl Apps and about S's needs has already been outlined above. I also rely on many of those details in determining whether this criteria has been met.

[122] As required by subsection 164(3) of the Act, Dr. Couturier's evidence includes that she believes that S would benefit from the treatment services provided by Syl Apps Youth Centre for a period of 180 days. Dr. Couturier believes that if given the opportunity or access to a means, S will attempt to end her life and will continue to cause herself serious bodily harm.

[123] There is no question here that the treatment and program offered by Syl Apps is available for S. Syl Apps has indicated that they believe its secure treatment program would be effective for S. It has confirmed that there is a bed in the Secure Treatment Program available for S. Further, in this case the court was given ample details about the specific programs and treatment available at Syl Apps for S and geared to treat her specific mental disorders, and of the likelihood of the treatments' success.

[124] Based on the evidence S's treatment needs include constant monitoring to prevent her from attempting to or causing serious bodily harm, psychiatric care and medication, and intensive DBT in order to treat her self-harm and high risk behaviors and to effectively treat her mental disorders.

[125] I find that the treatment program at Syl Apps is appropriate for S for these reasons: First, Intensive DBT is available at Syl Apps. DBT treatment targets symptoms of Borderline Personality traits, Eating Disorders, and Major Depressive Disorder, which are the main conditions resulting in S's self-harm and suicidal ideation. DBT is the main treatment modality for her given her mental disorder profile. Syl Apps provides intensive DBT.

[126] Not only will she attend weekly individual DBT therapy but she will be able to practice and work on these skills with her therapist, and on the unit where she will be living, through the 24/7 modelling, support, and one on one coaching she will receive from the child and youth workers on the unit. This is very likely to be effective in helping her learn to regulate and manage her self-harm behaviours.

[127] Second, S also requires a lengthy exposure to DBT. At Syl Apps S will get this as her stay there will be for 180 days and is not likely to be disrupted.

[128] Third, as she has not been motivated to engage in the therapy provided as an outpatient, S likely required great motivation. The rewards and privileges system at Syl Apps is likely, for the reasons already given, to motivate S to engage more fully and meaningfully in her treatment. This court heard evidence about S's close relationship and bond with her sister and parents and dog and about how important these relationships and seeing them are to her. Thus, it seems highly likely that S will be motivated by the rewards program so as to be able to see and spend time with them.

[129] Although it was admitted that S can be quite stubborn, it was also demonstrated that S can form close and trusting therapeutic relationships.

[130] The foregoing lead me to conclude that with the right motivation and treatment, she is, more likely than not, to eventually engage in the treatment plan.

[131] Fourth, the program at Syl Apps includes an appropriate plan to address S's medical needs. Syl Apps is prepared to manage all of S's medications and she will be followed by a psychiatrist while in treatment. The will monitor her blood pressure and heart rate, and food and fluid intake, in house. It seems unlikely that S will be able to engage in the behaviours that cause her to become medically unstable with any real degree of frequency, given all of the preventative measures that will be in place. However, should she become medically unstable, appropriate arrangements with McMaster have been made and which I have more fully fleshed out when discussing Criteria D.

[132] Fifth, the secure treatment program at Syl Apps also offers schooling so that S can continue her academic studies. Indeed, school at Syl Apps runs daily (but not in July and not on holidays I suspect) and I was led to understand from Ms. Hutchinson's evidence that a student can earn up to four credits at one time which she believed, and I have no reason to doubt, is on par with what a student in a community school could earn.

[133] Given all of the foregoing I am satisfied that the treatment offered by the secure treatment program at Syl Apps, is available and appropriate for S's mental disorders. Criteria E is met.

Criteria F: No less restrictive method of providing treatment appropriate for the child's mental disorder is appropriate in the circumstances

Applicable Legal Principles

[134] There are at least three key guiding principles that emerge from the jurisprudence with respect to Criteria F. These are:

(a) All other treatment options outside of secure treatment have been considered and none of them have been or would be appropriate in the circumstances;

(b) The evidence must address the specific efforts that were made to exhaust all options available to support the child outside of a secure setting; and,

(c) Evidence that the child could benefit from secure treatment or that it is in the child's best interest to attend secure treatment is not sufficient.

[135] I have also considered Justice Lacelle's comments at paragraph 5 of KL v ML, which counsel for the child in her factum suggested stands for the proposition that: the test is not whether another placement is available but rather, whether another treatment is appropriate. The suggestion therein is that if it can be demonstrated that an alternate method of treatment appropriate to treat the child's mental disorder exists but is not available, the criteria will not be met.

[136] I do not think that such interpretation of Justice Lacelle's comment would be correct. The comment is made in the context of a situation where the applicant appears not to have made any effort to explore a particular option and given no reason as to why except possibly that it (placement with the father) was not available. I interpret Justice Lacelle's comment to mean that simply stating that the option is not available is not enough. In my view, and I understood both counsel in this case to agree with me, the availability of an alternate method of treatment is relevant and will form part of the analysis when determining whether that alternative method is "appropriate".

Analysis

[137] For the reasons that follow I find that no less restrictive method of providing treatment appropriate for S's mental disorder is appropriate in the circumstances.

[138] One option considered by the applicant was Ontario Shores. That is a facility that offers long term residential care and treatment for S's eating disorder. Not only was S unwilling to consent to this option but Ontario Shores has now stated they are unable to accept S in her current state due to the severity of her illness and their lack of ability to provide the secure environment that she requires. Although it is true that they did not directly assess S, based on the evidence, their determination was based on Dr. Couturier's and Ms. Thor's recounting of S's situation.

[139] Contrary to the suggestion in the questions asked during cross-examination, there is nothing wrong with their having relied on their assessment as it would have been impossible for them to directly assess S given she would not consent to treatment at Ontario Shores, the assessment of S's situation was given by those professionals most "in the know". Also, it would be impractical, no doubt, for Ontario Shores, to directly and personally assess every potential candidate. In any event, I have no evidence that suggests that this approach was inadequate or inappropriate.

[140] Another option, and the one counsel for the child urged the court to consider, is for S to remain at McMaster, where she can be treated in their eating disorders unit and/or transferred to their mental health unit as an involuntary patient.

[141] Counsel for the child made two broad arguments in support of the child's position that this option amounts to a less restrictive method of providing treatment appropriate for the child's mental disorder, and is appropriate in the circumstances.

[142] First, she submits that McMaster offers a less restrictive environment for S. These are some of the major differences based on the evidence:

(1) McMaster will provide S with greater access to her parents, sister, and dog. She is close to all of them. At Syl Apps she will not be able to see her family members (permitted twice a week) as frequently as she would be able to at McMaster (permitted daily) and she would not be able to see her dog until such time as she has passes that allow her out of the facility. She would not be able to speak to her family daily or enjoy video calls as she would at McMaster. At Syl Apps video calls are not available and telephone calls are generally permitted twice a week.

(2) At Syl Apps her door will be locked at night, she will have little privacy, and will be constantly monitored.

(3) McMaster has schooling available for S and thus, her education needs can be adequately met at McMaster.

(4) At Syl Apps S could be exposed to children in secure custody under the Youth Criminal Justice Act, SC 2002, c 1 ("YCJA") and who may be violent. Although those youth are not housed on the secure treatment unit, S will be exposed to them at the Syl Apps School. It is possible that she could observe violence that would be upsetting to her.

[143] With respect to the question of whether treatment appropriate to S's mental disorders is available at McMaster, her counsel pointed to, among other things, these considerations:

(1) S could potentially remain at McMaster as an involuntary patient for a period slightly in excess of the committal term sought by the applicant. Thus, her counsel argues, the potential exists for her to receive a slightly longer term of treatment as she would at Syl Apps. Under this option S could potentially undergo just as lengthy a term of treatment as she would as Syl Apps. It would also be the less restrictive option because the certificates (Forms) would have to be renewed at various intervals. [1]

(2) S already has an established and trusting relationship with her treatment providers such as Dr. Couturier and Jamie Thor. She has no such relationships with the team at Syl Apps. These established relationships coupled with S's trust of these professionals and her history of being amendable to, and of attending her appointments when required without fail, all suggest that S will willingly and consistently attend all appointments for treatment.

(3) McMaster is well capable of restraining S to prevent her from harming herself. Like Syl Apps it's unit is monitored by staff, its doors are locked so S cannot elope, S would not generally be allowed outside of the unit and certainly not unescorted, and it too uses restraints when necessary;

(4) DBT, the key ingredient to the successful treatment of S's mental disorders, is also available at McMaster;

(5) Remaining at McMaster is better suited to meet S's medical needs. Like Syl Apps, McMaster can provide S with the medication she needs. Unlike Syl Apps, McMaster has the ability to medically stabilize S should medical complications arise that could cause serious bodily harm or her death. Also, unlike Syl Apps, McMaster can ensure that should she remove her GI feeding tube or IV, these are quickly reinserted, thus decreasing the risk of such complications. If that happens at Syl Apps and as I have already discussed, Syl Apps would have to transfer S to McMaster in for these tasks.

[144] I reject the argument that all of the foregoing demonstrate the option of S remaining as an involuntary patient of McMaster is a less restrictive method of providing treatment appropriate for the child's mental disorder and is appropriate in the circumstances. I do so for these key reasons: First, S needs intensive long term treatment, including intensive DBT. McMaster does not offer intensive DBT and thus, far, according to the evidence, S has not engaged in any meaningful way in what they do offer. I see no basis for concluding that she will suddenly start doing so. Further, even if McMaster offered this kind of treatment at the level S requires, there is no guarantee that S will remain an in-patient for the length of time her treatment requires.

[145] To be kept there for six months or more her certificates would have to be renewed at various intervals and at each interval she would have the option of challenging them. Each time the requisite test would have to be met. Although it is true that that test is lower than on these secure treatment applications, the difference is that once the test is met in these cases and should the court fix the period at 180 days (6 months), there is no need or requirement for the applicant to prove S remains at risk to cause or attempt to cause serious bodily harm to herself. The only time the applicant will have to meet another test of that ilk is if, at the end of the committal term under this order, the applicant applies to extend it. Thus, once the order is made in these proceedings, there is no real risk that the long term intensive treatment available at Syl Apps and which S needs will be disrupted.

[146] Second and perhaps most importantly, McMaster does not offer the treatment S needs for her mental disorder at the level or intensity S requires. Dr. Couturier was very clear that when she was asked in cross-examination whether it would be possible for S to stay at McMaster long term so that she could receive the intensive treatment she needs, she said: "that is not our practice standard", meaning the standard the hospital applies to decisions about whether to continue an admission. Their standard is to medically stabilize her and once this is done and it is felt that the risk of her causing serious bodily harm to herself is no longer imminent, to discharge her.

[147] Third, and also of key import, the evidence clearly demonstrates that while the current hospitalization model has been effective in medically stabilizing S when her actions result in medical instability, it has not been effective in treating S. I note that S has been admitted to the Eating Disorders Unit six times and the Mental Health Unit five times at McMaster Children's Hospital over the last 2 years. Additionally, over the last two months specifically, S has spent the majority of her days in the hospital. Currently she is in the hospital. Indeed, despite all that has been done, since March 2019, she has gotten worse, with escalating behaviors such as excessive purging and restricting of food and fluids, head banging, threats to cut herself, repeated hospitalizations, increased active suicidal ideation and planning, and at least one significant attempt to kill herself.

[148] Fourth, as noted earlier in these reasons, Dr. Couturier's evidence makes it clear that what the hospital has to offer S in terms of treatment is inadequate to treat S. Further, it does not offer the intensive DBT therapy. This intensive therapy is the treatment for S's top 3 disorders (Anorexia, OCD, and depression) and is not available at the hospital at the level or intensity S requires. Further, Dr. Couturier advises: "The current acute care model of treatment delivery is not adequate to treat S's extreme self-harm, suicidal ideation, and severe eating disorder. Admittances in acute care units are generally exclusive for medical or psychiatric stabilization, with an average length of stay of two to three weeks. This care has proven to be insufficient to treat S's complex constellation of symptoms."

[149] Fifth, Syl Apps offers more variety, greater programming options, and more extensive opportunities to practice skills to avoid self-harm, than are available in hospital.

[150] Sixth, Syl Apps is designed for longer terms stays which the hospital is not suited to provide.

[151] Seventh, I am not persuaded that being an involuntary patient at McMaster is less restrictive than being committed to Syl Apps. Both environments are highly restrictive and intrusive. In both, the child is locked in and monitored and restrained physically and chemically depending on their behaviour. S has required almost continuous physical and chemical restraints while in the hospital due to behaviour of self-harm, attempts to elope, and multiple successful attempts to pull out NG tubes and IV lines. It is true that the unit at Syl Apps is greatly staffed and there is much more monitoring there with little privacy but given the ability of Syl Apps to continuously monitor, Syl Apps has the potential to be less restrictive than the hospital.

[152] Further, at Syl Apps the children go outside to a small courtyard on a daily basis. This does not necessarily happen at the hospital. Also, at Syl Apps there is ample opportunity to expand the child's access to the community through its rewards system. Further while it is true that S will be exposed to children committed to Syl Apps under the YCJA, at school and that there is a risk that she will see some sort of violence, one should not overlook the fact that Syl Apps offers a greater opportunity for socialization because school is the one place where the children committed to secure treatment are exposed to other children at the facility. Furthermore, the educational opportunities at Syl Apps are superior to McMaster as at Syl Apps, they appear to mirror those available to the child in the community.

[153] The same applies to visitors: Yes, the child can have daily access to her parents, sister and dog (but only if they are able to sneak the dog in somehow as the hospital does not permit this), as well as phone calls and video calls, whereas this is not the case at Syl Apps. The evidence was clear, however, that more access to family is possible if called for. Further, in the long term and based on their model, if S progresses in her treatment and earns passes, she will eventually have passes into the community and be able to go to her home for varying lengths of time. So, yes, short term and on this front, McMaster may be less restrictive than Syl Apps, but, if S engages in her treatment at Syl Apps and progresses, in the long term, Syl Apps would be the less restrictive environment.

[154] Thus, in the balancing of these considerations I find that Syl Apps and McMaster are at least equally restrictive environments short term. Unlike the hospital, however, Syl Apps can offer S greater access to community and family. How quickly S will have access to these depends to a large degree on S and the level at which she engages in the treatment program. Thus, over the six month period Syl Apps has far greater potential to be far less restrictive than the hospital.

[155] Even if I am wrong and the hospital setting is less restrictive, it does not and cannot provide the level of treatment appropriate for S's mental disorder and self-harming behaviours.

[156] I turn to the third option, one which counsel for the child submits the applicant failed to explore and as a result has not met the requirement of exhausting all options. That option is this: S remain at McMaster until she is discharged and then return home where she will be treated as an outpatient at McMaster but with the added support of a professional who would provide home support and who could assist in modelling and coaching DBT skills and who could provide S's parents with some respite. In addition a second therapist would be engaged from the community to supplement the therapy provided by McMaster (currently Jamie Thor), thus providing S with more intensive treatment and which could include more intensive and long term DBT.

[157] I reject this option for many of the same reasons I have already given for rejecting continuing with involuntary hospitalization. I also do so because although it is true that this option was not explored by the applicant prior to the hearing, it was explored through cross-examination, especially during the cross-examination of Jamie Thor. Even if it is available, I find it is not appropriate. Jamie Thor was clear that having two different therapists and with one not being affiliated with the hospital, was not recommended and thus, not appropriate. She gave several reasons to explain why and which I accept. These had to do with differing approaches to therapy and treatment and other practicalities that would like impair effective teamwork.

[158] Further, I have no evidence as to the availability of such individuals, or of such matters as who or how their services would be paid for and if the parents, whether they can afford it. I also have no evidence as to the qualifications, knowledge, skill, education or training and experience, such a person would have to possess. I have no information as to the treatment plan. The proposal is more in the vein of an idea, not an option.

[159] While it is true that the applicant always has the onus of showing that she has exhausted all options, this does not mean she must explore every idea. What it means is that she must explore all reasonably viable and known alternatives to secure treatment. Where she claims she has done so, as is the case here, it is incumbent on the child or person asserting otherwise, to do more than throw out an idea. The challenging party must either through cross examination of the witnesses or by leading evidence to support the assertion, establish on a prima facie basis that:

(1) there exists another method of providing treatment appropriate for the child's mental disorder and which is appropriate in the circumstances. This would include demonstrating on a prima facie basis that the alternative is available, can be immediately implemented or implemented in short order, and will be effective in preventing the child from causing or attempting to cause serious bodily harm to herself, and will provide treatment appropriate for her mental disorder ; and,

(2) the applicant has failed to explore or failed to properly explore this alternative.

[160] In this case all that was demonstrated was that the applicant had never considered the fairly bald suggestion prior to this hearing. It was considered and rejected and the hearing and reasons were given for doing so. There was no evidence led to suggest Ms. Thor's assessment and rejection of this idea or her reasons for it are incorrect or inadequate, and every reason to respect her conclusion. What was proposed falls squarely in the domain in which she specializes, and it would to a large extent, be her work with S that the added therapist would be supplementing and complimenting. Furthermore, it is clear that the level of supervision and monitoring at the child's home, valiant as it is, is inadequate to manage and protect S from engaging in self-harm behaviours. While a professional being in the home would no doubt provide much needed respite, it is not clear to me, without more evidence, how much more effective that would be in preventing S from causing or attempting to cause serious bodily harm to herself.

[161] As counsel for the applicant submits, and I agree, in the absence of evidence demonstrating there is some appropriate and available option out there that the applicant either did not consider or decided was inappropriate in circumstances where the court finds the applicant should have as there is at least an arguable case that it is a less restrictive method of proving appropriate treatment for the child in the circumstances, the court has no option but to reach the inevitable conclusion, as I do here. That is, that the applicant's efforts were sufficiently exhaustive, and, no alternative method of providing treatment appropriate for S's mental disorder is appropriate in the circumstances.

[162] For all these reasons I find that this criteria is met.

[163] As all six criteria have been met I turn to address the next issue: length of the committal term.

Issue #2: What Length of Committal is Appropriate?

[164] To address the second issue the court must have a good grasp not just of where S is at now, but also of the plan for her during her time in secure treatment, where it is hoped she will be at the end of the committal term and what the plan for her care will be at that time.

[165] At this point the plan of care for S on her release from Syl Apps is as follows: Following S's discharge from Syl Apps, S will return to the hospital as an outpatient and would remain under the care of Ms. Thor, Dr. Grant, and Dr. Couturier. If she requires further intensive treatment for her eating disorder, Ontario Shores has indicated they would be willing to consider a referral at that time.

[166] Based on the evidence I find that the length of the committal term requested by the applicant is appropriate: In coming to this conclusion I have given serious consideration to the fact that S's liberty will be severely restricted or what, to a 16 year old, will no doubt feel like a lifetime. I considered the potential negative impact of that restriction as well as of being separated from her parents, sister, dog, and home and on her education. I balanced these against her profound need for intensive treatment given the complexity of her mental disorders and the compilation of her high risk behaviour, and I considered what is at stake for her if she does not receive that treatment.

[167] In the balancing I also took into account the evidence that suggests six months is appropriate in terms of treatment goals and expected accomplishments. These include:

(1) The first 30 days spent at Syl Apps is primarily for assessment; S needs intensive and long term treatment given the severity of her mental disorders;

(2) The evidence in this case is that S can be quite stubborn. Given this, I suspect it may take S some time before she begins to engage in her treatment in a meaningful way;

(3) Part of the reasons for such a lengthy period is so that the child can be gradually reintroduced to the community. The level for supervision, location in the community where the child may go, and length of the pass will vary and be adjusted. This will give S the time she needs to practice her skills in other environments. If all goes well the goal is for S to be reintegrated into her family home and to be with her family. Time is also needed to ensure that this transition is smooth; and,

(4) The evidence is that the average length of stay for youth Ms. Hutcheson has seen who have complex mental disorders and severe self-harm behaviours is about six months.

[168] Taking these additional considerations into account a period of six months is likely realistic in terms of treating S so as to get her from where she is at now to where she is expected to be in terms of progress and recovery when she is ready discharged.

[169] Therefore, after balancing all of the foregoing considerations I come to the conclusion that a six month committal term is justified and reasonable and thus, appropriate in all the circumstances.

[170] I thank both counsel for their excellent advocacy in this case and for their quality facta.

Order

[171] For all of the foregoing reasons I make the following order,

(1) Final order to go as per the draft order signed by me on July 5, 2019 and specifically that the child, S, shall be committed to the secure treatment program at the Syl Apps Youth Centre for a period of 180 days from July 5, 2019.

(2) The Judicial Secretary is requested to send a copy of this endorsement to all counsel.

Released: July 9, 2019

Justice Victoria Starr

[1] Because of the number of certificates that could potentially be issued for S, she could potentially remain committed as an involuntary patient of McMaster Hospital for a period slightly in excess of 6 months. However, the Mental Health Act only allows committal for a period of 2 weeks without an automatic review. After that, a committal for a month with an automatic review, then an automatic review will follow two months after that, and three months after that. At each stage the patient has an opportunity to challenge the renewal. Long term secure treatment orders, comparatively, allow the child to be locked up for 6 months without an automatic review.