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

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

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

(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO COURT OF JUSTICE DATE: March 25, 2024 Toronto

BETWEEN:

Children’s Aid Society of Toronto Applicant

and

A.V.G., Respondent mother Respondent

Before Justice Sheilagh O’Connell

Ruling released on March 25, 2024

Counsel: Nicole Horwitz, for Children’s Aid Society of Toronto Ed Rice, for Respondent mother Jane Long, Office of the Children’s Lawyer, counsel for the child

O’CONNELL, J.:

Introduction and Nature of the Proceedings:

[1] The issue in this case is whether a children’s aid society can decide to withdraw life support for a child in its temporary care without court authorization.

[2] In the protection application before me, the Children’s Aid Society of Toronto determined that it had the authority to consent to the withdrawal of life support for an infant in its temporary custody without the court’s authorization. The infant had been in the society’s care for approximately fifteen weeks pursuant to a temporary “without prejudice” order.

[3] The society had made attempts to obtain the respondent mother’s consent, but the mother was either unwilling or unable to provide her consent.

[4] The child was critically ill, and his prognosis was poor. The child died shortly after the withdrawal of life support.

[5] The society informed the court that it was taking these steps by way of a form 14b motion and affidavit, (in writing only) sent to the case management judge’s chambers.

[6] Unfortunately, through what it called an inadvertent error, the society sent the 14b motion to the court after the medical team had already removed the child from life support.

[7] However, the society made it clear in its motion that it was not seeking a court order; it only wished to update the court regarding the child’s medical status.

[8] Upon reviewing the motion, and not knowing that medical intervention had already been withdrawn, the court issued an endorsement directing an emergency hearing. Pending the hearing, the court suspended the society’s decision-making authority to withdraw medical intervention for the child.

[9] Before the hearing could proceed, the court was advised that the child had died.

[10] Although the society withdrew the protection application following the child’s death, counsel agreed to proceed with the hearing so that the court could consider providing direction for future cases when these difficult circumstances arise.

[11] For the reasons that follow, the court finds that a children’s aid society cannot exercise its authority to withdraw life support for a child in its temporary care or interim custody without a court order explicitly authorizing this decision, especially in the absence of parental consent. I make no distinction regarding whether the child is in the temporary care of the society on a ‘with prejudice’ or ‘without prejudice’ basis.

Background:

[12] The respondent is the mother of two children: the child H. in this case, and an older child, age 14. The older child was the subject of a separate child protection application. She was placed in the custody of a kith caregiver. There is no known father for either child.

[13] The society has been involved with the mother for a number of years. The mother has struggled with serious mental health challenges throughout her life. She has experienced psychosis and has been hospitalized. She has also struggled with substance misuse and homelessness.

[14] On May 1, 2022, H. was born prematurely at the age of 30 weeks in a shelter where the mother was residing. H. was transported to the Hospital for Sick Children (“HSC”).

[15] It is not disputed that H. was a medically fragile infant. H.’s medical team identified him as critically ill. He was diagnosed with a congenital heart defect at birth. He had difficulty breathing and was intubated. He was being fed through a tube. H. had his first surgery at two days old and his second at 13 days old to relieve fluid that had built up around his lungs. H. needed multiple further surgeries.

[16] H. was also born with Down’s syndrome and had other Chromosomal defects. There were concerns regarding delayed functioning, intellectual disabilities, and gross motor skills.

[17] A hospital social worker first contacted the society the day after H.’s birth. One of the protection concerns identified was the difficulty in reaching the mother to obtain the necessary consents to the multiple surgeries that the child would need.

[18] During meetings with the society, the mother admitted to substance misuse during pregnancy. The mother had also lost her shelter placement and was looking for housing.

[19] On May 26, 2022, the society commenced its protection application seeking a finding that H. was a child in need of protection and an order that H. be placed in interim society care for a period of six months (formerly known as a “society wardship” order).

[20] The society sought protection findings under section 74 (2) (b) and (e) of the Child Youth and Family Service Act (“CYFSA”).

[21] Section 74 (2) (e) provides that a child is in need of protection if:

“the child requires treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide the treatment or access to the treatment, or, where the child is incapable of consenting to the treatment under the Health Care Consent Act, 1996 and the parent is a substitute decision-maker for the child, the parent refuses or is unavailable or unable to consent to the treatment on the child’s behalf”.

[22] The society also brought an urgent notice of motion seeking a temporary order placing the child in their care and custody pending a final resolution of the protection application.

[23] In the affidavit supporting the temporary motion, the protection concerns identified were the mother’s significant mental health issues, the mother’s lack of compliance with her medication, the mother’s substance misuse, transiency, and the inability to reach her to make multiple and immediate medical decisions for the child.

[24] The society also sought a temporary order to make medical decisions for the child, including but not limited to “treatment decisions and decisions regarding his medical care.”

[25] It was unclear from the court record whether the mother was served with the society’s application and motion before or at the first court appearance, although the mother was notified of the court date.

The First Court Appearance on May 26:

[26] Society counsel, the child protection worker, the mother and duty counsel attended the first appearance of the motion and child protection application. The mother participated by telephone from a shelter in Scarborough, according to the court endorsement.

[27] The mother wished to retain a lawyer to respond to the society’s application. On consent of the society and not opposed by the mother, the court made a temporary “without prejudice” order placing the child in the care and custody of the society “so that they can make emergency decisions regarding the child”.

[28] The court also ordered that the society “make its best effort to contact the mother and consult her regarding any medical decisions that must be made and will keep her fully informed”.

[29] It is clear from the endorsement and the evidentiary record before the court at the time, that the society did not advise the court that the medical decision-making authority it was seeking included the decision to withdraw life support. The society was seeking the authority to make emergency medical decisions for the multiple surgeries that the child may need should hospital staff be unable to reach the mother.

[30] The court also ordered that the mother’s access to be at the society’s discretion regarding duration, location and frequency. As the child remained in the hospital, the court directed the mother “to follow all direction from the nursing and medical staff at the hospital while visiting the child there.”

[31] The motion and protection application were then adjourned to July 13, 2022, before the assigned case management judge. The next hearing was “to be spoken to” and to be conducted by video or telephone conference, pending further direction.

The July 13 Court Appearance:

[32] On the second court appearance, the mother did not attend court and it was unclear if she had retained counsel through Legal Aid Ontario. The society advised the case management judge that the family service worker had been unable to engage with the mother despite efforts to do so.

[33] The child remained in the Neonatal Intensive Care Unit at the HSC and required further medical intervention.

[34] The case management judge, Justice Maria Sirivar, continued the temporary without prejudice order made at the first appearance. The protection application and motion were then adjourned to August 29, 2022.

[35] At no time in that hearing did Justice Sirivar authorize the society to withdraw life support for the child, with or without the mother’s consent or further court order, nor was this issue raised, according to the endorsement.

The Events following the Second Court Appearance:

[36] On July 19, 2022, six days after the second court appearance, the child protection worker met with Dr. Hilary Whyte, pediatrician at HSC’s department of neonatology and a hospital social worker, according to the affidavit evidence of the society worker filed in this hearing.

[37] Dr. Whyte advised that H. had not progressed as well as hoped, and the medical team was concerned about continuing medical treatment for him. Palliative care as opposed to medical treatment was discussed. The HSC multidisciplinary team would be meeting on July 21st to discuss their next steps, following which their recommendations would be provided to the society.

[38] Following that meeting, according to the evidence filed, the society made several unsuccessful attempts to contact the mother by phone, text and by attending at her home to notify her of the upcoming meeting with HSC.

[39] On July 21st, the hospital’s multidisciplinary team met with the society’s service team at which time Dr. Whyte reiterated that H.’s trajectory was not positive. It was at that meeting that the medical team first asked for the society’s consent to withdraw medical intervention and to start the process of palliative or “comfort” care. The mother was not present at this meeting.

[40] On July 22nd, Jamie Joseph, the society’s child protection worker contacted the mother by telephone to advise her of the doctor’s recommendation for the child.

[41] During that conversation, the mother expressed that she disagreed with the hospital’s recommendation. However, according to the affidavit of the worker, the mother then later seemed to agree with the recommendation. The mother requested that the worker follow up with her on July 24th as this information was hard for her to process at the time.

[42] On July 26th, the child protection worker met with the mother again, and she advised that she did not agree with the hospital’s recommendations. She agreed to attend a meeting scheduled with the medical team the next day.

[43] On July 27th, the mother did not attend the meeting. On July 28th, the mother visited the child at the hospital. According to the child protection worker’s affidavit, hospital staff reported that the mother was falling asleep during conversations with them. They did not engage in discussions with the mother about the child’s medical condition, as during attempts to engage with her, the mother responded by saying that they were “wasting her time”.

[44] On July 27th, at the society’s request, Dr. Whyte provided a medical report outlining the child’s medical status and explaining HSC’s recommendation for the child to receive comfort or palliative care as opposed to further medical intervention.

[45] Dr. Whyte stated, in part, the following, in the medical report attached as an exhibit to the society’s affidavit:

“Of most importance is to ensure all further interventions are in the best interests of this child with a goal to limit his pain and suffering whilst establishing reasonable expectations for his future. In the context of Down Syndrome, which in his case is complicated by the 8P deletion, also associated with developmental disabilities, our expectations are for severe delay in development should he survive. In addition, his prematurity course complicated by BPD is certain to require significant more time on ventilation even if the subsequent surgeries were to be effective. It is very likely that he will never leave this hospital and that prolonging his life with further pain and suffering is not justified. All medical and surgical services that have provided care to H. agree that providing comfort care and palliation is in his best interests.

As you can imagine, this is an extremely difficult time for H. who has been experiencing pain as a result of what often comes with an admission to intensive care. However, knowing that his future outcome is poor, the discomfort and suffering that he is currently enduring should be minimized. ..For these reasons, and in the face of his poor prognosis, we are asking the Toronto Children's Aid Society to support the recommendation for H. to receive comfort/palliative care by at latest Friday August 5th, 2022 .” [Emphasis added].”

[46] On August 2nd, the child protection worker attended the mother’s home. Upon arrival, according to the worker’s affidavit, the mother appeared to be in crisis. Toronto police officers and Toronto Community Housing (TCH) counsellors had arrived at her housing unit after receiving a number of reports from other tenants. The mother was outside and refused to return to her unit. She advised the worker that she was trying to receive support for sexual abuse counselling and treatment. The mother was also seeking new housing on a crisis basis.

[47] During his meeting with the mother on that day, the worker advised the mother that the society had decided to consent to the hospital’s recommendations that H. be moved to palliative care.

[48] The worker explained to the mother that H.'s treatment team will be placing a “do-not-resuscitate” (‘DNR’) order on his medical chart and will be removing the life support equipment that is being used to keep him alive. The worker asked the mother twice if she understood what he was talking about. The mother did not respond.

[49] The worker advised the mother “that court will likely take place in the next few days”, and in response, the mother advised that she would like to have her previous lawyer (for her older child) represent her rather than duty counsel.

[50] On August 3rd, the society met with the HSC medical team and advised that it agreed with the hospital’s recommendations regarding the child, but “it had yet to file documents with the court”. The society advised HSC that it could move forward with palliative care rather than medical intervention as soon as possible, however, further time was requested to permit the family, including the older child, to attend for one last visit. The tentative plan to begin withdrawal of life support was Friday, August 5th.

The Form 14b Motion:

[51] On the evening of Thursday, August 4, 2022, at 6:25 PM, according to the Affidavit of Service filed, the society personally served the mother with a Form 14b motion and a lengthy supporting affidavit by the child protection worker.

[52] The motion and affidavit explicitly stated that the society was not seeking a court order but that it was being filed “in order to update the court regarding three-month-old H.’s medical status given the significant changes which have taken place since the matter was last before the court on July 13, 2022.”

[53] The Form 14b motion was sent to the courthouse by email on Friday, August 5, 2022 at 10:18 AM. It was marked as “urgent” for the case management judge’s attention, who was not presiding on that day. At approximately 1:32 PM, as the emergency judge, this court released an endorsement advising the parties to attend court for an urgent hearing on the following Monday at 9:30 AM. The court also requested the Office of the Children’s Lawyer’s involvement, and a copy of the endorsement was sent to that office.

[54] Pending the urgent hearing, as noted, the court suspended, on a temporary without prejudice basis, the society’s decision-making authority to withdraw life support for the child. The court directed that the society could continue to make any medical emergency decisions that preserved the child’s life, but it could not make any medical decisions that would lead to the end of the child’s life, pending further court order.

[55] Later that afternoon, following receipt of the court’s endorsement, society counsel advised the court that the HSC treatment team had already removed “artificial support for the child in accordance with the society’s legal authority and pursuant to HSC’s recommendations” and that it would not be medically possible to reverse the decision. The child died later that evening at approximately 6:55 PM.

[56] It is not disputed that the withdrawal of treatment occurred at 10:00 AM that morning, before the society had filed the 14b motion with the court.

The Society’s Position:

[57] It is the society’s position that it does not need a court order to withdraw life support for a child in its temporary care and custody, regardless of whether the temporary order is “with” or “without prejudice”.

[58] During the hearing, society counsel advised the court that it was not the society’s intention to file the 14B motion after the HSC medical team began withdrawing treatment for the child. This was an “inadvertent and unfortunate” error.

[59] Counsel for the society acknowledged that the court should probably have been alerted before the withdrawal of treatment had commenced. However, counsel described a very emotionally difficult and intense time for the family and for society workers, with events unfolding very quickly. Everyone did their best in difficult circumstances.

[60] Nevertheless, it is the society’s position that regardless of the unfortunate timing of the 14b motion, the society has the legal authority to withdraw life support for a child in its temporary care without a court order or authorization.

[61] It is the society’s position that the definition of medical “treatment” under section 2 of the CYFSA has the same meaning as in subsection 2(1) of the Health Care Consent Act, and includes “anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan.” The society submits that “palliative treatment” includes end of life decisions.

[62] The society asserts that under section 110(2) of the CYFSA, if a child is incapable of consenting to treatment, the society has the legal right to act in the place of a parent by providing consent to treatment on behalf of the child, regardless of whether the child is in its temporary or temporary “without prejudice” care.

[63] The society argues that although section 110 specifically deals with children in the “interim care” of the society (formerly known as “society wardship” orders following a protection finding), section 94 (7) of the Act provides that section 110 also applies when a child is in the society’s temporary care at the initial stage of the protection application. This is regardless of whether the temporary care order is on a ‘with’ or ‘without’ prejudice basis.

[64] During the submissions, there was some discussion regarding the “without prejudice” nature of the temporary order at the time the society decided to withdraw life support for the child. The society argued that the term “without prejudice” does not exist in the CYFSA. The Act refers to “temporary” orders only. The only legal relevance of the term “without prejudice” relates to which party (the society or the parent) bears the onus under the legal test set out under section 94 (4) of the Act at the temporary care and custody stage of the protection hearing.

[65] Finally, the society submits that the mother had not filed an answer and plan of care and she had not formally retained counsel. The society made several efforts to have the mother participate and she did not. The child was suffering, and the society acted on its legal authority, in good faith, in accordance with the child’s best interests.

The Mother’s Position:

[66] The mother did not attend the hearing following the child’s death. Her counsel advised the court that the mother was distraught and was not in a position to meet with him or to provide any instructions regarding her position.

[67] However, he agreed that judicial direction was needed regarding an appropriate process for future cases in these circumstances.

The Position of the Office of the Children’s Lawyer:

[68] The Office of the Children’s Lawyer (“OCL”) ultimately supports the society’s decision in the specific circumstances of this case as necessary and in the child’s best interests. However, it made submissions regarding what it considered to be the appropriate process for future cases.

[69] OCL Counsel provided a factum to the court and was also able to obtain very quickly a second medical opinion regarding the HSC’s recommendation to remove the child from life support. The opinion supported the recommendations. However, it was understandably not possible to obtain a written report given the very short timeline, nor was the physician able to testify, so the court could not rely upon it.

[70] The OCL submits that once a parent has been given notice and time to participate in their child’s treatment and has chosen not to do so, there should be no legal impediment to a society making medical decisions for a child. The child’s right to have a substitute decision maker who is willing and able to make a decision in the child’s best interests, even if that involves making a decision to end a child’s life, should be the priority.

[71] However, the OCL further submits that if the court wishes to prescribe further requirements on a society in “end-of-life” cases, then the appropriate balance should be struck between notifying and involving the parents or caregivers, notifying the court, and allowing the society to make timely and compassionate decisions for a child.

[72] A reasonable expectation would be that the society file with the court updating information before the planned termination of the treatment to preserve life.

The Law and Governing Principles:

[73] The temporary motion and protection application are governed by the Child, Youth and Family Services Act, 2017 (“CYFSA”). The paramount purpose of the CYFSA is “to promote the best interests, protection and well-being of children”. See: section 1(1) of the Act.

[74] The Act is remedial legislation and as such should be interpreted broadly with a view to achieving the paramount purposes. See: Children's Aid Society of Toronto v. J.G., 2020 ONCA 415.

[75] While parents need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent. See: subsection 1 (2).1 of the Act, (“Other Purposes”).

[76] The least disruptive course of action that is available and appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered. See: subsection 1 (2). 2 of the Act, (“Other Purposes”).

[77] In Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, the Ontario Court of Appeal held that “Child protection litigation engages the Charter rights of both parents and children… Not only are Charter rights engaged, but the participants themselves are unlikely to be able to advance them. Quite regularly, their personal circumstances pose an obstacle.”

[78] In affirming the Charter rights of child protection litigants, the Court of Appeal adopted the principles set out by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 SCC 653, [1999] 3 S.C.R. 46, which held as follows at paragraph 76 of its decision:

“The interests at stake in the custody hearing are unquestionably of the highest order. Few state actions can have a more profound effect on the lives of both parent and child. Not only is the parent’s right to security of the person at stake, the child’s is as well. Since the best interests of the child are presumed to lie with the parent, the child’s psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship.”

[79] In Children’s Aid Society v. R.E., 2023 ONCJ 366, Justice Maria Sirivar recently stated that it is imperative in child protection proceedings that the process followed be consistent with Charter values by ensuring procedural fairness to parties. Moreover, the process must not derogate from the Court’s ability to manage its own process and effectively case manage child protection proceedings.

[80] The Court of Appeal in Kawartha recognized the reality of the majority of child protection litigants. Writing for the majority, Justice Benotto states the following at paragraph 68 of the decision:

“The courts should be especially mindful of the reality and material circumstances of those subject to child protection proceedings. As Justice L’Heureux-Dubé noted in her concurring reasons in G. (J.), at para. 113, “women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings”. She continued at para. 114:

As well as affecting women in particular, issues of fairness in child protection hearings also have particular importance for the interests of women and men who are members of other disadvantaged and vulnerable groups, particularly visible minorities, Aboriginal people, and the disabled. As noted by the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745 (1982), at p. 763:

Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups…such proceedings are often vulnerable to judgments based on cultural or class bias.

Similarly, Professors Cossman and Rogerson note that “The parents in child protection cases are typically the most disadvantaged and vulnerable within the family law system . . . .”: “Case Study in the Provision of Legal Aid: Family Law”, in Report of the Ontario Legal Aid Review: A Blueprint of Publicly Funded Legal Services (1997), 773, at p. 787.”

The Statutory Pathway:

[81] When a society brings a child protection application the court must hold a hearing to determine whether a child is in need of protection (known as “the protection finding”) before proceeding to consider whether to make a final order under sections 101 or 102 of the Act (also known as final “disposition” orders).

[82] A court cannot make a final disposition order without first finding that a child is in need of protection and the court is then satisfied that state intervention through a court order is necessary to protect the child in the future.

[83] If the court finds that a child is not in need of protection, then that is the end of the society’s protection application. The application is dismissed, and the child or children are returned to the parent’s care. See: Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8, at para. 116.

The Temporary Care and Custody Hearing:

[84] Under subsection 88 (1), within five days after a child has been removed (or ‘apprehended’) from a parent’s care due to alleged child protection concerns, the matter must be brought before the court for the child protection hearing.

[85] However, the first appearance of the child protection hearing is generally adjourned, given that parents do not have time to respond to a protection application that has been brought within five days of the apprehension of a child. The court must therefore make a temporary order.

[86] Section 94 (2) of the Act deals with temporary care and custody motions pending adjournment. When a child protection hearing is adjourned, the court must make a temporary care and custody order, pending the determination of the protection finding and the final disposition in the child protection hearing.

[87] Temporary care and custody motions on the first appearance generally proceed on a “without prejudice” basis. The court will often make a temporary “without prejudice” order at the first appearance on the basis of the society’s evidence alone, in accordance with the legal test set out under section 94(4) of the Act.

[88] Although not explicitly set out in the statute, it is well settled law that a court can make a temporary “without prejudice” care and custody order at the temporary care and custody stage of the child protection hearing. See: Children’s Aid Society of Toronto v. A.S., 2022 ONCJ 553; Catholic Children’s Aid Society of Toronto v. W.I., 2014 ONCJ 62; Catholic Children’s Aid Society of Toronto v. F.Y.I., 2016 ONCJ 463.

[89] To do otherwise would be procedurally unfair to the parents. A temporary without prejudice care and custody order preserves the parent’s right to argue a temporary care and custody motion at a later date. The court does not and should not lightly eliminate the rights of a parent who had charge of the child before society intervention. See: Catholic Children’s Aid Society of Toronto v. W.I., 2014 ONCJ 62, paragraph 26, per Justice Stanley Sherr.

[90] The temporary care and custody hearing or motion is a prelude to the protection hearing, not the protection hearing required under Part III of the Act. At the temporary care and custody stage of a child protection application, there has been no finding that a child is in need of protection. The child is temporarily in the care of the society while plans of care are being investigated and the case is moving forward. Children’s Aid Society of Toronto v. L.P. and N.P., 2010 ONCJ 320 at paragraphs 88 and 91.

[91] As Justice Heather Katarynych stated, “The legislature never intended the “temporary” adjudication flowing from the temporary motion hearing to trump the protection hearing, nor did it intend a temporary custody order in favour of a children’s aid society to be “proof” of the finding of the “need of protection” claim advanced in the protection application. See: Children’s Aid Society of Toronto v. L.P. and N.P., 2010 ONCJ 320, supra.

[92] The relevant portions of section 94 read as follows:

Custody during adjournment

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

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

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

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

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody…

Criteria

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

Application of section 110

94 (7) Where the court makes an order under clause (2) (d), section 110 (child in interim society care) applies with necessary modifications. [Emphasis added.]

[93] Section 94 (7) above provides that the consent to treatment for a child under section 110 of the Act for children under an “interim society care” (formerly society wardship) order applies “with necessary modifications” to temporary care and custody orders under section 94. An interim society care order under section 110 is considered a final disposition order after a protection finding has been made, although it is subject to a status review hearing.

[94] Section 110 reads as follows:

Child in interim society care

110 (1) Where a child is in interim society care under an order made under paragraph 2 of subsection 101 (1), the society has the rights and responsibilities of a parent for the purpose of the child’s care, custody and control.

Consent to treatment — society or parent may act

(2) Where a child is in interim society care under an order made under paragraph 2 of subsection 101 (1), and the child is found incapable of consenting to treatment under the Health Care Consent Act, 1996, the society may act in the place of a parent in providing consent to treatment on behalf of the child, unless the court orders that the parent shall retain the authority under that Act to give or refuse consent to treatment on behalf of the incapable child.

Exception

(3) The court shall not make an order under subsection (2) where failure to consent to necessary treatment was a ground for finding that the child was in need of protection.

Court may authorize society to act re consent to treatment

(4) Where a parent referred to in an order made under subsection (2) refuses or is unavailable or unable to consent to treatment for the incapable child and the court is satisfied that the treatment would be in the child’s best interests, the court may authorize the society to act in the place of a parent in providing consent to the treatment on the child’s behalf. [Emphasis added].

The Meaning of “Treatment” for a Child under the CYFSA:

[95] Under section 2 (Interpretation) of the CYFSA, the meaning of “treatment” has the same meaning as in subsection 2(1) of the Health Care Consent Act, 1996 (the “HCCA”).

[96] Subsection 2(1) of the Health Care Consent Act defines “treatment” as “anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment of community treatment plan.” [Emphasis added.]

[97] The Supreme Court of Canada, in Cuthbertson v Rasouli, 2013 SCC 53, [2013] 3 S.C.R. (“Rasouli”) has made it clear that the meaning of “treatment” and specifically “palliative” treatment under subsection 2(1) of the HCCA includes the right to withdraw treatment, including life support.

[98] In Rasouli, the Court found that physicians are required to obtain the consent of substitute decision-makers when withdrawing treatment or life support in Ontario, based on the majority of the Court’s definition of treatment under the HCCA.

[99] In this case, physicians argued that the HCCA distinguishes between administering a particular type of care, which is “treatment” requiring consent, and removing that care, which is not “treatment” and does not require consent. Consequently, the physicians argued, the withdrawal of Mr. Rasouli’s life support did not require the consent of his substitute decision-maker.

[100] Chief Justice Beverley McLachlin, writing for the majority, concluded at paragraph 45 that this argument cannot succeed, “essentially because withdrawal of life support involves - indeed may be viewed as consisting of - a series of acts that serve health-related purposes, and because the critical interests at stake where withdrawal of life support is concerned go to the heart of the purposes of the HCCA”.

[101] Justice McLachlan states the following at paragraph 68 of the decision:

“In summary, withdrawal of life support aims at the health-related purpose of preventing suffering and indignity at the end of life, often entails physical interference with the patient’s body, and is closely associated with the provision of palliative care. Withdrawal of life support is inextricably bound up with care that serves health-related purposes and is tied to the objects of the Act. By removing medical services that are keeping a patient alive, withdrawal of life support impacts patient autonomy in the most fundamental way. The physicians’ attempt to exclude withdrawal of life support from the definition of “treatment” under s. 2(1) of the HCCA cannot succeed.”

Analysis:

[102] There is very little caselaw on whether a children’s aid society has the authority to withdraw life support for a child in its temporary or interim care absent court authorization.

[103] In Children's Aid Society of Ottawa‑Carleton v M.C., the Children’s Aid Society of Ottawa-Carleton sought court authorization to consent to the medical recommendation of palliative treatment for a child apprehended at birth. The child weighed 1.8 pounds at birth, had a major brain hemorrhage, and a serious heart abnormality. The doctors recommended termination of treatment, rather than surgery. The mother of the child was aware of the condition, but did not return to the hospital.

[104] The Court authorized the society to consent to the termination of treatment. Justice Metivier determined that the best interests of a child, where appropriate, can require "refraining from invasive treatment or withdrawing medical treatment other than palliative care" (paragraph 25 of the decision).

[105] However, this case was prior to the Supreme Court of Canada’s decision in Rasouli. It was also under the former 1990 Child and Family Service Act, which did not include a definition of treatment for a child in society care, or otherwise, under the statute. The issue of whether treatment under child protection legislation included “palliative treatment” or end of life decisions had not yet been clarified in law.

[106] The court concluded at paragraph 34 of the decision that,

“until further clarification of this issue and particularly in cases where the parents of the child disagree or the medical opinions diverge, the CAS should continue to seek an order from the court. As stated by Lord Keith, in Airedale, supra, at page 862 “Court endorsement of medical decisions can protect the patients and doctors while at the same providing reassurance for both the patients’ families and the public. As well, all interested persons would have an opportunity to be heard.”

[107] It is now not clear that the definition of treatment under the CYFSA includes palliative treatment, and it is not disputed that this form of treatment includes the withdrawal of life support following Rasouli.

[108] However, even though it is true that the definition of treatment under section 2 of the CYFSA is the same as subsection 2(1) of the Health Care Consent Act, the society must still follow a fair and just process when the “treatment” involves the withdrawal of life support or the termination of a child’s life in its temporary or interim care.

[109] The court recognizes that there is considerable legal authority permitting a society to exercise its discretion to make medical decisions for a child in its temporary care to preserve a child’s life, such as blood transfusions or otherwise, when a parent is refusing to consent to treatment for religious or other reasons. See, for example: Children’s Aid Society of Toronto v. L.P., 2010 ONCJ 320.

[110] In those cases, court authorization is still required at the outset of the custody hearing. The society must provide specific evidence of the medical treatment necessary to preserve the child’s life to the court. Justice Katarynych stated the following in Children’s Aid Society of Toronto v. L.P., 2010 ONCJ 320, supra:

“The legislation does not intend a judge to dictate the manner in which the society exercises its discretion in medical decisions for a child entrusted to its care by the court. Once the temporary custody order is granted, the court withdraws. It is the society’s discretion that dictates what will and will not be authorized for the child — and like all decision-making for the child under the Child and Family Services Act, it must be done in a manner that promotes the primary objective of the Act to serve the child’s best interests, protection and wellbeing. [paragraph 69]

[111] However, as noted, in the case before Justice Katarynych and all other caselaw following this line of authority, the society is acting to preserve the child’s life, not end it. Although both medical decisions may be in a child’s best interests, there is a profound difference in my view.

[112] In the case before me, when the court granted the society’s request for a temporary order to make medical treatment decisions for the child at the outset of the hearing, at no point was it contemplated or stated that the society would use its temporary authority to make treatment decisions to end the child’s life, especially without the mother’s consent or further court order.

[113] The society stated at the first court appearance that it was seeking the authority to make emergency medical decisions for the “multiple surgeries” that the child may need should hospital staff be unable to reach the mother. The clear intention was to attempt to save the child’s life.

[114] The first notification received by the court that the society would use its temporary authority to make a treatment decision to end the child’s life was after life support had already been withdrawn.

[115] The society received the HSC medical report recommending the withdrawal of life support on July 27th. The evidence of the child protection worker demonstrated that the society was aware that the mother was not consenting to this recommendation, or was at best, uncertain.

[116] Instead of immediately bringing a motion, properly served on the mother, seeking an emergency hearing and court order, the society waited until August 5th to send a 14b basket motion to judicial chambers after life support had already been withdrawn for the child. The child had only been in the temporary care of the society for fifteen weeks.

[117] I appreciate that the society inadvertently sent the 14b motion after life support had already been withdrawn. This did not change the society’s legal position that despite the “unfortunate” timing of the 14b motion, it did not require court authorization to make the decision to end life support. The 14b motion clearly stated that the society was not seeking a court order, only to “update” the court on the child’s “medical status”. The society maintained this position throughout its legal submissions.

[118] In my view, when the medical “treatment” considered by a society involves the removal or withdrawal of life support for a child in the society’s care leading to end of life, profoundly different considerations arise than those for life-saving treatment decisions. End of life decisions require independent, judicial oversight and authorization throughout.

[119] I find that the society’s actions in this case were procedurally unfair and a violation of the principles of natural justice. In New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 SCC 653, [1999] 3 S.C.R. 46, the Supreme Court of Canada found that a parent’s section 7 right to security of the person under the Charter can be engaged in child protection proceedings as this right protects both the physical and psychological integrity of a person:

“…the principles of fundamental justice in child protection proceedings are both substantive and procedural. The state may only relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for making this determination…

The appellant did not contest the legitimacy of the principle that the state may relieve a parent of custody to protect the child’s health and safety. Rather, she took issue with the fairness of the procedure in this case.

A fair procedure for determining whether a custody order should be extended requires a fair hearing before a neutral and impartial arbiter. The paramount consideration at the hearing should be the child’s best interests...

The interests at stake in the custody hearing are unquestionably of the highest order. Few state actions can have a more profound effect on the lives of both parent and child. Not only is the parent’s right to security of the person at stake, the child’s is as well. Since the best interests of the child are presumed to lie with the parent, the child’s psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship.” [Paragraphs 69 to 76, emphasis added.]

[120] The court cannot think of another state action that would have a more profound effect on a parent than a society’s decision to end life support for a child in its temporary or interim care, especially without the parent’s consent or court authorization.

[121] It is undisputed that the mother was a very vulnerable litigant, struggling with poverty, mental health and substance misuse. She had not yet retained counsel nor filed responding materials at the time the child was removed from life support. The society did not obtain the mother’s consent to withdraw life support for her child.

[122] The society’s position that sections 110 and 94(7) of the Act provides it with the legal authority to withdraw life support for a child in its temporary care without seeking further court authorization is contrary to the statutory framework of the Act, the principles of statutory interpretation, and the parent’s and child’s rights to procedural fairness under section 7 of the Charter.

[123] As the Supreme Court of Canada held in R. v. Breault, 2023 SCC 9, every statutory interpretation exercise involves reading the words of a provision “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” See: R. v. Breault, 2023 SCC 9, at paragraphs 25 to 26; Rizzo & Rizzo Shoes Ltd. (Re), 1998 SCC 837, [1998] 1 S.C.R. at paragraph 21.

[124] The Child, Youth and Family Services Act provides the statutory scheme to govern medical decisions for children deemed to be in need of state protection. All decision-making must be undertaken with careful consideration of the objectives set out in section 1 of the Act.

[125] In addition to the paramount purpose to promote the best interests, protection and well-being of children, the Act provides that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit, and, wherever possible, be provided on the basis of mutual consent.

[126] The Act further provides that the least disruptive course of action that is consistent with the child’s best interests, protection and wellbeing should be considered, including the provision of prevention, early intervention and community services.

[127] As previously noted, the section 7 Charter rights of child protection litigants are engaged under the Act. The court is required to carefully consider the seriousness of the interests at stake, the complexity of the proceedings, and the capacity of the litigant in determining a process that is procedurally fair to the parent. See New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 SCC 653.

[128] The legislative provisions regarding medical treatment for a child under the Act clearly contemplate court authorization and oversight. Section 110 (2) provides that even at the final stages of a protection application, following a protection finding and an order for interim society care (formerly society wardship) the society may consent to and authorize medical treatment for an incapable child where a parent’s consent would otherwise be required, “unless the court orders that the parent shall retain any right that he or she may have to give or refuse consent to medical treatment on behalf of the incapable child”.

[129] Section 110 (4) provides that where a parent referred to in an order made under subsection (2) refuses or is unavailable or unable to consent to treatment for the incapable child and the court is satisfied that the treatment would be in the child’s best interests, the court may authorize the society to act in the place of a parent in providing consent to the treatment on the child’s behalf. [Emphasis added].

[130] It could not have been the intention of the Legislature that a children’s aid society has the legal authority to end a child’s life in its temporary care without court authorization, especially without parental consent. The society, as a state agent and a party to the protection application, cannot usurp the court’s independent oversight of the society’s actions in these circumstances, given the profound circumstances.

[131] Ultimately, based on the only evidence before me, it may very well have been in H.’s best interests to withdraw his life support in this case. However, the principles of fundamental justice in child protection proceedings are both substantive and procedural. A society should not make end of life decisions for a child in its temporary or interim care without a court’s explicit authorization.

Conclusion:

[132] For the above reasons, this court orders the following:

1. Before exercising its decision-making authority to make palliative treatment decisions for a child in its temporary care, including end of life decisions such as the withdrawal of life support or the withdrawal of medical treatment for a child, the children’s aid society shall seek immediate court authorization by way of a court order at an oral hearing. For greater clarification, the court makes no distinction between with or without prejudice temporary custody orders.
2. The society shall serve and file a notice of motion and supporting affidavit setting out the medical evidence necessary to support the request. The society shall make arrangements with the trial coordinator to schedule the hearing before the case management judge, if available. If not, an emergency judge will preside over the hearing.
3. The society shall make all reasonable efforts to serve any parent or person having charge of the child before society intervention with the notice of motion and supporting affidavit above.

[133] The court thanks counsel for their assistance in this difficult case.

Released: March 25, 2024 Sheilagh O’Connell, J.