ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
K.L. Applicant
– and –
M.L. Respondent
Myron Breslow, counsel for the Applicant
OCL Ian Ross agent for Julie Bergeron
HEARD: August 3rd, 2017
RULING: August 3rd, 2017
Endorsement
Lacelle, J.
1This is a motion by the child M.L seeking to vacate the temporary order of July 27, 2017, placing him in the secure treatment program at Roberts Smart Centre. Counsel for M.L. also raises the issue of the Applicant’s standing to bring the Application for secure treatment.
2The Applicant, through her counsel, concedes that she does not meet the definition of “parent” under the combined operation of s. 3(2) of the CFSA and s. 20(4) of the CLRA. Her application is dismissed for lack of standing. However, on consent, a new Application may be filed by the child’s father in order that the secure treatment hearing may proceed in a timely fashion as previously discussed by the parties. Because there is no valid Application before the Court, the interim order cannot continue, and it is vacated. I wish to make clear, however, that I would have vacated the order even if Ms. L.’s Application was properly before the Court.
3I arrive at this conclusion because I am persuaded by the submissions of Mr. Ross on behalf of M.L. The use of the secure treatment provision is an extraordinary measure. The criteria set out in the law with respect to its use must all be strictly met. M.L. does not consent to the order and through his counsel several deficiencies in the evidence have been raised. I am particularly concerned that there is insufficient evidence at this time on the following issues.
4S.117(b) – under this criterion, the Applicant must show that the child has, as a result of the mental disorder, within the 45 days immediately preceding the application ( in this case) , “ caused or attempted to cause serious bodily harm to himself, herself or another person”. Counsel for Ms. L. says the evidence of the L.’s about the child’s assaults on his father as detailed in their affidavit of July 26, 2017, and particularly an assault alleged to have occurred on June 23, 2017, meets this criterion. While I have no doubt this conduct is extremely worrisome to M.’s parents and others, I am not satisfied on the evidence adduced at this time that this amounts to “ serious bodily harm”, or an attempt to cause such harm, given the high threshold established in the case law for the meaning of that term. No injuries appear to have been caused to Mr. L., and no medical treatment was required. I cannot find that in these circumstances M. can be presumed to have intended to harm his father more seriously. On the balance of probabilities I am not satisfied that this criterion has been met.
5I also have particular concerns about the evidence showing that no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances (S. 117 (f)). I do not accept that this issue may be further fleshed out by evidence from the CAS at the hearing, and that the current state of the evidence meets that criterion. It is not clear why placements for M. outside of his father’s residence are not appropriate- the evidence seems to indicate that they are unavailable as opposed to inappropriate (see M.C.V. 2016 CFSRB 53 @ para 46). The court has no evidence about what was done to exhaust all options available to support this child outside of a secure setting.
6In view of these conclusions, it is not necessary to address the additional argument made about the insufficiency of the evidence on other criteria set out in S. 117 of the CFSA. It is also not strictly necessary to make additional findings about what evidence is properly before the court. I have considered the records filed and previously sealed by the court in arriving at my conclusions, with the exception of those records which are arguably protected by the provisions of the YCJA. Those documents shall be re-sealed. All other documents may remain in the court record.
7Finally, I want to make clear that I understand that M.’s parents love him very much and want him to be well. I have no doubt that the service providers involved with him want the same thing. But courts are required to strictly apply the law, particularly where a person’s liberty interests are at stake. Giving my best considerations to what the law requires, and the evidence adduced in support of the interim order, I am not satisfied that the order should continue. It is therefore vacated.
Madam Justice Laurie Lacelle
Released: August 30th, 2017
CITATION: K.L v. M.L., 2017 ONSC 5155
COURT FILE NO.: 17-85
DATE: 20170803
ONTARIO
SUPERIOR COURT OF JUSTICE
K.L. Applicant
– and –
M.L. Respondent
REASONS FOR JUDGMENT
Madam Justice Laurie Lacelle
Released: August 30th, 2017
