COURT FILE NO.: C-1707-04 DATE: 2020-05-07

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

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

(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.

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Catholic Children’s Aid Society of Hamilton, Applicant

AND:

O.O., Respondent

BEFORE: The Honourable Madam Justice L. Bale

COUNSEL: Ms. M. Anis, Counsel, for the Applicant Mr. M. Chun, Counsel, for the Respondent

HEARD: In Chambers

ENDORSEMENT -- COVID 19 PROTOCOL

[1] AS A RESULT OF COVID-19 which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession dated March 15, 2020, this urgent matter was heard in writing. See the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/, and as updated.

[2] Electronic materials were filed through the Courthouse email address: Hamilton.Family.Superior.Court@ontario.ca.

[3] The following documents have been considered by the court in the determination of this matter:

a. Application for Secure Treatment of the Catholic Children’s Aid Society returnable May 8, 2020; b. Consent to Secure Treatment (person other than child) dated April 27, 2020; c. Child’s Consent Secure Treatment dated May 4, 2020; d. Statement of Agreed Facts dated May 4, 2020 and May 5, 2020; e. Application for Secure Treatment of the Catholic Children’s Aid Society returnable July 23, 2019; f. Order for Secure Treatment and Endorsement of Lafrenière J. dated July 23, 2019; g. Draft Order, as approved as to form and content by counsel for the child.

[4] Upon the resumption of regular court operations, the CCAS of Hamilton shall file any of the above documents which have not been previously filed in the physical court file.

OVERVIEW

[5] The Catholic Children’s Aid Society of Hamilton (“the Society”) has brought an Application for Secure Treatment in relation to the child O.O., born […], 2003. The child, who is represented by counsel in this proceeding, consents to the Society’s request.

[6] The parties jointly request an Order placing O.O. in secure treatment at Roberts Smart Centre - Secure Treatment Unit, in Ottawa, Ontario for a period of 180 days.

THE LAW AND ANALYSIS

[7] Applications for secure treatment are governed by Part VII of the Child Youth and Family Services Act, 2017, under the heading “Extraordinary Measures”. There is no doubt that an Order for secure treatment of a child is extraordinary: Under the secure treatment provisions of the CYFSA, s. 157-160, it is explicit that secure treatment centres may impose serious and continuous restrictions on the liberty of children - including locked-down premises, and the use of secure rooms, mechanical restraints, and other intrusive procedures - all without the child’s consent: CYFSA, s. 157-160. As a result, the legislation is clear that no child shall be admitted to a secure treatment program except by a court order or under emergency admission: CYFSA, s. 158.(3).

[8] I have reviewed and adopted the guiding principles and necessary safeguards required in the determination of a secure treatment Application brought under the CYFSA, as thoroughly reviewed by Justice Starr in McMaster Children’s Hospital v. L.R.-U., 2019 ONCJ 496, at para. 26. I have considered the consent Application before me, with deference to all of the guiding principles summarized by Justice Starr, as necessarily modified to reflect that this child consents to her placement in a secure treatment facility. Specifically, I accept that notwithstanding that O.O. does not oppose the very significant relief sought by the Society, the following guiding principles still apply, as modified:

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 court must be presented with clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five criteria under s. 164 of the CYFSA have been met;
4. The court is required to review the evidence with respect to each criterion carefully and exhaustively; and be satisfied that the preponderance of evidence with respect to each of the criteria, supports a finding that the particular criterion has been established;
5. The court may only make an order committing, or extending the committal, where it is satisfied that all of the criteria in s. 164(1) (secure treatment applications) and s. 167(1) (extension applications) have been met;
6. The court retains the discretion to decline to make a committal order, even in cases where all of the criteria have been met, and even in the case where a child consents to the order.

Persons Who May Apply for a Commitment Order

[9] Where a child is 16 years of age or older, any one of the following persons may, with the administrator’s consent, apply to the court for an order for the child’s commitment to a secure treatment program: (i) the child, (ii) the child’s parent, if the child consents to the application, (iii) a society that has custody of the child under an order made under Part V (Child Protection), if the child consents to the application, or (iv) a physician: CYFSA s. 161(1)2.

[10] O.O. is 16 years of age. She was made a Crown Ward of the Society on May 23, 2006. The Society properly brings this Application with the consent of the child, and with the consent of the administrator of the Roberts Smart Centre.

Conduct of Commitment Hearing

[11] An Application for secure treatment of a child must be determined by the court by formal hearing on oral evidence unless the child, after obtaining legal advice, consents in writing to the making of an order without the hearing of oral evidence, and the consent is filed with the court: CYFSA, s. 162(1). Notwithstanding the child’s consent, the court may require oral evidence in its discretion: CYFSA, s. 162(2).

[12] A Form 33E: Child’s Consent to Secure Treatment has been filed in this proceeding. O.O. executed this document with her counsel on May 4, 2020. Within the consent, O.O. confirms that she knows that:

a. the Society is seeking an Order for her secure treatment; b. she has a right to be present in court for the hearing of this Application, but agrees not to come to court and to let the court make an order in her absence; c. the court usually conducts an oral hearing in such matters, but she agrees that the court can make the requested order without having to hear witnesses. That is, the court may rely upon the evidence contained within the reports and other documents filed in reaching a decision.

[13] O.O.’s consent also includes an acknowledgment that she has met with her lawyer who has explained the nature of the Order requested and her consent, and who is a witness to her signature.

[14] I am satisfied in the circumstances of this case, that it is appropriate to proceed with this matter without necessity of an oral hearing. In exercising this discretion, I note the following:

1. A comprehensive Agreed Statement of Facts has been executed by both parties and filed (electronically) with the court. Both parties had the benefit of counsel in drafting and executing the document. The Agreed Statement of Fact includes substantive information regarding all criteria to be considered under s. 164(1) of the CYFSA in making an Order for commitment to secure treatment;
2. On April 23, 2020 O.O. voluntarily admitted herself into the Roberts Smart Centre for a 30-day emergency stabilization plan. Further, O.O. was previously in secure treatment at the Roberts Smart Centre from July 25, 2019 to January 8, 2020. This information supports a conclusion that O.O. has a clear understanding of the implications of her consent to secure treatment; and
3. The suspension of regular court proceedings due to the COVID-19 health crisis would require the matter to proceed by teleconference or video conference rather than an in-person hearing. Both parties consent to this matter proceeding on the basis of written materials rather than through these means.

Criteria for Commitment to Secure Treatment

[15] Section 164(1) of the CYFSA governs the strict criteria that must be met before an Order for commitment to secure treatment may be made:

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 Youth 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.

A. Mental Disorder

[16] Mental disorder under this Part means “a substantial disorder of emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgments”: CYFSA, s. 157.

[17] In February 2019 O.O. was diagnosed with Developmental Trauma Disorder (previously known as chronic-complex Post-Traumatic Stress Disorder) by a Psychiatrist at Youthdale Treatment Centres, Psychiatric Crisis Service. The parties agree that as a result of this mental disorder she experiences severe emotional and behavioural dysregulation, suicidal thoughts and inter-personal conflicts. She has engaged in numerous serious incidents of self-harm and suicide attempts, which were explained in sufficient detail in the Agreed Statement of Facts. I am satisfied that, as a result of her mental health issues, O.O.’s capacity to make reasoned judgments is grossly impaired.

B. Behaviour re: 45-day Review

[18] The Society commenced an Application for Secure Treatment in this matter on May 4, 2020. The parties agree that since March 20, 2020 (the 45-day period preceding the Society’s Application), O.O. has:

a) attempted to throw herself into oncoming traffic on at least three separate occasions; b) attempted to throw herself out of a second story window; c) made multiple threats of physical harm to herself; d) been aggressive with staff within her group home including incidents of: punching and kicking staff members several times and on repeated occasions, threatening to kill staff members and others in the home on multiple occasions, threating to assault staff members on multiple occasions, ripping a curtain rod from the window and hitting a staff member over the head, pushing a staff member to the ground, attempting to throw a chair at a staff member, attempting to crush a staff member with a dining room table, and threatening a staff member with a large piece of broken glass.

[19] As a result of her conduct O.O. has had to be physically restrained by the police and by trained residence staff on numerous occasions within this 45-day period in order to protect the physical safety of O.O. and other persons in her presence. I conclude that without the physical restraints imposed upon O.O. by police and the staff at the group home, serious physical injury to O.O. would not have been avoided. I note that while living in this therapeutic residence O.O. had a care ratio of one-to-one which no doubt also served to prevent serious harm. This situation is not sustainable.

[20] In my view, the requirement for a review period of 45 days preceding the Application signifies the need to consider whether or not, as a result of the child’s mental health issues, she is in a present situation of distress. An absence of the specified harmful behaviours within the preceding 45-day period might suggest that a child has achieved relative stability and therefore does not require the drastic measure of committal to secure treatment. It is clear from this section that an order for secure treatment cannot be made on historic evidence alone. There must be evidence of an active risk that the child may cause serious bodily harm to herself or others.

[21] On the evidence before me I have no difficulty in accepting that O.O. is in a current and acute state of distress. She has repeatedly attempted to cause serious bodily harm to both herself and others within this 45-day window. I find, and it is agreed by all parties, that her behaviours are causally connected to her diagnosed mental disorder. This criterion is satisfied.

C. Behaviour re: 365-day Review

[22] The underlying purpose behind criterion C (a 365-day period of review) must not be the same as the underlying purpose behind criterion B (a 45-day period of review) or these provisions would not be separate enumerated considerations within s. 164 of the CYFSA.

[23] The lengthier, more historic period of review of 365 days, as contained in criterion C, suggests that an analysis as to whether the child’s mental health issues are chronic or long-standing, rather than episodic or isolated in nature, is also an important consideration. A review of the wording under each section leads this court to conclude that, absent a finding that the child caused the death of another person, or attempted to cause the death of another person within the past 45 days, the court must be provided with evidence of at least one incident wherein the child caused or attempted to cause (by words or conduct) a substantial threat of serious bodily harm to herself or another person in the period of time spanning 365 days to 45 days preceding the Application. See also Centre for Addition and Mental Health v. C.S., 2018 ONCJ 127, at para. 45, and McMaster Children’s Hospital v. L.R.-U., 2019 ONCJ 496, at para. 69 for discussion on the purpose behind criteria B and C.

[24] In this matter, although some of the O.O.’s behaviours towards others between March 20, 2020 and May 4, 2020 were highly dangerous, they do not in my view rise to the level requisite for a determination that she attempted to cause another person’s death. Therefore, an analysis of O.O.’s conduct from May 4, 2019 to March 19, 2020 is necessary.

[25] O.O. was previously in secure treatment at the Roberts Smart Centre – Secure Treatment Unit for approximately six months, from July 25, 2019 to January 8, 2020. No evidence was provided to the court which confirmed any event wherein O.O. caused or attempted to cause a threat of serious bodily harm to herself or another person during this period of secure treatment. The only periods wherein O.O. was not in secure treatment during the 365-day period of review (and which were not already considered under criterion B above) were from May 4, 2019 to July 25, 2019, and from January 8, 2020 to March 20, 2020.

[26] On July 23, 2019 Lafrenière J. made an Order committing O.O. to secure treatment at the Roberts Smart Centre – Secure Treatment Unit for a period of 180 days, commencing July 25, 2019. This Order for secure treatment was also made with the consent of O.O. The materials relied upon by Justice Lafrenière, amongst other things, detailed the following:

a. In the one-year preceding that Application, the child resided in seven separate placements, including an acute care unit, a therapeutic children’s residence, and Youth/Adolescent Inpatient Mental Health Units at two separate hospitals. There were approximately 75 documented incidents of self-harm, suicidal ideation, and suicide attempts. b. In the period between May 4, 2019 and July 25, 2019, the relevant time frame for this court’s analysis, O.O. attempted self-harm with scissors and other sharp objects, smashed a light fixture and smashed her own glasses (in separate incidents) attempting to both swallow the broken glass and cut herself, attempted to electrocute herself, wrapped a cord and bags around her neck (on separate occasions), and ran into oncoming traffic multiple times. This is not a comprehensive review of all of the dangerous behaviour noted in the previous court action, but it is sufficient for purposes of this Application.

[27] In July 2019 Justice Lafrenière was satisfied that all of the criteria under s. 164 of the CYFSA were met.

[28] The Agreed Statement of Facts filed in this proceeding confirms that O.O. was discharged from secure treatment on January 8, 2020. Initially she appeared to be doing well on release, however, O.O. suffered a significant setback in dealing with the sudden illness and death of her birth mother. Her destructive behaviours again began to present themselves and negative occurrences began to escalate in severity and frequency, commencing in February 2020 following her mother’s death. O.O. became increasingly dysregulated until she voluntarily admitted herself into a 30-day emergency placement at the Roberts Smart Centre. She has suffered a form of relapse in the state of her mental health. I find that that, although this recent deterioration is related to the tragic circumstances of her birth mother’s illness and death, likely triggered by this devastating event, it is as a result of her Developmental Trauma Disorder, and her resulting severe emotional and behavioural dysregulation, that O.O. is unable to cope without significant intervention by professionals. It is evident that O.O.’s mental health issues are of a serious, complex, and long-standing nature.

[29] The same mental disorder which grossly impairs O.O.’s judgment today was present between May 4, 2019 and July 25, 2019. That is, the criterion requiring that O.O. has caused or attempted to cause a substantial threat to cause serious bodily harm to herself of another person within the 12 months immediately preceding the application, but not including those occasions under criterion B above has been satisfied.

D. Efficacy of Treatment Program in Preventing Harm

[30] The absence of any evidence of O.O. causing or attempting to cause serious bodily harm to herself or others for approximately six months while under previous secure care at the Roberts Smart Centre – Secure Treatment Unit, or during her recent emergency stay, would suggest that the Roberts/Smart Centre has already proven to be relatively effective in preventing O.O. from causing or attempting to cause serious bodily harm to herself or others. Further, this court is advised that the program is housed in a secure building, the youth are never left alone, and they do not have access to the means of causing serious bodily harm to themselves. It appears that the Roberts Smart Centre – Secure Treatment Unit has had the greatest success to date in address O.O.’s complex needs while keeping her safe.

[31] I am satisfied that this criterion is met. Specifically, the Roberts Smart Centre – Secure Treatment Unit would continue to be effective in preventing O.O. from causing or attempting to cause serious bodily harm to herself or another person.

E. Availability of Appropriate Treatment

[32] This court is advised that the Roberts Smart Centre - Secure Treatment Unit focuses on the treatment of complex trauma in youth. There is a forensic psychiatrist on staff as well as an onsite clinician. The parties agree that, initially upon O.O.’s release from the Roberts Smart Centre – Secure Treatment Unit into a community-based therapeutic group home in January 2020, O.O. was adjusting well. The closing report written by a clinician in the program identified that O.O. had made noticeable gains in her communication during times of distress and in identifying and using healthier coping skills. Her transition into the community appeared to be positive: O.O. was actively working towards her treatment goals. However, following her mother’s funeral her behaviours began to escalate. Unsurprisingly, O.O., a vulnerable youth, appears to have been greatly impacted by her mother’s death.

[33] In my view, the Roberts Smart Centre – Secure Treatment Unit is currently in the best position to provide continuity of care for O.O. The Centre has the benefit of past experience in assessing the efficacy of treatments and techniques (both successful and unsuccessful) in assisting O.O. in the past. I do not doubt that this Centre has the level of skill and expertise that is required to understand O.O.’s complex needs – the positive rapport that they have been able to achieve with O.O., as a reflected by her own voluntary return to the Centre, is an added benefit. I am satisfied that the treatment appropriate for the O.O.’s mental disorder is available at the Roberts Smart Centre – Secure Treatment Unit. This criterion is satisfied.

F. Lesser Restrictive Method of Providing Treatment

[34] The parties agree that no less restrictive method of providing treatment appropriate for O.O.’s mental disorder is available or appropriate for O.O. at this time. Specifically, non-secure placement cannot provide the level of safety that O.O. currently requires to keep her from causing serious injury or death to herself. I accept the parties’ submission on this issue. Previous efforts to treat the child in therapeutic residences, acute care facilities, and in-patient treatment centres have not been able to ensure O.O.’s safety. Recently, and despite the one-to-one ratio of care that O.O. was receiving at Cramer House - a therapeutic group home, O.O. was engaging in harmful behaviour which could not be managed by police or staff without frequent incidents of physical restraint. As stated above, only as a result of the special skill and attention offered by the residence staff were serious injuries to O.O. prevented. The behaviours were, in my view, increasing in severity and frequency, and without resort to secure treatment, actual harm to O.O. would have been the inevitable result. There is no intermediary placement between one-on-one supervision at a therapeutic group home and secure treatment which could reasonably provide treatment of O.O.’s mental disorder at this time and ensure her safety. This criterion is satisfied.

Discharge Planning

[35] In Hamilton Children’s Aid Society v. S.S., 2012 ONCJ 700, at para. 39, the court adopted a realistic and flexible approach to assessing discharge planning, recognizing that discharge planning must balance the need for assurance that a plan which reflects the child’s individual needs will be implemented, but allowing room for contingencies and fluidity depending on the child’s actual situation and the resources available at the completion of the secure treatment.

[36] The Agreed Statement of Facts confirms that the child has expressed a determination to continue with her treatment with hopes of learning new ways to cope with and manage her past history and current grief and trauma, her suicidality and emotional dysregulation. She has expressed an interest in remaining in Ottawa on a long-term basis. Her biological brother (and his adoptive family) reside in Ottawa, and they have maintained contact. She hopes to have opportunity to grow that relationship. The Society and the Roberts Smart Centre are supportive of this request.

[37] The Roberts Smart Centre clinical team and the Society together hope to transition O.O. into another therapeutic group home in the Ottawa area, with whom the Centre has a positive working relationship and past experience with successful transitions. This placement would permit O.O. to build further community connections within the City of Ottawa, as she prefers. Although not O.O.’s preference, in the event that this placement is deemed unsuitable or unworkable in future, the option for O.O. to return to Cramer House also remains open. This flexibility is appropriate. The discharge plan appears to be similar to that attempted in January 2020, with the assumption that, this time, no intervening unforeseeable and tragic events will arise in O.O.’s life at such a critical juncture. Presumably the absence of serious and significant triggers in future will serve to increase O.O.’s likelihood of a successful transition into the community at the completion of this secure treatment period. I accept that the joint plan for O.O. to reside in a therapeutic setting in Ottawa, with a one-to-one staffing ratio, is the appropriate strategy for O.O.’s future discharge.

Period of Commitment

[38] The parties jointly request that this court order a period of commitment of 180 days. This is the maximum period of time that a court may order a child into a secure treatment program: CYFSA, s. 165(1). The Agreed Statement of Facts filed in this proceeding confirms that on April 23, 2020, by combination of the recommendation of the clinical director at the Robert Smart Centre, and adherence to the wishes of O.O., a plan was made that O.O. be admitted back into secure treatment at the Centre for a period of six months to focus on grief and trauma work. O.O. has been approved for admission. She has no other home to which she wishes to return in advance of this date, and all of the evidence confirms that O.O.’s treatment will require commitment, patience, and time. This court will not interfere with the plan crafted by O.O.’s medical and therapeutic care providers through collaboration with O.O. There is no basis on the facts before me upon which to reject this joint request.

CONCLUSION

[39] On the basis of the above, I am satisfied that the consent Order sought in this proceeding, for O.O.’s commitment to a secure treatment program at Roberts Smart Centre - Secure Treatment Unit for a period of 180 days meets the statutory test prescribed under the CYFSA.

[40] In reaching this decision I am mindful that the paramount purpose of this Order is to promote the best interests, protection and well-being of O.O. In my view, this is the least disruptive course of action that is available and appropriate on the particular facts of this case: the Roberts Smart Centre – Secure Treatment Unit can best provide the complex intervention services and supports that O.O. needs, while at the same time ensuring her physical and emotional health and safety. A continuation of the previous services afforded to O.O. at the Roberts Smart Centre will provide the added benefit of continuity of care and stable relationships to a child who has not recently had much stability in her life. I have considered the voice and participation of O.O. as a young person in reaching this decision: her initial voluntary admission to the Centre and her stated motivation to be healthy and stable is a positive indication that she will benefit from this placement. Further, the community reintegration plan of the Roberts Smart Centre, while admittedly still in its preliminary stages, to develop community supports for O.O. within the Ottawa area where she can strengthen a familial relationship with her biological brother is in keeping with her best interests. The Order sought by both parties best promotes the paramount and other purposes of the CYFSA.

[41] There shall be a Final Order to go in accordance with the Draft Order filed.

Bale J. DATE: May 7, 2020