COURT FILE NO.: C622/20-01
DATE: September 16, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017
BETWEEN:
Children’s Aid Society of London and Middlesex
Applicant
- and -
K.W. and D.W.
Respondents
Randolph C. Hammond for the Society
Self-represented
Kimberly L. Doucett for the child, A.W.
HEARD: September 3, 4, 2020 via video conference
MITROW J.
A) INTRODUCTION
[1] This is an application by the Children’s Aid Society of London and Middlesex (“the Society”) that the child, A.W. (“sometimes referred to as the child”), born in 2004, be committed to a secure treatment program for a period of 180 days pursuant to the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the Act”).
[2] The application was signed by the Society on August 14, 2020 and was first returnable on August 25, 2020. On that date, the child was placed in the temporary care and custody of the Society on a without prejudice basis.
[3] On September 8, 2020, I released a brief endorsement that the child be committed to a treatment program at the Syl Apps Youth Center in Oakville, Ontario for 180 days. Also included in the endorsement was an order that the police shall take the child to the secure location as authorized by s. 172(1) (b) of the Act.
[4] The endorsement further provided that the order was made that day due to the urgent nature of the child’s circumstances, with written reasons to follow.
[5] These are the written reasons.
B) THE POSITION OF THE PARTIES
[6] The Society and the parents submit that the child should be committed to secure treatment at the Syl Apps Youth Center for a period of 180 days. The administrator of the secure treatment program has consented, in writing, to the application for the child’s commitment to the secure treatment program.
[7] The child submits that the application for secure custody should be dismissed. It is the child’s position that the Society has failed to adduce evidence sufficient to satisfy all of the criteria required in s. 164(1) of the Act.
C) BRIEF OVERVIEW
[8] During the two-day hearing conducted via video conference as a result of the cessation of normal court operations due to COVID-19, the court heard oral evidence from police constable Peter Keane (“Constable Keane”), Dr. Joy Shira Abramson (“Dr. Abramson”), who is a psychiatrist and who treated the child as a result of numerous hospital admissions, Dr. Janelle Hawes (“Dr. Hawes”), forensic psychologist and interim director at the Syl Apps Youth Center, child protection worker Tammy Upton (“Ms. Upton”), child protection worker Lauren Hare (“Ms. Hare”) and the child’s parents, D.W. (“the father”) and K.M. (“the mother”).
[9] The child has a number of mental health diagnoses, including diagnoses due to substance abuse. The child has been admitted to hospital on frequent occasions related to her substance abuse and has been “formed” on numerous occasions pursuant to the Mental Health Act, R.S.O. 1990, c. M.7.
[10] As discussed in more detail below, the child became enmeshed in a cycle of hospital admissions due to substance abuse, followed by a stay in hospital often on an involuntary basis, followed by a release from hospital when the child stabilized and then followed by readmission after a further episode of substance abuse.
[11] While the hearing was in progress, there was evidence that after the first day of the hearing, and prior to the second day of the hearing, that the child was transported to the hospital in relation to her drug use and was released during the second day of the hearing. Although it was planned by the Society for the child to attend at a group home on discharge from hospital, the child declined to attend there and at the conclusion of the hearing the child’s whereabouts, again, were unknown.
[12] Also, at the commencement of the hearing, the evidence indicated that the child’s whereabouts were unknown, despite attempts made by the Society and the child’s parents to locate the child.
[13] Since the beginning of 2020, the child has spent substantial time “living in the streets,” despite concerted efforts by her parents and the Society to find an appropriate placement for the child.
[14] The child has refused adamantly all recommendations for counselling and treatment. The child has suffered significant weight loss and was described as emaciated by Dr. Abramson. The parents and Ms. Upton expressed concern that the child is at significant risk of dying of substance abuse.
[15] Dr. Abramson voiced concerns that the child may die in the streets.
D) THE LEGAL REQUIREMENTS FOR SECURE TREATMENT
[16] Section 164(1)(a) requires the court to be satisfied that the child has a mental disorder. The definition of a mental disorder for the purpose of Part VII of the Act, which deals with extraordinary measures, is defined as follows in s. 157:
“mental disorder” means a substantial disorder of emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgments ...
[17] Prior to committing a child to secure treatment, the court must be satisfied that all criteria contained in s. 164(1) of the Act have been met. Section 164(1) provides as follows:
Commitment to secure treatment: criteria
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.
[18] Statutory provisions regarding the child’s attendance at the hearing are set out in s. 161(8):
Child entitled to be present
161(8) The child who is the subject of an application under subsection (1) is entitled to be present at the hearing unless,
(a) the court is satisfied that being present at the hearing would cause the child emotional harm; or
(b) the child, after obtaining legal advice, consents in writing to the holding of the hearing without the child’s presence.
[19] The child did not attend the hearing, nor did the child sign a consent as provided in s. 161(8)(b). At the commencement of the hearing, I heard brief submissions as to whether the hearing should proceed in the child’s absence. The decision on that issue was reserved and the hearing proceeded.
[20] Following the conclusion of the hearing, the parties and the child provided written submissions on this issue. The child and all parties concurred that the child could elect not to attend at the hearing. In particular, the submission on behalf of the child indicated that the child was provided with legal advice prior to the hearing and the child chose not to attend. On the second day of the hearing, which commenced while the child was at the hospital, the child did provide verbal instructions to her counsel that she did not wish to attend the second day of the hearing.
[21] In the circumstances, there was insufficient evidence to make a finding under s. 161(8)(a).
[22] Even though both criteria in s. 161(8) were not satisfied, I find that the child did have legal advice regarding the right to attend the hearing and chose not to attend the hearing.
[23] The child had a right to make that choice. In the circumstances, I find that it was proper to conduct the hearing in the child’s absence.
[24] In McMaster Children’s Hospital v. L.R-U., 2019 ONCJ 496, Starr J. provides a helpful review of the principles that govern a secure custody application. At para. 26, Starr J. states:
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., supra, [reported at 2016 ONCJ 894] 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:
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;
An order committing a child to secure treatment is to be considered as a remedy of last resort.
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;
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;
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.
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.
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;
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.
The court retains the discretion to decline to make a committal order, even in cases where all of the criteria have been met.
E) SECTION 164(1)(a) - MENTAL DISORDER
[25] As discussed earlier, the court must find that the child has a “mental disorder” which means a substantial disorder of emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgments.
[26] I accept the child’s submissions supported by authorities that:
a. there must be evidence from medical expert(s) offering the opinion that a child’s capacity to make reasoned judgments is grossly impaired and explaining the basis for that opinion: Re A.(J.), 1989 CanLII 3135 (ON CJ), 1989 CarswellOnt 1402 (Ont. Prov. Ct. (Fam. Div.)), at para. 11; and
b. impulsiveness and bad judgment do not equate to a person’s ability to make reasoned judgments: Children's Aid Society of Sudbury & Manitoulin (Districts) v. C. (C.), 1999 CarswellOnt 4865 (Ont. C.J.), at para. 23.
[27] After Ms. Upton assumed carriage of this case, she first met the child in September 2019 while the child was hospitalized.
[28] The child was about to be discharged from hospital. There was concern regarding flight risk and the child’s behaviours related to drug use. As a result, the Society was able to arrange a foster placement for the child in a specialized foster home in Scarborough.
[29] The inability of the parents to manage the child’s behaviour at this point resulted in the child coming into Society care pursuant to a temporary care agreement.
[30] During Ms. Upton’s discussions with the child regarding the upcoming foster placement, the child presented as polite, there was good conversation about goals and the child’s engagement appeared normal.
[31] Significantly, however, within hours of arriving at the foster home, the child left without permission. While the child was missing, Ms. Upton obtained a warrant to apprehend the child. The child then was located and the plan was for the child to stay with a family friend. As a result, the warrant was not executed. However, the placement broke down quickly and the child then elected to stay with her parents.
[32] In early November 2019, Ms. Upton witnessed an incident at the parents’ residence. The child was escalating and threatening to kill herself if she did not get her marijuana. It was Ms. Upton’s evidence that the child was in such an emotional state that a small amount of marijuana - a few pinches - was given to the child, after which the child calmed down. Ms. Upton was clear that neither she nor the parents endorsed drug use by the child, but the severity of the child’s presentation on that occasion led to a small amount of marijuana to be given to the child.
[33] By close to mid-December 2019, there had been a significant deterioration in the child’s behaviour and, on December 11, 2019, Ms. Upton drove the child to the Maitland group home. However, the child was not amenable to the routine and discipline of the group home and was absent from the group home more than the child was present.
[34] The child was hospitalized in early February 2020 as a result of drug use and was “formed” for a period of 72 hours. The child also was presenting with a serious eye infection. Ms. Upton testified, in relation to the child’s apparent failure to obtain treatment for her eye infection, that the child, knowing that she was at risk of losing her eye, told Ms. Upton that she still had her other eye.
[35] The child was prescribed medication for her eye condition on discharge and apparently was able to follow through on that treatment.
[36] The evidence was that a plan was being formulated that the child would attend at the Centre for Addiction and Mental Health (“CAMH”) in Toronto. The father testified that he had completed an application.
[37] It was the father’s evidence that the child had run from the hospital while she was a patient. The hospital had been in touch with CAMH. As a result, CAMH sent a letter to the father confirming that the child was denied admission to CAMH because the child was a high flight risk and because the Concurrent Youth Clinic (“CYU”) at CAMH was not a secure treatment facility. CAMH recommended, based on the referral information received, that the child should attend a secure treatment facility. Even if CAMH had accepted the child, the evidence is that the child was refusing to attend CAMH in any event.
[38] There was evidence that as a result of her substance abuse that the child was living an itinerant high-risk lifestyle. The parents received information that the child was being sexually exploited.
[39] On February 24, 2020, the father obtained, with the assistance of counsel from the Ministry of the Attorney General, a restraining order made in the Ontario Court of Justice pursuant to the Prevention of and Remedies for Human Trafficking Act, 2017, S.O. 2017, c.12, Schedule 2, against a male individual, age 42 at the time, restraining that person from having any contact or communication with the child and from attending within 500 metres of the child and the places as specified in the order. The child was age 15 at the time of the order.
[40] Eventually the child was provided accommodation funded by Victim Services at a hotel in London, Ontario. Ms. Upton was able to see the child during June 2020 while the child was staying at the hotel. The child had lost significant weight and Ms. Upton noted a significant deterioration in the child’s physical appearance. The hospital discharge notes for the hospitalization from July 2, 2020 to July 7, 2020 (Ex. #2) indicate that the child’s weight on July 4, 2020 was 52.3 kgs.
[41] The father referred to an occurrence during August 2020 where the child was brought home by police following a discharge from hospital. The child had been missing. When the child was brought home, she threw a drink at the father, hitting him with it in the presence of police.
[42] Most concerning was the father’s description of the child’s hallucinations on that occasion. The child was saying that “the Portuguese Mafia” was after her and that they were going to kill people. For that reason, the child refused to stay at her parents’ residence. The child then was taken to hospital by police and discharged to the street the next day according to the father. It was the father’s belief that the child was “formed” while at the hospital.
[43] The father testified that near the end of July 2020 that the child, on discharge from the hospital, came to their home. The child was carrying a knife, stating that people were coming to the house to kill her and/or her sister. The child was described as holding a butcher knife while watching television. It was the father’s evidence that both parents and the child’s sister that night locked their bedrooms as everyone felt unsafe.
[44] In relation to physical confrontations, the father described being assaulted by the child when she kicked him in the groin.
[45] It was the mother’s evidence that she was punched in the stomach by the child in the hospital in early 2020. After February 2020, it was the mother’s evidence that she was struck by the child on other occasions, including when the child was at the hotel in approximately July 2020. On that occasion, the mother attended the hotel to bring the child some food and toiletries. The mother observed a young male in the room. Marijuana was present. After the male left, the child hit the mother. While the mother was waiting for police after calling them, the child jumped out of the window of the room located on the second storey of the hotel.
[46] The mother testified that she did not “press charges” on this occasion because this would have prevented the child from engaging in any contact with the mother as the child would have been subjected to a non-association order if released while charges were pending.
[47] The mother also testified that she witnessed the child hitting the father and her sister.
[48] I accept the evidence of both parents, corroborated by Ms. Upton, as to the parents’ vigilance and extreme efforts in their advocacy for the child to receive meaningful treatment. These efforts were all to no avail as the child consistently refused to engage in treatment on a voluntary basis.
i. Medical Evidence Regarding the Child’s Mental Disorder
[49] Dr. Abramson’s evidence, and the three discharge summaries filed as exhibits, confirm that the child’s diagnoses include:
a. crystal methamphetamine use disorder;
b. developmental trauma;
c. substance induced psychosis;
d. stimulant use disorder (crystal methamphetamine and cocaine);
e. cannabis use disorder; and
f. attention hyperactivity deficit disorder.
[50] Dr. Abramson opined that the child’s diagnoses are clinically relevant to the child’s decision-making ability. Dr. Abramson first met with the child in April 2019 when the child had an overdose of prescription medication with suicidal intent.
[51] Dr. Abramson expressed particular concern regarding the child’s admission for the period of May 14, 2020 to June 08, 2020. (This hospital stay is summarized in the discharge summary – Ex. #1.)
[52] During that admission, the child’s symptoms of psychosis continued for three weeks. The child was described as disorganized, including picking at the air and observing food in a bizarre manner. The child had difficulty showering and getting dressed. She had multiple delusions. She stated that she could hear her sister’s voice in the shower drain. The child suggested that wearing bright shoes could protect against COVID-19. Although short-lived, the child had delusions that the food was poisoned and that she saw blood on the walls. While the psychosis cleared at the end of this hospital stay, Dr. Abramson testified that it was worrisome that the psychosis took so long to clear. During this admission, the child initiated a review of her detention at the Consent and Capacity Board, but the decision to keep the child in hospital on an involuntary basis was upheld.
[53] Dr. Abramson saw the child in the range of eight times for admissions and, during each admission, Dr. Abramson saw the child on multiple occasions.
[54] The parents in this case are the child’s adoptive parents. The child’s history included that the child’s biological mother had schizophrenia. Dr. Abramson opined that he child was at high-risk of primary psychotic disorder and that the child is at high-risk of developing schizophrenia if she continues to use crystal methamphetamine.
[55] Dr. Abramson considered the child’s weight loss as serious bodily harm.
[56] Dr. Abramson considered that the child was grossly functionally impaired. Dr. Abramson expressed a concern, as indicated earlier, that the child may die in the street, adding that this was a very high-risk in the short term.
[57] In considering the extent of the child’s weight loss, Dr. Abramson endorsed that the child may die from malnutrition.
[58] It was Dr. Abramson’s evidence that the child is at the mercy of substances causing her to be psychotic.
[59] Dr. Abramson testified that the child’s use of substances has progressed to a disorder. In this regard, Dr. Abramson specifically referred to the extensive time spent by the child in acquiring substances and her significant weight loss.
[60] The child has made a number of admissions to Dr. Abramson about the use of various substances. The mother testified that the child admitted to her that she used various substances, including crystal methamphetamine, fentanyl, marijuana, cocaine and valium.
[61] It was Dr. Abramson’s opinion that the child’s level of substance abuse is such that the child has no ability to choose whether or not to use substances.
ii. Conclusion as to Whether the Child has a Mental Disorder
[62] It is the child’s position that the evidence does not establish that the child has a mental disorder as defined in s. 157.
[63] Despite Mrs. Doucett’s very able and forceful argument, I conclude on the balance of probabilities that the child has a substantial disorder of emotional processes, thought or cognition which grossly impair the child’s capacity to make reasoned judgments.
[64] The evidence is that the child is on a virtual treadmill, primarily living in the streets, overdosing on drugs, being taken to hospital, being “formed” for a period of time, then recovering sufficiently to be released only to have the dangerous cycle repeat itself.
[65] The child has no ability to detach herself from the shackles of her substance abuse. She has rejected all reasonable treatment options. Once she is admitted to hospital, then, as confirmed by Dr. Abramson and others, the child remains focused on being released.
[66] The severity of the child’s substance abuse has rendered the child unable to make reasoned judgments or decisions. She is unable to obtain the help she needs. Even though the child has expressed that she will seek help, as confirmed in some of the discharge summaries, those sentiments are quickly forgotten once she leaves hospital. Her life centers around drugs and she is harming herself seriously, as evidenced by her emaciated condition.
[67] On the second day of the hearing, Ms. Hare testified as to the circumstance of the child’s hospital admission after the conclusion of the first day of the hearing. It was not possible, given the short notice, to subpoena the police officer or officers who attended at the scene. Ms. Hare testified as to the circumstances encountered by Constable Jordan Clark, who told Ms. Hare that police had found the child on Dundas Street not breathing and that the police administered “Narcan,” after which the child revived.
[68] Although no objection was made to the evidence that the child was found by the police not breathing and that “Narcan” was administered, that evidence nevertheless remains hearsay and, on this hearing, I am not able to make that finding of fact.
[69] Given the mother’s emotional submissions, it is clear, however, that she believes her daughter almost died that night.
[70] I would describe as overwhelming the admissible evidence that the child has a mental disorder within the meaning of s. 157.
F) SECTION 164(1)(b) - 45 DAY PROVISION AND SERIOUS BODILY HARM
[71] I am satisfied on the evidence that, within 45 days prior to the application for secure treatment, that the child, as a result of her mental disorder, has caused or attempted to cause serious bodily harm to herself.
[72] In McMaster Children’s Hospital v. L.R-U., supra, the child’s mental condition included anorexia nervosa. It was argued on behalf of the child that she lacked the intent to cause herself serious bodily harm – that the child’s intention in restricting food and fluid intake and, in purging, was to lose weight to attain the bodily image as sought by the child and not to cause herself serious bodily harm. In rejecting this argument, Starr J. stated, in part, at paras. 80-81:
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. … [my emphasis]
[73] Constable Keane testified about an incident involving the child on August 14, 2020, which was 11 days prior to the first return of the application for secure treatment.
[74] Constable Keane was dispatched at approximately 11:35 p.m. He was able to locate the child within a few minutes. The child was either unwilling or unable to give her name other than “A.” but Constable Keane was able identify the child when he attended at the hospital.
[75] The child was found leaning on a patio bench, appearing unable to stand. Constable Keane was not sure that the child was able to recognize people as a police officer or paramedics when they eventually arrived.
[76] The child was apprehended pursuant to the Mental Health Act after Constable Keane determined that she was a danger to herself. The child was described as flailing her arms, kicking her legs and trying to get away.
[77] Constable Keane was concerned that the child was going to walk into traffic; he had to grab the child and pull her away as she began moving towards the street.
[78] Constable Keane and the police officer who accompanied him were holding the child by both arms while she was in a face down position towards the ground. The child was trying to get away, moving her head in such a way that it was necessary for the police officers to ensure that the child did not hit her head on the sidewalk.
[79] Constable Keane observed that the child had scrapes and he indicated that it looked like her toenail was torn off. It was bleeding heavily. The child was not wearing shoes.
[80] Constable Keane was unable to determine how the injury to the child’s toe was caused.
[81] When the paramedics arrived, the child was strapped to the stretcher, as she was attempting to leave.
[82] Constable Keane initially tried to engage the child in conversation. Her responses were described as nonsensical.
[83] Constable Keane noted that the child had no smell of alcohol. He described the child’s behaviour as indicative of drugs and/or mental health issues.
[84] I find that the child attempted to cause serious bodily harm to herself by attempting to walk into traffic. Further, the police had to hold the child in a manner so as to prevent her from hitting her head on the cement sidewalk, as she tried to wrestle free from the grasp of the police. I find that any attempt by the child to hit her head on the cement sidewalk is an attempt to cause serious bodily harm. Further, given the child’s substantial history of drug abuse, the diagnosis of stimulant use disorder and the child’s extreme weight loss, I find that drug use, per se, by the child on this occasion can be characterized as causing serious bodily harm or at least an attempt to cause serious bodily harm. This is especially so, given the dire warning from Dr. Abramson as to the child’s risk of dying from a drug overdose.
[85] I am satisfied, on a balance of probabilities on the basis of Constable Keane’s evidence, that the child was under the influence of drugs. This is not the case of a person’s isolated, or rare venture into drug use. The child’s next drug use may be her last.
[86] There is the question of whether the injury to the child’s toe constitutes serious bodily injury.
[87] The child relies on the Children’s Aid Society of Niagara Region v. P. (H.), 2003 CarswellOnt 3688, at para. 34, where it was held that serious is not “trifling or superficial,” and that cuts requiring sutures may be considered serious, whereas cuts not needing surgical attention are probably not serious.
[88] In the present case, while there is no evidence as to the treatment required by the child, I am satisfied that the description of the child’s injury goes beyond “trifling or superficial” and constitutes actual serious bodily harm.
G) SECTION 164(1)(c) - 12 MONTH PERIOD AND SERIOUS BODILY HARM
[89] I find that the relevant subclause is s. 164(1)(c)(i). In accordance with that provision, I find that during the 12 months immediately proceeding the application, on occasions other than the occurrence on August 14, 2020 discussed in relation to s. 164(1)(b), that the child has caused, attempted to cause or by words or conduct has made a substantial threat to cause serious bodily harm to herself.
[90] I do concur with the child’s submission that the evidence in relation to the child physically striking her parents and her sister, including throwing a drink at her father, do not constitute serious bodily harm.
[91] However, the child’s frequent use of drugs, resulting in hospital admissions, is evidence, at the least, of attempts to cause serious bodily harm. In particular, during her admission to hospital from May 14, 2020 to June 8, 2020, the child exhibited symptoms of psychosis, including various hallucinations and delusions, for approximately three weeks. The length of the child’s psychosis during this period of hospitalization, as discussed earlier, was a concern to Dr. Abramson. The significant loss of weight suffered by the child during the past year constitutes serious bodily harm.
[92] The discussion earlier in these reasons regarding s. 164(1)(b), as to the taking of drugs, per se, amounting to causing or attempting to cause serious bodily harm, applies equally to s. 164(1)(c)(i).
H) SECTION 164(1)(d) - WHETHER THE SECURE TREATMENT PROGRAM WOULD BE EFFECTIVE TO PREVENT THE CHILD FROM CAUSING OR ATTEMPTING TO CAUSE SERIOUS BODILY HARM TO HERSELF OR ANOTHER PERSON
[93] The record could not be more clear that the child cannot be treated via admissions to hospital, following a drug overdose, even if the child is kept in hospital on an involuntary basis while her psychosis clears. Dr. Abramson, as did others, testified that, while in hospital, the child remained fixated on being discharged. Following discharge, the child routinely spurned suggestions for treatment.
[94] I accept the cogent evidence of Dr. Hawes in describing the program at the Syl Apps Youth Center. When asked during cross-examination what would happen if the child was uncooperative, Dr. Hawes noted that this is an issue that is seen with youth.
[95] Dr. Hawes testified that the treatment approach for youth, who present as uncooperative, includes focusing on willingness to change and motivational interviewing.
[96] Dr. Hawes emphasized the importance, as part of the treatment, of establishing a daily routine for the child. It was Dr. Hawes’ view that treatment for the child at the Syl Apps Youth Center would be effective.
[97] The child has engaged in a high-risk itinerant lifestyle with little or no routine other than her quest for, and use of, drugs. I find that no effective treatment modality for this child can succeed unless treatment starts with admission to a secure facility. I find that the treatment program at the Syl Apps Youth Center will be effective to prevent the child from causing or attempting to cause further serious bodily harm to herself.
I) SECTION 164(1)(e) - THAT TREATMENT OF THE CHILD’S MENTAL DISORDER IS AVAILABLE AT THE SYL APPS YOUTH CENTER
[98] The discussion above in relation to treatment in s. 164(1)(d) is applicable to s. 164(1)( e).
[99] It was Dr. Hawes’ evidence that, on admission, the child would be assessed in order to formulate a treatment plan.
[100] Dr. Hawes testified that the Syl Apps Youth Center has a high school education component and that there is a high ratio of staff to youth.
[101] It was Dr. Hawes’ evidence that many youths attending at Syl Apps Youth Center have substance abuse issues. The secure nature of the facility means that the youth do not have access to drugs. Treatment includes individual and group counselling, where topics such as changes in behaviour and relapse prevention are addressed. Dr. Hawes emphasized that a priority would be to stabilize mental health issues. In relation to the child’s diagnosis of developmental trauma, this would be investigated and be part of the treatment plan.
[102] Dr. Hawes had received and reviewed a referral package for the child. It was Dr. Hawes’ view that the child would require significant work to address substance abuse issues.
[103] As part of the treatment process, a discharge plan would be developed. During the treatment at Syl Apps Youth Center, as appropriate, youth are able to go out into the community. Dr. Hawes also confirmed that if good progress is being made during treatment, then the administrator can discharge a child prior to the expiry of the time period of secure treatment contained in the order.
[104] I find that the Syl Apps Youth Center has a treatment program appropriate for the child’s mental disorder.
J) SECTION 164(1)(f) - NO LESS RESTRICTIVE METHOD OF PROVIDING TREAMENT APPROPRIATE FOR THE CHILD’S MENTAL DISORDER
[105] As alluded to earlier in these reasons, the parties have explored numerous treatment and counselling options, including CAMH. The child has refused to attend. The Society has explored group home placement for the child and has placed the child in a specialized foster home, all without success due to the child’s refusal to cooperate.
[106] I find on the evidence that there are no less restrictive methods for treatment of the child’s mental disorder.
K) CONCLUSION AS TO SECURE TREATMENT
[107] I accept the child’s submission that secure treatment is a highly intrusive procedure that restricts the child’s liberty.
[108] Nevertheless, secure treatment remains part of the Act and falls under the umbrella of s. 1(1) of the Act, which provides that the paramount purpose of the Act is to promote the best interests, protection and well-being of children.
[109] A. is a child with a mental disorder. She needs help desperately. Her life is in danger if her substance abuse continues. She is unable to help herself and unable to refrain from drug use.
[110] Accordingly, the child shall be placed for secure treatment at the Syl Apps Youth Center for a period of 180 days. I find that the severity of the child’s drug use justifies the maximum period of secure treatment authorized under the Act.
L) POLICE ENFORCEMENT
[111] Section 172 of the Act provides as follows:
Police may take child for secure treatment
172 (1) A peace officer may take a child to a place where there is a secure treatment program,
(a) for emergency admission, at the request of an applicant referred to in subsection 171 (1); or
(b) where an order for the child’s commitment to the secure treatment program has been made under section 164.
[112] At the conclusion of the hearing on September 4, 2020, the child’s whereabouts on release from hospital were unknown. Ms. Upton testified that she would have to file another missing person’s report.
[113] It is most likely that the child will resist going to the Syl Apps Youth Center. Accordingly, it is appropriate to have a specific provision in the order requiring the child to be brought to that facility by police pursuant to s. 172(1)(b).
M) SECTION 166 - COURT TO PROVIDE REASONS
[114] In accordance with the obligation imposed by s. 166, the following is noted:
a. the reasons for the court’s decision have been given;
b. the statement regarding the plan for the child’s care on release from the secure program is not available and will be provided by the administrator of the Syl Apps Youth Center as required by s. 166(2); and
c. the less restrictive alternatives that were considered included voluntary counselling, residential placement at a group home and voluntary attendance at a residential treatment facility; none of those options are viable given the child’s refusal to cooperate.
“Justice Victor Mitrow”
Justice Victor Mitrow
Released: September 16, 2020
COURT FILE NO.: C622/20-01
DATE: September 16, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Children’s Aid Society of London and Middlesex
Applicant
- and -
K.W. and D.W.
Respondents
REASONS FOR JUDGMENT
MITROW J.
Released: September 16, 2020