COURT FILE NO.: FC-22-CP24

DATE: 2022-07-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: L.M.L.B., Applicant AND L.M.B., Child

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Self-represented for the Applicant Suzanne Y. Cote, Counsel for the Child

HEARD: June 29 and July 5, 2022 by video conferencing

WARNING

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

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 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.

REASONS FOR DECISION

M. Smith J

[1] L.M.L.B., the Applicant Mother of the Child, brings an Application seeking an order under s. 164 of the Child, Youth and Family Services Act, S.O. 2017, c. 14, Sched. 1 (“CYFSA”), committing the Child to the secure treatment program at Syl Apps Centre, 475 Iroquois Shore Road, Oakville, Ontario, L6H 1M3 (“Syl Apps”). The Application was issued on April 26, 2022, and amended on May 25, 2022.

[2] The Child, born on [...], 2008, opposes the Application and seeks a dismissal.

[3] For reasons that follow, the Application is granted.

Introductory remarks

[4] This Application was conducted as a bilingual proceeding. The Child has asked that this decision be written in English. If L.M.L.B. wishes a French version of the decision, it shall be translated.

[5] The court heard evidence orally from four witnesses:

a. L.M.L.B., the Mother of the Child.

b. Dr. Hazen Gandy, a child development psychiatrist at the Children’s Hospital of Eastern Ontario (“CHEO”), working on the in-patient psychiatric unit and he is the most responsible physician (“MRP”) for the Child. He has been treating the Child since February 2021.

c. Dr. Caroline Zuijdwijk, a specialist in pediatric endocrinology at CHEO. She has been treating the Child since July 2, 2019.

d. Dr. Giovanni Foti, a psychologist, and the Clinical Manager of the Forensic Mental Health Services stream at Kinark Child and Family Services. Syl Apps is the program that falls under this stream.

[6] On May 18, 2022, Audet J. ordered that Drs. Gandy, Zuijdwijk, and Foti, would testify as participant experts.

[7] In addition to the oral evidence, L.M.L.B. filed an affidavit sworn May 13, 2022, pursuant to the Order of Audet J. dated May 18, 2022.

[8] I found all witnesses to be credible and reliable. They had sound recollections of the events surrounding the Child. Their testimonies were not undermined by the cross-examination. I accept their testimonies, without reservation.

[9] L.M.L.B. is self-represented. She attempted to file business records. Counsel for the Child objected that any of those business records be filed on the basis that the procedural rules were not adhered to. There may have been other objections on the specific documents but those remain unknown. I indicated to L.M.L.B. that she could refer to the documents that she wished to enter as exhibits and for each document, I would hear the objection and rule on its admissibility. L.M.L.B. decided to withdraw her request to file the business records.

[10] The documents were not needed by L.M.L.B. because the testimonies of L.M.L.B., as well as Drs. Gandy, Zuijdwijk, and Foti, were sufficient to meet the onus that secure treatment be ordered.

Legislative framework

[11] The court may make a secure treatment order provided that the criteria set out in s. 164(1) of the CYFSA are satisfied. Section 164(1) provides:

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.

Legal Principles

[12] The parties referred to McMaster Children’s Hospital v. L.R.-U., 2019 ONCJ 496, as the leading case in secure treatment applications. Starr J. provides a helpful review of the key principles that govern these types of applications. At para. 26, Starr J. writes:

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

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

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

4. To fulfill its onus the applicant must:

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

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

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

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

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

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

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

[13] Regarding criteria (b) and (c) of s. 164(1) of the CYFSA, there is an additional legal principle to consider. There must be a nexus between the mental disorder and the act of causing serious bodily harm or attempt to cause it: McMaster, at para. 62.

[14] The court retains the discretion not to make a secure treatment order if it is not in the child’s best interest, even if the criteria are satisfied: McMaster, at para. 9.

The Issues

[15] The issues in this Application are:

a. Whether all six criteria have been satisfied?

b. Whether I should exercise my discretion in refusing to make a secure treatment order?

c. In the affirmative, what length of committal is appropriate?

Analysis

Issue #1 – Whether all six criteria have been satisfied?

[16] L.M.L.B. has the burden to prove, on a balance of probability, based on credible and trustworthy evidence, that all six of the criteria set out in s. 164(1)(a) to (f) are satisfied. For reasons set out below, I find that the Applicant has adduced clear, logical, and convincing evidence. Each criteria have been met.

Criteria (a)

[17] Counsel for the Child argues that to establish the first criteria, there must be expert evidence that demonstrates that the Child has a substantial disorder of emotional processes, thought or cognition, which grossly impairs her capacity to make reasoned judgments. Also, a mere diagnosis does not fulfill this requirement of the definition. It is submitted that Dr. Gandy did not opine that the Child suffered from a mental disorder. Rather, in his testimony, Dr. Gandy only set out a list of diagnosis, he confirmed that the Child is intelligent, and that she specifically understands what she is doing.

[18] Furthermore, OCL counsel submitted that there must be a nexus between the mental disorder and the act of causing serious bodily harm or attempting to cause it. Without a nexus, there is no connection. This was not covered in Dr. Gandy’s testimony.

[19] I disagree.

[20] Dr. Gandy first began caring for the Child in February 2021. He had taken over from a previous physician. The Child’s first admission at CHEO was from January to July 2021, and the last admission was from February 2022 to present. There have been five admissions.

[21] Dr. Gandy has been the MRP for the Child for well over one year. Dr. Gandy was therefore well-positioned to provide opinion evidence because of his firsthand knowledge of the Child’s medical history and condition.

[22] Dr. Gandy testified that the Child suffers from psychiatric disorders, such as Attention Deficit Hyperactivity Disorder, Autism Spectrum Disorder, Opposition Defiant Disorder, Relational Problems, and Anxiety Disorder. The Child also suffers from Type 1 diabetes, and Celiac Disease.

[23] During the first admission in February 2021, the Child was aggressive on a daily basis, she was engaging in head banging behaviour, she was engaging in other types of self-harming behaviours, such as scratching and cutting her arms with pieces of a linoleum flooring, she was intermittently refusing to eat, or she was eating large amounts of food, having a significant impact on her diabetes. The Child was restrained daily, with mechanical restraints. She required one to one supervision and observation.

[24] Shortly before the last admission in February 2022, the Child required surgical intervention to remove magnets that had been ingested. Then, during the last admission in February 2022, the Child was engaging in similar behaviour to what was seen during the first admission, namely head banging, ingesting non-food items, and being aggressive. Within the first three weeks of her arrival at CHEO, the Child managed to swallow batteries from the television remote, as well as some screws. The Child has not left CHEO since her arrival in February 2022.

[25] Dr. Gandy’s testimony regarding the Child goes beyond a mere diagnosis. Dr. Gandy provides a long history of mental disorder throughout all of the Child’s admissions at CHEO. He said that, at present, on the Child’s fifth admission to CHEO, the Child is on 24-hour observation, and she continues to engage in:

a. head banging behaviour on an almost daily basis;

b. continuous aggressive behaviour towards staff;

c. harmful behaviours by using materials to scratch her arms;

d. swallowing non-food items on three occasions, which required monitoring to ensure that it passed through our GI system; and

e. refusing to eat or excessive eating, resulting in serious health risks because of her diabetes.

[26] While Dr. Gandy indicated that the Child is intelligent, the Child has been, on an almost daily basis, engaging in persistent and continuous aggressive behaviour and head banging behaviour. This type of behavior cannot be said to be reasoned judgment and it goes beyond bad judgment. Dr. Gandy’s detailed evidence regarding his observations of the Child’s behaviour clearly establishes that the Child’s ability to make reasoned decisions has been impaired.

[27] The Child has repeatedly demonstrated self-harming behaviour that is clearly linked to her mental disorder. The Child’s current environment at CHEO only reinforces her maladaptive behavioural patterns and reinforces her efforts to engage in self-injurious behaviour and aggressive behaviour towards staff. Since being admitted at the hospital, Dr. Gandy has observed the Child’s behaviour to regress.

[28] On the basis of Dr. Gandy’s testimony, I am satisfied that the Child suffers from a mental disorder as defined at section 157 of the CYFSA.

[29] Criteria (a) has been met.

Criteria (b)

[30] The Child was admitted at CHEO on February 11, 2022. OCL counsel says that, within 45 days of this admission, L.M.L.B. must demonstrate that the Child caused, or attempted to cause, serious bodily harm to herself or another person. Serious bodily harm is more than a minor assault or nuisance. If an incident requires medical treatment, it will more likely be considered serious.

[31] Counsel for the Child suggests that I should draw the inference that no serious bodily harm occurred, or was intended by the Child, in regard to the alleged incidents outlined in L.M.L.B.’s affidavits, at paragraph 11 and 12, given the lack of evidence.

[32] L.M.L.B. testified that during the month of January 2022, she brought the Child to emergency at CHEO because she was engaging in self-harm behaviour, such as head banging, causing a hole in the wall, and overdosing on medication, specifically that she took four times the amount of recommended insulin. Moreover, the Child was swallowing items, such as batteries, magnets, staples, and the metal parts of her Covid mask. Medical intervention was required to remove items from her esophagus. L.M.L.B. did not feel that the Child was safe at home, and she was unable to care for her, despite the fact that the Child had 24-hour care through a third-party agency.

[33] Dr. Gandy testified that the Child repeatedly returned to the emergency department at CHEO in the month prior to her last admission in February 2022. The Child had swallowed items which required medical intervention (on two occasions) to remove them, as well as an overdosage of insulin.

[34] I have no hesitation in accepting the evidence given by L.M.L.B. or Dr. Gandy regarding the Child’s conduct during the period of time in question. The Child has clearly been engaging in repeated self-harming behaviour, which constitutes, in my view, attempts to inflict bodily harm on herself. I am satisfied that there is sufficient evidence to demonstrate that the Child’s acts were intending to harm.

[35] Criteria (b) has been met.

Criteria (c)

[36] Counsel for the Child argues that there is no credible or reliable evidence that serious bodily harm has occurred, within the 12 months immediately preceding the application. Although L.M.L.B. and the physicians that have testified referred to certain incidents, no specifics have been provided but more importantly, since the admission at CHEO, the Child has not required any medical interventions. As such, it is submitted that criteria (c) has not been met.

[37] I disagree.

[38] The evidence of L.M.L.B., Dr. Gandy, and Dr. Zuijdwijk, establishes the following:

a. Dr. Gandy testified that during the first month of being in the care of Robert Smart Centre (July-August 2021), the Child presented back to CHEO’s emergency department 20 times for presentations, such as suicidal ideation, self-injurious behaviour, attempts to run away from Robert Smart, and diabetes related issues.

b. Between July and September 2021, the Child refused to take her insulin or eat on numerous occasions, resulting in frequent trips to the CHEO emergency department. The Child was at times hypoglycemic. Dr. Zuijdwijk reviewed her notes during her testimony and confirmed that during the period of August 24 to September 6, 2021, the Child’s blood sugar levels were high and variable, which was not optimal.

c. Dr. Gandy testified that, in August 2021, the Child jumped from the second floor at Robert Smart’s, which result in spraining her ankle. Shortly after this incident, L.M.L.B. attended at the hospital and confirmed what had transpired.

d. Dr. Zuijdwijk testified, as verified in her notes, that there were two insulin overdoses, namely in October 2021 and in January 2022.

e. While staying at home under a 24-hour supervision with L.M.L.B., the Child swallowed non-food items, such as batteries, magnets, staples, metal pieces from her mask, all resulting in emergency trips to CHEO. In February 2022, the Child underwent two endoscopies within one week.

[39] I am satisfied that within the 12 months preceding the Application, the foregoing incidents clearly shows that the Child has caused, or attempted to cause, serious bodily harm to herself. The evidence given regarding these incidents were specific and given by witnesses that had first-hand knowledge of same.

[40] Criteria (c) has been met.

Criteria (d)

[41] Counsel for the Child states that criteria (d) require more than simply establishing that the Child would be less likely to cause serious bodily harm to someone if she is placed at Syl Apps. To meet criteria (d), a medical professional must provide an opinion that the proposed secure treatment would be effective for the Child.

[42] It is argued that, while Dr. Foti described the secure treatment program, he did not specifically say that the treatment would be effective from preventing the Child from harming herself. Accordingly, it is submitted that criteria (d) has not been met.

[43] I disagree.

[44] Dr. Foti opined that given the Child’s presentation in the group home setting where she was before (Robert Smart), she was continuing to engage in self-harming behaviour. In her current setting, at CHEO, every one is concerned for the Child because there is no proactive treatment occurring at the hospital and there is a fear of institutionalization. The secure nature of the Syl Apps setting is necessary because of her ongoing behaviour to self-injure. At Syl Apps, the Child would benefit from all their services, such as a sensory room, yoga, pet therapy, religion, school, and volunteer. Without receiving the appropriate therapy, which Syl Apps can offer, the Child risks remaining stuck in a self-harming cycle that will be difficult to break.

[45] Dr. Gandy testified that they engaged in discussions with Syl Apps, which he says is an organization that has the expertise and skills to manage the Child’s disruptive, aggressive, and self-harm behaviours. Dr. Gandy is of the opinion that Syl Apps is well-suited to provide the necessary therapy that is needed for the Child.

[46] Dr. Gandy opined that for the Child to stabilize in her behaviour, she needs an opportunity to work in a longer-term process, with a team that can provide the containment necessary to manage her aggressive behaviours. Moreover, the Child needs a team that can provide therapeutic and developmental opportunities to assist her to engage in more pro-social activities, such as school or participate in other group activities.

[47] At CHEO, there is no incentive for the Child to change or improve her behaviour, because her behaviour is geared towards ensuring that the staff medically intervenes. Dr. Gandy testified that Syl Apps can provide the necessary therapeutic and developmental activities that will assist the Child in shifting away from her focus of self-harm to more adaptive pro-social goals.

[48] Drs. Gandy and Foti understand the Child’s needs, as well the treatment opportunities available at Syl Apps. In my view, the expert evidence of these medical professionals clearly establishes that the only available and effective option to prevent the Child from causing or attempting to cause serious bodily harm to herself is the secure treatment program at Syl Apps.

[49] Criteria (d) has been met.

Criteria (e)

[50] For criteria (e), it must be demonstrated that the secure treatment is available and that it is appropriate for the child. Counsel for the Child submits that Syl Apps is understaffed and underfunded. Furthermore, there was no evidence presented to the court that there was a likelihood of success in terms of the proposed treatment for the Child. Therefore, part of the test in criteria (e) has not been fulfilled.

[51] I disagree.

[52] Dr. Foti is very knowledgeable and familiar with the treatment programs offered by Syl Apps. He explained that following receipt of the application to place the Child at Syl Apps, they conducted interviews with the service providers and the Child’s guardian, in order to get more information and details. They made the decision that their facility would be appropriate to meet the Child’s needs.

[53] Dr. Foti noted that the Child’s suicidal and self-harming behaviour is quite intense and severe, but he stated that these types of behaviours are regularly seen and dealt with at Syl Apps.

[54] Dr. Foti testified that a lot of work has been put into place around the Child’s complex intersection of dietary and medical needs, along with her mental health and developmental needs. While Dr. Foti acknowledged that the Child’s complex medical dietary needs is not their speciality, they have taken steps to ensure that they will be able to offer the necessary services for the Child.

[55] The steps taken by Dr. Foti, and his team, are significant. They include:

a. It was determined that the Child will initially have her own unit at the beginning of the program, for at least a couple of weeks.

b. Dr. Foti said that the Child’s diabetes management is very specific. The Child’s meals have been sorted out. Her meals will be gluten free. They will have to be prepared by a third-party supplier and it will be ensured that there is no cross-contamination with other meals within Syl Apps. The carbs and fibre intake will be counted. The Child will be monitored on what she is eating. A tracking and measuring system will be implemented.

c. Syl Apps has a nurse practitioner working during the day, and they have physicians and psychiatrists on call for support. Dr. Foti indicated that the regular nursing staffs are available from 7:00 a.m. until 11:00 p.m. In addition, they have identified two nursing staffing agencies to support the Child’s diabetic needs. They have used these agencies in the past as back up for their current nurses. They have already established a relationship with these agencies, and it has worked well in the past.

d. The Child’s blood sugar needs to be checked, at least five times per day. She needs to receive daily dosages of insulin. Dr. Foti is aware that the Child often refuses to take the insulin. He indicated that they have had a lot of conversations with the staff at CHEO regarding potential complications and they are connected with CHEO’s endocrinology clinic. CHEO has indicated to Dr. Foti that they will provide support and they shall remain involved in the Child’s care.

e. Dr. Foti said that they are not authorized to restrain the Child to give her medication. They have plans to avoid getting to this state but if more intervention is required, Syl Apps is connected to their local hospital, Oakville Trafalgar Memorial Hospital (“OTMH”).

f. Syl Apps has started to establish a relationship with both CHEO and OTMH, sharing information about the Child, in the event that further hospital intervention is required.

g. They have been doing presentations in the building regarding the Child’s medical needs. A lot of training and education has been occurring with the nurses, social workers, psychotherapists, cooking staff, psychologists, and psychiatrists.

h. The nurse practitioner is on top of the Child’s diabetes needs. She has been working hard in connecting with all service providers and medical staff around the issue of the Child’s diabetes management. She has obtained all the needed information from CHEO, and she has been the person doing the training at Syl Apps.

i. Dr. Foti explained that there have been staffing vacancies that they are working to replace. There are 11-12 youths in the facility, while they would be able to have 15 youths.

j. Dr. Foti explained that the Child has been approved for funding, and that it is simply missing an approval that Syl Apps is able to access this approved funding. Dr. Foti is very confident that the funding will be secured and all indications are showing that it will be approved. As long as an order placing the Child is made after July 11, 2022, Syl Apps will have sufficient resources in place to ensure that the Child’s needs are met.

[56] Dr. Foti testified that the social and youth workers at Syl Apps have started to virtually connect with the Child. The Child has been non-verbal but the connection has already started. If the Child is transferred to Syl Apps, they will need to conduct their own assessment. In Dr. Foti’s experience, often times, there is a presentation shift once they arrive at Syl Apps, because their setting is very different than the current hospital setting. Within the first few days of admission, the Child will meet with the psychiatrist, the nurse practitioner, and the social worker. The goal of these meetings and assessment will be to determine which treatment is best suited for the Child.

[57] Dr. Foti believes that the Child will likely best respond to a structured therapy support, which includes two components. The first is an individual component to help the Child build insight, motivation, and skills. The second is an external behavioral component to address the reinforcement of relationships, and not the self-harming type of behaviours.

[58] All those involved with the Child are concerned with her current hospital setting. The Child needs proactive treatment and because of the nature of the hospital setting, she is not getting what she requires. Dr. Foti opined that given the Child’s presentation, the secure nature of an institution like Syl Apps and its treatment programs is necessary and needed for the Child.

[59] I am very impressed with the amount and quality of the work that Dr. Foti and his team have put together in preparation for an order of secure treatment for the Child. I find that Syl Apps has all necessary resources to receive the Child, meet all the Child’s needs, and implement the appropriate treatment for the Child.

[60] I am satisfied that Syl Apps is appropriate for the Child. Dr. Foti clearly understands the Child’s needs and I find that he has identified suitable and effective treatment programs for her. The exact treatment and plan that will be tailored to the Child’s individual and specific needs, will need to be fully assessed upon the Child’s arrival at Syl Apps, to ensure the likelihood of success.

[61] Criteria (e) has been met.

Criteria (f)

[62] Counsel for the Child submits that the evidence is unclear regarding the available options for the Child. It is argued that, although some of the options may not be available and closed, there are other options, such as placements through the Children’s Aid Society, that have not been properly flushed out. Criteria (f) has not been satisfied.

[63] I disagree.

[64] Dr. Gandy opined that CHEO cannot offer the Child with much in the way of therapeutic programming. CHEO’s ability of providing meaningful therapeutic intervention is extremely limited.

[65] Concurrent with the Child’s first admission, CHEO was in communication with Robert Smart, a local community agency that provides care to children with highly disruptive behaviours. Dr. Gandy stated that they were having frequent meetings with Robert Smart. The Child was transferred in Robert Smart’s care in July 2021. However, as noted above, the Child presented to CHEO’s emergency department several times during the first month of being in their care.

[66] In February 2022, the Child was transferred back to the in-patient psychiatry unit at CHEO. Dr. Gandy opined that it was not in the Child’s best interest to remain in the hospital because she was not making any progress at CHEO and that she would not do well in continuing to remain at the hospital. The Child was engaging in behaviours that were meant to stay in the hospital and those behaviours were of the ongoing self-injurious type of behaviours. Dr. Gandy said that they began to search for other agencies or organizations with expertise in managing highly disruptive behaviours. Dr. Gandy confirmed that Robert Smart was not prepared to accept the Child in their program.

[67] Dr. Gandy said that they approached Coordinated Access to look for other community agencies that could meet the Child’s needs. The only agency that was prepared to provide the necessary services was Syl Apps.

[68] In my view, there is no less restrictive method of providing treatment appropriate to the Child’s mental disorder. I am satisfied that Syl Apps is the only option for the Child and that all suitable options have been explored.

[69] Criteria (f) has been met.

Issue #2 - Whether I should exercise my discretion in refusing to make a secure treatment order?

[70] Counsel for the Child submits that even if I find that the six criteria have been met, an order for secured treatment to Syl Apps should not be made because the proposed plan has too many unknowns and is risky for the Child, such as:

a. It is clear from the evidence that the Child has very complicated medical needs resulting from diabetes. Syl Apps does not have the system in place or the expertise to care for her. The Child requires 24-hour nursing care, and it is not available, as at the time of this hearing. The funding for Syl Apps has not been fully approved and an agency has not yet been hired or been properly trained to ensure that the Child will be safe.

b. The Child’s diabetes must be managed by professionals. One of Syl Apps’ proposed nursing agencies is Bayshore, who previously administered the Child’s insulin in the city of Ottawa. Bayshore had not properly administered the insulin, resulting in the Child’s blood sugar to be high and variable.

c. Dr. Zuijdwijk will be the ongoing supervising physician but lives five hours away from Syl Apps. This will have to be managed remotely.

d. If the Child refuses to take insulin, she will need to be sent to the OTMH to assist with the administration. This hospital has no history with the Child.

[71] I disagree.

[72] The Child has been at CHEO since February 11, 2022, and other than Syl Apps, there are no other discharge plans for the Child. The in-patient unit at CHEO is meant to be short stays related to crisis, between seven to ten days. Because of the type of setting being offered by CHEO, there are no proactive therapeutic treatment plans being undertaken at CHEO. Dr. Gandy opined that it is not in the Child’s best interest to remain at CHEO.

[73] I would not characterize Syl Apps as risky for the Child. To the contrary, Syl Apps has taken all necessary steps to ensure that the Child’s treatment be individualized to suit her special health and developmental needs. Furthermore, as detailed in Dr. Foti’s testimony, because of the type of setting at Syl Apps, the Child will have more freedoms than what is being offered at the hospital. Not only will the Child receive the proactive therapy that she needs, but she will have the opportunity to socialize with others and walk around the indoor and outdoor of the building. It is to be noted that the Child has not been outside of the in-patient unit at CHEO, since her admission in February 2022.

[74] Syl Apps will be supported by CHEO. Although the support will be offered remotely, I do not view this as being problematic. Dr. Zuijdwijk testified that CHEO has been having meetings with Syl Apps and she believes that they have adequate resources to manage the Child’s diabetes. Furthermore, if an intervention is necessary, Syl Apps has made certain that OTMH would be able to assist. As indicated by Dr. Foti, they have already connected with OTMH regarding the Child.

[75] I am persuaded by the evidence that the secure treatment at Syl Apps is in the Child’s best interest. It is the only viable option available to the Child, and I find that there are no other less restrictive alternatives to treat the Child’s serious mental health disorders. Syl Apps remains the only option that will provide the Child with some hope of successfully treating her mental health disorders.

Issue #3 – What length of committal is appropriate?

[76] The evidence clearly establishes that the Child suffers from serious mental health disorders. Throughout the years, there have been multiple admissions to CHEO’s in-patient psychiatry unit. With the most recent admission at CHEO, the Child’s condition remains quite regressed.

[77] As noted earlier, Dr. Gandy testified that to stabilize the Child’s behaviours, a long-term therapeutic process is needed. The Child’s aggressive behaviours need to be contained. The Child needs to be given the opportunity to engage in pro-social activities.

[78] Upon the admission at Syl Apps, the Child will be assessed to determine the exact treatment plan to be implemented. While the exact number of recommended committal days was not explored at the hearing, it is clear from the evidence, that sufficient time is required to allow for the development and implementation of a therapeutic treatment plan, geared towards stabilizing the Child’s behaviours and receive meaningful therapy.

[79] L.M.L.B. is seeking a period of commitment of 90 days. In her affidavit evidence, L.M.L.B. deposes that Syl Apps can offer treatment to the Child in a 90-day period, with extensions. This evidence was not challenged.

[80] Considering the evidence and the complexities of the Child’s mental health situation and the planning of treatment, I find that a committal of no less than 90 days is appropriate and necessary. Any shorter period of time would be insufficient for Syl Apps to firm up the Child’s plan and implement same.

CONCLUSION

[81] The Application is granted.

[82] The Child shall be committed to the secure treatment program at Syl Apps for a period of 90 days.

M. Smith J

Released: July 18, 2022

COURT FILE NO.: FC-22-CP24 DATE: 2022-07-18

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

L.M.L.B. Applicant

– and –

L.M.B. Respondent (Child)

REASONS FOR DECISION

M. Smith J

Released: July 18, 2022