Court File and Parties

COURT FILE NO.: FC320/24 DATE: April 24, 2024 SUPERIOR COURT OF JUSTICE – ONTARIO 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

RE: Children’s Aid Society of London & Middlesex, Applicant AND: A.R.P., Respondent

BEFORE: HENDERSON J.

COUNSEL: Sandra Welch for the Applicant Marnelle Dragila, Office of the Children’s Lawyer, for the Respondent, child

HEARD: April 10, 11 and 12, 2024

Endorsement

[1] The Children’s Aid Society of London & Middlesex (the “Society”) has brought this application pursuant to s. 161 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”), to admit the child, A.R.P., to the secure treatment program at the Robert Smart Centre for a period of 180 days.

[2] The child opposes the application and asks that it be dismissed.

[3] The application was commenced on March 28, 2024 and heard on an urgent basis. There were two immediate reasons for urgency. First, the Society did not want the Court to lose jurisdiction under s. 161(1)1. In that section, the Society may bring an application if the child is under the age of 16. The child, A.R.P., turns 16 later this week and the Society pressed that it be heard and decided before the child’s birthday.

[4] The second reason for urgency is that a bed has been made available at the Robert Smart Centre which is being held until next week.

[5] By way of preliminary matters, the Robert Smart Centre filed a consent to receiving the child into the program. The child filed a consent not to attend the hearing.

[6] The matter was heard virtually over April 10, 11 and 12, 2024. The Court heard evidence of two psychiatrists from London Health Sciences Centre who treated the child recently. In addition, two workers from the child’s group testified about the child’s behaviour over the past few months. A supervisor from the Robert Smart Centre testified about the nature of the facility and programming at the Centre. Finally, the child’s protection worker testified about the child and her experience working with her over the past ten years.

[7] For the reasons that follow, I order that A.R.P. be committed to the secure treatment program at the Robert Smart Centre for a period of 180 days.

General Legal Framework

[8] Section 161(1) of the CYFSA grants the Court the power to order a child to be committed to a secure treatment program where the Court is satisfied that all six criteria set out in s. 164(1) have been met.

[9] Section 165 states that the term of committal shall not exceed 180 days.

[10] Section 166 requires the Court, when it makes an order pursuant to s. 164, to give:

(a) reasons for its decision; (b) a statement of the plan, if any, for the child’s care on release from the secure treatment program; and (c) a statement of the less restrictive alternatives considered by the court, and the reasons for rejecting them.

[11] In her thoughtful decision, McMaster Children’s Hospital v. L.R-U., 2019 ONCJ 496, after a review of the prevailing jurisprudence, Starr J. summarized the key principles that guide the Court when determining the merits of this type of application. These principles are set out at para. 26:

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 six 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.

Analysis

[12] On the balance of probabilities, has the Society satisfied the six criteria required by s. 164?

[13] Before I proceed with the analysis, it is important to understand the context of this application. The child was apprehended shortly after her birth along with her five siblings. She never returned to the care of her parents and was subsequently made a Crown Ward. She has been in extended society care ever since.

[14] Her worker has been the child’s guardian since she was five years old. At some point early in her childhood, she was placed in a long-term placement with a foster family along with two of her siblings. In 2019, that family moved to the Prescott area. By 2021, that placement broke down due to the child’s escalating behaviours which included suicidal ideation and aggression, defiance and running. Since then, the child has been in at least six group homes with brief stays with her foster family, her mother and an uncle. She is currently in a group home in London where she has been since last September.

[15] The child is First Nations with family connections in both Oneida First Nation and Chippewas of Walpole Island First Nation.

[16] I will now consider the six criteria under s. 164.

1. Mental Disorder

[17] In s. 157 of the CYFSA, “mental disorder” is defined as “a substantial disorder of emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgments”.

[18] Dr. Sumiya is a psychiatrist at LHSC who tended to the child’s care during a two-week admission in November 2023. He diagnosed the child with the following conditions:

• Oppositional Defiance Disorder
• Post-Traumatic Stress Disorder
• Attention Deficit Hyperactivity Disorder
• Fetal Alcohol Syndrome Disorder (“FASD”)
• Polysubstance Use Disorder

[19] Dr. Abramson, also a psychiatrist, tended to the child during her admission in February 2024. She testified that the child had a primary diagnosis of FASD with a secondary diagnosis of intellectual disability and borderline personality disorder. The child had been admitted involuntarily under the Mental Health Act, R.S.O. 1990, c. M.7, for suicidal ideation.

[20] In cross-examination, Dr. Abramson stated that FASD is incurable and the symptoms arise from injury to the brain. The symptoms include impulsivity, cognition deficiency, inability to self-regulate with, as a result, poor decision-making and high-risk behaviours. In the context of discussing the motivation of a child with FASD in obtaining treatment, Dr. Abramson said such a child lives much in the moment. This makes treatment very challenging because, for example, in the morning the child could say they want treatment but by the afternoon have no interest.

[21] Counsel for the child concedes that the child suffers from a mental disorder and that her behaviours arise from that mental disorder.

[22] I am satisfied that the first criteria has been met.

2. 45 Days

[23] Pursuant to s. 164(1)(b), the Society must establish that the child, as a result of the mental disorder, within 45 days immediately preceding the application caused or attempted to cause serious bodily harm to themself or someone else.

[24] The jurisprudence is consistent in finding the 45-day period must be strictly complied with. Similarly, on the wording of the statute, the harm must be serious, that is, not trifling or superficial.

[25] The application was commenced March 28, 2024. Counting back from that date, the 45th day is February 13, 2024.

[26] The Society relies on four incidents which it argues meet this criteria.

[27] The first two events took place in March 2024. A worker from the child’s group home received a text from the child that she was in psychosis and hearing voices, and that she intended to jump from the Ivey Park Bridge. The witness called 911 and when no response was received, went with other staff in search of the child. They eventually caught up to her at the downtown library. They managed to get the child into the car which was parked across the street. The witness believed the child was under the influence of drugs as she was jumpy, with dilated pupils. Before they could secure the child, she ran from the car and into the street where she was almost hit by a car that had to brake suddenly. The staff lost sight of her and returned to the group home. The child arrived at the group home later that night in a cab. She declined to go to the hospital.

[28] The third incident occurred a couple of days later. The witness and another staff member entered the child’s room. They saw the child snort a white substance up her nose. The witness told the child that she had to let staff know when she was using drugs, in case she overdosed. The child responded that “you can’t OD on meth.” The witness tried to correct her. A search of the room revealed a bag of a rock-like substance which the witness suspected could have been crack cocaine. The police confiscated it on their arrival.

[29] The final incident occurred February 18, 2024, when the child was involuntarily admitted for suicidal ideation. By the time she spoke to the child, Dr. Abramson wrote in her discharge note that the child was pleasant and cooperative, denied being suicidal and that she wanted to be discharged back to the group home. In testimony, Dr. Abramson added that in-patient treatment was not appropriate for this child. The hospital could only contain and this child required more services than the hospital could provide.

[30] The child’s counsel challenged that these various incidents did not meet the criteria. Intention to cause serious bodily harm is required. I agree to the extent that the child by her action intended to cause, at least in three of these examples, serious bodily harm to themself. However, intent can be nuanced, as described by Starr J. in McMaster Children’s Hospital, supra, at para. 86:

[86] Turning to the question of intent to cause serious bodily harm. Evidence of specific intent is not the standard to apply in every case. There may be some cases (and this is one of them) where evidence of general intent will be sufficient. To put it more plainly, in some cases it will be necessary to demonstrate that the child intended the precise harm or result; in others, evidence that the child intended the act that caused the harm or result, will be enough.

[31] With respect to the cited incidents, I do not find that fleeing the car into traffic meets the criteria. There is no doubt the child intended to flee the car, but running into traffic was poor judgment and not an intention to cause herself serious bodily harm.

[32] I would find any one of the other three incidents meet the criteria.

[33] With respect to the bridge incident, the child’s counsel argued that without more information about what bridge (the group home worker did not know where it was) or how high the bridge was, the Court cannot assess the child’s intent to cause serious bodily harm. However, the evidence does disclose that, for months, the child frequently complained about being in psychosis, having hallucinations and hearing voices. The child finds this condition very disturbing. There was evidence that she texted the group home worker that she was hearing voices and that she intended to jump from the Ivey Park Bridge. There is also evidence that is admitted, details of which follow below, that the child had attempted suicide in November 2023 when she took an overdose of Tylenol. As noted already, she was involuntarily admitted in February 2024 for suicidal ideation. On the basis of this evidence, I find the child intended at least to attempt serious bodily harm to herself.

[34] As to the details of the bridge, I would find that it is a notorious fact that the Thames River runs through London, that many bridges cross the river, that one of those bridges is Ivey Park Bridge near the Forks, and that jumping off it would cause serious bodily harm if not certain death.

[35] At least one decision was held that drug use is not sufficient to establish an intent to cause serious bodily harm. Quinn J. in Children’s Aid Society of Halton Region v. H.P., [2003] OJ No. 3815 (Ont. S.C.J.), so found. However, in that case, the specific drugs were not identified.

[36] In the incident where the child was seen snorting a white substance up her nose, the child admitted that it was “meth”, which is short for methamphetamine. On that basis, in my view, it is not necessary to have a lab analysis of the substance. Again, context is important. The evidence from the group home and the child’s worker was that the child is quite open about her drug use. Her worker testified that when the child came to London in 2022, she was only smoking marijuana. Since being in London, the child has admitted to her that she has used, in addition to marijuana, cocaine, crystal meth, molly, Ecstasy, fentanyl-laced meth and codeine. These are seriously addictive drugs which impact the child’s mental health. Dr. Sumiya testified that the child was admitted to hospital last November with substance induced psychosis.

[37] When the group home staff caught up with the child at the library, she was observed to exhibit signs of being under the influence of drugs.

[38] Child’s counsel asked me to find that the child lacked the requisite intention because she did not believe she could overdose on meth. I find it sufficient that she intended to take the drug. That she did not see the harm is irrelevant. It is well known that, generally, such drugs are dangerous and, by experience, dangerous specifically to this child.

[39] I also find the child’s drug use indirectly places her in jeopardy of serious bodily harm. In December, she was seriously assaulted by a drug dealer to whom she owed money. She sustained a fractured jaw and a small brain bleed requiring hospitalization. Both the group home worker and the child’s worker testified that the child has not been leaving the group home in recent weeks because she owes the drug dealer money. He has threatened her and he lives in the neighbourhood.

[40] The final incident occurred February 18, 2024, within the 45-day period when the child was involuntarily admitted to hospital because of suicidal ideation. She has said she wanted to die. Dr. Abramson discharged the child later that day once she had stabilized. The fact that she was released the same day does not detract from the seriousness of the event. As Dr. Abramson stated, the function of the hospital is containment. Once the child stabilized, she was discharged.

[41] For these reasons, I find the second criteria has been met.

3. 12 Months

[42] Section 146(1)(c) requires the Society to demonstrate that the child, within the 12 months prior to the application, caused, attempted to cause, or by words or conduct made a substantial threat to cause serious bodily harm to themself or another person, or caused or attempted to cause a person’s death. This occasion must be different from the one relied upon for the 45-day criteria.

[43] The Society adduced evidence regarding two events. The first occurred in November 2023, when the child was admitted to hospital for taking an overdose of Tylenol. She was in hospital for about two weeks, initially a week on a medical floor to stabilize damage to her liver, and the second week in the psychiatric intensive care unit.

[44] The second event occurred in January 2024. On January 6, 2024, the child called a worker at the group home and said she was going to harm herself. The worker called 911 and the police located the child and returned her to the group home. The child appeared to be under the influence of drugs. It was decided to withhold the child’s access to Wi-Fi. She became upset and threatened staff that they would regret their decision. The child went to her bedroom and acted out violently. She then went into the bathroom with a lighter. Staff smelt smoke and entered the bathroom. They removed the child, whom they searched, and discovered a pocketknife. In the bathroom, the child had lit the shower curtain, causing extensive damage to the tub, floor and ceiling.

[45] I would find either of these events meet criteria 3. The child’s counsel concedes the Tylenol overdose would meet the criteria.

4. Criteria 4, 5, 6 – the Treatment Plan

[46] These criteria are all related and as the evidence overlaps, I will deal with them together. The criteria that the Society had to satisfy are:

(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.

[47] The Society relied on the evidence of Dr. Abramson who described an ideal treatment plan for a child with these diagnoses, featuring:

• Optimizing appropriate medications
• Access to a psychiatrist
• Basic safety from harm
• Basic needs met, like food and shelter
• Refraining from the use of non-prescription drugs
• Establishing a healthy adult/child relationship with a doctor or therapist

[48] The Society invites me to marry these features with the evidence from a supervisor at Robert Smart as to what their facility can offer. At Robert Smart:

• The child would have access to an in-house psychiatrist supported by clinicians and therapists
• The facility is secure with locks on every door and close supervision
• Food, shelter and programming, including schooling, is provided
• The child will have no access to street drugs or fire setting ability
• There is a focus on establishing healthy adult/child relationship in order to develop the child’s investment in her treatment plan

[49] In response, the child’s counsel argues this evidence is woefully inadequate and does not meet the threshold expected in the legislation or established in the jurisprudence. Because the child’s liberty is at stake, the threshold is high and it is incumbent on the Society to present sufficient evidence to meet the criteria. She submits that it has not.

[50] The child’s counsel points out that there has been no communication between Robert Smart and the child’s psychiatrists regarding the child’s mental health history. There was no evidence about the specific treatment plan for this specific child that Robert Smart will provide.

[51] Finally, the child’s counsel submits that the child is currently in a high supervision facility and there is no indication that she cannot stay there. Once she turns 16 this week, she will qualify for outpatient psychiatric care and for the PEPP program (a psychosis prevention program) through the hospital.

[52] At the outset of my analysis, I agree with the OCL’s characterization of the law. The criteria are specific and the threshold is high as it involves the deprivation of a child’s liberty. That said, while the Society’s evidence could have been more robust, particularly in respect of criteria 4 and 5, I am satisfied on the evidence that these criteria have been satisfied for the following reasons.

[53] I will start by observing that the concept of liberty is not in this case to be considered in the abstract. The American Revolutionary cry of “Give me liberty or give me death” is not a helpful measure. Rather, the child’s liberty in this case has to be determined in the context of this child’s specific needs.

[54] We know from the evidence that this child has complex mental health issues. Many of these arise from her brain injury as a result of her FASD. She is impulsive and dysregulated with cognition deficits. There is no cure and any treatment is symptomatic. She has a history of suicidal ideation. She has attempted suicide at least twice. She was hospitalized in February. She hears voices during psychotic episodes. She has had the same worker for over ten years. According to the worker, they have a good, respectful relationship. The child trusts her and is open with her.

[55] The worker described the child as physically petite. She has had weight issues in the past. Last year, she weighed 88 lbs. before she lost 8 lbs. She has gained most of that back and now weighs 87 lbs. Both the worker and the group home staff have to remind her to eat. She is lax in her personal hygiene and has to be reminded to shower and brush her teeth. She does not go to school and has not for some time.

[56] The child’s worker describes how she craves peer acceptance. She is easily influenced and is a follower. The worker worries that this makes her vulnerable to high-risk behaviours. She believes the child’s FASD results in social skills that are younger than her 15 years and she is far less street savvy than her peers. With the vulnerability, the impulsivity and lack of self-regulation, the worker assessed the child at a level of very high risk of dangerous behaviour.

[57] It is clear on the evidence that the child is currently not being treated for any of her mental health issues. She apparently has been prescribed two medications but there is no evidence what the medications were for. In any event, the child takes them inconsistently. Beyond this, the child is not seeing a psychiatrist or therapist regarding any of her complex needs.

[58] The child is in what her counsel described as a high supervision facility. While there may be some accountability, the level of supervision has not stopped the child from attempting suicide with an overdose of Tylenol, threatening to jump off a bridge, going AWOL an average of five times per month for days on end, returning under the influence of a cocktail of serious drugs, setting fires or incurring numerous criminal charges that include uttering threats and damage to property.

[59] Over the past few months in particular, the child has lurched from one crisis to another. On her current course, it is only a matter of time before she causes herself serious bodily harm or death, intentionally or unintentionally, or she is the victim of serious bodily harm or death caused by someone else. As mentioned, she has already received serious injuries from a drug dealer. She now fears leaving the group home because she owes the drug dealer money and he has threatened her. Her worker also worries that she could be a victim of human trafficking.

[60] The Society has pursued many less restrictive options, both Indigenous and non-Indigenous, including Youth Lodge, Parkhill, Robert Smart non-secure, Atlosah and N’Amerind. The child either does not qualify for these programs or refuses to go. She says she will not go anywhere outside of London or where she cannot take her cellphone. Earlier this year, she was assigned an outreach worker through CMHA to address her drug issues. The child attended the first meeting with her worker but there has been no follow through.

[61] The OCL submits that the child on turning 16 will qualify for outpatient psychiatric services and for the PEPP program at the hospital. Beyond this, there was no evidence regarding waitlists or what specific services would be provided. On the evidence, I share the child’s worker’s concern about follow through. The child’s track record is not envious. The worker says taking the child to appointments is a challenge. The child does not function in the morning and her anxiety kicks in when going to appointments. The worker has had a hard time getting the child to the dentist even with a mouthful of cavities.

[62] I am therefore of the view that there is no plan of treatment currently in place that addresses the child’s needs, and no prospect in the immediate future of a less intrusive treatment plan.

[63] Having concluded there is no plan currently in place, the only plan to consider is the proposed plan by the Society. Secure treatment is an extraordinary measure and not to be ordered without serious reasons. I believe that in view of the needs of this child, it is an appropriate treatment plan for the child.

[64] It is not realistic to expect, at this type of hearing, a fully detailed plan of treatment for the child. The Court heard evidence that a full assessment of the child is to be conducted within 30 days and, in discussion with the child, a plan is to be developed. At this stage, the Court should be satisfied that it is aware of the child’s needs arising from her mental disorder and that the proposed facility has the services to address those needs. I am satisfied on the evidence that at Robert Smart, the child will be safe and secure, and that she will receive appropriate psychiatric care. The facility has experience with children with FASD and will bring in addiction counsellors.

[65] Finally, it must be recognized that Part VII of the CYFSA governing secure treatment plans is also subject to s. 1(1) of that Act. That section states that the paramount purpose of the Act “is to promote the best interests, protection and well-being of children”. As the Society’s plan is the only plan that will keep the child safe and address her needs, I find it to be in her best interests. The alternative is that she likely will not see her 17th birthday.

[66] In closing, it has to be recognized that the long-term prospects for this child are grim. There was evidence that there is no cure for FASD and there is a strong likelihood that, regardless of any success in the program, the child will revert to her old ways upon release.

[67] In the end, no one knows what the future may bring. Dr. Abramson did offer a glimmer of hope that the child’s brain would continue to grow and develop, hopefully to a point where there is a moderation of the worst behaviours.

[68] I am satisfied that criteria 4, 5 and 6 are met.

[69] Order to go as requested.

“Justice Paul J. Henderson” Justice Paul J. Henderson Date: April 24, 2024