WARNING

This is a case that falls under the Child, Youth and Family Services Act, 2017, and is subject to subsections 87(8) and 87(9) of this Act. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deal with the consequences of non-compliance, 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.

87 (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. 2017, c. 14, Sched. 1, s. 142 (3).

The Reasons for Judgment below has been translated from the original version released in French on January 10, 2024, in the case of any discrepancies the original version will prevail.

Court File and Parties

COURT FILE NUMBER.: FC-22-CP24-3 and FC-22-CP78-1 DATE: 2024/01/16 SUPERIOR COURT OF JUSTICE OF ONTARIO CONCERNING CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, SO 2017, c 14. AND CONCERNING L.B.

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – L.M-L.B. P.B. Respondents

Counsel: Danielle Marchant, for the Applicant Self-represented, for the Respondents

HEARD ON: January 10, 2024

Reasons for Judgment

AUDET J.

[1] This motion was brought by the mother of the youth seeking an order for the transfer of this matter before the Québec City Court or, alternatively, before the Milton Court in Ontario.

[2] The Children’s Aid Society of Ottawa, ("the Society"), the youth, and the father oppose this request.

[3] The parents, who are separated, have four children together. The proceedings before the court concern only one of those children, namely, L.B. who is now 15 years old. L.B. has extremely complex needs. Her diagnoses are: Oppositional Defiance Disorder, Reactive Attachment Disorder, and parent-child relationship problems with the mother. L.B. also has Celiac Disease and Type 1 Diabetes which require daily insulin.

[4] The very complex needs of L.B. were summarized as follows by Justice Roger during the hearing of the last motion for secure treatment, which was heard in May 2023 (The Children’s Society of Ottawa v. LMB, 2023 ONSC 3304):

“ This is an extremely serious case. It involves a 14-year-old who has been described as intelligent, but with many serious issues. The Child’s condition and management have been described as complex. She has spent most of her time, since August 2020, in some form of psychiatric institutional settings. During the last year, she has been involved in many incidents of self-harm. These include intentional mismanagement of her diabetic condition; eating batteries, glass, and nails; cutting herself; and serious incidents of head banging. Some of these put her life at risk and required urgent medical interventions, including surgical interventions to remove what she ingested. In some instances, serious incidents happened despite the Child being hospitalized and under observation by nursing staff. ”

[5] Due to the very special needs of L.B., the Society has been actively involved with this youth and her family, including before the court, since 2022. There are two legal proceedings before the court concerning L.B.

[6] The first is a protection application (FC-22-CP78) that resulted in a final order placing L.B. in interim society care for a period of six months, with access to her mother and sister in accordance with her best interests and wishes. This final order was made on consent of the parents on June 22, 2023. However, L.B. was already in the temporary care of the Society under a temporary without prejudice order made by Justice Doyle on December 23, 2022, which was confirmed by Justice Shelston on February 8, 2023 (temporary with prejudice order), in the context of a contested motion. L.B. has therefore been in the care of the Society since December 23, 2022.

[7] On December 13, 2023, the Society served and filed its Status Review Application seeking an order placing L.B. in its care for an additional six months to allow L.B. to complete her secure treatment and reintegrate the community in accordance with the Center’s recommendations. The mother filed an Answer and Plan of Care in which she opposes the order sought by the Society. This application has not yet been the subject of a final order and is still before the court.

[8] The second is an application to extend L.B.’s placement with Syl Apps (a secure treatment centre located in Oakville, Ontario, in the judicial district of Milton) filed by the Society in which it seeks an additional treatment period of 180 days (FC-22-CP-24-3). The mother and L.B. oppose this request.

[9] It is to be noted that in the past three years, two final orders have been made by the court placing L.B. in a secure treatment facility for a period of six months each (decision of Justice Smith made on July 18, 2022 in L.M.L.B. c. L.M.B., 2022 ONSC 4194, at the mother’s request; and decision of Justice Roger made on June 1, 2023 in The Children’s Society of Ottawa v. LMB, 2023 ONSC 3304, at the Society’s request). L.B. was also placed in a secure treatment program at the Roberts Smart Center in Ottawa for a period of about five months. During the periods where she was not in a secure treatment program, and except for short periods where she was in her mother’s care, L.B. was placed in the psychiatric department of a hospital in Ottawa. L.B. is still at Syl Apps in accordance with the order of Justice Roger made on June 1, 2023, which was extended by Justice Shelston on December 6, 2023, on a temporary and without prejudice basis, until the hearing of that application.

[10] The two legal proceedings were initiated while the mother and youth were residing in Ottawa. Around February 3, 2023, the mother notified all the parties involved in these proceedings that she wanted to move her family to Quebec City as quickly as possible to be closer to her family and to have better resources for L.B. She effectively moved to Quebec City with her three other children on April 13, 2023. She wants L.B. to be transferred to a hospital in Quebec, under the care of the Department of Youth Protection (“DYP”). She is requesting the transfer of the two legal proceedings before the Quebec Court.

[11] On June 22, 2023, while she was already residing in Quebec, the mother consented to a final order placing L.B. in the interim care of the Society for a period of six months (Justice Doyle’s order of June 22, 2023).

[12] At the first hearing of the status review application, the mother expressed her intention to bring a motion seeking the transfer of the proceeding before the Quebec Court. She made the same request at the first hearing of the Society’s application to extend L.B.’s secure treatment at Syl Apps.

ANALYSIS

1- The Protection Application

a. Transfer to the Quebec Court

[13] I conclude that this court does not have the authority to transfer these legal proceedings to the Quebec Court.

[14] At the time these proceedings were initiated, L.B. was habitually resident in the City of Ottawa. At the time she was placed in the temporary care of the Society in December 2022, L.B. was also a resident of the City of Ottawa.

[15] Under subsection 91(1) of Child, Youth and Family Services Act, 2017, SO 2017, c 14, Schedule 1, ("CYFSA" or "the Act"), the “territorial jurisdiction” means a society’s territorial jurisdiction under subsection 34 (1). Under subsection 91(2) of the Act, a hearing under this Part with respect to a child shall be held in the territorial jurisdiction in which the child ordinarily resides or the place from which the child was removed. Where the child is in interim society care (under an order made under paragraph 2 or 4 of subsection 101 (1)), the hearing shall be held in the society’s territorial jurisdiction.

[16] In this particular case, the habitual residence of the child and the place from which she was removed from her mother’s care is the City of Ottawa. Consequently, these proceedings are properly before the Ottawa Superior Court of Justice (Family Court).

[17] The Act does not contain any provisions allowing the court to transfer a proceeding initiated under the CYFSA before the court of another province, territory or country. Subsection 91(3), which allows the transfer of a proceeding to another territory (and therefore to another court) only applies to other territories located in Ontario, and not to other provinces or territories outside Ontario. The CYFSA does not have an extra-provincial reach. The power of an Ontario court and the orders it makes are limited in their scope to the territory over which a society exercises its jurisdiction pursuant to subsection 34(1). The societies do not have jurisdiction over territories located outside Ontario. Therefore, the court does not have jurisdiction to transfer a protection application (FC-22-CP78-1) to competent authorities in Quebec.

[18] The Society can transfer a child protection file to another child protection agency, including one that is located outside of Ontario. This transfer is subject to the internal procedures and regulations of child protection services in each of the provinces, and they are completed in accordance with these policies and procedures. When a society wants to transfer a matter to another child protection agency outside of the province, it simply seeks an order terminating the Ontario proceeding, which the Ontario court grants if it is satisfied that measures have been taken by the Society and the child protection services of the other province or territory to ensure the child’s wellbeing, and that the transfer in the other province or territory is in the child’s best interest. It is then up to the child protection services in the other province or territory to bring a protection application concerning the child in that province or territory, if that is deemed necessary.

b. Transfer to the Milton Court

[19] Subsection 91(3) of the Act stipulates that where the court is satisfied at any stage of a proceeding under Part V of the Act (child protection) that there is a preponderance of convenience in favour of conducting it in another territorial jurisdiction, the court may order that the proceeding be transferred to that other territorial jurisdiction and be continued as if it had been commenced there.

[20] The test, therefore, is whether there is a "preponderance of convenience” in favour of conducting the proceeding before the Milton Court, where L.B. is currently placed in a secure treatment program at Syl Apps (Oakville). In Children’s Aid Society of Toronto v. A.T., 2010 ONCJ 456, Justice Sherr described this test as follows:

[16] Any assessment of the “preponderance of convenience” is to be weighed considering the best interests of the child and not necessarily the wishes or convenience of any of the parties. See Children’s Aid Society of Halton Region v. Katherine C., where the court found that the transfer request, which was made on the eve of trial, would unduly delay the case and was contrary to the child’s best interests.

[21] The party who requests the transfer of a proceeding has the burden to establish that there is a preponderance of convenience for the proceeding to be heard in another territory (Children’s Aid Society of Toronto v. A.T., 2010 ONCJ 456).

[22] I cannot see how the transfer of this application to Milton would be more convenient than conducting this proceeding in Ottawa. The mother currently resides in Quebec. The father resides in Thailand. The transfer of this proceeding to Milton will not allow a greater participation from the Respondent parents and will not reduce the costs associated with their presence in court (all court appearances in this proceeding are held virtually given the fact that the parents no longer\do not reside in Ottawa).

[23] The Society has been involved with L.B. and her mother since 2020, and more intensively since 2022. L.B. has been in the Society’s care for more than a year, including pursuant to a final order that is currently at the initial stage of a status review. L.B. has had access to multiple professional services in Ottawa, and most of the witnesses who will participate in this proceeding are in Ottawa (health professionals who have been involved with L.B. up until now, child protection caseworkers, etc.). Those who are not here, including the parents and professionals from Syl Apps, can fully participate virtually since all the hearings in this case are being conducted in this manner.

[24] In addition, the transfer of this proceeding to Milton would cause significant delays, given the complexity of this case and the need for the Society’s child protection workers who work in that territory to appraise themselves of the facts and history of this case. These delays would not be in the best interest of L.B.

[25] For all these reasons, I conclude that there is no practical reason to transfer this protection application to Milton.

2- Request for placement in a secure treatment

[26] Section 91, which allows the transfer of a case to another Ontario territory (and therefore before the court of that territory) only applies to hearings held under Part V of the Act, namely child protection cases, and not to Part VII of the Act which deals with extraordinary measures (including requests for placement in secure treatment programs). The court does not have the jurisdiction to transfer a proceeding initiated under Part VII to another Ontario territory under the CYFSA (although this request could probably be made under the Family Law Rules). Given the nature of an order for the placement of a child in a secure treatment program and the fact that it can only be granted for a maximum duration of 180 days, it would be pointless to include the provisions relating to the transfer of a proceeding from one territory to another in Ontario for this type of proceeding.

[27] Consequently, the court does not have jurisdiction to order the transfer of a proceeding relating to the placement of a child in secure treatment program from one territory to another in Ontario. For the same reasons as those listed earlier for the purpose of a protection application, the court also does not have the power to order the transfer of a secure treatment proceeding to another province.

[28] Even if I am wrong to conclude that the court does not have the power to transfer a secure treatment proceeding to another territory within the province, I would not have transferred this proceeding to Milton for the same reasons that I refused to transfer the protection application to Milton.

[29] In addition, the delays associated with a transfer to Milton would have a devastating effect on L.B. She has already been placed in a secure treatment facility for more than seven months and she opposes the Society’s request for an extension. This application must be heard as quickly as possible. The delays associated with the hearing of this motion have already unduly delayed the hearing of this application.

[30] In my endorsement of January 12, 2024, I indicated:

At the hearing of the motion on February 10, 2024, the mother also attempted to bring a motion (in the context of the status review application – FC-22-CP78-1) to be appointed substitute decision-maker for the child. I refused to hear her motion on that day for the reasons stated at the hearing.

However, the mother indicated that if her motion for the transfer of this matter to the Quebec Court was dismissed, she wanted her motion to be appointed as substitute decision-maker for the child to be heard before the hearing of the application for secure treatment (in FC-22-CP24-3). According to her, if her motion to be appointed substitute decision-maker for the child is granted, the Society’s Application for secure treatment will become moot since she will then be entitled to make whatever decisions she deems appropriate for the child’s treatment.

For written reasons which will be provided as soon as possible, I refuse to delay the hearing of the application for secure treatment to allow the mother’s motion to be heard first. In my opinion, it is very unlikely that the mother’s motion will be granted in the circumstances of this case (given the reasons for which the child was placed in the Society’s care), and the best interest of this youth requires that the application for secure treatment be heard as soon as possible, particularly since the child opposes the extension of her secure treatment placement.

[31] I wish to provide more detailed reasons as to why, in my view, it is very unlikely (if not impossible) that the mother’s request to be appointed substitute decision-maker for L.B. will be granted.

[32] In her Factum, the mother’s request is based on section 301 of the Act, which states:

Substitute decision-maker

301 (1) An individual who is capable may give, withhold or withdraw consent or may, if the individual is 16 or older, authorize in writing another individual who is 16 or older and capable to be the individual’s substitute decision-maker.

For child younger than 16

(2) If the individual is a child younger than 16, the child’s parent or a society or other person who is authorized to give, withhold or withdraw consent in the place of the parent may be the child’s substitute decision-maker unless the information relates to,

(a) treatment about which the child has made a decision in accordance with the Health Care Consent Act, 1996; or

(b) counselling to which the child has consented on their own under this Act or the old Act.

Capable child prevails over substitute decision-maker

(3) If the individual is a child younger than 16 who is capable and if there is a person who is authorized to act as the substitute decision-maker of the child under subsection (2), a decision of the child to give, withhold or withdraw the consent prevails over a conflicting decision by the substitute decision-maker.

[33] This provision is in Part X of the Act which deals with the collection, use and disclosure of personal information by service providers (themselves defined in section 30 of the Act). Section 301 comes into play in the context of describing the individuals whose consent is required for the collection, use and disclosure of personal information, and who has the authority to consent when a child does not have the capacity to do so.

[34] This provision is in no way relevant to the issues that the court needs to address in the context of this protection application or the Society’s application for the extension of L.B.’s secure treatment program.

[35] Pursuant to subsection 110(1) of the Act, when a child is in interim society care (based on subsection 101(1) paragraph 2), the society assumes the rights and responsibilities of a parent concerning the care to be given to the child, her custody and control. Under subsection 110(2), when a child is in interim society care and that child is found to be incapable of consenting to treatment with the meaning of the Health Care Consent Act, 1996, the society can act in the place of a parent in providing consent to treatment on behalf of the child, unless the court orders that the parent retain the authority to do so.

[36] However, subsection 110(3) specifically provides that the court shall not make an order under subsection (2) where failure to consent to necessary treatment was a ground for finding that the child was in need of protection. One of the main reasons why L.B. is currently in the Society’s care is the concerns reported by her health professionals in relation to the decisions made by the mother regarding her medical care. More specifically, several professionals have reported serious concerns regarding the mother’s excessive and prejudicial interference in L.B.’s medical treatment.

[37] Although my conclusions above in relation to the merit of the mother’s claim to appointed substitute decision-maker for the child (at least in the context of a motion heard based on written evidence) do not bind the parties or the judge who may hear this motion in the future, I deemed it important to clarify the reasons justifying my conclusions. Given the urgency presented by the Society’s application to extend L.B.’s secure treatment, which must be heard as soon as possible, I conclude that it is not in the best interest of L.B. to delay its hearing to allow the mother to present her motion to be appointed substitute decision-maker.

ORDER

[38] As confirmed in my endorsement of January 12, 2024, the following order is made:

1- The mother’s motion to transfer this proceeding to the Quebec City Court or, alternatively, to the Milton Court, is dismissed.

2- The application for secure treatment of the youth shall be heard on an urgent basis on January 23, 2024 (for an estimated duration of three days), before a bilingual judge.

AUDET J.

Released on: January 16, 2023 Published on : February 8, 2024

REFERENCE : The Children’s Aid Society of Ottawa. v. L.M-L.B. et al., 2024 ONSC 348

COURT FILE NUMBER: FC-22-CP24-3 and FC-22-CP78-1 DATE: 2024/01/16 SUPERIOR COURT OF JUSTICE OF ONTARIO CONCERNING CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, SO 2017, c 14. AND IN THE MATTER OF L.B. BETWEEN: THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – L.M-L.B. P.B. Respondents REASONS OF JUDGMENT Audet J.

Released on: January 16, 2023 Published on: February 8, 2024