Children’s Aid Society of Toronto v. J.R., 2019 ONCJ 792

WARNING The court hearing this matter directs that the following notice should be attached to the file: The court has ordered the exclusion of the public from the hearing of this case under subsection 135(2) of the Courts of Justice Act and has expressly prohibited the disclosure of any information about the identity of the child. This subsection and subsection 135(3) of the Courts of Justice Act , which deals with the consequences of failure to comply with subsection 135(2), read as follows: 135.—

(2) EXCEPTION — The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

(3) DISCLOSURE OF INFORMATION — Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information. Subrules 31(5) and 31(6) of the Family Law Rules state as follows: . . . 31 .—

(5) Contempt orders. — If the court finds a person in contempt of the court, it may order that the person, (

a) be imprisoned for any period and on any conditions that are just; (

b) pay a fine in any amount that is appropriate; (

c) pay an amount to a party as a penalty; (

d) do anything else that the court decides is appropriate; (

e) not do what the court forbids; (

f) pay costs in an amount decided by the court; and (

g) obey any other order.

(6) WRIT OF TEMPORARY SEIZURE – The court may also give permission to issue a writ of temporary seizure (Form 28C) against the person’s property. ONTARIO COURT OF JUSTICE CITATION: Children’s Aid Society of Toronto v. J.R., 2019 ONCJ 792 DATE: 2019 10 31 COURT FILE No.: Toronto CFO 19 30723 BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO Applicant — AND — J.R. and Z.C. Respondents

Before Justice M. B. Pawagi Heard on October 3, 2019 Reasons for Judgment released on October 31, 2019 Ms. Katie Skinner............................................................ counsel for the applicant society Ms. Julia Tremain................................. counsel for the Office of the Children’s Lawyer, legal representative for the child PAWAGI, M. B.

J.: Nature of the Case [ 1 ] On October 3, 2019, at the conclusion of the one-day secure treatment hearing, I gave an oral ruling, with written reasons to follow, committing the subject child, age 15, to the secure treatment program at Syl Apps Youth Centre for a period of 180 days. [ 2 ] These are my reasons.

They set out the basis for my finding that all of the statutory criteria were met to support the secure treatment order. [ 3 ] They also set out my concern when I learned at the hearing that the society had kept this special needs child confined to a basement apartment, 24 hours a day, from July 10, 2019 to the hearing date.

That is a period of almost three months where the child had no access to fresh air, meaningful exercise, or any change in scene. [ 4 ] A copy of these reasons shall be sent to the following in order to alert them about this confinement, and to seek assistance for this child in the planning of a future place​ment when he is released from secure treatment: • Paul Dube, Ontario Ombudsman, Children and Youth Unit/Systemic Investigations Unit • Mary Birdsell, Executive Director, Justice for Children and Youth Positions of the Parties [ 5 ] The parents were not represented.

They consented to the society’s request for a secure treatment order, pursuant to s. 164(1) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14,

Schedule 1 (the “ Act ’). [ 6 ] The child was represented by the Office of the Children’s Lawyer, in both the child protection proceeding and the secure treatment proceeding.

Counsel for the child at the secure treatment hearing did not consent to the secure treatment order on the grounds that the society had not satisfied all of the statutory criteria. [ 7 ] On the separate issue of the child’s confinement indoors, I do not know whether or not the Office of the Children’s Lawyer was aware of it prior to this hearing (and if not, why not), but I am troubled by the fact that when, at the very least, counsel became aware of it in the course of the hearing, counsel maintained that the child could remain in this placement.

The Facts [ 8 ] The society first became involved with this child in 2009 when he was 5 years old. He had been diagnosed with Autism Spectrum Disorder, Oppositional Defiant Disorder and Obsessive-Compulsive Disorder. There were multiple openings of the society’s file as the family struggled to manage the child’s aggressive behaviour.

The parents are separated and the child lived with his mother and older brother. [ 9 ] The parents accessed a number of different services for the child through the years, including a day treatment program at TRE- ADD (Treatment, Research and Education for Autism and Developmental Disorders) which could not continue because of the child’s behaviour. [ 10 ] The child first came into the care of the society when he was 12 years old, pursuant to a temporary care agreement, from March 1, 2017 to May 16, 2017. He was placed at Oakdale, in Barrie.

The agreement was terminated by Oakdale because they could not manage the child’s aggression. The child returned home as there were no other placement options at that time. The Society arranged for 2 to 1 staffing support in the home through Whatever It Takes until another placement could be found. [ 11 ] The child came into care pursuant to a second temporary care agreement from June 27, 2017 to January 3, 2018. He was placed

at Blooming Acres, in Barrie. On January 3, 2018, Skylark (through the Ministry of Children, Community and Social Services) assumed funding for the child’s placement at Blooming Acres, and the society subsequently closed its file as the family was receiving support through the Ministry. [ 12 ] The child left Blooming Acres in August/September 2018. While there he had to have a staff ratio of 3 to 1. Blooming Acres went through 23 staff while the child was there, one of whom suffered from Post-Traumatic Stress Disorder from their work handling this child.

When the child left the placement for a brief stay in hospital, Blooming Acres said they would not take him back. [ 13 ] The child then returned home, with staffing support from Skylark. He was at home until January/February 2018 when he entered a residential placement at the Child and Parent Institute in London, Ontario. He was there for three months until April 2019. While there he caused such extensive property damage that, six months later, the unit in which he was placed is still under renovation.

They will not take him back. [ 14 ] The child returned home in April 2019, with staffing support from Williams, Marijan and Associates. The society wanted staff in the home 12 hours a day. The child’s mother did not want any staff in the home. They negotiated 5 hours a day of 2 to 1 staffing support. [ 15 ] Joel Maala, head trainer at Williams Marijan and Associates, assisted with the child’s transition home. On June 4, 2019, he observed the child lay on his back and start kicking the walls and the spindles on the stairway. Mr. Maala and his partner had to make sure he was not doing anything to hurt himself.

The child kicked Mr. Maala’s partner in the mouth, loosening a couple of his teeth. The child started hitting his head against the floor. Mr. Maala noticed a lot of bruising on the child’s cheeks, and the marks of the hardwood floor on his cheek and forehead. The child began to cry and said he wanted the police to come and take him to the hospital. Mr. Maala’s partner called 911. Paramedics arrived and wanted to treat the child, but his mother refused treatment for him. [ 16 ] Another time, Mr. Maala arrived on his shift and saw the child and his mother in the front yard. Mr.

Maala and other staff had to restrain the child. The mother said the child was trying to run away and Mr. Maala heard the child say, I want to get hit by a car, I want to kick that person/dog (referring to whoever happened to be walking by on the sidewalk). Mr. Maala has heard the child say several times that he wants to hurt his brother. [ 17 ] The society’s current involvement began in May 2019 as the relationship between the outside resources and the family was breaking down. The child left home unattended many times.

In one instance, the mother reported that the child touched her in her vaginal area on top of her clothes and she told him he needs to get out. He left his home at Warden and Sheppard in Scarborough, and police found him at Bay and Bloor in downtown Toronto. In another instance, he got into a physical altercation with his brother in which his brother’s finger was broken. [ 18 ] The society commenced a child protection application and made a referral for emergency admission to the secure treatment program at Youthdale. The child was placed on the Acute Support Unit at Youthdale June 12, 2019 to July 10, 2019.

The purpose of the placement was to provide treatment for the child and respite for the family while the society made plans to find a long-term placement for the child. [ 19 ] Dr. Nathan Scharf, Youthdale Chief of Psychiatric Services, and the child’s primary psychiatrist at Youthdale, confirmed the child’s diagnoses of Mild to Moderate Developmental Disability and Pervasive Developmental Disorder/Autism Spectrum Disorder, though he found that the main diagnosis was the Developmental Disability, with the Autism being secondary. The parties agreed, and I found, that Dr.

Scharf is an expert in the area of assessing and treating psychiatric disorders in children and young people. He provided the following evidence at the hearing:

a) The child’s mental disorder limits his ability to learn to read and write and maintain age appropriate self-care; and limits his ability to control his emotions and respond safely and appropriately to stressful or potentially dangerous situations. The child has great difficulty in regulating his behaviour when feeling stressed or challenged. In situations where his wishes or needs are frustrated, he might respond in an inappropriate and potentially dangerous fashion. The danger is increasing as the child is getting older, bigger and stronger and it is becoming more difficult for his family to manage his safety.

b) During the child’s four-week admission at Youthdale he was restrained 20 times because he was putting himself at risk of harm by punching drywall, kicking walls, banging his head, threatening to, or actually, assaulting staff and trying to run away. A physical restraint involved up to six staff members physically holding the child using mandated techniques to secure his and their own safety during a period of escalation until he would settle. If he did not settle within 15 minutes staff would inject him with medication to calm him so that he would eventually fall asleep. If he still did not settle, staff would move him to a bed and strap him to it.

c) A third of the restraints occurred because the child asked to be restrained. He wanted the physical contact and felt comforted by the pressure, so staff would move in and hold him.

d) Medications generally appeared to provide no benefit, except to help with sleep. They were of no use in reducing the child’s impulsive behaviour.

e) There were two other youth on the unit when he was admitted. His behaviour was so upsetting and frightening to them that when they left the unit, the 9-bed unit was shut down so he would be the only child on it. He was getting staff ratios of 2 to 1, and 3 to 1, which was highly irregular.

f) The child struck one staff in the face, bit another. There was at least one injury to staff, and possibly as many as three, that required medical consultation. One injury resulted in the staff member taking time off work. There were also several other minor injuries to staff, including scratches.

g) The child would bang his head quite violently and was checked by the doctor as a result, but he did not require treatment.

h) The child needs a highly structured individual program, a stable environment, and continuity of staff support. Ongoing family involvement is very important to him. He needs occupational therapy support. Art therapy would be beneficial as he enjoys art. Physical activity and exercise are important.

i) The child could not stay at Youthdale as the Acute Unit does not have a legislative mandate for more than 30 days, and the transitional unit would not be appropriate as it has no capacity to provide mechanical restraints. Dr. Scharf would recommend Syl Apps, but only reluctantly because while they have the staffing, structure and support to keep the child and the staff safe, he is not sure if they are suitable in terms of working with the child.

j) Dr. Scharf explored several other placement options, such as a return to the Child and Parent Institute in London, or a placement at Ontario Shores in Oshawa, but they all turned him down. [ 20 ] On July 17, 2019, the court in the child protection proceeding made an order based on the Agreed Statement of Facts signed by the society and the parents, but not child’s counsel, finding the child to be in need of protection as he has suffered physical harm, and is at risk of suffering physical and emotional harm, pursuant to subsections 74(2)(a)(i), 74(2)(b)(

i) and 74(2)(

h) respectively of the Act , and making an order placing the child in the interim care of the society for six months with access to his parents “at the discretion of the society, taking into account the child’s wishes and treatment needs.” [ 21 ] At the time the child had to leave Youthdale, Syl Apps was considered, but the wait list was too long. Marc MacDonald, Supervisor of Placement Services at the society provided the following evidence regarding attempts to find a placement for this child:

a) The child needs an environment where he is the only child. There are a limited number of resources for youth of that age with autism and high level of aggression.

b) While the child was at Youthdale, the society looked throughout the province for a placement and presented his profile to several agencies. The society called D.L.C. Residential Services, Blooming Acres, Oakdale, Bayfield Centre, Carrie’s Place, without success.

c) The society was offering an Individualized Service Agreement (where a service provider creates a placement for this child), not just the usual per diem in an existing residential placement.

d) Reflections Mental Health and Behavioural Services in Oshawa was the only service provider who accepted this child.

e) It was not until the day the child was to be discharged from Youthdale to Reflections that the society found out that Reflections’ staff did not have the ability to administer restraints. Reflections had confirmed staff was “Safe Management Trained,” but it turned out they were only trained to level 3: “Understanding and Managing Aggressive Behaviour,” but not to level 4 and 5 which covers administering restraints. Reflections gave the society assurances that they were going to get their management and staff trained immediately. The society told Reflections they could use Williams Marijan and Associates or Calvary to do the training.

f) Mr. Macdonald testified that “They [Reflections] assured us they would get the training.” He described the fact that it never happened as the result of “broken telephone.”

g) The society’s plan while the child is at Syl Apps is to work with an operator to develop an Individualized Service Agreement. The society will approach an operator such as the Canadian Back Institute (which despite the name, does provide relevant services) and they would purchase an apartment or house and present the society with a plan to care for this child which may include reinforcing windows and walls, and putting sponges around for safety. The Canadian Back Institute has told the society they would need 3-6 months to purchase a home and hire staff. [ 22 ] Gillian McCarthy, Family Services Supervisor at the society, described the child’s placement at Reflections as follows:

a) Reflections is an unlicensed agency that deals primarily with adults. The society received permission to place this child with Reflections. It is not a secure treatment placement. There was no therapeutic element to the placement; there was just staff, no professional services. Staff attempted to do school work with the child. The child was provided with a hula hoop, a ball, a TV, board games.

b) The society paid $1,972 per day for this placement.

c) The placement was in a house that was divided into two separate residences: one on the main floor and one in the basement. The child lived in the basement with staff support. He had a living room with a hall connecting it to his bedroom and bathroom.

d) Since the child arrived at the placement on July 10, 2019, he has not been outside.

e) The society had told Reflections the following: “Our expectation is that he go outside, and that staff should get training so that they can take him outside.” The society called Calvary to come and do the training, but they could not because of the contract Reflections wanted. The society hoped that Calvary would come and take him outside and take him swimming but staff said they could not.

f) The society brought in independent consultant Laurie O’Donnell to help Reflections’ CEO Ron Snoxall-Scott and Reflections’ Service Co-Ordinator Donna Snoxall change their policies to further align with the Ministry’s Quality Assurance Measures. Ms. McCarthy testified that, “We have been in contact with them almost every other day, working with them on trying to get him outside with no results.”

g) Reflections’ staff finally received the restraint training on September 26, 2019 by Ron Snoxall-Scott, who had received the training himself in August.

h) Society workers visited the child at Reflections every week. Ms. McCarthy in her role as supervisor saw him once in August and

once in September. During one of the visits the child hit her inadvertently while having a tantrum and running around the basement.

i) Reflections struggled to give the society information. The society received weekly handwritten brief bullet points referred to as “scatter shot” reports. The society requested longer versions of the reports, but Reflections did not provide them.

j) The child was having access with his parents weekly at the placement until Reflections suspended access following the September 12 th visit when the mother began filming the child with her phone during the visit when he was running around making wailing sounds, because she wanted to show his doctor. Reflections staff asked parents to leave the premises. Reflections tried to enact a “visitor policy” the next week.

k) Ms. McCarthy acknowledged in her testimony that the court order was for access at the discretion of the society and that the society wanted the access to continue, but explained that “because it was on their premises, we felt quite stuck at that point in time.”

l) On September 9, 2019, Reflections gave the society 30 days’ notice to terminate the placement as they cannot meet this child’s needs. On September 24, 2019, Syl Apps told the society they had a bed available for this child.

m) The treatment the child needs includes working through maladaptive behaviour he has learned over the years; namely, working through him always wanting to be contained and pushing everyone to get that containment. The society’s intention is for the child to have regular access with his family while he is at Syl Apps. [ 23 ] Reflections’ staff Bayo Ogundipe testified as follows:

a) On September 1, 2019, the child was talking to his father on the phone when he smashed the phone and started to hit himself.

b) Staff walked him to his room, and the child then threw his neck massager at Mr. Ogundipe.

c) The child also pulled out the disco light and threw it.

d) The child later pulled the lid off the toilet tank but before he could throw it Mr. Ogundipe pushed it back down. [ 24 ] Reflections’ staff Abel Ani testified as follows:

a) The door to the basement is not locked, but the house itself is always locked.

b) The child has not gone outside since he came in because of the safety issue to other people in the community.

c) One time, the child picked up the TV and threw it toward the wall. He lifted the table up and moved it.

d) The child says he wants containment; he wants the police to come.

e) The child threw a disco ball at Mr. Ani and another staff member, but Mr. Ani dodged it. The child had thrown it towards the edge of Mr. Ani’s shoulder.

f) The child threw an ottoman at staff, but staff caught it and put it on the floor. The ottoman was made of wood, with a soft cover.

g) Staff took a hands-off approach with him. They knew they should not touch, lift or contain him. They redirect him and clear the space of anything he can lift. When he is hitting his head on the floor, staff support him with a foam mat. After he lifted the toilet tank lid, they duct taped the lid to the tank.

h) The child’s daily routine consists of the following: breakfast, shower, staff assisting him with spelling (which he often does not want to do), staff reading to him, physical exercise (jumping jacks, hula hoop), lunch and dinner. Otherwise he watches videos on his laptop. Sometimes he is awake all night and sleeps during the day. Analysis and the Law [ 25 ] The secure treatment provisions are in a special section,

Part VII, of the Act entitled “Extraordinary Measures.” There is only one other way a youth can be held in a secure facility and that is through the “Youth Justice” section,

Part VI, which does not apply here as it relates to youth involved in the criminal justice system. [ 26 ] Secure treatment is a highly intrusive procedure that engages a child’s right under

section 7 of the Charter not to be deprived of their security of the person except in accordance with the principles of fundamental justice. Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [ 27 ] As V. Starr, J. points out, “In recognition of the highly intrusive nature of this type of order and to ensure that this procedure complies with the Charter and the principles of fundamental justice, both the CYFSA and the jurisprudence recognize that long-term secure treatment orders can only be made if the strict criteria are met.” McMaster Children’s Hospital v. L.R., [2019] O.J. No. 3628 , at para. 18 [ 28 ] I found that the society met its burden by establishing, on a balance of probabilities, that each and every one of the six criteria have been met, as set out in subsection 164(1) of the Act , reproduced in full below. 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 tothemself 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. Criteria (a): This child has a mental disorder. [29] It was not contested, and I found, that the child has a mental disorder, defined under

section 157 of the Act as “a substantialdisorder of emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgments.” [30] Dr. Scharf’s evidence was that the child’s diagnoses of Mild to Moderate Developmental Disability and PervasiveDevelopmental Disorder/Autism Spectrum Disorder meets the definition of mental disorder as it limits his ability to control his emotionsand respond safely and appropriately to stressful or potentially dangerous situations.

Criteria (b): This child has, as a result of the mental disorder, within the 45 days immediately preceding the secure treatmentapplication caused or attempted to cause serious bodily harm to himself or another person.

Criteria (c): This child has, within the 12 months immediately preceding the application, but on another occasion than thatreferred to above, caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm tohimself or another person. [31] Counsel on behalf of the child contested both of these two grounds on the basis that the child did not intend to cause himself oranyone else harm, and that the harm the child did cause was far from meeting the definition of “serious bodily harm.” [32] As A.P.

Nasmith, J. held, the harm cannot be trifling, or minor, “the word serious has to have some significance.” Re J.A. (An Infant), (ONCJ) [33] I agree with counsel for the child that the evidence adduced at the hearing did not demonstrate that the harm the child causedwas serious, amounting as it did to scratches and bruises to himself and to others.

There were references in the testimony to harm thatmay have met that definition, namely, his brother’s broken finger and staff suffering Post Traumatic Stress Disorder, but insufficientevidence was led regarding these incidents to allow the court to make such findings. [34] However, actual serious bodily harm is not required, an attempt is sufficient.

I find that the incidents in the 45 day period of thechild throwing the neck massager at staff (which the staff member had to duck to avoid), throwing the TV and an ottoman at staff (bothof which staff members caught) and lifting the lid of the toilet tank (which the staff put back down and then duct taped into place) satisfythe criteria as serious bodily harm would have been the result if staff had been struck with any of these items.

Similarly, the incidentwhere the child was banging his head against the ceramic floor could have resulted in serious bodily harm had not staff inserted a foammat between the child’s head and the floor. [35] The incidents during the 12-month period include the June 4, 2019 incident described by Mr. Maala where the child banged hishead against the floor to the point it caused bruising on his face and kicked Mr. Maala’s partner in the face loosening his teeth. They alsoinclude the numerous assaults on staff and head banging during the period the child was at Youthdale.

As with the incidents describedduring the 45 day period, serious harm was not actually caused only because of the level of staffing support in place for the child. [36] I further find that sufficient evidence of intent was adduced. As V. Starr, J. sets out, the issue of intention depends on thecircumstances of the child, including the child’s mental disorder, “In some cases it will be necessary to demonstrate that the childintended the precise harm or result; in others, evidence that the child intended the act that caused the harm or result, will be enough.” McMaster Children’s Hospital v. L.R., [2019] O.J.

No. 3628, at para. 86 [37] Given the child’s diagnosed developmental delay, it is sufficient for this court to find the child intended the action, withoutrequiring that he understand the seriousness of the potential harm his actions could cause. The intentionality of his actions is supportedby the evidence that he expressed a desire for staff to physically restrain him and acted to obtain that desired result.

Criteria (d): The secure treatment program would be effective to prevent the child from causing or attempting to cause seriousbodily harm to himself or another person. [38] This ground was not contested, and I found that the proposed secure treatment program would be effective. [39] As A.P. Nasmith, J., held, such a finding “requires a well-developed professional opinion based on familiarity with the programbeing offered. Also, in my opinion, this test goes beyond merely arguing that, while J.A. was locked up, he would be less likely to causeharm to someone.” Re J.A. (An Infant), (ONCJ) at para 51 [40] Dr.

Scharf’s evidence was that Syl Apps would be effective in preventing the child from causing or attempting to cause harm tohimself or others. The evidence from Syl Apps, provided in the letters to the society dated September 23, 2019 and October 2, 2019,confirms this. Syl Apps is a forensic mental health treatment facility in Oakville, Ontario, one of three secure treatment facilities in theprovince. The letters set out that a clinical assessment and then an individual treatment plan will be developed for this child.

Criteria (e): Treatment appropriate for the child’s mental disorder is available at Syl Apps. [41] This ground was not contested, and I found that it was met. [42] Treatment appropriate to the child’s mental disorder is available at Syl Apps. In the letters adverted to above, Dr.

JanelleHawes, Forensic Psychologist and Clinical Director at Kinark Child and Youth Services which operates Syl Apps Youth Centre, sets outthe specific treatments available for this child and the likelihood of the treatment’s success. [43] Syl Apps will complete a clinical assessment of the child before formulating an individual treatment plan, but a generaltreatment framework is proposed that would incorporate Dialectical Behaviour Therapy (“DBT”) as the primary intervention, whichincludes mindfulness, distress tolerance, emotion regulation and interpersonal effectiveness.

DBT includes “a behavioural modificationcomponent that aims to decrease high risk behaviours and support individuals in developing skills to cope with intense emotions orfeelings that become unmanageable.” Adaptations to this intervention would be made to account for the child’s cognitive challenges. Theplan includes that Syl Apps will work closely with the society and Skylark to plan and implement a discharge placement.

Criteria (f): No less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in thecircumstances. [44] Counsel on behalf of the child contested this ground on the basis that the child’s placement at Reflections was a less restrictiveoption as it was not a locked facility. [45] I disagree. [46] To begin with, there was conflicting evidence presented regarding whether the placement was locked or not, but moreimportantly, the question of whether the outside doors were locked or not is not determinative. [47] As

section 158 of the Act provides, secure treatment programs are “programs for the treatment of children with mentaldisorders, in which continuous restrictions are imposed on the liberty of children.” [48] It is not disputed that continuous restrictions were imposed on this child’s liberty while he was at the Reflections’ placement. Thus, it was not less restrictive than the proposed secure treatment program at Syl Apps. [49] In fact, the Reflections placement was more restrictive than the proposed Syl Apps placement in the following ways:

a) The child was not permitted to set foot out of doors despite physical activity being “important” for him as noted by Dr. Scharf.

b) The child received no treatment or therapeutic services whatsoever, spending much of the day watching videos.

c) The child’s access to his family was suspended, due to protocol concerns about filming, despite family involvement being “veryimportant” to him as noted by Dr.

Scharf, and in contravention of the court order that provided that access was to be at the discretion ofthe society, “taking into account the child’s wishes and treatment needs.” [50] By contrast Syl Apps offers treatment, exercise, the possibility of going out of doors and the involvement of the child’scaregivers. [51] Furthermore, the placement at Reflections is not even available as they had given notice that the child must be discharged byOctober 9, 2019. [52] I find that the society has met its burden by establishing that it has explored all reasonably viable and known alternatives tosecure treatment, as set out below: • Oakdale • Blooming Acres • Child and Parent Institute • At home with staffing supports through Skylark, Williams, Marijan and Associates and/or Whatever It Takes

• Ontario Shores • D.L.C. Residential Services • Bayfield Centre • Carrie’s Place [ 53 ] The undisputed evidence is that there is no existing residential placement in the province that is appropriate and available for this child. The society’s plan is to create an Individualized Service Agreement with an outside resource but it has not been successful in creating one to date. [ 54 ] Thus, I find there is no less restrictive method of providing treatment appropriate for the child’s mental disorder that is appropriate in these circumstances.

Conclusion [ 55 ] I find the society has met its burden of demonstrating, on a balance of probabilities, that all six of the criteria set out in subsection 164(1) of the Act have been met. [ 56 ] The society and the child’s family have been struggling for years to find appropriate services for him. There were no less restrictive alternatives presented at the hearing for the court’s consideration. The circumstances of the child’s most recent placement at Reflections were appalling and more restrictive than the secure treatment plan proposed at Syl Apps.

This is why, as I noted at the outset of these reasons, a copy of this decision will be sent to the Ombudsman and Justice for Children and Youth. [ 57 ] The full 180 days requested by the society is required in order for Syl Apps to assess the child and then implement a treatment plan for him (to date no treatment plan has proven effective in such placements as 30 days at Youthdale and 3 months at the Child and Parent Institute); and for the society to put into place an Individualized Service Agreement with an outside resource upon the child’s discharge from Syl Apps.

Order [ 58 ] The order was made at the conclusion of the hearing committing the child to the secure treatment program at Kinark Child and Family Services, Syl Apps Youth Centre, for a period of 180 days, commencing October 3, 2019. Released: October 31, 2019 Signed: Justice M. B. Pawagi