Court File and Parties

Court File No.: FO-12/89

Ontario Court of Justice

Between:

Lisa Marie Evans Haluszka Applicant

— And —

Robert William Sevigny Respondent

Before: Justice L.P. Thibideau

Motion heard in: Cayuga, Ontario on May 14th, 2013

Reasons for Judgment on Motion: July 3, 2013

Counsel:

• M. Vamos for the Applicant
• E. Rosewell for the Respondent

THIBIDEAU, J.:

Introduction

[1] The Applicant mother commenced an application on the 30th of October 2012 for a variety of relief with respect to the children, Mitchell Sevigny born the 27th of May 2000 and Juliana Sevigny born the 1st of March 2004. This judgment is with respect to a very narrow issue that was argued on the 14th of May 2013 with respect to the child Juliana. Mother requests Court approval for dental surgery for the child which is opposed by the Respondent father. Her parents have separate and opposing dental surgery plans.

Salient Historical Facts

[2] The separated parents entered into a separation agreement on the 31st of October 2007. Under that agreement the parents share joint custody of the children and the day to day residence of the children is with mother. The parents are required to confer with each other on matters concerning children's health. If there are unresolved disagreements the parents shall refer the issue to a specified mediator in Hamilton Ontario or as agreed. The parents are to share extraordinary expenses on a 50 percent each basis.

[3] Neither parent has insurance coverage for orthodontics. Child Mitchell has had orthodontic work done in the past the cost of which in the amount of $6,200 was paid for fully by mother. It would appear from the material that mother proceeded with the orthodontic work and father refused to share in that expense.

[4] Mother's income as of 29th of October 2012 was approximately $2,000 a year from usual child benefits for the two children. She has a new spouse with unspecified, but apparently adequate income.

[5] In November of 2012 father had an annual income of some $96,000 a year. However, it appears that income has been lost and he is now in receipt of EI benefits, in the approximate of amount of $24,000 a year. Accordingly child support was adjusted on a temporary basis to $350 a month on May 14th 2013 on consent.

[6] The child Juliana's circumstances giving rise to the dental surgery issue are these. In September of 2011 she was involved in a boating accident which resulted in the knocking out of three permanent top front teeth, two maxillary central incisors and one maxillary right lateral incisor. The injury involved the destruction of the roots of all three teeth and the destruction of some of the jawbone in the affected area. She requires remedial dental surgery for both functional and cosmetic reasons.

The Issue

[7] Each parent has a separate non-compatible with the other plan to repair the damage done. Mother's plan requires immediate address so that the window of opportunity does not close, therefore, the request to the Court for a decision.

Mother's Plan

[8] Mother engaged a local orthodontist, Dr. Susan Eslambolchi, who is the sole ongoing treating orthodontist, in order to arrive at a plan to remedy the damage done by the accident. Dr. Eslambolchi has recommended an unconventional course of treatment by a specialist periodontic surgeon, Dr. Jim Janakievski in Tacoma Washington, USA. These two professionals have explained to the mother in some detail the preferred course of treatment proposed.

[9] Three teeth are gone, some replacement is required. The jawbone, the alveolar ridge, stopped growing in the area where the three teeth were knocked out because the three teeth are missing, and a jawbone will not grow where teeth are absent. The ridge in this area has and will have the growth and development of a seven-and-a-half year old Juliana, her age when the accident occurred, unless something is done.

[10] The suggested procedure is auto transplantation, a procedure where two adult pre-molars are transplanted from their location in the mouth of Juliana to the location where the three front teeth are now missing. To accomplish this the ridge in the frontal area will have to be built up by bone graft because of accident bone loss and lack of normal growth. The bone grafting comes first, once successful and healed, the transplantation can be done. Shaping of these teeth will occur for cosmetic reasons after implantation.

[11] The window of opportunity, based upon teeth growth for Juliana began in December 2012 and is limited in time thereafter to something like one year. Post transplantation care and supplementary procedures will be done in Ontario by Dr. Eslambolchi over a lengthy period, which will include tooth shaping, braces to migrate one tooth to its correct position.

Father's Plan

[12] This plan was also developed by Dr. Eslambolchi for Juliana. It is the alternative plan presented to mother and adopted by father. The essence of this plan is as follows.

[13] All procedures for permanent correction will wait until Juliana has physically matured at approximately 18 years of age when her mouth, particularly the alveolar ridge has stopped growing, noting that in the affected area this growth has already stopped. The result is that at 18 there will be a substantial difference in size between the ridge where normal teeth have matured and the ridge where the three teeth are missing, requiring a greater bone graft size at that time before the permanent solution is carried out. Traditional artificial implants would then be inserted in the affected area. The risk is that the amount of bone grafting required at age 18 when the components are mature would reduce the probability of success of grafting.

[14] This method requires false teeth, for cosmetic reasons chiefly, for the period of time between now and that final procedure at maturity, some nine years or so. From time to time over the course of those nine years the false teeth, removable in nature, will have to be adjusted and replaced as Juliana's mouth grows.

Plans Comparison

Juliana

[15] Juliana at age nine is very conscious of how she looks with three absent teeth in the front of her mouth. The non-permanent false teeth used to mask the cosmetic issue require update as her mouth grows and are difficult for her, e.g. food gets caught in the wires to which the false teeth are attached. In fact eating is easier without the false teeth than with them.

[16] The OCL representative confirmed that Juliana is not happy with the false teeth and at the same time is more and more conscious of how she looks without front teeth as she gets older, beyond the normal age for gaps in teeth as second teeth come in. Juliana favours the first option wherein the problem is dealt with now. She has informed the OCL representative that she is aware of what the procedure is through talks with her mother and consultation with her local orthodontist and she is aware that this procedure (and the other one) will involve some significant pain.

[17] Mother is of the opinion that Juliana is fully informed and is on-side. Father is of the opinion that Juliana is too young to understand the issues and is simply seeking a fast fix.

Father's Position

[18] Father's position is that the plan he favours has more track record, is less risky, less prone to failure and that Juliana should not be the subject of experimental procedures, not fully proven. It is not disputed by mother that the plan for artificial implants is viable, but it is not preferred. The result is that father's plan is an acceptable plan from a medical and orthodontic point of view.

[19] Father has filed with the Court a variety of short opinion letters from a significant number of Ontario orthodontists expressing their comments and views with respect to the two plans. More of this later.

Mother's Position

[20] Mother has filed with the Court correspondence and research literature obtained from two professionals who are involved in the treatment plan for Juliana, her local orthodontist and the specialist in Tacoma Washington, all in support of mother's plan for treatment now.

[21] The bulk of the material filed is from the two attending specialists for Juliana.

[22] The documents from Dr. Janakievski provide his opinion with respect to the core issue, the two treatment options with detailed explanation of how each is done along with published articles by him and others in the American Journal of Orthodontics in 2010, 2011 and 2012.

[23] The documentation also includes a C.V. of Dr. Janakievski demonstrating that he has been an affiliate and is now an assistant professor of periodontics at the University of Washington and has been affiliated as such with that institution since 2006. He has practiced periodontics since 2003, he has practiced as a dentist since 1995 in Toronto. He is certified to practice in both the United States and Canada and has a number of academic awards, chiefly in 2004 and 2005 while qualifying as a specialist in periodontics. He lists numerous published articles and papers and professional presentations to his peers, mostly in the United States from 2004 to 2012, some three dozen or so in total to date.

[24] The material provided to the Court by Dr. Janakievski through mother is a balanced presentation of the two offered procedures, enabling comparison between the two and evaluating the pros and cons of each. Summarized the considerations are these:

Tooth Auto Transplantation

[25] This procedure while not widespread has been in existence for some 40 years; it is not experimental in nature but requires a greater degree of expertise than more conventional dental implant tooth replacement.

[26] Juliana's loss of three front teeth with some loss of ridge bone, and her age, make her a suitable candidate for the auto transplantation procedure. There are risks. These include ankylosis (fusing of the tooth root to the bone) and pulpal necrosis (degeneration and death of the pulpal area of the tooth). If pulpal necrosis occurs, the transplanted tooth will require endodontic treatment. If ankylosis occurs, the transplanted tooth will need to be extracted if the patient still has significant growth left. If ankylosis occurs when the patient is mature no treatment is needed. The tooth can be monitored and treated like any other adult tooth depending on symptoms.

[27] In summary the overall benefit of auto transplantation for Juliana is the replacement of three missing incisors with natural teeth that will grow and help develop and maintain the jawbone or alveolar ridge. If this treatment is not done, it is necessary to address the fact there will be continued atrophy of the ridge with future ridge augmentation and dental implant placement at the time of Juliana's physical maturity.

Dental Implant Tooth Replacement

[28] The alternative treatment program is dental implant tooth replacement. This involves implanting artificial teeth in the three tooth sockets in the mouth of Juliana when she is mature. This requires a wait of some nine or ten years. During the waiting period the alveolar ridge will continue to atrophy and grow smaller in the area where the three teeth are missing and the balance of the ridge, where teeth are present, will continue to grow naturally. This results in a larger bone graft at maturity than the lesser bone graft if done now with the auto transplantation procedure, presenting greater risk of failure.

[29] In the intervening nine or ten years Juliana will require the use of a series of removable partial dentures, chiefly for cosmetic reasons, because as the child grows the denture will have to be adjusted and replaced from time to time.

[30] It is noted that multiple implants at maturity are more problematic for success than a single implant at maturity, both with respect to appearance and bone graft success. This does not necessarily mean failure but simply more risk of failure.

[31] Dr. Janakievski summarizes the dental implant considerations as follows:

"The benefits of dental implants would be avoiding the harvesting of donor teeth and orthodontic space closure of the mandibular pre-molar sites. The challenge will be to build up the atrophied ridge and place implants to get an aesthetic result ten years from now."

[32] In addition it is clear from the material that auto transplantation gives Juliana relatively immediate relief from the social stigma attached to missing teeth through her teen years and relief from the tedium of caring for removable false teeth, impaired ease of eating and multiple orthodontic trips to service the false teeth.

[33] However the risk of failure of auto transplantation cannot be ignored. The material provided makes it clear that this procedure is not performed widely in North America, is performed more widely in Europe, particularly Scandinavia.

Direct Comparison

[34] Both plans require rehabilitation of the alveolar ridge. Auto transplantation addresses the issue immediately. False implants at maturity delays the procedure with resultant greater disparity between the size of the ridge in the affected area and the size of the ridge in the healthy teeth area of Juliana's mouth. In fact one possible side benefit of auto transplantation, if it fails, will be to provide a more healthy developed alveolar ridge at the time of false teeth implantation at maturity. That is it is possible that the auto transplantation procedure, may result, if it fails, in making implant tooth replacement at maturity easier with less risk of failure because of the alveolar ridge issue. Succinctly, the auto transplantation procedure does not exclude implant tooth replacement at maturity as an option, if failure occurs.

[35] The material discloses that for a patient like Juliana with her issues and her age there is a database success rate of over 90 percent and Dr. Janakievski has a personal success rate in the same range. This is so for a patient who is of suitable age, as Juliana is, with available pre-molars and missing teeth that are incisors and not molars. Long term longitudinal studies are not available, but there is statistical data to demonstrate that long term success, meaning 13 to 17 years after procedure, is in the 90 percent and above range. In fact this success rate is comparable to the success rate of the more conventional dental implant procedure at maturity. One study extended such success to as much as 41 years after the procedure.

[36] Father has obtained a number of letters from professionals in Ontario offering their opinions with respect to the choices available. Dr. Bourke, practicing orthodontist in Ontario, saw Juliana in October of 2012 for purposes of professional assessment of the two plans. Dr. Bourke concluded that Juliana's current orthodontist was acting in Juliana's best interests by offering all available treatment options. He described Juliana's trauma and tooth loss as unique and as a result there was no standard practice or recommended treatment plan in the orthodontic industry.

[37] Subsequently father obtained a further opinion from Dr. Stein who also examined Juliana. He indicated he had limited knowledge of auto transplantation therapy, limited knowledge of its risks and side effects. He described it as a fairly new developed procedure and not a common treatment. He pointed out long term outcomes were not known. The result was that he recommended Juliana continue with the alternative therapy with artificial tooth implant at maturity.

[38] Subsequently father obtained an opinion from Dr. Ho. He described auto transplantation as having both risks and benefits. His concern was the lack of access to specialist care for that procedure locally. On that basis it was recommended that implant replacement at maturity would be a more viable and predictable option.

[39] Subsequently father obtained an opinion from Dr. Tervit. He appeared more familiar with the two procedures in order to make comparisons. He indicated avulsed teeth can recover optimal function and aesthetics if replanted under ideal conditions (auto transplantation). He indicated the outcome was dependent on thorough understanding of the biology and appropriate case selection, important pieces of information to consider include anatomic shape of donor teeth and how they match the recipient's. In this case they would be the recipient's. It was Dr. Tervit who pointed out that his reading of published material made him aware that Dr. M. Tsukiboshi had published an article on auto transplantation of teeth. That doctor had performed some 250 auto transplantations over a period of 15 years. That doctor's experience had been a survival rate of 90 percent and a long term success rate of 82 percent at a minimum. The survival rate of the transplants into extracted sockets was 100 percent and the long term success rate was 95 percent. Survival rate into artificially formed sockets was significantly lower, reducing to 75 percent and 60 percent respectively.

[40] Unfortunately Dr. Tervit, and the other specialists from whom father sought opinions, seem not to have been aware of the material provided to the Court by mother's specialists, particularly the case history results for Dr. Janakievski. Had they had that information available, they would have been able to see that the higher success rates in the 90 percent range that Dr. Tsukiboshi experienced up to 2002 have been carried forward by other experts, including Dr. Janakievski, up to 2012.

[41] Dr. Tervit formed the opinion that because of lack of scientific evidence and the fact that the teeth had to be transplanted as immature (considered an asset by Dr. Janakievski) and sockets would have to be created for the transplanted teeth the success rate could be "extremely variable". The result was he opted for the more traditional surgery at maturity option.

[42] Two other orthodontists were also consulted by father. Each of them had the opinion that they were relatively unfamiliar with the auto transplantation procedure and, more importantly, there were a lack of experts in the geographical area where Juliana lived that were capable of performing such a procedure. The result was each favoured the more traditional transplant at maturity procedure.

Resolution

[43] Mother will be allowed to choose the remedial procedure for the accident injuries to Juliana resulting in loss of three front teeth for the following reasons.

[44] The separation agreement gave each parent joint custody of the child with each of them having an equal say with respect to health issues, which would include dental and orthodontic issues. However history indicates that a different course of action has been taken by the parents. Their first child Mitchell required traditional orthodontic treatment. Material discloses that mother engaged the caregiver, oversaw the treatment on behalf of the parents and paid for the treatment in the amount of $6,200. Requests for contribution from father for the cost of the treatment was not successful. It is clear father ceded to mother authority over decision making and responsibility for payment for this treatment required for Mitchell.

[45] Early on in documents filed father complained that mother had not involved him in the treatment process and that he was left out of the loop. Mother countered that her attempts to engage him were simply unsuccessful. It is clear from the material of both mother and father that there continues to be a great deal of animosity between them which impedes their cooperation in solving issues for the children such as this one.

[46] During the course of this action which was commenced on the 30th of October 2012 father's attitude has evolved. Once formally made aware of mother's desire to have a particular course of treatment approved by the Court with costs shared by mother and father he took the attitude that mother and her new partner had caused the problem by being involved in the boating accident giving rise to the injuries for Juliana and that she should be the one to be responsible for solving the problem. To use his words found at paragraph 24 of his affidavit filed at tab six of the continuing record: "I believe that the costs should be entirely paid for by the applicant given that her negligence caused this problem in the first place" and at paragraph 27 "Juliana's stepfather should have full responsibility of costs of this procedure".

[47] That attitude evolved to one where he wished to engage in the process, obtaining a large number of second opinions which required numerous attendances by him and Juliana at various orthodontic offices here in Ontario in November and December of 2012.

[48] Father complains that mother has kept him out of the loop with respect to the orthodontic problems with Juliana. However a review of all of the evidence indicates that father chose to be out of the loop earlier with respect to Mitchell and that mother was required to take appropriate steps to obtain professional assistance for Juliana after the accident. This is not to say that father is entirely to blame for the breakdown of communication between the parents, but the fact is the breakdown occurred and mother took the initiative to obtain professional assistance for Juliana. Father did not.

[49] Father complains that he was prevented from obtaining information with respect to what was going on. Father has a joint custody order, and could have, at his own initiative, obtained information from the attending local orthodontist and had a legal right to access to information from Dr. Janakievski in Washington state as well, independent of mother. This he did not do.

[50] It was mother who brought the action to have the Court resolve the issue between the parents, not father. Perhaps most importantly it is mother who has been the effective parent with respect to Juliana's needs as a result of the accident injury. It is likely that without the court action itself, father's attitude would have been the same as stated earlier in his material, your problem you look after it.

[51] That being so I am satisfied that despite the terms of the separation agreement, by reason of conduct of both parties, mother has the right to determine the appropriate course of conduct to address the effects of the injuries to Juliana's teeth.

[52] This does not automatically mean that mother's choice of auto transplantation is rubber stamped by the Court. The first question to be asked is what is the standard of review by the Court with respect to parental action by mother. That review should be similar to or analogous to the review by a higher court of a lower court decision where the lower court had appropriate facts and appropriate authority to make a decision. It is not the function of this Court to overrule or override a decision made by mother and substitute the Court's preferred opinion for that of mother. It is the function of this Court to review mother's decision and determine whether or not it is reasonable in all the circumstances and in the best interests of the child Juliana.

[53] The result is that a review is necessary to determine whether or not either or both of the option plans available are scientifically meritorious, have undue risk requiring exclusion as an option, and in all the circumstances are appropriate for Juliana.

[54] In this case it is clear that auto transplantation is not an experimental procedure and has a sufficient track record as to be a viable treatment option for a person such as Juliana with respect to injuries suffered, remedial action required, her age, appropriateness for the procedure keeping in mind the professional opinion that has been offered to the Court for consideration. The objection that the procedure is experimental is not accepted. There is a track record of some 40 years or so in Europe, there is a track record in North America which predates 2002 and there is the personal track record of Dr. Janakievski which has been detailed to the Court in filings by mother. All of that material indicates a consistent high success rate provided the candidate and the attendant circumstances are favourable. They are here. The child has premature molars that can be transplanted, the site is in the front of her jaw where success is greater, the person doing the operation will be the person who currently has the greatest number of recorded operations in North America with a track record of peer review over a number of years of his work and of his theories and ideas on the subject. Half a dozen local orthodontists sought out by father either concurred with the treatment proposed (1), lacked knowledge of the treatment in order give a proper opinion (3), determined that a significant factor was a lack of local expertise (3), or described it as experimental (1), which is fact not true.

[55] It is clear that father, in obtaining the opinions from the various local orthodontists did not provide them with any of the material filed by mother and served upon father before any of the visits to these orthodontists took place. None of them refer to receiving such material and none of them comment on such material.

[56] In fact there are documented success rates which are relatively consistent between studies, there is a North American expert available to do the procedure, there are local experts available to do follow up work and to coordinate with the North American expert, and there are local persons available to provide the supplementary expertise to team manage the issues that may arise in the future.

[57] There is little difference in the success rates for the two procedures. In fact auto transplantation has a high success rate for a patient like Juliana and her patient profile. In the event of failure, which cannot be ignored, there is some pain and suffering for Juliana, some financial costs for her mother, but implants at maturity will not be compromised and the likelihood of success of such implants at maturity may be increased or enhanced because of the procedure done now to foster growth in the alveolar ridge in the ten year interim.

[58] The alternative procedure of artificial implant at maturity has risks. This will entail long term social deficit for Juliana, wearing temporary false teeth through all of her teenage years, which will also impair her ability to eat food to some small degree. There will be risks at maturity when the procedures are done. The number of teeth to be implanted, the number of years during which the alveolar ridge has atrophied or shrunk in the affected site, when the adjoining alveolar ridge on both sides will have continued to grow, will be problematic for that procedure.

[59] The child favours auto transplantation done now. It may be that she is too young, as father argues, to make an informed decision about such an important medical matter. However the fact that she is onside and supportive of the auto transplantation procedure is a positive for that procedure. At the very least she will be motivated to do what is required of her over the coming years in order to make that procedure a success.

[60] The result is that it cannot be said that mother's decision to move forward with auto transplantation is a desperate bid, contrary to scientific evidence, to arrive at a miracle cure for her daughter. Rather it is a choice between two competing, but equally valid options to repair the damage done to Juliana's teeth and mouth. That being so it is not the function of this Court to second guess mother's decision and to usurp her role as the custodial parent having control over this decision making process.

[61] That is not to say that father cannot participate in the decision making process in the future. In fact it is hoped that now that the decision has been made father will be supportive of Juliana in the difficult times that are ahead for her engaged in this procedure.

[62] By a consent order made at the hearing of this motion father will have no monetary obligation with respect to the procedure, the full cost to be borne by mother.

[63] For these reasons the orders are as follows:

Orders

1) The Applicant mother has full authority on behalf of the child Juliana to approve all procedures, and sign all documents required, for Juliana to participate in auto transplant surgery with Dr. Janakievski and follow up work by appropriate professionals in the Province of Ontario in cooperation with Dr. Janakievski.

2) Father will cooperate in all ways, except for the payment of money, to facilitate the procedures required for auto transplantation as soon as possible including but not limited to the provision of the existing passport for Juliana to mother so that Juliana can travel between the United States and Canada for the required procedures.

3) Father is entitled to access to all documents and to participatory interviews, personally or otherwise, with the relevant professionals, to remain informed about the procedures for Juliana including the dates and times of such procedures so that he can attend if he chooses.

4) There will be no order for costs unless a request for costs is made in writing within 21 days of the date of this judgment, with response from the other party to that request for costs within 40 days of the date of this order.

Dated at Cayuga, Ontario

This 3rd day of July, 2013

The Honourable Justice L. P. Thibideau