Superior Court of Justice - Ontario

Court File No.: 451/11
Date: 2012/04/25

RE: THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION, Applicant

AND:

J.J. AND R.J., Respondents

BEFORE: The Honourable Mr. Justice D.J. Taliano

COUNSEL:
Kim Hertwig, Counsel, for the Applicant

Self-represented Respondents

COSTS ENDORSEMENT

[ 1 ] The Society commenced proceedings on July 6, 2011 seeking to place the child, E.J., born […], 1996, in the temporary care and custody of her parents under the supervision of the Society. The basis for the application was as set out in the affidavit of Joanna Smyth. In this affidavit, she alleges that the Society received a referral from Dr. Johnson of McMaster Children's Hospital Eating Disorder Clinic, where E. was being treated for anorexia. In addition, Dr. Johnson reported concerns that E.’s mother had requested to have E. discharged from the clinic against the hospital's recommendations and had doubled E.'s medication without the doctor's knowledge or consent.

[ 2 ] The Society attempted to meet with Mrs. J. to discuss these concerns on December 21, 2010. Despite the fact that the father had agreed to the meeting, the mother refused to permit the Society’s staff to enter their home. The mother also stated that she did not wish to return E. to the hospital and refused to discuss her decision with the Society. At this time, E. was known to have low blood pressure, low glucose, was underweight and had a low heart rate. She was diagnosed as suffering from anorexia and had been restricting her food intake almost to the point of consuming no food. Her situation was described as being acute.

[ 3 ] School officials had also been concerned with E.'s medical condition as early as September 2010. When school officials brought the matter to Mrs. J.’s attention, Mrs. J. was reported to have been evasive and noncommittal and did not seem to recognize the seriousness of E.’s eating disorder despite the fact that E. had lost and was continuing to lose weight. Following these initial conversations, the mother allegedly failed to respond to attempts by school officials to discuss E.’s medical condition.

[ 4 ] Although Society officials continued to try to monitor E.’s situation, the mother did not welcome the Society’s intervention. Indeed, she could properly be described as being hostile to the Society. By May 30, 2011, the Society received a report from school officials that E. appeared emaciated, was losing hair, was pale, weighed about 70 pounds and had been taken E. out of school. Her family doctor also confirmed that E. was getting worse. Although Dr. Elltoft wanted E. treated at McMaster Hospital, the mother was not in favour of this Hospital's further treatment of E. Society concerns were worsened when they learned from E.’s paediatrician, that the mother was minimizing the seriousness of E.'s condition. Attempts by Society officials to reach the mother were not successful and, finally, on June 17, the mother advised Society officials to stop attempting to contact the family.

[ 5 ] This state of affairs led to a motion by the Society for an interim supervision order and on July 18, 2011, a “without prejudice” interim order was made. Although the parents were aware of the court date, they could not attend because they had been notified only at the last minute that they had been successful in securing an appointment with a doctor from McMaster that they felt they could trust and would undertake responsibility for E.’s case. They informed the Society of the conflicting appointments and that they would be unable to attend court. Notwithstanding, the earlier interim order was confirmed in their absence on September 20, 2011 by Mr. Justice Ramsey.

[ 6 ] In his brief endorsement, Ramsey J. concluded that although medical information pertaining to E. was in the control of the parents, they had not seen fit to file any of this information. In addition, Justice Ramsey observed that since the parents were severely critical of both the Society and McMaster Hospital, their attitude was inappropriate and that E. was therefore at risk. He concluded therefore that a supervision order was “well founded”.

[ 7 ] Since the making of this order, the parents have supplied medical reports to the Society that indicate that the parents are diligently following medical recommendations regarding E.’s care and that E.’s health has been steadily improving since her care has been taken over by the physician whom they had missed court to see. On January 17, 2012, the Society withdrew its application. When the Society did so, the parents indicated that they wanted to file a claim to recover the costs of this proceeding against the Society.

[ 8 ] The parents filed a written claim for costs dated February 10, 2012 seeking the sum of $58,000 for lost income, legal fees and damages for invasion of privacy and compensation for compromising the family’s relationships with its medical professionals.

[ 9 ] However, the parents have not filed any documentation to support their monetary claims. They have not produced any invoices from lawyers with respect to legal fees that they may have incurred, nor have they produced any documentation to support the lost income claim which they allege. They have not supplied any proof that their professional relationships have been compromised by the Society. In addition, this court has no jurisdiction within the confines of this costs motion to award damages to the parents for the Society’s actions. That being the case, there is no need for a further hearing.

[ 10 ] Even if the parents had filed appropriate documentation to support their cost claim, I am not persuaded that they would be entitled to an order. I say that because, it is clear that the Society was only responding to concerns expressed by both medical and school officials regarding E.’s health and her medical care. The Society had a statutory obligation to investigate these concerns and they did so. Once their concerns were alleviated by credible information supplied by the doctors in charge of E.'s care, the Society abandoned its application.

[ 11 ] Although I have some sympathy for the parents since it is now apparent that they were responsible and diligent in dealing with E.’s medical problems, nevertheless, they were not forthcoming with the Society. I can appreciate how difficult it must have been for the parents to cope with the serious medical problem that E. was experiencing on the one hand and at the same time respond appropriately to CAS officials. However, the Society was simply doing its job and was not receiving the degree of co-operation that they required to alleviate the concerns that had been expressed by school and medical officials. That being the case, an order for costs against the Society cannot be justified.

[ 12 ] Accordingly, the application for costs must be denied.

Taliano J.

Date: April 25, 2012