ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-08-028967-00
DATE: 20121009

BETWEEN:

FRANCO RUFFOLO Applicant – and – MICHELLE DAVID Respondent

Applicant, Self-Represented
Respondent, Self-Represented

HEARD: By written submissions

ADDENDUM

HEALEY J.

[ 1 ] This addendum is further to my judgment released after trial ( 2011 ONSC 7234 ) and deals only with the issue of health care related and extraordinary expenses for primary school education, pursuant to s. 7 of the Child Support Guidelines (Ontario) O.Reg.391/97, as amended (the “ Guidelines ”).

[ 2 ] In this proceeding the respondent made a claim against the applicant for assistance with the costs of s. 7 expenses for their daughter Nicole and their son Michael, currently ages 9 and 6.

[ 3 ] Section 7 allows for additional amounts to be ordered for child support to address such things as health care expenses exceeding $100 per illness or event, and “extraordinary expenses” for primary school education. Subsidies that are received are to be factored into the calculation.

[ 4 ] The section contains a two-part test. The expense must be shown to be necessary in relation to the child’s best interests and reasonable in relation to the means of the spouses and to the family’s spending pattern before the separation. In assessing whether the education costs are an “extraordinary expense”, I am required to consider both the income of the respondent and the amount of child support received by her. Such considerations factor into whether the education expenses exceed those that she can reasonably cover with those resources. If the expense does not exceed that which the respondent can reasonably cover, the court is directed to next consider five factors: the amount of the expense in relation to her income, including the child support component; the nature and number of the educational programs; any special needs or talents of the children; the overall costs of the programs and activities; and any other similar factor that the court considers relevant. Before considering the issue of whether an expense is “extraordinary”, it must still be proven to be necessary, and if necessary, also reasonable.

[ 5 ] Before closing submissions began, I advised the parties that there had been insufficient evidence presented during the trial for the court to make a determination regarding the necessity of the health care and primary education expenses being claimed. Because Nicole has special needs, I indicated that it was in her best interests that the court receive further and better evidence on which to base any decision impacting on her health and educational needs. A continuation of the trial was to occur on the issue of s.7 expenses only, on a date to be set by counsel and the trial co-ordinator. Prior to that date, the parties were directed to serve one another with medical reports of the treating physicians, to be provided within 90 days.

[ 6 ] The parties were not responsive to the court’s direction to prepare for further testimony on the issue of section 7 expenses.

[ 7 ] On September 27, 2011 I wrote to counsel and asked them to arrange a conference call with me to set a timetable to conclude this matter. The next day, Mr. Ruffolo’s trial counsel advised that he was no longer acting for Mr. Ruffolo. Throughout the fall, two further letters were sent from the court to Ms. David’s counsel, requesting that he advise the court of his client’s intentions with respect to proceeding with additional evidence in support of her claim. In the event that Ms. David would not be calling further evidence, the court requested written submissions on the issue of s.7 expenses, imposing deadlines for the filing of material throughout October and November, 2011.

[ 8 ] Those deadlines were extended after Ms. David’s lawyer indicated that he was having difficulty reaching one of Nicole’s physicians. By letter dated November 7, 2011, the court directed:

1. Either party has until December 31, 2011 to serve an expert medical report or reports pertaining to the issue of Nicole Ruffolo’s autism;

2. Any responding or reply reports are to be served by January 31, 2012;

3. In the event that no expert reports are served by December 31, 2011, Mr. Rechtshaffen is to notify the court of this fact in correspondence delivered to my office, providing a copy to Mr. Ruffolo;

4. In the event that one or more reports are delivered by December 31, 2011, the parties may proceed after that date to schedule a one-day hearing for the receipt of the oral evidence of those experts;

5. No further evidence of the expenses incurred in 2011 will be permitted at this time, as the sole reason for the potential trial continuation is to provide evidence pertaining to the issue of the necessity of the expenses claimed.

[ 9 ] Sometime thereafter, Ms. David released her lawyer and became self-represented.

[ 10 ] On December 30, 2011, Mr. Ruffolo submitted a letter dated December 21, 2011 from Dr. Freedman, a paediatrician, not in the form of an affidavit. The pertinent portions of that letter provide:

This letter is to confirm that I have looked after Nicole Ruffolo beginning July 24, 2008. She has been brought in by one of her parents whenever there were ever any acute medical issues that came up. It should be noted that at no time have (sic) either parent brought her in for an annual health examination. Therefore, I am unaware as to her growth or development state; similarly I am not aware of her immunization status.

I have been told by the parents that Nicole was diagnosed as having Autism prior to me first seeing her in July 2008. Unfortunately, I have never been given a copy of the assessment that was done to make the diagnosis, nor am I aware of the severity of the Autism.

Therefore, I am unable to render an opinion as to what her needs are in that regard.

[ 11 ] Nothing was received from Ms. David until March 20, 2012, when she submitted a tabbed binder with various documents, no affidavit, and no explanation for the delay. At that time the court was working to finalize its judgment with respect to the s.7 claim. I briefly reviewed the binder’s contents and considered it potentially relevant to the issue of s. 7 expenses, such that the court should consider it further.

[ 12 ] It need hardly be pointed out that at this point I was dealing entirely with hearsay. The law of hearsay, expert testimony, and the requirements of Rule 23 in the relation to experts reports were not heeded by these parties. In retrospect, they could have been directed to present their evidence orally, although based on the trial experience, as detailed in my Reasons for Judgment, this would not have been of much assistance. Also, as described in my Reasons, these parties have been through a long and undoubtedly very costly proceeding; they were likely to remain unrepresented even if I directed a further oral hearing.

[ 13 ] Due to some confusion as to whether Mr. Ruffolo had been served with the binder delivered to the court, an extension was given to him to May 31, 2012 to file responding submissions.

[ 14 ] A letter was received from Mr. Ruffolo on May 7, 2012 requesting a further extension of the timelines. He also requested permission from the court to submit proof of income for the past few years, which would include a business and income valuation study. The time to submit such a report was at the trial. This court has no jurisdiction at this time to vary the support order made at trial on the basis of new evidence that could have, with reasonable diligence, been made available at trial. Further, the forum to make such a request is not in written submissions pertaining to add-on expenses. Ultimately, the applicant’s timeline was extended to July 31, 2012. Mr. Ruffolo’s submissions arrived on that date, containing voluminous hearsay documents, including multiple articles taken from the internet.

[ 15 ] From the respondent’s submissions comes the following information:

(i) By letter dated February 3, 2009, Dr. Freedman confirmed that Nicole is a patient under his care, confirmed that she has been diagnosed with autism, and that the disability has a significant impact on activities of her daily life requiring multiple special needs that would (sic) beneficial to her. It is noted that this letter pre-dates the applicant’s letter from Dr. Freedman by well over two years, in which Dr. Freedman clearly states that he is unable to assess Nicole’s needs related to autism;

(ii) Dr. Cutler had been treating Nicole for ASD since January 24, 2008 through diet, supplements and intravenous therapy. He has recommended a gluten/wheat/dairy/cassein/soy free diet, and has prescribed an extensive list of dietary requirements and supplements to be administered on a daily basis. By letter dated October 22, 2011, he advised that Nicole has regressed when attempts have been made to reduce the supplements or alter her diet. Her improved symptoms include 1. sleep, 2. gastrointestinal, 3. speech, 4. social, 5. behaviour. The letter also advises that Nicole is prone to yeast infections. The court notes that Dr. Cutler’s training, credentials and areas of expertise have never been fully explained or proven in this proceeding;

(iii) Receipts for prescriptions were provided but there was no indication as to monthly or annual costs;

(iv) Invoices from a consulting physician were included, described by the respondent as the “top autism doctor out of United States working in coalition with Dr. Cutler”;

(v) An assessment report completed by a clinical psychologist when Nicole was six years old indicates low percentile rankings (ten down to as low as one percentile) for communication, daily living skills, socialization, motor skills and adaptive behaviour;

(vi) The individual education plan for the 2011/2012 York Catholic District School Board indicates that accommodation was provided, that Nicole did not follow the provincial curriculum, and that she was exempt from provincial assessments;

(vii) Nicole is attending a special education centre, OpenMind Alliance, receiving Intensive Behavioural Intervention (“IBI”) therapies from 1 to 5 p.m. daily. The program is funded by Kinark Child and Family Services and supervised by psychologist James Porter. She began IBI at OpenMind Alliance in June 2011. During the trial the court heard evidence regarding Nicole’s earlier attendance at Puzzle Pieces, also for IBI therapy;

(viii) Dr. John Jaskot, doctor of chiropractic medicine, advised by letter that Nicole has been under his care since April 13, 2006. He recommends that she continue to receive chiropractic care on a regular supportive frequency in order to maintain her spinal mechanics in good order and to prevent any inflammatory conditions;

(ix) A statement of services from Meditech for laser therapy at $45 per treatment, said to be for tightness for Nicole achilles tendon, which causes her to walk on her toes, and for a similar condition of her cervical spine;

(x) While Michael’s report card dated February 3, 2012 has been submitted, it does not support the respondent’s submission that he has educational or physical challenges.

[ 16 ] All other documents submitted by the applicant, together with her commentary on them, have not been taken into consideration, as they are irrelevant to the issue of s. 7 expenses. All evidence given at the trial proper regarding health care and education-related expenses has been considered.

[ 17 ] From the applicant’s submissions comes the following information:

(i) Nicole can now dress herself, make a bed, set the table, help with cooking and laundry, ride her bike, swim and ice skate and is enrolled in several extra-curricular activities without an aid;

(ii) Michael shows no signs of autism, and the applicant denies that Michael has only one kidney. There is, in fact, no medical evidence that Michael has only one kidney;

(iii) Dr. Freedman has advised the applicant that he can give no opinion regarding the alternative therapies given to Nicole;

(iv) The applicant is against the chelation therapy being administered to Nicole, stating that it is controversial and not being administered by Dr. Cutler himself;

(v) Nicole takes vitamins and supplements numbering between 100 and 120 per day, and the applicant has no confidence that they are assisting her. He is concerned that they may be harming her;

(vi) Nicole does not need constant one-on-one support;

(vii) The respondent uses the chiropractor to address many health issues for the children, including strep throat, as she refuses antibiotics;

(viii) The respondent has never consulted with him regarding any of the costs incurred since separation.

[ 18 ] I will first comment on the written submissions made by both parties.

[ 19 ] Regrettably, Ms. David’s submissions leave no doubt in the reader’s mind that she continues to bear a worrisome level of animosity toward Mr. Ruffolo. Her attempts to malign his character are transparent. They convey that she considers herself the only parent to add value to the children’s lives. The language used by her expresses that she sees herself as the martyred parent, sacrificing her life for her children, while Mr. Ruffolo ignores their needs and places them at risk. Examples of such statements are:

• “I was advised that eventually Frank would tire and my children would be safe”;

• “the fact that he so aggressively fights paying means he does not care about our children”;

• “I ask this court to grant custody to my living sisters in the event of my death”;

• “sexual abuse of the mentally disabled happens every day. The fact that this court so freely ordered my daughter to sleep at an unknown residence for five years of her very vulnerable years of life is abuse”;

• “I am afraid for my children’s safety each and every time they are with him”;

• “these years that Frank has stolen from my children can never be made up”;

• “my children could have been in therapies and programs but instead have had to pass up on their lives so that their dad could have mid-week access to which he does not even make 50% of the time”.

[ 20 ] Also clear is that the respondent is fixated on her children’s health to a point where she may have lost her ability to objectively assess their needs and health requirements. She testified during the trial that Michael had been born with one kidney and a non-descended testicle, suggesting that these were serious medical challenges. She produced no medical evidence to substantiate any of her concerns. Without any evidence that Michael has any biological or genetic abnormalities, she has placed Michael on the same restricted diet as Nicole ever since he began eating solid foods. The applicant wrote in her submissions:

Countless studies are now available documenting Michael’s chances of having Autism being tenfold. Michael has one kidney and other medical issues. Michael truly is a miracle today that he is not on the spectrum. Everything we know today would put him on the spectrum. However, puberty is another marker for symptoms to appear. I work religiously to intervene in accordance with medical science.

[ 21 ] Based on what I heard during the trial and have read in the respondent’s submissions, I place little weight on anything but the most objective documentation impacting on the necessity of health related costs. Using the respondent’s evidence to assess the reasonableness and necessity of these expenses is problematic. I have concluded that the respondent’s motivations for incurring an extremely high amount of health-related expenses are: first, she will follow almost any suggestion for treatment of her daughter’s ASD; second, she wishes to prove that she is the superior parent who will pursue interventions at all cost; and third, the children’s health-related needs, as she perceives them, are used to demonize Mr. Ruffolo. Unfortunately, this view has likely been passed on to six-year-old Michael. In her submission the respondent wrote:

I lived eight years in a verbally abusive marriage and therefore truly understand the situations that my son was forced to succumb to in the early years. However, my son was much stronger than myself and to this day refuses to go on access with his father….my son today is a very strong young individual. He speaks up for himself and does not allow the emotional abuse and verbal abuse to change his own self image. How can a mother protect her children under these circumstances is still unknown to me. The only tools I can give my son is to believe in himself and know that he is important and a social equal. My son is capable of making choices and understanding that there are consequences to decisions. My son speaks out on every access visit that he will not go with his father….

[ 22 ] The applicant’s view of Nicole’s needs is far more objective. He does not deny that she has ASD, but he feels that she has so many things being done to her at once that it is difficult to determine which ones are helping and which ones are not. He is highly concerned that the respondent may be permitting treatments and therapies that are unnecessary, painful, and harmful, physically and even emotionally.

[ 23 ] The respondent looks to the court to intervene to stop the alternative therapies that he now believes may be harming his children. His concern may be warranted. However, no ruling could be made by the court strictly on the basis of articles taken from the internet and newspapers. That may be a different proceeding for a different day, and one that may well benefit from the involvement and assistance of the Office of Children’s Lawyer. To seek to restrain a custodial parent from administering medical or health related treatment is a request that would require reliable and persuasive medical evidence. I note, however, that the articles said to be published by the Mayo Clinic offer statements that discount the benefits of special diets, warn against chelation therapy, and dismiss the view that vaccinations are responsible for autism. The applicant also suggests that the theories and practices of DAN doctors (“defeat autism now”), of which Dr. Cutler is one, are being widely discredited within the broader medical community, based on what he has read, and that the alternative therapies being advocated by DAN doctors may in fact be harmful. The court can take no position at this time; the test before me is not whether the treatments are harmful or helpful, but whether their cost is reasonable and necessary.

[ 24 ] Regrettably, all of these submissions lead this court to the same place that it was in at the end of trial. The respondent has failed to prove anything other than:

(i) Nicole has ASD;

(ii) IBI therapy is indicated and is considered to be of sufficient necessity to meet the funding criteria of Kinark Child and Family Services (“Kinark”).

[ 25 ] I find that the evidence is inconclusive as to whether any alternative therapy – whether hyberbaric oxygen tank treatment, daily injections of methylcobalamin, a highly restricted and organic diet, supplements, chiropractic care, cranial massage therapy, consultation with DAN doctors in the United States, and multiple other interventions and steps taken by the respondent – is necessary for the treatment of Nicole. I find that there is no evidence that speech therapy has been recommended or would be beneficial to Nicole.

[ 26 ] I also find there is no evidence that Michael has ever had any special health or educational needs.

[ 27 ] While the children have been enrolled in camps over the past two summers, this is not a necessary expense given that the respondent is unemployed, does not require day care for any other reason, and there is no evidence that these camps are health-related.

[ 28 ] Although the respondent produces private school receipts, there is no evidence that the applicant was consulted about and/or agreed to these costs during the many years that the parties were presumed to make such custodial decisions together. And although Nicole was attending a private school at the time of the parties’ separation, again, there is insufficient evidence proving that it was necessary that such a cost should continue after separation, for the purpose of her health or development.

[ 29 ] There is some evidence of expenses paid by the respondent related to the IBI programs. These are the costs associated with the clinical supervision provided by Dr. Eric Davis and Dr. Porter. There are past and ongoing costs for the IBI providers, Puzzle Pieces and OpenMind Alliance. I accept that these expenses are necessary within the meaning of s.7 .

[ 30 ] However, on the evidence I am not satisfied of the extent to which the fees incurred are greater than the amount being funded by Kinark, if at all. I am not even sure of the amount covered by the Kinark funding agreement each year. The evidence that has been filed shows that, for the four month period from September 28, 2009 to December 27, 2009, funding of $10,140 was approved by Kinark for IBI services. There has been insufficient evidence of the total subsidy from Kinark since the separation.

[ 31 ] In the final analysis, the entirety of the respondent’s claim for s. 7 expenses from date of separation must be dismissed, either on the ground that the expense is not necessary, or because of lack of evidence that the expense is necessary, or because, in relation to the IBI related expenses, insufficient evidence has been provided to satisfy the court that an award of support should be made.

Costs

[ 32 ] As these reasons now conclude all of the matters before the court in file number FC-08-028967-00, the parties are invited to make brief submissions on costs. These submissions shall be no longer than two double-spaced typed pages. The only additional enclosures that may be provided with those written submissions are:

1. Evidence of legal fees paid;

2. Evidence of out-of-pocket costs for court filing fees or service of documents;

3. The cost of obtaining documentation from health care professionals, schools, or financial institutions, but only where that documentation has been relied during the trial or in the parties written submissions;

4. Any case law being relied upon; and

5. Any written settlement offers.

[ 33 ] The deadline for serving and filing costs submissions is October 29 for the applicant and November 9 for the respondent. No extensions will be granted.

HEALEY J.

Released: October 9, 2012