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Copied and pasted from the transcripts:
The trial of this action, together with closing arguments was heard on October 21st, 2014 and December 12, 2014, and I reserved judgment until today. The plaintiff has been represented by Mr. Jacquesson, a licensed paralegal. The defendant has been represented by Mr. Brown, a lawyer. The plaintiff, Tammy Larabie runs an unlicensed daycare from her residence situated at 11 Pony Avenue, North York, Ontario. The defendants, Christopher Cui and Iris Lee are husband and wife and are the parents of Ziven. The parties entered into a written contract dated March 19, 2013, wherein Ziven was to attend the daycare from 7:00 a.m. to 5:30 p.m., Monday to Friday. Ziven was in the plaintiff’s home for approximately four months from March 19, 2013 until approximately July 16, 2013. Ziven was born May 23, 2012. Therefore he was just under one when he commenced daycare and just over one when he terminated.
The terms of payment were $40 per day until Ziven was one and $35 per day thereafter. The terms of the contract required the defendants, Christopher and Iris, to provide two weeks written notice in the event that they were to remove Ziven from the daycare. The defendants paid a $200 deposit. It is agreed by all parties that the defendants removed Ziven from the daycare on or about July 16, 2013, without prior notice. It is also agreed that the plaintiff lodged a complaint with the Children’s Aid Society on or about July 11th without prior notice to the defendants.
It was alleged by the plaintiff to the Children’s Aid that Ziven’s physical care was in danger as a result of neglect by his parents. It is also agreed that the defendants stopped payment on their last cheque in the amount of $200, which was dated July 12, 2013. As the plaintiff still had a security deposit, it is agreed that other than the $10 differential, the plaintiff was paid for all of the time that Ziven was in daycare. The plaintiff, however, sues for two weeks of services due to the fact that there was no written notice, in the amount of $380, together with late fees, interest and penalties, for a total of approximately $735 owing at the time of the trial, together with her costs of this litigation. While the defendants admit removing Ziven without notice, their position is that they were justified in doing so on two grounds. One, the terms of the contract stated that, “No smoking is allowed on the premises.” It is their position that this condition was breached.
Number two, it is also the defendants’ position that without proper cause and without notice to the defendants, while Ziven was still in the plaintiff's care, the plaintiff reported the defendants to the Children’s Aid alleging parental neglect and stating that Ziven was in danger under the defendants’ care. It is their position that there were no reasonable grounds for these allegations and as such the plaintiff’s conduct amounted to a fundamental breach of contract which justified the defendants’ removing Ziven without being required to give the two weeks written notice. The issue of reporting the defendant to the Children’s Aid also constitutes the basis for the defendants’ claim in which the defendants request $10,000 for emotional pain and suffering as a result of being investigated by the Children’s Aid. Counsel requests $2,000 for Christopher and $8,000 for Iris.
By way of further background, the plaintiff started her unlicensed daycare in June of 2011. She admits that she has no degrees or certificates in daycare. She candidly admits that her function is more of that of a babysitter. I have no evidence to suggest that Ms. Larabie has any training or expertise in diet or in medicine. I now deal with the smoking issue. The wording in the contract is, “No smoking is allowed on the premises.” It is acknowledged that the plaintiff’s husband was a very heavy smoker who smoked approximately one and a half packages per day but quit smoking in June of 2013. The evidence of the plaintiff and her husband was that he only smoked outside in the backyard and never in the presence of the children.
Counsel for the defendant relies on the Smoke Free Ontario Act and the Day Nurseries Act which would suggest that smoking outside the house but on the premises would still be barred. It is the plaintiff’s position that she is not bound by the legislation as she does not run a licensed daycare and it is her interpretation of the contract between herself and the defendants that only smoking within the house is disallowed. It is not disputed that second hand smoke would still be in the house. I accept the evidence of the defendants that Ziven often had the odour of second-hand smoke on his clothing. The defendants acknowledged candidly, however, that they never confronted the plaintiff with the smoking issue as they wanted to keep harmony between them.
They stated they were actively seeking an alternative licensed daycare but could not find one and therefore elected to keep Ziven with the plaintiff. The plaintiff’s husband testified that he quit smoking in June and I have heard no evidence to dispute this. While I have very deep concerns with Ziven’s exposure to second-hand smoke at his tender age, and I question why the plaintiff would allow this if she was so concerned with the well-being of the children as she would have me believe, the conduct of the defendants clearly condoned any issues relating to smoking and this defense was raised after the fact. I am therefore not prepared to allow this defense to prevail.
I now deal with the issue relating to the Children’s Aid Society. The duty to report neglect is governed by the Child and Family Services Act
The health, safety and welfare of children must be protected as much as possible. The law is designed to bring forward to the attention of the proper authorities all reasonable grounds for suspicious conduct and concern with respect to the welfare of children. The Act sets out a list of situations wherein a person who performs professional or official duties with respect to children and has reasonable suspicions, must report to the Society forthwith.
The plaintiff’s evidence is that her reporting is based on Section 7.2(1) and (2) of the Act, which reads as follows, “If there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect the child or a pattern of neglect in caring for or providing for, supervising, or protecting the child.” However one must also consider this section in conjunction with Section 7(e), which I quote, “No action for making the report shall be made against the person who acts in accordance with this Section unless the person acts maliciously or without reasonable grounds for the suspicion." By inference, therefore, it is obvious that the conduct of reporting is actionable if the report is made with malice or without reasonable grounds.” It now becomes necessary to review the nature of the complaints to determine if there are reasonable grounds or if there has been malice. I have very carefully reviewed the many and constant texts between the plaintiff and Iris.
Until the time of the report to the Children’s Aid Society, I found nothing to suggest that Ziven was in any danger, nor was it ever suggested by the plaintiff. Ziven, in my view had normal every day ailments that most, if not all infants endure. He had fever in May. Counsel agrees that this alone does not constitute parental neglect. He once had an ear infection and had several bouts of diarrhea. No serious concerns were ever raised. How did the parents deal with these issues? Iris was in constant contact with the plaintiff to monitor his progress. She, on several occasions, kept him out of daycare and stayed home with him, taking a day off work when he was sick. She regularly took him to his pediatrician and followed the doctor’s advice. She even made special meals for him instead of having him eat the plaintiff’s food. The doctor advised that the plaintiff’s menu contained too much salt. As a result, Iris provided a special diet of rice, fruit, vegetables and meat as recommended by the doctor.
I find nothing in Ziven’s health history, either individually or in totality to suggest that he was in any physical danger. I find no evidence relating to the parental care which would suggest that they were not totally and properly attentive to his physical needs. It was only after the reporting to the Children’s Aid Society and after Ziven was removed from the plaintiff’s daycare that the plaintiff wrote letters to the defendants expressing concern. The plaintiff vigorously raises the issue that Ziven lost one percentile in weight. The plaintiff had no notion that he lost weight until told by the defendants, who took him to the doctor who advised of same and the defendants openly shared this information with the plaintiff. It is common knowledge that doctors have a legal and professional duty to report neglect. This was not done in this case. The plaintiff, Ms. Larabie, had all contact information of the doctor but took no steps in attempting to contact the doctor herself or speak to the defendants at any time.
The plaintiff does not have any professional skills or background to question or criticize the recommendations of the doctor. She went on Google and formed her own medical opinion which has not been substantiated and makes no sense. She, after the fact, expressed concerns that Ziven slept too much in the afternoon and more than the other children. It is to be noted that Ziven was eight months younger than the next oldest child and obviously required more sleep. I have heard no evidence to suggest that the amount of sleep was abnormal or presented any signs of danger.
She criticized the defendants’ diet saying it did not provide enough nutrition, yet knowing through a number of conversations with Iris, that it was suggested by the pediatrician. The plaintiff has no expertise in diet or nutrition. I find that the July letters of the plaintiff, all after the termination, to be self-serving, only to protect the plaintiff’s position. They raise concerns that were never before raised. They go so far as to suggest that the defendant should seriously question the wisdom of their doctor’s recommendations advising that doctors can make mistakes. In matters of credibility, I much prefer the evidence of the defendants in matters where the evidence is in conflict. It is most important in this litigation to note that on or about July 8, 2013, approximately three days before reporting the defendants to the Children’s Aid Society, a child died in an unlicensed daycare.
It is also important to note that at the time, the competency of unlicensed daycare operators receive considerable media coverage and scrutiny. The plaintiff admitted that in reporting the defendant to the Children’s Aid Society, she was trying to protect herself and also trying to protect Ziven. I do not accept this explanation. I find that her reporting the defendants to the Children’s Aid was a reaction, if not an over-reaction to the current public pressure on unlicensed daycares.
I am satisfied on the evidence and demeanour of the plaintiff that she panicked and over-reacted when reporting the defendants to the Children’s Aid. It is not reasonable to conclude on the evidence before me that the child was in any danger or that there was any parental neglect. I am also satisfied that the plaintiff had no such realistic concerns, particularly as they were all expressed only after the termination of her services. While her actions may not meet the test of malice, I am satisfied that the report was not at all for the purposes of protecting Ziven, but for the purposes of protecting the plaintiff and that there were no reasonable grounds for the complaint. A report from the Children’s Aid Society dated August 8th concluded after an investigation that the plaintiff’s claims were not substantiated. A letter from the child’s pediatrician dated August 15th, confirmed that the child was always in good health and received excellent care from his parents.
In the contractual relationship between the parties, the plaintiff had a duty of care to the parents not to make boundless complaints. The Supreme Court of Canada has ruled that good faith is an integral part of contract law which I find was not present in this case. I find that the unfounded complaint to the Children’s Aid Society created emotional distress to the defendants and that the consequences of her actions were foreseeable. She ought to have known that this type of complaint would have the impact on the defendants which it did. The plaintiff’s actions caused great distress to the parents.
I find therefore, that the reporting to the Children’s Aid was not a reasonable action and created such an air of hostility and lack of good faith, that it constitutes a fundamental breach of contract by the plaintiff. It cannot possibly be expected under the circumstances to expect the defendants to keep Ziven at the plaintiff’s daycare. I find therefore, that the defendants were justified in removing Ziven without notice, not on the grounds of smoking but on the grounds of the report to the Children’s Aid Society.
The plaintiff’s claim is therefore dismissed.
For the same reasons I allow the defendant’s claim and now deal with the assessment of damages. The defendants are a young couple in their early 30’s who now have their second child. Christopher is a business analyst. Iris is a manager of operations for a financial firm. I believe that Christopher was deeply hurt and crushed from the investigation. At the trial, he was so choked with emotion that he could barely express himself. He was very frank and honest when he stated that his pain did not remotely compare to that of his wife who was totally overwhelmed. Iris described her shock at receiving a voice mail from the Children’s Aid Society without prior notice that they were investigating a claim of parental negligence, a claim that their child did not receive proper care and was underdeveloped. A social worker attended at their home a few days later with a registered nurse.
The conclusion was that Ziven looked healthy and chubby and they were totally satisfied that the parents were properly following the doctor’s orders with respect to feeding patterns. It is well known, however, that these complaints and investigations remain on record permanently. Iris felt inadequate as a mother. At the time she was pregnant with her second child. She was
totally shocked and taken by surprise. She felt guilty, tense and stressed. She was a most credible witness, speaking about very sensitive and painful issues. She stated that the plaintiff told her to have Ziven eat the plaintiff’s food.
Iris told her repeatedly that there was too much salt content and she was following doctor’s orders. The plaintiff often provided Kraft Dinner which was high in sodium. Iris had in the past suffered from depression. She saw a psychiatrist as a result of this episode. She was put on anti-depressants, 25 milligrams of Zoloft. It was later doubled to 50 milligrams. She is still on medication and is affected by the incident. I find the defendants to be competent, caring and capable parents who properly looked after the best interests of their son. I find that there was no basis whatsoever to report them to the Children’s Aid. I find that the plaintiff acted selfishly and to protect her own interest, not for the benefit of the child. I find that the defendants who are fine young parents went through an ordeal that they ought not to have endured and suffered emotionally as a result.
Counsel for the defendants; suggest damages in the amount of $10,000 would be appropriate, 2,000 for the husband and 8,000 for the wife. I agree totally. I find this request to be totally reasonable in the circumstances and I so order damages. The defendants are a young couple in their early 30’s who now have their second child. Christopher is a business analyst. Iris is a manager of operations for a financial firm. I believe that Christopher was deeply hurt and crushed from the investigation. At the trial, he was so choked with emotion that he could barely express himself. He was very frank and honest when he stated that his pain did not remotely compare to that of his wife who was totally overwhelmed. Iris described her shock at receiving a voice mail from the Children’s Aid Society without prior notice that they were investigating a claim of parental negligence, a claim that their child did not receive proper care and was underdeveloped. A social worker attended at their home a few days later with a registered nurse.
The conclusion was that Ziven looked healthy and chubby and they were totally satisfied that the parents were properly following the doctor’s orders with respect to feeding patterns. It is well known, however, that these complaints and investigations remain on record permanently.Comment
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thank you BC. I don't think she has a leg to stand on, and my attorney is taking it with only a percentage of the countersuit and a retainer.Will your liability insurance assist with the costs of this?
I am soo sorry you are going through this.
I followed what you have posted about the family and I can tell you that you definitely did the right thing (I know you know but sometimes it's nice to hear the reinforcement
) and I've been in a similar situation and would also do it again if I had too.
Hang in there and if there is ANYTHING I can do to help, even just offering an ear, let me know!!
:hug:
no, it was not included in my policy, but my attorney said I have a strong contract, and we are counter suing for slander, the attorneys fees, loss of income (court date) and pain and suffering. Since my call was VERY valid, and the child is still not returned to the parent, it is obviously not a retaliatory call, as the parent claims. (there was nothing to retaliate for.....)
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There's always two sides to every story, and then, the truth that lies in between.Comment
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I have to respectfully disagree here. I can see why the provider didn't get awarded the $700+ she was asking for, but I can't see why the parents were awarded money for damages. We are taught over and over that we need to call based on a SUSPICION...not PROOF. It is not our responsibility to provide proof that a child is neglected.
I truly believe the provider had the child's best interests at heart. When a baby is dropping weight, there is always cause for concern, and therefore suspicion.Comment
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The provider had no valid documented concers until AFTER the family pulled their child from her care.
Also the provider only knew about the weight loss because the parents told her on the advice of tne Dr because of the providers menu but yet the provider said the Dr was not correct in his other findings and suggested the family find another Dr...
Also the provider broke her own contract by allowing someone (DH) to smoke on her property somif she was truly concerned about the child why would she allow that?
Also the rules of mandated reporting and protection of reporters differs in the US than in Canada.
I agree the provider had someones best interests at heart but i do not belive it was the childs.Comment
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It was unfortunate that she didn't have any documented proof in regards to her concern, but she did contend that she spoke to the parents many times regarding the child's lethargy and lack of a healthy appearance.
I guess I just imagine myself in her shoes, and I would've called DCF if a baby seemed that tired and unhealthy in my care.
Totally no excuse for the smoke. Seriously, this is 2015, who still smokes? I would bury my husband in the backyard he smoked in.
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The transcripts of the multiple text messages between parent and provider were presented in court. No where in those texts did the provider express concern according to the judge.
The judge also talks about that. It said there was no evidence that the child slept more than average.
Also what does "unhealthy" mean when the provider herself serves a high sodium diet and has a spouse the she allows to smoke on the property?
That was my first thought as well. He has supposedly quit now though.
At first I did side with the provider and I was like
this case will forever change the daycare world in regards to reporting suspected abuse and then I read the transcripts and there is no reasons to believe the parents or the provider. The proof was right there.
The provider has NO cause for concern until she lost out on the last 2 weeks of payment (for no notice given) and tried to collect on that.
What she should have done was call it a wash and just let the family be. If she was that concerned about the child, why did she wait to document any of it or discuss it with the family (in the letters she sent) until AFTER?
Whether she is or isn't telling the truth or whole truth, doesn't matter to me....she lost credibility in my eyes just based on her own evidence presented.Comment
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Exactly!
Plus the provider only knew that because the parents told her (on the advice of the Dr) which the provider said made a mistake and that the parents should seek a new pediatrician.
So how can she use his facts but then basically call him a quack?
That reaks of self-serving behavior.Comment
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From what I understand the provider called CAS first and then when the parents found out they pulled. Then she sued for money owed and then they counter sued. The parents were retaliating. Also, from what I remember in the transcripts the smoking was brought up by the family in court but never before that and the judged basically said since it wasn't an issue while they were in care and they continued to bring him he wasn't taking it into consideration. I honestly think there are still unanswered questions and the provider should have had better representation. With a real lawyer this whole thing could have played out differently.Comment
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I agree that the smoking was brought up after but the judge commented on it and said they dismissed it as evidence but I still think it lent to the providers credibility. kwim?
"I find nothing in Ziven’s health history, either individually or in totality to suggest that he was in any physical danger. I find no evidence relating to the parental care which would suggest that they were not totally and properly attentive to his physical needs. It was only after the reporting to the Children’s Aid Society and after Ziven was removed from the plaintiff’s daycare that the plaintiff wrote letters to the defendants expressing concern"
The bolded part was the kicker for me.
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I think the letters were her way of trying to rationalize to the parents her reasoning for calling CAS after they left care. Just because the baby lost a percentile doesn't mean he started at a healthy weight. Maybe he was already in the 20th and dropped to the 19th? Who knows? That attorney really skewed things in the parents' favor.
I think we can all agree that we'll never have the whole story, or all the facts. I just strongly hope that none of us has to face what this provider is facing.
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