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March 28, 2015 permalink
When North York daycare operator Tammy Larabie suspected child abuse in one of her clients she alerted children's aid. CAS found no abuse and cleared the parents, Christopher Cui and Iris Lee. They have successfully sued Larabie, getting an award of $13,000 for their troubles. Several child advocates (CAS supporters) quoted by the Toronto Star are outraged, fearing that the award could scare off other reports in the future. If the courts hold fast on this award, it offers some hope of protection for families against frivolous accusation.
Daycare operator sued for calling the CAS
Toronto judge orders Tammy Larabie to pay $13,000 to parents of a child she worried wasn’t properly cared for.
A North York home daycare operator who called the Children’s Aid Society because she was concerned about a baby in her care has been ordered to pay the child’s parents more than $13,000 for the “emotional pain and suffering” that her report caused.
It’s a ruling which children’s advocates say ignores child care providers’ duty to report suspected child abuse or neglect to the CAS, and it could dissuade them from doing so for fear of a lawsuit.
“It’s hard enough to get people to report (to the CAS) and this will have a silencing effect,” said Mary Birdsell, executive director of Justice for Children and Youth. “The legislation is supposed to protect people from being sued if their report was reasonable.”
In a decision delivered last month, Superior Court judge Lewis Richardson ruled Tammy Larabie’s call to the CAS was “unreasonable” and there “was nothing to suggest that (the baby) was in any danger.”
In a court transcript obtained by the Star, Richardson found the parents “to be competent, caring and capable” who “properly looked after the interests of their son.”
“There was no basis whatsoever to report them to the Children’s Aid,” he said. “(Larabie) acted selfishly and to protect her own interest, not for the benefit of the child.”
Larabie’s lawyer disagreed and is considering an appeal.
“Her heart is very much in the right place,” said Ari Goldkind. “She doesn’t want anybody who has a concern about a child to hesitate for one second to pick up the phone (and call the CAS) because they’re worried they’ll get sued.”
“This is the very reason we have CAS,” he said. “These are the people trained, tasked and experienced in making sure a child is fine. Do we want to leave these decisions up to regular people?”
Christopher Cui and Iris Lee put their 10-month-old baby in a Larabie’s unlicensed home daycare in March 2013.
Larabie became concerned about the baby’s health because she felt he slept too much, wasn’t meeting developmental benchmarks and had lost weight, according to the transcript. She also felt the special diet of rice, fruit, vegetables and meat that Cui and Lee provided for their baby wasn’t nutritious enough.
But Richardson found these concerns were not shared by the child’s pediatrician.
“(Larabie) went on Google and formed her own medical opinion, which has not been substantiated and makes no sense,” he said.
Larabie called the CAS in July 2013, shortly after the high-profile death of 2-year-old Eva Ravikovich in a filthy and overcrowded unlicensed home daycare in Vaughan. In his ruling, Richardson felt that death had influenced Larabie, who “panicked and overreacted” owing to “the current public pressure on unlicensed daycares.”
The CAS launched an investigation and found her complaint unfounded.
“Larabie did not contact my clients with her concerns,” said Richard Brown, the lawyer for Cui and Lee. “She started a campaign to make them feel insecure and then went further and reported them to the CAS.”
Less than a week after the complaint, Cui and Lee found out it was Larabie who made the call and pulled their child out of daycare, Brown said.
Citing the contract they had signed, Larabie asked for two weeks of payment ($380) because they had withdrawn their child without any notice. When they refused to pay, she took them to small claims court.
Cui and Lee then countersued for the suffering they said Larabie’s call to the CAS had caused them, including a depression that had to be medicated during Lee’s second pregnancy.
“My clients did not do this for financial gain. It was a question of deterrence,” said Brown.
In dismissing Larabie’s claim (which grew to $735 with late fees, interest and penalties), and ordering her to pay damages to Cui and Lee, Richardson said the “unfounded complaint to the Children’s Aid Society created emotional distress.”
Even though the parents were cleared of any wrongdoing, “these complaints and investigations remain on record permanently,” the judge said.
Richardson ordered Larabie to pay the child’s parents $10,000 in damages and $3,175 in legal costs.
Larabie’s sister told the Star that stress caused by the ruling has forced her to shut down her daycare.
“She’s got laryngitis now and all she wanted to do was help,” said Tracy Augot, who started an online crowdfunding campaign to help her sister pay the damages.
Minister of Children and Youth Services Tracy MacCharles deferred to the judge’s ruling.
“This was a civil proceeding where the judge found there to be no reasonable grounds for the complaint. The judge heard both sides of the story and ruled in favour of the parents,” she said in a statement, adding “this case should not dissuade anyone from fulfilling their duty and reporting the abuse or mistreatment of any child.”
MacCharles’ spokesperson, Aly Vitunski, later added: “The law is clear. Every person, including an operator or employee of a child care nursery, who has reasonable grounds to suspect that a child is in need of protection, must report that suspicion promptly to a children’s aid society. It is not necessary for people to be certain a child is or may be in need of protection to make a report to a CAS.”
Asked about the case, Premier Kathleen Wynne said Wednesday that her office would look at the judgment.
“We want to make sure that the laws that are in place are the right balance to ensure that people report when they see that there’s abuse, and that they feel free to report, but that they understand what it is that they are looking at,” she told Global News.
Ontario Child Advocate Irwin Elman worries the decision will have a chilling effect on reports to the CAS.
“I wouldn’t want anyone to second guess their own judgment,” he said. “We all have a duty to report, not only professionals, but anyone in the province.”
Caroline Newton, communications director for the Ontario Association of Children’s Aid Societies, emphasized that public reporting is the backbone of the child welfare system.
“We can’t be everywhere. We totally rely on the public — especially professionals who work with children — to alert us to problems,” she said.
“The safety and well-being of children is paramount,” said Newton, who advised people with concerns to “make the call. You don’t have to be certain.”
Source: Toronto Star