CITATION: Spencer v. Spencer, 2023 ONSC 1633

DIVISIONAL COURT FILE NO.: 191/22

DATE: 20230314

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MacLeod, R.S.J., D.L. Corbett, and O’Brien J.J.

BETWEEN:

spencer

W. Doran , for the Appellant

Appellant

• and -

spencer

Respondent

H. Jenkins, for the Respondent,

HEARD at Toronto by videoconference on October 7, 2022¹

O’BRIEN j.

reasons for decision

Overview

[1]

Overview

This appeal from an interim motion was heard and should be read together with A.V. v. C.V., 2023 ONSC 1634. It raises the question of when a judge on an interim motion should grant a parent decision-making authority to have a child vaccinated against COVID-19. This case also raises the additional question of whether the motion judge erred in significantly restricting the parenting time of the Appellant father as a result of his unvaccinated status.

2The parties have three children, who were at the time of the motion ages 5, 4 and 14 months. Both parties brought motions seeking decision-making authority, including with respect to vaccinating the eldest child, who was the only child old enough to be vaccinated against COVID-19. They also both sought orders defining parenting time for the other and for exclusive possession of the matrimonial home. However, the only issues to be addressed on appeal, pursuant to the order granting leave to appeal, are the motion judge’s decision regarding vaccination for the eldest child and the impact of Mr. Spencer’s vaccination status on his parenting time.

3At the time of the motion, the parties had been separated for just under 10 months. Since separation, the parties had lived separate and apart in the matrimonial home. When they separated, the Respondent mother, Ms. Spencer, had been on maternity leave with the youngest child. By the time of the motion, Ms. Spencer had returned to work and Mr. Spencer was on a three-month parental leave. Ms. Spencer, who was vaccinated, sought to have the eldest child vaccinated against COVID-19. Mr. Spencer had not been vaccinated against COVID-19, nor did he plan to be. He opposed vaccination against COVID-19 for the eldest child.

4Relying on the Government of Canada website, which recommended vaccination against COVID-19 for children aged 5 to 11, the motion judge found it was in the eldest child’s best interests to authorize her mother to have her vaccinated. against COVID-19. He therefore granted Ms. Spencer sole decision-making responsibility on this issue.

5On the issue of parenting time, the motion judge found that Ms. Spencer was primarily responsible for caring for the children’s needs. He concluded she should have the primary care of the children and that Mr. Spencer’s parenting time should be restricted to reduce the children’s risk of harm from his unvaccinated status. He restricted Mr. Spencer’s parenting time to two evenings a week and one weekend day and ordered other restrictions related to COVID-19, including that Mr. Spencer take weekly rapid tests for COVID-19 and only have his parenting time out-of-doors or inside the matrimonial home.

6Mr. Spencer submits that the motion judge erred in taking judicial notice of the government recommendation regarding vaccination. He submits that judicial notice cannot be taken of an opinion and, further, that neither party had notice of the document relied on. He also questions whether it is appropriate for the court to make an order with respect to decision-making when the evidence does not demonstrate the vaccine was immediately necessary. With respect to parenting time, Mr. Spencer submits that the motion judge erred by treating his unvaccinated status as a primary factor in determining the parenting schedule.

7At the conclusion of argument of the appeal, D.L. Corbett J. provided this court’s brief oral decision (Spencer v. Spencer, 2022 ONSC 5797, paras. 1 and 2):

Counsel in Spencer, the Court is going to take under reserve the issue of vaccination of the children, and you will have our decision on that issue in due course.

In respect to the second issue, that is, the vaccination status of Mr. Spencer, we are satisfied that the Motions Judge erred imposing the conditions that he did as a consequence of Mr. Spencer’s vaccination status, and we are, today, setting aside any requirements that Mr. Spencer be tested, or other restrictions on the manner in which his access is exercised as a result of his COVID vaccination status. We are reserving on all other aspects of that issue, including what, if anything, we should do about the current parenting schedule that is in place. We would ask counsel to confer with each other to try to agree on one of two things:

a) either a temporary parenting schedule to which both sides can agree, pending trial or other court order. This would be ideal, if you can agree, or, if you cannot agree on such an order, then

b) a temporary parenting schedule to be in place varying the schedule that was directed by Tobin J., pending release of this court’s decision, which will include a finding that one aspect of the factors relied upon by His Honour, was not properly relied upon in fashioning that parenting schedule.

8In the reasons that follow, I dismiss Mr. Spencer’s appeal on the issue of vaccination for the eldest child and explain the panel’s decision to allow the appeal with respect to the parenting schedule. On the issue of the child’s vaccination against COVID-19, I rely on the legal principles set out in A.V. v. C.V., which follows the guidance of the Court of Appeal in the recent decision of J.N. v. C.G., 2023 ONCA 77. I apply those principles to the circumstances of this case.

Child’s Vaccination against Covid-19

[9]

Child’s Vaccination against Covid-19

I do not find a basis to interfere in the motion judge’s assessment that vaccination was in the best interests of the child in this case.

10Mr. Spencer raises the valid concern that the parties in this case did not submit the Government of Canada website the motion judge relied on. Instead, it appears the motion judge reproduced the website page himself and concluded it was admissible under the public document exception to the hearsay rule.

11As set out in A.V. v. C.V., in accordance with the guidance provided by J.N. v. C.G., a Government of Canada publication recommending pediatric vaccination is admissible into evidence through the public documents exception to the hearsay rule. In addition, a court may take judicial notice of regulatory approval of paediatric vaccination against COVID-19. A motion judge intending to take judicial notice of facts (or to admit a public document into evidence) should provide notice of the document or information to the parties. However, in the circumstances of this case, the parties had effective notice of the point the motion judge intended to make. Specifically, the parties had notice of the proposition the motion judge relied on, which was that the COVID-19 vaccine is safe and effective for children as young as five years.

12First, in addition to the excerpt from the Government of Canada website, the motion judge relied on case law which had taken judicial notice of the safety of vaccines. He noted that in those cases, courts were provided with significant documentation from publicly accessible government sources. He also reproduced a passage from an Alberta case finding the vaccine to be safe and effective for use in children aged 5-11: TRB v. KWPB, 2021 ABQB 997, [2021] A.J. No. 1683. Neither party submitted at the hearing of the appeal that the motion judge relied on cases not put before him.

13Second, as the motion judge noted, Ms. Spencer had consulted the child’s pediatrician. The letter from the pediatrician, which was in evidence, stated as follows: “The Canadian Pediatric Society (CPS), the National Advisory Committee on Immunization (NACI) and the Ontario Government recommend that ALL children ages 5-12 years have the Covid 19 Pfizer BioNTech Vaccine and attest to the safety of this vaccine” (emphasis in the original).

14In other words, the government recommendation in favour of vaccination for children was in evidence. The parties had notice of the proposition the motion judge was relying on, if not the specific website page he reproduced. I would not interfere with his decision on this basis.

15I also reject Mr. Spencer’s submission that the motion judge erred in determining that decision-making with respect to vaccination should be ordered on an interim basis. As set out in A.V. v. C.V., it is open to a motion judge to determine, in the circumstances of the case before them, that vaccination should be ordered on an interim basis. This is not a situation in which there was a prior order or agreement allocating decision-making. The motion judge based his decision on cases and the government statement recommending vaccination. He also noted that Ms. Spencer had relied on the advice of the pediatrician in coming to her view that the child should be vaccinated. Meanwhile, Mr. Spencer had not submitted any expert or reliable evidence to assist the motion judge in determining the child’s best interests. On the evidence before him, I would not interfere with the motion judge’s assessment of the child’s best interests on this issue.

Parenting Schedule

[16]

Parenting Schedule

With respect to the parenting schedule, the motion judge erred in treating Mr. Spencer’s unvaccinated status as a primary factor impacting the best interests of the children.

17Subsection 16(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) requires the court to take into consideration only the best interests of the child when making a parenting order. In determining the best interests of the child, the court is required to consider the factors relating to the circumstances of the child set out in s. 16(3). Pursuant to s. 16(2), the court is required to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

18The motion judge correctly set out the principles applicable to the determination of a parenting order. For example, the list of best interest factors is not a checklist to be tabulated. It instead calls for the court to take a holistic look at the child: Phillips v. Phillips, 2021 ONSC 2480, 55 R.F.L. (8th) 442, at para. 47.

19In addition, the status quo with respect to parenting should ordinarily be maintained on an interim motion in the absence of compelling reasons that the children’s best interests require a change: Grant v. Turgeon, (2000), 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J), at para. 15; Coe v. Tope, 2014 ONSC 4002, at para. 25.

20In this case, the motion judge based the parenting schedule on two factors: The first was his finding that the mother had been the parent primarily responsible for caring for the children’s needs on a day-to-day basis. The second was Mr. Spencer’s unvaccinated status. The motion judge stated that Mr. Spencer’s “choice not to become vaccinated puts the children at risk of harm should they contract COVID-19.” He went on to state that “[h]is parenting time with the children must be restricted to reduce their risk of harm.”

21Although the motion judge acknowledged some of the factors in favour of parenting time for Mr. Spencer – such as his parental leave and positive relationship with the children – he ordered a substantial change from the status quo in Mr. Spencer’s parenting time. Mr. Spencer was only to see the children for parts of three days each week, with no overnights. Specifically, his parenting time was restricted to two days per week from 3:30 p.m. until 7 p.m. and one weekend day from noon until 7 p.m. The motion judge also ordered that all his parenting time be exercised at the matrimonial home or outside.

22In addition to substantially limiting Mr. Spencer’s parenting time, the motion judge ordered other strict conditions related to COVID-19. Mr. Spencer was required to send Ms. Spencer a screenshot of a COVID-19 rapid test result every Tuesday and otherwise follow all government recommended safety protocols while the children were in his care. He was also not to knowingly expose the children to any individual he knew or believed to be unvaccinated. If he were to breach any of these conditions, Ms. Spencer was entitled to bring a motion to court on an urgent basis to suspend his in-person parenting time.

23It was an error for the motion judge to put such weight on Mr. Spencer’s unvaccinated status in arriving at the parenting order. Prior to the motion, Mr. Spencer resided with the children, was on parental leave, and had a positive, meaningful relationship with them. As a result of his unvaccinated status, he was awarded limited parenting time, including no overnights, with the parenting time to occur only in the home or outside, and at risk of losing all in-person parenting time for any breach. There was no evidence of any of the children being at an elevated risk if they were to contract COVID-19. Indeed, the older children were attending school where they were exposed to unvaccinated students and potentially unvaccinated adults. The evidence was also that Ms. Spencer wished to put the youngest child in day care. She was continuing to pay for this spot to ensure the child can return upon the completion of Mr. Spencer’s parental leave. In these circumstances, it was an error for the parenting schedule to be substantially dependent on Mr. Spencer’s unvaccinated status. It significantly and unjustifiably sacrificed the children’s meaningful relationship with their father and thereby failed to maintain the primacy of the children’s physical, emotional and psychological safety, security and wellbeing.

24The court has already set aside the COVID-19 testing and other COVID-19 restrictions related to Mr. Spencer’s parenting time. However, the court below is in a better position to determine the appropriate parenting schedule. Accordingly, the parenting schedule is remitted to that court for determination in accordance with these reasons.

Disposition

[25]

Disposition

The appeal on the issue of vaccinating the child is dismissed. The parenting schedule is remitted to the court below for determination in accordance with these reasons. Pursuant to the parties’ agreement, as there is divided success on the appeal as a whole, no costs are ordered.

O’Brien J.

I agree ________________________

MacLeod R.S. J.

I agree ____________________________________ D.L. Corbett J

Released: March 14, 2023

CITATION: Spencer v. Spencer, 2023 ONSC 1633

Footnotes

1. 1The Court of Appeal decision in J.N. v. C.G., 2023 ONCA 77, was delivered after oral argument of this appeal. This court permitted further written submissions from the parties respecting the application of J.N. v. C.G., and those submissions were completed and provided to this court on February 28, 2023.