DATE: December 11, 2024 COURT FILE NO. D44865/24 ONTARIO COURT OF JUSTICE

B E T W E E N:

ERIN McGUIRE CHELSEA A. MURPHY, for the APPLICANT APPLICANT

• and –

ROBERT JOHN TYRELL ACTING IN PERSON RESPONDENT

HEARD: DECEMBER 6, 2024

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] Both parties have brought motions seeking temporary decision-making responsibility orders for their son C, who is 13 years old (the child).

[2] The main dispute between the parties is about whether the child should receive vaccines that have been recommended by public health authorities. The applicant (the mother) wants the child to receive the vaccines. She also does not want the father to discuss vaccination with the child. The respondent (the father) is strongly opposed to the child being vaccinated.

[3] The child spends equal time with each parent. The mother also seeks an order for temporary child support, starting on January 1, 2025, based on the differential in the parties’ annual incomes. The father opposes any child support being paid.

[4] The parties raised issues of retroactive child support in their motion material. At the outset of the hearing, the court advised them that the evidence presented on this issue was too complicated to be determined by a motions judge. This issue will be determined at trial.

[5] In making their requests, the parties have asked the court to change the terms of their separation agreement dated May 19, 2017 (the agreement). The agreement provides that the parties have joint decision-making responsibility for the child and that the father pay child support of $600 each month to the mother.

[6] The father is self-represented. Most of his motion material was rejected for filing by court staff because of technical deficiencies. It was served on the mother but not filed. The father uploaded this material to Case Centre. This is not a substitute for filing.

[7] The court recognizes its obligation to provide reasonable assistance to self-represented litigants. It had the father’s material printed and filed. The mother did not object to this.

[8] The court relied on the affidavits and financial statements of the parties.

[9] The issues for the court to determine on these motions are:

a) Should the court, in the child’s best interests, disregard the decision-making framework set out in the parties’ agreement?

b) If so, what temporary decision-making responsibility orders are in the child’s best interests? In particular, who should have temporary decision-making responsibility over whether the child should receive vaccinations?

c) Should any temporary restrictions be placed on the father discussing vaccines with the child?

d) Should the court change the child support terms in the agreement on a temporary basis, or incorporate them into a temporary order? In making this determination the court must examine:

i) What are the parties’ incomes for support purposes? And, what, if any, income should be imputed to the parties?

ii) What child support would be ordered under section 9 of the Child Support Guidelines (the guidelines)?

Part Two – Background facts

[10] The mother is 44 years old. She presently works part-time at a bakery.

[11] The father is 51 years old. He works as a bus mechanic for the Toronto Transit Commission.

[12] The parties cohabited from June 2010 until August 2015. They have the one child together.

[13] The parties entered into the agreement on May 19, 2017.

[14] In April 2019, the father was injured at work and his income was reduced. The parties verbally agreed to reduce his child support payments from $600 each month to $263.38 each month. The father did not increase his support payments when he returned to work.

[15] In December 2021, the father was terminated from his employment because he refused to take the COVID-19 vaccine. He unilaterally reduced his child support payments to $177.99 each month. The father’s employment was reinstated in February 2023. He did not increase his child support payments once he returned to work – he is still paying the mother $177.99 each month for child support.

[16] In September 2023, the child’s school strongly encouraged him to obtain several required vaccinations through the school. The child was not vaccinated because the father refused to provide his consent.

[17] The mother issued this application on February 28, 2024, seeking orders for sole decision-making responsibility for the child and child support.

[18] The father filed his Answer/Claim on June 12, 2024, seeking sole decision-making responsibility for the child.

[19] The child’s school had a vaccination clinic on September 16, 2024 and the child did not participate.

[20] The child has not been vaccinated for Hepatitis B, HPV or Meningococcal disease. These are the current vaccinations recommended for children the child’s age by public health authorities.

[21] The child has not received vaccinations for COVID-19.

[22] The mother sent the father the Toronto District School Board Public Health Vaccine update dated June 25, 2024, which sets out that students 12 years of age or older are required to be up-to-date with the Meningococcal vaccine or have a valid exemption.

[23] The father signed and delivered a Statement of Conscience or Religious Belief on October 28, 2024 to have the child qualify for a valid exemption from vaccination and avoid being expelled.

[24] The father completed and delivered this form without prior notice to the mother.

[25] The mother took the child to his family doctor on October 29, 2024. The doctor recommended that the child obtain all routine vaccinations as recommended by Toronto Public Health.

[26] The parties attended mediation through the court mediation service. It did not result in an agreement on any issue.

Part Three – Should the court, in the child’s best interests, disregard the decision-making framework set out in the parties’ agreement?

3.1 Positions of the parties

[27] The parties both submit that the joint decision-making responsibility terms contained in the agreement are no longer in the child’s best interests. They both seek final say in decision-making responsibility regarding the child’s health care.

[28] The mother wants the child to receive all vaccinations recommended by public health authorities, including the COVID-19 vaccine.

[29] The mother describes the father as a very forceful personality. She believes he is instilling his own fears of vaccination in the child. She deposed this is part of a pattern. She said the father also won’t let the child use skin care products for his acne or use sunscreen, because the father fears the ingredients will harm the child. This has resulted in the child being sunburned and not being able to clear up his facial acne. She deposed that the father has also instilled a fear of flying in airplanes in the child.

[30] The mother said she still wants to involve the father in the decision-making process for the child. However, she feels the father’s fears are putting the child at risk of harm, and that he is compromising the child’s education. The mother put forward an alternative proposal, where the parties would have joint decision-making responsibility for the child and she would have final say over health issues, including whether the child should be vaccinated, in the event they could not agree.

[31] The father sincerely believes that vaccinations will harm the child. He said, “I have seen the harms, the deaths with my research. It makes me scared for him. I want to protect him. I am here to protect my son”.

[32] The father candidly informed the court that he frequently involves the child in conversations regarding vaccines. He said, “we do our own research”. He said the child does not want to be vaccinated.

[33] The father did not deny that he holds strong views about skin care products. He is very concerned about what chemical ingredients go into his body and into the child’s body.

[34] The father has asked that he have final say over the child’s health-related issues. In the alternative, he asks that his mother be the final decision-maker. He claimed she is neutral.

3.2 Legal considerations

[35] Subsection 56 (1) of the Family Law Act sets out that the court may disregard any parenting term in a domestic contract if it is not in the child’s best interests. It reads as follows:

Contracts subject to best interests of child

56 (1) In the determination of a matter respecting the education, moral training or decision-making responsibility or parenting time with respect to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

[36] In Schmidt v. Amy, 2021 ONCJ 523, Justice Stephen Paull wrote the following about parenting agreements at paragraphs 46 and 47:

[46] Courts are not bound by parenting terms in domestic contracts although they may give an indication about parental intentions at the time they were entered into. C. (M.A.) v. K.(M.), 2009 ONCJ 18; Libbus v. Libbus, 2008 53970 (ONSC). They can also be reflective of the status quo – an important best interests consideration. B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438.

[47] Further, while there is no presumption in favor of decision-making to either parent in any initial application following separation, the status quo – and avoiding the reckless creation of a new status quo- are important considerations at the interim custody stage. Cosentino v. Cosentino, 2016 ONSC 5621 at paras 16 and 17.

[37] The court is not bound by an agreement between the parties regarding parenting. Where the parties have reached an agreement, a court should respect the agreement unless the agreement is not in the child’s best interests. See Hartwick v. Stoneham (2000), 2000 22522 (ON SC), 8 R.F.L. (5th) 74 (Sup. Ct. J.); Shaikh v. Matin, 2017 ONSC 5842.

[38] The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 1625 (ON CA), [2005] O.J. No. 275 sets out the following principles in determining whether a joint decision-making responsibility order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It can’t be ordered in the hope that it will improve their communication.
3. Just because both parents are fit does not mean that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
6. The younger the child, the more important communication is.

[39] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 6423 (ON S.C.).

3.3 Analysis

[40] The court agrees with the parties that the decision-making mechanism in the agreement is no longer in the child’s best interests. The court will disregard those provisions. The parties fundamentally disagree on critical health-care decisions affecting the child. Joint decision-making responsibility, in this case, has paralyzed important decisions being made for the child and has the potential of compromising his health and education. This is a material change in circumstances that dictates changing the decision-making framework set out in the agreement.

[41] At this point, by exercising his veto, the father has been unilaterally making the important health care decisions about vaccination for the child. It is a joint decision-making responsibility framework on paper only.

Part Four – What temporary decision-making responsibility orders are in the child’s best interests?

4.1 Legal considerations

[42] Subsection 24 (2) of the Children’s Law Reform Act (the Act) provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.

[43] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child, including the views and preferences of the child.

[44] Subsection 28 (4) of the Act sets out that the court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.

[45] Whether and how a child should be vaccinated is an incident of parenting pursuant to clause 28 (1) (b) of the Act. The test is best interests as set out in section 24. See: A.M. v. C.H., 2019 ONCA 764.

[46] The leading case on vaccinations and decision-making responsibility is now J.N. v. C.G., 2023 ONCA 77. In J.N., the Court of Appeal permitted the appellant to vaccinate his two children, aged 10 and 12, against the respondent’s wishes. The court found that:

a) Judicial notice should be taken of regulatory approval of a vaccine and regulatory approval, is a strong indicator of the vaccine’s safety and effectiveness.

b) It is not the subject of dispute among reasonable people that Health Canada has, in the area of safety and efficacy of medical treatment, “special knowledge … going beyond that of the trier of fact”.

c) The respondent, as the parent seeking not to have the children vaccinated, had the onus to establish that, despite Health Canada’s opinion as to the vaccine’s safety and effectiveness, they should not be.

d) It is unnecessary and unhelpful, in most cases for the parties to look for more than government approval of a drug.

e) It is unrealistic to expect parties to relitigate the science of vaccination and the legitimacy of public health recommendations, every time there is a disagreement over vaccines.

f) Generally, you shouldn’t need experts, unless it is to show that the drug is not suitable for the child before the court.

[47] J.N. puts the onus on the party objecting to vaccination to demonstrate why public health recommendations in favour of pediatric vaccinations should not be followed. The Court of Appeal found that where one party seeks to have a child vaccinated in accordance with Health Canada approvals and recommendations, the onus is on the objecting party to show why the child should not receive the vaccination. This onus applies equally to prevent delaying vaccination in the context of an interim motion. See: S.E.T. v. J.W.T., 2023 ONSC 5416 (Div. Ct.).

[48] In Spencer v. Spencer, 2023 ONSC 1633, the Divisional Court also found that courts can determine who has decision-making responsibility regarding vaccination on a temporary motion.

[49] In A.V. v. C.V., 2023 ONSC 1634, the Divisional Court again repeated that decision-making responsibility regarding vaccinations can be determined on temporary motions, writing at paragraph 7:

However, the motion judge’s task is the same in the interim context: he or she is required to weigh all the admissible evidence in determining the best interests of the child. In making this determination, although vaccination is an elective procedure, it is open to the motion judge to allocate decision-making with respect to vaccination on an interim basis depending on all the circumstances of the case. With respect to the views of the primary caregiver, the motion judge should take into account a prior order or agreement for decision-making and, where there is not, has discretion as to the weight to be given to the views of the parents depending on the circumstances of the case.

[50] In B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, upheld on appeal, B.C.J.B. v. E.-R.R.R., 2021 ONSC 6294, Justice Alex Finlayson took judicial notice of the following adjudicative facts: Ontario’s publicly funded vaccines are safe and effective at preventing vaccine preventable diseases. Their widespread use has led to severe reductions or eradication of incidents of these diseases in our society. Further, the harm to a child, flowing from contracting a vaccine preventable disease, may even include death.

[51] While in many cases it will not be feasible or practical for a party to challenge the efficacy of the vaccine with competing expert evidence, an objecting party may, for example, submit a report from a treating family physician that provides evidence related to the circumstances of an individual child. See: A.V. v. C.V., 2023 ONSC 1634 (Div. Ct.).

4.2 Analysis

[52] Health Canada recommends that the child receive the Hepatitis B, HPV and Meningococcal vaccines. The child’s school has asked the child to take these vaccines.

[53] Health Canada also recommends that the child receive vaccinations in the next year for Diptheria, Tetanus, Pertussis (Whooping cough) and polio.

[54] Health Canada also recommends that children over six months take the COVID-19 vaccine, unless they meet certain criteria. None of those criteria apply to the child.

[55] On June 21, 2024, Toronto Public Health urged people to take all recommended meningococcal vaccinations as cases in Toronto were on the rise.

[56] The mother filed a letter from the child’s family doctor, dated November 7, 2024, recommending that the child receive all vaccinations recommended by Toronto Public Health.

[57] The father did not dispute that the recommended vaccinations for the child have received regulatory approval from Health Canada. The father’s issue is that he distrusts the government. He wrote in his November 20, 2024 affidavit:

The applicant’s sources are government agencies that follow directives and do not necessarily apply considerations independent of pharmaceutical companies’ best interests.

[58] The Ontario Court of Appeal decision in J.N. places the onus on the father to establish that the recommended and approved vaccines by public health authorities are not safe for this child. The father did not satisfy this onus. Distrust of government recommendations is not enough.

[59] The father acknowledged that the child is healthy. There is no evidence that the child is more susceptible to side effects from a vaccine than any other person.

[60] The father provided no credible evidence to establish that the risks to the child in taking any vaccine that has been recommended by public health authorities outweigh its benefits. He filed no medical evidence about the child. He sent the mother 69 links to various websites. He did not file this evidence – the mother attached these links to her affidavit. The websites do not appear to be from public health agencies or medical organizations. At the motion, the father provided the court with a newspaper article referring to a court decision that did not require a child to be vaccinated (that decision was overturned on appeal).

[61] The father raised the issue that the child cannot be compelled to take vaccines pursuant to the Health Care Consent Act. However, that legislation does not limit the court’s jurisdiction to make parenting orders in the child’s best interests. A court must always consider a child’s view and preferences, but a child’s refusal to participate in a treatment will not necessarily determine whether a court can make such an order. See: A.M. v. C.H., supra.

[62] The court finds that the father’s intense fears about vaccines have interfered with his parenting judgment.

[63] The father’s response to the possibility of the child being expelled from school for being unvaccinated was to sign and deliver a Statement of Conscience or Religious Belief. This will prevent the child being expelled from school. The father did this without first consulting the mother. However, the Statement of Conscience or Religious Belief does not prevent the child from being asked to leave the school indefinitely should any virus or outbreak occur to protect the child and other students.

[64] The father’s response to this possibility was that he would home-school the child instead. This informs the court that the father is willing to compromise the child’s educational development to prevent him from being vaccinated. This is not in the child’s best interests.

[65] The father minimized the health risks to the child of not taking the recommended vaccines. He deposed that the risks to the child of being unvaccinated will be mitigated due to the majority of his fellow students being vaccinated.

[66] The court is also very concerned about how the father has emmeshed the child in this litigation. He admits to frequently speaking to the child about vaccinations and doing internet research on the issue with him. The research he is engaging in with the child involves reading website blogs and articles that are providing the child with unreliable information.

[67] The court has serious concerns about the child’s exposure to the father’s intense feelings and beliefs about vaccines and other health issues. This intensity came out in his court material and in his emotional presentation at court. His fear of vaccines is palpable. He was willing to lose his employment over his beliefs. It would be very difficult for any child this age to withstand this pressure.

[68] The mother commented that the child is anxious about speaking against the father and his positions. There is a strong possibility that to ease his father’s fears and obtain his approval that the child will support his father’s strong feelings about health issues. There is also a real risk that the father’s fears are being or will be transferred to the child. This all puts the child at risk of physical, emotional and psychological harm. Even if the child expressed a view not to take a vaccine, the court would place little weight on it in this context.

[69] The court finds it is in the child’s best interests that the mother have temporary decision-making responsibility over health and educational decisions for the child. The court is not limiting her decision-making responsibility to health issues. The father is not making sound decisions about the child’s education because of his vaccination beliefs. The court is also not structuring the order as one of joint decision-making responsibility, with the mother having the final say. It is important for the child that third party service providers have clarity about who has the authority to make these decisions.

[70] The court orders, on a temporary basis, that the father’s consent for the child to receive vaccines is dispensed with.

[71] The court has made a referral to the Office of the Children’s Lawyer, as requested by the father – not so much to obtain the child’s view on vaccinations but to investigate whether the present parenting framework remains in the child’s best interests given this complicated dynamic and the pressure the child is under.

Part Five – Should the father be prohibited from speaking to the child about vaccines?

[72] The mother also sought an order that the father be prohibited from speaking to the child about vaccinations. She relied on Rashid v. Avensov, 2022 ONSC 3401. However, that case involved a much younger 7-year-old child. The motions judge wrote at paragraph 107:

[107] Given the child’s young age and the parents’ conflicting views on immunization, there will be an interim order that the father will refrain from making statements about immunization to the child. However, this is an interim order and the condition should be revisited at trial. As the child matures, one can anticipate that the child may wish to address these issues with either parent or be able to express his views on the matter. The child is entitled to have respectful and meaningful discussions with both parents which is not possible in the long term with a clause restraining communications on the subject.

[73] The court will not make the requested order. It is too intrusive at this time. The child will want to speak to the father about vaccines. It would be naïve to think they will not discuss this. The child is entitled to hear the father’s opinion. The court’s concern is about the father instilling his own fears in the child, not about him expressing an opinion on the subject. If the father cannot regulate the intensity of his feelings on the child’s health issues, the court will need to reexamine the entire parenting framework.

Part Six – Temporary child support

6.1 The agreement

[74] The agreement provides that the father shall pay the mother child support of $600 each month.

[75] The parties have not abided by the agreement since 2019, as set out in paragraphs 14 and 15 above.

[76] The father is presently paying the mother $177.99 each month for child support.

[77] Subsection 56 (1.1) of the Family Law Act provides that the court may disregard any provisions of a domestic contract where the provision is unreasonable having regard to the guidelines.

[78] In deciding whether the child support provision in the agreement is unreasonable the court will examine what amount the court would order the father to pay at this time pursuant to section 9 of the guidelines.

6.2 Shared parenting arrangements

[79] Section 9 of the guidelines sets out how child support is to be calculated when, as there is here, there is a shared parenting time arrangement.

[80] Section 9 of the guidelines reads as follows:

Shared parenting time

9. Where each parent or spouse exercises parenting time with respect to a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared parenting time arrangements; and

(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

[81] The mother asked the court to make an order based on the set-off of the parties’ respective table support obligations under section 9 (a) of the guidelines. She is being generous to the father with this request. The father has more means than her. He owns two properties. He values his net worth at over $600,000. This compares to the mother’s net worth of about $43,000.

6.3 The parties’ incomes

[82] The father deposed in his October 28, 2024 financial statement that his annual income is $100,942. The court accepts that figure. The mother asked the court to impute additional income to the father for rental income. However, the father said he is unable to rent his apartment at this time. This is an issue that can be better explored at trial. No additional income will be imputed to the father at this time.

[83] The father has union dues that, based on a pay stub he provided, project to $1,615 this year. Subsection 1 (g) of Schedule 111 of the guidelines provides that union dues are deducted to determine a party’s income for support purposes. The father’s annual income after deducting his union dues is $99,327.

[84] The mother deposed that she earned $16,211 in 2023, working part-time at a bakery. She said she is also receiving regular gifts of $1,000 each month from her aunt while she attends school.

[85] The mother completed a course to be certified as a lab technician in November 2023. She advised the court that entry jobs in the field pay between $40,000 to $45,000 annually.

[86] The mother intended to return to school in January 2024 to commence a cardiology specialization course. She told the court that this is a two-year program. She hopes that completion of this course will make her much more marketable and provide financial security for her and the child.

[87] The mother deposed that she delayed starting this course because her mother died in December 2023, and she has been administering her estate. She said she wants to be able to completely focus on her studies once she begins the course.

[88] The father believes the mother should be earning $62,000 annually as a lab technician and seeks to impute this income to her for any support analysis. This amount is far too high. The mother has never earned or has been capable of earning that level of income.

[89] The mother recognizes that some income should be imputed to her. She proposed being imputed with a full-time minimum wage income of $35,776.

[90] The court finds the income suggested by the mother to be reasonable on a temporary basis, especially since she is only seeking temporary child support starting on January 1, 2025. Between 2017 to 2023, her income ranged from about $12,000 to $28,000. Her proposal recognizes her obligation to fairly contribute to the child’s support.

6.4 Should the court incorporate the child support payment contained in the agreement into a temporary order or order a different amount?

[91] The support payment of $600 a month contained in the agreement is very close to the amount generated by a section 9 guidelines analysis.

[92] The father’s guidelines table support obligation at an annual income of $99,327 is $904 each month. The mother’s guidelines table support obligation at an annual income of $35,776, is $313 each month. The set-off amount from these table payments is $591 each month.

[93] It must be kept in mind that an interim support award is a temporary order only and inevitably imperfect. See: Cardoso v. Cardoso, 2013 ONSC 5092. It is meant to provide “a reasonably acceptable solution to a difficult problem until trial”: See: Chaitas v. Christopoulos, 2004 66352 (ON SC), [2004] O.J. No. 907 (S.C.J.).

[94] The court finds the support payment of $600 each month contained in the agreement to be reasonable in these circumstances. There is no evidentiary basis to interfere with it. The father shall pay the mother this amount starting on January 1, 2025.

[95] The father agreed to maintain the child on his extended health plan through his employment. This will be ordered.

Part Seven – Conclusion

[96] A temporary order shall go on the following terms:

a) The mother shall have sole decision-making responsibility for all health issues regarding the child, including vaccinations.

b) The mother shall have sole decision-making responsibility for all educational issues regarding the child.

c) The mother shall first consult with the father before making any major health or educational decision regarding the child.

d) Any requirement for the father to consent to the child receiving a vaccine is dispensed with.

e) The parties shall have joint decision-making responsibility for all other major issues regarding the child.

f) The father shall pay the mother child support of $600 each month, starting on January 1, 2025.

g) A support deduction order shall issue.

h) The father shall maintain the child on any medical, dental or extended health plan coverage that he has available to him through his place of employment.

i) All other claims, except for costs, contained in the parties’ notices of motion are dismissed.

[97] Any party seeking costs is to serve and file their written submissions by January 6, 2025. The other party will then have until January 20, 2025, to respond (not to make their own submissions). The submissions should not exceed three pages, not including any offer to settle or bill of costs. The submissions should be delivered to the trial coordinator’s office on the second floor of the courthouse or emailed to the trial coordinator.

Released: December 11, 2024

Justice Stanley B. Sherr