Court File and Parties

COURT FILE NO.: FC1247/21 DATE: March 1, 2022 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: M.P.D.S., applicant AND: J.M.S., respondent

BEFORE: TOBIN J.

COUNSEL: Hilary Jenkins for the applicant William J. Doran for the respondent

HEARD: February 16, 2022, by video conference

Endorsement

The Motions

[1] There are two motions before the court. Both parents seek an order granting them decision-making responsibility, including whether their five-year-old child should receive a COVID-19 vaccination, defining parenting time for the other and for exclusive possession of the matrimonial home.

Facts

Prior to Separation

[2] The applicant (“mother”) and the respondent (“father”) began cohabiting in 2012.

[3] Before the parties agreed to marry, the father told the mother he “did not believe in vaccines.” In response, the mother told him that if he would not agree to vaccinate their children, the relationship would be at an end. He eventually agreed that any children they had could be vaccinated. They then married on […] 2015.

[4] The parties are the parents of three children: E.I.S., born […] 2016 (“E.”); F.L.S., born […] 2017 (“F.”); and K.O.S., born […] 2020 (“K.”).

[5] Once E. was born, the father did not want her vaccinated. The parties compromised by having the child receive one vaccine at a time instead of the standard schedule of two or three vaccines at a time. They did the same when F. was born. This was the only way the mother thought she could get the father to then agree to the children being vaccinated. Both children were healthy and there was no medical reason not to provide vaccines under the standard schedule.

The Separation

[6] According to the mother, the father would not “allow” her to get a flu shot or a whooping cough booster while she was pregnant with K. The father denies that he stood in the way of the mother getting a flu shot for herself.

[7] Following the birth of K., the mother took a one-year maternity leave from her employment as a schoolteacher. She had taken a one-year maternity leave following the birth of her two other children.

[8] Also, according to the mother, the father had other ideas that were of concern to her:

• He covered the electric meters outside of their home in tinfoil to “block radio frequency waves.” The father’s evidence is that he did this to hide them from the children.
• The children may not use fluoride toothpaste. She would purchase non-fluoride toothpaste to keep the peace. The father’s evidence is that they agreed to this.
• In January 2021, the father spoke regularly about QAnon, and other conspiracy theories related to COVID-19 and vaccines. He believes in the U.S. election conspiracy theories. The father’s evidence is that he never “engaged” in conspiracy theories related to QAnon, as alleged. The father complains that the mother included this information in her affidavit to attempt “to create a stigma, a characterization of [him] as a father unable to form rational conclusions in the context of parenting [their] children.”

[9] It was these beliefs and ideas held by the father that led the mother to end her relationship with him. That may be the case; however, the parenting decisions the court is called upon to decide will be based on the best interests of the children.

[10] The parties separated on or about April 21, 2021. The mother was then on maternity leave with K. The parties have since then resided separate and apart under the same roof in the matrimonial home.

Immunizations and COVID-19 Vaccination

[11] The father advised the mother he is not vaccinated against COVID-19, nor will he be.

[12] In the spring of 2021, the father told the mother he “forbid” her from getting the COVID-19 vaccination because he was concerned it would “poison” the child. The father denies telling the mother she was forbidden from getting the COVID-19 vaccination for herself.

[13] The mother did receive the COVID-19 vaccination. The father discovered the mother did this when he went into her personal email without her permission. He then told the mother he would take K. away and prevent her from breast feeding him.

[14] The father went on a business trip to the United States and quarantined on his return. The mother, who arranged and attended all of K.’s medical appointments, had him vaccinated under the standard vaccination schedule while the father was away and out of the matrimonial home. She also had the children and her receive flu shots, as recommended by their doctor. According to the mother, the father was angry when he learned of this. This is denied by the father.

[15] The father would not allow the mother to take K. for his 12-month doctor’s appointment. He took him and arranged for the child to be on a delayed immunization schedule.

[16] The father refuses to allow E., who is almost six years of age, to receive the COVID-19 vaccination. He told the mother that “he will die” before he allows the children to receive the COVID-19 vaccination. The father considers the child’s risk of becoming seriously ill from COVID-19 as remote.

[17] The father also told the mother he does not believe that people should have to wear masks and when he does, according to the mother, he does not cover his nose. The father’s evidence is that he follows all government protocols when he is in public.

[18] The mother heard the father tell the two older children that wearing masks is “unhealthy” for them.

K.’s Hearing Loss

[19] K. has partial hearing loss in his left ear and wears a hearing aid.

[20] The father, according to the mother, does not support K. wearing a hearing aid. He fears that the “audio frequency” will harm him. After several meetings with the child’s team of specialists, the father agreed to K. having a hearing aid. It is the mother’s observation that if the child takes the hearing aid out of his ear, the father will not put it back in. To keep the hearing aid in the child’s ear, a cap is put over it. However, since late January, all the caps have gone missing. They need to be reordered from the United States.

[21] The father’s evidence is that he is not against the child using the cap. There was no need, he says, for the mother to call the Children's Aid Society about this issue. He states that the mother has taken something small and made it much bigger.

The Father’s Parental Leave

[22] According to the mother, the father informed her in August 2021 he intended to take a three-month parental leave from his employment as a technologist. The father’s evidence is this had been agreed to by the parties before the separation took place. This would allow K. to spend more time at home and save the parties the costs of daycare. It would also save the costs of before-school and after-school care for the other children.

[23] The father began his unpaid parental leave in November 2021 and will return to work in March 2022.

[24] The father did not take this long of a parental leave following the birth of the two older children. When E. was born, he took three weeks off and, when F. was born, he took two weeks off.

[25] The mother disagreed with the father’s decision to take the parental leave. He was not paid by his employer while on this leave. She wanted K. to attend daycare. As there was a gap between the time the mother’s maternity leave ended and the beginning of the father’s parental leave, she enrolled K. in daycare. She continues to pay for this spot to ensure he can return to daycare when the father returns to his employment.

Household Expenses

[26] The pattern of financial responsibility for household expenses before the separation was that they were shared in proportion to their respective incomes. Each month, the mother would provide the father with a breakdown of their monthly expenses. He would then reimburse the mother for his share. The bills were in the mother’s name at his insistence.

[27] The father has not assisted with family expenses from November to the present.

Intimidation by the Father

[28] The father has called the mother a “fascist” and a “Nazi” in front of the children, according to the mother. The father acknowledges calling the mother a fascist but did so in the context of a heated argument where she called him disparaging names. He denies calling the mother a Nazi. His evidence is that he is sensitive to the children not being exposed to discussions about adult issues.

[29] The mother’s evidence is that the father repeatedly bumps into her and, on three occasions, made gestures as if he would hit her. On January 30, 2022, the mother called the police because she felt intimidated and unsafe. Police attended at the matrimonial home and spoke with both. The father denies engaging in this behaviour.

Parenting Orders

Legal Considerations

[30] The parties seek interim parenting orders under ss. 16.1(2) and 16(7) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

[31] When making a parenting order, the Divorce Act, s. 16(1), requires the court to consider only the best interests of the children. The factors to be considered in determining best interests are set out in s. 16(3) and (4) of the Divorce Act.

[32] The list of best interest factors is not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the children, their needs and the people around them: Phillips v. Phillips, 2021 ONSC 2480, at para 47.

[33] When considering the s. 16(3) factors, the court must give primary consideration to the physical, emotional and psychological safety, security and well-being of the children: Divorce Act, s. 16(2).

[34] Past conduct of any person is not to be considered when determining best interests unless the conduct is relevant to the exercise of their decision-making responsibility or parenting time: Divorce Act, s. 16(5).

[35] In allocating parenting time, the court is to give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child: Divorce Act, s. 16(6).

[36] Maximum parenting time does not necessarily mean equal parenting time: Knapp v. Knapp, 2021 ONCA 305, at para. 34; and Rigillo v. Rigillo, 2019 ONCA 647, at para. 13.

[37] The Divorce Act requires the court to consider the children’s needs and circumstances from the perspective of the children: Gordon v. Goertz, [1996] 2 S.C.R. 27 (SCC), at paras. 69 and 143; and E.M.B. v. M.F.B., 2021 ONSC 4264, at paras. 62-63.

[38] On motions for interim parenting orders, generally the status quo will be maintained, absent compelling reasons indicative of the necessity of a change to meet the children’s best interests: Grant v. Turgeon, 2000 CarswellOnt 1128, at para. 15. The court focuses on the short-term needs of the children, so possible disruptions are minimized. This is due to the limited and contradictory evidence untested by cross-examination. What the court must attempt to do is provide the children with certainty and stability in an environment that is safe and secure for them.

Primary Caregiving

[39] The evidence in this case satisfies me that the children have a close and loving relationship with both parents.

[40] The evidence also satisfies me that the mother has been the parent primarily responsible for caring for the needs of the children on a day-to-day basis. Since the birth of E., almost six years ago, she spent three of those years at home on maternity leaves. Up to December 2021, she scheduled and attended the children’s appointments. She attended to school and daycare enrollment. The father assumed a more involved day-to-day role during his three-month paternity leave.

[41] A review of the father’s evidence on this motion does not appear to dispute the mother’s assertions regarding the primary role she played in caring for the children both before and after the parties separated.

Immunizations and COVID-19 Vaccination

[42] The parties’ divergent positions regarding immunizations and COVID-19 vaccination must be considered. These positions bear on the children’s needs and the ability and willingness of the parties to meet those needs.

[43] The mother wants the children to be immunized according to the recommendations of Ontario’s Routine Immunization Schedule. She wants E. to receive a COVID-19 vaccination. The mother relies upon advice she received from the doctor who provides her with pediatric care.

[44] The father’s evidence is that he is “not against vaccinations in general.” He took K. for multiple vaccinations during his current parental leave. He advocates for a slower administration schedule of the vaccinations for the children.

[45] The father is concerned about COVID-19 vaccinations because:

• they have been rushed by the government. He states trials will not be finished until 2023;
• governments and health officials can be wrong. He refers to thalidomide;
• he is concerned about the effectiveness of vaccines still in clinical trials;
• E. is only five-years-old; and
• there are nominal risks that E. will contract COVID-19 and become ill.

[46] The father is not an epidemiologist. His reasons for eschewing COVID-19 vaccinations are sincerely held by him, but do not constitute expert or reliable evidence that the court can or should rely upon in determining what is in the children’s best interests.

[47] In A.C. v. L.L., 2021 ONSC 6530, the court dealt with a parent’s position that because COVID-19 vaccinations were not mandatory for children to attend school in-person, the government is still uncertain or ambivalent about the safety or efficacy of the COVID-19 vaccine (para. 19). The court noted this argument was based upon a fundamental misunderstanding of the government’s position on vaccines and the legal test to be applied (para. 20). The safety and efficacy of the COVID-19 vaccine has been endorsed by all governments and public health agencies (para. 23).

[48] The Government of Canada website states:

Importance of vaccination

COVID-19 is having a significant impact on the mental and physical well-being of children, youth and their families.

Although children and youth are less likely to get really sick from COVID-19, they can still:

• get sick from COVID-19
• be infected and not have any symptoms
• spread COVID-19 to others
• experience longer-term effects if they do get infected
• get a rare but serious complication called multisystem inflammatory syndrome in children (MIS-C)
  • this is a condition that can occur several weeks after COVID-19
  • there's inflammation in the body and it can affect the heart, lungs, kidneys, brain, skin, eyes or gastrointestinal organs
    • symptoms may include fever, abdominal pain, vomiting, diarrhea and skin rash
  • the majority of children and adolescents in Canada who have had this condition have fully recovered with treatment

Children and youth with certain underlying medical conditions may have a higher risk for severe illness from COVID-19.

COVID-19 vaccines help the body fight off the virus. Like adults, children and youth are well protected against severe illness 14 days after their second dose. Those who have already had COVID-19 should still get vaccinated to protect themselves from getting it again.

How the vaccines are studied and tested for children and youth

The mRNA COVID-19 vaccines were tested in youth through clinical trials. The pediatric formula of the Pfizer-BioNTech Comirnaty vaccine was tested in children 5 to 11 years of age. These clinical trials compared the immune response, safety and effectiveness of the vaccine to a placebo. In these studies:

• no safety issues were detected
• the vaccine was shown to provide very good protection against COVID-19 in the 2 months after vaccination

Millions of children have safely received the pediatric Pfizer-BioNTech Comirnaty vaccine in Canada and around the world. Serious side effects continue to be very rare. The evidence continues to demonstrate that the vaccine is effective against severe outcomes and is very safe.

Vaccines approved for children and youth

Children (5 to 11 years old)

Health Canada has approved a Pfizer-BioNTech Comirnaty vaccine made for children 5 to 11 years old.

This vaccine for children has a smaller dose than the vaccine for those 12 years of age and older. This is because in clinical trials, lower doses provided children with very good protection against COVID-19. It's not clear yet how long protection will last.

It’s recommended that children 5 to 11 years old receive 2 doses of the vaccine. The National Advisory Committee on Immunization recommends that the second dose should be given at least 8 weeks after the first dose.

Children that are moderately to severely immunocompromised should receive 3 doses. The recommended interval is 4 to 8 weeks between each dose. Children who turn 12 before their second dose may receive an adult dose for their second dose.

If your child has tested positive for COVID-19, they can receive the vaccine once they:

• no longer show symptoms of COVID-19 infection and
• are no longer considered infectious to others

If possible, children shouldn't receive the Pfizer-BioNTech Comirnaty vaccine within 14 days of other vaccines, such as the flu vaccine. This is a precaution to monitor any side effects from the COVID-19 vaccine or another vaccine. In some cases, your child's health care provider may recommend a vaccine that's needed urgently. This may happen even if your child has received the COVID-19 vaccine in the past 2 weeks.

[49] This pronouncement is admissible under the public document exception to the hearsay rule: A.C. v. L.L (para. 26) relying upon A.P. v. L.K., 2021 ONSC 150, at paras. 147-173.

[50] The government statements support the proposition that, as a general presumption, it is in the best interests of children as young of five years of age to get the COVID-19 vaccination.

[51] There is no admissible and reliable evidence to the contrary provided by the father to displace this presumption regarding E.

[52] Recent case law in connection with vaccinations in general, and COVID-19 in particular, stand for the proposition that the court is permitted to take judicial notice of the ongoing pandemic and the safety of mRNA vaccines [citations omitted]. In those cases, courts were presented with significant documentation from publicly accessible government sources to take judicial notice of the facts relating to COVID-19 and the Pfizer-BioNTech vaccine: McDonald v. Oates, 2022 ONSC 394, at para. 18.

[53] In TRB v. KWPB, 2021 ABQB 997, the court held, at para. 12, that:

12 … By virtue of its [Pfizer-BioNTech] approval by the regulatory authority responsible for testing and approval of drugs for use in Canada, the vaccine is not experimental. It is deemed safe and effective for use in children aged 5-11 …

[54] I find that it is in E.’s best interest that she has the option to be vaccinated. This will not occur if the father continues to have decision-making responsibility regarding this issue. Consequently, I also find it is in E.’s best interest that the mother have sole decision-making responsibility regarding the child getting the COVID-19 vaccination.

[55] When making an order, the court is authorized pursuant to r. 1(6) of the Family Law Rules, O. Reg. 114/99 to impose conditions and give directions as appropriate.

[56] I find that it is appropriate for the purposes of ensuring the integrity of the court’s order to require the father not to tell, or suggest to the child or children, directly or indirectly, that vaccines are untested, unsafe, ineffective or that they are at risk from vaccinations. The father is not to permit any other person to have such a discussion or to make any such suggestion to the children, directly or indirectly. If the children have any questions about the vaccine, the parties shall arrange a consultation between the children and their treating physician to answer any questions about it: see A.P. v. L.K., 2021 ONSC 150, at paras. 281-282.

[57] It is unnecessary, at this stage of the case, to give the mother sole or final decision-making responsibility regarding the routine vaccination schedule to be followed by the children. The slower pace of the vaccinations plan has been followed by the parties for some time. There is insufficient admissible evidence before the court that it would necessarily be in the best interests of the children to change this aspect of the status quo. The evidence discloses that the children’s doctor is administering regular vaccinations on this schedule.

Parenting Time and Where the Children shall Reside

[58] A temporary order will go providing the mother is to have primary care of the children. This will maintain the status quo long in place, both before and after the parties separated.

[59] In his notice of motion, the father asks for shared parenting time with the mother and that he be granted exclusive possession of the matrimonial home.

[60] The mother asks that the father’s parenting time with the children be limited and subject to restrictions until he is fully vaccinated against COVID-19. She also asks for exclusive possession of the matrimonial home or in the alternative for permission to move with the children to the home of her mother.

[61] In A.G. v. M.A., 2021 ONCJ 531, at paras. 37-38, Spence J. identified that, in these COVID-19 vaccination cases, there are competing best interest considerations at stake. The first is to ensure the safety of the children, as much as possible, from the risk of infection from COVID-19 because of the father’s unvaccinated status. The second is that, all other things being equal, children should be entitled to have their parents in their lives in a meaningful way – frequent and regular in-person contact being more meaningful than limited or virtual contact.

[62] In this case, the father chooses not to take the COVID-19 vaccination. His choice not to become vaccinated puts the children at risk of harm should they contract COVID-19. He can reduce this risk by being vaccinated. His parenting time with the children must be restricted to reduce their risk of harm. The extent of these restrictions takes into account:

• The father’s evidence that he follows safety protocols while in public: masks and social distancing.
• He works from home and describes himself as fairly isolated.
• He has been at home with the children on his parental leave since November 2021.
• Neither parent, nor the children, wear masks in their home.
• The father has a positive relationship with the children. He spent the last three months with them while on a parental leave from his employment.

[63] I find that when taking into account these considerations, the best interests of the children will be met if the father has some in-person time with the children, subject to certain restrictions.

[64] The father’s parenting time shall take place:

a) Tuesdays and Fridays from 3:30 p.m. until 7 p.m.; b) alternate Saturdays and Sundays from noon until 7 p.m.; and c) any other time the parties arrange in advance and in writing (this may include virtual parenting time as well);

and are subject to the following restrictions:

i. The father’s parenting time shall be exercised at the matrimonial home or out of doors. ii. The father shall take a COVID-19 rapid test every Tuesday and shall send a screenshot of the test result by text message to the mother. In the event the father tests positive, he shall not have in-person parenting time with the children until he completes the government mandated period of isolation and tests negative for COVID-19 on a second rapid test. iii. The father shall follow all government recommended safety protocols while the children are in his care. iv. The father shall not knowingly expose the children to any individual he knows or believes is not vaccinated against COVID-19. v. If the father breaches any of the conditions set out above, the mother may bring a motion to court on an urgent basis to suspend his in-person parenting time. vi. This parenting time order may be reviewed upon the father providing proof he is fully vaccinated (two doses and a booster) or upon any change in government recommendations regarding safety precautions.

Exclusive Possession

[65] An order for exclusive possession is both dramatic in its effect and highly prejudicial to the dispossessed spouse. This order should not be made on a motion where there is conflicting evidence that requires findings of credibility that are only available at trial. An exclusive possession order primarily arises and should be granted in circumstances where continued joint occupation is a potential or real threat to the safety and well-being of a child: Menchella v. Menchella, 2012 ONSC 1861, at paras. 15-16.

[66] The mother and father in this case have provided conflicting evidence about family violence. As well, there is no admissible evidence about the availability of suitable and affordable alternate accommodations for the father.

[67] However, on an interim basis, there is a solution that does not require the making of an exclusive possession order. The alternative request of the mother is that she and the children be allowed to move from the matrimonial home to the home of her mother. The father can remain in the matrimonial home and pay for the expenses associated with it while he resides there.

[68] During argument, father’s counsel advised that the father consents to this alternative request except that any repairs to the matrimonial home that would need to be undertaken must be agreed upon in advance and the costs shared equally.

[69] I find that this is not a case for an exclusive possession order.

[70] A temporary solution for this family, at this stage of the case and subject to further order of the court, is to allow the mother to leave the matrimonial home with the children to reside in the home of her mother.

[71] The father shall be permitted to remain in the matrimonial home pending further order of the court. While residing in the matrimonial home after the mother and children have moved, he shall be responsible each month, for paying to the mother the cost of all expenses associated with maintaining the matrimonial home. Before any repairs are undertaken, the parties shall consult and determine what, if any, are required, how they will be undertaken and how they will be paid for. This temporary arrangement shall be reviewable by the court at the instance of either party.

Order

[72] For these reasons, a temporary order made under the Divorce Act will go as follows:

1. The mother is to have primary care of the children.
2. The mother shall have decision-making responsibility in relation to vaccinating the children against COVID-19.
3. On consent, neither party shall expose the children to information regarding the COVID-19 vaccine outside of information available through the Government of Canada website (https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html). If the children have any questions about the vaccine, the parties shall arrange a consultation between the children and their treating physician to answer any questions.
4. On consent, the parties shall ensure that the hearing aid for the child, K., born […] 2020, is worn at all times while he is in their respective care. If the hearing aid is removed inadvertently, the parties shall promptly put the hearing aid back in.
5. The applicant and the children may move from the matrimonial home located in London, Ontario and reside with the children’s maternal grandmother.
6. The claims for exclusive possession of the matrimonial home made by the mother and the father are dismissed.
7. The father shall be permitted to reside in the matrimonial home pending further order of the court. While residing in the matrimonial home after the mother and children have moved, he shall be responsible, on a monthly basis, for paying to the mother the cost of all expenses associated with his occupation and maintaining the matrimonial home. Before any repairs are undertaken, the parties shall consult and determine what, if any, are required, how they will be undertaken and how they will be paid for. This temporary arrangement shall be reviewable by the court at the instance of either party.

[73] The father’s parenting time shall take place:

a) Tuesdays and Fridays from 3:30 p.m. until 7 p.m.; b) alternate Saturdays and Sundays from noon until 7 p.m.; and c) any other time the parties arrange in advance and in writing (this may include virtual parenting time as well);

and are subject to the following restrictions:

i. The father’s parenting time shall be exercised at the matrimonial home or out of doors. ii. The father shall take a COVID-19 rapid test every Tuesday and shall send a screenshot of the test result by text message to the mother. In the event the father tests positive, he shall not have in-person parenting time with the children until he completes the government mandated period of isolation and tests negative for COVID-19 on a second rapid test. iii. The father shall follow all government recommended safety protocols while the children are in his care. iv. The father shall not knowingly expose the children to any individual he knows or believes is not vaccinated against COVID-19. v. If the father breaches any of the conditions set out above, the mother may bring a motion to court on an urgent basis to suspend his in-person parenting time. vi. This parenting time order may be reviewed upon the father providing proof he is fully vaccinated (two doses and a booster) or upon any change in government recommendations regarding safety precautions.

[74] If costs are sought, written submissions limited to two pages together with a bill of costs, and any offers to settle are to be provided within seven days of the date of the release of this endorsement. The mother’s submissions shall be provided within seven days and the father’s submissions within seven days thereafter. A party who opposes a claim for costs respecting fees or expenses shall provide documentation showing their own fees and expenses to the court and to the other party: r. 24(12.2).

“Justice B. Tobin” Justice B. Tobin Date: March 1, 2022