Court File and Parties

NEWMARKET COURT FILE NO.: FC-22-323-00 DATE: 2022-03-04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Andres Dyquiangco Jr. Applicant – AND – Leah Tipay Respondent

Counsel: Mark Greenstein and Katie Hunter, Counsel for the Applicant Jonathan R. Luna, Counsel for the Respondent

HEARD: March 2, 2022

Ruling

JARVIS J.

[1] In yet another of the plethora of Covid-19 vaccination cases involving children, the applicant (“the father”) has brought a motion to have vaccinated the parties’ twelve-year old daughter who primarily resides with him. The respondent (“the mother”) opposes the child being vaccinated at this time.

[2] The evidence before the Court comprises:

(a) The affidavits of the father sworn February 14, 2022 and March 1, 2022 (reply);

(b) The mother’s affidavit sworn February 28, 2022.

[3] Exhibits to the parties’ affidavits include communications between the parties and counsel, references to public health publications, and (relied upon by the mother) excerpts from on-line articles by an investigative journalist, Reuters and Associated Press reporters and other international information (the result of what the mother described was her extensive research).

[4] These are the facts:

(a) The parties signed a Separation Agreement (“the Agreement”) in September 2015;

(b) Paragraph 3.2 of the Agreement provided that the parties would have joint decision-making with respect to “the health, education, welfare, religious instruction and major extra-curricular activities of..” their daughter, AD. No decision on any of these issues was to be made without the consent of both parents;

(c) It was agreed that AD would primarily reside with her mother;

(d) AD has high-functioning autism and has the learning/understanding of a Grade 1 level;

(e) In June 2020 AD began to reside with her father. He lives in Thornhill, Ontario: the mother lives in London, Ontario;

(f) The Agreement provides a mediation provision as a precedent to a court proceeding;

(g) The child was infected with the virus in late November 2021 and recovered. While the parties disagree about the severity of her symptoms, the child did not require hospitalization;

(h) On January 11, 2022 the father’s lawyer wrote to the mother to seek her consent to the child being vaccinated because children AG’s age had become vaccine-eligible and the Omicron virus variant was surging;

(i) The mother declined to consent because AD had recently recovered from the virus without hospitalization and because she had been “able to fight the virus and [had acquired] natural immunity, [the mother had confidence] that [AD would] not benefit from it. She is very healthy and she does not have any risk factors or co-morbidity”. The mother forwarded internet excerpts from a Dr. Robert Malone whose final point in the excerpt described as the reason(s) given why parents should vaccinate their children “a lie”;

(j) The mother then proposed mediation (on January 27, 2022) but the father rejected that because he perceived the parties’ positions as entrenched and would only result in delay;

(k) The mother consulted the child’s family doctor on February 1, 2022 seeking her input and recommendations as to whether the child should be vaccinated. According to the mother, the doctor “refused to provide her professional opinion on my specific question and instead deferred to the recommendations of Public Health which failed to answer my question”;

(l) The father wants to follow Health Canada protocols. Having AD vaccinated would be important to her physical and emotional health. The mother says that she is not opposed to vaccines in general. However, she objects to AD being vaccinated at this time and listed her reasons, those being the absence of pediatric data for 12 year olds (#1); negligible risk for severe disease/death for 12 year old children (#2); numerous & potential serious side effects with Pfizer vaccine (#3); natural acquired immunity (#4); current Covid-19 vaccines can’t prevent infection/transmission (#5); mandates lifted in other jurisdictions (#6); and, Ontario mandates & vaccine passports to be lifted (#7);

(m) There is no evidence, or any suggestion for that matter, that the parents are other than loving and dedicated to AD’s well-being;

(n) The only relief sought by the father is that AD be vaccinated and that the mother’s consent to any documents required to achieve that outcome be dispensed with.

[5] The mother raised two objections to the father’s motion being heard on an urgent basis. She argued that the matter did not meet the test for urgency set out in Rosen v. Rosen and that as there was a Dispute Resolution provision in their Agreement that involved mediation as a pre-condition a court proceeding the father was obligated to pursue that approach before bringing his motion. The father says that the prevalence and transmissibility of, in particular, the Covid-Omicron variant and the mother’s opposition to vaccination present a continuing risk to the child that requires urgent attention and justifies disregarding the dispute resolution terms of the Agreement.

Urgency

[6] The Rosen test for urgency involves a two-step inquiry and is generally related to situations involving abduction, threats of harm and dire financial circumstances. This list is not exhaustive. The first step requires an inquiry when a case conference date is available. Absence of a proximate date may elevate a situation to urgent. The second step before bringing a motion obligates the parties to engage in a good faith dialogue to ascertain whether some temporary, reasonable compromise can be achieved pending the conference. Context is important. In Rosen, Wildman J. contrasted the situation where support was desperately needed, but refused, with a less compelling situation where the amount of support offered was within a reasonable range of the request.

[7] But for the pandemic, a dispute about a child’s vaccination would not typically be urgent. Rosen was decided post-SARS, pre-Covid. The Court in that case never envisioned a global event such as the current pandemic in which countless lives have been lost and many more people have been infected, some suffering symptoms more and longer-lasting than others. The virus, whatever its variant, is transmissible. It does not discriminate and, in terms of timely access to justice and court operations, its impact has been significant. In Newmarket, where this Court has a dedicated family law judicial complement, the next available conference event is September 2022, at least six months away. If the parties agree or if the matter involves a Motion to Change a final Order of the Court, the next available conference date before a Dispute Resolution Officer (a senior family law lawyer approved by the Ministry of the Attorney General) is June 2022, more than three months away. A systemic delay of three to six months dealing with an issue about a child’s vaccination status in the face of a global pandemic is, prima facie, urgent.

[8] In his affidavit, the father referred to the dispute between the parties as “black and white”. The mother’s position that she is against vaccination at this time is disingenuous because in answer to the Court’s inquiry she was unable to say when she would ever be agreeable. Perhaps the question was unfair but the point vis-à-vis the second step in the Rosen inquiry is, quite simply, that there is no realistic hope for a temporary, reasonable compromise on AD’s vaccination in the near, or even intermediate, future.

[9] The mother’s Rosen objection to the Court hearing the father’s motion is dismissed.

Dispute Resolution

[10] Paragraph 5 of the Agreement provides as follows:

5. Dispute Resolution

5.1 If [the mother] and [the father] disagree about a reviewable or variable term of this Agreement, they shall try to resolve the dispute through negotiation, either between themselves or with their respective counsel.

5.2 If [the mother] or [the father] seeks a change to a reviewable provision of this Separation Agreement, he or she will give the other, in writing:

(a) notice of the proposed change,

(b) evidence supporting the proposed change,

(c) any requests for information from the other necessary to determine the issue.

5.3 A request under this section will be answered within thirty days.

5.4 After exchanging any information required by this Agreement, [the mother] and [the father] shall meet personally or through their respective counsel to resolve the issues in dispute. If they come to an agreement, [the mother] and [the father] shall sign and date an amending agreement before witnesses.

5.5 If [the mother] and [the father] cannot agree within 60 days of the request for review or variation, they shall try mediation. Should mediation prove unsuccessful either party may proceed via Application pursuant to the Family Law Act, or the Divorce Act, or the Children’s Law Reform Act, or any other relevant legislation. The parties shall share the costs of mediation equally.

[11] The mother argued that the Court should hold the father to the terms of the parties’ Agreement, order that the parties mediate the vaccination issue and dismiss his motion.

[12] The process envisioned by this part of the Agreement, if followed, would involve no less than a ninety-day deferral, likely much longer, to a determination of the vaccination issue. As with the Rosen analysis above, neither party could conceivably have contemplated an event such as the pandemic when they signed their Agreement. While the Court should respect the terms of an otherwise valid and enforceable domestic contract, especially where the parties have agreed on a dispute resolution process involving mediation, the Court can exercise its inherent parens patriae jurisdiction to override contractual terms in the best interests of a child where appropriate, although the power to do so should be exercised sparingly.

[13] Requiring parties to engage in an unproductive, time-consuming and potentially expensive process with little to no likelihood of resolution serves no one’s interests, certainly not those of AD. Delay typically benefits one party and rarely benefits the child.

[14] This part of the mother’s objection to the father’s motion proceeding is also dismissed.

Discussion and Analysis

[15] As in every case involving children, the issue is whether vaccinating AD is in her best interests.

[16] In J.N. v. C.G., 2022 ONSC 1198, a recent child vaccination case upon which the mother relies, the Court was troubled by the forensic probity of evidence needed for a vaccination Order and the weight to be given to government-issued public health notices.

[17] In A.C. v. L.L., 2021 ONSC 6530, a case involving in-person schooling and child vaccination, Charney J. observed that the safety and efficacy of the COVID-19 vaccine has been endorsed by all governments and public health agencies, in that case the Ontario Ministry of Health, Toronto Public Health and the Toronto District School Board.

[28]…The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated.

[29] This analysis and conclusion is consistent with the approach taken by other courts addressing vaccinations prior to COVID-19: C.M.G. v. D.W.S., 2015 ONSC 2201, at para. 105; A.P. v. L.K., at para. 276; B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, at para. 180, aff’d B.C.J.B. v. E.-R.R.R., 2021 ONSC 6294, at paras. 49-53; Chambers v. Klapacz, 2020 ONSC 2717, at para. 7.

[30]…Given the government statements above, there can be no dispute that, as a general presumption, it is in the best interest of eligible children to get vaccinated before they attend school in person.

[18] L.M. v. C.O., 2022 ONSC 394 is a vaccination case motion involving a ten-year old child. It appears that this was a case of first impression in the sense that the report does not indicate whether there was a pre-existing domestic contract between the parties or whether a motion to change a final Order dealing with parenting was involved. An urgent case conference had preceded the motion. Van Melle J. Ordered that the child be vaccinated. Like A.C. v. L.L. (a case to which the Court referred) and most other vaccination cases, the Court referenced the updated guidance from the federal government.

[19] The information from Ontario Health suggests that there are indeed vaccinated people contracting the Omicron version of COVID-19. Data from the Public Health Agency of Canada found that Canadians with two doses of the vaccine were 19 times less likely to be hospitalized that those unvaccinated and a booster provides even more protection.

[20] On January 14, 2022 the Chief Public Health Officer of Canada released a statement which read in part:

Immunization for all those who are eligible, but are yet to receive their primary series, remains a top priority. Although uncertainties remain, evidence suggests that while two doses of vaccine may not provide good protection against getting infected, a two-dose primary series still provides good protection against hospitalisation. Encouragingly, the latest evidence indicates that a third dose improves protection against both infection and hospitalisation due to the Omicron variant.

[21] In TRB v. KWPB Justice Kubik at paragraph 12 and 13 said:

Since early 2020, Canadians have been living in the midst of a global pandemic caused by the SARS-CoV-2 virus. I take judicial notice of this fact which is so notorious and indisputable as to not require proof. I also take judicial notice of the regulatory approvals and directives issued by the various governments and agencies in Canada and Alberta. I accept that as a consequence of the pandemic, Alberta has, from time to time, invoked a state of public health emergency during which the Chief Medical Officer of Health has issued directives. At the time of this decision, Alberta is in a state of public health emergency, declared on September 15, 2021. On September 16, 2021 Health Canada approved the Pfizer-BioNTech vaccine for use in children aged 12-17, and on November 19, 2021, approved the same vaccination (with an adjusted dosage) for use in children aged 5-11. By virtue of its 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, and 12-17.

Justice Kubik’s findings in reference to the vaccine for use in children reflects the advice of Public Health Canada, which advice has been adopted by Ontario Health.

[19] In his affidavit the father excerpted as an exhibit the following from the Health Canada website (bolding in the exhibit by the father),

Evidence indicates that vaccines are effective at preventing serious outcomes due to COVID-19, such as severe illness, hospitalization and death. This includes protection against the Alpha and Delta variants of concern. However, there will be some people who are vaccinated who will still be infected with COVID-19 if they’re exposed to the virus.

People who have already had COVID-19 should be vaccinated for future protection. They may be offered 2 doses and a booster dose when eligible.

COVID-19 vaccines help to prevent infection as well as complications. By helping prevent infection, vaccination can also help prevent post COVID-19 condition. This condition refers to symptoms some individuals experience for weeks or month after being infected with COVID-19. Symptoms can be very different from those during the initial infection.

The condition can affect both adults and children.

[20] In J.N. v. C.G., Pazaratz J. noted that the objecting mother in that case, like the mother in this case, pointed to Pfizer-published guidance that the safety and effectiveness of the Covid-19 vaccine had not been established (it is the mother’s “strongest concern” in this case”). But notwithstanding that Court’s consideration of the risks associated with applying judicial notice to cases where expert opinion is unclear or in dispute (and may never be free from doubt) and speculating on the evidence, or lack of evidence, about the wisdom of mandatory child vaccination, the decision in that case really pivots on the rationality of each parent’s position and the facts unique to that family. Distinguishing J.N. from the case before this Court are the principal facts, as found, that the children had “very specific, strongly held and independently formulated views about Covid vaccinations” those views being “verified independently by an experienced social worker who would be alive to the possibility of parental influence or interference” (Supra #3 at para 74d) of which there was no evidence in that case. There is no evidence in this case of AD’s views about vaccination and none about parental manipulation. There is no evidence either that the child has any health issue that contraindicates vaccination. The father relies on Health Canada guidance whereas the mother relies on her research. While the mother also raised the issue of AD’s consent to treatment under s. 11 of the Health Care Consent Act it is not relevant given that the child functions at a Grade 1 level of learning and understanding.

[21] The mother challenges this father’s reliance on Health Canada and other government guidance on vaccination and the degree to which this Court should apply, if at all, judicial notice. In R.S.P. v. H.L.C., 2021 ONSC 8362, a case to which the Court in J.N. referred, Breithaupt Smith J. noted the definitive decision of judicial notice by the Supreme Court of Canada in R. v. Find, 2001 SCC 32. In R. v. J.M., 2021 ONCA 150 the Ontario Court of Appeal elaborated on Find in describing that facts of which a Court could take judicial notice included:

“(a) those that are so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons; and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy… The sources may include both large bodies of scientific literature and jurisprudence” (Ibid, at para. 31(v)).

[22] So what are the notorious or “accepted” facts which this Court is prepared to accept and which cannot be the subject of dispute among reasonable persons? And represent our collective lived experience. They are:

(a) The Covid virus kills;

(b) The virus is transmissible;

(c) The virus can, and has, mutated;

(d) Variants of the virus are more transmissible than others;

(e) Asymptomatic carriers of the virus can infect other people;

(f) Symptoms of the virus may vary according to age, health and co-morbidity factors;

(g) The virus does not discriminate;

(h) There is no known immunity to contracting the virus;

(i) There is no verifiable evidence of natural immunity to contracting the virus, or any mutation, a second or more times;

(j) Vaccines work;

(k) Vaccines are generally safe and have a low risk of harmful effects, especially in children (Warren v. Charlton, 2022 ONSC 1088, at para. 9 (b));

(l) Vaccines do not prevent infection, reinfection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes (Ibid, at para 9(c)).

[23] This is not “fake science”. It is not “fake medicine”. Whether there is a drug company conspiracy callously or negligently promoting unsafe medicine (the “lie”) in collusion with federal and provincial authorities this Court leaves to another day and to those who think Elvis is alive. He isn’t. He left the building decades ago.

[24] In A.C. Charney J. suggested that as general presumption it is in the best interests of a child to be vaccinated. This Court agrees. In J.N. Pazartz J. asked rhetorically whether judicial notice should be taken of the fact that all children should get vaccinated. The answer in my view is that parents should rely on government guidance and should have their children vaccinated unless there is a compelling reason not to do so. That may amount to a legal presumption, placing the onus on the objecting parent, but even if it isn’t, the Court is satisfied that it is in AD’s best interest to be vaccinated.

Disposition

[25] The following is ordered:

(a) The father may have AD vaccinated against the Covid-19 virus without the consent of the mother;

(b) The timing and frequency of the dosing shall be administered in conjunction with the advice and recommendation(s) of the child’s family doctor;

(c) The father shall inform the mother in a timely way (no less than 48 hours notice) when any appointment is made for the child’s vaccination(s). The mother shall be entitled to attend the appointment;

(d) If necessary, the mother’s signature or consent to vaccination is dispensed with;

(e) No other Order is made with respect to the parties’ shared decision-making responsibilities for AD;

(f) The mother shall pay to the father costs in the amount of $3,000 plus HST.

[26] The award of costs is based on the parties’ submissions made after argument. There was no reference to pre-motion Offers to Settle being made. The father seeks full recovery costs of $6,700 all-inclusive. The mother’s full recovery costs are $2,700 plus HST. While the vaccination issue was controversial, the matter was not factually complicated, both parties acted reasonably. The Court has considered the factors set out in Family Law Rule 24 dealing with reasonableness, proportionality, each party’s behaviour and the time spent as reflected in the materials filed. More time overall was spent by the father’s counsel in dealing with the issue than mother’s counsel. The motion was argued over a one and one-half hour period. Significantly, and unlike so many cases before this Court, the parents avoided (as in J.N.) demonizing the other. AD is a very lucky young lady to have such responsible parents so dedicated to her well-being. Counsel are to be commended on their materials and presentation. Their clients have been well served.

Justice David A. Jarvis Date: March 4, 2022