ONTARIO COURT OF JUSTICE

DATE: 2020-09-28

COURT FILE NO.: Toronto DFO-15741/17 – B2

BETWEEN:

B.C.J.B.

Applicant Father

— AND —

E.-R. R. R.

Respondent Mother

Before: Justice Alex Finlayson

Heard on: July 22, 2020 and August 28, 2020

Reasons for Judgment released on: September 28, 2020

Counsel:

• Zahra Taseer, for the applicant father
• Mira Pilch, for the respondent mother

ALEX FINLAYSON J.:

PART I: NATURE OF THIS MOTION

[1] The parties are the parents of a boy, B.R.M.R., who is almost 10 years old. This is my decision following a motion I heard on August 28, 2020, brought by the father. He raises three core issues.

[2] First, B.R.M.R. has never received the childhood vaccines that other children in Ontario routinely receive. The father seeks an order that he be given decision making authority over having the child vaccinated.

[3] Second, like all children in Ontario, B.R.M.R. stopped attending his private school and day care in person, following the Covid-19 shutdowns earlier this year. Now that the child's private school and day care have re-opened, a dispute has arisen as to his return to school and day care. The father seeks an order that the child not return to the private school and the day care. He proposes that the child switch to the public stream, and that he cease attending his day care altogether.

[4] Third, the father alleges that the mother has been overly restrictive in allowing him to spend more time with B.R.M.R. He asks the Court to order an equal time-sharing arrangement, on a week on, week off basis.

[5] By the time the motion was argued, several issues, including the one about the child's return to school this year, resolved on consent. The parties agreed to defer the father's request for an equal time-sharing arrangement to trial. In this decision, I address only the remaining vaccination and day care issues left on this motion, and I give directions for the next steps in this case.

PART II: THE PARTIES' POSITIONS AND A SUMMARY OF THIS DECISION

[6] This motion was argued with each counsel taking a different approach as to the applicable legal framework that ought to govern the Court's determination about the remaining issues.

[7] Counsel for the father relies on Harper J.'s decision in C.M.G. v. D.W.S., 2015 ONSC 2201, a vaccine case in which he disregarded the joint custody terms in the parties' separation agreement, incorporated into a consent order, based on a best interests' test. Counsel further relies on section 56(1) of the Family Law Act specifically, as the statutory authority for this Court to disregard the custody term in the parties' Parenting Agreement dated April 18, 2013. In short, the father submits that the "best interests of the child" test should govern the issues on this motion, regardless of the history of parenting and the custody term in the parties' Parenting Agreement.

[8] Regarding the vaccine issue, the father argues that the onus should be on the mother to demonstrate why B.R.M.R. ought not be vaccinated, like other children in Ontario are.

[9] The father wants the Court to take judicial notice that vaccines are "safe and beneficial". That way, and particularly if the Court directs a trial, the father will go into the trial knowing that he need not call expert evidence to establish this. He also asks the Court to take judicial notice of public policy which supports vaccines.

[10] The mother opposes the father's motion. The mother's arguments rest heavily on the status quo and the custody term in the Parenting Agreement dated April 18, 2013. The mother submits that the father must demonstrate "exigent circumstances" to change the status quo prior to trial, and she says he has not done so. In other words, short of a trial, the mother may continue to decide whether the child should be vaccinated or not. The mother may also continue to decide whether the child should go back to day care or not, too.

[11] Although the father would frame the vaccine issue as being subject to the best interests' test, counsel for the father also made arguments that the need for B.R.M.R. to be vaccinated right now is also an "exigent circumstance", and an issue which should not be delayed to a trial. The father's "exigent circumstances" arguments center around the impact of Covid-19. The father separately asks the Court to take judicial notice of various matters relating to Covid-19, including that Covid-19 is impacting the level of "herd immunity" in the community. Because of this impact of Covid-19, father says that B.R.M.R. is now at greater risk of contracting vaccine preventable diseases, and at greater risk of harm should he contract a vaccine preventable disease.

[12] In the further alternative, if the Court is not prepared to empower the father to deal with the child's vaccination on this motion, then he says the Court should direct a trial.

[13] The custody term in the Parenting Agreement has never been incorporated into a Court Order. Both sides agree that this is not a variation case, in which section 29 of the Children's Law Reform Act would apply. Although neither side argued that it is strictly necessary to demonstrate a material change in circumstances for the Court to make an order that would be inconsistent with the custody term in the Parenting Agreement per se, at times during the submissions, both counsel seemed to suggest implicitly, if not expressly, that there must be some new circumstances to warrant the Court's intervention.

[14] I agree that the best interests' test applies. This is not a Motion to Change an existing order. Material change in circumstances is not the test. Nor do I find that it is necessary for the father to demonstrate "exigent circumstances".

[15] I find that the relevance of, and the weight that should be attached to the custody term in Parenting Agreement dated April 18, 2013, to be two-fold. The Parenting Agreement is a reflection of the parties' intentions when they signed it. It is also evidence of the status quo, which is a factor to consider, but within the best interests' analysis. However, if the Court finds it not to be in B.R.M.R.'s best interests, the Court may disregard it. Moreover, the custody term in the Parenting Agreement dated April 18, 2013 is not actually part of a "domestic contract", and that too necessarily impacts its weight.

[16] I find that the case law overwhelmingly supports the conclusion, that the father should be empowered to make medical decisions about B.R.M.R.'s vaccinations at this time. I see no absolutely no good reason to delay this issue to a trial, despite mother's arguments to the contrary.

[17] The Court also finds that it may take judicial notice of some, but not all of the matters, that counsel for the father would have the Court take judicial notice of. Later in this decision, I explain what I will take judicial notice of, in more detail.

[18] Regarding the school issue, again that issue resolved on consent at the outset of argument, but for the 2020-2021 school year only. The day care issue, however, did not. Despite the temporary settlement of the school issue, the overall school and day care issues are at least somewhat interrelated.

[19] I would not accede to the outcome that the father seeks, regarding the day care issue. There is no basis for the Court to stop the child from attending day care prior to trial, based on the record before me. While the father would have the Court rely on Covid-19 as a basis to disturb the long-standing day care arrangements that have been in place for this child, his concerns are really more financial in nature, and that day care for B.R.M.R. is no longer necessary. Those concerns are also somewhat intertwined with the father's request for a shared parenting schedule, which he has already agreed to defer to the trial. Therefore, whether the child should continue in day care in the longer term, and/or how the financial consequences of the mother's decision to send the child to day care should be apportioned, will be addressed at the trial.

PART III: BACKGROUND FACTS

A. History of the Parents' Relationship

[20] The parents never cohabited. The father says that since the child was born, he wanted a relationship with him. The father says he has worked hard to establish that relationship over the past 10 years, despite the mother frustrating his attempts. While he says it was never his intent to raise the child in a romantic partnership with the mother, early on he believed it would be possible to work collaboratively with her. That, the father says, has not materialized. He believes the mother became difficult over parenting issues, when she realized that there would not be any romantic future between them.

[21] The mother alleges that the father showed little interest in the child. She cites a number of examples to support this, both during her pregnancy and when the child was younger. Despite the obstacles that the mother says the father himself erected to the development of his relationship with the child, the mother says she nevertheless made efforts to keep the father informed and involved. The mother says the father only started to show some interest, when the paternal grandparents advised they wanted to meet their grandchild.

[22] While the father may have been more aloof initially (a fact which is disputed), there is evidence that the father did make efforts to pursue a relationship with the child. Much (but not all) of that effort has been directed towards pursuing increased parenting time with the child, beginning when B.R.M.R. was about 2 ½ years old.

[23] What has transpired between the parents concerning B.R.M.R. begins with their Parenting Agreements. The parties have signed two such Parenting Agreements. There is also an unsigned, draft Agreement, which a so-called "intermediary" finalized for them by the fall of 2011, and which the mother says led to the creation of the first signed Parenting Agreement. And, there is evidence before the Court about the father's subsequent efforts to pursue a relationship with the child after he signed the first Agreement.

B. The 2011 Draft Agreement

[24] The mother says that even prior to B.R.M.R.'s birth, she was cognizant of the need for there to be a clear, written parenting agreement concerning custody, access and child support. So before the child was born, she used an "intermediary" named Anna Spinola to facilitate discussions with the father. She says the father was invited to use an intermediary of his own, but he chose not to.

[25] Ms. Spinola, who is not a lawyer, was involved in negotiating and preparing that draft Agreement. The mother says she sought independent legal advice about its terms. She says the father was advised to get legal advice too, but whether he did this is not in any sworn form before the Court. Rather, in an unsworn letter dated August 9, 2020 that the mother attaches to her affidavit sworn August 20, 2020, Ms. Spinola states that the father did obtain that legal advice. She does not specify from whom.

[26] Ms. Spinola finalized the draft Agreement in the fall of 2011. It provides that the mother would have custody of the child. The mother says that father never mentioned a desire to have custody back then, nor that having B.R.M.R. vaccinated was important to him.

[27] Even though the parents did not sign this draft, the mother says that the father confirmed he agreed to its terms, by email dated November 28, 2011. The mother says that the parties followed its terms, until they signed the Parenting Agreement dated April 18, 2013.

C. The Parenting Agreement dated April 18, 2013

[28] The mother says that the parents used the 2011 draft Agreement as a template to create the signed Parenting Agreement dated April 18, 2013. The mother says it was negotiated over "several months", beginning in late 2012, with the assistance of counsel. The mother says that during the negotiations, the father did not raise any desire to change custody.

[29] The father says that it was a "combination of pressure and hopefulness" that led him to sign this Parenting Agreement in the spring of 2013. His signature on the Agreement pre-dates his various efforts to increase his parenting time with B.R.M.R.

[30] It is unnecessary for me to summarize the terms of this Agreement in their entirely, as the child support terms, for example, are not relevant to the issues on this motion. Regarding parenting, it provides that the mother will have sole-custody of B.R.M.R. It also provides for some, limited access between the father and B.R.M.R. I note, however, that its terms make provision for increases to the father's parenting time, including by way of review. Indeed, paragraph 3.8 provides that the parties will review access and the holiday schedule, once the child and the parties are comfortable with the schedule in the Agreement, including when the child turns four years old.

[31] Paragraph 3.9(k) directs the parties to maintain a reasonable and flexible position respecting the custody/access arrangements for the child, and at all times "will his best interests prevail". The balance of this subparagraph refers to maintaining flexibility regarding the schedule, to accommodate special occasions, activities and the like.

[32] Paragraph 12.1 says that the Parenting Agreement is a "parenting plan entered into under section 54 of the Family Law Act, and is a domestic contract that prevails over all matters dealt with in the Family Law Act".

[33] Paragraph 12.3 is a usual severability clause. It says, "[e]xcept as otherwise provided in this Agreement, the invalidity or unenforceability of any term of this Agreement does not affect the validity or enforceability of any other term. Any invalid term will be treated as severed from the remaining terms."

D. Increases to the Father's Parenting Time with B.R.M.R. After The Parties Signed the Parenting Agreement dated April 18, 2013

[34] The father says between 2013 and 2017, he made countless attempts to gain "greater and more equitable access" to B.R.M.R., before involving this Court. He says he tried to communicate with the mother in writing and in person, he says he attended co-parenting and counselling sessions several times with numerous counsellors, he says he participated in private mediation multiple times with numerous providers, and he says there have been several meetings between the parties and their counsel. It became clear to the father that working collaboratively with the mother would not be possible. He describes the mother's attitude about his relationship with B.R.M.R. as "adversarial and competitive".

[35] In his affidavit of August 5, 2020, the father details the numerous, but gradual increases to his parenting time with B.R.M.R. that he was able to achieve through persistence. The detail in his affidavit in this respect begins in 2013 and runs to the present.

[36] According to this history (which the mother does not dispute), beginning on May 1, 2013, the father initially had access on Wednesdays from 6:00 pm to 8:15 pm. The affidavit maps out six different schedules between May 1, 2013 and the time this proceeding began in July 2017. There have been a further schedule increases since then.

E. The Initiation of Court Proceedings

[37] The father commenced this proceeding on July 19, 2017. There have been a number of appearances before the case management judge, leading up to this motion.

[38] The father says that after he commenced these proceedings, the mother tried to delay the proceedings. The father cites that she has now changed lawyers three times, that she requested adjournments, and that she did not follow through with mediation at Mediate393 after he completed his intake there, as examples of her delay tactics.

F. The "Interim Amending Parenting Plan" dated June 29, 2018

[39] In the early summer of 2018, about a year into this litigation, the parents signed a further Agreement, called an "Interim Amending Parenting Plan" dated June 29, 2018. The terms of that Agreement deal only with the father's access. The father says they entered into this interim agreement, after the first case conference before Pawagi J. on March 29, 2018, and "after hearing from the Court". The father says that although there was an agreement to increase his access on an interim basis, no progress was made on the vaccination issue.

[40] Paragraph 1.5 of the "Interim Amending Parenting Plan" dated June 29, 2018, says that this new interim agreement replaces paragraph 3.2, 3.4, 3.10, 3.11 and 3.12 of the Parenting Agreement dated April 18, 2013. The terms replaced pertained to the father's previous regular and holiday access schedules, and certain conditions of that access. The interim agreement otherwise did not replace the other terms of the Parenting Agreement dated April 18, 2013. Indeed, the last sentence of paragraph 1.5 of the "Interim Amending Parenting Plan" reads, "Other than as specifically modified herein, the Parenting Plan remains in full force and effect." The mother points out that the father once again agreed to custody being vested in her when he signed this interim agreement.

[41] However, paragraph 6 of the "Interim Amending Parenting Plan" also states that the parties intended to review its terms again, in October 28, 2018, "as part of their longer term negotiations regarding various parenting issues". And the clause indicates that the interim agreement ends on the earliest of the date the parties enter into a further amending agreement, minutes of settlement or further order of the court.

[42] Finally, paragraph 6 makes it clear that the interim agreement is without prejudice to any rights or claims of the parties. I would not find that the father compromised his position regarding the vaccination or other custodial issues by signing this interim agreement.

G. The Court's Subsequent Temporary Orders

[43] The parents consented to a number of further temporary orders for access and other incidental matters, after they signed this Interim Amending Parenting Plan. However, neither the Parenting Plan dated April 18, 2013, nor the "Interim Amending Parenting Plan" dated June 29, 2018, were ever incorporated into a Court Order. Nor was any temporary or final custody order ever made in these proceedings so far.

[44] The father's current parenting time with B.R.M.R. now occurs on Fridays, after day-care (with different pick-up times depending on the time of the year), to Monday mornings return to school, and on Wednesdays from 4:00 pm until Thursday mornings, return to school.

[45] The father says that he has not been allowed to spend time with B.R.M.R. outside of the mandated access at different points. On his account, the mother has been inflexible for special occasions, and when he needed to re-schedule his access. He says the child is not even allowed to spend more than a few hours with paternal grandparents, uncles or the father's partner of 9 years, without him being present.

[46] The mother disagrees, saying that over the years, she has asked the father to care for B.R.M.R. for additional periods from time to time, but he would not always do so. Occasionally, she says, the father would take B.R.M.R. for some extra periods that she offered, but even then, he would only do that for a day or two.

H. Prior Proceedings Leading Up to this Motion

[47] By December 17, 2019, this case was on the trial track, for the first time. Pawagi J. endorsed that the parties and counsel had confirmed their availability for the trial assignment court on May 7, 2020, and for the trial sittings in June, 2020. The issues for trial were to include the vaccination issue, and any other issue not resolved by that date. However, the assignment Court and trial sittings did not happen, on account of Covid-19. So instead, on April 7, 2020, Pawagi J. directed that there would be a further settlement conference in July, at which point she anticipated the plan would be to re-send this case to the next assignment Court, in the absence of a settlement.

[48] There appears to have been an administrative error regarding scheduling that July 2020 settlement conference. On or around May 21, 2020, former counsel for the mother filed a 14B Motion, asking either to set a date, or to reschedule this case, for July 9, 2020. The Court Clerk responded that the next date in this matter had actually been set for September 24, 2020.

[49] On July 8, 2020, counsel for the father filed a 14B Motion, requesting an urgent case conference or a motion, prior to August 1, 2020, regarding the school, day care and vaccination issues. By that point, the mother and her second lawyer had parted company. The mother responded to the father's 14B Motion on a self-represented basis, arguing that these issues were not urgent. She also said she required more time to retain fresh counsel.

[50] On July 16, 2020, Pawagi J. endorsed the following:

This case has been before the court for two years. It had been scheduled to proceed to the June trial sittings on the issue of vaccination and any other issues that had not been settled by that time. These sittings were cancelled as a result of Covid-19 restrictions on the court. The court is now gradually moving toward the resumption of normal operations. This case should not be delayed further.

Adjourned to July 22, 2020 at 11 a.m. for telephone conference before Justice Finlayson to be spoken to regarding the scheduling of a conference and/or motion before His Honour.

[51] On July 22, 2020, I advised the parties that I would hear the motion. At that point, there was also a dispute about whether the child would attend a summer camp at his day care for the balance of the summer. The day care was either re-opening, or it was about to re-open soon. However, the mother required an adjournment to retain fresh counsel to respond to the motion. As a term of the adjournment, the parties agreed that the child would not go to summer camp for the balance of the summer. With that issue resolved, I made a scheduling order for the exchange of motion materials, and I set this motion to proceed on August 28, 2020. The schedule took into account the mother's request for more time to retain counsel.

[52] The parties filed motion materials pursuant to the schedule that I imposed. Then, on August 11, 2020, the mother, now represented by fresh counsel, filed a 14B Motion, advising the Court that she would be moving to strike a portion of a paragraph in the father's affidavit of August 5, 2020, as well as a number of exhibits attached to that affidavit. In her 14B Motion, the mother requested an additional appearance to address the evidentiary issues, if necessary. I directed that the parties could make submissions about the evidentiary issues as part of the argument of the motion.

[53] At the outset of argument on August 28, 2020, the Court struck a portion to the disputed paragraph in the father's affidavit on consent, but counsel did not agree about the exhibits. The latter was argued, and I address the admissibility of those exhibits, and the use to which they will be put, later in this decision.

[54] Also at the outset of argument on August 28, 2020, the parents advised the Court that they had settled the issue about the child's return to school for the 2020-2021 school year. The Court granted a consent order that the child would resume attending school this year, provided the mother paid any private school fees. They did not settle the day care issue, beyond their prior consent that the child would not go to camp for balance of the summer only.

[55] In addition, the Court made a number of other consent orders as follows:

(a) The Court ordered that the father would be allowed to amend his Application;

(b) The Court ordered that the child shall be referred to by initials in any published judgments of the Court; and

(c) The Court ordered that the parties were not to discuss any issues raised in the litigation with the child, including vaccination.

[56] At the outset of argument, I asked the parties to address whether the Court should just direct a trial, particularly if it could be scheduled for the December 2020 sittings. Counsel took a break to consider this.

[57] After the break, the father abandoned his request to change the parenting schedule pending trial, in favour of that expedited trial. However, as indicated earlier, the parties advised the Court that they still intended to argue the vaccine and day care issues.

PART IV: ISSUES AND ANALYSIS RESPECTING THE APPLICABLE LEGAL FRAMEWORK

A. The Applicable Legal Provisions Concerning Incidents of Custody

[58] Pursuant to section 21, either parent may apply to this Court for an order respecting custody of or access to the child or determining any aspect for the incidents of custody of the child. The merits of that application must be determined on the basis of the best interests of the child, in accordance with subsections 24(2), (3) and (4).

[59] Section 24(2) requires the Court to consider all the child's needs and circumstances, which includes a list of enumerated factors that must be applied to the evidence. No one factor in section 24(2) has greater weight than the other, although there may be more evidence about one factor versus another. See Libbus v. Libbus, 62 R.F.L. (6th) 416; see also Van de Perre v. Edwards, 2001 SCC 60.

[60] Section 24(3) provides that a person's past conduct shall be considered only in accordance with subsection (4), or if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent. Section 24(4) concerns violence and abuse, which is not a relevant factor in this case before me. However, the parents' past conduct has been called into question as relevant to their abilities to act as parents, and so section 24(3) is engaged on this motion.

[61] Section 28 of the Children's Law Reform Act deals with incidents of custody or access. Pursuant to section 28(1)(a) and (b), the Court may grant the custody of or access to the child to one or more persons, it may determine any aspect of the incidents of the right to custody or access, and pursuant to section 28(1)(c), it may make additional orders as the Court considers necessary and proper in the circumstances, including a list of enumerated orders.

[62] At ¶ 21 of Chou v. Region District School Board, Perkins J. defined incidents of custody as follows:

"Custody" is not defined in Ontario legislation, though its meaning in family law is generally understood. It consists of a bundle of rights and obligations, called "incidents" in sections 20 and 21 of the Children's Law Reform Act, R.S.O. 1990, c. C. 12, as amended. Family law cases often deal with the allocation of rights of custody. Those rights include the right to physical care and control of the child, to control the child's place of residence, to discipline the child, to make decisions about the child's education, to raise the child in a particular religion or no religion, to make decisions about medical care and treatment. The incidents of custody can be dealt with all together or separately, according to section 21, and today it is common for parents who have separated to agree, and for courts to order, that some incidents of custody are jointly vested in the parents and some belong to one parent exclusively. If a custodial right is joint, it may be exercised by any one of the persons who has it.

[63] Section 29 of the Children's Law Reform Act provides that a court shall not make an order that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. While this section does not apply in this case, I mention this section and the material change test in particular, because of the nature of some of the arguments I heard about certain thresholds that might apply on this motion. I also mention this section because material change in circumstances type factors appear to permeate into some of the case law, including in cases where there was an initial application for custody, but also where there was an existing custody agreement that had never been incorporated into an order.

B. The Proper Characterization of the Parties' Parenting Agreement dated April 18, 2013 and Its Impact Upon the Court's Analysis

[64] A number of other statutory provisions are relevant to the analysis, and in particular to the weight which should attach to the custody term in the Parenting Agreement dated April 18, 2013.

[65] Section 20(1) of the Children's Law Reform Act states that each parent is equally entitled to custody of B.R.M.R. However, where the child has lived with one parent with the other's consent, implied consent or acquiescence, the exercise of the other's entitlement of custody and the incidents of custody is suspended, until a separation agreement or order provides otherwise. See section 20(4). Pursuant to section 20(7), the parents' entitlements to custody or access, or to incidents of custody, are subject to alteration by an order of the court or by separation agreement.

[66] Both sections 20(4) and (7) speak only of a court order or a separation agreement as being sufficient to change the suspension of, or to alter the equal entitlement to custody. There is no custody order in this case. An issue thus arises as to whether the "Parenting Agreement" is a separation agreement for the purposes of these sections. For the reasons that follow, I find the Parenting Agreement does not qualify as a separation agreement.

[67] According to section 51 of the Family Law Act, a "domestic contract" means a marriage contract, separation agreement, cohabitation agreement, paternity agreement or family arbitration agreement as defined in various other sections of the legislation.

[68] I take no issue that the Parenting Agreement dated April 18, 2013 (and the subsequent Interim Amending Parenting Plan for that matter) meet the formal requirements of a domestic contract under the legislation. Pursuant to section 55(1) of the Family Law Act, a domestic contract and an agreement to amend or rescind a domestic contract, are unenforceable unless made in writing, signed by the parties and witnessed. However, that does not end the inquiry.

[69] Paragraph 12.1 of the Parenting Agreement dated April 18, 2013 self-refers to itself as a "parenting plan entered into under section 54 of the Family Law Act" and "a domestic contract that prevails over all matters dealt with in the Family Law Act". These self-characterizations do not, on their own, make that so.

[70] Section 54 of the Family Law Act is the section that defines what a separation agreement is, in the Family Law Act. While two persons may sign a "separation agreement" that addresses custody and access issues, the requirements of section 54 include that the two signatories must have cohabited.

[71] In this case, there is no suggestion that the parents ever cohabited. In fact, the Parenting Agreement dated April 18, 2013 (and the Interim Amending Parenting Plan) explicitly state the contrary.

[72] Although it is not a separation agreement, if the Parenting Agreement dated April 18, 2013 is another kind of domestic contract, then it may alter the analysis in this case. Section 68 of the Children's Law Reform Act reads, "[w]here a domestic contract as defined in the Family Law Act makes provision in respect of a matter that is provided for in this Part, the contract prevails except as otherwise provided in Part IV of the Family Law Act."

[73] To qualify as another form of a domestic contract, the Parenting Agreement dated April 18, 2013 would have to fall within one of the other definitions of a domestic contract in section 51 of the Family Law Act. There is no suggestion that the Parenting Agreement dated April 18, 2013 is either a marriage contract, a cohabitation agreement or a family arbitration agreement within the meaning of section 51 of the Family Law Act. Portions of the Parenting Agreement dated April 18, 2013 do fit within the definition of a paternity agreement, but not its custody provisions.

[74] Section 51 of the Family Law Act says that a "paternity agreement" is a domestic contract entered into under section 59. While section 59(1) makes provision for a man and woman who are not spouses to enter into an agreement for the payment of child support, the section does not provide that paternity agreements may include custody and access terms. Only the child support terms in the Parenting Agreement dated April 18, 2013 may form part of "paternity agreement", and therefore a "domestic contract", within the meaning of sections 51 and 59.

[75] Again, paragraph 12.3 of the Parenting Agreement dated April 18, 2013 is its severability clause. As the custody terms are not properly part of a "paternity agreement", and they are therefore severable from the Agreement.

[76] Without addressing its characterization, counsel for the father submits that the custody term in the Parenting Agreement of April 18, 2013 should be disregarded on a best interests' analysis, pursuant to section 56(1) of the Family Law Act. In a custody case under the Children's Law Reform Act, the Court may turn to section 56(1) of the Family Law Act by virtue of section 68 of the Children's Law Reform Act. However, these disregarding provisions only apply to domestic contracts. As the custody term in the Parenting Agreement dated April 18, 2013 does not actually form part of a domestic contract, I tend to disagree with counsel for the father that section 56(1) has any application.

[77] In the result, what the Court actually has before it, is a written agreement that is not a domestic contract insofar as custody is concerned. Nevertheless, although section 56(1) does not strictly apply per se, the Agreement is not insulated from scrutiny on a best interests' basis. Case law has addressed how written agreements that are not domestic contracts are to be treated.

C. The Case Law Concerning How to Treat the Parenting Agreement

[78] Several cases address how agreements containing custody terms should be treated when a court is asked to make a custody order either consistent with, or inconsistent with the term(s) of the agreement. The cases include analysis, both about agreements that are domestic contracts, and about those which are not. The case law is conflicting.

(1) Custody Terms in An Agreement Are Subject to the Best Interests Test

[79] Several decisions apply the Court's duty to have regard to the child's best interests irrespective of any custody terms of written agreements, whether they are in domestic contracts or not. The basic premise is that a Court may disregard a custody term in an agreement if it would be in a child's best interests to do so.

[80] In C. (M.A.) v. K.(M.), 2009 ONCJ 18, Cohen J. had before her an agreement which, like in this case before me, was not a domestic contract. Nevertheless, at ¶ 45 she held, "I begin by stating the well-established principle that, in custody and access cases, a court is not bound by the provisions of domestic contracts." Although she did not apply section 56(1) of the Family Law Act per se, she made the aforementioned statement with reference to that provision. I take from Cohen J.'s comments, that an agreement which is not even a domestic contract would certainly not be exempt from scrutiny on a best interests' analysis, when a domestic contract that actually receives statutory recognition, is always subject to that test. At ¶ 49 of the case before her, Cohen J. held that the agreement was useful as a reflection of the parties' intentions regarding the parenting arrangements at the time they entered into the agreement in question, but she did not ascribe to it much other weight.

[81] The Court took a similar approach to an actual domestic contract (a separation Agreement) in Libbus v. Libbus, cited earlier. At ¶ 110, Nelson J. found that the agreement provided a "window of opportunity to the court to examine the parties' thinking at the time they entered into it".

(2) The Concept of Parental Autonomy and Whether Material Changes in Circumstances Type Considerations Should Factor into the Analysis

[82] Some decisions would place more weight on parental intention, as reflected in their agreements. This is based on a policy that parental autonomy should be respected, and parents should be encouraged to enter into agreements. Some (but not all) of the cases also go on to essentially apply material change like considerations in the analysis, even where no order exists to be varied, to give effect to that policy.

[83] For example, in the mobility case, Woodhouse v. Woodhouse, 29 O.R. (3d) 417, the Court discussed the difference between an application to vary a prior order, that would entail a consideration of the findings of a judge who made the previous order and new evidence, versus an initial application where there is just a separation agreement in place. The Ontario Court of Appeal held that separation agreements are not binding on the court, because it is in the interests of the children rather than those of the parents that are at issue. However, it is also "reasonable to think that at the time the separation agreement was made it reflected the parties' views of the best interests of the children" and the Court should consider "the prior agreement as well as the evidence of the proposed or changed circumstances". I note, however, that these comments were made in the context of a proposed move, where new circumstances were advanced as the basis for the move.

[84] In Tumino v. Tumino, 2002 R.F.L. (5th) 427 (Ont. S.C.J.), another mobility decision, Kiteley J. cited Woodhouse v. Woodhouse and Gordon v. Goertz, and applied a material change test, even though the parties' agreement had not been incorporated into a Court order. This is another decision which discusses parental autonomy in this context.

[85] Citing ¶114 of L'Heureux-Dubé J.'s concurring opinion in Gordon v. Goertz, 134 D.L.R. (4th) 321, Kiteley J. wrote, "it is sound public policy that parenting agreements be encouraged. If the contents were simply ignored, it would eliminate any incentive to use the time and resources to negotiate them." While Kiteley J. went on to expressly apply a material change test, I note that appears to have been based, at least in part, on a submission from counsel that that was the proper approach.

[86] In Todoruck v. Todoruck, 2014 ONSC 6983, Nightingale J. partially applied the Miglin test (which I will come to) to an agreement. However, he also referred to the Court's ability to disregard an agreement based on best interests, and the material change test. Regarding the Court's comments about material change, at ¶ 43, he suggested that a "parent who seeks to overturn a reasonable custodial access agreement entered into at the time of separation should be prepared to prove the agreement is no longer reasonable and how his or her proposed arrangement better meets the best interests of the children."

[87] By contrast, in Askalan v. Talen, 2012 ONSC 4746, Spies J. disagreed with Kiteley J.'s approach in Tumino v. Tumino. Also citing Woodhouse v. Woodhouse, at ¶29, she wrote, "[i]n my view, the Court of Appeal very clearly stated that Separation Agreements are not binding on the court. I am not aware of any case that provides that a Separation Agreement has the force of an order or that in making a change to a separation agreement the court must find a "material change in circumstances". In fact, in the case of a decision with respect to education, an incident of custody, given the provisions of section 56(1) of the Family Law Act, I am clearly not bound by the terms of the Agreement."

[88] At ¶31, Spies J., accepted that the terms of the Separation Agreement should be considered in determining what is in the child's best interests now, to the extent they show what the parents thought about that, at the time they entered into it.

[89] Similarly, in Carpenter v. Carpenter, 11 R.F.L. (5th) 281, Aston J. held that the terms in a separation agreement were a factor for the Court to consider. But he also held that it was not necessary for the moving party to meet a threshold test of material change in circumstances.

[90] And finally, in Molloy v. Molloy, 1991 CarswellOnt 3554, Granger J. held that a motion judge should determine what is in the best interest of the children pending trial based on all the evidence, not just the evidence since the separation agreement was signed.

(3) Whether the Test in Miglin v. Miglin Applies to Custody Terms in An Agreement

[91] Some cases would give weight to a custody term in an agreement, based on the Supreme Court's test in Miglin v. Miglin, 2003 SCC 34. Miglin v. Miglin concerned what amount of deference should be given to a spousal support agreement, on an initial application for spousal support brought under section 15.2 of the Divorce Act. Miglin v. Miglin has been cited over 1000 times since its release. Some decisions have extended its principles and test, to other contexts, including in custody cases.

[92] The well-known Miglin test contains two stages. At stage one, a court will consider whether there were any circumstances surrounding the negotiation of the agreement that might cause a court to discount it. Where the court is satisfied that the conditions under which the agreement was negotiated are satisfactory, the Court will examine the substance of the agreement. The court must determine the extent to which the agreement takes into account the factors and objectives listed in the Divorce Act (since the case dealt with spousal support under the Divorce Act). Only a significant departure from the general objectives of the Divorce Act will warrant the court's intervention on the basis that there is not substantial compliance with the Divorce Act.

[93] At stage two, the court should assess the extent to which enforcement of the agreement still reflects the original intention of the parties, and the extent to which it is still in substantial compliance with the objectives of the Divorce Act. See ¶ 80-91 of Miglin v. Miglin.

[94] In at least one Alberta and three Ontario trial and/or motions decisions, courts have applied the Miglin test in custody cases: see Blois v. Gleason, 2009 CarswellOnt 2527; Di Raimo v. Di Raimo, 2020 ONSC 5233; Hearn v. Hearn, 2004 ABQB 75; and Todoruck v. Todoruck, 2014 ONSC 6983. In this decision, I will comment only on the three Ontario cases, given that I must decide this case before me according to the statutory framework in Ontario, and specifically under provincial legislation.

[95] First, I note that Blois v. Gleason was decided under the Divorce Act. There is no mention of how section 56(1) of the Family Law Act, which allows the Court to disregard an agreement based on a best-interests test alone, factors into a Miglin analysis. By contrast, in Di Raimo v. Di Raimo, the Court specifically addressed this difference, citing that when a custody claim is made under the Divorce Act, provincial legislation, and in particular section 56(1) of the Family Law Act, would have no application.

[96] Todoruck v. Todoruck was also case decided under the Divorce Act. Nightingale J. cited Bois v. Gleason, Hearn v. Hearn and Miglin v. Miglin for the proposition that the Court must consider the importance of parental autonomy. But as I have already said, Nightingale J. also cited and appears to have applied two other tests in the case before him. Regarding the best interests' test, (which may be at odds with the more rigorous Miglin test's analysis), he said this at ¶ 42:

Although the parents' agreement with respect to post-separation childcare arrangements are entitled to great weight, the court is not bound to give effect to the custody agreement if the agreement does not promote the child's best interests. L. (A.) v. K. (D.), 2000 BCCA 455, 9 R.F.L. (5th) 341 and 2000 BCCA 633, 11 R.F.L. (5th) 158.

[97] So while the Court in Todoruck v. Todoruck does not specifically refer to section 56(1) of the Family Law Act, Nightingale J. cited the very principles contained in that section, but based on case law rather than section 56(1) of the Family Law Act.

[98] With great respect to the Court in these Ontario decisions, none explain why the Miglin test should apply to custody decisions at all, given the very different statutory framework in which the Miglin test was developed, compared to that which governs custody decisions. Moreover, the Supreme Court has since clarified that the test in Miglin was responsive to the specific statutory directions of s. 15.2 of the Divorce Act. Albeit in the context of a support variation under section 17 of the Divorce Act, at ¶ 27 and 28 of L.M.P. v. L.S., 2011 SCC 64, the Court said while an agreement is not to be ignored, it will be treated differently, having regard to the different purposes of each statutory provision.

[99] In that regard, it is important to note that section 15.2(4)(c) of the Divorce Act, pursuant to which the Miglin test was developed, directs the Court to consider any agreement or arrangement relating to the support of either spouse, when making a support order. There is no such statutory language regarding custody or access in either the Divorce Act or the Children's Law Reform Act. To the contrary, Ontario's provincial legislation specifically directs the Court to disregard any domestic contracts, or even consents that are not domestic contracts, which are not in the best interests of the child.

[100] Regarding Di Raimo v. Di Raimo, while the Court in that case found that section 56(1) of the Family Law Act had no application in Divorce Act proceedings, the decision makes no reference to section 16(8) of the Divorce Act, which still states that the court shall only take into consideration the best interests of the child by reference to the conditions, means, needs and other circumstances of the child. And respectfully, the decision incorrectly states a challenge to an agreement under provincial legislation may not be launched in tandem with Divorce Act claims.

[101] Section 36(1) of the Family Law Act, which provides for a stay when an application under the Divorce Act is started, only operates to stay claims made under Part III of the Family Law Act. Section 56(1) of the Family Law Act is in Part IV. Similarly, section 27 of the Children's Law Reform Act provides for a stay of custody and access applications under the Children's Law Reform Act. Neither stay provision ousts the Court's jurisdiction to consider the validity of an agreement under section 56(1) of the Family Law Act.

[102] In this case before me, even if section 56(1) of the Family Law Act does not strictly apply since the custody term in the Parenting Agreement of April 18, 2013 is not part of a domestic contract, there is still section 24(2) of the Children's Law Reform Act. Best interests is the mandatory consideration.

(4) Whether There Is An Onus on One Parent or the Other to Prove the Child Should Be Vaccinated or Not

[103] Regarding the vaccination issue specifically, counsel for the father also argued that the mother bears an onus to show why the child should not be vaccinated. It is suggested in some of the cases, including in at least one of the vaccination cases, which I will come to, that such an onus does in fact rest with one parent or the other.

[104] I prefer Benotto J.A.'s recent comments in Children's Aid Society of Toronto v. J.G., 2020 ONCA 415. Although they were made about an access claim under Ontario's child welfare legislation, at ¶ 63 she said, "the court here was not being asked to make findings of fact about past events. A child's best interests in connection with future access involve a delicate weighing and balancing of multiple factors. It is not a fact-finding mission and the exercise is not assisted by determining what the onus is or where it lies".

[105] McLachlin J. made similar comments in Gordon v. Goertz at the best interests' stage of the analysis, once material change had been proven. At ¶ 47, she said, "the judge must embark on a fresh inquiry in light of the change and all other relevant factors to determine the best interests of the child. There is neither need nor place to begin this inquiry with a general rule that one of the parties will be unsuccessful if he or she fails to satisfy a specified burden of proof."

[106] While I would not place the aforementioned onus on the mother, her past and current decision-making has been called into issue. There must be some burden on her to persuade the Court that her decision-making was and is in the child's best interests, and to support her argument that B.R.M.R. might be at risk of harm from a vaccine. To do this, she would have to present some reliable and admissible evidence.

(5) Whether an "Exigent Circumstances" Test Applies to the Vaccine Issue

[107] By contrast, mother relies on M.W. v. E.B. for the proposition that the father must demonstrate "exigent circumstances" to change the status quo on a motion prior to trial. At ¶ 12-14 of M.W. v. E.B., the Court held that generally speaking, the status quo will be maintained on an interim custody motion, in the absence of compelling reasons indicating a change is necessary in the child's best interests.

[108] Compelling circumstances might include a situation of "actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child's best interests". The status quo, "… will have a strong gravitational pull", but not if "the child is in peril". See F.K. v. A.K., 2020 ONSC 3726 ¶ 52.

[109] The rationale for this rule is that it will not be in a child's best interests to be "tossed back and forth pending final disposition of the custody/access issues." See M.W. v. E.B. ¶ 13. To that I would add that where there are factual issues and credibility issues in dispute, it may also be appropriate to direct a trial. See M.W. v. E.B. ¶ 15. Obviously, the former quote is referable to changing a residential arrangement pending trial, but mother nevertheless argues this principle has application to the issues before the Court on this motion, too.

[110] As I have said, while he submits that it is just the best interests test that applies to the vaccine issue, the father nevertheless framed some of his argument within the parameters of this "exigent circumstances" test. The father's affidavit material relies, to a certain extent, upon Covid-19 as a basis for having the child vaccinated now. Because of Covid-19, the father feels the issue of vaccination is even "more relevant now than ever" and the resolution of the vaccination issue cannot be delayed. The father believes the mother's position against vaccinating the child, "shows a lack of understanding and insight into the health crisis in the world".

[111] The father says the following circumstances are "exigent". He says there is a current and anticipated strain on the health care system. He wants the child to have immediate protection against vaccine-preventable diseases. He worries that should the child contract a vaccine-preventable disease, B.R.M.R. will be more vulnerable to Covid-19 in general, due to compromised immunity. He is worried that if the child becomes sick with such a disease and has to be hospitalized, he will be at greater risk from Covid-19 in the hospital.

[112] The father asks me to take judicial notice of decreasing "herd immunity" in the community. He says this is a consequence of Covid-19, due to doctor's offices having closed, and other children not receiving vaccines in the same frequency or regularity as before. To be clear, his request that I take judicial notice of this, is separate from his other submissions about judicial notice, which I address later.

[113] At Exhibit "N" to his affidavit of August 5, 2020, the father attaches two news stories from the Globe and Mail and the National Post dated May 19, 2020 and June 20, 2020. These news articles are amongst the exhibits that the mother moves to strike.

[114] These news articles explain that certain reporters spoke to a few doctors, who in turn advised that Canada's vaccination rates are dropping, due to doctors' offices' closures. Therefore, the father submits that unvaccinated B.R.M.R. is at greater risk.

[115] To persuade the Court to judicially notice this, the father points to R. v. Morgan, 2020 ONCA 279. At ¶ 8, the Ontario Court of Appeal held that the Court may take judicial notice of the fact of the Covid-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission. Counsel asks the Court to judicially notice this impact from Covid-19 under Court of Appeal's category, "the impact [of Covid-19] on Canadians generally". The father also relies on other decisions, decided in the criminal context, in which bail courts or sentencing judges have taken Covid-19 into account, in deciding whether to grant bail, non-custodial sentences, or to reduce the length of a custodial sentence.

[116] The mother says that the father is "deliberately attempting to use the current pandemic to manufacture a sense of urgency regarding the vaccination issue by trying to leverage the communal fear of this virus". The mother points out that the father does not provide expert evidence that the child is at risk of becoming sicker or more susceptible to other diseases if he was to contract Covid-19, however.

[117] I tend to agree with the mother regarding her comments about the father's failure to provide expert evidence about these propositions. I do not accept her statements about the father trying to "leverage" Covid-19, however.

[118] The newspaper articles fall short of the standard required for the Court to take judicial notice of a fact. Quite apart from the fact that they are newspaper articles, the contents of the articles themselves are not conclusive or indisputable. Except in one instance, none of the physicians interviewed in the newspaper articles were even located in Ontario. Nor is any scientific data referenced in either article about a hit to "herd immunity" in the Ontario context. To the contrary, one of the articles references the inability to get data from Ontario about this.

[119] I agree with Ms. Pilch about the inadmissibility of these articles. I do not find the father's "herd immunity" argument to fall within the Court of Appeal's comments about the "impact [of Covid-19] on Canadians generally". And regarding the bail decisions, to a certain degree it is important to recognize that bail decisions are decided on a relaxed evidentiary standard. See section 518(1)(e) of the Criminal Code. I do not find the bail decisions (or the sentencing decisions) to be particularly helpful to the determination of the issues before me.

[120] All that said, the father's fears about what might be the impact upon the child if he were to contract a vaccine preventable disease are understandable. The fact that he has not tendered expert evidence to establish some of the aforementioned arguments is of no moment. I say that because it is unnecessary for the father to prove a link between the child not being vaccinated with existing vaccines, and an enhanced risk from Covid-19.

[121] While Courts are often loathe to vary custody or access orders pending trial on a temporary motion absent exigent circumstances, particularly when there may be a trial soon, I note again those arguments are often made concerning whether there should be a significant change to a child's residential arrangements prior to trial, or some other kind of major change like a move or a school change. I appreciate that in one of the vaccine cases that I discuss in more detail below, C.M.G. v. D.W.S. (cited below), one of the parents wanted to take an international trip, which triggered the parents to come back to Court. However, there is nothing in the ruling, nor in any of the other motions' decisions concerning vaccines, that requires a parent to show "exigent circumstances".

[122] I do not find that the father has to meet an "exigent circumstances" test in relation to his motion for health decision-making over vaccines, just because the issue was raised on a motion and there happens to be a status quo of the mother having this decision-making historically. That said, I would find that he does some obligation to explain to the Court why he is challenging the mother's decision-making now, and why the order he seeks is in B.R.M.R.'s best interests. But I would not raise that to the level of having to demonstrate "exigent circumstances".

[123] Vaccines by their definition are preventative. The parents and the child are lucky that B.R.M.R. has not come into contact with and contracted a vaccine preventable disease so far in his life. Just because he has not, why should a parent have to wait until there is an outbreak, some other new circumstance like a global pandemic, or some other factor like a trip, before having the grounds to bring a motion to ask the Court to make an order about this?

[124] I find the child is already exposed to risk by not being vaccinated as it is. It is not an answer to argue that the child has not contracted a disease during the last 10 years, so what's the harm in waiting a few more months to trial. This, in effect, is what the mother argues. If it is in the child's best interests to act now, then the Court should intervene. It must not wait until a trial, because of a threshold test that was developed in a different factual context.

D. Conclusions Respecting the Applicable Legal Framework and the Court's Treatment of the Parenting Agreement dated April 18, 2013

[125] In summary, I find the following legal principles apply:

(a) Although there is no order, separation agreement or other domestic contract in place respecting custody, the mother is still the child's de facto custodial parent. The child has lived with her since birth, with the father consent, implied consent or acquiescence. Until now, the father's entitlement to exercise the entitlement to custody and the incidents of custody has been suspended, within the meaning of sections 20(4) of Children's Law Reform Act;

(b) While the mother has been the child's de facto custodial parent, the wisdom of her past and current decision-making has been placed in issue and is alleged to be contrary the child's best interests;

(c) Regarding the treatment of the Parenting Agreement and whether it additionally tips the analysis one way or the other, I prefer the approaches taken in Askalan v. Talen, C. (M.A.) v. K.(M.), Carpenter v. Carpenter and Molloy v. Molloy. In my view, the approach in these cases is more in keeping with the governing legislation;

(d) On the one hand, policy promotes parental autonomy and encourages parents to enter into agreements. I need not comment on whether this policy applies with equal force to an agreement that is not a domestic contract. For the purpose of my analysis in this case, I will assume that it does;

(e) Nevertheless, and although section 56(1) doesn't strictly apply to allow the Court to disregard it, since the custody term is not part of a "domestic contract", section 24(2) of the Children's Law Reform Act still requires the Court only to apply a best interests test. There is no reason to exempt the custody term in this particular Agreement before me from that standard;

(f) Material change in circumstances type considerations will not factor into my analysis. Nor would the Court require the father to demonstrate any "exigent circumstances" in relation to the vaccine issue, for the reasons I have already articulated. However, the father does have to satisfy the Court why the Court should intervene;

(g) Likewise, the Court would not place an onus on the mother to explain why the child should not be vaccinated, as the father argued. However, the mother must still explain her decision-making, and provide evidence to support her position that there is a risk to this child from vaccines, with admissible medical evidence;

(h) I do not find the Miglin test to apply. It would place undue weight on the Parenting Agreement dated April 18, 2013, to which it is not entitled;

(i) If I am wrong in that regard, a Miglin analysis would not change the outcome. Under the Miglin test, the Court must assess the agreement's substantial compliance with the governing legislation. In this case, that would be the Children's Law Reform Act, which revolves around a child's best interests. It is hard to see how the custody term in this case was compliance with the objectives of the legislation, either at the time the Agreement was signed, or now. As I will explain, it is not in the child's best interests for the mother to have decision making over vaccinations any longer, given the manner in which she was and is exercising that decision-making authority;

(j) The Court intends to consider all relevant evidence put before it concerning B.R.M.R.'s best interests;

(k) The custody term in the Parenting Agreement is a relevant to what the parents' intentions were at the time they signed it; and

(l) The custody term is similarly relevant to determining what the status quo is. The status quo is a factor the Court will consider under section 24(2) of the Children's Law Reform Act. However, even if the Parenting Agreement had never been signed, there is no serious dispute in this case about what the status quo is.

PART V: WHETHER THE COURT SHOULD TAKE JUDICIAL NOTICE OF THE SCIENCE BEHIND ONTARIO'S PUBLICLY FUNDED VACCINES

[126] In his factum, the father asks the Court to take judicial notice of "the science of vaccines and vaccination". During submissions, counsel said that I should take judicial notice that vaccines are "safe and beneficial" in general, and take judicial notice of public policy to help me resolve this case.

[127] In her factum, the mother says the question for the Court is whether it may take judicial notice "of a benefit to [B.R.M.R.] from receiving vaccinations".

[128] Both sides filed authorities, including references to a well-known evidence text book, the father filed various documents from government and other sources about vaccines, and both sides made submissions about judicial notice.

[129] Except for the request about public policy, both other propositions, as framed by counsel, are imprecise and I would not take judicial notice of either statement as currently framed by counsel. Furthermore, judicial notice cannot resolve whether there is anything particular to B.R.M.R. that would contraindicate him receiving any of those vaccines, however unusual that might be. The latter may require some evidence, although as the case law reveals, the evidentiary burden to refute this will not usually be onerous.

[130] Before I delve into this judicial notice issue, it is important again to place the issue into its proper context. Given the widespread, indisputable information about Ontario's publicly funded vaccines, courts should not have to be deciding whether those vaccines are safe. But when a parent (in this case the mother) exercises her decision-making in such a fashion as not to follow routine medical advice that is universally given for most children in Ontario (and Canada and many other places around the world), the reasonableness of the parent's decision-making process inevitably engages a review of what the parent considered and relied upon to arrive at her decision, contrasted with universally known medical advice.

A. The Father's Documentation Relating to Judicial Notice

[131] At Exhibits "G" to "M" of his affidavit of August 5, 2020, the father relies on an Ontario government document, entitled "Immunization 2020 – Modernizing Ontario's Publicly Funded Immunization Program", various print outs from the Government Canada available on its website, a summary of portions of the Immunization of School Pupils Act available on the City of Toronto's website, charts from the World Health Organization summarizing certain position papers, and the World Health Organization Immunization News Letter dated June 2020. The mother objects to the court relying on the information contained in any of these sources.

[132] I only intend to refer to the documents from the governments of Ontario and Canada. The information contained therein is sufficient for the analysis. I need not decide whether to take judicial notice of the information contained in the other documents the father supplied, although I would note that judges in other cases have taken judicial notice of information about vaccines from the World Health Organization before.

[133] The "Immunization 2020" document from the government of Ontario maps out part of Ontario's plan to continuously review and improve the health care system. The document is self-described as a "first-of-its-kind roadmap for Ontario that will help our government and our partners achieve a high performing, integrated immunization system." It also reflects the findings of the Advisory Committee for Ontario's Immunization System Review.

[134] The "Immunization 2020" document identifies a number of goals and action items relating to immunizations. One of Ontario's identified goals is to strengthen public confidence in the safety and effectiveness of vaccines, and to promote the shared responsibility for immunization among individuals in the community. While the "Immunization 2020" document contains a number of action items regarding future health care planning, it also contains much information about the current system of vaccine delivery, and about the safety and efficacy of vaccines that are already part of current public health.

[135] Among other things, the document explains:

(a) Publicly funded immunization programs have been incredibly effective at preventing diseases that would otherwise cause illness and death;

(b) Many diseases that were once common and devastating in Canada have been eliminated or drastically reduced;

(c) Immunization benefits not only the individual, but others in the community via "herd immunity";

(d) Immunization reduces the burden on the health care system and saves other health care costs that would otherwise be incurred in the treatment of disease;

(e) Ontario was the first province to pass laws requiring children to be vaccinated against certain diseases in order to attend schools, (subject to a valid exemption);

(f) Similar provisions exist respecting licensed day cares;

(g) Ontario publicly funds a total of 22 different vaccines as part of both routine and high-risk targeted immunization programs, which protect Ontarians against 16 diseases, across their lifespan;

(h) Primary health care providers administer the majority of immunizations in Ontario, as part of routine health care. Vaccines are administered by physicians, nurse practitioners and midwives, and registered nurses and registered practical nurses under appropriate medical directives. Since 2012, trained pharmacists may now deliver the flu shot to Ontarians over the age of 5;

(i) Ontario regularly updates its immunization schedules to keep current with the latest scientific evidence;

(j) Local public health units, and health care providers make immunization information available online to Ontarians;

(k) Adverse events following immunization are reported and monitored, led by Public Health Ontario;

(l) Ontario monitors immunization safety data; and

(m) Ontario uses a nationally recommended analytic framework to inform government decisions regarding publicly funded vaccines. That includes reliance on scientific evidence.

[136] The documents that the father supplied to the Court from the government of Canada's website include portions of the Canada Immunization Guide. Its introduction reads in part, "[v]accines are a cornerstone of public health and their use has significantly contributed to the prevention and control of infectious diseases in Canada and internationally. Immunization is not just for children; adolescents now routinely receive various vaccines to protect against [various diseases]….. The risk of vaccine preventable disease transmission remains and would significantly increase if vaccination were stopped. Immunization providers and the public should be aware that, with the success of childhood immunization programs, there is a tendency to underestimate the risks of vaccine-preventable diseases and overestimate the risk of vaccines".

[137] The documents from the government of Canada explain that comprehensive federal and provincial/territorial immunization policies in Canada, and the ongoing monitoring and evaluation of vaccines and immunization programs, have resulted in a low incidence of vaccine-preventable diseases and their associated morbidity and mortality. Canada has a national immunization strategy. Immunization programming in Canada is a shared responsibility between the federal and provincial and territorial governments. There are two scientific advisory committees, whose members are recognized experts in multiple fields, including pediatrics, infectious diseases, immunology, medical microbiology, internal medicine and public health. The national scientific advisory body on immunization has been developing recommendations for the use of vaccines for Canadians since the 1960s.

[138] Health Canada is responsible for the regulation of vaccines. It reviews the clinical and manufacturing information of vaccine submissions and authorizes the sale of vaccines in Canada. With the Public Health Agency of Canada, it is responsible for monitoring vaccine safety and effectiveness. Recommendations regarding vaccines authorized for use in Canada, are scientific evidence based. The provinces/territories and local public health authorities undertake the planning and delivery of immunization programming.

[139] The documents from the government of Canada explain that immunization is highly important and has led to the elimination, containment and control of diseases that were once very common in Canada. Vaccines are important in all stages of life. It reiterates that immunizations provide savings in health care costs.

[140] These documents also tell parents how vaccines work, when administered in their children. They warn parents that some vaccine preventable diseases have no treatment or cure. Children can become very sick, suffer lifelong disability or die.

[141] The documents from the government of Canada state that which is universally known by reasonable people, that vaccines do not cause autism. Misinformation in this regard originated with a false 1998 study, that was later retracted. Many larger studies have debunked this myth. Researchers and scientists around the world have rejected any such a link between autism and various vaccines.

[142] In terms of side effects, vaccines may cause common and mild ones. There is a small chance of an allergic reaction (less than 1 in 1 million), and that usually happens just after the vaccine is given. This is why a health-care providers require the child to remain in the clinic for 15 to 20 minutes after the vaccination, to treat the child in case that happens. Serious reactions are very rare.

[143] Some vaccines are inactive whereas others are live. It is not possible to develop disease from inactive vaccines. Live vaccines may cause very mild symptoms, but this too is rare. The ingredients in vaccines are also safe.

[144] For the reasons that follow, I am prepared to take judicial notice of the information in the documents from Ontario and Canada that I have just summarized. Therefore, the documents/guide from Ontario and Canada shall not be struck from the record. As I do not need to rely on the additional documentation supplied by the father, I need not address the mother's motion to strike those documents any further.

B. Applicable Legal Principles Concerning Judicial Notice

[145] According to Sopinka, Lederman and Bryant, "The Law of Evidence in Canada" 5th ed., Toronto: LexisNexis Canada Inc., 2018, at page 1393 (and see also R. v. Williams, [1998] 1 S.C.R. 1128 ¶ 54):

Judicial notice is the acceptance by a court or judicial tribunal, in a civil or criminal proceeding, without the requirement of proof, of the truth of a particular fact or state of affairs. Facts which are (a) so notorious as not to be the subject of dispute among reasonable persons; or (b) capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy, may be noticed by the court without proof of them by a party.

[146] In this case, I have been asked to take judicial notice of both adjudicative facts (namely that vaccines are "safe and beneficial"), to resolve the factual dispute between the parents, and legislative facts to inform the Court's decision-making (namely government policy as reflected in the aforementioned documents and Ontario legislation, surrounding vaccines), as informative to the Court's legal reasoning.

[147] At pages 506-507 of "The Law of Evidence", 7th ed., Toronto: Irwin Law Inc. 2015, Justice Paciocco and Professor Stuesser explain the difference between these kinds of facts:

It is important to distinguish between taking judicial notice of "adjudicative facts" and "legislative facts". Judicial notice, as outlined, applies to adjudicative facts, which are facts to be determined in the litigation between the parties. Legislative facts are also admitted without the need for proof. However, legislative facts are those that have relevance to legal reasoning and the law-making process and involve broad considerations of policy. Legislative facts assist in determining questions of law and are not intended to assist in resolving questions of fact.

[148] Justice Paciocco and Professor Stuesser also discuss a third category, namely "social framework facts" which provide a context for the judge to consider and apply the evidence in a given case. Although some of the cases that counsel supplied me with concern taking judicial notice of this kind of evidence, "social framework facts" are not in issue in this case before me. The facts I am being asked to judicially notice are in the fields of science and medicine, and related government policy.

[149] Between them, both counsel have submitted three criminal law decisions from the Supreme Court of Canada regarding judicial notice. The decisions are helpful for their general principles, but not their specific facts or application to those facts. All three decisions involved whether the Court should take judicial notice of social science evidence, to determine whether to allow challenges for cause in the jury selection process.

[150] Counsel for the father relies on R. v. Williams, principally for the summary of the law of judicial notice referred to from Sopinka's evidence text. In R. v. Williams, the accused called witnesses and tendered studies to establish widespread prejudice in the community against indigenous persons. At ¶ 54, the Court held that it may not be necessary to duplicate this investment in time and resources to establish racial prejudice in the community in all subsequent cases. However, the Court also declined to decide whether such a judicially noticed fact during the jury selection phase, would apply to other phases of a criminal trial.

[151] Counsel for the mother relies on R. v. Find, 2001 SCC 32. R. v. Find concerned whether it was appropriate for the defence to mount a similar challenge, not based on racial prejudice, but based on biases that might arise out of the nature of the offence itself. The charges in R. v. Find concerned sexual offences and children. In the result, the Court concluded that the material presented fell short of the standard required for the Court to take judicial notice of a widespread societal bias. At best, the material established that the crime of sexual assault frequently elicits strong attitudes and emotions.

[152] R. v. Spence, 2005 SCC 71, also supplied by the mother, is the third jury selection case that I was provided. This case also involved concerns over racial prejudice. In part, this case considered whether a different approach is warranted, when the Court is asked to take judicial notice of social framework facts versus other facts. Without needing to discuss this difference, I note that the Court did conclude, that the closer a fact approaches to the dispositive issue, the more the Court ought to take a stricter approach to taking judicial notice.

[153] It has been said that judicial notice and expert evidence are not compatible. Expert evidence is called because the expert has knowledge that goes beyond the knowledge of the ordinary person. See page 510 of Paciocco and Stuesser in "The Law of Evidence."

[154] However, those comments were made in the context of a critique of the conduct of the trial judge in R. v. Desaulniers, 93 C.C.C. (3d) 371. In that case, the trial judge relied on findings in a report and a book, to challenge an expert's credibility. The judge did his own research, and the material upon which the judge was relied was not put to the expert during the trial.

[155] That said, scientific facts can become so well known generally, that the court can judicially note them without the need for expert evidence, and perhaps even without reference to any external sources. See Sopinka, Lederman and Bryant, "The Law of Evidence in Canada", page 1399; see also Griffin v. R., 1980 CarswellNS 19 ¶ 11-15.

[156] As well, there may be precedential value, where a certain fact has been noted by a judge in a previous matter. At page 1394 of Sopinka, Lederman and Bryant, "The Law of Evidence in Canada", the authors write that the Court may examine the case law to determine whether any particular fact an be noted. See also R. v. Williams ¶ 54.

[157] Counsel for the father would have me rely on the findings of other courts in prior vaccine cases, which had been made based on expert testimony. However, it is important to note that there may be a distinction drawn in the case law, between a court relying on a previous decision in which judicial notice was taken, versus a court now taking judicial notice based on a finding of fact in a prior case that was grounded in expert evidence or other testimony. See R. v. Kirton, 2007 MBCA 38, 219 C.C.C. (3d) 485.

[158] Even if the latter is to be avoided, it also is conceivable that a proven fact from a previous case may become so well known as to fall within the purview of facts that may now be judicially noticed. While judicial notice lags behind the advance of science, its scope is "constantly enlarging". See R. v. Savidant, 1945 CarswellPEI 10 ¶ 7, 8.

[159] Judicial notice has been argued and applied in different ways in vaccine cases. I describe how judicial notice has been taken in those vaccines cases, as part of my overall summary of the vaccine cases, which follows.

C. The Vaccination Cases

[160] There are a number of decisions from Ontario and across Canada about vaccines decided in similar contexts as this case before me. The cases are not only helpful to my determination about where B.R.M.R.'s best interests lie, but also to the judicial notice questions before the Court.

[161] Each of the cases review a parent's prior decision-making about vaccinating his or her child(ren), to determine which parent should be empowered with some form of health decision-making going forward. This issue has been determined, both by way of motion and by way of trial, on initial applications, on variation applications, and also in cases where there were custody terms in written agreements in conflict with the orders the courts were asked to make.

[162] Regardless of the process employed to arrive at a decision (motion versus trial), in all but two cases which I have reviewed, courts have consistently and overwhelmingly bestowed decision-making authority over health, or sometimes more narrowly over the health decision of whether to vaccinate a child, upon the parent best able to make an informed decision, based on sound medical advice. The courts in some of these cases have taken judicial notice of various facts relating to vaccines. In almost all of the cases, the parent opposed to vaccinating his or her child, relied on inadmissible junk-science material, internet evidence from questionable sources, biased and misleading information from the so-called "anti-vaccination movement", or even opinion evidence from persons with questionable qualifications to give that opinion in the first place.

[163] Regarding the two cases where in the end result, the children remained not vaccinated, one case turned on the fact that the child was 13, had the capacity to consent to medical treatment, and had developed an unreasonable fear of being vaccinated based on parental influence. I note in that even in that case, however, the Court did order that the younger 10 years'-old sibling of the 13 years'-old child, be vaccinated. The other case is a recent decision of an arbitrator. The facts of that case are not yet fully known in any published decision, due to the confidentiality of the arbitration process. An appeal to the Superior Court is pending. I understand the appeal scheduled to be argued on September 29, 2020. See A.P. v. L.K., 2020 ONSC 5551 ¶ 2.

[164] Turning then to the majority of the cases, in B.L.O. v. L.J.B., 2019 ONCJ 534, this Court heard a motion concerning whether the parties' 13-month old daughter should be vaccinated. The mother was hesitant to vaccinate the child, based on her own research, including information she obtained from the internet about the "Dr Paul Approved Vaccine Plan". The father had previously agreed with her decision not to vaccinate the child to an extent, but then he changed his mind.

[165] The father tendered a letter from the child's doctor recommending that the child be vaccinated. He also tendered an expert report from Dr. Joan Robinson, a pediatric infectious diseases expert from the Stollery Children's Hospital. The mother chose not to file any expert evidence to rebut this opinion, instead relying on various internet documents.

[166] This Court heard oral evidence from Dr. Robinson that routine childhood vaccines are very safe and effective, and the risks are low and manageable. Dr. Robinson's testimony was that the benefits of immunization far outweigh the risks of not vaccinating. Although there was no evidence before the Court about whether the particular child had a certain health condition that would contraindicate vaccinating her, Dr. Robinson testified that the parents would already be aware of that by this point in the child's life via routine appointments at the doctor's office. Dr. Robinson was of the view that it is irresponsible for a parent not to vaccinate a healthy child in accordance with the standard practice in Canada. She also testified that there is a protocol for updating immunizations in children who are starting to receive vaccines, albeit on a delayed basis.

[167] C.M.G. v. D.W.S., 2015 ONSC 2201 is the leading Ontario decision involving vaccines. The child in that case was 10 years-old, just like in this case before me. The parents had signed a Separation Agreement, whose terms were inconsistent with the order the father now asked the Court to make. The Separation Agreement had been incorporated into an order, so this was a variation case which required a material change in circumstances analysis (unlike in this case before me). The Separation Agreement provided that the parents would have joint decision making, and they agreed to defer the decision whether or not to vaccinate the child until she reached age 12. Even then, they would have delegated the decision to the child.

[168] The father brought a Motion to Change, arguing that the child must be vaccinated now. The "urgency" or timing of the Motion to Change, related to the fact that the mother had obtained a different court order allowing her to take the child on a trip to Germany, where there had been a measles outbreak.

[169] I note a number of things from this case. First, in the result, the Court disregarded the parties' agreement, based on a best interests' test, even though this was a variation proceeding. The Court had expert evidence before it. The Court relied on the opinion of a pediatric infectious diseases expert, but in addition, it also took judicial notice of Canada's and Ontario's health policies respecting vaccinations, including the policy behind the Immunization of School Pupils Act. The Court held that Canadian public policy favours the vaccination of children and youth, and that informed the Court's legal reasoning. The Court also relied on information from the World Health Organization. In the result, the Court empowered the father to make decisions about vaccinations despite the terms of the Separation Agreement.

[170] In Chambers v. Klapacz, 2020 ONSC 2717, Bloom J. authorized the father to take the child to the doctor to be vaccinated. In this short decision, the issue was not so much whether the child should be vaccinated, but how that would occur. Bloom J. relied on a letter from a doctor and information from the government of Ontario, in reaching his decision.

[171] D.R.B. v. D.A.T., 2019 BCPC 334 was an application about two children, who were in grade 1 and day care aged, respectively. The mother was not entirely opposed to the children being vaccinated, but she did not want the child to be submitted to "unnecessary inoculations from medical and dental treatments". The father had requested on numerous occasions that the mother consent to the children being vaccinated.

[172] The mother tendered a report from Dr. Toni Bark containing anecdotal statements and evidence based on "vaccine adversomics", which Frame J. referred to as "not a recognized field", "difficult to know whether or not this is junk science" and as sounding like a "conspiracy theory". Most damaging, the Court found that Dr. Bark did not have any stated expertise in immunology, virology, epidemiology, genetics or any other field that might lend strength to her stated opinions. The Court said she appeared to lack any expertise other than anecdotal experience.

[173] By contrast, Frame J. relied on the summaries of the expert evidence in two other court decisions, and the Court separately took judicial notice of excerpts from the UN Foundations Measles Initiative, from the World Health Organization Measles Key Facts, from Health Link BC, and from the Centre for Disease Control, BC Centre.

[174] In the absence of any expert evidence to the contrary, Frame J. concluded that the risks with vaccination are extremely low and the benefits significantly outweighed them. There was no evidence that either child had any health issue contraindicating vaccination. The Court vested decision-making over all health and dental decisions with the father.

[175] In Di Serio v. Di Serio, 27 R.F.L. (5th) 38, the parties settled all issues except for "the issue of vaccination" concerning their 5 ½ and 8 years-old children. The vaccination issue was then dealt with by way of a motion. The mother relied on an opinion from the children's family doctor recommending immunizations. The opinion also stated, "the benefit of immunization for vaccine-preventable diseases has been known for a very long time and the programme is considered to be the most beneficial of health interventions". Father, by contrast, believed that vaccinations were dangerous based on his reading of "many different publications over the last 10 years" and that it was in the best interests of the children that they not be vaccinated.

[176] At ¶ 26, Perkins J. held that the result, on the evidence, is obvious. He granted the mother sole custodial authority over the issue of immunizations. He also took judicial notice of Ontario public policy expressed in the Immunization of School Pupils Act. See ¶ 24.

[177] In Faulkner v. McTaggart, 2018 ONSC 5960, the mother opposed vaccinating the parties' daughter, who appears to have been about 4 years old at the time of the hearing. Prior to the child's birth, the parties had agreed that the child would not be vaccinated, but post-separation they now disagreed. The family doctor's notes revealed "long discussions" with the mother about vaccinations, and the doctor's opinion that there will "never be a consensus medical opinion advising against immunization as it is such an incredibly effective preventative tool" had been conveyed to her. In his trial Judgment, Douglas J. bestowed decision-making authority to the father regarding medical issues given the mother's "demonstrated resistance to medical advice".

[178] In G.M. v. S.S., 2012 BCSC 1491, the mother was opposed to vaccinating the parties' one-year old child. By the time of the trial, the child had not yet seen a doctor, although the mother had taken her to naturopaths and to homeopaths. It appears that by the time of trial, the mother took the position that she changed her mind, and was not opposed to vaccines. Nevertheless, the Court was satisfied that the father would take a more "analytical and evidence-based approach to health care decision-making". Although the Court ordered the child would reside primarily with the mother, it bestowed upon the father ultimate decision-making regarding vaccinations, and the choice of a physician for the child.

[179] In Lidstone v. Simonar, 2019 ONSC 2995, Chiapetta J. heard the trial of a Motion to Change a joint custody order, concerning two children, ages 9 and 7. The mother refused to vaccinate the children in accordance with Ontario's vaccination schedule, believing the risks of vaccination are "far too great", including the risk of health complications and "lasting effects on the brain". The family doctor's report revealed that he had explained to the mother that there is no real evidence regarding harm from immunizations. However, significant evidence regarding the protection vaccines afford against very serious diseases exists. Those very serious diseases could even be fatal or have long term consequences, according to the doctor. Chiapetta J. bestowed medical decision making upon the father, based in part on the mother's refusal to follow the advice of the children's doctor, and the objective medical evidence that had been described to her.

[180] M.J.T. v. D.M.D., 2012 BCSC 863 concerned a 6 years-old boy. The Court heard expert evidence from Dr. Scheifele, a professor of pediatric medicine and the University of British Columbia, a practicing physician at the B.C. Children's Hospital, and a leading expert in pediatric infectious diseases and immunization. Dr. Scheifele gave evidence about the benefits of immunization generally, the low risks, and the absence of anything in the child's personal or family history that would contraindicate routine childhood immunizations. The Court also rejected the proposed expert, tendered by the mother, who had expertise in neurobiology but no expertise concerning the issue before the Court. The Court empowered the father to make decisions concerning the child's immunization.

[181] In P.W. v. C.M., 2017 NSSC 91, the Nova Scotia Court heard a custody application concerning what appears to have been a young child, although the age of the child is unclear in the decision. Apparently, the mother had embarked upon her own research analyzing medical studies, while not qualified to do so, and held rigid beliefs not supported in the scientific community. The Court relied on the fact that Health Canada and the World Health Organization both promote public safety via vaccines. The Court placed the onus of proof on the mother to provide expert evidence that it was not in the child's best interests to be vaccinated, and found that she failed to do so. The Court also mentioned the "cautionary tale" from C.M.G. v. D.W.S. (and for that matter the same "cautionary tale" can be found in in Chmiliar v. Chmiliar, discussed below), that by putting off vaccinating a child, the parents risk placing the child in the middle of the dispute. The Court empowered the father with authority over medical decisions for the child.

[182] T.F. v. A.D., 2013 BCPC 205 concerned a 20 months-old child. In this case, the father was adamantly against certain kinds of vaccines, preferring homeopathy. The Court determined that the mother was the parent more likely to follow medical advice.

[183] In Tarkowski v. Lemieux, 2020 ONCJ 280, P. Jones J. heard a trial concerning a 7 years-old girl. Although P. Jones J. granted the mother sole custody, she empowered the father to make health decisions about future vaccines, including about whether to administer a Covid-19 vaccine, when and if there is one. She did so based on the parents' history of behaviour surrounding vaccines. The mother previously refused to consent to the child being immunized as an infant, she had expressed concerns that vaccinations might be linked to autism (a theory described as "universally debunked"), when she started to have the child vaccinated, she delayed the process, and she continued to show hesitancy. P. Jones J. found that the father understood the risks to the child and to others, if the child is not vaccinated.

[184] By contrast, Chmiliar v. Chmiliar, 2001 ABQB 525 is one of the two decisions about which I am aware, where the Court declined to order a remedy respecting the 13 year-old child (but not the 10 year old). However, as Perkins J. noted in Di Serio v. Di Serio, this case is unfortunate because it was costly (the issue required three different hearings to resolve) and in the end, the Court concluded that it had to accede to the child's fear rather than the weight of the objective evidence.

[185] As well, A.P. v. L.K., 2019 ONSC 7256 and A.P. v. L.K., 2020 ONSC 2520 are two decisions relating to an appeal of the decision of an arbitrator, who apparently ruled that two children would not be vaccinated. While the facts of the case are not yet fully known, it appears that the arbitrator qualified Dr. Bark to give opinion evidence on behalf of the mother. Dr. Bark is the person whose opinion the BC Court rejected in D.R.B. v. D.A.T. The Medical Officer of Health for the City of Toronto has been given leave to intervene in the appeal for a number of reasons, including that the parties have put in issue the utility, efficacy and safety of vaccines identified in the Immunization of School Pupils Act and Immunization Schedules.

D. Conclusions Regarding Judicial Notice

[186] In summary, I am prepared to take 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.

[187] I take judicial notice of the harm to a child, flowing from contracting a vaccine preventable disease, may even include death.

[188] I find these facts to be so notorious as not to be the subject of dispute among reasonable persons. They are also capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy.

[189] I appreciate that I am taking judicial notice of scientific facts. In so doing, I have had resort to the vaccine cases. I note that the cases have included medical evidence from family doctors, pediatricians, immunologists, and pediatric infectious diseases specialists. But I do not rely on any particular statement made by an expert in any particular case to take judicial notice. Rather the case law, read as a whole, reflects the reality there is no debate in the medical community about the facts about which I am prepared to take judicial notice. So do the documents from the governments of Ontario and Canada that the father supplied to the Court.

[190] I find I am unable to take judicial notice that this particular child has no health conditions that contraindicate vaccinations. Based on my review of the case law, what will be required by way of evidence on this point for most children, will normally not be onerous. In some cases, even the failure of the parent opposing the vaccines to place any admissible evidence on this point before the Court, was dispositive. But out of an abundance of caution, in most cases something like a simple letter from a family doctor will normally suffice. In this case before me, there is more than ample medical evidence for the Court to make the specific finding about B.R.M.R. I deal with that below.

[191] Regarding legislative facts, I am prepared to take judicial notice of the policy reflected in the "Immunization 2020" document and the documents from the government of Canada. Canada and Ontario have a coordinated immunization strategy in the interest of public safety. These include sophisticated delivery systems, oversight and vaccine safety monitoring and compliance measures. The Immunization of School Pupils Act is part of Ontario's public health strategy.

[192] These documents reveal that government policy, at all levels, supports the widespread use vaccination to promote individual health and public safety. I note that various vaccine decisions have taken judicial notice of government policy. While these facts are not an "adjudicative facts", they inform how the Court should apply the best interests test in this particular case. Government policy supports an application of the best interests test that encourages good science-based health decision-making for children, when it comes to vaccines.

[193] Although these facts about which I am prepared to take judicial notice are very informative, none of them are dispositive to the precise issue before the Court. Nevertheless, even on the strictest approach to judicial notice, I believe that the facts are within the purview of the Court to judicially notice. And if I am wrong to take judicial notice of these facts, then I would fall back on the medical evidence before the Court. That too, would lead me to the same order that I intend to make.

PART VI: APPLICATION OF THE BEST INTERESTS TEST TO WHICH PARENT SHOULD HAVE HEALTH DECISION-MAKING ABOUT VACCINATIONS

[194] I find that the father should be granted authority to decide whether B.R.M.R. should receive any of the existing publicly funded vaccines in Ontario. The father is to follow medical advice about which ones B.R.M.R. should receive, and how to get him caught up, given that no vaccines have yet been administered. The father's decision-making authority over these vaccines will include the authority to take the child to a different doctor to have this done, should Dr. Melissa De Souza, the child's family doctor, refuse to administer vaccines to B.R.M.R. Below, I explain why I would add the latter sentence as a term of the order. I would make this order based on section 28(1)(b) of the Children's Law Reform Act.

A. The Mother's Decision Not to Vaccinate B.R.M.R.

[195] The mother's decision not to vaccinate B.R.M.R. is based around two clusters of reasons: her own research and family medical histories, and the concept of parental choice. In reaching the above conclusion, I have considered her reasons and her actions, as part of the analysis, pursuant to sections 24(2)(d), (e), (g) and section 24(3)(b) of the Children's Law Reform Act.

(1) The Mother's Own Research

[196] First, the mother says her decision not to vaccinate B.R.M.R. has been based on "careful science-based research of the safety and efficacy of vaccines and their listed unavoidable potential risks, contraindications, potential adverse events, [her] deep concerns of the effects various adjuvants and other listed vaccine ingredients can impact both short and/or long term health of [B.R.M.R.], along with [her] own adverse reactions to vaccines and a substantial number of medications since childhood."

[197] The mother says she has also factored in her own unique maternal and paternal family medical history of early deaths due to various cancers and autoimmune diseases. The mother says she has "pharmacogenomic sensitives", "detected genetic mutations" and she has considered the "potential genetic predispositions of [B.R.M.R.]" in deciding not to vaccinate B.R.M.R.

[198] Yet the mother failed to put before the Court any evidence of what "careful science-based research" she has sourced and relied upon. She provided absolutely no actual medical evidence about her own adverse reactions to vaccines, her "pharmacogenomic sensitives" and "detected genetic mutations", nor about the child's "potential genetic predispositions", nor how those would impact the child from a vaccination perspective. Other than a statement in a report from Dr. De Souza, that the mother had a breast cancer diagnosis, the mother has not elaborated (with any medical evidence) about either her, or her family's medical history's relevance to the child being vaccinated. The medical evidence about the child reveals no concerns from a vaccine perspective. Under the circumstances, her behaviour and plan are not reasonable nor in the child's best interests.

(2) The Mother's Freedom of Conscience

[199] The mother says that her decision not to vaccinate is based on her "religious belief and freedom of conscience". She says vaccinating B.R.M.R. conflicts with her sincerely held convictions based on her "religious beliefs and freedom of conscience", a decision which is neither illegal nor negligent.

[200] The mother has signed a "Statement of Conscience or Religious Beliefs Affidavit – Immunization of School Pupils Act, 1990". She says she did so, to protect B.R.M.R.'s "rights not to be vaccinated and still have the freedom to attend school".

[201] The father says that it was only upon reading the mother's affidavit of August 20, 2020 that he heard for the first time that the mother had religious or freedom of conscience objections to vaccines.

[202] Although the mother referred to her religious beliefs more than once in her affidavit materials, during submissions, mother's counsel advised the Court that she is not advancing any religious arguments, nor is she making a freedom of religion claim. Counsel says the freedom of conscience aspect of the argument, however, is based on the mother's right to do her own research, to decide whether to vaccinate the child based on that research, and her right to formulate her own views as the child's custodial parent.

[203] The mother argues that children who are not vaccinated, are not removed from their parents by children's aid societies. She says that various medical professionals involved in B.R.M.R.'s care are aware of her decision not to vaccinate, and have never reported her [to a children welfare agency]. Likewise, the mother argues that the fact that this exemption exists in the Immunization of School Pupils Act is a reflection of "competing views on this issue and choice in our province".

[204] Just because the mother has never been reported to a children's aid society is beside the point. And the fact that Ontario's Immunization of School Pupils Act contains a narrow exemption is also not determinative, nor does it reflect "competing views" about vaccines, at least not about the well-established science behind them. The exemption applies respecting schools; whereas the Court is dealing with best interests. This exemption cannot receive the weight in the best interests test that the mother would have it receive.

[205] I do not find the fact that the mother signed an exemption, or that she professes to have the right to do her own research and decide, to be persuasive. The overwhelming abundance of case law would disagree with her argument in this regard.

B. There is No Medical Evidence that Vaccines are Contraindicated for B.R.M.R.

[206] There is no medical evidence that vaccines are contraindicated for B.R.M.R. As I have already said, the evidence indicates otherwise.

[207] The mother's own affidavit material confirms that the child is very healthy. It is not only that evidence before the Court however, but there is medical evidence too.

[208] The father accuses the mother of delaying a court date in December 2019 by requesting a referral to the Immunology Clinic at Sickkids. That appointment occurred in February, 2020. Both parents attended. This as a 'silver lining' from the father's perspective. As a result of that delay, the Court now has the Immunology Report of Dr. Kim dated February 18, 2020. It reveals the following, none of which mother challenges:

(a) B.R.M.R. has generally been a healthy child;

(b) The mother's health history and both parents' family health histories are described in the report;

(c) The child is not clinically manifesting symptoms of any known primary immunodeficiency;

(d) Dr. Kim explained to the mother that her role respecting immunizations was to assess for any contraindications relating to concerns for possible immunodeficiency or a personal history of adverse reactions to vaccines;

(e) From an immunodeficiency perspective, Dr. Kim did not see any contraindications for the child to receive immunizations, including inactivated vaccines and live attenuated vaccines. Even a diagnosis of primary immunodeficiency is not often a contra-indication to receiving inactivated vaccines, but live attenuated ones should be avoided in those individuals.

[209] Dr. Kim states that she discussed with both the child, and his mother, that there are no tests that can predict reactions to vaccinations in children who have not previously reacted or received vaccines. But allergic reactions to immunizations can often be treated, and future vaccines can be given in a way that can be tolerated. A family history of vaccine reactions is not a contra-indication for this child to receive immunizations. Vaccines can help prevent infection from many diseases that cause significant morbidity and mortality. While counsel for the mother said that she might challenge some of the information in this paragraph were there to be a trial, I note the latter sentence is information that is also available in the government documentation that the father supplied to the Court.

[210] Dr. Kim's report states that although the child has been clinically well, there is a risk that he may encounter a vaccine-preventable disease and develop serious complications from it, such as measles, in the absence of being vaccinated. When the mother voiced concerns about additives or chemicals added to vaccines that may cause harm or increase risk of malignancy later in life, such as mercury, Dr. Kim explained that most vaccines in Canada do not contain thimerosal. Vaccines used in Canada are "extremely safe". While counsel for the mother said that the mother might challenge some of the information in this paragraph were there to be a trial, I note that almost all of this information is also available in the government documentation that the father supplied to the Court.

[211] The mother is concerned about her own history with a cancer diagnosis. Dr. Kim explained that there is no known association of vaccination with increased risk of malignancy. The low risk of serious adverse reaction to vaccines must be balanced with the greater risk of developing vaccine-preventable disease. While counsel for the mother said that she might challenge this doctor's comments about malignancy were there to be a trial, I note that much of this information is also available in the government documentation that the father supplied to the Court.

[212] Not accepting this information, the mother has made a request for a genetics referral, twice, via the child's family doctor. The genetics department at Sickkids rejected the first referral as unnecessary. Apparently, the family doctor made another referral at the mother's request after that initial rejection.

[213] There is also evidence from Dr. De Souza, before the Court. Dr. De Souza is a family physician licensed to practice in Ontario. She also lectures in the Department of Family and Community Medicine at the University of Toronto. Both parents have requested that she author reports for use in this litigation.

[214] In the father's case, he requested that Dr. De Souza confirm whether there was any medical reason for the child not to be vaccinated. The pertinent part of Dr. De Souza's letter of July 31, 2020 reads as follows:

It is my practice to recommend routine childhood vaccinations for children in general, unless there is medical evidence that they should not be vaccinated. At this time, there is no clear medical evidence that Brayden could not be vaccinated.

A referral was made to the Immunology Clinic at the Hospital for Sick Children regarding a possible immunodeficiency based on [B.R.M.R.'s] previous illnesses, his food intolerances, and his family history. In her note, the specialist states she did not see any contraindications for [B.R.M.R.] to receive immunizations. I understand from [B.R.M.R.'s] mother that [B.R.M.R.] stated during this appointment that he does not want to receive vaccinations.

Referrals were requested to me made to the Rheumatology Clinic and Clinical Genetics Clinic at the Hospital for Sick Children, which were declined as [B.R.M.R.] does not currently display any clinical symptoms. A new referral to another genetics clinic has recently been requested.

[215] Dr. De Souza's statements in this letter are not challenged.

[216] The mother has no medical evidence to demonstrate that vaccines will cause harm to B.R.M.R. in any way. I note that the calibre of medical evidence in this case before me well exceeds that which was available before the Court in several of the vaccine cases, which nevertheless ordered similar results.

C. The Status Quo Regarding Decision-Making About B.R.M.R.'s Health

[217] A considerable focus of the mother's argument against the Court either granting the relief sought by the father, at least at this stage of the case, is based on the status quo surrounding decision making, the father's knowledge of the child not being vaccinated, and what she argues is the father not having done anything about that in the past.

[218] For example, the mother says that the father attended a Sickkids appointment back in 2012, when the child had to attend the emergency department. She says the father was present, when the doctor noticed the child was not vaccinated. That, she says, is evidence of the father's knowledge as to the lack of vaccinations, back in 2012.

[219] The mother says that the child was almost 2 ½ years old when the parents executed the Parenting Agreement on April 18, 2013. That document provided her with sole custody, including medical-decision making. She points out that the father had legal advice at the time. Once again, she says that the father was aware that the child was not vaccinated, and further, that she did not intend to vaccinate him.

[220] The mother says that the parents had discussions about her decision not to vaccinate the child, both before and after the April 18, 2013 Parenting Plan was executed. Mother says she provided the father with "science-based" information, and encouraged him to do his own research. The mother alleges that the father told her he would not challenge her decision not to vaccinate B.R.M.R.

[221] Despite being aware of her decision not to vaccinate for years, the mother says the father did not raise the issue between an email he sent in early 2015 and starting this proceeding 2 ½ years later in mid-2017. By that time, the child was already 6 ½ years old. And additionally, the mother adds that the father was also aware that she signed the school exemption document, since she gave him a copy of it when B.R.M.R. entered junior kindergarten.

[222] The father's reply is that from the time he found out that the mother did not intend to vaccinate, he has made his beliefs and views clear that it is in the child's best interests to be vaccinated. Over the years, he says he spent considerable effort attempting to convince her to vaccinate. When his efforts failed, he launched this proceeding. He says that she minimized his role as the child's parent and did not welcome him at health appointments.

[223] The father also challenges the reasonableness of other aspects of the mother's health decision making. He asserts that the mother has in the past, and that she now continues to make inappropriate decisions about other aspects of B.R.M.R.'s health, and he has no means of providing input or ensuring that the child's needs are being met. He says that he is not consulted on matters of health (or education), despite repeated requests.

[224] The father says he has a number of concerns about the mother not using safe and effective treatments for things such as head lice, dental cavities or even a common cough, preferring alternative treatments like tea tree oil, toothpaste without fluoride or ice cubes and honey. He says the mother has coached the child to be weary of any medicine that the father tries to give him (like children's Tylenol), causing the child unnecessary stress. There is a dispute between the parents in the affidavit material about how a prescription for a recent illness of the child's was handled. Both parents blame each other for mismanaging it.

[225] The mother, by contrast, says that she has dedicated herself to ensuring that the child's health is a top priority, hoping that he will have a better health outcome than she and members of her own family had. She says that B.R.M.R. has been healthy for the past 10 years.

[226] The mother says that the father was not interested in attending medical and dental appointments throughout B.R.M.R.'s life. He has only ever attended on a few occasions, including a recent appointment at Sickkids in February 2020. She says she feeds the child organic food, taking into account his "gastro-food sensitivities to corn and all corn related products", she feeds him vitamins and she says she will administer Tylenol, or antibiotics when recommended by a doctor.

[227] The mother has obtained and filed several reports of her own from Dr. De Souza, dated March 27, 2019, December 6, 2019, and August 18, 2020, to support that assertion, and to refute the father's allegations of the mother's inadequate medical care.

[228] In her report of March 27, 2019, Dr. De Souza writes that she has been the mother's and the child's family physician since the fall of 2014, and she feels qualified to comment on the mother's "ability and willingness to provide care and decision-making" for the child. The report concludes that the mother has always demonstrated careful attention to all decisions regarding the child's well-being. The mother makes choices that are "informed and that [the mother] feels are in [the child's] best interests".

[229] In Dr. De Souza's supplementary report of December 6, 2019, she confirms that the mother has been the parent primarily responsible for the child's care. For example, the letter documents that she has only met the father once in 2015 to discuss the child's food allergies.

[230] Dr. De Souza's third letter of August 18, 2020 is written in a similar vein and contains a consistent theme. It confirms that the mother and the child have a good relationship, and that the mother is devoted to the child's care.

[231] Likewise, and although she admits to giving the child toothpaste without fluoride, apparently based on her past cancer diagnosis, the mother has obtained and attached a letter from the child's dentist dated August 10, 2020. The letter confirms the child is receiving appropriate dental care.

[232] In my view, these arguments are somewhat misfocused. Based on the record before me, this background information largely shows that the mother has dealt with health issues, in general, in an appropriate way. The father may disagree with some of the "alternative" health care choices the mother has made, but those are not necessarily tantamount to the mother having made inappropriate health care decisions.

[233] I would not make a finding, as the father would have me do, that the mother has mismanaged the child's health, in general. I need not make that finding. I do not find this general evidence about the history of the child's health care to be terribly helpful to deciding the precise issue before the Court.

D. Conclusions Respecting the Status Quo

[234] In conclusion, there is no serious dispute that the mother has been responsible for the child's health care since his birth. The parents agreed to this in writing, as reflected in the Parenting Agreement dated April 18, 2013. These are relevant, but not determinative considerations in the best interests' analysis. See sections 24(2)(c), (d), (g) and 24(3)(b) of the Children's Law Reform Act.

[235] There is some suggestion that the father was dilatory in challenging the mother's decision-making, a proposition with which he disagrees. In any event, he has explained some of his delay, by explaining that he was pursuing access while also voicing his concerns about the child not having been vaccinated and then by starting this proceeding. He is concerned that the Court proceedings were delayed by the mother, and then by Covid-19, leading to B.R.M.R remaining not vaccinated for even longer.

[236] Even if the father was dilatory, neither that, nor the other status quo evidence would tip the scale in favour of the result sought by mother on this motion in my view. The father raises valid and serious concerns. A parent may make otherwise reasonable health care decisions for a child, along with poor choices. I note that P. Jones J. was confronted with somewhat similar circumstances in Tarkowski v. Lemieux, and she bestowed health decision-making on the mother in that case, but for decisions about vaccines.

[237] And for that matter, quite apart from this evidence and Dr. De Souza's otherwise supportive reports about her interactions with the mother, I note that nowhere in any of Dr. De Souza's reports does she say that she either recommended, or supports the mother's decision, not to vaccinate the child. In fact, her report of July 31, 2020 (as well as the Sickkids Immunology Report) say otherwise.

E. The Child's Views and Preferences

[238] Pursuant to section 24(2)(b), the court shall consider the child's views and preferences, if they can reasonably be ascertained. See also section 64 of the Children's Law Reform Act.

[239] There was some suggestion in my review of the affidavit material that the mother was going to bring a motion to appoint the Children's Lawyer in the past, but then that was never done. There is some evidence before the Court about the child's views and preferences. In Dr. De Souza's letter of July 31, 2020, she writes that the mother told her, that B.R.M.R. stated during the Sickkids immunology appointment, that he does not want to receive vaccinations. Counsel for the mother suggested that at a trial, there might be some evidence about the child's views on vaccines, and that Dr. De Souza would not vaccinate the child, absent his consent.

[240] Having regard to this, I initially inquired of counsel whether the Children's Lawyer should be appointed. Counsel for the mother suggested that the child should have his own lawyer. The father opposed the Children's Lawyer, but then said if the Court was inclined to appoint a lawyer, a section 112 report was preferable.

[241] Having now had the opportunity to further contemplate this, I would not appoint the Children's Lawyer in relation to the vaccine issue. I echo Harper J.'s comments at ¶ 48 of C.M.G. v. D.W.S., albeit made in the context about whether he would interview the 10 year old child in that case, after the Children's Lawyer declined a referral:

It is my view that this child is not in a position that would allow her to consider and understand all of the relevant information and appreciate the consequences of a decision to be vaccinated for measles, mumps, and rubella. She is in a conflict of loyalty between the two parents she loves. In such circumstances, she cannot decipher which information given by either parent has validity and should be accepted. How is it possible for her to decide when her own parents cannot decide what data is valid and worthy of acceptance? Even if that were possible, by making a choice she would be aligning with one parent and being disloyal to the other. I will not place this child in such a position. Whatever information I may obtain from interviewing the child would not be relevant and would most certainly be harmful to the child. I decline to interview the child.

[242] This Court is also concerned that what transpired in Chmiliar v. Chmiliar should not happen in this case. The vaccine issue should not be allowed to morph into a situation where B.R.M.R. becomes paralyzed with fear over vaccines.

[243] The Health Care Consent Act was mentioned by counsel in argument. There is no evidence that this child posses a sufficient level of maturity, and so this decision about vaccines must be made by one of his parents. The Court is not precluded from making the order sought by the father because of the Health Care Consent Act. See ¶ 49-54 C.M.G. v. D.W.S.; see also A.M. v. C.H., 2019 ONCA 764 ¶ 44-73. If Dr. De Souza is not prepared to administer a vaccine to the child as mother intimated, then the father will not be precluded from taking the child elsewhere to have that done.

[244] Nevertheless, the Court will require the child's views and preferences in relation to the continuing litigation over the parenting schedule. The Court would also be interested in hearing the child's perspectives about his school and day care. The submissions of counsel about what form of Children's Lawyer appointment the Court might suggest in its Endorsement, did to some degree focus on a concern about delaying this case. In my view, the most efficient way to get this information before the Court, and not to further delay this case, is a Voice of the Child Report.

F. Conclusions Respecting Health Decision Making About Vaccines

[245] For those reasons, I conclude it is in the child's best interests for the father to have health decision making authority concerning B.R.M.R.'s vaccines.

PART VII: ISSUES AND ANALYSIS CONCERNING THE CHILD'S DAY CARE

[246] My conclusion regarding the father's motion about the day care issue is different. Although the return to school issue resolved on consent for the 2020-2021 school year, it was related to the day care issue, so I will briefly summarize the parties' positions and the evidence about both issues.

[247] The child has attended his private school since grade one. He is now in grade 5. In March 2020, the child's school moved to a daily, full day Virtual Learning Platform due to Covid-19.

[248] When the school re-opened, the mother wanted B.R.M.R. to return to a school environment that is familiar to him, in which he feels comfortable, and that is able to offer smaller class sizes and additional school supports.

[249] The father's principal objection to the child returning to his school was not really based on Covid-19, but it was related to its cost.

[250] The father says that since the beginning of these proceedings, he has maintained that he cannot afford to pay for private school. He believes that the public school system is adequate to meet the child's needs. But knowing that the child will likely attend public school starting in grade 7, he says he had not pressed the issue.

[251] The father was paying child support of $939.75 monthly, although based on his 2019 tax return, he says the new monthly amount would be $997.44. He pays 77% of the child's special or extraordinary expenses pursuant to section 7 of the Child Support Guidelines. His share of those s. 7 expenses, prior to Covid-19, was about $1,400 per year, exclusive of child care expenses. He says he has incurred significant legal fees in this proceeding, and as a result, he says he does not have significant savings nor does he own a home. He says that if the mother bears the cost of the private school, then he would be content for the child to finish elementary school in the private school.

[252] The mother raised other objections about public school options, based on various logistics. In the result, the mother agreed to pay for the cost of the remaining tuition for the 2020-2021 school year. On that basis, the school issue resolved on a temporary basis.

[253] When this matter came before me on July 22, 2020, the mother told the Court that she receives some subsidy from this school. No evidence was put before the Court as to the amount of tuition left to be paid that might have been the stumbling block. If a financial issue about day care is going to be raised at trial, these details will be necessary to have. While the school issue settled for the 2020-2021 school year, I understand that what should happen beyond 2020-2021 remains an issue for the trial.

[254] Regarding the day care, the child has been attending it since junior kindergarten. Similarly, the mother says that the child is familiar with it and he has long-term relationships with staff and peers there since he was 3 ½ years old. The mother has a childcare subsidy, that she obtained when she was pregnant.

[255] The mother says that if the father does not want to use the daycare on his Wednesdays (when B.R.M.R. has overnights with his father), then the father has to pay a fee, or it will jeopardize the child's spot for the entire week. While the child is allowed to have some "absent days", the mother says that the father cannot use them. The child also must attend in the summer, or the spot will be lost. This is what is triggering the financial component of the father's objection to day care.

[256] The father's objection to the child returning to day care relates to whether the child actually requires day care any longer, financial considerations and Covid-19.

[257] The father says that the mother does not require the daycare due to work obligations. She only maintains part-time work in a school.

[258] The father says he pays between $120 and $150 per month in fees, for days when the child is with him, and does not attend day care. He offers in his affidavit of August 5, 2020 a number of alternatives to the child attending day care.

[259] The father also raises concerns about the child being exposed to additional people outside of his school and family during Covid-19. Unfortunately, neither parent provided much detail about the number of children that the child will be exposed to at school and then at the day care, nor the measures that either the school or the daycare is implementing in light of Covid-19.

[260] Regarding the necessity issue and the related financial considerations, the parties are headed towards a trial about the parenting schedule. It may be, for example if the father's proposed 50-50 schedule (or some other schedule or even the status quo) is ordered at trial, that the child care is no longer necessary, or that the absent days can be used in a different fashion to reduce the costs to the father. That will have to be determined in due course. I would not interfere with the day care issue at this stage of the case, without a more fulsome record about all these related issues.

[261] Regarding Covid-19, I appreciate that there are now a number of decisions that concern a child's return to school post-Covid-19. See for example Chase v. Chase, 2020 ONSC 5083, the unreported decision of Boucher J. in Wilson v. Wilson, and Zinati v. Spence, 2020 ONSC 5231. Although the day care issue involves the child attending a second location as the father argues, the cases still have application to the question on this motion about the child's day care. I do not see a health-based or other reason, like those identified in these decisions cases, to interfere with the day care on this motion.

PART VIII: ORDERS

[262] I make the following orders:

(a) Regarding paragraphs 1 and 2 of the father's Notice of Motion dated August 5, 2020, pursuant to section 28(1)(b) of the Children's Law Reform Act, the father shall have decision making authority about the child's, B.R.M.R.'s health, but only as it relates to deciding whether to administer Ontario's existing publicly funded vaccinations. If Dr. De Souza is unwilling to administer vaccines to B.R.M.R., then the father may take the child to another health care provider authorized to administer them. The father shall follow medical advice as to which ones B.R.M.R. should receive, and how they shall be administered, to get B.R.M.R.'s immunizations up to date;

(b) Subparagraph (a) does not include authority to decide whether to administer a future Covid-19 vaccine. No such vaccine yet exists. If this remains an issue, then the trial judge will have to hear evidence from the parents as to how they intend to deal with a future Covid-19 vaccine, and if appropriate, the Court will make a decision;

(c) Paragraph 3 of the father's Notice of Motion dated August 5, 2020, that the child not attend day care, is dismissed;

(d) Paragraph 4 of the father's Notice of Motion dated August 5, 2020 regarding the child's school is no longer before the Court on this motion, as it resolved at the outset of argument;

(e) Paragraph 5 of the father's Notice of Motion dated August 5, 2020 concerns the father's request for a shared parenting schedule. On consent of the parties, the parenting schedule shall be deferred to the trial;

(f) There shall be a Trial Management Conference before me on October 20, 2020 at 10:00 AM for 1 hour by teleconference, using the same dial in number and ID previously provided for argument of the motion. The parties shall complete the Trial Scheduling Endorsement in draft. The Court does not require Trial Management Conference Briefs;

(g) The parties shall also be placed on the Assignment Court list on October 20, 2020. When the Trial Management Conference is completed, then the parties shall be traversed to Assignment Court before Justice O'Connell;

(h) The Court requests that the Office of the Children's Lawyer prepare a Voice of the Child Report. The Court asks that the Children's Lawyer expedite this, as the parties are working towards a trial on the December sittings; and

(i) It appears to the Court that there was divided victory on this motion such that there should be no costs. However, counsel may have a different view, and there may be Offers to Settle. If either side seeks costs, then the Court shall set a process for the determination of costs. The Court might also suggest that if there are to be submissions, then the costs of these motions shall be reserved to the trial, but I leave it to counsel to advise how they wish to proceed. Next steps, if any, concerning costs can be set at the Trial Management Conference.

[263] I wish to thank counsel for their assistance with this matter.

Released: September 28, 2020

Signed: Justice Alex Finlayson