ONTARIO COURT OF JUSTICE DATE: 2021 10 27 COURT FILE No.: Toronto D31340/19
BETWEEN:
A. G. Applicant (Mother)
— AND —
M. A. Respondent (Father)
Before: Justice Robert J. Spence
Motion heard by Zoom on October 26, 2021 Reasons released on October 27, 2021
Counsel: Ms. Glenda Perry, counsel for the applicant mother Ms. Parveen Malik and Mr. Daksh Bhardwaj, counsel for the respondent father
R. J. SPENCE J.:
1: INTRODUCTION
[1] This is a motion brought by the mother seeking an order suspending the father’s in-person parenting time with the parties’ two-year-old daughter, A.
[2] The parenting time order was made by Justice Stanley Sherr on September 10, 2021, on consent, on a temporary without prejudice basis.
[3] However, it subsequently came to the mother’s attention that there are two health-related concerns pertaining to the father which could adversely affect the health and wellbeing of the child if in-person parenting time were allowed to continue.
[4] The first concern pertains to the father’s Covid-19 vaccination status. The mother says that because the father is not fully vaccinated he poses a risk of harm to the child.
[5] The second concern pertains to the possibility that the father may have a bacterium called Helicobacter pylori (also called H-pylori), which is highly contagious and which may potentially be harmful to the child.
[6] The father opposes the mother’s motion for two reasons. First, he says that while he has been Covid-19 vaccinated only once, he has a medical exemption for the second vaccination.
[7] Second, he has just recently been given a blood test for H-pylori and the test results are not yet available. He asserts his belief that he does not have this bacterium.
[8] At the conclusion of argument on the motion, I made a temporary order, pending my full decision, that father’s parenting time to the child was to be limited to one hour only each week, and to occur entirely outside.
2: BACKGROUND
[9] For the purpose of this motion it is not necessary to address the outstanding non-parenting time issues between the parties, which primarily pertain to child support.
[10] On March 11, 2020, the parties consented to a final order granting primary residence and sole custody to the mother. That order was silent as to the father’s parenting time.
[11] As I noted earlier, on September 10, 2021, the parties consented to a temporary without prejudice parenting time order for the father, supervised by a professional third-party parenting supervisor, once each weekend for a period of two hours. Father was at liberty to choose the professional supervisor, from a list of three such supervisors named by Justice Sherr. Father consented to paying the fees related to the supervision, including the fees for any observation notes. [1] The father chose Renew Supervision services.
[12] The father’s supervised visits commenced following the making of Justice Sherr’s order. On October 4, 2021, the mother received an email from “Melissa” at Renew, who forwarded to mother an email from the father of the same date. The father’s email reads in part:
Hi Melissa, First I am not fully vaccinated so I don’t feel safe inside the play ground and even it’s not safe for my daughter and second I hardly managing this supervised access expenses, so I can’t pay any extra charges and as I can see that coming Wednesday weather is really nice and if weather will be bad for coming weeks we can arrange any community centre.
[13] This was the first that mother had heard about the father’s vaccine status.
[14] Mother instructed her counsel to write to father’s counsel asking for proof of father’s Covid-19 vaccination status. [2] Ms. Perry did so, on October 19, 2021.
[15] The father’s lawyer responded on the next day with a demand for proof that the daughter had “allegedly caught H-pylori”. [3] She did not provide any documentation disclosing the father’s vaccine status.
[16] The father filed his affidavit dated October 25, 2021. In that affidavit he deposed:
I received an exemption from the second dose of vaccination from Dr. Shahrose Malik on October 20, 2021. I had to be hospitalized after receiving my first dose of vaccination on July 21, 2021.
[17] Appended as an Exhibit to the father’s affidavit is a letter from that doctor dated October 20, 2021 which states, in its entirety:
This patient is exempt from taking the second dose of the COVID vaccine due to a severe allergic reaction to the first dose of the vaccine.
[18] For the first time, in the middle of argument on this motion, the father’s counsel emailed to Ms. Perry and to the court, the father’s vaccine receipt issued by the Ontario Ministry of Health, certifying the first vaccine dose was administered on July 21, 2021. This had not been previously disclosed by the father.
[19] The mother argues that the letter from the doctor is simply a one-line conclusory note, without any analysis or explanation. She argues that the court should not rely on this letter as constituting a valid basis for a medical exemption from a second vaccine dose. I will shortly return to this argument.
[20] Before I turn to my analysis, I will provide some important information about the parties’ child.
[21] The child’s doctor wrote a letter dated October 18, 2021. I extract from that letter the following:
[The child] has reactive airway disease/asthma, her triggers for exacerbation can include viral infections and exposure to cold air which can induce bronchospasm. . . . Given her past medical history, history of lung disease and need for future surgery/hospitalization she remains at risk of contracting and potentially developing complications of infectious illnesses including COVID-19 disease/infection. . . . [The child] is under evaluation for elevated blood pressure and requires home blood pressure monitoring [device and age appropriate cuff] and charting to observe her trends.
3: ANALYSIS
[22] Section 24 of the Children’s Law Reform Act (Act) provides, in part: [my emphasis]
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
[23] In the past number of months, many vaccination cases have come before the courts. However, I am not aware of any case where a primary caregiving parent has requested an order suspending the other parent’s in-person visits because of a failure or refusal to be fully vaccinated. [4]
[24] Neither party in this motion referred to authorities or case law respecting the public health need for vaccines. This was not a case where – as in some cases – there is competing medical or other evidence about the efficacy and public health importance of Covid-19 vaccines. See, for example, O.M.S. v. E.J.S. 2021 SKQB 243.
[25] Neither party argued against the now widely accepted scientific evidence regarding the importance of vaccinations to protect against Covid-19.
[26] In B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, Justice Alex Finlayson stated the following at paragraphs 186 and 187 [my emphasis]:
[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.
[27] Public Health Ontario Released an Evidence Brief on April 15, 2021 entitled “Consideration for Public Health Measures for Individuals with Partial Vaccination for SARS-CoV-2. I extract from that paper the following “Key Message” [my emphasis]:
No jurisdictions with total population vaccination programs using vaccines approved in Canada have indicated that societal public health measures can be relaxed for partially vaccinated individuals. [5]
[28] The Ontario Ministry of Health released a paper on September 14, 2021, entitled “Medical Exemptions to COVID-19 Vaccinations”. I extract from that paper the following [my emphasis]:
Background
This document is intended to assist physicians/specialists and nurse practitioners in evaluating contraindications or precautions to COVID-19 vaccination that may warrant a medical exemption. A contraindication is a situation where a vaccine should not be given as the risks outweigh any potential therapeutic benefit. A precaution is condition that may increase the risk of an adverse event following immunization (AEFI) or compromise the ability of the vaccine to produce an immune response, which may result in deferral of immunization; however, there may be circumstances where the benefits of vaccination outweigh the potential risks from vaccination associated with the condition or where reduced immunogenicity still benefits immunocompromised individuals (Canadian Immunization Guide). In general, there are very few actual contraindications to available COVID-19 vaccines that would qualify as medical exemptions and most individuals can safely receive COVID-19 vaccines.
Reasons for Medical Exemption
Individuals who have experienced serious adverse events following COVID-19 immunization and those with certain medical conditions that may affect their response to immunization should be referred to an allergist/immunologist or specialist based on their adverse event/medical condition, for further assessment. This should include a detailed patient history, assessment of adverse event/medical condition and specialist investigations/diagnosis, individualized risk-benefit analysis, and recommendations/options for immunization. For serious or rare AEFIs, individuals should be thoroughly investigated to determine if the event can be attributed to an alternative etiology. Referral and specialist consultation support for physicians and nurse practitioners is available through Ontario’s eConsult Service, OTN Hub, and the Special Immunization Clinic (SIC) Network. In many instances, safe administration of subsequent doses of COVID-19 vaccine is possible under the management of an allergist/immunologist. True medical exemptions are expected to be infrequent and should be supported by expert consultation.
Documentation
Documentation of a medical exemption must be provided by either a physician or a nurse practitioner (note: A nurse practitioner is a registered nurse who holds an extended certificate of registration under the Nursing Act, 1991). The exemption must clearly indicate the reason why the individual cannot be vaccinated against COVID-19 (i.e., clear medical information that supports the exemption).
[29] Neither of these public documents were tendered by the parties in argument. That does not prevent the court from conducting its own research. These public pronouncements are all admissible under the public documents exception to the hearsay rule. See A.C. v L.L. [2021] ONSC 6530
[30] I return to the letter from Dr. Shahrose Malik dated October 20, 2021 which stated that the father has a medical exemption from taking the second vaccine dose for Covid-19.
[31] Dr. Malik’s one-line conclusory note falls far short of the requirements for medical exemption letters set out in the Ontario Ministry of Health’s paper on Medical Exemptions. It is not at all helpful to the court to receive into evidence these kinds of notes, lacking entirely in the analysis which a court requires to properly assess the conclusion which the doctor has reached.
[32] Moreover, the frailty of the father’s evidence is compounded by his assertion that following his alleged negative reaction to the first dose of vaccine, he had to be hospitalized. And yet, he produced no documentation whatsoever pertaining to that hospitalization.
[33] Nor did the father produce evidence that he provided the hospital records to Dr. Malik to assist in preparing the medical exemption letter.
[34] As noted earlier, the father wrote to the access supervisor that he did not feel “safe” because he was not fully vaccinated. And yet, he has provided no evidence to the court that justifies his refusal to obtain his second vaccine dose.
[35] Nothing in the father’s responding affidavit refutes or takes issue with the child’s medical challenges. He does not dispute her health issues as outlined by the mother in her evidence.
[36] Where does all that take the court? Based on the foregoing the court concludes as follows:
- The child has certain medical frailties which may leave her exposed to a greater risk of contracting Covid-19.
- The father is not fully vaccinated which exposes him to a greater risk of contracting Covid-19.
- The father’s increased risk of infection potentially exposes the child to an increased risk of infection.
- In the determination of best interests, the court places considerable importance on the child’s “safety, security and wellbeing”, as mandated by the Act.
- The father has not tendered acceptable evidence to the court that he should be exempted from his second Covid-19 vaccination.
4: CONCLUSION
[37] There are competing interests at stake. On the one hand the father is not fully vaccinated, thereby exposing his daughter to a greater risk of infection from Covid-19.
[38] On the other hand, all other things being equal, the child should be entitled to have her parent in her life in a meaningful way. Absent unusual circumstances, in-person contact between parent and child is more meaningful than virtual contact.
[39] In this case, I have concluded that notwithstanding the father’s lack of full vaccination, without an acceptable medical exemption, his partial vaccination status warrants some in-person parenting time. However, that in-person parenting time will be subject to certain conditions.
[40] The court makes the following temporary order:
The temporary without prejudice parenting time order dated September 10, 2021 is varied by reducing the father’s in-person parenting time from two hours weekly to one-hour weekly.
In all other respects, the order dated September 10, 2021 remains in effect.
Subject to the following, the parenting time shall take place exclusively outdoors.
Should the mother determine, in her sole discretion, that the weather is too inclement for the child’s wellbeing, she shall notify the father by text or email as soon as possible prior to the scheduled visit and, in any event, not less than four hours beforehand, and the visit shall revert from in-person to virtual.
In the event the father either receives his second vaccine dose or he obtains a medical exemption which is acceptable to the court, he has leave to file a 14B motion form to the attention of Justice Sherr, seeking a motion date to argue for a variation of this order.
The father shall deliver to mother’s counsel his H-pylori blood test results immediately upon his receipt of those results. In the event the blood test reveals the father does have this bacterium, he shall comply with the safety precautions outlined by the mother in paragraph 6 of her affidavit sworn October 6, 2021, which states:
The Respondent shall not share items with A. such as food, drink, cutlery, dishes, or water bottles/glasses or other food related items, and he shall not kiss A. He shall ensure that he washes his hands before having contact with A, and after using the washroom facilities.
The father shall forthwith confirm to the mother, in writing of his intention to comply with these safety precautions.
[41] Costs of this motion, if any, are reserved, to be decided either following a subsequent motion on the issue of the father’s parenting time or following trial.
Released: October 27, 2021 Justice Robert J. Spence (Signed electronically)
Footnotes:
[1] Justice Sherr also ordered financial disclosure pertaining to the issue of child support
[2] Mother’s counsel asked for additional medical disclosure as well, pertaining to H-pylori. Mother was not asserting that the H-pylori should result in a suspension of the father’s in-person parenting time. Instead she was asking that the father comply with certain safety protocols to prevent the spread of H-pylori to the child. As at the hearing of this motion, the father had apparently given a blood sample for H-pylori but the blood test was not yet available.
[3] At no time did the mother assert that the child had “caught” H-pylori. Instead, she raised as a concern the potential for the transmission of this bacterium to the child.
[4] By fully vaccinated, the court is referring to two doses of an approved vaccine.
[5] It is now widely understood that “partially vaccinated” means those persons who have received only one dose of an approved vaccine. (per the cited Evidence Brief)
