Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2022 04 29 COURT FILE No.: Toronto 19-15804
BETWEEN:
C. M. Applicant
— AND —
S. L. S. Respondent
Before: Justice Maria N. Sirivar
Heard on: November 30, December 1, 2, 3, 6, 7, 2021
Reasons for Judgment released on: April 29, 2022
Counsel: Lisa Baumal.................................................................................... counsel for the Applicant Gary Joseph and Julia McArthur........................................ counsel for the Respondent
SIRIVAR J.:
INTRODUCTION
[1] The only issue to be decided is which parent should be responsible for making decisions regarding vaccinations for the parties’ only child N.M., born […], 2016.
[2] The trial was heard over six (6) days and the parties filed written closing submission. In addition to the parties and the maternal grandmother, the Court heard evidence from seven (7) proposed expert witnesses (litigation and participant experts). The trial proceeded in a blended fashion such that the evidence adduced would be used for both the trial and the voir dire.
BACKGROUND
The Relationship and its Breakdown
[3] The Applicant Father is 44 years of age and he emigrated from England in 2005. He has a university degree in Industrial Design. The Respondent Mother is 43 years of age and is a practicing Chiropractor.
[4] The parties began living together in May of 2013. They separated on November 27, 2018, when the child was two (2) years of age. The Respondent Mother is the child’s primary caregiver.
[5] The Respondent Mother alleges that she left the relationship after an incident wherein the Applicant Father pushed her while she was holding the child. She further alleges that the Applicant Father was verbally and emotionally abusive towards her during the relationship.
[6] The Applicant Father alleges that as the parties’ relationship deteriorated, the Respondent Mother was increasingly controlling and critical of his time with the child. Following separation, the Respondent Mother insisted that his time with the child be supervised. The Respondent Mother expressed concerns that the Applicant Father was mentally ill and lacked sufficient parentings skills to care for the child. The Respondent Mother reported her concerns to the Children’s Aid Society of Toronto, who investigated and did not verify the allegations.
[7] The Applicant Father was brought to the Centre for Addiction and Mental Health (“CAMH”) by police for a psychological assessment. The attending physician did not find any evidence of mental health concerns. The Applicant Father also saw Dr. Gwen Zai at CAMH in June of 2019, at the Respondent Mother’s insistence. Dr. Zai concluded that there were no concerns regarding acute suicidality, child safety or driving. The Applicant Father was diagnosed as having relationship distress.
Procedural History
[8] The Application was issued on July 24, 2019. The Applicant Father sought, among other things, decision making responsibility with respect to major decisions affecting N.M.’s health. In the Answer, the Respondent Mother sought sole decision making responsibility, generally. The parties resolved all other issues and final orders were granted on July 23, 2020, December 21, 2020, and March 17, 2020.
[9] The child resides primarily with the Respondent Mother and is in the Applicant Father’s care every week from Tuesday after school until Wednesday morning at school or 9:00 a.m. and on alternate weekends from Friday at 7:00 p.m. to Sunday at 5:00 p.m. The schedule is subject to review after two (2) years. The parties agreed that the Respondent Mother would have sole decision making responsibility with respect to all other issues.
[10] Prior to the March 17, 2020 final order being made, the parties signed Minutes of Settlement resolving all issues. The Respondent Mother’s counsel filed a 14B motion seeking a final order in accordance with the Minutes of Settlement. Justice Finlayson, the case management judge, did not grant the request. His Honour’s endorsement dated February 24, 2021, provides:
“The mother has told the Court that she is opposed to having the child, who is not yet 5, vaccinated. The father disagreed, yet he has now signed Minutes granting the mother decision making over vaccines. The Court wishes to hear from the parties to (a) ensure that the father understands the consequences of signing these Minutes; and (b) the Court needs to hear submissions as to whether it should grant such an Order in light of s, 67 of the CLRA; or (c) if the Court is not persuaded to grant the final Order, then a process will have to be set, possibly including evidence, on the outstanding issues to be resolved. I ask that the father speak to duty counsel.” [Emphasis Added]
The Child
[11] At the time of trial, the child was five (5) years of age. He had not received any of the existing routine childhood vaccines.
[12] The child’ first pediatrician was Dr. Matthew Cruickshank. The Respondent Mother declined vaccination for the child at the first check up appointment on June 22, 2016, and at the baby check up on July 27, 2017.
[13] On June 22, 2016, Dr. Cruickshank noted:
“[P]atient registering with her 2 month old son. Does not want her son or herself vaccinated. In her opinion we have long been dictated what should be the standard of medical care received and now that she has researched on her own she feels that vaccinations cause health concerns. She has encountered several individuals who were vaccinated and went on to develop autism and feels strongly that autism can be directly caused by vaccinations. Patient is firm in her decision.” [Emphasis added]
[14] Dr. Cruickshank further recorded that he advised the Respondent Mother that he “strongly disagreed” with her decision and explained that the issue had been extensively studied and that there is no evidence that vaccines cause autism.
[15] The only health concern that Dr. Cruickshank identified was a speech delay. His recommendation for speech therapy was followed and the situation has improved. The Respondent Mother stopped taking the child to Dr. Cruickshank because there was a limited number of appointments available for non vaccinated children.
[16] Dr. Janet Star has been the child’s pediatrician since June 14, 2018. While under her care, the child is noted to be in generally good health. Dr. Star recommended routine vaccinations. The Respondent Mother declined vaccination for the child. Dr. Star advised the mother of the Infectious Disease Clinic at the Hospital for Sick Children. She makes referrals to this clinic to parents who require more detailed information about vaccines or are vaccine hesitant. The Respondent Mother declined the referral.
[17] Dr. Star referred the child to Dr. Amy Blair, an allergist, after the Respondent Mother raised concerns about possible peanut and tree nut allergies. The child was tested in January 2019 and the results were negative. When the Respondent Mother raised the issue of possible egg sensitivities in November 2020, Dr. Star recommended further allergy testing but the Respondent Mother declined.
POSITIONS OF THE PARTIES
Applicant Father’s Position
[18] The Applicant Father seeks an order granting him decision making responsibility on the issue of vaccination. He submits that his approach, obtaining relevant information and consulting with treating and specialized physicians, is sound and demonstrates good judgement.
[19] He believes that the child should receive Ontario’s routine publicly funded vaccines for children. He argues that these routine vaccines are safe and effective and that the benefits far outweigh the risks. He also points to the experience of his sister “who contracted measles and then encephalitis as a newborn, which resulted in sever neurological complications and permanent brain damage” as having contributed to the formation of his view regarding the importance of vaccination.
[20] With respect to the Covid-19 vaccine for children between the ages of five (5) and eleven (11), the Applicant Father’s position is that he would like to obtain further information before deciding “based on the best available medical scientific information”. He has started the process with a joint telephone call with the Respondent Mother and a doctor. He intends to meet with the child’s pediatrician (with the Respondent Mother) to seek her input.
[21] The Applicant Father proffered Dr. Neal Sondheimer, a pediatrician, geneticist, and biochemical geneticist, to provide evidence of “the effect on children being vaccinated in the context of possible variants of MTHFR”. Dr. Sondheimer’s report dated April 15, 2021, his CV and his Acknowledgement of Expert Duty form were filed.
[22] He also sought to qualify Dr. Joan Robinson, a medical doctor with qualifications in pediatrics and infectious disease, to provide evidence regarding “the risks and benefits of routing immunizations for a child living in Canada who has no chronic medical problems”. Dr. Robinson’s report dated June 24, 2021, her CV and her Acknowledgement of Expert Duty form were filed.
[23] The Applicant Father also requests that the Court:
[T]ake judicial notice of and/or admit under the public document exception certain adjudicative and legislative facts based on documents issued by certain government bodies, the Government of Canada, Ontario and Toronto Public as establishing that vaccines are safe and effective and the last doing so for the Covid-19 vaccine for children 5-11.
[24] In response to the Respondent Mother’s allegations of family violence, the Applicant Father acknowledges that he has, at times, communicated in a rude and frustrated manner. He submits, however, that it is the Respondent Mother who has displayed anger towards him. He provides examples from emails the Respondent Mother sent him. On March 16, 2021, for instance, the Respondent Mother’s email reads:
“Please do not speak to me when I pick him up. I am currently seething with so much anger towards you, it is in [N.M.’s] best interest that we do not speak. This whole mess should have been put behind us today and instead, you have chosen to stir every thing up again. I will never, ever forgive you for this, regardless of the outcome. I thought we had come a long way in the last while with being much more pleasant with each other. What a waste. Do not respond to this email. I will not read it.” [Emphasis Added]
[25] On April 16, 2021, the Respondent Mother wrote:
“[Y]ou have completely ruined [N.M.’s] birthday for me this year. Way to go. I will never forgive you. Nor will he.”
[26] In cross examination, she claimed that she did not discuss the situation with the child. Rather, the Respondent Mother explained that she wanted the Applicant Father to believe that she had, and that N.M. would never forgive him.
[27] The Respondent Mother went on to state in her email:
“This trial you are forcing has lit a fire in me. I am all done being nice about anything that has anything to do with you. I hope you realize what you are up against, [C.]. I literally have an army behind me ready to fight. When this is all said and done, you will be financially, emotionally and mentally ruined for life. I hope it’s all worth it. You have no idea what is coming at you. You are at a crossroads. And I suggest you think long and hard before proceeding. If you drop this whole matter, there is still a change we can move forward and raise our child in an amicable way. If not, I suggest you brace yours for what’s coming” [Emphasis Added]
[28] The Applicant Father argues that the Respondent Mother decided before the child was born that she would not vaccinate him, and nothing will change her mind. He submits that the Applicant Mother demonstrates bad judgment by rejecting all evidence that does not accord with her view. He points to the following examples:
(1) She conceded in cross examination that even if he takes the steps she identified as being necessary to have proper informed consent on the issue of vaccination (including meeting with individuals of her choosing and taking a test) she may not be satisfied;
(2) She preferred the information she received from Piper Gibson, who is not a doctor, and doctors that are not geneticists over a geneticist;
(3) She preferred the information received from DNA Company which is not a certified lab and includes the following disclaimer on the report:
This test and its report are meant strictly for research use only (RUO) purposes. This report is solely intended as an educational/recreational tool, and is not intended for use in medical decision-making without the consultation of a licensed health care professional. This test is not intended for Direct to Consume (OTC) use, and any and all healthcare decisions ultimately return entirely to the healthcare provided. This test has not been cleared or approved by the U.S. Food and Drug Administration nor Health Canada (or affiliated regulatory agencies) as it is meant strictly as a recreational/educational tool and can only be dispensed through a medical professional.
(4) The Respondent Mother served a report prepared by Dr. Bradford Weeks titled “Risk of Vaccination of N.M.” dated April 20, 2021, along with an Acknowledgement of Expert Duty form. Dr. Weeks opined that N.M.’s genetics impaired his ability to detoxify many of the common adjuvants in childhood vaccines and that N.M. was “high risk” and should not be given vaccines. Although Dr. Weeks is not a geneticist and his medical licence was suspended by the State of Washington Department of Health for over six (6) years, she preferred his opinion; and
(5) She preferred the information received from non-infectious disease doctors and a non-medical doctor (Dr. Moskowitz, Dr. Neuenschwander and Dr. Shaw) over Dr. Robinson who is infectious disease doctor, who she accepts is an expert in area.
Respondent Mother’s Position
[29] The Respondent Mother’s position is that she is the parent who is “uniquely suited to make an assessment as to whether [N.M.] should be vaccinated”. She points to the following:
(1) she is a Doctor of Chiropractic and involved in the healthcare sector;
(2) she has researched the risks and benefits of vaccinations; and
(3) she has spoken to medical professionals including a naturopathic doctor.
[30] She explained that she did not get this information from Dr. Cruickshank or Dr. Star. Both doctors simply told her to get N.M. vaccinated without providing her with information about the risks of vaccinations.
[31] After “years and years of research”, the Respondent Mother has concerns about the child’s genetics. She has received information from medical professionals that the child may be at an increased risk of developing an adverse reaction to vaccines.
[32] Specifically, vaccines are unsafe for N.M. because he has 5, 10-methylenetetrahdrofolae reductase genetic variation (“MTHFR”) and suffers from allergies and food sensitives. These conditions place him at risk of suffering an adverse reaction from vaccines including the Covid-19 vaccine for children between the ages of five (5) and eleven (11).
[33] The Respondent Mother relied on information regarding the child’s genetics from Piper Gibson and DNA Company as well as Dr. Bradford Weeks. They were not called as witnesses. She sought, however, to have three witnesses qualified as experts.
[34] Dr. Richard Moskowitz is retired medical doctor who practiced homeopathic medicine for 53 years. He is said to be an expert in family medicine, risk assessment for vaccinations and the study of vaccines. Dr. Moskowitz’s report dated April 21, 2021, his CV and his Acknowledgement of Expert Duty form were filed.
[35] Dr. Christopher Shaw is a professor at the University of British Columbia in the areas of Ophthalmology and Visual Sciences, Neuroscience and Experimental Medicine and Pathology. The Respondent Mother seeks to have him qualified as an expert in “the effects of aluminum adjuvanted vaccines and ultimately how that may impact [N.M.]’s risk of being vaccinated”. Dr. Shaw’s report dated August 3, 2021, his CV and his Acknowledgement of Expert Duty form were filed.
[36] Dr. James Neuenschwander is a medical doctor who practices integrative medicine. He conducts risk assessments and treats children and adults who have experienced adverse reactions to vaccinations. The Respondent Mother seeks to have Dr. Neuenschwander qualified in emergency medicine, integrative medicine, risk assessments for vaccination and the treatment of adverse reactions to vaccination. Dr. Neuenschwander’s reports dated April 27, 2021, and October 27, 2021, his CV and his Acknowledgement of Expert Duty form were filed.
[37] The Respondent Mother also asks the Court to admit the following documents under the public document exemption to the hearsay rule:
(1) Health Canada Receives submissions from Pfizer BioNTech to authorize the use of Comirnaty Covid 19 vaccine in children ages 5 – 11.
(2) Contents of Immunizing Agents available for use in Canada; the Canadian Immunization Guide; and
(3) An Advisory Committee Statement (ACS) National Advisory Committee on Immunization (NACI) dated November 19, 2021.
[38] The Respondent Mother’s evidence is that she suffered abuse at the hands of the Applicant Father throughout the relationship. She argues that the Applicant Father only seeks decision making responsibility on this issue out of spite for her and not because he believes it is in the child’s best interest.
[39] According to the Respondent Mother, the Applicant Father is unable to make good decisions. He has a history of poor and erratic decision making. The Respondent Mother points to the following summary to support her conclusion that the Applicant Father is unable to make good decisions in the child’s best interest:
(1) He told the child to “shut the f up” in the middle of the night when he cried;
(2) He told the child that he was driving a wedge between his parents;
(3) He allowed the child climb on top of cars;
(4) He allowed the child drive with his seatbelt unbuckled;
(5) He has been inconsistent in his position throughout the litigation;
(6) He stated on several occasions that he wanted no further involvement in the child’s life;
(7) He changed his position on parenting time several times; and
(8) He has not done his due diligence on the risks and benefits of vaccinations.
[40] During cross examination, the Respondent Mother listed seven (7) steps the Respondent Father must take to demonstrate that he is an informed decision maker including: “prove in some way that he has managed to listen and retain the information, as he struggles to do so”.
VOIR DIRE
Applicant Father’s Proposed Litigation Experts
Dr. Neal Sondheimer
[41] The Applicant Father seeks to have Dr. Sondheimer qualified as an expert in genetics, the role of 5, 10-methylenetetrahdrofolae reductase (“MTHFR”) in human health, and the effect on children being vaccinated in the context of possible variants of MTHFR.
[42] Dr. Sondheimer is a pediatrician, geneticist, and biochemical geneticist. In additional to his medical degree, he holds a Ph. D. in molecular genetics and cell biology from the University of Chicago and the Pritzker School of Medicine. He is the head of Metabolic Genetics at the Hospital for Sick Children. He is also an associate professor of Paediatrics in Molecular Genetics at the University of Toronto. He was qualified as an expert in A.P. v. L.K., 2019 ONSC 7256 by the Superior Court of Justice.
[43] Dr. Sondheimer’s evidence includes his opinion that:
(1) The child does not have the MTHFR mutations but a variation;
(2) The genetic variants of MTHFR do not cause disease;
(3) The variants identified are benign and shared by a significant portion of the population.
(4) Even if the child had MTHFR, it is a not contra indication to vaccination;
(5) While MTHFR and its variants can impair the methylation of homocysteine to methionine, they do not impact vaccination or pose any credible risk for vaccination; and
(6) MTHFR does not detoxify, nor does it interact with heavy metals.
[44] The Respondent Mother did not object to Dr. Sondheimer being qualified as an expert, as proposed. In written submission she makes the following arguments about his evidence:
(1) “He concluded, without running his own test and relying upon the genetic report by DNA company, that the child does not have the MTHFR mutation but a variation. He did not contact Piper Gibson, although he criticized her findings.
(2) He currently works on running clinical trials, including trials for Moderna the pharmaceutical company that manufactures one of the Covid-19 vaccines. He was unable to confirm if he will be entitled to a bonus from the hospital and he was the only expert paid to write his report.”
Dr. Joan Robinson
[45] The Applicant Father seeks to have Dr. Robinson qualified as an expert in pediatric infectious disease and immunization. Dr. Robinson is a medical doctor with training in pediatrics and infectious disease. She earned her medical degree from University of Alberta, with distinction. She is currently the Director of Pediatric Infectious Diseases at the University of Alberta where she is also a professor. She has held numerous appointments and been part of several committees relating to pediatrics and infectious diseases. She also has an extensive list of publications in the area. Dr. Robinson was qualified as an expert in B.L.O. v. L.J.B. 2019 ONCJ 534 in the Ontario Court of Justice.
[46] Dr. Robinson’s evidence includes the following:
(1) Routine childhood vaccines that are recommended in Canada prevent infection;
(2) They are 90% effective against the strains for which they are designed;
(3) Vaccines were developed because the diseases that they prevent all have very serious potential consequences;
(4) Even if some childhood immunizations were to shift some disease to adulthood, immunization still prevents significant morbidity and mortality in the long run;
(5) Common side effects from any vaccine are a low grade fever and/or pain and redness in the injection site that lasts one (1) – three (3) days;
(6) There are more serious side effects such as anaphylaxis, which can be reversed with one (1) does of epinephrine;
(7) She is not aware of a child dying from vaccine induced anaphylaxis or having long term sequelae as a result;
(8) If most children are immunized, an unimmunized child is protected to some degree because there is far less disease circulating. He or she is not, however, completely protected;
(9) The potential benefits of routine childhood vaccines far outweigh the risks of serious harm in Canada in 2021;
(10) Allergies are not a contra indication to vaccination;
(11) There is no evidence that routine childhood vaccines hinder or help speech delay or mispronunciations;
(12) Speech problems are not a contraindication to vaccination; and
(13) Some vaccines do contain aluminum, but the amount is very small and there is no evidence that it causes harm.
[47] Respondent Mother did not challenge Dr. Robinson’s qualifications as an expert. In written submissions, however, she criticized Dr. Robinson for advising governments.
Respondent Mother’s Proposed Litigation Experts
Dr. Richard Moskowitz
[48] The Respondent Mother seeks to have Dr. Moskowitz qualified as an expert in the areas of family medicine, risk assessment for vaccinations and the study of vaccination.
[49] Dr. Moskowitz is a retired physician who practiced for 53 years in a homeopathic family practice. He holds a medical degree from New York University of Medicine. He has advised countless patients about the risks and benefits of vaccinations and was directly involved in the treatment of children. He is a sought after speaker and author of several publications including a book published in 2017 about vaccination.
[50] Dr. Moskowitz’s evidence includes his opinion that:
(1) Immunity from childhood vaccines is temporary. Contracting the illness puts the child’s immune system to work with more long term benefits;
(2) The child is at minimal risk of contracting these diseases;
(3) The child is at almost zero risk of contracting and experiencing symptoms from COVID-19;
(4) Vaccines can lead to chronic issues and an exacerbation of a child’s ordinary issues such as allergies, asthma and Attention Deficit Hyperactivity Disorder;
(5) All vaccines pose a significant health risks;
(6) Vaccine injury is the rule rather than the exception;
(7) Metal adjuvants in certain vaccines cause autism;
(8) Vaccines should be optional after parents are fully informed of the risks; and
(9) The drug industry controls government agencies like the Centre for Disease Control.
[51] Dr. Moskowitz acknowledged during cross examination that his views are not mainstream. He testified that there is a growing community of doctors and medical professionals who support them.
[52] The Applicant Father argues that Dr. Moskowitz is not qualified to give expert opinion evidence as proposed. Dr. Moskowitz is not a pediatrician, infectious disease doctor or allergist and he does not have any training in these areas. He is not board certified in any of area of medicine, including family medicine. His practice did not specialize in children. His practice was entirely homeopathic. The articles he has published about vaccinations are in homeopathic journals. He has never administered a vaccine his practice.
[53] Dr. Moskowitz’s conceded in cross examination that his report is based on anecdotal evidence. The Applicant Father argues that he has conflated anecdotes with evidence. The Applicant Father further argues that Dr. Moskowitz has not provided any parameters as to what makes him an expert in the study of vaccinations.
[54] The Applicant Father submits that Dr. Moskowitz failed to discharge his duty to provide opinion evidence that is fair, objective and non-partisan. He admitted to being partisan and “somewhat prejudice” against the Applicant Father. He testified that he is sick of seeing fathers who had not been interested in vaccination prior to separation “finds religion and suddenly wants the child vaccinated”.
[55] The Respondent Mother submits that although Dr. Moskowitz admitted to being bias, he did not suggest that it influenced his opinions. His opinions are set out in his public writings.
Dr. Christopher Shaw
[56] The Respondent Mother seeks to qualify Dr. Shaw as an expert in “the effects of aluminum adjuvanted vaccines, and ultimately how that may impact [N.M.]’s risk of being vaccinated”.
[57] Dr. Shaw holds a Ph.D. in Neurobiology and is a Professor at the University of British Columbia in the Department of Ophthalmology and Visual Sciences. He is cross appointed to the programs of Neuroscience and Experimental Medicine and the Department of Pathology.
[58] Dr. Shaw has published and contributed to articles in publications such as the International Journal of Medicine, the Journal of Inorganic Biochemistry, and Immunologic Research Journal, Toxicology. Twenty (20) to thirty (30) articles related to aluminum adjuvants in vaccines. There were two (2) circumstances where Dr. Shaw has had papers retracted.
[59] Dr. Shaw’s evidence includes his opinion that:
(1) Based on his research studies analyzing the impact of aluminum on mice, he has concluded that aluminum being injected can be harmful to the central nervous system;
(2) Some of the vaccines in the pediatric schedule contain aluminum; and
(3) Subjecting the child to the full range of pediatric vaccines can have a significant adverse effect on normal neural development.
[60] The Applicant Father challenges Dr. Shaw’s qualification as an expert. He argues that Dr. Shaw is not a medical doctor. He is not a professor of pediatrics, infectious diseases, genetics, immunology, or epidemiology. Moreover, he has no practical or educational background in vaccine research.
[61] Dr. Shaw admitted that other doctors have called his research pseudo science. Two studies he was involved in were discredited by the World health Organization Global Advisory Committee on Vaccine Safety (the “Committee”) in 2011 involving mice in which he injected aluminum. The Committee wrote:
“The core argument made in these studies is based on ecological comparisons of aluminum content in vaccines and rates of autism spectrum disorders in several countries. In general, ecological studies cannot be used to assert a causal connection because they do not link exposure to outcome in individuals, and only make correlations of exposure and outcomes on population averages”
[62] Dr. Shaw retracted an article he co wrote in September 2017 that claimed that aluminum in vaccines caused symptoms consistent with autism in mice. He testified that “the paper was dead” and that reasonable doubt was raised about its credibility.
[63] The Applicant Father further submits that Dr Shaw is not fair, objective, and nonpartisan and that he has adopted the role of advocate for the Respondent Mother.
Dr. James Neuenschwander
[64] The Respondent Mother seeks to have Dr. Neuenschwander qualified as an expert in emergency medicine, integrative medicine, risk assessments for vaccination (including the pediatric Covid-19 vaccine) and the treatment of adverse reactions to vaccination. He conceded that he is no longer an expert in emergency medicine.
[65] Dr. Neuenschwander is trained in emergency medicine and integrative medicine. In addition to his medical degree, he holds a Bachelor of Arts in cellular and molecular biology. He has thirty (30) years of experience. In his practice, he provides risk assessments for vaccination, and he treats patients who have experienced adverse reactions to vaccines.
[66] Dr. Neuenschwander has been called as an expert in two other cases (Miller v Miller and Ference v Ference) but the Courts in Des Moines and Colorado did not accept his opinion.
[67] Dr. Neuenschwander’s evidence includes the following:
(1) His methodology involves calculating the odds and specific risk of the child contracting the disease and comparing it with the risks of experiencing problems/adverse events if he did receive the vaccine;
(2) He considers the risks of vaccination listed on the packaging and conducts and evaluation as to the likelihood that the specific patient may develop an adverse reaction to the vaccine;
(3) He considers the child’s genetics, family history, neurodevelopmental delay, and any allergy to an ingredient in a vaccine;
(4) There are non responders and over responders to vaccines. The non responders may not develop antibodies and the over responders may experience an adverse reaction to the vaccine;
(5) Factors that suggest that the child is an over responder are:
(a) reactions to foods (i.e., hives),
(b) Speech delay, as it can be a sign of neuroinflammation which impedes “making the intricate connections in the brain in order to have speech”;
(c) “Although they are not part of this genetic profile, it is likely that he has one of the genetic/hla types that would put him at higher risk based on his family history of allergies and may have other SNP’s involving some of his inflammatory genes (which would also put him at higher risk of over reacting to the vaccines)”;
(d) If he has ploymorphin in CTP182 or the GST, he may have more difficulty detoxifying;
(6) Chronic diseases in children have exploded over the years which may be the result of the long-term impacts of receiving vaccines;
(7) For each regular pediatric vaccination, N.M.’s risk assessment favoured non-vaccination at this time;
(8) The Pfizer Covid-19 vaccine for children aged five (5) to eleven (11) is “totally experimental”;
(9) For a healthy child, the risks of contracting Covid-19 and suffering adverse effects are almost zero;
(10) N.M. should not receive the Covid-19 vaccine at this time;
(11) “Dr. S. is uniquely qualified to care for [N.M.] and his health care needs”;
(12) “If you want to see healthy kids, look at the kids of chiropractors. If you want to see kids with immune system dysfunction and development delay, look to kids of pediatricians”.
[68] The Applicant Father opposes Dr. Neuenschwander being qualified as proposed. He argues that Dr. Neuenschwander does not have a master’s or doctorate degree in any field of study. He did not complete a residency nor is he board certified in pediatrics, infectious disease, allergies, immunology, or epidemiology. He has not written articles about vaccinations. He has not been involved in research about vaccination. He does not provide vaccines to his patients.
[69] The Applicant Father further submits that Dr. Neuenschwander practices only in integrative medicine. He described integrative medicine as a classic medical approach that considers alternative causes and treatments to medical problems. He admitted that the American Medical Association, of which he is not a member, has criticized integrative medicine. The Applicant Father argues that Neuenschwander relies on the anecdotal treatment of his patients.
LAW AND LEGAL PRINCIPLES
Expert Evidence
[70] Opinion evidence is presumptively inadmissible. The party seeking to introduce it bears the onus of establishing its admissibility on a balance of probabilities. [1] The test for the admissibility of expert opinion evidence was enunciated by the Supreme Court of Canada in R. v. Mohan [2] and further refined in White Burgess Langille Inman v. Abbott and Haliburton Co. [3].
[71] Justice Penny Jones urged in The Children’s Aid Society, Region of Halton v. J.B. and D.T. [4]:
Given the real risk that a miscarriage of justice will arise from the too ready admission of unreliable expert opinion evidence into the trial record for consideration by the trier of fact (examples which are documented in the Goudge and Motherisk reports), trial judges, as gatekeepers, have been directed to actively scrutinize the credentials of the experts and the nature of the opinion evidence sought to be introduced at the front end by way of a voir dire. The purpose of doing so is clear—it is to weed out unreliable opinion evidence that would offer little benefit to the trial process given its unreliability and might distort and prejudice the fact-finding process. See R. v. Abbey, 2017 ONCA 640 [Emphasis added]
[72] Justice Kathleen Baker in Ogwadeni:deo Six Nations Child Welfare v. K.L.H. [5], succinctly summarized the two-stage process for the admission of expert evidence as follows:
(18) Expert evidence is admissible when it meets the test set out in the following two stage process:
First, the evidence must meet the threshold requirements of admissibility. Accordingly:
a) The evidence must be logically relevant,
b) The evidence must be necessary to assist the trier of fact,
c) The evidence must not be subject to any other exclusionary rule,
d) The expert must be properly qualified, and
e) For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose.
(19) The court must then proceed to the second gatekeeping stage and weigh the benefits of admitting the evidence against the potential risks considering such factors as:
a. Legal relevance
b. Necessity
c. Reliability
d. Absence of bias
[73] Where the Court is considering evidence from a proposed expert witness whose expertise is in novel science, “special scrutiny” of that science is required. The Court must determine whether the proposed evidence meets a basic threshold of reliability to be sufficiently probative such that one can conclude that it is necessary. [6] In so doing, the Court must consider:
(a) whether the theory or technique can be and has been tested;
(b) whether the theory or technique has been subjected to peer review and publication;
(c) the known or potential rate of error or the existence of standards; and
(d) whether the theory or technique used has been generally accepted.
[74] The function of expert witnesses is to provide the trier of fact with expert opinion evidence that is fair, objective and non-partisan. [7] In order to exclude expert evidence due to alleged bias or partiality, the evidence must be so tainted as to be rendered it of minimal or no assistance. [8] An expert witness that has adopted the role of advocate for a party is not impartial. [9]
[75] The Court should clearly define the subject area of a witness’ expertise and vigorously confine the witness’s testimony to it. [10]
Decision Making Responsibility
[76] Section 18 (1) of the Children’s Law Reform Act defines decision-making responsibility as:
responsibility for making significant decisions about a child’s well-being, including with respect to
(a) health,
(b) education;
(c) culture, language, religion, and spirituality; and
(d) significant extracurricular activities. [11]
[77] Section 28 (1) (a) (i) of the CLRA permits a court to grant decision making responsibly for a child to one or more persons. It may determine any aspect of incidents of decision-making responsibility and may make additional orders as the Court considers necessary and proper in the circumstances.
[78] Section 20 (1) – (2) of the CLRA, makes clear that unless otherwise provided, a child’s parents are equally entitled to decision-making responsibility with respect to that. The parent who is granted decision-making responsibility must exercise those rights and responsibilities in the best interests of the child.
[79] Section 24 (1) of the CLRA provides that in making a decision the Court shall only take into account the best interests of the child. Relevant factors are set out in section 24 (2)-(7). No one factor in section 24(2) has greater weight than the other. [12]
[80] Factors related to the circumstances of the child, as set out in section 24(3), include:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(d) the history of care of the child;
(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;
(j) any family violence and its impact on, among other things,
(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child,
(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child.
[81] The list of best interests considerations in the CLRA are not exhaustive. Rather, the Court takes a holistic look at the child and his or her circumstances. [13] The Supreme Court of Canada in Young v. Young and Gordon v. Goertz held that a child’s best interests must be ascertained from the perspective of the child rather than the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. [14] Other considerations include:
(1) the extent to which the person displaying objectionable conduct has the ability and the motivation to alter the behaviour; and
(2) whether the parent is acting responsibly, reasonably, and in a child-focused fashion in an assessment of what is in the child’s best interests. [15]
[82] The best interests of the child is not simply the right to be free of demonstrable harm. It is the positive right to the best possible arrangements in the circumstances of the parties. [16]
Recent Decisions Regarding Vaccination as Incident of Decision Making
[83] The parties filed several recent decisions on the issue of vaccination. In written submissions they each pointed out factual similarity in decisions that support their respective positions and distinguished those that did not. They both filed additional cases as they were released after the conclusion of the trial for the Court’s consideration.
[84] In most of the decisions, the Courts discussed and grappled with:
(1) whether to taking judicial notice of the safety and efficacy of vaccines, including the Covid-19 vaccine;
(2) the sufficiency of evidence, particularly at the interim stage where parties relied on affidavits with attachments of internet printouts from various sources; and
(3) the lack of expert evidence regarding the health of the children before the Court.
[85] In this context, judicial notice involves the acceptance of an adjudicative fact without requiring proof. A court may take judicial notice where the facts are so notorious as not be reasonably disputable and can be immediately and accurately confirmed by readily accessible sources. [17]
ANALYSIS AND CONCLUSION
VOIR DIRE
Applicant Father’s Proposed Expert Witness
[86] The Respondent Mother did not object to Dr. Sondheimer, and Dr. Robinson being qualified as proffered. Having heard their evidence and reviewed their reports, CVs, and Acknowledgment of Expert Duty Forms, they will be qualified as agreed.
[87] I am satisfied that through education, training, professional experience and activities, teaching, and writing, Dr. Sondheimer and Dr. Robinson have acquired special knowledge with respect to the matters about which they are asked to testify. Moreover, they have both previously been qualified as experts to give opinion evidence in the proposed areas.
Dr. Neal Sondheimer
[88] I find that Dr. Sondheimer’s receipt of a fee to prepare his report does not disqualify him from giving opinion evidence, as suggested by the Respondent Mother. Dr. Sondheimer testified that he charged $650.00 ($200.00 per hour) because he is required by his employer to charge an amount that is at least equivalent to his salary.
[89] The Respondent Mother’s characterization of Dr. Sondheimer’s work on clinical trials is misleading. Dr. Sondheimer’s evidence was that he is involved with clinical trials for pharmaceutical companies (including Moderna) to develop novel therapies, that are unrelated to vaccines, as part of his job. The company pays the Hospital for Sick Children to fund the research. Dr. Sondheimer is not paid directly. He testified that while bonuses being paid was theoretically possible, he had not received any and no such provisions are in his contract. I accept Dr. Sondheimer’s evidence that his work with clinical trials sponsored by pharmaceutical companies, which is unrelated to vaccines, does not put him in a conflict of interest.
[90] Dr. Sondheimer’s evidence is relevant to the Respondent Mother’s concern about the impact of the child’s genetics on vaccination. The evidence is necessary to help the Court understand the impact of the genetic variation on vaccination.
[91] His testimony was confined to the subject area in which he specializes. I find Dr. Sondheimer’s evidence was fair, objective and nonpartisan. There is no exclusionary rule that applies to Dr. Sondheimer’s evidence.
[92] Accordingly, I qualify Dr. Sondheimer as an expert in genetics, the role of 5, 10 Methaylenetetrahydrofolate reducetase (“MTHFR”) in human health, and the effect of vaccinations on people, including children, with a MTHFR variation.
Dr. Joan Robinson
[93] The Respondent Mother suggested that Dr. Robinson is biased because she advises governments. I find that Dr. Robinson advising governments, given her experience and expertise, does not diminish her objectivity or impartiality. She was fair, objective and nonpartisan. Her evidence was limited to the subject areas in which she specializes.
[94] Dr. Robinson’s evidence is relevant, given the Respondent Mother’s position that vaccinations are unsafe generally and for N.M. specifically. The evidence is necessary to help the Court understand the issue of pediatric immunization. There is no exclusionary rule that applies to Dr. Robinson’s evidence. I therefore qualify Dr. Robinson as an expert in pediatric infectious disease and immunization.
The Respondent Mother’s Proposed Expert Witnesses
Dr. Richard Moskowitz
[95] I am unable to qualify Dr. Moskowitz as an expert in the areas of family medicine, risk assessment for vaccinations and the study of vaccination. The evidence does not establish that Dr. Moskowitz has acquired special knowledge through study or experience with respect to matters about which he seeks to provide opinion evidence. Specifically:
(1) he is not trained in paediatric medicine, vaccination, immunology or infectious disease;
(2) he is not board certified in any area of medicine;
(3) his report is based on anecdotes;
(4) his practice was entirely homeopathic; and
(5) his practice did not specialize in children.
[96] Dr. Moskowitz acknowledged during cross examination that his views are not mainstream. The areas of expertise described as the study of vaccination and vaccine injury are novel and require special scrutiny.
[97] There is no evidence of the criteria used to establish that Dr. Moskowitz is an expert in the study of vaccinations. Similarly, there is no evidence about how vaccine injury is defined, how it is diagnosed and how it is treated. Moreover, there is no evidence outlining what training or education qualifies Dr. Moskowitz to diagnose and treat vaccine injury.
[98] Dr. Moskowitz’s evidence raises the following concerns:
(1) the treatment of vaccine injury has not been tested;
(2) there is no evidence that the treatment of vaccine injury can be tested;
(3) the treatment of vaccine injury has not been subjected to peer review or publication;
(4) there is no evidence about the known or potential rate of error in the diagnosis and treatment of vaccine injury;
(5) there are no standards related to the treatment of vaccine injury; and
(6) the treatment of vaccine injury has not been generally accepted.
[99] Accordingly, Dr. Moskowitz’s evidence does not meet the threshold reliability. As such, it cannot be relevant nor necessary.
[100] I find that Dr. Moskowitz’s evidence is not objective, fair and non-partisan. He admitted in cross examination to being biased in favour of the Respondent Mother.
Dr. James Neuenschwander
[101] I find that the Respondent Mother has not established that Dr. Neuenschwander should be qualified as an expert in emergency medicine, integrative medicine, risk assessment for vaccinations, and the treatment of adverse reactions to vaccination. Dr. Neuenschwander has not acquired special knowledge through study or experience in these areas. Specifically:
(1) he does not have training in pediatric medicine, infectious diseases, vaccinations or genetics;
(2) he is not board certified in any field;
(3) he has not conducted research in these areas;
(4) he has not written papers or taught in these areas;
(5) he has not written papers or conducted studies on the risks of vaccines;
(6) he has not conducted any research or written any papers on vaccine injury;
(7) his reports are based on anecdotes seen in his practice;
(8) his practice does not specialize in children;
(9) he no longer practices emergency medicine; and
(10) the America Medical Association has criticized integrative practice.
[102] Dr. Neuenschwander described the methodology he employs when conducting a risk assessment to determine non responders and over responder to vaccines. Given that there is no research to support these theories and methodology, they require special scrutiny. The following concerns arise:
(1) the theory of vaccine injury and the risk assessment methodology used have not been tested and there is no evidence as to whether they can be tested;
(2) the theory of vaccine injury and the risk assessment methodology used have not been subjected to peer review or publication;
(3) there is no evidence regarding the known or potential rate of error associated with the theory of vaccine injury and the risk assessment methodology used;
(4) there are no standards with respect to the theory of vaccine injury and the risk assessment methodology used; and
(5) the theory of vaccine injury and the risk assessment methodology used are not generally accepted.
[103] Accordingly, I find that Dr. Neuenschwander’s evidence does not meet the threshold reliability. As such, it cannot be relevant nor necessary.
[104] I also find that Dr. Neuenschwander took on the role of advocate for the Respondent Mother. The clearest example is when he concluded that the Respondent Mother is “uniquely qualified to care for the [N.M.]’s and his health needs”.
Dr. Christopher Shaw
[105] I find that the Respondent Mother has not established that Dr. Shaw is qualified to give expert opinion evidence on “the effects of aluminum adjuvanted vaccines, and ultimately how that may impact [N.M.]’s risk of being vaccinated”. The evidence does not establish that Dr. Shaw has acquired special knowledge through study or experience in the proposed area. Specifically, Dr. Shaw:
(1) is not a medical doctor;
(2) is not a professor of pediatrics, infectious diseases, genetics, immunology, or epidemiology;
(3) has no practical experience or education in any area of vaccine research; and
(4) acknowledged that other doctors have called his research pseudo science.
[106] Given that Dr. Shaw’s theory is novel, it requires special scrutiny. The following concerns arise:
(1) The theory, based on testing in mice, that the amount of aluminum in some vaccines can cause autism has been peer reviewed and published and resulted in one article being retracted due to concerns about credibility;
(2) There is evidence of known or potential error as studies Dr. Shaw was involved in were discredited by the World Health Organization Global Advisory Committee on Vaccine Safety in 2011. The Committee wrote:
“The core argument made in these studies is based on ecological comparisons of aluminum content in vaccines and rates of autism spectrum disorders in several countries. In general, ecological studies cannot be used to assert a causal connection because they do not link exposure to outcome in individuals, and only make correlations of exposure and outcomes on population averages”
(3) Dr. Shaw’s theory is not generally accepted and has been referred to as pseudo science.
[107] Accordingly, I find that Dr. Shaw’s evidence does not meet the threshold reliability. As such, it cannot be relevant nor necessary.
DECISION MAKING RESPONSIBILITY
Circumstances of the Child
[108] I find that N.M. is and has always been in generally good health. The only significant issue he experienced was speech delay for which he received successful therapy. I find that N.M. does not have allergies to peanuts or tree nuts.
[109] I accept the evidence of Dr. Sondheimer, pediatrician, geneticist, and biochemical geneticist. I find that N.M. does not have the MTHFR mutation. He has a common variation which is benign and does not cause disease. It does not impact vaccination nor is it a contraindication to vaccination.
[110] I accept the evidence of Dr. Robinson, an expert in pediatric infectious disease and immunization. I find that routine childhood vaccines prevent infection from diseases with serious potential consequences. They also prevent long term morbidity and mortality. The common side effects associated with routine childhood vaccinations are mild and the most serious, such as anaphylaxis, are rare. Allergies, food sensitives and speech problems are not contraindications to vaccination. The potential benefits of routine childhood vaccinations far outweigh the risks of serious harm in Canada in 2021.
[111] Given that the Applicant Father adduced expert evidence on the safety and efficacy of routine childhood vaccines, it is not necessary to consider whether it is appropriate to take judicial notice.
[112] On the issue of the Covid-19 vaccine for children aged five (5) to eleven (11), I will not take judicial notice of its safety and efficacy. It cannot be said that the fact of its safety and efficacy is so notorious that it cannot be the subject of reasonable debate. Similarly, it cannot be said the safety and efficacy of the Covid-19 vaccines for children between the ages of five (5) and eleven (11) can be immediately confirmed by readily available sources.
[113] In so concluding, I am not finding that a Covid-19 vaccine for children between the ages of five (5) and eleven (11) is not safe. Nor I am finding that it is safe. Rather, a finding that a Covid-19 vaccine for children between the ages of five (5) and eleven (11) is either safe or unsafe requires proof.
The Best Possible Arrangement for N.M. in the Circumstances
[114] I find that the Applicant Father is the parent best able to make decisions about vaccinations for N.M. His approach, following the recommendations of N.M.’s treating physicians and seeking opinions from medical professionals trained in the relevant fields, demonstrates his ability and willingness to make vaccination decisions in the best interest of N.M. The approach is child focused and ensures decisions are made from the perspective of child, considering his specific needs and characteristics.
[115] The Respondent Mother’s argument that the Applicant Father’s position has been inconsistent and unclear, based on poor judgment and motivated by his anger towards her rather than N.M.’s best interest, is not supported by the evidence.
[116] The Respondent Mother points to examples such as vehicle safety issues, giving the child junk food and using foul language. Notwithstanding these allegations, she consented to an order granting the Applicant Father a significant amount of parenting time without restrictions. I draw the inference, therefore, that these allegations are either untrue or exaggerated.
[117] I accept the Applicant Father’s evidence that he never agreed not to vaccinate N.M. and that his position is informed by his sister’s experience. Even if he had agreed at some point, the fact that he changed his mind does not mean his decision making is erratic. It is appropriate to received information and be open to changing one’s mind if the circumstances warrant a change.
[118] I accept the Applicant Father’s evidence that he agreed to the Minutes of Settlement because he was afraid of trial. The threats made by the Respondent Mother including, “When this is all said and done, you will be financially, emotionally and mentally ruined for life” support this contention. Additionally, Justice Finlayson also had concerns about the Minutes of Settlement and declined to grant the order.
[119] The Respondent Mother submits the following about the Applicant Father, “In many cases, Courts have concluded that manipulative, selfish or spiteful parents simply cannot be entrusted with custodial authority they will likely abuse”. I disagree. The Applicant Father’s plan is sound, and the evidence does not suggest that he will abuse the authority.
[120] The evidence demonstrates that it is the Respondent Mother who has anger towards the Applicant Father. She weaponized the child by telling the Applicant Father that the child would never forgive him for upsetting her. She claimed that she did not tell the child about the parents’ disagreement but wanted the Applicant Father to believe she did, and that N.M. would never forgive his father.
[121] She also told the Applicant Father not to speak to her during the exchange because she was “currently seething with so much anger towards you”. She was furious that the Applicant Father would not agree to her position and threatened him, warning “I suggest you brace yourself for what’s coming”. She repeatedly told him that she would never forgive him.
[122] The Respondent Mother criticizes the Applicant Father because he has not spent years researching vaccinations and has not relied on her sources for information. She belittles him by saying that even if he took all the steps she identified as necessary to have informed consent on the issue of vaccinations, he would not retain and process the information.
[123] I find that the Respondent Mother overestimates her own abilities stemming from being a Chiropractor. For example, she did not take the child to routine appointments with Dr. Star because she believed she could assess him herself.
[124] The Respondent Mother has demonstrated an unwillingness or inability to accept any information that is inconsistent with her view. She declined the recommendations of the child’s two treating pediatricians. She justified that decision, in part, because she alleges that the doctors did not discuss the risks of vaccination with her. I find that both pediatricians had discussions with the Respondent Mother about the risks of vaccination including her belief that vaccines cause autism. This is supported by Dr. Cruickshank’s clinical notes and records, Dr. Star’s notes and evidence as well as the undisputed fact that Dr. Star offered a referral to specialists at the Infectious Disease Clinic at the Hospital for Sick Children so that the Respondent Mother could get more information.
[125] The Respondent Mother has received information from Dr. Blair, an allergist, Dr. Sondheimer, whom she acknowledged is an expert in genetics; Dr. Robinson, a doctor she acknowledges is an expert in pediatric infectious disease and immunization, and two (2) pediatricians. They were unequivocal that:
(1) N.M. does not have allergies;
(2) Allergies and food sensitivities are not contraindications to vaccination;
(3) N.M. does not have MFHR and, even if he did, it does not pose a risk for vaccination;
(4) N.M.’s genetics do not impair his ability to detoxify adjuvants from vaccines;
(5) Some vaccines contain aluminum adjuvants, but the amount is very small and there is no evidence that it causes harm; and
(6) Speech issues are not a contraindication for vaccination.
[126] The Respondent Mother does not accept these opinions. She prefers the following:
(1) With respect to N.M.’s allergies and the risk of vaccination, she relies on doctors who do not have training in pediatric medicine, infectious disease or immunization. Dr. Moskowitz, who in 53 years of homeopathic practice never administered a vaccine, admits his opinion are based entirely on anecdotes. Dr. Neuenschwander employs an untested methodology and a theory developed without training or education in the relevant areas.
(2) With respect to N.M.’s genetics, she relies on Piper Gibson and the DNA lab. Ms. Gibson is not a doctor and the Respondent Mother admitted that she knew Ms. Gibson would not be qualified as an expert by the Court. The DNA Company is not an accredited lab. Both provided disclaimers advising not to substitute the information received for medical advice; and
(3) With respect to how the contents of vaccines might affect N.M., the Respondent Mother relies on Dr. Shaw, who is not a medical doctor, has no training or experience in pediatrics, infectious diseases, or genetics. His research has been criticized by the World Health Organization and called pseudo science by the other doctors.
[127] I find that the Respondent Mother decided before the child was born that she would not vaccinate him. She has refused to accept information that contradicts her decision. She has sought out professionals that support her view despite lacking the requisite expertise and training. This decision was necessarily unrelated to this individual child’s needs and circumstances and therefore his best interest. The Respondent Mother’s decision making process raises serious concerns about her ability to make decisions about vaccination in accordance with N.M.’s best interest.
Orders:
The Applicant Father shall have decision making responsibility for the child N.M. on the issue of vaccinations, including the Covid-19 vaccination; and
The Applicant Father may arrange for the child N.M. to receive the vaccinations through the child’s treating pediatrician, Dr. Star. If Dr. Star is not available, the Applicant Father may make arrangement with a healthcare professional of his choosing.
Released: April 29, 2022 Signed: Justice Maria N. Sirivar
[1] R. v. Millard, 2018 ONSC 4410 [2] , [1994] 2 S.C.R. 9 [3] 2015 SCC 23, [2015] 2 S.C.R. 182 [4] 2018 ONCJ 884, at para 12 [5] 2021 ONCJ 339 at paras 18 and 19 [6] Ogwadeni:deo Six Nations Child Welfare v. K.L.H., 2021 ONCJ 339; R. v. J.-L.J., (2000) 2 S.C.R. see also R. v. K.A., (1999), 176 D.L.R. (4th) 665 (Ont. C.A.) [7] Bruff-Murphy (Litigation guardian of) v. Gunawardena, 2017 ONCA 502 [8] Carmen Alfano Family Trust v Piersanti, 2012 ONCA 297 at para 111 [9] Bruff-Murphy (Litigation guardian of) v. Gunawardena, 2017 ONCA 502 [10] Brandifferri v Wawanesa Mutual Insurance Co., 2011 ONSC 3200 [11] Children’s Law Reform Act, R.S.O, 1990, c. C.12, section 18 (CLRA) [12] Libbus v. Libbus, (2008), 62 R.F.L (6 th ) 416 (Ont. S.C.J.) and Van de Perre v. Edwards, 2001 SCC 60 [13] White v. Kozun, 2021 ONSC 41; M.A. v. M.E., 2021 ONCJ 555 [14] ; Gordon v Goertz, [1996] 2 SCR 27 [15] PCP v LCP, 2013 ONSC 2564, at para. 121 [16] Young v Young, [1993] 4 SCR 3 at 84 [17] B.L.O. v. L.J.B. 2019 ONCJ 534; A.P. v. L.K., 2019 ONSC 7256