Court File and Parties

ONTARIO COURT OF JUSTICE DATE: January 20, 2022 COURT FILE No.: Brantford F 192/21

BETWEEN:

John Rouse Applicant

— AND —

Chelsea Lee Howard Respondent

Before: Justice A.D. Hilliard Heard on: January 14, 2022 Reasons for Judgment released on: January 20, 2022

Counsel: B. Culp, counsel for the applicant L. Reeve, counsel for the respondent

Hilliard J.:

[1] This is my judgment on a motion brought by the Applicant father, Mr. Rouse, seeking sole decision-making authority for the subject child, Fiona (9), on the specific issue of vaccination against COVID-19. The Respondent mother, Ms. Howard, opposes Mr. Rouse’s request. It was conceded for the purpose of argument on the motion that the issue is urgent and counsel agreed the motion could proceed prior to the case conference.

[2] For the reasons that follow, Mr. Rouse’s motion is dismissed.

Background

[3] The parties have one child, Fiona, born […], 2012. After separation, Fiona was spending time equally in the care of her parents until August 2019, when she went to reside primarily with Mr. Rouse.

[4] Ms. Howard is a proponent of non-traditional medication. She does not believe in the need for or benefits of vaccines. Consequently, Fiona has never received any childhood vaccinations. Until now, Mr. Rouse has not insisted that Fiona be vaccinated.

[5] Fiona has attended public school unvaccinated pursuant to a Statement of Conscience or Religious Belief signed by Ms. Howard, unopposed by Mr. Rouse.

[6] According to Ms. Howard, Fiona is opposed to being vaccinated. This view is not seriously contested by Mr. Rouse. It appears on the evidence that Fiona ascribes to her mother’s views regarding traditional medicine, and vaccines in particular.

[7] A letter from the family doctor, Dr. Gorsci, is attached to Ms. Howard’s affidavit. In that letter, Dr. Gorsci confirms that Fiona advised her that she does not want to be vaccinated and when asked the reason why, Fiona indicated “It doesn’t feel right”. Dr. Gorsci’s letter confirms that Fiona’s refusal to be vaccinated “is consistent with her mother’s views on vaccines in general.” I note, however, that Dr. Gorsci’s letter does not indicate, contrary to Ms. Howard’s evidence, that Dr. Gorsci is “content” that Fiona is “refusing based on her own informed decision.” Dr. Gorsci’s letter indicates that Fiona’s views should be taken into consideration. Dr. Gorsci does not state support or opposition to Fiona’s expressed views on vaccination. The letter indicates that as Fiona “has never had any experience of vaccination in her life, I understand her position and ask you to consider this in light of her vaccine history.”

[8] Mr. Rouse does not dispute that he has never insisted, until now, that Fiona be vaccinated. His position now is that COVID-19 poses a serious risk to one of his other children residing in the home where Fiona primarily resides and therefore Fiona should be vaccinated against COVID-19 to protect both herself and her immuno-compromised sibling.

COVID-19 pandemic and Vaccination

[9] This judgment is not about the efficacy and/or safety of the COVID-19 vaccine or vaccines in general. There is no expert evidence before me to support a finding that the COVID-19 Pfizer vaccine for children of Fiona’s age is not safe and effective. The Chief Medical Officer of Health for Canada, Dr. Theresa Tam, and the Chief Medical Officer of Health for Ontario, Dr. Kiernan Moore, have both indicated that the medical evidence supports their position that the vaccine is safe and effective and that everyone who is eligible to receive a vaccine should do so.

[10] There is no medical evidence before me indicating that Fiona either should or should not be vaccinated against COVID-19 for medical reasons. Dr. Gorsci, the family doctor, takes a neutral position on Fiona being vaccinated after a discussion with Fiona to ascertain whether she would be consenting to receive the vaccine.

[11] The fact that the vaccine has not been mandated for children of Fiona’s age does not support a conclusion that Fiona should therefore not be vaccinated. This motion is not about whether Fiona will be precluded from being able to attend school or participate in extra-curricular activities because she is not vaccinated against COVID-19.

[12] It is also important to note that this is not a situation where Ms. Howard is vaccine hesitant in relation to the COVID-19 vaccine only. Ms. Howard is against all vaccinations and has been throughout Fiona’s life. Although Ms. Howard is of the view the COVID-19 pandemic is “sensationalized by the media”, the validity of her opinion is irrelevant to the issue on this motion.

[13] The caselaw that has developed since March 2020 on issues relating to COVID-19, confirms that I am able to take judicial notice of the existence of the COVID-19 global pandemic and the risk of serious illness that COVID-19 poses to all individuals who are infected with the virus. I accept that the immuno-compromised child residing in Mr. Rouse’s home is at greater risk of serious illness or death should that child be exposed to COVID-19. However, that in and of itself is not determinative of the issue before me.

Decision-making on an interim motion

[14] The test on an interim motion for decision-making authority is what is in the best interests of the child. The best interests tests includes a consideration of the child’s views and preferences. I must, however, also be mindful that an interim motion is conducted on the basis of affidavit evidence only and a request to change a long-standing status quo on an interim basis at an early stage of the proceeding should be approached cautiously.

[15] Mr. Rouse has provided me with the case O.M.S. v. E.J.S., 2021 SKQB 243, where the judge found that the views and preferences of the 12-year-old child not to be vaccinated should be overridden by the parent seeking to have the child vaccinated. There are distinguishing factual features of that Saskatchewan case, particularly that the subject child has Type 1 diabetes and her endocrinologist was supporting the father’s application for an order that the child be vaccinated. It is also notable that the order made was for the vaccination of the child to be in consultation with the child’s family physician and endocrinologist.

[16] I have also considered the case of Saint-Phard v Saint-Phard, [2021] O.J. No. 5341, wherein Justice Mackinnon determined that it was in the child’s best interests to receive the COVID-19 vaccine against the child’s wishes. What is distinguishable about this case, however, is that the 13-year-old subject child initially indicated that he wished to be vaccinated and only changed his mind after speaking with a doctor enlisted by the mother to support her assertion that the vaccine is experimental and potentially dangerous. Justice Mackinnon found that the child had changed his mind due to influence from the mother and the doctor. In this case, there was also evidence from the child’s primary care doctor recommending that the child be vaccinated.

[17] Although Fiona is only 9, there is evidence before me that she is, at present, opposed to receiving the COVID-19 vaccine. In A.C. v. L.L., 2021 ONSC 6530, [2021] O.J. No. 4992, Justice Charney considered section 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2 (HCCA), in his analysis as to whether the mother’s consent was even required for the children to be vaccinated. Justice Charney noted that the HCCA does not provide any minimum age for capacity to make medical treatment decisions. That finding accords with the Supreme Court of Canada’s decision in A.C. v Manitoba (Director of Child and Family Services), 2009 SCC 30, wherein Justice Abella explained the common law “mature minor” doctrine at paragraph 47:

The doctrine addresses the concern that young people should not automatically be deprived of the right to make decisions affecting their medical treatment. It provides instead that the right to make those decisions varies in accordance with the young person’s level of maturity, with the degree to which maturity is scrutinized intensifying in accordance with the severity of the potential consequences of the treatment or of its refusal.

[18] Unlike in A.C., where the children wanted to be vaccinated, and Saint-Phard where the child only expressed opposition to being vaccinated after the influence of the mother and her doctor, Fiona’s views about vaccination appear to be long-standing and in accordance with her mother’s beliefs about vaccines in general. An order granting Mr. Rouse decision-making authority would result in Mr. Rouse having the ability to override Fiona’s right to withhold her consent to vaccination which may have negative emotional and/or psychological consequences.

[19] There is no dispute that Ms. Howard has a set of beliefs regarding traditional medicine, and vaccines in particular. Until now, the parties have been raising Fiona in accordance with Ms. Howard’s views, specifically by declining to have Fiona vaccinated against any illness or disease. Although Mr. Rouse is now indicating that he is opposed to Ms. Howard’s beliefs regarding vaccines, I accept that for all of Fiona’s life, Ms. Howard has raised Fiona based on her belief that vaccines are not necessary or beneficial. On the evidence before me, I find that Mr. Rouse has, until now, acceded to Ms. Howard imparting her beliefs about non-traditional medicine and vaccine to Fiona. It is therefore not surprising that Fiona, at age 9, now holds the same beliefs as her mother regarding the necessity and benefits of vaccines.

[20] I must also consider whether Fiona’s vaccination status is sufficiently urgent to merit a change to the long-standing status quo of joint decision-making on an interim basis. Counsel’s agreement that this issue is urgent so as to justify argument on the motion prior to a case conference does not relieve me of my obligation to make a determination as to whether an interim order is appropriate at this stage of the proceedings.

[21] Mr. Rouse has not provided any evidence as to why now, some 22 months into the pandemic, the risk to his immuno-compromised daughter is any greater than it was at any other point during the pandemic. Mr. Rouse has not provided any evidence as to additional steps he has taken in order to prevent Fiona from contracting COVID-19, such as insisting that she not attend in-person schooling or prevent her from attending congregate settings.

[22] The evidence of Ms. Howard is that Mr. Rouse and his current spouse have not even appeared concerned about possible infection of their immuno-compromised daughter when either Ms. Howard or Fiona appeared to be sick. Specifically, Ms. Howard deposes that she advised Mr. Rouse’s current spouse that she had a “mild viral sinus illness” in November 2021 but was not prevented from having her regular parenting time with Fiona. In December 2021, Fiona had symptoms consistent with a cold or flu, sniffles and a stuffy nose, which are also possible symptoms of COVID-19, and Mr. Rouse’s spouse again appeared unconcerned about Fiona returning to the residence where Mr. Rouse’s immuno-compromised child lives.

[23] I accept that there are situations where there is an issue that is sufficiently urgent that an order should be made on a temporary basis permitting one parent to make decisions for a child. However, on the evidence before me on this motion, I am not satisfied that there is sufficient urgency to support a conclusion that an order for decision-making should be made on an interim basis.

Conclusion

[24] I find that on the evidence before me on this motion, it is not in Fiona’s best interests at present to order that Mr. Rouse have sole decision-making authority over Fiona for the purpose of compelling Fiona to be vaccinated against COVID-19.

[25] I would note, however, that is it highly likely vaccinations for Fiona will ultimately be part of the decision to be made by the trial judge in this application. Mr. Rouse and Ms. Howard are not in agreement on the issue of vaccination. They will not be able to decide jointly about medical treatment for Fiona, such as vaccines, given that they are of opposite views on the issue. Given the conflicting positions of the parties as to whether Fiona’s views on vaccines in particular are formed independently or influenced by Ms. Howard, I find that an order requesting the Office of the Children’s Lawyer to prepare a s. 112 report is appropriate. Such an order is also appropriate given that Ms. Howard is seeking to have an increase in her parenting time with Fiona.

[26] Given that decision-making will be at issue at trial, specifically around the decision as to whether Fiona should be vaccinated, I am of the view that the costs of this motion should be reserved to the trial judge.

Order

1. The Applicant’s motion is hereby dismissed.
2. Order to go requesting the involvement of the OCL to prepare a s. 112 report regarding the child, Fiona.
3. Costs of the motion are reserved to the trial judge.

Released: January 20, 2022 Signed: Justice A.D. Hilliard