ONTARIO COURT OF JUSTICE

CITATION: B.C.J.B. v. E.-R.R.R., 2022 ONCJ 500

DATE: 2022 10 31

COURT FILE No.: Toronto DFO-15741/17-B2

BETWEEN:

B.C.J.B.

Applicant father

— AND —

E.-R.R.R.

Respondent mother

Before Justice Sheilagh O’Connell

Heard on June 6, 7, 8, and 10, 2022

Reasons for Judgment released on October 31, 2022

Zahra Taseer........................................................................ counsel for the applicant father

Mira Pilch........................................................................ counsel for the respondent mother

O’CONNELL J.:

1. Introduction:

[1] The only issue to be decided in this trial is which parent should have the responsibility for making final decisions regarding vaccinations, including the Covid-19 vaccine, for the parties’ eleven-year-old child (also known as “B.”).

[2] The father is seeking a final order that he should continue to have medical decision-making authority regarding all of the child’s vaccinations going forward, including routine vaccinations and the Covid-19 vaccines.

[3] The mother is seeking a final order returning the authority to make decisions about all vaccinations for the child going forward, including the child’s routine immunizations, other vaccines that he will be eligible for throughout his childhood, as well as the Covid-19 vaccines.

[4] In deciding this issue, the court must determine which parent is best capable of making vaccination decisions in their child’s best interests. This decision cannot be resolved without determining whether or not it is in best interests of the individual child in this case to receive regular immunizations and the Covid-19 vaccine(s).

[5] On September 28, 2020, Justice Alex Finlayson made a temporary order, following a contested motion, that the father shall have temporary decision-making authority about the child’s health, but only as it relates to deciding whether to administer Ontario’s existing publicly funded vaccinations for children.[^1]

[6] In his decision, Justice Finlayson also took judicial notice of the following adjudicative facts, in addition to other legislative facts to be addressed later:

1. Ontario’s publicly funded vaccines are safe and effective at preventing vaccine preventable diseases.

2. Their widespread use has led to severe reductions or eradication of incidents of these diseases in our society.

3. The harm to a child, flowing from contracting a vaccine preventable disease, may even include death.[^2]

[7] Justice Finlayson’s order did not include the authority to decide whether to administer a future Covid-19 vaccine for the child, nor could he take judicial notice of its safety and efficacy. The Covid vaccine did not exist at the time of his decision. He specifically directed that the authority to administer a future Covid vaccine for the child be addressed at trial if not resolved.

[8] The mother appealed Justice Finlayson’s decision. The father consented to a stay of the temporary order pending the appeal.

[9] On September 28, 2021, Justice A. A. Sanfilippo of the Superior Court of Justice dismissed the mother’s appeal, with costs payable to the father on a partial indemnity basis in the amount of $10,000.00.

[10] Following the appeal, at the time of trial before me, the child had only received two of the three rounds of the routine childhood vaccines in Ontario, in accordance with medical advice. He will be eligible to receive the third round of routine childhood vaccinations in September of 2022.

[11] The child has not received the Covid vaccine. He contracted Covid in February of 2022 and is now eligible to receive that vaccine.

[12] Shortly before the trial of this issue, the parties settled all of the other decision-making, parenting, and child support issues between them by way of comprehensive Final Minutes of Settlement. The Final Minutes include the following:

1. The mother will continue to have sole decision-making authority for the child with the exception of decision-making regarding vaccinations, which will be determined by the Court.

2. The regular parenting schedule is an equally shared schedule on a two-week rotating basis during the school year and alternating weeks during the summer, commencing in 2022.

3. Other provisions address special and religious holidays, communication, camps, access to information, travel and child support.

2. The Trial:

[13] This trial was held over four days. There were five witnesses. Both parents testified and each parent called a proposed expert witness regarding vaccines, and in particular regarding the Covid-19 vaccine(s).

[14] The only other witness was the clinical social worker who interviewed the child and prepared a Voice of the Child report on behalf of the Office of the Children’s Lawyer.

[15] Blended voir dires regarding the child’s out of court statements and the parties’ competing proposed experts were also heard in this trial.

[16] At the outset of trial, at the mother’s request, and not opposed by the father, I made a sealing order and publication ban, initializing the parties’ and the child’s names, in accordance with section 70(1) of the Children’s Law Reform Act. The sealing order and publication ban only related to prohibiting the release of any identifying information regarding the parties and the child at the mother’s request, given what she described as the sensitive nature of some of her private health information.

3. The Positions of the Parties:

The Father:

[17] The applicant father believes that it is in the child’s best interests to receive regular vaccinations, also known as immunizations, and the Covid-19 vaccination for children. He submits that the child needs to be vaccinated from vaccine preventable diseases in order to protect him now and in the future.

[18] The father submits that B. is a generally healthy child with no medical issues. There is no evidence that the child should not receive the routine vaccines that other children in Ontario ordinarily receive, as well as the Covid vaccine for children. The father submits that absent compelling evidence to the contrary, it is in B.’s best interests to be vaccinated.

[19] The father also requests that this court follow Justice Finlayson’s temporary order and take judicial notice of the safety and efficacy of the routine government approved vaccinations for children. Further, the father also asks this court to take judicial notice of the safety and efficacy of the Covid vaccine for children.

The Mother:

[20] It is the mother’s position that the evidence in this case including the particular circumstances of this child, support the conclusion that the mother is the best parent to make the decision about the child’s vaccines going forward, including the Covid vaccine.

[21] The mother’s position not to vaccinate the child is based on her own personal and family medical history, and experience with vaccines as well as her research and consultation about vaccines with others in the field. She asserts that many parents have decided not to vaccinate their children in Ontario, and that this is not an unreasonable decision.

[22] The mother submits that until Justice Finlayson’s September 8, 2020 Order, she has always had sole decision-making responsibility over all decisions regarding the child’s health, education and religion and that she continues to do so under the recently signed Final Minutes of Settlement, except on the issue of vaccines.

[23] According to the mother, she has always demonstrated sound and good judgment regarding the child’s medical care and has provided excellent medical care for the child since his birth. She is a thoughtful person who has always made responsible decisions for the child.

[24] The mother submits that the court should not remove decision-making about vaccines, particularly the Covid vaccine, from a parent who has always made responsible decisions about a child’s health simply because the father has attempted to paint the mother as “disturbed”, or “out of the mainstream” and unreasonable.

[25] Finally, the mother submits that the child’s independent views as relayed to the clinician in the Voice of the Child Report in November of 2020 support her position that the child does not want to be vaccinated, an important factor for the court’s consideration in reaching a decision.

[26] Regarding the issue of judicial notice, it is the mother’s position that the decision of Justice Finlayson in this case was a temporary one only and thus, even though he took judicial notice of the safety and efficacy of routine vaccinations for children, it is still a live issue for this court to determine on a final basis. She argues that the court should not take judicial notice of any childhood vaccinations.

4. Summary of the Relevant Evidence:

[27] The parties had a brief relationship. They never lived together or married. They met in 2009 and were dating sporadically when the mother became unexpectedly pregnant. B. is their only child. He was born in 2010. The parties did not continue an intimate relationship following the mother’s pregnancy.

[28] The father states that he has wanted a relationship with the child since the day he was born and that it has been a constant struggle due to the mother’s resistance. The mother states that the father showed very little interest in their child initially and that he was not interested in a relationship with their son.

[29] The child remained in the mother’s primary care and custody following the child’s birth. The parties negotiated a draft agreement in 2011 in which they agreed that the mother would have sole custody (as it was then called) and the father would have mid-week Wednesday access in the evenings, to be exercised at the mother’s home, subject to review. Neither parent had counsel or independent legal advice at the time and the agreement was never signed.

[30] The parties signed a parenting agreement on April 18, 2013 when the child was approximately two and a half years old, by this time with counsel and independent legal advice. This agreement continued the mother’s sole custody and provided that the father would continue to have regular access every Wednesday evening, subject to review and a graduated expansion to day visits on either Saturday or Sunday of the third weekend of the month, if it was in the child’s best interests to do so.

[31] The father gave evidence that between 2013 and 2017, he made countless attempts to gain greater and more equitable access to the child and he was consistently met with resistance and unwillingness by the mother.

[32] The mother denies this and states that the father was regularly and consistently rescheduling or cancelling visits with the child and that he rebuffed any of her offers for additional parenting time.

[33] Both parents describe poor communication and a deterioration of their parenting relationship and communication during this time period.

The Parents’ Early Discussions about Vaccination:

[34] The parties disagree regarding when the father became aware that the child was not vaccinated. It is the mother’s evidence that the father was aware of the mother’s decision not to vaccinate since the child’s birth and that he did not raise any concerns with this decision until the child was significantly older.

[35] It is the father’s evidence that following the child’s birth, he understood or assumed that the child would be vaccinated and that this issue was not part of the parties’ earlier conversations, as he was focused on increasing his parenting time. He testified that he did not recall becoming aware that the child was unvaccinated until approximately 2014 or 2015, when the child was first starting school. He does not recall any earlier discussions with the mother.

[36] The mother states that the father was aware that in 2014 she had obtained a religious exemption permitting their child to attend school unvaccinated and that he raised no objections at the time. According to the mother, the father first raised this as an issue in early 2015. She provided him with information and encouraged him to do his own research. It is her evidence that the father did not appear concerned, nor did it appear to be an urgent issue for him.

[37] The father testified that he was surprised when he learned that B. was unvaccinated and that the news was unexpected. He spoke to the mother in person and in emails about the issue. He states that he did not wish to be adversarial and was hoping to have amicable discussions in trying to understand the mother’s position. He acknowledged that this issue was initially not a priority for him, as he was more focused on the expansion of his parenting time.

[38] The mother states that the next time the issue was raised by the father was in his 2017 court application. At that time, the child was six years old and in grade one.

[39] The father testified that he became increasingly concerned about the mother’s decision not to vaccinate the child. In 2017, there were three measle outbreaks in Canada. He was concerned about B. being exposed to measles as well as other diseases that can be eliminated by vaccination.

The Litigation:

[40] The father commenced this proceeding on July 19, 2017. The father states that he decided to go to court when it became clear to him that an out of court solution to the parenting and vaccine issues were not viable. According to the father, the mother’s unwillingness to communicate and support a relationship between he and their son did not lessen over time.

[41] The mother describes being blindsided by the father’s court application. Around the same time, she had been diagnosed with breast cancer, so this was a very difficult time for her. The father states that he did not know that the mother had cancer when he started the proceeding and did not find out until some time later. The mother is now in reasonably good health.

[42] It is not disputed that the first significant increase in the father’s parenting time did not happen until after the father commenced these proceedings.

[43] The father gave evidence that the mother’s perpetual delays during the litigation, the extremely incremental nature of any increases in parenting time, which the mother only agreed after a court hearing, and the mother’s frequent change of counsel causing further delay, demonstrated her continued effort to restrict his parenting time.

[44] The mother disagrees and states that the slower progression in increasing parenting time over the years was because of the father’s constant need to reschedule or cancel his parenting time for work and social commitments, but more importantly, to ensure that any increase in parenting time proceeded in an age-appropriate manner and focused on the child’s comfort level and views.

[45] By December 17, 2019, this case was proceeding to trial and placed on the trial assignment list for the June 2020 trial sittings. The vaccine issue was one of the issues listed for trial. Unfortunately, the assignment court and the June trial sittings were cancelled because of the Covid pandemic.

[46] Given this further unforeseen delay, the father sought leave to bring an urgent motion regarding the child’s immunization, which he states became more pressing as time moved on, and in particular with the start of the pandemic. The father testified that he became very concerned about the child’s unvaccinated status and any increased risks to him in contracting Covid, given that he was not immunized from any childhood disease.

[47] On July 16, 2020, Justice Manjusha Pawagi, the case management judge, scheduled a contested motion before Justice Finlayson on the issue of vaccinations. As noted earlier, Justice Finlayson heard the motion on August 28, 2020 and released his decisions on September 28, 2020 granting the father decision making authority with respect to government approved vaccines[^3]. The mother appealed the decision

[48] The mother immediately brought a motion to stay Justice Finlayson’s order pending her appeal. The father testified that he consented to the stay at the time because he felt that this was the best way to reduce time and costs and to proceed to the appeal as soon as possible. He had no idea that it would take over one year for the mother’s appeal to be argued and eventually dismissed.

The Appeal:

[49] The appeal was heard on July 13, 2021 before Justice A. A. Sanfillipo. The mother argued that Justice Finlayson made a number of legal errors and also erred in his consideration of the evidence, including in particular, his decision to take judicial notice of the safety and efficacy of government approved routine immunizations for children.

[50] On September 13, 2021 Justice Sanfillipo released a written decision[^4] dismissing the mother’s appeal on all grounds. He stated the following at paragraphs 75 and 76 of his decision:

“[75] The motion judge applied the correct legal principles in deciding to hear this motion prior to trial, and identified the correct legal test in applying a best interests analysis to determine the incident of decision-making in issue: namely, health decision-making authority regarding the child’s vaccination. The motion judge identified the correct factors in application of the best interests analysis, and applied those principles on the evidence that he admitted and weighed. The motion judge had a basis on which to admit, accept and weigh the evidence as he did. His findings were supported by the evidence and are owed deference.

[76] The motion judge applied the correct legal principles to his judicial notice of adjudicative and legislative facts, and in consideration of the affidavit evidence. He properly instructed himself on the applicable law and applied that law to the facts as found by him. In so doing, he committed no reversible error. There is no basis to overturn his conclusions.”

[51] Regarding Justice Finlayson’s decision to take judicial notice of the safety and effectiveness of Ontario’s publicly funded vaccines in preventing vaccine preventable diseases, Justice Sanfillipo found the following at paragraphs 49 to 52 of his decision:

[49] The motion judge conducted a comprehensive and thoughtful analysis of the principles pertaining to judicial notice, well-established by the Supreme Court,[29] referring to R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Williams 1998 782 (SCC), [1998] 1 S.C.R. 1128. The motion judge concluded, in my view correctly, that “scientific facts can become so well-known generally, that the court can judicially note them without the need for expert evidence”.[30]

[50] Additionally, the motion judge surveyed 13 cases[31] that have considered parental authority to make health decisions about vaccines, not to rely on any particular statement by an expert in any particular case, but rather because there may be precedential value where certain facts have been judicially noted by other courts.[32] In all but one of the surveyed cases, the Court granted authority to make health decisions regarding vaccination to the parent who supported the child’s vaccination. The motion judge concluded that “the case law, read as a whole, reflects the reality there is no debate in the medical community about the facts about which I am prepared to take judicial notice”.[33]

[51] A decision to take judicial notice is discretionary: R. v. Zundel (1987), 1987 121 (ON CA), 35 D.L.R. (4th) 338 (Ont. C.A.), at p. 392, as applied in R. v. Zundel (1990), 1990 11025 (ON CA), 53 C.C.C. (3d) 161, at pp. 167-68: “The Judges, however, have a wide discretion as to matters of which they will take judicial notice and may notice matters which they cannot be required to notice” (emphasis in original).

[52] I see no error by the motion judge in taking judicial notice of the adjudicative facts and legislative facts set out earlier. I see no error in law, in application of the correct legal principles, or in the motion judge’s exercise of discretion. The motion judge had an evidentiary basis, grounded in case law, on which to judicially note these facts, and I will not interfere with his determination.”

Events following the Dismissal of the Mother’s Appeal:

[52] The father gave evidence that he immediately began searching for a pediatrician to vaccinate the child following the dismissal of the mother’s appeal. Given B.’s age, he would need to follow the “catch-up” schedule set out in the provincial health’s guidelines for older children to receive publicly approved vaccinations.

[53] The father first reached out to B.’s family doctor, Dr. De Souza, who did not wish to vaccinate the child pursuant to the court order. Although surprisingly neither party called Dr. De Souza as a witness at trial, nor was her practitioner’s report adduced, it is not disputed that she is aware of the mother’s position on vaccines. The mother testified that Dr. De Souza understands her position even though she does not support it. Dr. De Souza referred the father to another pediatrician to vaccinate the child.

[54] The father met the pediatrician referred by Dr. De Souza. He described not feeling comfortable with this pediatrician’s approach. He felt that it was a “hurried environment” which was not conducive to comfortably asking questions, either by him or the child.

[55] The father testified that he consulted with Toronto Public Health, Kids’ Care and Hospital for Sick Children and ultimately found Dr. Hirotaka Yamashiro, a Toronto pediatrician that he discovered through reading an article about vaccines in the Toronto Star newspaper. Dr. Yamashiro agreed to administer the child’s vaccinations.

[56] The mother opposed the father’s request to remove the child from school to attend the first round of vaccination appointments. On November 22, 2021, the father brought an urgent motion seeking an order permitting him to remove the child from school for vaccination appointments, as well as other parenting orders relating to holidays.

[57] On December 1, 2021, Justice Pawagi released a written endorsement regarding the father’s motion. She made a number of temporary orders regarding the holiday parenting time. Justice Pawagi also granted the father permission to remove the child from school for vaccination-related appointments. In her reasons for so doing, she states the following, at paragraphs 20 to 24 of the Endorsement:

“20. The Applicant [father] seeks permission to remove the child from school for a vaccination related appointment scheduled for December 7, 2021 at 12 p.m. The Respondent [mother] opposes this request and asks that the Applicant only make appointments for the child outside of school hours.

21. The Applicant obtained a court ruling permitting him to arrange vaccines for the child (not including the Covid vaccine). This order was upheld on appeal.

22. I find it unreasonable of the Respondent to require the Applicant to ask for a further court order merely to give effect to a previous order.

23. While it would be preferable that the child not miss school wherever possible, the Applicant also has to take into account his work commitments, the doctor’s schedule and the importance of having the vaccinations completed in a timely manner.

24. I find it would be in the child’s best interests not to impose any restrictions on the Applicant’s ability to have the child fully vaccinated.”

[58] Justice Pawagi further granted the father his legal costs in the amount of $2,000.00, finding him to be the successful party overall on the motion.

[59] On December 7, 2021, approximately ten weeks after the mother’s appeal was dismissed, and following Justice Pawagi’s order above, the child received his first round of routine childhood immunizations pursuant to the government approved schedule for children of his age.

The Child’s Response to the First and Second Round of Regular Vaccinations:

[60] The father gave detailed evidence about the process he took in assisting the child to be immunized. He testified that he gave B. lots of time and space on his first appointment, so that the child could ask a lot of questions. He picked up B. from school, took him for lunch and reviewed some of the questions that he may have. The father testified that he wanted to give B. time to express his feelings about what was happening. After lunch, they played football.

[61] The father described B. as in good spirits on the day of the first appointment. He looked comfortable during lunch and when they reached the appointment, the child asked the medical resident who was assisting Dr. Yamashiro a number of questions.

[62] The father testified that B. asked excellent questions during the medical appointment and had a good discussion with the medical resident before being vaccinated.

[63] During the first round of immunization, B. received two injections only. The father described B. as quiet and a little nervous. He let his father hold his hand during the vaccination. The father observed that that B. did not object, he did not cry, and he seemed fine. The father testified that he was very proud of B. He described Dr. Yamashiro as having an excellent ‘bedside’ manner.

[64] Both parents testified that B. had no reaction to the first round of vaccinations, other than a sore arm, as described by the father. B. was with the father on the following weekend and the father described him as being in good spirits. The mother acknowledged that she observed no reactions in the child following the first round.

[65] The second round of immunizations was scheduled for February 7th and 22nd, 2022, however, in February, the child contracted Covid-19, so these appointments were postponed to March of 2022.

[66] On March 7, 2022, B. received his second round of immunizations after recovering from Covid. The father described the second appointment for the child as “easy and straightforward”. He described the child being in “great spirits”, that he “talked a lot” and did not exhibit any anxiety or nervousness. He did not need to hold his father’s hand this time.

[67] Again, both parents described that B. did not experience any adverse reaction from the second set of immunizations. B.’s next immunization appointment is scheduled to take place in the fall of this year.

The Child’s Covid Illness in February of 2022:

[68] In February of 2022, the child tested positive for Covid-19 following a Family Day Weekend with the father and members of his family. There were ten people in total, pursuant to government regulations at the time. The father received an email the next week that his 3-year-old niece was experiencing symptoms and both the niece and B. tested positive shortly thereafter.

[69] The father described B. as becoming extremely ill with Covid. He initially exhibited symptoms of very low energy and a headache, however, he then became very sick, with a severe headache, chills, extreme fatigue and a fever. He had no appetite and had great difficulty sleeping.

[70] At one point, the child’s fever reached 103 F. The father consulted the Ontario government’s Telehealth and his own father, who is a family physician. (The child’s family doctor, Dr. De Souza, was on leave at the time.) Based on the advice he received, he kept the child at home and carefully monitored his temperature, which eventually went down.

[71] The father testified that he did his best to keep the mother apprised and provided her with regular updates. They spoke on the phone a number of times during this week.

[72] During this time, neither the father nor his partner contracted Covid. They remained masked and quarantined in the house with the child. The child eventually went home to his mother after approximately five days and then continued to recover with his mother before he eventually went back to school.

[73] The father described the child having very low energy and fatigue for at least three weeks after he contracted Covid. The father testified that he had never seen the child so sick. The father became emotional when describing the child’s symptoms. The father expressed his frustration that the severity of the child’s illness could have been entirely prevented if the mother had permitted the child to receive the Covid vaccine.

[74] The mother acknowledges that the child contracted Covid in February of 2022 while in his father’s care and also expressed frustration that the father chose to attend a family gathering at the height of the pandemic.

[75] The mother disagrees with the father that the child was very ill. The mother testified that she spoke to the child over the telephone on the day that he started to experience symptoms at his father’s home. She described him as sounding fatigued, but that he seemed “okay”. Nothing in the emails that she received from the father was alarming.

[76] When B. returned to her home on the following Saturday, the mother described him to be in good spirits and that he seemed great. She did not observe any lingering Covid symptoms.

The Mother’s Evidence regarding her Decision not to Vaccinate the Child:

[77] The mother testified that she made the decision not to vaccinate the child before his birth, primarily based on her own personal and family medical history and experience.

[78] The mother gave evidence that she was vaccinated as a child and experienced severe reactions. She has also had many adverse reactions to prescribed medications as an adult, including medications that were part of her cancer screening and treatment.

[79] The mother also described her family medical history as including a history of early deaths due to various cancers, autoimmune diseases, and pharmacogenomic sensitivities. She also described her own “detected genetic mutations”, and what she believes is “the potential genetic predisposition” of the child.

[80] It is the mother’s evidence that she is aware of a “genetic mutation” in her family history linked to various cancers and an inability to rid the body of toxins. She testified that she herself is currently awaiting allergy testing related to possible elements in vaccines and other medications at St. Michael’s Hospital.

[81] As a result of her own experience and family history, the mother described conducting “careful, science-based research” on the safety and efficacy of vaccines and their listed unavoidable potential risks, contraindications, and potential adverse events as well as the effects of adjuvants and other listed ingredients. She states that she “became more and more aware of “vaccine adverse events and vaccine injury”. She is deeply concerned about the short-term and long-term impact of vaccines on the B.’s health.

[82] The mother testified that not long before she became pregnant with B., she took the first vaccine dose for Shingles because she never had Chicken pox as a child. She testified that she became very ill following the first dose and she was extremely concerned about the effects of the vaccine on the fetus after accidentally becoming pregnant with B.

[83] The mother arranged for a consultation at the Genetics Clinic at the Hospital for Sick Children to determine whether the child had any genetic predisposition to adverse vaccine reactions, as well as an immunology assessment to determine if the child had any other medical issues that may compromise his immune system.

[84] On February 13, 2020, the child was seen by Dr. Vy Kim, an immunologist at the Immunology Clinic at the Hospital for Sick Children. An extensive consultation took place. The mother testified that the purpose of the appointment was to determine if there were any contraindications, including detected immunodeficiencies, to the child getting vaccinated, based on her own personal experience and family history.

[85] The mother testified that the child was aware of the appointment and understood that its purpose was to determine whether it would be safe for him to be vaccinated. He was also going discuss the issue of vaccination with the immunologist.

[86] The mother testified that at the time, the child was very aware of the mother’s family and personal history with vaccination and her cancer diagnosis. B. was also aware of his parents’ differing views on vaccines. According to the mother, B. “obviously” knew that she had concerns, which were discussed with Dr. Kim in B.’s presence.

[87] The mother testified that initially, the father tried to obstruct this assessment, and he then showed up at the consultation, after he had been advised “countless times” to find another time to seek information from Dr. Kim. It is her evidence that this greatly upset the child and that the clinic staff asked the father to leave the building. The father denies this and states that he wanted to participate in the assessment.

[88] Dr. Kim’s Assessment Report dated August 19, 2020 was included in the father’s Exhibit Brief and he attempted to tender it at trial, however, the mother objected because Dr. Kim had not been called to testify or be cross-examined.

[89] Even though this appeared to be a practitioner’s report under section 52 of the Evidence Act[^5], and not an expert report, father’s counsel consented to excluding the report from the evidence in this trial. However, it is not disputed by either parent that there is no evidence of any medical contraindications to the child getting vaccinated.

[90] The mother acknowledged that the child is healthy. She agreed in cross-examination that based on her discussion with Dr. De Souza, it was her understanding that Dr. De Souza’s position is that there was no reason why the child should not be vaccinated.

[91] However, it was the mother’s view that this was “speculative” and that it is not known at this time whether or not the child has the same genetic predisposition as she does to adverse or severe reactions.

[92] The mother gave evidence that the child has proven to have great health throughout his eleven years because she had dedicated herself to ensuring that his health is her top priority, to ensure better health outcome than that of herself and other family members. She continues to stand by her decision not to vaccinate their son, given how healthy he has been. The child has never contracted any of the list of communicable diseases that have approved childhood vaccines.

[93] When asked if she agreed that the child has had no reaction to the vaccines he received so far, pursuant to Justice Finlayson’s Temporary Order, the mother testified that she is “unaware of any adverse reaction at this point”.

[94] The mother gave evidence that her decision to not vaccinate the child is also because this conflicts with her sincerely held convictions, based on her religious beliefs and freedom of conscience. The mother signed a ‘Statement of Conscience or Religious Belief Affidavit’ under the Immunizations of School Pupil’s Act in 2014, which was provided to the appropriate government authority, so that her son could attend school.

The Mother’s Evidence Regarding the Covid Vaccine in Particular:

[95] The mother believes that the Covid-19 global pandemic is real and acknowledges the seriousness of the pandemic. She testified that she and the child followed all public health and government guidelines regarding Covid as each phase unfolded. The spent five months in her condo, leaving only for short walks for outdoor time and to run small errands. They had a small “bubble” and were very careful.

[96] The mother herself has not been vaccinated for Covid-19 and cites her personal history of adverse vaccine reaction and vaccine injury, in addition to her more specific concerns regarding the Covid vaccine itself, based on her own research.

[97] The mother is very concerned about the risk of the Covid vaccine for the child, as summarized in reasons below, in addition to her other general concerns about vaccines:

a. The Covid-19 vaccine does not prevent a person from contracting Covid;

b. There are well-documented adverse side effects including myocarditis, particularly with young men and boys;

c. This is a new vaccine and there are no long-term studies available to make an informed decision;

d. Children are being infected in greater numbers with Covid and are at low risk. If they become sick, the illness is mild;

e. The speed, change and evolving nature of the roll-out of the vaccine, and the changing nature of the information received is very concerning;

f. The child has expressed to her a number of times that he does not want the vaccine.

[98] The mother was very critical of the father for not following Covid-19 safety protocols. The father denies this. He testified that he adhered to all Covid government protocols. The mother states that the child was very upset and fearful about the difference in his two parents’ households and about the risks to contracting the virus in his father’s household and activities. .

[99] The mother also testified that the father does not make good medical decisions. It is her evidence that the father has repeatedly made medical decisions that are not in their son’s best interests. She gave the following as examples:

a. The father’s attempt to obstruct the child’s appointment with Dr. Kim for an assessment of possible immunodeficiency contraindicative to vaccinations;

b. The father feeds their son corn and corn-related products despite the child’s gastro-sensitive reaction to corn;

c. The father took his son to his family cottage rather than a hospital when he was ill and vomiting;

d. The father transferred and only partially filled their son’s prescription to a pharmacy close to the family cottage without informing the mother;

e. The father has given their son medication without informing her.

The Child:

[100] B. is 11 years old. The court heard evidence that B. is an intelligent, thoughtful, and articulate child. He is friendly and appears to have numerous school friends and interests, based on both parents’ testimony and the evidence of the OCL clinical investigator.

[101] B. loves both parents and is close to both parents. He has a very close relationship to his mother, as he was primarily in her care until the shared parenting schedule was agreed upon by both parents in the spring of this year. Both parents describe B. as a healthy child.

[102] It is not disputed that there is no evidence that B. has any health issues or immunodeficiency that could prevent or adversely affect his ability to receive vaccinations.

[103] Both parents testified that B. had no known adverse reactions to the first two rounds of regular immunizations that he received in December of 2021 and March of 2022.

The Voice of the Child Report, dated November 19, 2020:

[104] On September 8, 2020, Justice Finlayson asked the Office of the Children’s Lawyer to conduct a Voice of the Child Report on the following issues: the parenting schedule, school and daycare issues.

[105] Ms Eva Casino was assigned as clinical investigator on November 2, 2020 and she completed her report on November 19, 2020. The mother sought to tender the report as evidence of the child’s views and preferences, specifically on the issue of vaccines. The father initially objected to the child’s statements to the clinical investigator being adduced at trial on the basis that the child had been coached by the mother. However, following Ms Casino’s evidence, he withdrew his objection.

[106] Ms Casino has been a clinical social work agent for the Office of the Children’s Lawyer for approximately 20 years. She conducts what are known as ‘section 112’ investigations and reports (full investigations involving the parties, the child, and all relevant third-party collaterals regarding the parenting issues) and ‘Voice of the Child’ reports, as in the case here, in which only the child’s views and preferences are reported on specific issues. No other contextual information is gathered, and the clinical investigator does not make recommendations about the parenting schedule or other issues.

[107] Ms Casino interviewed the child twice. She first interviewed the child at the mother’s home over Zoom as it was the height of the pandemic. She was satisfied that it was a private interview. B. was in his bedroom with the door closed and the mother was in another part of the house.

[108] Ms Casino interviewed B. on a second occasion while in his father’s care at a park near his father’s home. They were alone and both fully masked. B. expressed that he did not feel comfortable doing a Zoom call at this father’s home. He was concerned that his father would hear. His father’s home was smaller than his mother’s home.

[109] Ms Casino gave evidence that B. presented as comfortable speaking with her and that he actively participated in both interviews. She described him as smart, he made appropriate, good eye contact, he smiled, and added a lot to their conversation.

[110] They discussed the parenting schedule, school, and day care issues, as requested by Justice Finlayson. It was Ms Casino’s opinion that B.’s views and preferences were independent and that he did not appear to be coached by either parent.

[111] B. expressed feeling more comfortable expressing his feelings with his mother than with his father. He expressed that he felt uncomfortable expressing his feelings and talking about some things with his father, such as homework and other issues. B. struggled to explain what his discomfort is and said in part it is the way his father sounds i.e., “more serious” when he doesn’t like something, and he feels that he has to “be on good behaviour and respectful” to his father and his father’s partner.

[112] B. spoke briefly about his parents’ relationship and said, “I don’t think they get along. I can tell when they’re together.”

[113] Ms Casino testified that when getting close to the end of the second interview, she asked, “is there something that I forgot to ask that is important?” She explained that this is something that she always does when interviewing children. Ms Casino testified that B. then spontaneously raised the issue of vaccines and stated the following:

“Dad says they’re good. Mom says they can be good for some people but not for others. When she was young she got vaccinated and was sick. She doesn’t want me to get sick. She says there might be something genetic.” “Dad kind of hints about a new vaccine for Covid. He said that if I take it, I could go to sports games”. B. said that he has a good immune system, and he doesn’t think he needs a vaccine.” [page 4 of the Report.]

[114] At the conclusion of her Report, Ms Casino stated the following:

“B. presented as a “thoughtful youth, with a close relationship with his mother and a wish for continued visits with his father. He has numerous friends and many interests. He indicated a desire to have his visits with his father remain as they are and a wish to continue to attend his school and daycare. Although he felt that his mother does not want him to see his father, he was clear that he wanted to continue to see his father and his extended family. While he enjoys many activities with his father, he doesn’t like the conversations with him that make him uncomfortable and wishes that his wishes as to his attire and haircuts were respected.” [page 5]

Voir Dire on the Child’s Out of Court Statements to the Parties:

[115] Both parents sought to introduce the child’s out of court statements at trial, in particular, the child’s views about vaccinations, as expressed both before and after the completion of the OCL’s Voice of the Child Report. The court heard a voir dire with respect to all of the statements sought to be adduced by each parent.

[116] The court ruled as inadmissible any statements made by the child to each parent that were being adduced for the truth of their contents. Any statements made by the child to third parties not called as witnesses were also deemed inadmissible if those statements were being offered for the truth of their contents.

[117] The court permitted the child’s views and preferences, as expressed to both parents, to be admitted under the state of mind exception to the hearsay rule. However, the issue for the court to determine, as the parties were advised during the hearing, is the weight to be attributed to those views and preferences after hearing and reviewing all of the evidence at trial.

[118] Both parents testified that the child is acutely aware that the parents have different views about routine childhood vaccines and the Covid vaccine.

[119] It is the mother’s evidence that the child has expressed a wish not to be vaccinated and that he is feeling pressured by his father to be vaccinated. She testified that B. expressed feeling “very pressured by his Dad” and “everyone around him”, such as his school friends and peers, especially during Covid, to get vaccinated.

[120] The mother testified that the child is aware of the differing views and discussions about the Covid vaccine occurring all around him. It is discussed at school and his friends are all talking about the Covid vaccine.

[121] It is the father’s evidence that the child has expressed different views to each parent and that the child’s views have evolved over time. B. has now expressed to him that he would like to be vaccinated. He understands the role of vaccinations in society, and he is now comfortable in being vaccinated. The child is aware of his mother’s distrust of vaccines, and he has expressed to his father that he does not understand why this is the case. The father testified that he finds this a difficult question to answer and discuss with him.

[122] The father testified that on December 7, 2021, when B. received his first round of vaccination for MMR (mumps, measles and rubella), B. handled the appointment extremely well. The father described B. as being calm, happy and himself before, during and after the appointment. B. asked great questions and was ready and willing to receive his next doses in the coming weeks.

[123] The father testified that B. has also expressed to him in 2022 that he wants to be vaccinated against Covid-19. B. expressed that his friends are vaccinated and that he has been fine since he received his first round of vaccinations. The father also have evidence that B. understands the role that Covid-19 vaccination plays in the current pandemic.

[124] When the mother was asked during cross-examination if the child had expressed any hesitation before or after his first or second round of regular vaccinations, the mother testified that she did not know what B. was thinking. She did not dispute that B. seemed emotionally fine after receiving the first two rounds of the routine immunizations.

[125] The mother testified that she has always ensured that the child has access to physicians, including their family doctor to ask questions and to develop his own independent views. It is the mother’s evidence that the child has had some conversation with their family doctor and has expressed his feelings that he does not wish to receive vaccines. The mother was present during these discussions.

[126] The father maintains that it is unfair and inappropriate to discuss this dispute with the child. Nevertheless, he testified that he has also explained his perspective on vaccines to the child given the mother’s history of claiming her own views as the child’s views.

The Expert Evidence:

[127] Each parent tendered a proposed expert at trial. The father’s expert witness was Dr. Abdu Sharkawy. The mother’s expert witness was Dr. Byram Bridle.

[128] At the trial management conference held before the case management judge on December 2, 2021, the parties agreed that any proposed expert evidence on the issue of vaccinations would be tendered in the form of a “will-say statement” of each expert and the expert’s C.V.[^6]

[129] A voir dire was conducted to determine the admissibility of the proposed expert evidence. The parties agreed that the evidence adduced at the voir dire would be blended with the trial proper if admitted.

The Father’s Proposed Expert: Dr. Abdu A. Sharkawy

[130] The father seeks to have Dr. Sharkawy qualified as an expert in infectious diseases, including Covid-19 and the risks associated with Covid-19, as well as the safety and efficacy of vaccinations, including the safe administration of vaccines.

[131] The mother agrees that Dr. Sharkawy is an expert in infectious diseases but does not agree that he is an expert in the safety and efficacy of vaccines, including the safe administration of vaccines, and in particular the Covid vaccine and the risks associated with Covid, particularly for children.

[132] Dr. Sharkawy is a medical doctor and a qualified specialist in Infectious Diseases and Internal Medicine in Ontario. He has been a medical doctor since 1998 and completed postgraduate, research and specialty training in Infectious Diseases from 1998 to 2004. He is an active staff physician in the Divisions of Infectious Diseases and Internal Medicine within the University Health Network (UHN), where he has been in full-time practice since January of 2007. His medical practice is at Toronto Western Hospital, where he has worked on the Covid ward and the Intensive Care Unit (ICU) attending Covid patients since the beginning of the pandemic. Although he is not a pediatrician, he is trained in pediatric infectious diseases.

[133] Dr. Sharkawy is also an Assistant Professor, Division of Infectious Diseases, Medicine at the University of Toronto. In 2003, he became a Fellow and received his Specialist Certification in Infectious Diseases from the Royal College of Physicians and Surgeons of Canada. He received his Specialist Certification in Internal Medicine from the College in 2002. He is also a Canadian board-certified Internal Medicine and Infectious Diseases consultant. He has held numerous appointments and has an extensive list of publications and presentations in the area, both nationally and internationally.

[134] Dr. Sharkawy also provides advisory services to organizations for people with compromised immune systems. He advises people who have an underlying condition or an auto immune disorder on how to safely receive the Covid vaccine.

[135] It is Dr. Sharkawy’s opinion that a healthy boy of 11 years old should receive the Covid vaccine. He further testified that the child should receive the Covid vaccine even if he contracted Covid because this would give him optimal protection. The only issue would be the timing of the vaccine following the Covid infection, to ensure that the child derives the maximum benefit from the vaccine.

[136] Dr. Sharkawy’s explained that even if there is an underlying immune disorder or medical condition, it is still better to receive the vaccine then to risk having the condition exacerbated by contracting Covid.

[137] Dr. Sharkawy gave evidence that there is a low risk of reaction to the Covid vaccine and if there is a reaction, it can be properly managed.

[138] He explained that there are two ways to acquire immunity from Covid-19: 1) by surviving infection, however there is a risk that a person may succumb to the disease or develop ‘long Covid’; and 2) by vaccine, which is a controlled way to build anti-bodies. This is the preferred method as there is minimal risk to the recipient.

[139] Dr. Sharkawy also discussed the concerns raised by some, including the mother’s proposed expert, about the MRNA technology used to create the vaccine. He explained that this technology is not new and that it has been around for many years. He testified that it has been adequately tested and evaluated to ensure the balance of benefit over risk of harm for administration to those at risk of Covid. He gave evidence that there is an abundance of experience, data and both trial and “real-world” evidence to support an overwhelming benefit and minimal risk to recipients of receiving the vaccine, including children.

[140] Dr. Sharkawy also addressed the risk of myocarditis[^7] from the Covid vaccine, another concern raised by those opposed to the vaccine or who are vaccine hesitant. He testified that it is possible to develop myocarditis from contracting Covid, however, based on his firsthand experience, myocarditis is far more severe in unvaccinated or partially vaccinated Covid patients than any risk of myocarditis in vaccinated patients.

[141] He also explained that if myocarditis occurs as a result of contracting Covid, then the possible long-term implications are quite significant. If myocarditis is contracted as a result of the vaccine, it is usually short-lived, it can be treated, and the person can recover with no long-term implications.

[142] Dr. Sharkawy dispelled the myth that the risk of Covid-19 is low with children. He explained that this view does not consider the possibility of ‘Long Covid’ and the damage that can be caused by multiple infections in children. In discussing the evolution of the virus, Dr. Sharkawy explained that the earlier variants were more lethal while later strains, specifically Omicron, are more transmissible or infectious but less lethal.

[143] Given that it is more infections, but less lethal, Omicron has infected more children with less severity. However, this leaves children exposed to multiple infections, thereby creating a situation where children could develop Long Covid or suffer from significant long-term effects from the disease. Children are also a source of transmission to others who may be susceptible to serious adverse outcomes of consequently acquiring Covid-19 infection.

[144] Dr. Sharkawy explained that Long Covid has very serious physical and mental effects and symptoms. The mental effects can lead to memory loss, significant concentration issues, depression and mood disturbances. The physical effects include ongoing serious fatigue, which significantly impacts the quality of life and the overall functionality of a person.

[145] Dr. Sharkawy testified that hospitalization and the rate of hospitalization is not an appropriate metrics of evaluating the harm of Covid. Based on his front-line experience as an infectious disease doctor and what he has observed, he testified that there can be devastating impacts when a person contracts Covid multiple times.

[146] In summary, it is Dr. Sharkawy’s opinion that it is strongly advisable to administer the Covid vaccine to children, given the compelling evidence of risk of potentially serious adverse complications of Covid-19 infection in children, including Long Covid syndromes, and death, as well as the risk of transmission to other susceptible individuals with vaccination. He stated that there was no evidence of yet unidentified future adverse outcomes for children who receive the vaccine. There is no vaccine that has been found to be safe for adults that is not safe for children.

[147] Dr. Sharkawy also pointed to the overwhelming number of reputable national and international NGOs and government agencies that have endorsed the Covid-19 vaccination of children including: the World Health Organization, the Canadian Pediatric Society, Health Canada, the American Academy of Pediatrics, the Food and Drug Administration (FDA), the Centers for Disease and Control (CDC) and the Royal College of Pediatrics and Child’s Health (UK).

The Mother’s Proposed Expert: Dr. Byram Bridle

[148] The mother seeks to have Dr. Bridle qualified as an expert in the general science of immunology, and a subset of immunology, vaccinology (the study of vaccines). She wishes to tender Dr. Bridle to provide opinion evidence on the risks and benefits of vaccines and in particular, the current Covid-19 vaccines being used for adults and children.

[149] The father acknowledges that Dr. Bridle is an expert in immunology, but he does not agree that Dr. Bridle can provide opinion evidence regarding the safety and effectiveness of the Covid-19 vaccines for adults or children, and the risks associated with these vaccines.

[150] Dr. Bridle is an Associate Professor of Viral Immunology in the Department of Pathobiology, associated with the Ontario Veterinary College at the University of Guelph. He is a teacher and a researcher. He was granted tenure in December of 2017 and promoted to Associate Professor in 2018. Prior to that time, he was an Assistant Professor at the University of Guelph from 2012 to 2017, also in the Department of Pathobiology.

[151] Dr. Bridle is trained in the disciplines of immunology and virology. He explained in his testimony that he is a vaccinologist. His areas of research are vaccine and cancer, immunotherapy, vaccination, virus, cerebral tumours, leukemia, lymphoma, auto-immune diseases. His research program has always emphasized vaccinology and the majority of his students are trained in vaccinology.

[152] Dr. Bridle obtained his Bachelor of Science and Biomedical Science in 1994, his Master of Science and Immunology in 1997, and his Ph.D. in Immunology in 2005, all degrees from the University of Guelph. Dr. Bridle then completed a post-doctoral fellowship in Viral Immunology at McMaster University in 2011, in the research areas of immunology and virology. His Ph.D. thesis is entitled, “Suppression and modulation of rat immune responses against porcine cells”.

[153] Dr. Bridle has received numerous awards in recognition of his work as a teacher, a researcher, and a peer reviewer. Since 2020, he has been a member of the Canadian Institute of Health Research College of Reviewers and recognized in 2021 by the College for his outstanding contribution to peer review. In 2015, he was awarded the Carl J. Norden Distinguished Teaching Award, the highest teaching award given by each North American Veterinary College, and in 2020, he was named Honourary class president of the Ontario Veterinary College’s Doctor of Veterinary Medicine class of 2023.

[154] He has been a principal thesis supervisor for an extensive number of both undergraduate and graduate students over the years and has published and presented widely in the area of immunology, according to his voluminous C.V. He testified that the majority of his students have been trained in vaccinology.

[155] Dr. Bridle has also written several non-peer reviewed lay articles for the public about Covid and Covid vaccination in particular, including, “Five Factors that could dictate the success or failure of the vaccine rollout”; “A year of Covid lockdown is putting kids at risk of allergies, asthma and autoimmune diseases;” and “Covid-19 Vaccines and Children: A Canadian Scientist’s Guide for Parents” a lay article published by Canadian Covid Care Alliance.

[156] Dr. Bridle also gave evidence that as a researcher, part of his role is to research vaccine development for the prevention of infectious diseases and to treat cancer in humans.

[157] Dr. Bridle testified that he is actually working on a Covid-19 vaccine himself and he has received two research grants from the provincial government in 2021 in the amount of approximately $250,000.00 to conduct pre-clinical research. This research continues to be in the early pre-clinical stage of development. He testified that currently he holds four patents for his vaccine work which allows him to maintain full control over the direction that his research takes.

Dr. Bridle’s Evidence regarding the Efficacy of the Covid Vaccine:

[158] It is Dr. Bridle’s opinion that the risks associated with the current Covid-19 vaccines, such as the Pfizer and Moderna vaccine for children, relying on mRNA technologies, far outweigh any benefits of the vaccines for adults and children, including the eleven-year-old boy in this case. In his opinion, the risks of side-effects that the Pfizer vaccine poses to children and adolescents suggests that it is not in the health interests of children and adolescents to be vaccinated.

[159] Dr. Bridle testified that a vaccine by definition is designed to confer immunity, such that a person who is vaccinated is protected from infection by the disease and can not transmit that infection to other people. He explained that immunization equals vaccination, they are interchangeable terms.

[160] Dr. Bridle testified that unlike traditional or routine childhood vaccines, which do confer immunity with a lifetime duration, the Covid-19 vaccines do not confer immunity or prevent transmission.

[161] Routine childhood vaccinations or immunizations (such as for mumps, measles, polio, etc.) use what he described as “traditional” technology, in which either a live attenuated version of the vaccine that cannot be activated, or an inactivated viral particle that cannot replicate or cause disease is used.

[162] In contrast, Dr. Bridle explained that the Pfizer and Moderna Covid vaccine approved for children and adults rely on technology that that has never been used before in humans, except in small scale clinical trials. These vaccines contain “messenger RNA” (messenger ribonucleic acid), or “mRNA” which is a tiny genetic blueprint that is encoded with a modified version of the “spike protein” from the SARS Coravirus-2 in a nanoparticle. Once injected into the body, they are intended to infuse with cells that they come into contact with, and a process ensues which activates the body’s immune system.

[163] It is Dr. Bridle’s opinion that the Covid vaccine and the mRNA technology used has potentially far greater long-term risks for children and adolescents, which in his view, are largely unknown because there has not been sufficient testing or clinical trials.

[164] Dr. Bridle testified that the mRNA technology used in Pfizer and Moderna has never before been used on such a large scale in humans. He expressed grave concerns about how quickly they were rolled out, given that they did not exist before the onset of the pandemic and were released in Canada for adults only one year later.

[165] According to Dr. Bridle, Covid vaccines were developed for safety and efficacy in less than one year, when the usual process takes four to ten years. Further, the number of people evaluated in clinical trials was too small to capture rare but dangerous side effects.

[166] Dr. Bridle gave evidence that the clinical trial conducted to justify using the Pfizer vaccination in children and adolescents was of far too short a duration to have any chance of assessing anything other than short term harm.

[167] Dr. Bridle acknowledged in cross-examination that the data does not provide proof or evidence of long-term harm, however these questions should be thoroughly studied before using Covid vaccines in children and adolescents.

[168] Dr. Bridle explained why it was his opinion that the modified spike protein developed in the current mRNA vaccines has the potential to damage the cells in the human body. It potentially could be distributed throughout the body, “thereby potentially and inadvertently inoculating many tissues with a spike protein that is possibly harmful”.

[169] It is also Dr. Bridle’s opinion that the current Pfizer and Moderna inoculations do not actually prevent disease. Further, the duration of immunity or the duration of “immune response” is, to use his words, “ridiculously short,” waning after only two months and gone by five months. This is why in less than one year, already many Canadians have received four doses and are starting on fifth doses. He compared this to traditional childhood immunizations which generally only need one and sometimes two shots to confer a lifetime immunity, with no booster shots necessary.

[170] When asked directly by the court, Dr. Bridle did not acknowledge that the Pfizer or Moderna vaccine reduced the severity of the illness experienced by individuals infected with Covid or reduced the number of deaths. He did not agree that the vaccine, even if it does not confer complete immunity, at least prevented severe illness leading to hospitalization or death. In fact, he stated that vaccinated people are at greater risk than unvaccinated people of contracting Covid.

[171] In explaining his position, Dr. Bridle testified that based on his interpretation of government data, he did not believe that the number of unvaccinated people who had died from Covid is significantly higher than the number of vaccinated people. He did not believe that Covid-19 has actually caused as many deaths as what has been reported by the Ontario Ministry of Health and Health Canada. He described these numbers as, to use his words, “highly manipulated data and the way that that it has been manipulated has not been disclosed.”

[172] It was Dr. Bridle’s opinion, according to his interpretation of current Public Health data, that fully vaccinated persons are actually being diagnosed with Covid two times as often as those who are not vaccinated or not fully vaccinated. He also gave evidence that that among those that have been hospitalized and have died, the majority have been for non Covid-19 related reasons, not as a result of Covid-19.

[173] Dr. Bridle also stated that “the risk of severe and potentially lethal Covid-19 in children and adolescents is so low that we need to be very certain that risks associated with mass vaccination are not higher.”

[174] When asked to describe the risks associated with the Covid vaccine, Dr. Bridle testified that the number one major risk with these vaccines is myocarditis, and that young males are at the greatest risk of developing myocarditis (heart inflammation). Dr. Bridle believes, based on the research that he has reviewed, that there are more signs of long-term harm than previously thought, particularly in young males.

[175] Dr. Bridle testified that the data provided by Pfizer itself indicates a risk of one in ten thousand for a young male person to develop myocarditis. This information is disclosed to people who wish to be involved in their clinical trials. However, Dr. Bridle explained that when Pfizer first started the clinical trials, they identified the risk to young males as one in twenty-eight thousand, demonstrating that as clinical testing and clinical trials are ongoing, new information regarding the risks continue to emerge. According to Dr. Bridle, the risk of myocarditis and blood clotting were not identified in the early clinical trials.

[176] Dr. Bridle acknowledged in cross-examination that vaccine-induced myocarditis is generally mild, however, he testified that molecular studies are currently showing signs of long-term harm as long as eight months. According to Dr. Bridle, the risk of myocarditis highlights a key problem with the vaccine and highlights the “many unknowns about these vaccines, especially long-term.”

[177] According to Dr. Bridle’s evidence, the Pfizer vaccine has also been associated with anaphylactic reaction in a small sub-set for individuals. Although Health Canada has indicated that there are no major safety concerns identified in the data reviewed, this data is limited as there is no information on the long-term safety and efficacy of the vaccine.

[178] It is Dr. Bridle’s view that small risks may become more significant as more people are inoculated, and as clinical trials continue.

[179] When it was put to him in cross-examination that his views are clearly not widely accepted by the broader scientific national and international community, (including many members of his own university faculty who have signed a petition against him), Dr. Bridle responded by saying that he was one of the first scientists in Canada to sound the alarm bell with respect to the Astro Zeneca vaccine. The Ontario government withdrew the Astro Zeneca vaccine for general distribution when the evidence from other countries that Canada had started to replicate showed that there was a one in fifty-five thousand chance of death.

[180] When he was asked what impact, if any, of the child in this case becoming ill with Covid had on whether the child should receive the Covid vaccine, Dr. Bridle testified that the child now has, in his words, achieved “the gold standard of immunity”. He explained that this is the natural immunity one receives from the body’s response to a pathogen.

[181] Dr. Bridle testified that natural immunity is a far broader immune response and is vastly superior to the immune response from a vaccination of any sort, and in particular for Covid-19. He explained that this is because, unlike natural immunity, which responds to multiple parts of the body, the Covid-19 vaccines currently available only target the one “spike protein” that was identified early on in the first form of the virus.

[182] According to Dr. Bryden, this explains why those vaccinated against the first form of the virus (the “Wuhan” variant as he earlier described it) fare quite poorly against the Delta and Omicron variants, which are mutations of the first form.

[183] However, Dr. Bridle also acknowledged that a person like B. who likely became affected with the first form of the virus may also become affected with new variants. Notwithstanding this, it was his opinion that the child’s infection will be much milder due to the broader natural immunity conferred on a person who has been infected with Covid-19. He did not identify any risks with multiple infections or long Covid.

[184] When asked his opinion about the Ontario and Canadian government approved, routine, non-Covid immunizations for children, Dr. Bridle testified that he has “no problem” with routine immunizations for children and supports them. He explained that these vaccinations do not use the mRNA technology.

Public Documents:

[185] The father sought to admit into evidence a number of public documents that contained information about Ontario and Canada’s public vaccine program. These included the Government of Ontario publication, Immunization 2020: Modernizing Ontario’s Publicly Funded Immunization Program (“Immunization 2020”) and Government of Canada publications, including the Canadian Immunization Guide, two further publications called “Deciding to Vaccinate” and “Vaccine Safety”, both published by the Government of Canada, and some information from the City of Toronto website called “Report Student Immunization”.

[186] The father submitted that the court should take judicial notice of the information contained in these publications, as establishing that vaccines are safe and effective, and sought to have the documents admitted at trial under the public records exception to the hearsay rule. The mother objected to admission of these government documents. The court reserved its decision to the conclusion of trial.

[187] In the motion decision in this case, Justice Finlayson took judicial notice of legislative policy reflected Ontario’s “Immunization 2020” document and the Canadian Immunization Guide. (B.C.J.B. v. E.-R. R.R., supra, pars. 191-192).

[188] Justice Finlayson summarized the contents of Ontario’s “Immunization 2020” document as follows at paragraphs 133 and 134 of his decision[^8]:

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

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

[135] Among other things, the document explains:

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

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

c. Immunization benefits not only the individual, but others in the community via “herd immunity”;

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

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

f. Similar provisions exist respecting licensed day cares;

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

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

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

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

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

l. Ontario monitors immunization safety data; and

m. Ontario uses a nationally recommended analytic framework to inform government decisions regarding publicly funded vaccines. That includes reliance on scientific evidence.” [paragraphs 133 and 134].

[189] The Canadian Immunization Guide tendered by the father is described as follows in the summary at the beginning of the Guide:

“The Canadian Immunization Guide (CIG) has been a trusted, reader-friendly summary of recommendations on immunization by the National Committee in Immunization (NACI) since 1979 when it was first published. The CIG addresses advances in vaccines and immunization practices in Canada. It is written for health care providers and public health practitioners, policy makers, program planners and the general public with knowledge and interest in immunization and vaccines.

Vaccines are the cornerstone of public health, and their use has significantly contributed to the prevention and control of infectious diseases in Canada and internationally. Immunization is not just for children; adolescents now routinely receive vaccines to protect against meningococcal disease, HPV, hepatitis B, influenza, tetanus, diphtheria, and pertussis, and there is a growing number of vaccines that are routinely recommended for adults. There are also other vaccines that are specifically recommended for specific populations, such as travellers or people with underlying medical conditions.

The risk of vaccine preventable disease transmission remains and would significantly increase if vaccination were stopped. Immunization providers and the public should be aware that, with the success of childhood immunization programs, there is a tendency to underestimate the risks of vaccine-preventable diseases and overestimate the risks of vaccines.

In Canada, immunization programming is a shared responsibility between the federal, provincial and territorial government, with provincial and territorial governments and local public health authorities undertaking the planning and delivery if immunization programming. The national scientific advisory body on immunization (NACI), has been developing recommendations for the use of vaccines since the 1960s. NACI works in parallel with the Committee to Advise on Tropical Medicine and Travel (CATMAT) that advises the Public Health Agency of Canada on travel-related health hazards including vaccine preventable diseases.”

5. The Law and Governing Principles:

A Parent’s Decision-making Responsibility:

[190] Any proceeding with respect to a child is determined solely on the basis of the best interest of the particular child before the court in accordance with the considerations set out in subsections 24 (2) to (7) of the Children’s Law Reform Act (the “Act”).

[191] A parent’s decision-making responsibility regarding their child is governed by section 18(1) of the Act, which 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.

[192] Section 28 (1) (a) (i) of the Act permits a court to grant decision making responsibility 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.

[193] Decisions about when to have a child vaccinated and what vaccines to administer are important medical decisions. The right to consent to medical treatment on behalf of a child is an incident of custody. As such, it is within this Court’s authority to deal with this issue pursuant to section 28(1)(b) of the Children’s Law Reform Act.

[194] When determining which parent should have decision-making responsibility the court shall only consider the best interests of the child, in accordance with sections 24 (1) and (2) of the Act, which are the following:

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,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

Expert Evidence:

[195] The legal test for the admissibility of expert opinion evidence is set out by the Supreme Court of Canada in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 and further clarified in White Burgess Langille Inman v. Abott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182.

[196] Opinion evidence is presumptively inadmissible. The party seeking to introduce it bears the onus of establishing its admissibility on a balance of probabilities. See R. v. Millard, 2018 ONSC 4410 at paragraph 36.

[197] Expert opinion evidence is admissible when it meets the test set out in the following two stage process:

1. First, the evidence must meet the threshold requirements of admissibility:

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, which includes the requirement that the expert be willing and able to fulfill the expert’s duty to the court to provide evidence that is:

i. Impartial,

ii. Independent, and

iii. Unbiased.

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.

2. Second, the trial judge, in a gatekeeper role, must determine that the benefits of admitting the evidence outweighs its potential risks, considering factors such as:

a. Legal relevance,

b. Necessity,

c. Reliability,

d. Absence of bias.

[198] As Justice Penny Jones stated in The Children’s Aid Society, Region of Halton v. J.B. and D.T. , 2018 ONCJ 884, at paragraphs 12 and 13 of her decision:

“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.

The danger of admitting unreliable expert opinion evidence has not been restricted only to situations where a jury is involved. Judges sitting alone on criminal cases and in civil matters have recognized the importance of keeping out unreliable opinion evidence rather than allowing it in and letting all of the frailties of the evidence go to weight and not to admissibility. See Brandiferri v. Wawanesa Mutual Insurance, et al, 2011 ONSC 3200 paragraph 31 where Lauwers, J wrote,

[31] Trial judges are expected to play a fortified gatekeeper role, and not just in criminal cases or just in cases with a jury. Judges are increasingly aware that for them too, the bell cannot be easily unrung. It is better that inadmissible evidence is simply not heard. As the Ontario Court of Appeal stated in R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330, [2009] O.R. No. 3534 at para. 76, leave to appeal dismissed [2010] S.C.C.A. No. 125: “The ‘gatekeeper’ component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence.”

[199] 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. In so doing, the Court must consider[^9]:

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.

[200] The function of expert witnesses is to provide the trier of fact with expert opinion evidence that is fair, objective and non-partisan. An expert witness that has adopted the role of advocate for a party is not impartial. See: Bruff-Murphy (Litigation guardian of) v. Gunawardena, 2017 ONCA 502

[201] The Court should clearly define the subject area of a witness’ expertise and vigorously confine the witness’s testimony to it. See: Brandifferri v Wawanesa Mutual Insurance Co., 2011 ONSC 3200.

General Principles regarding Judicial Notice:

[202] In R. v. Find, [2001] 1 S.C.R. 863, [2001] S.C.J. No. 34, 2001 SCC 32, the Supreme Court of Canada defined judicial notice as follows at paragraph 48 of the decision:

“Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Potts (1982), 1982 1751 (ON CA), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055.”

[203] The court may take judicial notice of adjudicative facts, legislative facts, or social facts. The closer a fact approaches the central issue to be determined in a case, the more a court ought to insist on strict compliance with the criteria for judicial recognition: R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 61. Conversely, the requirements for judicial notice are applied less stringently when considering whether to take judicial notice of non-adjudicative facts, such as social facts or legislative facts: Spence, at para. 63.

[204] In R. v. J.M., 2021 ONCA 150, the Ontario Court of Appeal recently summarized the principles of judicial notice as follows, at paragraphs 31 to 35 of its decision:

“[31] The basic principles regarding the substantive dimension of judicial notice can be summarized as follows:

(i) Judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) ("Paciocco"), at p. 573;

(ii) Judicial notice involves the acceptance of a fact or state of affairs without proof: R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128, [1998] S.C.J. No. 49, at para. 54; Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018) ("Sopinka") at §19.16;

(iii) Facts judicially noticed are not proved by evidence under oath; nor are they tested by cross-examination: R. v. Find, [2001] 1 S.C.R. 863, [2001] S.C.J. No. 34, 2001 SCC 32, at para. 48;

(iv) Since judicial notice dispenses with the need for proof of facts, the threshold for judicial notice is strict: Find, at para. 48; and

(v) Judicial notice applies to two kinds of facts: (a) those that are so notorious or "accepted", either generally or within a particular community, as not to be the subject of dispute among reasonable persons (R. v. Mabior, [2012] 2 S.C.R. 584, [2012] S.C.J. No. 47, 2012 SCC 47, at para. 71; Reference Re: Alberta Legislation, 1938 1 (SCC), [1938] S.C.R. 100, [1938] S.C.J. No. 2, at p. 128 S.C.R.; Sopinka, at §19.18); and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy (Quebec (Attorney General) v. A., [2013] 1 S.C.R. 61, [2013] S.C.J. No. 5, 2013 SCC 5, at para. 238; Sopinka, at §19.16). The sources may include both large bodies of scientific literature and jurisprudence: R. v. Paszczenko (2010), 103 O.R. (3d) 424, [2010] O.J. No. 3974, 2010 ONCA 615, at paras. 65-66.

[32] However, as the editors of McWilliams helpfully point out, at §26.10, the jurisprudence discloses that the issue is somewhat [page411] more nuanced as the expression "judicial notice" captures several different forms of judicial notice:

(i) Tacit or informal judicial notice, which involves the trier of fact drawing on common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial;²²

(ii) Express judicial notice, which concerns the notice of specific facts of the notorious and indisputable variety; and

(iii) Contextual judicial notice that strives, at a generalized level, to provide context, background or a frame of reference to assist the trier of a fact in making case-specific findings of fact: See, for example, Quebec (Attorney General), at para. 239; R. v. Le, [2019] S.C.J. No. 34, 2019 SCC 34, 375 C.C.C. (3d) 431, at paras. 83-88. To this category of "social framework facts" others would add "legislative facts", which do not so much involve taking notice of specific facts but concern the consideration of policy factors or facts relevant to judicial reasoning when the judge embarks upon the path of making or changing the law: Paciocco, at pp. 574 and 578. Whatever may be the breadth of proper judicial notice in this category, a court must refrain from taking judicial notice of social phenomena unless they are not the subject of reasonable dispute for the particular purpose for which they are to be used: Quebec (Attorney General), at para. 239.

[33] The current paradigm that judges must use to determine whether they may take judicial notice locates facts along a spectrum that runs from those that are central to or dispositive of an issue, at one end, to those that "merely paint the background to a specific issue:" Le, at para. 85. The closer the facts lie to the dispositive end of the spectrum, the more pressing it is to meet the two criteria of notoriety or immediate demonstrability: Le, at para. 85; R. v. Spence, [2005] 3 S.C.R. 458, [2005] S.C.J. No. 74, 2005 SCC 71, at para. 60; Paciocco, at p. 577.³³

[34] The first category of judicial notice cases -- those in which judges employ tacit judicial knowledge -- contains an internal tension. Canadian law recognizes that judges will have been [page412] shaped by, and have gained insight from, their different experiences and cannot be expected to divorce themselves from these experiences on the occasion of their appointment to the bench: R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, at para. 38. Judges who decide factual matters necessarily are conversant "with a library of facts or information acquired through experience, education, reading, etc.": McWilliams, at §26:20.10. However, this fund of general knowledge is different from reliance on personal knowledge in a particular case: Sopinka, at §19.47; McWilliams, at §26:20.10. While it may prove difficult in some cases to know where to draw the dividing line, the general view is that unless the criteria of notoriety or immediate demonstrability are present, a judge cannot take judicial notice of a fact within his or her personal knowledge, even if it has been proved before the judge in a previous case: Sopinka, at §19.46.

[35] Finally, matters of which judicial notice may be taken and those that require expert evidence are not compatible. Matters that are the proper subject of expert evidence are, by definition, neither notorious nor capable of immediate and accurate demonstration: McWilliams, at §26:10; Paciocco, at p. 579.”

[205] As noted above, it has been said that judicial notice and expert evidence are not compatible. Expert evidence is called because the expert has knowledge that goes beyond the knowledge of the ordinary person. See page 510 of Paciocco and Stuesser in “The Law of Evidence”; R. v. J.M., 2021 ONCA 150, at paragraph 35 of the decision.

[206] However, courts have noted that scientific facts can become so well-known generally, that the court can judicially note them without the need for expert evidence, and perhaps even without reference to any external sources. See Sopinka, Lederman and Bryant, “The Law of Evidence in Canada”, page 1399; see also R. v. Giffin., 1980 CarswellNS 19 at paragraphs 11 to 15; R. v. J.M., 2021 ONCA 150, at paragraph 31 (v).

[207] As Justice Finlayson pointed out in the earlier decision in this case, a proven fact from a previous case that was grounded in expert evidence may have become so notorious and indisputable as to “fall within the purview of facts that may now be judicially noticed”. While judicial notice lags behind the advance of science, its scope is “constantly enlarging”.[^10]

[208] Although the fields of expert testimony and judicial notice are generally mutually exclusive, it is frequently difficult to say where the lines should be drawn. See R. v. Savidant, 1945 CarswellPEI 10, at paragraphs 6 to 8. In this case, the court took judicial notice of the function and purpose of a radar gun without the need for expert evidence, over the objection of the defendant, given that the radar gun’s purpose and function was now widely accepted. More recently, courts have taken judicial notice of widely used digital technologies and have not required expert evidence. Judicial notice was taken of ‘Microsoft Excel’ in Kon Construction, 2015 ABCA 249 and ‘Facebook’ in Soh, 2014 NBQB 20 and Pritchard, 2016 BCSC 686.

Judicial Notice regarding Routine Childhood Immunizations (non-Covid):

[209] Although a ruling made on a temporary motion, Justice Finlayson’s earlier decision in this case contained a lengthy and thorough review of the case law regarding judicial notice of routine childhood immunizations approved in Ontario and Canada. This was also noted by the appellate court when dismissing the mother’s appeal and upholding the court’s decision.[^11]

[210] In his decision, Justice Finlayson concluded that the jurisprudence, read as a whole, reflects the reality that there is no debate in the medical community that Ontario’s publicly funded routine (non-Covid) childhood immunizations are safe and effective at preventing vaccine preventable diseases, such as measles, mumps, rubella (MMR vaccine), tetanus, diphtheria, pertussis and polio; their widespread use has led to severe reductions or eradication of these diseases in our society; and the harm to a child, flowing from contracting a vaccine preventable disease, may even include death. The court found that these adjudicative facts to be “so notorious as not to be the subject to dispute among reasonable people.” [Paragraph 188.]

[211] With respect to legislative facts, Justice Finlayson concluded the following at paragraphs 191 to 193 of his decision:

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

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

Although these facts about which I am prepared to take judicial notice are very informative, none of them are dispositive to the precise issue before the Court. Nevertheless, even on the strictest approach to judicial notice, I believe that the facts are within the purview of the Court to judicially notice.”

[212] The court was careful to note that none of these facts disposed of the issue as the court still needed to determine if vaccination was in the specific child’s best interests. To determine if a vaccine is contraindicated for a child, additional evidence is required, but the evidentiary burden to refute it will usually not be onerous: See B.C.J.B., supra, at paragraphs 129 and 190.

[213] Justice Finlayson’s reasoning has been accepted in several subsequent cases. For example, in A.P. v. L.K., 2021 ONSC 150, Justice Akbarali stated the following at paragraphs 183 and 186 of her decision:

“Justice Finlayson was asked to take judicial notice of both adjudicative facts – namely that vaccines are safe and beneficial, and of legislative facts – namely government policy as reflected in the CIG [Canadian Immunization Guide] and [Ontario’s] Immunization 2020. Justice Finlayson undertook a lengthy analysis of the principles relating to judicial notice. In particular, he noted that scientific facts can become so well-known generally that the court can judicially note them without expert evidence: at para. 155. He also noted that there may be precedential value, where a certain fact has been judicially noted by a judge in a previous matter: at para. 156….

I agree with Finlayson J.’s thorough analysis. The facts of which he determined a court may take judicial notice encompass, and go farther than, those urged by the intervener. I agree with the intervener that both the public documents exception and taking judicial notice of these facts promote access to justice and the primary objective of the Family Law Rules. This is so because these evidentiary rules allow a court to deal with questions about vaccinations without putting litigants to the time and expense of proving the safety and efficacy of vaccines in each individual case where the issue may arise, enabling the parties and the court to focus their resources on what must be the heart of the question at issue: whether it is in the best interest of the child who is the focus of the proceeding to be vaccinated.”

Judicial Notice regarding the Covid Vaccine for Children:

[214] In Inglis v. Inglis, 2022 SKCA 82, a recent decision of the Saskatchewan Court of Appeal, the Court provided an excellent summary of the wealth of jurisprudence regarding the various findings that courts have made across Canada about the application of judicial notice to the Covid vaccine for children. The Court sets out the following at paragraphs 45 to 51 of that decision:

“[45] Courts across Canada, including in Saskatchewan, have made various findings with regard to the scope of judicial notice related to the pandemic, the risk it poses to children, and the safety and efficacy of the vaccines. Several courts have taken judicial notice of the fact that it can be presumed that being vaccinated against COVID-19 is in the best interests of children, unless there is a compelling reason not to do so: Dyquiangco Jr. v Tipay, 2022 ONSC 1441 at para 24 [Tipay]; Steiner v Mazzotta, 2022 BCSC 827 at para 5 [Steiner]; Rashid v Avanesov, 2022 ONSC 3401(WL) at para 85; Davies v Todd, 2022 ONCJ 178 at para 44 [Davies]; and G.W. v C.M., 2022 BCPC 29 at para 5 [G.W.].

[46] Judicial notice has been taken of the fact that contracting COVID-19 poses many serious and significant health risks to both children and adults: OMS at para 112; Manzon v Carruthers, 2020 ONSC 6511 at para 18; Rouse v Howard, 2022 ONCJ 23 at para 13; T.K. v J.W., 2022 BCPC 16 at para 11 [T.K.]; K.K. v M.A., 2022 NBQB 30 at para 109 [K.K.]; P.R. v S.R., 2022 PESC 7 at para 54, 68 RFL (8th) 328 [P.R.]; and K.M.S. v K.B.S., 2022 SKQB 57 at paras 13 and 18 [K.M.S.].

[47] Courts have taken judicial notice of the fact that the vaccine is safe: OMS at para 113; K.M.S. at paras 13 and 18; I.S. v J.W., 2021 ONSC 1194 at paras 182–183 [I.S.]; A.B.S. v S.S., 2022 ONSC 1368 at para 4 [A.B.S.]; Warren v Charlton, 2022 ONSC 1088 at para 9, 70 RFL (8th) 388 [Warren]; Campbell v Heffern, 2021 ONSC 5870 at para 10, 68 RFL (8th) 417 [Campbell]; J.F.P. v J.A.G., 2022 BCPC 44 at para 19; Saint-Phard v Saint-Phard, 2021 ONSC 6910 at para 7, 63 RFL (8th) 92 [Saint-Phard]; L.M. v C.O., 2022 ONSC 394 at para 18; G.W. at para 5; K.K. at para 109; P.R. at para 54; and Davies at para 43.

[48] Furthermore, courts have taken judicial notice of the fact that the COVID-19 vaccine is effective: Sembaliuk v Sembaliuk, 2022 ABQB 62 at para 16; A.M. v C.D., 2022 ONSC 1516 at para 28; I.S. at paras 182-183; A.B.S. at para 4; Steiner at para 5; Campbell at para 10; Saint-Phard at para 7; K.K. at para 109; G.W. at para 5; P.R. at para 54; Tipay at para 17; and Davies at para 37. Some courts have taken judicial notice that the specific Pfizer vaccine is safe and effective for both children and adults: OMS at para 113; T.K. at para 11; Campbell at para 10; and K.M.S. at paras 13 and 18. There are reported cases in which the courts have taken judicial notice of the approval of the Pfizer vaccine by health authorities: OMS at para 113 and K.M.S. at para 18.

[49] Additionally, judicial notice has been taken of the fact that the harm to a child from contracting a vaccine-preventable illness may include death: B.C.J.B. v E.-R.R.R., 2020 ONCJ 438, at para 187, 47 RFL (8th) 165 [B.C.J.B.], aff’d 2021 ONSC 6294; Moore v Moore, 2022 ONSC 2378 at para 26; I.S. at paras 182–183; and P.R. at para 54. At least one court has taken judicial notice of the fact that COVID-19 has a low mortality rate, especially in children: Warren at para 9.

[50] There is one reported case where judicial notice has been taken of the risks of the COVID‑19 vaccine: P.R. at para 54. In that case, the court took judicial notice of the fact that vaccination comes with a risk, just as all medical treatment does, but also took judicial notice of the fact that the vaccine is safe and effective.

[51] On the other side of this trend, there are also cases in which the courts were not prepared to take judicial notice of the efficacy and safety of COVID-19 vaccines: J.N. v C.G., 2022 ONSC 1198 at para 81, 64 RFL (8th) 277; R.S.P. v H.L.C., 2021 ONSC 8362 at paras 56–58; and C.M. v S.L.S., 2022 ONCJ 206 at para 112.”

[215] In R.S.P. v. H.L.C., 2021 ONSC 8362, the court stated that a number of courts went too far in taking judicial notice of opinions, such as the opinion that COVID-19 vaccines are safe and effective, because courts cannot take judicial notice of expert opinion evidence. The court wrote that the purpose of taking judicial notice is to avoid unnecessary litigation over facts that are clearly uncontroversial or beyond reasonable dispute as set out in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R., 863. These facts do not need to be proved by evidence under oath or tested by cross-examination.

[216] In J.N. v C.G., 2022 ONSC 1198 at paragraph 81, Justice Pazaratz was not prepared to take judicial notice of the Pfizer Covid vaccine for children. He found that the mother had filed admissible evidence on complicated and evolving issues, including from the Pfizer company itself and stated the following at paragraph 68 of his decision:

[68] As well, how can you take judicial notice of a moving target?

a. During the past two years of the pandemic, governments around the world – and within Canada – have constantly changed their health directives about what we should or shouldn’t be doing. What works and what doesn’t.

b. And the changes and uncertainty are accelerating with each passing newscast. Not a day goes by that we don’t hear about COVID policies changing and restrictions being lifted.

c. Government experts sound so sure of themselves in recommending the current vaccines.

d. But they were equally sure when they told us to line up for AstraZeneca. Now they don’t even mention that word.

e. Even Pfizer has changed its mind. It recently approved vaccines for kids under five. Then more recently the company changed its mind.

f. None of this is meant as a criticism. Everyone is doing their best with a new and constantly evolving health crisis.

g. But how can judges take judicial notice of “facts” where there’s no consensus or consistency?

[217] In Soucy v. Chan, 2022 ONSC 3911 the court wrote about the limitations of taking judicial notice as follows:

[22] A significant problem with relying on judicial notice that has been taken of particular facts in previous Covid-19 vaccine caselaw is that the Covid-19 situation is rapidly changing and developing. This includes changing public health directives such as masking protocols and vaccine mandates, new variants with changing transmissibility and virulence to the vaccinated and unvaccinated. These changes mean that a situation that may have been generally accepted and time-sensitive in September of 2021 is not as generally accepted and time-sensitive in May or June of 2022. [para. 22]

[218] More recently in M.M. v. W.A.K., 2022 ONSC 4580 the court followed Justice Pazaratz’s decision in J.N. v. C.G., supra, when deciding not to take judicial notice of the safety and efficacy of the Covid vaccine for children and held that “the science relating to Covid-19 is developing. The ‘facts’ are changing.” [para. 40]

6. Analysis and Factual Findings:

[219] The mother argues that this court is not being called upon to determine whether vaccines are “useful” and whether vaccines should be given to the children of our province. She submits that like any other family case, the court is being called upon to determine which parent should have decision-making authority over whether or not the 11-year-old child in this case should receive vaccinations, in consultation with the child in an age-appropriate way.

[220] However, in determining which parent should have decision-making authority over whether B. should be vaccinated, the safety and efficacy of vaccines, including the Covid vaccine for the particular child in this case, is an important factor that must inform the court’s best interest’s analysis, along with all of the best interest factors that the court must analyze and consider, including the child’s views and preferences.

[221] In short, it is not possible to determine the only issue before me without considering whether vaccines are safe, effective and beneficial for children, and specifically, whether receiving vaccines are beneficial or contraindicative for the individual child in the circumstances of this case. This is presumably why both parents tendered expert evidence on this issue.

[222] The mother also asks this court to consider the following question when reaching a decision: is a decision taken by a parent that is not in “the mainstream” necessarily not in the child’s best interests?

[223] In answering the mother’s question, the response is the following: if the decision places a child’s health and safety at risk, then the decision is not in the child’s best interests.

[224] For the reasons that follow, the evidence in this case strongly supports that it is in the child’s best interests for the father to have sole decision-making responsibility regarding the child’s vaccinations, including the completion of the child’s course of routine vaccinations, all future vaccines going forward, and the Covid vaccines.

Findings Regarding the Expert Evidence:

[225] Expert witnesses have a special duty to the court to provide fair, objective, and non-partisan assistance. A proposed expert who is unwilling or unable to comply with this duty is not qualified to give expert opinion evidence. Underlying the various formulations of the expert’s duty are three related concepts: impartiality, independence, and an absence of bias. See White Burgess Langille Inman v. Abbott and Haliburton, [2015] 2 S.C.R. (S.C.C.) at paragraphs 2 and 32.

[226] Neither party’s proposed expert signed the Acknowledgement of Expert’s Duty Form, as required under the Family Law Rules[^12]. As noted previously, each expert provided a will-say statement instead of an expert report, on consent of both parties and the endorsement of the case management judge at the trial management conference. This was a concern to the Court. Notwithstanding the above, when asked, both experts appeared to understand their duties as an expert to the court. I am satisfied that both experts took their duties to the Court seriously.

Dr. Abdi Sharkawy: The Father’s Proposed Expert:

[227] The mother accepts that Dr. Sharkawy is an infectious disease expert and qualified to give opinion evidence in this area, but she does not accept that he is an expert in the safety and efficacy of vaccines, including the safe administration of vaccines, and in particular the Covid vaccine and the risks associated with Covid, particularly for children.

[228] The court was impressed with the evidence of the father’s expert. He is a medical doctor and a qualified specialist in Infectious Diseases and Internal Medicine in Ontario. He has been a medical doctor since 1998 and completed postgraduate, research and specialty training in Infectious Diseases from 1998 to 2004. Dr. Sharkawy’s medical practice is at Toronto Western Hospital, where he has worked on the Covid ward and the Intensive Care Unit (ICU) attending Covid patients since the beginning of the pandemic. He is trained in pediatric infectious diseases. He has had extensive first-hand, front line “real world” experience treating Covid patients throughout the pandemic.

[229] Dr. Sharkawy is a highly qualified expert in the field of infectious diseases, including Covid-19. His written ‘will-say’ statement, augmented by his oral testimony, was clear and straight forward. He easily explained various concepts to the Court. He was unshaken in cross-examination.

[230] Dr. Sharkawy made fair concessions during his testimony. He acknowledged the science-based risk associated with the Pfizer Covid vaccine. He also placed those risks into context, comparing those to the benefits of getting the Covid vaccine and the risks associated with not getting the vaccine.

[231] I find that Dr. Sharkawy’s receipt of a fee to prepare his evidence and testify does not disqualify him from giving opinion evidence, as suggested by the mother. Dr. Sharkawy’s fee was reasonable for an expert of his qualifications. His evidence appeared objective, fair and non-partisan.

[232] Dr. Sharkawy’s testimony was properly before the Court. His evidence was relevant, necessary to assist the Court, and there was no exclusionary rule preventing it. I find that he was properly qualified to testify about the safety and efficacy of the Covid vaccine and the risks of Covid for both adults and children. See R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9.

[233] Dr. Sharkawy’s expert opinion evidence is supported by the World Health Organization, the Canadian Pediatric Society, Health Canada, the American Academy of Pediatrics, the Food and Drug Administration (FDA), the Centers for Disease and Control (CDC) and the Royal College of Pediatrics and Child’s Health (UK).

[234] The Court completely accepts Dr. Sharkawy’s evidence.

[235] It was Dr. Sharkawy’s opinion that a healthy boy of 11 years old, such as the boy in this case, should receive the Covid vaccine. When asked if the child should receive the vaccine after being infected with Covid, Dr. Sharkawy testified that he should. The only issue would the timing of the vaccine so that he can receive the maximum benefit.

[236] Regarding routine childhood immunizations, Dr. Sharkawy strongly supported the child receiving the routine vaccines. The risks are very minimal and the benefits far greater.

[237] In reaching this conclusion, I accept Dr. Sharkawy’s opinion evidence that it is strongly inadvisable to defer or deny the Covid vaccine to children, given the compelling evidence of risk of potentially serious adverse complications of Covid-19 infection in children, including Long Covid syndrome, and death.

Dr. Byram Bridle, the Mother’s Proposed Expert

[238] The court accepts that Dr. Bridle is an immunologist and vaccinologist by training and that he has expert knowledge in these fields, in particular regarding the theory and science behind vaccines. However, for the reasons below, the court does not accept that Dr. Bridle is qualified to give opinion evidence with respect to the safety and efficacy of the Covid-19 vaccine for children.

[239] Dr. Bridle is a researcher only. He is a faculty member at the Veterinary College at the University of Guelph’s Department of Pathobiology, where he conducts research on animals.

[240] Dr. Bridle acknowledged that he is not a medical doctor. He has never vaccinated a child, he has never treated a child or an adult suffering from a reaction to a vaccine, nor has he ever treated a child or an adult who is suffering from an infectious disease.

[241] Dr. Bridle agreed that he did not have any experience or involvement in the clinical trials of a Covid vaccine. He agreed that this is when the medical doctors become involved.

[242] Dr. Bridle’s acknowledged that his knowledge of the Covid vaccine is limited to his understanding of the science regarding how the vaccine works and how it should work, and his interpretation of the government data of the human experience of the vaccine.

[243] Dr. Bridle acknowledged that there were limitations on the data that he has seen and studied at the time of trial, including how the data had been presented. He acknowledged that there is no evidence of long-term risks, which are currently largely unknown. However, he points out that this is because there has not been sufficient clinical testing.

[244] Dr. Bridle has no real-world experience on how human beings are actually experiencing Covid-19, and reacting to the Covid vaccine, in contrast to Dr. Sharkawy.

[245] Dr. Bridle is not qualified to give opinion evidence on the risk and treatment of vaccine-induced myocarditis. He does not have the medical knowledge to do so. Dr. Sharkawy also testified on this issue and strongly refuted Dr. Bridle’s claims. The court prefers Dr. Sharkawy’s evidence, which is based on his direct experience in treating patients on the Covid ward at his hospital throughout the pandemic.

[246] It is Dr. Bridle’s opinion that the best immunity is natural immunity by contracting the disease, which he described the “gold standard”. He did not seem to appreciate or accept the serious risks associated with contracting the Covid infection, including death, nor did he seem to appreciate the risks and effects of contracting Covid multiple times, including the risk of developing long Covid syndrome, of which he appeared to be oblivious.

[247] In fairness to Dr. Bridle, he is an immunologist and a researcher not a medical doctor, so he has no direct experience or knowledge of how people experience the disease, in direct contrast to the evidence of Dr. Sharkawy. The court prefers the evidence of Dr. Sharkawy.

[248] One of Dr. Bridle’s main criticisms of the Covid vaccine was that it did not stop transmission or provide immunity, or that the duration of immunity was “ridiculously short” to use his words, requiring Canadians to have multiple doses.

[249] When asked by the court if he accepted that the Covid vaccine prevents serious illness and death, regardless of the shorter duration of immunity, Dr. Bridle would not acknowledge that receiving the vaccine prevented severe or serious illness and death. In fact, Dr. Bridle stated that vaccinated people are at greater risk than unvaccinated people given his interpretation of hospital admissions. He remained very firm in these views.

[250] Respectfully, this is so far removed from the mainstream and widely accepted views of the Canadian and international medical and scientific community that the court cannot accept Dr. Bridle’s evidence on the Covid vaccine as reliable.

[251] He did not dispute that regulatory bodies around the world such as the World Health Organization, the Canadian Pediatric Society, Health Canada, the American Academy of Pediatrics, the Food and Drug Administration (FDA), the Centers for Disease and Control (CDC) and the Royal College of Pediatrics and Child’s Health (UK) have supported and endorsed the safety and efficacy of the Covid-19 vaccine for children. He did not agree with them.

[252] Throughout his evidence, Dr. Bridle stated that he reviews data, he relies on data, and he interprets data. His views that all Canadian and international regulatory bodies are wrong suggests that his interpretation of the data is the correct interpretation against the vast and overwhelming majority of the national and international scientific community.

[253] Dr. Bridle also acknowledged that 88 of his colleagues (other faculty members at the University of Guelph) wrote an open letter to the university criticizing Dr. Bridle’s views on the vaccine. He did not state that there was any formal retraction of the letter, although he said that some of his colleagues were embarrassed about it.

[254] Dr. Bridle also testified that he is working on his own Covid vaccine, for which he has received government funding and is currently in the pre-clinical stage. The court was concerned that it is possible in Dr. Bridle’s interest, consciously or not, to advance views that discredit the existing mRNA technology used in Covid vaccines because he is working on a competing technology.

Judicial Notice of Routine Government Approved Immunizations for Children:

[255] Although I am not bound by Justice’s Finlayson’s decision on a temporary motion to take judicial notice of the safety and efficacy of government approved routine (non-Covid) immunizations for children in Ontario, I find his decision to be very persuasive, as did the Superior Court of Justice when upholding it on appeal. I agree with it, and the overwhelming body of jurisprudence over the past several years, that has taken judicial notice of the safety and efficacy of the routine immunization of children in Ontario and Canada.

[256] In this trial neither expert witness spent a great deal of time testifying about routine (non-Covid) childhood immunizations in Ontario, either generally or for this particular child, as set out in the Ontario Immunization 2020 document and the Canadian Immunization Guide. Both experts’ evidence focused primarily on the benefits, efficacy and/or risks of the Covid vaccine for children.

[257] However, both experts supported routine immunizations for children. Indeed, when asked by the Court about routine childhood immunizations, as recommended by the Ontario and Canadian governments, even Dr. Bridle, the mother’s expert, who is an immunologist, testified that he has “no problem” with routine (non-Covid) childhood immunizations. He appeared almost surprised by the question, as if to suggest that this was not a contested issue, nor subject to debate. He explained during his testimony that these vaccines rely on “traditional” technology (not mRNA technology) and that they have been reliably tested over decades.

[258] Further, for decades, Canada and Ontario have had a coordinated childhood immunization strategy in the interest of public safety, as set out in the Ontario government’s ‘Immunization 2020 document and the Canada Immunization Guide (CIG). The Immunization of School Pupils Act is part of Ontario’s public health strategy.

[259] The Canada Immunization Guide reveals that since 1979, when it was first published 43 years ago by the National Advisory Committee on Immunization (NACI), government policy, at all levels of government, recognizes that:

“Vaccines are a cornerstone of public health, and their use has significantly contributed to the prevention and control of infectious diseases in Canada and internationally. Immunization is not just for children; adolescents now routinely receive vaccines to protect against meningococcal disease, HPV, hepatitis B, influenza, tetanus, diphtheria, and pertussis, and there are a growing number of vaccines that are recommended for adults…The risk of vaccine preventable disease transmission remains and would significantly increase if vaccinations were stopped. Immunization providers and the public should be aware that, with the success of childhood immunization programs, there is a tendency to underestimate the risks of vaccine-preventable diseases and overestimate the risk of vaccines.” (Canada Immunization Guide: Introduction, Government of Canada, February 14, 2020).

[260] Regarding adjudicative facts, I am prepared to take judicial notice of the following facts:

1. Ontario’s publicly funded non-Covid vaccines or immunizations for children are safe and effective at preventing vaccine preventable diseases.

2. Their widespread use has led to severe reductions or eradication of incidents of these diseases in our society.

3. The harm to a child, flowing from contracting a vaccine preventable disease, may even include death.[^13]

[261] I find that the above facts are so notorious or generally accepted so as not to be the subject of debate in the medical and scientific community or elsewhere and they are capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

[262] Regarding legislative facts, I am prepared to take judicial notice of the policy reflected in the Ontario government’s “Immunization 2020” document and the federal government’s Canada Immunization Guide (CIG).

[263] Given the widespread, indisputable information about Ontario’s publicly funded childhood immunizations, not to mention in Canada and around the world, courts should not have to be deciding whether these childhood vaccines are safe. The government documents, tendered by the father, will be admitted in this trial under the public records exception to the hearsay rule.

Judicial Notice of the Covid Vaccine:

[264] I am not prepared to take judicial notice of the Covid vaccine. Given the very extensive and contrasting expert evidence that I have heard about the Covid vaccine, and the fact that it is a relatively new vaccine, having only been in development and in clinical trials since 2020, I do not think it is appropriate to do so at this time. It continues to be a subject of some debate in the jurisprudence, in contrast to the wide and general acceptance for decades of routine immunizations for children.

[265] However, based on the expert evidence of Dr. Sharkawy in this trial, which I wholly accept over the evidence of Dr. Bridle, I make the following findings of fact regarding the Covid vaccine for children:

1. The Covid-19 vaccines are safe and effective for children and adults. There is a low risk of harmful effects, especially in children. The benefits of receiving the vaccine for children, including children who have already contracted Covid-9, are far greater than any minimal risks.

2. The Covid-19 vaccine reduces the risk of serious illness or death from the Covid-19 infection. It also reduces the risk of serious adverse complications resulting from infection, such as long Covid syndrome, in both children and adults.

Credibility and Reliability Findings Regarding the Parents’ Evidence:

[266] Both parents testified in a straightforward and credible manner. They both clearly love their child very much and are good parents. They tried to present their evidence truthfully.

[267] Notwithstanding the above, the mother’s explanation regarding why she believes that all vaccinations are detrimental to her child’s best interests was not reliable nor rational, nor is it evidence based.

[268] In her testimony, the mother identified her own family medical history and her personal history as reasons for denying the child the protection of vaccines for vaccine preventable infectious diseases. There is no medical evidence of the mother’s genetic predisposition, possible immunodeficiencies, or any medical history, other than the mother’s own description.

[269] The mother did not provide any medical evidence about her family’s history. She did not provide any medical evidence of any of her ongoing conditions, and it was unclear what those were. Most importantly, the mother did not provide any evidence that any conditions that she may have had were caused by being vaccinated as a child, as she testified.

[270] It was clear in listening to the mother that the connections that she was drawing between being vaccinated as a child and her own medical history and her family’s history of cancer were entirely speculative.

[271] It was also clear from the mother’s evidence that she decided prior to the child’s birth that she would not vaccinate the child. Making a medical decision about a child who is not yet born is not rational. It is not a decision focused on the individual child’s needs, conditions, and specific circumstances.

[272] The mother acknowledged in her testimony and in cross-examination that the child is healthy, that he has no medical conditions and that he had no reactions to the first two rounds of routine immunizations that he had received in December of 2021 and in March of 2022.

[273] The mother also acknowledged in her testimony that following the child’s birth she received medical opinions to vaccinate the child, including from her family doctor. However, she remained fixed in her views against vaccination.

[274] It is also not disputed that as a result of these proceedings, the child was seen by an immunologist at the Hospital for Sick Children and had an immunology assessment. Both the father and the mother confirmed that there were no contraindications to vaccination and that there was no reason why the child should not be vaccinated.

[275] Given that the child is healthy, there fortunately have been very few medical decisions that the mother has had to make regarding the child. Immunizing the child following his birth and throughout childhood was one of the important medical decisions that the mother had to make.

[276] I find that the mother’s decision not to ensure that her child received regular immunizations to protect him against vaccine preventable infections diseases is not based on reason or science, nor in the child’s best interests.

[277] The mother’s subsequent decision not to permit the child to receive the Covid vaccine is also not in the child’s best interests. The child contracted Covid in February of 2022 while unvaccinated. The father described the child as becoming very ill. The child experienced severe fatigue, headaches, and a very high fever. The father was advised by Telehealth Ontario to take the child to the hospital if his fever continued to remain high. Thankfully, the child’s fever abated, and he did not need to be hospitalized.

[278] The mother’s evidence that the child seemed fine upon his return home appeared to minimize the symptoms as described by the father, however, the child remained with the father in quarantine for the first week of his illness. The mother was not present, although she received regular updates from the father. The child may have recovered somewhat from the worst of his symptoms by the time that he returned to his mother’s care.

[279] I accept and prefer the father’s evidence regarding the child’s illness as a result of contracting Covid. The father’s evidence on this issue was very detailed, consistent and compelling. I find that the mother’s decision not to vaccinate the child against Covid gambled with the child’s health.

[280] The mother’s testimony that the father has not made good medical decisions about the child was contradicted by her own actions. She was content to have the father care for the child when he became severely ill with Covid. She did not question the father’s ability to care for the child during that time, or to make the appropriate medical decisions. The mother has also agreed to an equal shared parenting schedule, clearly suggesting a confidence in the father’s ability to parent and to make appropriate decisions for the child.

The Child in this Case:

[281] B. is 11 years old. All of the evidence in this case supports the finding that B. is an intelligent, thoughtful, and articulate child. He is friendly and appears to have numerous school friends and interests, based on both parents’ testimony and the evidence of the OCL clinical investigator.

[282] B. loves both parents and is close to both parents. He has a very close relationship to his mother, as he was primarily in her care until the shared parenting schedule was agreed upon by both parents in the spring of this year. Both parents describe B. as a healthy child.

[283] It is not disputed that B. is a healthy child. I find that B. is a healthy child.

[284] It is further not disputed that there is no evidence that B. has any health issues or immunodeficiency that could prevent or adversely affect his ability to receive vaccines.

[285] It is not disputed, and I find that B. did not experience any adverse physical or emotional reactions to his first and second round of routine childhood immunizations.

[286] I find that B.’s views and preferences regarding vaccines have evolved over time. He is acutely aware of his parents’ contrasting views on vaccines and the conflict between them. His views have also been inconsistent and ambiguous. It is not disputed that he has expressed different views and preferences to each parent regarding vaccines.

[287] More recently, it is not disputed that B. has undergone the first and second round of standard immunizations without hesitation or objection. Both parents expressed that B. appeared fine after receiving each round of injections and the father described B. to be in “great spirits.” I accept this evidence. I find that B. had no adverse emotional reaction and in fact acceded readily to being vaccinated.

[288] B. has now expressed some willingness to receive the Covid vaccine, as expressed to his father, and not disputed by the mother, although the mother believes that he has now been pressured by his father and his school peers. B. is a thoughtful and intelligent child and there is no independent evidence from the OCL clinical investigator that he has been pressured by his father.

[289] At the time of the OCL report, which was two years ago and well before B. received his first and second round of immunizations, B.’s expressed views at their highest according to the OCL investigator, were that “he doesn’t think that he should take the Covid vaccine because he has a good immune system.” [Emphasis added.]

[290] The facts of this case are very different then the facts in the case law relied upon by the mother, in particular Rouse v. Howard, ONCJ 23 and J.N. v. C.G., ONSC 1198. The children in those cases held longstanding and consistent views which indicated they were strongly opposed to receiving the Covid vaccine.

[291] In Rouse v. Howard, Justice Aubrey Hilliard found that the nine-year-old child’s views to be mature, independent and longstanding although not surprisingly in accordance with her mother’s beliefs about vaccines, as the father had agreed to raise the child in accordance with the mother’s views on vaccines up until that time. [para.18 and 19]. In J.N. v. C.G, supra, Justice Pazaratz found that the children, ages 12 and 10, to be intelligent and mature and that they had “very specific, strongly held and independently formulated views about COVID vaccinations”. [para. 74].

[292] Justice Pazaratz was concerned that “any attempt to ignore either child’s views on such a deeply personal and invasive issue would risk causing serious emotional harm and upset.” [par. 78]. Justice Hilliard was concerned that an order granting the father decision-making authority would result in “[the father] having the ability to override [the child’s] right to withhold her consent to vaccination which may have negative emotional and/or psychological consequences.” [para. 18.]

[293] This is not the case here. I find that B.’s views and preferences regarding receiving vaccines and the Covid vaccine in particular have been inconsistent and ambiguous, particularly as expressed to both parents. However, B.’s undisputed actions and reactions to receiving his first two round of immunizations, as described previously, are perhaps the best independent indication of his views. I find that B. did not object to receiving his routine vaccinations, nor did he experience any adverse emotional reaction.

[294] It is also worth noting that the cases relied upon by the mother were both decisions on temporary motions, not following a trial. There were no expert witnesses, subject to cross-examination before either court to support a finding that the COVID-19 vaccine for children was safe and effective. There was no medical evidence about any potential positive or negative considerations with respect to the children in those cases receiving COVID vaccines.

[295] In any event, although an important factor to be considered and weighed in the best interest analysis, B.’s views and preferences are not determinative. The child in this case is not old enough to decide this complicated issue for himself. He should not be placed in the middle of his parents’ dispute about what is essentially a parenting decision.

7. Conclusion:

[296] For the reasons above, I find the father is best capable of making vaccination decisions in the child’s best interests, including whether or not the child should receive the Covid vaccine(s) and all other vaccinations that the child will be eligible for going forward.

[297] I accept that the mother is a concerned and loving parent who has made many responsible decisions for the child. She has been a good parent in many respects and the child has benefitted and continues to benefit from her care. The father also acknowledged this.

[298] However, respectfully, the mother’s decision not to vaccinate her child is not responsible. Based on the evidence that I heard in this trial, the mother’s reasons for not vaccinating the child are not rational, nor are they evidence-based or science-based.

[299] I find that the mother’s decision not to vaccinate her child has placed her child at risk and that it is in the child’s best interests for the father to make vaccine-related decisions for the child. His evidence on this issue was thoughtful, careful and child focused. The child has also benefitted and continues to benefit from the father’s love and care.

8. Final Order:

[300] For the above reasons, the Court makes the following final order:

1. The applicant father shall have the sole authority to make decisions about all vaccinations to be administered to the child going forward, including the child’s routine immunizations and all other vaccines that the child will be eligible for throughout his childhood and adolescence, including the Covid-19 vaccines.

2. There shall be a final order in accordance with the executed Final Minutes of Settlement on all other issues and approved draft Final Order.

3. If either party seeks costs, then written submissions shall be served and filed no later than November 15, 2022. Any responding submissions shall be served and filed 30 days no later than November 30, 2022. The submissions shall be no longer than seven single-spaced typed pages, not including any bill of costs or offers to settle.

[301] The court thanks counsel for their excellent preparation, professionalism, and advocacy throughout this trial.

Released: October 31, 2022

Signed: Justice Sheilagh O’Connell

[^1]: See B.C.J.B. v. E-R.R.R., 2020 ONCJ 438 [^2]: See B.C.J.B. v. E-R.R.R., supra, at paragraphs 156 and 157. [^3]: See B.C.J.B. v. E-R.R.R., supra, referenced at footnote 1. [^4]: See B.C.J.B. v. E-R.R.R., 2021 ONSC 6294. [^5]: See Evidence Act, R.S.O. 1990, c. E.23, sub-sections 52 (1) to (5). [^6]: Justice Manjusha Pawagi’s Trial Endorsement dated December 2, 2021. [^7]: The inflammation of the heart muscle. [^8]: B.C.J.B. v. E-R.R.R., supra, at paragraphs 153 and 134. [^9]: See: 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) 1999 3793 (ON CA), 176 D.L.R. (4th) 665 (Ont. C.A.) [^10]: B.C.J.B. v. E.-R.R.R., supra, para. 158. [^11]: B.C.J.B. v. E.-R.R.R., 2021 ONSC 6294, at para. 49 to 52. [^12]: See Rule 20. 2(2) of Family Law Rules, O. Reg. 114/99 [^13]: See B.C.J.B. v. E-R.R.R., supra, at paragraphs 156 and 157.