CITATION: A.V. v. C.V., 2023 ONSC 1634

DIVISIONAL COURT FILE NO.: 222/22

DATE: 20230314

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MacLeod, R.S.J., D.L. Corbett, and O’Brien J.J.

BETWEEN:

A.V.

G. Campbell , for the Appellant

Appellant

• and -

C.V.

Respondent

D. Crosby, for the Respondent

HEARD at Toronto by videoconference October 7, 2022

O’BRIEN j.

reasons for decision

Overview

[1] This appeal addresses the circumstances in which a judge on an interim motion should grant decision-making authority to a parent to have a child vaccinated against COVID-19. It was heard and should be read together with the appeal in Spencer v. Spencer 2023 ONSC 1633. Both appeals more specifically raise the question of whether, and the degree to which, the motion judge was permitted to rely on government published recommendations and other information regarding the COVID-19 vaccine in the assessment of the best interests of the child. The Appellant on this appeal also raises the question of whether the motion judge failed to give sufficient weight to her views as the child’s primary caregiver in permitting the Respondent to make the decision on COVID-19 vaccination.

[2] Since both appeals were heard, the Court of Appeal released its decision in J.N. v. C.G., 2023 ONCA 77, which was an appeal from a final order awarding decision-making authority over children’s COVID-19 vaccinations. The motion judges in the current case and in Spencer v. Spencer did not have the benefit of the Court of Appeal’s decision when deciding the motions before them. After the release of the Court of Appeal’s decision, this court permitted further written submissions from the parties respecting the application of J.N. v. C.G.. Those submissions were completed and provided to this court on February 28, 2023.

[3] In this case, the Respondent father, C.V., brought an interim motion seeking to have the child, who was seven years-old at the time, vaccinated against COVID-19 without the consent of the mother, A.V. The parties had been separated for just over two years. Following separation, the child resided primarily with the mother. At the time of the motion, no order had been made as to who would have decision-making authority respecting the child.

[4] The motion judge concluded it was in the best interests of the child to be vaccinated. She accepted recommendations from the Government of Canada in favour of vaccination for children. She was not persuaded that the evidence submitted by the mother provided a basis to disregard government guidance. She also noted that decisions by other judges on the issue had largely supported the conclusion that it is in a child’s best interest to be vaccinated absent compelling reason to conclude otherwise. She did not find any compelling circumstances in this case.

[5] The Appellant mother submits that the law has evolved since the motion judge’s decision such that the trend is now against ordering vaccinations on an interim motion. In addition, she submits that the motion judge should not have mandated vaccination on the thin evidentiary record in this case, which she says consisted almost entirely of the Government of Canada’s recommendation. Instead, in her submission, a decision with respect to vaccination, which she describes as an “elective procedure,” should have been delayed until trial. Finally, she submits the motion judge should have accorded more weight to her views, given her role as the child’s primary caregiver.

[6] For the reasons that follow, the appeal is dismissed. In accordance with the guidance provided by the Court of Appeal in J.N. v. C.G., the motion judge in this case was correct to put weight on the Government of Canada’s recommendation that children be vaccinated against COVID-19. Further, in the face of that regulatory approval, the motion judge was correct to put the onus on the mother to establish that the child should not be vaccinated.

[7] Unlike in J.N. v. C.G., the motions under appeal to this court involved interim decision-making. However, the motion judge’s task is the same in the interim context: he or she is required to weigh all the admissible evidence in determining the best interests of the child. In making this determination, although vaccination is an elective procedure, it is open to the motion judge to allocate decision-making with respect to vaccination on an interim basis depending on all the circumstances of the case. With respect to the views of the primary caregiver, the motion judge should take into account a prior order or agreement for decision-making and, where there is not, has discretion as to the weight to be given to the views of the parents depending on the circumstances of the case.

[8] I do not see a basis to interfere in the motion judge’s determination that it was in the child’s best interests to be vaccinated in this case. This was not a case in which decision-making was the subject of a prior court order or agreement, nor were there any other circumstances that specifically weighed against vaccinating the child. Although the mother, the primary caregiver, was opposed to vaccination, this factor was not determinative. Instead, it was open to the motion judge on this interim motion to find that vaccination was in the best interests of the child.

Standard of Review

[9] In J.N. v. C.G., at paras. 9-10, the Court of Appeal restated the standard of appellate review for decisions relating to parenting time and decision-making authority as follows:

The standard of appellate review in family law proceedings – where parenting time and decision-making authority are at issue – is narrow: Sferruzzi v. Allan, 2013 ONCA 496, 33 R.F.L. (7th) 1, at para. 43. As decisions in these matters “are inherently exercises in discretion”, they must attract a high degree of deference: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13.

This court’s task is not to impose the decision we would have made after engaging in a fresh analysis or by balancing the various competing factors differently. We can only intervene if the motion judge erred in law or made a material error in the appreciation of the facts: Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12; N.S. v. R.M., 2019 ONCA 685, at paras. 4-5.

Legal Principles

[10] It is common ground that the question of whether a child should be vaccinated is determined based on the child’s best interests. The central question on this appeal and in Spencer v. Spencer is whether the motion judge erred in finding that it was in the best interests of the child to be vaccinated.

Evidence of Government Recommendations and Judicial Notice

[11] The first issue raised in both appeals is whether the motion judge erred in admitting into evidence government recommendations with respect to vaccination. That question has now been settled by the Court of Appeal in J.N. v. C.G. As George, J.A. stated in that case at para. 26, reports of public officials are admissible into evidence for the truth of their contents, pursuant to the public document exception to the hearsay rule: see also A.C. v. L.L., 2021 ONSC 6530, 159 O.R. (3d) 600, at para. 26; A.P. v. L.K., 2021 ONSC 150, 51 R.F.L. (8th) 334, at paras. 147-173. The reason for the exception is not only the inherent reliability and trustworthiness of public documents, but also to avoid the inconvenience of public officials having to be present in court to prove the documents. Section 25 of the Evidence Act, R.S.O. 1990, c. E.23 also provides that certain public documents as defined in that provision, including those published under the authority of the government of any “dominion, commonwealth, state…shall be admitted into evidence to prove the contents thereof.”

[12] Government of Canada publications addressing paediatric vaccination against COVID-19 fall squarely within the public document exception to the hearsay rule. In addition to being reliable, allowing these documents into evidence permits parties to rely on them without the unnecessary burden of calling a government representative: J.N. v. C.G., at para. 44.

[13] For the same reasons, judicial notice may be taken of the regulatory approval of paediatric vaccination against COVID-19. Judicial notice is an exception to the rule of formal proof that requires parties to present evidence to establish facts. It dispenses with the need to prove facts that are clearly uncontroversial or beyond reasonable dispute. The threshold is strict. The Supreme Court of Canada has stated that a court may 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. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48.

[14] While judicial notice generally is not taken of expert evidence, as set out in J.N. v. C.G., at para. 43, this general principle does not apply “where the ‘expert opinion’ in question is the approval of medical treatment by Health Canada, the national body tasked with determining that treatment’s safety and effectiveness.” As explained at paras. 44-45:

It is not the subject of dispute among reasonable people that Health Canada has, in the area of safety and efficacy of medical treatment, “special knowledge…going beyond that of the trier of fact”: R. v. Marquard, [1993] 4 S.C.R. 223, at p. 243. … Stated otherwise, judicial notice should be taken of regulatory approval, and regulatory approval is a strong indicator of safety and effectiveness.

[15] Indeed, both the public documents exception and judicial notice of these facts promote access to justice and the primary objective of the Family Law Rules, O. Reg. 114/99. They save the parties the time and expense of collecting expert evidence, which is a particularly challenging task on an interim motion. As stated in J.N. v. C.G., at para. 29, “it is simply unrealistic to expect parties to relitigate the science of vaccination, and legitimacy of public health recommendations, every time there is a disagreement over vaccination.” These principles allow the parties instead to focus on the central question: the best interests of the child. See A.P. v. L.K., at para. 186

[16] The admissibility of government recommendations into evidence is not determinative of the best interests of the child. However, it places the onus on the objecting party to show why the child should not be vaccinated: J.N. v. C.G., at para. 45. It remains open to the opposing party to file competing evidence. However, the competing evidence must be admissible. Opinion evidence is not admissible unless the person offering the opinion is qualified as an expert and the opinion relates to a matter within their expertise: see R. v. Mohan, [1994] 2 S.C.R. 9 at pp. 20-25, see also R v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272 at para. 47. The proposed expert also must also be independent and unbiased: J.N. v. C.G., at paras. 12, 17. While in many cases, it will not be feasible or practical for a party to challenge the efficacy of the vaccine with competing expert evidence, an objecting party may, for example, submit a report from a treating family physician that provides evidence related to the circumstances of an individual child. This could include a child’s particular risk for contracting COVID-19.

[17] Another factor, which has arisen in the cases, is the child’s views and preferences. For example, in M.M. v. W.A.K., the motion judge declined to order vaccination where the child had clearly expressed her strong opposition to it. The motion judge considered the child, who was 12 years-old, to be mature and put significant weight on her views and preferences. However, a court must always carefully consider how much weight to give a child’s wishes in accordance with the factors set out in Decaen v. Decaen, 2013 ONCA 218, at para. 42. In J.N. v. C.G., the Court of Appeal found that the motion judge erred in giving the children’s views any weight, as the evidence did not support the finding that they had reached their own conclusions free from their mother’s influence.

[18] In short, government publications and recommendations may be admitted into evidence. Once admitted, regulatory approval of the vaccine places the onus on the objecting party to demonstrate that the child should not be vaccinated. The motion judge is to make this determination in the best interests of the child.

Ordering Vaccination on an Interim Basis

[19] A second issue that arises in these appeals is whether a motion judge should refrain from ordering vaccination on an interim basis and instead wait for a complete evidentiary record at trial. The concern is that vaccination is an elective procedure that is not immediately required but once done, cannot be reversed.

[20] Some cases have determined it was appropriate to refrain from allocating interim decision-making with respect to COVID-19 vaccination. However, those cases were decided before J.N. v. C.G. and may have come to a different result with the benefit of the Court of Appeal’s decision.

[21] COVID-19 vaccination recommendations are current advice addressing a dynamic situation involving a global pandemic. In J.N. v. C.G., the Court of Appeal emphasized the danger from COVID-19 (that it kills people, including children) and that regulatory approval for the vaccine is a strong indicator of safety and effectiveness. In this context, compelling reasons would be required to disregard current advice and delay a decision on vaccination.

[22] A motion judge may take into account a prior court order or agreement allocating medical decision-making. However, granting an order against the wishes of the parent with primary decision-making authority does not require that the entirety of the parent’s authority be set aside: the issue of COVID-19 vaccinations can be addressed as a singular issue of disagreement without otherwise affecting the status quo.

[23] There is no impediment to authorizing a parent to have children vaccinated against COVID-19 on an interim basis. In the absence of admissible evidence and compelling reasons to the contrary, current health recommendations should be followed.

Views of Primary Caregiver

[24] An additional issue in this case is whether the motion judge erred by failing to accord more weight to the mother’s views as the primary caregiver. Subsection 20(1) of the Children’s Law Reform Act, R.S.O. 1990 c. C. 12, which applies in this case since neither party is seeking a divorce, provides that parents are equally entitled to decision-making responsibility with respect to their child. Pursuant to s. 20(4), if the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent, or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child is suspended until a separation agreement or order provides otherwise. However, pursuant to s. 21(1), a parent may apply to the court for an order respecting decision-making.

[25] Where there is no prior order or agreement for decision-making, the motion judge may take into account and weigh both parents’ positions in determining how to allocate decision-making on this issue in the best interests of the child. The motion judge may weigh one parent’s views more heavily based on factors such as the history of decision-making, but an appeal court would defer to this weighing exercise absent an error of principle. The parents’ views and positions also should be considered together with all the circumstances relating to the best interests of the child.

Application of Principles to this Case

[26] Applying the principles with respect to the admissibility of evidence to the circumstances of this case, the father provided the court with admissible information from government sources. Specifically, he attached to his affidavit the statement from the National Advisory Committee on Immunization (NACI) available on the Government of Canada website. This document recommends the use of the Pfizer-BioNTech COVID-19 vaccine in children 5 to 11 years of age. He also attached a webpage from Renfrew County and District Health Unit advising all residents 5 years of age and older to receive their COVID-19 vaccine. The document stated that “[v]accines are safe, effective and the best way to protect you and those around you from serious illness like COVID-19.”

[27] The mother did not submit any admissible competing evidence that would have satisfied her onus to demonstrate the child should not be vaccinated. She did submit various documents from the internet. However, apart from passages she reproduced from the Government of Canada website, the printouts from the internet were inadmissible. They contained opinion evidence regarding the COVID-19 vaccine without evidence from a qualified expert.

[28] Further, although the mother told the father she wished to consult the child’s health care providers before agreeing to vaccination, she did not do so. The child did not have a family doctor and the mother did not consult with or provide any evidence from a treating practitioner.

[29] On the evidence before her, I do not see any basis to interfere with the motion judge’s assessment of the best interests of the child. The motion judge assessed the evidence, noting that the information submitted by the mother was not sufficient to ignore government guidance on vaccines for this age group. She also found that the child in this case was healthy. There was no evidence that the child was opposed to the vaccination nor was the motion judge convinced that he would have had the maturity level to make that decision in any event. The motion judge made reference to a presumption in favour of vaccination. Contrary to the mother’s submission, this was not in error, as it amounts to having placed the onus on the mother to show that the child should not be vaccinated, as directed by the Court of Appeal in J.N. v. C.G.. Considering the evidence and the relevant factors, she found the mother had not met her onus of demonstrating that it was not in the child’s best interests to be vaccinated. I would not interfere with this conclusion.

[30] I do not accept the mother’s argument in her additional written submissions responding to J.N. v. C.G., that this matter should be returned to the motion judge for assessment in accordance with the guidance provided by the Court of Appeal. In the mother’s submission, given that the Court of Appeal reversed the burden of proof, she should be permitted to call additional evidence.

[31] J.N. v. C.G., at paras 38 to 40, cites numerous Ontario decisions in which courts required a parent who did not want to comply with government recommendations related to COVID-19 (including decision-making, parenting time, travel, and education) to explain why and to offer evidence in support. In A.C. v. L.L., at para. 28, for example, Charney J. concluded that vaccination against COVID-19 is in the best interest of a child absent compelling evidence to the contrary. This conclusion was adopted in Dyquiangco Jr. v. Tipay, 2022 ONSC 1441, at para. 24. The motion judge relied on both of these decisions. As submitted by the father, the mother should have known that opposing COVID-19 vaccination in the face of public health recommendations would be an “uphill battle.” In the context of the existing case law, she should have been aware of the need to submit admissible evidence in support of her position. Her failure to do so is not a basis to remit this matter to the motion judge.

[32] The mother also argues that in J.W.T. v. S.E.T., 2023 ONSC 977, a decision of Bennett J. that post-dates the Court of Appeal decision in J.N. v. C.G., the motions judge distinguished J.N. v. C.G. and declined to authorize COVID vaccinations on an interim basis. I am not persuaded that J.N. v. C.G. can be distinguished in the manner stated by Bennett J.. In any event, on the circumstances of the case before us, for the reasons given, I conclude that J.N. v. C.G. cannot be distinguished.

[33] I also reject the mother’s submission that the motion judge did not give sufficient weight to her role as a primary caregiver. The child had resided primarily with the mother since separation, although the father had had parenting time on alternate weekends and alternate Thursday overnights. In the application, the father asked for shared decision-making and equal parenting time. There had been no interim or final decision regarding decision-making authority. While the mother submits that she was the de facto decision-maker, the evidence does not demonstrate that she had made any medical decisions for the child since separation. In these circumstances, the motion judge was not required to put additional weight on the mother’s view. The mother’s submission on this point does not provide a basis to interfere in the motion judge’s weighing of all the circumstances in the best interests of the child.

Disposition

[34] The appeal is dismissed. In accordance with the agreement between the parties, the mother shall pay the father’s costs of the appeal in the amount of $12,500.00.

O’Brien J.

I agree _____________________________

MacLeod R.S.J.

I agree _______________________________ D.L. Corbett J

Released: March 14, 2023

CITATION: A.V. v. C.V., 2023 ONSC 1634

DIVISIONAL COURT FILE NO.: 222/22

DATE: 20230314

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MacLeod, R.S.J., D.L. Corbett, and O’Brien J.J.

BETWEEN:

a.v.

Appellant

– and –

C.V.

Respondent

REASONS FOR JUDGMENT

O’BRIEN, J

Released: March 14, 2023