CITATION: S.E.T. v. J.W.T, 2023 ONSC 5416

DIVISIONAL COURT FILE NO.: 123/23

DATE: 20230928

ONTARIO

SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT

D.L. Corbett, O’Brien and Leiper JJ.

BETWEEN:

S.E.T.

Liam Cardill, for the Appellant

Appellant

– and –

J.W.T.

Rachel Zweig, for the Respondent

Respondent

HEARD by videoconference at Toronto:

July 13, 2023

REASONS FOR DECISION

O’BRIEN J.

Overview

[1] The appellant S.E.T. (the mother) seeks to have the parties’ three children vaccinated against COVID-19. The children are now 10, 6, and 4 years old. The parties separated in 2020. Because the respondent J.W.T. (the father) objected, the question as to who would decide about vaccination was scheduled to be heard at a long motion. By the time of the long motion, the parties had resolved all other issues in this divorce application by way of minutes of settlement.

[2] Rather than deciding the issue at the motion, the motion judge, Bennett J., directed that the vaccination issue proceed to a trial. The mother was granted leave to appeal this decision to this court (2023 ONSC 2726).

[3] The motion judge rendered his decision after the Court of Appeal released its decision in J.N. v. C.G., 2023 ONCA 77, 477 D.L.R. (4th) 699. In that case, the Court of Appeal set out principles to apply in cases of pediatric vaccination against COVID-19. The relevant principles relate to judicial notice of regulatory approval of the vaccine, the importance of relying on admissible evidence that meets the criteria for expert evidence, and the onus to be applied when one party objects to vaccination. The motion judge, however, did not have the benefit of this court’s decisions in two cases applying the principles from J.N. v. C.G. to motions for temporary relief.[^1] On this appeal, the mother submits that the motion judge erred by failing to follow the principles set out in the decisions of the Court of Appeal and this court. She also submits that the motion judge should not have sent the vaccination issue to trial when the parties had agreed it would be decided on a long motion.

[4] The questions on this appeal are:

1. Did the motion judge err by refusing to take judicial notice of regulatory approval of the vaccine?

2. Did the motion judge err by failing to put the onus on the party objecting to vaccination?

3. Did the motion judge err by sending the matter to trial?

4. What remedy should be ordered?

[5] I find that the motion judge erred by (i) refusing to take judicial notice of regulatory approval and recommendation of pediatric COVID-19 vaccination, (ii) relying on information not in evidence before him, and (iii) failing to put the onus on the father to demonstrate why these children should not be vaccinated. For the reasons that follow, the appeal is allowed. The order of the motion judge is set aside and, in its place, judgment shall issue according the mother authority to make decisions regarding the children’s COVID-19 vaccinations.

Fresh evidence motion

[6] The father moved to admit the following as fresh evidence on appeal:

• Our Family Wizard messages between the parties showing that the children had had COVID-19 for the second time and had recovered

• A World Health Organization statement that COVID-19 is now an established and ongoing health issue that no longer constitutes a public health emergency of international concern

• Government of Canada statistics showing the number of children who have received at least one dose of the COVID-19 vaccine and the number of COVID- 19 cases in Canadian children

• A Government of Canada report setting out reported side effects following COVID-19 vaccination in Canada

• Vaccine Adverse Even Reporting System (VAERS) data as of May 5, 2023

• Information from the Vaccine Injury Support Program

[7] In response to the father’s motion, the mother submitted evidence that Health Canada continues to recommend COVID-19 vaccination for children.

[8] The test for admitting fresh evidence is set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 at 775. The evidence in this case fails to meet the fourth criteria, that the proposed evidence could reasonably be expected to have affected the result of the motion.

[9] As further set out below, J.N. v. C.G. states that courts should take judicial notice of regulatory approval and recommendation of COVID-19 pediatric vaccination, and that regulatory approval is strong evidence that the vaccine is safe and effective. Further, evidence submitted to contradict Health Canada’s position must meet the criteria for expert evidence. The question of vaccine safety and efficacy requires scientific expertise. The problem with the father’s motion is that he has not provided any expert evidence to interpret the information he seeks to admit. In the face of Health Canada’s ongoing approval of COVID-19 vaccination for children, and without any expert interpretation of the significance of the father’s information, none of the information he seeks to admit could reasonably be expected to affect the result of the motion. Therefore, the motion is dismissed.

Analysis

Standard of Review

[10] As the Court of Appeal stated in J.N. v. C.G., the standard of review in appellate family law proceedings where parenting time and decision-making authority is at issue is narrow. Decisions on these matters constitute an exercise of discretion and attract a high degree of deference: an appellate court can only intervene if the motion judge erred in law or made a material error in the appreciation of the facts: J.N. v. C.G., at paras. 9-10; N.S. v. R.M., 2019 ONCA 685, at para. 4; Sferruzzi v. Allan, 2013 ONCA 496, [2013] W.D.F.L. 3642, at para. 43; and Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13.

Did the motion judge err by refusing to take judicial notice of regulatory approval?

[11] The motion judge in this case erred by failing to apply principles set out in J.N. v. C.G. The first error related to his refusal to take judicial notice of regulatory approval of the vaccine. While taking judicial notice is generally discretionary, the motion judge’s reasons were released shortly after the Court of Appeal’s decision. The Court of Appeal noted that “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. The court therefore stated, at para. 45, that judicial notice “should” be taken of regulatory approval, and “regulatory approval is a strong indicator of safety and effectiveness.” The court emphasized that COVID-19 kills people, including children, and stated that it was unrealistic for parties to relitigate the question of vaccine efficacy each time there was a disagreement about it.

[12] In this case, the motion judge declined to follow this guidance. Contrary to the Court of Appeal’s approach, the motion judge stated, at para. 358, that “what public health authorities have been saying is evidence simply of the fact that the public health authorities have been saying that vaccines are ‘safe and effective.’”[^2] He therefore was of the view that he could not take judicial notice of vaccines being safe and effective: at paras. 394 and 520. Similarly, he stated, at para. 466, that he may not be prepared to “take judicial notice of a ‘fact’ based on what is clearly speculation.”

[13] In the specific circumstances of this case, his refusal to take judicial notice of regulatory approval constituted a material error in the appreciation of the facts. He was addressing the same regulatory approval in the context of the same pandemic immediately after the release of the Court of Appeal’s decision. There was no factual distinction that justified a different approach.

[14] Further, in his approach, he erred in principle by relying on information that was not properly before him in evidence, contrary to the guidance in J.N. v. C.G. He used this information to question the validity of regulatory approval.

[15] J.N. v. C.G. underscored the importance of relying only on admissible expert evidence when assessing vaccine efficacy. The motion judge in that case had erred by failing to assess whether documents relied on by the party objecting to vaccination were independent, unbiased, and authored by someone with expertise in the area. The court stated, at para. 19, that the information relied on by the objecting party “was nothing but something someone wrote and published on the Internet, without any independent indicia of reliability or expertise, which, even if admissible, should have been afforded no weight at all.”

[16] Here, the motion judge stated that he was avoiding this problem by not relying on the inadmissible evidence for the truth of its contents: at para. 619. He instead relied on it to state that “reasonable people” disagreed with public health authorities about the effectiveness of the vaccine. Therefore, in his view, judicial notice should not be taken of the vaccine’s effectiveness.

[17] To reach this conclusion, however, he needed to be sufficiently satisfied that the competing authorities were authored by “reasonable people” with sufficient expertise to raise doubts about the conclusions of public health authorities. He did not make this assessment on evidence that was before him. He stated, at para. 446: “[W]hen individuals who appear to be “prima facie experts” in the field are questioning the very premise of which a court being asked to take judicial notice…the court should at least consider this in the analysis of judicial notice.”

[18] The only person the motion judge named as a “prima facie expert” was Dr. Robert Malone. The father did not submit any evidence from Dr. Malone. There is no article by Dr. Malone, much less an affidavit or curriculum vitae. Instead, the motion judge appears to have relied on previous motion decisions, such as the decisions in J.N. v. C.G. (which was overturned on appeal) and Rashid v. Avanesov, 2022 ONSC 3401. He stated that “other courts” had recognized Dr. Malone as the inventor or founder of the mRNA vaccine. However, the motion judge in Rashid raised the risk of relying on Dr. Malone’s evidence. The Court of Appeal in J.N. v. C.G. also specifically rejected the findings of the motion judge in that case regarding Dr. Malone. The court stated that it was unclear how anyone could conclude from the material filed that Dr. Malone invented the mRNA vaccine or that he was a leader in the field.

[19] In other words, the only expert named by the motion judge as a “reasonable person” was dismissed by the Court of Appeal due to the absence of evidence justifying any reliance on his views. In these circumstances, it was an error for the motion judge to rely on Dr. Malone’s “prima facie” expertise to discount the conclusions of public health authorities.

[20] The motion judge also erred by relying extensively on events and personal observations rather than on the evidence before him. His error here was similar to what occurred in J.N. v C.G., in which the Court of Appeal stated, at para. 23, that “instead of conducting a meaningful analysis of the appellant’s material, the motion judge simply cited historical events … as a reason not to place reliance on government sources generally.”

[21] A similar problem arose here. The motion judge in this case wrote for several pages about events and information not arising from the evidence. His observations were either generic and inapt comments on public events or, if more specific, not founded in the evidence before him. They included the following:

• The Chief Medical Officer for Ontario had held a press conference recommending the wearing of masks but then was seen at a public event not wearing a mask: at paras. 425-29.

• Government messaging at the time of the Thalidomide drug was clearly wrong: at paras 470-72.

• Legislation in other countries provides immunity to pharmaceutical companies regarding vaccines: at paras. 478-80.

• The media and government continued to allow tobacco and alcohol companies to advertise even when it became known that they harmed people’s health: at paras. 486-89.

• Dr. Malone should not be discounted because he was banned from Twitter for spreading “misinformation”: at paras. 501-11.

• The court had concerns about the mainstream media promoting a “narrative”: at paras. 516-19.

[22] The motion judge also stated that it appeared the mRNA vaccine was different from “conventional vaccines” and that the timeline in its “invention” and testing was far shorter than for other vaccines: at para 481. The record included one internet article citing Dr. Anthony Fauci as saying there was insufficient time to complete a clinical trial on an “updated vaccine.” The motion judge did not cite the article nor assess its independence or reliability.

[23] The motion judge relied on the observations set out above, among others, to conclude that he should not take judicial notice of regulatory approval. Particularly in the face of the significance placed on regulatory approval of the vaccine in J.N. v. C.G., it was an error to refuse to take judicial notice of it based on evidence that was either not before him or without having assessed the source of the information.

Did the motion judge err by failing to put the onus on the party objecting to vaccination?

[24] Later in his reasons, the motion judge addressed why, even if he accepted the validity of regulatory approval, he considered it appropriate to defer the vaccination issue to trial. In this part of his reasons, he acknowledged that J.N. v. C.G. had stated that judicial notice should be taken of regulatory approval. He emphasized that, unlike in J.N. v. C.G., he was addressing an interim motion. In his view, even if public health directives were “presumed to be true,” the father should be entitled to have the issue addressed at trial so he could call expert evidence.

[25] In a related argument, the father submits that this court should not interfere with the motion judge’s deferral of the issue to trial. In his submission, on an interim motion, the mother had the onus of convincing the motion judge that the status quo regarding decision-making should be varied pending trial. In the father’s submission, she failed to persuade the motion judge that it was in the children’s best interests to do so.

[26] The problem with this submission, and with the distinction drawn by the motion judge, is that the onus was not on the mother. J.N. v. C.G. puts the onus on the party objecting to vaccination to demonstrate why public health recommendation in favour of pediatric vaccination should not be followed. The Court of Appeal found that where one party seeks to have a child vaccinated in accordance with Health Canada approvals and recommendations, the onus is on the objecting party to show why the child should not receive the vaccination.

[27] This onus applies equally to prevent delaying vaccination in the context of an interim motion. In A.V. v. C.V., at para. 21, this court found, in the context of an interim motion, that compelling reasons would be required to disregard current regulatory approval and recommendations to delay vaccination. The court noted that, as emphasized in J.N. v. C.G., COVID-19 is dangerous. Given that regulatory approval provides a strong indicator of safety and effectiveness, “in the absence of admissible evidence and compelling reasons to the contrary, current health recommendations should be followed”: at para. 23. The court also noted that, in light of the weight of the existing case law, the party opposing vaccination should have known that fighting vaccination in the face of public health recommendations would be an “uphill battle.” This should have alerted the opposing party of the need to submit admissible evidence on the motion in support of their position.

[28] Here, the motion judge took the opposite approach. He did not put the onus on the objecting party. He stated instead that he did not have enough evidence before him to grant the mother decision-making authority regarding vaccinations. He found that, in the absence of the parties reaching a consensus based on further research and data, the issue should be decided at trial.

[29] In coming to this conclusion, the motion judge did not point to any compelling reasons that would justify a delay in the particular circumstances of the case. His findings that the children were healthy and happy and had had COVID-19 without serious symptoms did not constitute compelling evidence. There was no expert evidence recommending against vaccination in general or for these particular children. Indeed, the children’s pediatrician had submitted a letter recommending vaccination based on public health guidelines. The motion judge found the letter to be inadmissible because it did not address anything specific to the children, but there was no opposing expert evidence recommending against vaccination. In short, once the onus was correctly placed on the father to justify why vaccination should be delayed, there were no compelling circumstances to delay it.

[30] In submitting that the status quo regarding decision-making should be maintained to trial, the father relied on A.M. v. C.D., 2022 ONSC 1516. However, A.M. v. C.D. was decided before the Court of Appeal’s decision in J.N. v. C.G. and did not have the benefit of those reasons. In any event, it is distinguishable. Consistent with J.N. v. C.G., the motion judge in A.M. v. C.D. took judicial notice of the government recommendations in favour of vaccination. He also noted that regulatory approval may amount to a legal presumption that puts the onus on the objecting parent. He declined to order decision-making on vaccination to the mother in the specific circumstances of that case, in part because there was a prior court order granting the father decision-making on health issues. The motion judge was not satisfied that there was a material change in circumstances justifying a change in the health care decision-making responsibilities.

[31] There is no order in this case granting the father decision-making over health issues. In the parties’ minutes of settlement, they agreed that the mother would schedule and attend the children’s annual medical and dental appointments and provide a brief written summary if the father could not attend. They also agreed that the parent caring for the children at the time would deal with any medical emergency. If any parenting issue arose that had not been agreed upon, the mother was to have final decision-making authority after a period of consultation.

[32] Therefore, unlike in A.M. v. C.D., there was no need to find a material change in circumstances to grant the mother decision-making authority over vaccination. A.V. v. C.V. states that where there is no prior order or agreement for decision-making, an appeal court will defer to the motion judge’s weighing of the children’s best interests, absent an error of principle. In this case, there was an error of principle. The motion judge failed to take judicial notice of regulatory approval of the vaccine, relied on evidence not before him, and failed to put the onus on the father to demonstrate why the children should not be vaccinated. These errors were not present in A.M. v. C.D.

[33] Overall, although the issue in this case arose on an interim motion, the motion judge was not justified in delaying the issue to trial. This court emphasized in A.V. v. C.V. at para. 21 that “COVID-19 vaccination recommendations are current advice addressing a dynamic situation involving a global pandemic.” In the context of an apprehended public health crisis, those recommendations should be followed in a timely manner. The father did not meet his onus of demonstrating why the vaccination of these children should be delayed.

[34] Finally, the motion judge noted that the Court of Appeal decision in J.N. v. C.G. came out just as he was completing his decision below. He reviewed the Court of Appeal decision and explained why he concluded that the Court of Appeal decision did not impel him to grant the mother’s motion. With respect, the motion judge’s efforts to distinguish J.N. v. C.G. are unpersuasive. The Court of Appeal was firm in its rejection of precisely the kind of reasoning used by the motion judge, and the motion judge failed in his obligation to follow binding authority.

Did the motion judge err by delaying the matter to trial because there was an agreement it would be determined on a long motion?

[35] The mother submits that the motion judge was not entitled to delay the vaccination issue to trial because the parties had agreed that it would be determined on a long motion. A court order incorporating the terms of the parties’ minutes of settlement provided that the children would not be vaccinated without a further order of the court. It also provided that the mother would be at liberty to bring a long motion for an order permitting her to obtain vaccinations for the children.

[36] I would not give effect to this ground of appeal. It is always open to a motion judge to decide that it is not in the interests of justice for a matter to be determined on a motion if he or she concludes a trial is needed, despite an agreement of the parties. That said, I note that the parties in this case had ample time to adduce any expert evidence they wished to rely on at the long motion. An endorsement of Himel J. in December 2021 stated that the vaccination issue could be dealt with at a long motion in May 2022. The parties entered into minutes of settlement in April 2022, and the motion ultimately was heard in late November 2022. Therefore, for almost a year, the father was aware that the issue would likely be dealt with at a long motion. While I do not find the motion judge erred on the basis that the issue had been scheduled for a long motion, for the reasons set out above, the father did not meet his onus of demonstrating why vaccination should be delayed in this case.

What remedy should be ordered?

[37] In J.N. v. C.G., the Court of Appeal granted decision-making authority to the party seeking to be able to vaccinate the children rather than remitting the matter to the Superior Court. I find it appropriate to take the same approach to remedy here. Given regulatory approval of the vaccine and the absence of evidence to outweigh vaccination for these children, there is no value in remitting the matter to the court below.

[38] The father argued that this court should restrict the remedy to temporary authority over COVID-19 vaccinations. I do not accept this argument. The parties chose to litigate this issue by way of a motion, and the father did not elicit any admissible evidence to put government recommendations in doubt. This is not a case where the father had insufficient time to assemble a proper record, and nothing in the record indicated that the father had additional evidence he wished to put before the court. In this regard, the motions judge found as follows:

658. The court addressing a trial in this issue will be faced with the public health proclamations (sic) that exist at the time of trial which may be different to those that exist today.[^3]

[39] If, in future, there is a material change in circumstances respecting the advisability of vaccinating children against COVID-19, it will be open to the father to bring a motion to change if he disagrees with the mother’s decisions. There is no reason to remit this issue for trial; on a final basis, the mother shall have decision-making authority with respect to the children’s COVID- 19 vaccinations.

Disposition

[40] The appeal is allowed. The mother shall have sole decision-making authority over COVID- 19 vaccinations for the children on a final basis.

[41] The mother has been successful and is entitled to costs of the appeal in the amount of $5,000 all-inclusive. The father is also required to pay the costs of $2,500 fixed on the motion for leave to appeal. Therefore, the father shall pay costs of $7,500 all-inclusive to the mother within 30 days.

“O’Brien J.”

I agree: D.L. Corbett J.”

I agree: “Leiper J.”

Released: 20230928

[^1]: A.V. v. C.V., 2023 ONSC 1634; Spencer v. Spencer, 2023 ONSC 1633. [^2]: J.W.T. v S.E.T., 2023 ONSC 977. [^3]: It was the rhetorical choice of the motion judge to call Health Canada’s recommendations respecting pediatric COVID-19 vaccinations “proclamations”. This was an inappropriate word to describe public health recommendations and could be interpreted as inflammatory rhetoric, which would be misplaced in judicial reasons.