D.S. v. R.C., 2026 ONSC 1509

COURT FILE NO.: DC-26-00000141-00

DATE: 20260312

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: D.S., Moving Party

and

R.C., Responding Party

BEFORE: Schreck J.

COUNSEL: B. Hall, for the Moving Party

No representation on behalf of the responding party

HEARD: In writing

ENDORSEMENT

[1] The moving party, D.S., has filed a motion for leave to appeal the interim decision of Famiengo J. dated March 6, 2026 granting the responding party, R.C., sole decision-making responsibility in relation to their child, as well as a motion to stay that decision pending the motion for leave to appeal. The stay motion is brought on an urgent basis and framed as a motion without notice, although it appears that the motion was served on counsel for the responding party at 2:40 p.m. on March 11, 2026, the same date on which the motion materials were filed. No responding materials have been filed. Because the motion was identified as being urgent, the materials were immediately forwarded to me. Although I have some concerns about whether the requirements for a motion without notice set out in r. 14(12) of the Family Law Rules, O. Reg. 114/99, have been met, I will consider and decide the motion without submissions from the responding party.

[2] This endorsement relates only to the motion for a stay pending leave to appeal. That motion is dismissed for the following reasons.

I. FACTS

A. Background

[3] The order that is the subject of this motion was made in the context of family law proceedings between the parties, whom the motion judge described as having a “high level of post-separation conflict.” D.S. and R.C. are, respectively, the father and mother of an eight-year-old daughter, M., who has been diagnosed with a certain medical condition. A pediatric endocrinologist, Dr. Kate Verbeeten, examined her at the request of R.C. and expressed the opinion that there were certain non-fatal but serious risks associated with the condition, which can be treated with injections of certain medications. Dr. Verbeeten’s advice was to commence the treatment, which she described as having “very few side-effects in this age group.” R.C. wished to follow that advice. D.S. did not. As a result, R.C. brought the motion before Fiamengo J.

[4] At D.S.’s request, Fiamengo J. adjourned the hearing of R.C.’s motion to allow him to obtain a second opinion. He consulted a pediatrician, Dr. Vatinee Thassanapaff, who met with him and M. and prepared a report, dated February 25, 2026. Although Fiamengo J. summarized Dr. Thassanapaff’s opinion in her ruling as being that both treatment and non-treatment with monitoring are “medically acceptable and appropriate,” this information appears to come from D.S.’s affidavit rather than Dr. Thassanapaff’s report, which states:

At today’s visit, I could not provide [D.S.] with any guidance on the potential side effects of [the recommended medication], as it is not a typical medication that I prescribe and is out of the scope of my practice. I recommended that [M.] continue to follow up with her endocrinologist, Dr. Verbeeten, for ongoing monitoring of her [condition].

B. The Ruling

[5] After considering the evidence and the submissions of the parties, Famiengo J. concluded:

The Respondent father submits there is no urgency to the situation. I disagree. The medical evidence and observations of both parties is that this child has been showing [certain specific symptoms] over the last year. [The medical condition] is not life-threatening, but it is life-altering and irreversible. Accordingly, the best interests of [M.] demand that a decision be made expeditiously.

The ineffective communication style and history of conflict between the parties makes it impossible for them to make decisions jointly.

For additional oral reasons provided, the Applicant mother’s motion shall be granted.[^1]

II. ANALYSIS

A. The Test for Granting a Stay

[6] The test for granting a stay is well-established. The party seeking the stay must establish that (1) on a preliminary assessment of the merits of the case, there is a serious issue to be determined; (2) irreparable harm will be caused if the stay is not granted; and (3) the balance of convenience favours granting a stay: A.A. v. Z.M., 2024 ONCA 923, 504 D.L.R. (4th) 139, at para. 17.

B. Serious Issue to Be Determined

(i) Requirements for Leave to Appeal

[7] With respect to the merits of the case, the request is for a stay pending a motion for leave to appeal, so it is the merits of the motion for leave that must be considered. The test for obtaining leave to appeal an interlocutory order is stringent. Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires that the party seeking leave demonstrate either (1) the existence of conflicting decisions with respect to the legal principles at issue which make granting leave desirable; or (2) that there is good reason to doubt the correctness of the order in question and the proposed appeal involves issues of such importance that leave should be granted.

(ii) Conflicting Decisions

[8] The moving party submits that the first prong of the test is met, relying on four decisions said to conflict with the motion judge’s ruling: Rouse v. Howard, 2022 ONCJ 23, J.W.T. v. S.E.T., 2023 ONSC 977, M.M. v. W.A.K, 2022 ONSC 4580 and Soucy v. Chan, 2022 ONSC 3911. All four involve unsuccessful motions by one parent to have a child receive a COVID-19 vaccination against the wishes of the other parent. One of the decisions was reversed on appeal, which is not mentioned in the motion materials: S.E.T. v. J.W.T., 2023 ONSC 5416 (Div. Ct.), 95 R.F.L. (8th) 198. Two of them appear to be based, at least in part, on the court’s refusal to take judicial notice of information from governmental agencies about the safety and efficacy of the vaccines: M.M., at paras. 38-43; Soucy, at para. 22. The correctness of those conclusions must be assessed in light of subsequent caselaw: J.N. v. C.G., 2023 ONCA 77, 477 D.L.R. (4th) 699, at paras. 29-31; A.V. v. C.V., 2023 ONSC 1634 (Div. Ct.), 91 R.F.L. (8th) 473, at para. 6; Spencer v. Spencer, 2023 ONSC 1633 (Div Ct.), 92 R.F.L. (8th) 486, at para. 11. In any event, all of these decisions turned on their particular facts, and are therefore not “conflicting decisions with respect to the legal principles at issue.”

(iii) Reason to Doubt the Correctness of the Decision

[9] With respect to the second prong, the motion judge’s decision was based on factual conclusions. She found that there was a risk of harm to M. if the treatment was not administered and that it was therefore in her best interests to make the order being sought. This conclusion was supported by the evidence and does not reflect any palpable and overriding error, the standard the moving party would have to meet to successfully appeal the findings: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10.

[10] The moving party also submits that the order at issue is “in contravention of ss. 4 and 10 of the Health Care and Consent Act, 1996, S.O. 1996, c. 2 [HCCA]” because when M. was asked by Dr. Thassanapaff whether she wanted to prevent the development of certain symptoms by getting “shots,” she said “no.” The applicability of the those sections of the HCCA would depend on the extent to which eight-year-old M. has “the intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences”: A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, at para. 96; A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at paras. 68-71. In any event, the issue before Fiamengo J. was about which parent can make medical treatment decisions, not whether such decisions should be unilaterally made by M.

[11] Based on the foregoing, it is in my view unlikely that leave to appeal this interim order would be granted, so the moving party has not established that there are serious issues to be determined on the motion for leave.

C. Irreparable Harm

[12] With respect to irreparable harm, D.S. asserts in his affidavit that the treatment could result in a number of serious adverse effects, including seizures, intracranial hypertension, toxic epidermal necrolysis, and others. This appears to be based on D.S.’s reading of the medication’s product monograph. The likelihood of any of these adverse effects occurring is unclear, but the monograph does state that “the safety and efficacy of [the medication] in pediatric patients has been established for the treatment of [the medical condition],” which accords with the opinion of Dr. Verbeeten. I am not satisfied that there will not be irreparable harm without a stay of the order.

D. Balance of Convenience

[13] In terms of the balance of convenience, the evidence before Fiamengo J. supports her conclusion that M.’s best interests require that the treatment decisions be made expeditiously.

[14] Having carefully considered the relevant factors, I am not satisfied that a stay of Famiengo J.’s order is in the interests of justice.

III. DISPOSITION

[15] The motion for a stay is dismissed.

[16] As the responding party did not file materials or make submissions, there will be no order as to costs.

Schreck J.

Date: March 12, 2026

[^1]: I have not been provided with the additional oral reasons referred to.