Pauline Klemencic

This was a family costs endorsement following cross-motions about temporary decision-making responsibility for a child's vaccinations.

The court held that the successful party's offer to settle did not trigger the enhanced costs consequences under subrule 24 (12) because the order obtained was not as good as or better than the offer.

Applying the presumption in favour of the successful party, while recognizing divided success on some subsidiary issues, the court found the father was successful overall on the dominant vaccination issue.

After considering reasonableness, proportionality, counsel rates, time spent, and the responding party's ability to pay, the court fixed costs at $6,000 inclusive, payable by instalments.

Father sought temporary sole decision-making responsibility over child vaccination and an order prohibiting the mother from discussing vaccines with the child.

Mother opposed vaccination, seeking sole or joint decision-making authority, arguing the child was healthy and that the father had previously agreed to delay vaccination.

Applying J.N. v. C.G., 2023 ONCA 77, the court held the onus fell on the mother to rebut the presumptive safety and efficacy of Health Canada-approved vaccines.

The mother failed to adduce credible evidence displacing public health recommendations; her exhibits were incomplete, dated, or irrelevant.

The court granted the father temporary sole decision-making responsibility over vaccination, dispensed with the mother's consent, but declined to restrict the mother's speech regarding vaccines, finding the request too intrusive on a single evidentiary lapse.

In a status review application under the Child and Family Services Act, the court determined that two children continue to be in need of protection and made an order for crown wardship with permanent placement in a kinship foster home with the maternal aunt and uncle.

The mother sought return of the children to her care subject to society supervision, while the father sought return to his sole custody without supervision.

The court found that neither parent could adequately care for the children due to the mother's multiple health conditions and parenting deficits, and the father's refusal to acknowledge substance abuse issues, violence, and his complete lack of contact with the children.

The court approved the society's plan for crown wardship with the children remaining in the stable kinship placement where they were thriving, while maintaining supervised access with the mother and discretionary supervised access with the father.