Editor’s note: Corrigendum released on April 14, 2015. Original judgment has been corrected with text of corrigendum appended.

CITATION: C.M.G. v. D.W.S., 2015 ONSC 2201

COURT FILE NO.: FS-809-13

DATE: 2015-04-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: C. M. G., Applicant

AND:

D. W. S., Respondent

BEFORE: The Honourable Mr. R.J. Harper

COUNSEL: Gloria Ichim, Counsel for the Applicant

In Person, the Respondent

Alfred Mamo, Amicus Curiae

HEARD: March 11, 2015

ENDORSEMENT

Background

[1] I granted an order at the outset of the hearing of this motion, at the request of the Amicus, Mr. Mamo, pursuant to the Courts of Justice Act. R.S.O. c. C-43 s. 137(2) as follows:

a. The title to the proceedings is amended to use initials

b. The publication of the child’s name or any information that would lead to the identification of the child by the public is prohibited

c. In the event that an order is made that would require a third party to know the identity of the child (such as a Doctor or a customs officer) any such order will contain full particulars about the name and date of birth of the child

[2] The parties have one child, who is the subject to this proceeding, S.G-S, born […], 2004. She is now 10 years of age.

[3] The mother, C.M.G., and the father, D.W.S., cohabited until April 2012. The mother brought an application in the Superior Court on September 6, 2013. In the Application she claimed, among other things, sole custody of the child. The mother claimed that although the father had acquiesced to the mother’s decision-making regarding the children in the past, he had begun to openly question the mother’s parenting methods and decisions, especially concerning the parties’ decision to raise the children within a naturopathic health regimen, which requires that the children not participate in the immunization process. The mother claimed that the father had threatened to have the child immunized without first obtaining the mother’s consent.

[4] The father claimed in his initial Answer that he and the mother had spent their entire relationship disputing the core issues of parenting, lifestyle, health, and well-being. He gave further examples of major disputed areas of disagreements between them such as, homeopathic vs modern medicine, organic vs non-organic foods, vegetarian vs meat eating, vaccinations vs not vaccinating, and chiropractic adjustments on a child.

[5] Despite these major areas of disagreements, the parties entered into an agreement to resolve their custody dispute. A Final Order dealing with custody of the child was made on consent of the parties by Justice R.D. Reilly on May 9, 2014. The parties have also entered into a separation agreement.

[6] The parents’ consent order gave joint custody to each parent. The order included a term that the parents had agreed to not vaccinate their child before she reached 12 years of age. They further agreed that at age 12, the child would make her own decision with respect to vaccinations. In addition, although the parents were to consult and inform each other on all major decision making relative to the child, the mother would have final decision making authority.

[7] Despite the parties entering into a joint custody agreement, their separation has been characterized by acrimony and conflict. They have attempted to set their conflicts aside. However, predictably, disagreements between them about joint decision making over medical decisions started to escalate. Their inability to decide on whether or not their child should receive a measles vaccination came to a head when the mother expressed that she wanted to take the child to Germany. This trip was intended to be for a holiday, to meet extended family members and learn more about the child’s culture and heritage. The trip is scheduled to start on April 28, 2015.

[8] The father agrees that the visit is in the best interest of the child; however, he will give his consent for the child to travel only if she is vaccinated for certain diseases, including measles.

[9] This matter came before Justice Flynn on February 20, 2015. Justice Flynn did not make an order or any finding relative to the issue of vaccinations. He ordered that the mother be allowed to take the child to Germany. That same day the father brought a motion to change the joint custody order to give him sole decision making power relative to medical issues related to the child. The mother opposes his motion and she counters that she should be given sole decision making powers relative to medical issues.

[10] This case brings to the forefront multiple issues that include: when is it appropriate to enter into a joint custody arrangement; if such arrangement is entered into, what impact should that agreement have on a court who subsequently is asked to make a decision the parties are unable to make; and what degree of input should a child have in medical decisions affecting him/her. It also highlights the polar opposite positions of those who refuse to vaccinate their children under any circumstances with those who feel that vaccination is a necessary preventative measure in preventing a serious infectious disease being contracted by or spread by an unvaccinated child.

The Impact of the Joint Parenting Agreement

[11] The father asserts that he only agreed to the clause relative to not vaccinating their child in order to stop the litigation from going any further. He suggests that recent worldwide developments that have been featured in the news highlight concerns over diseases that were otherwise thought to be contained and relatively non-existent becoming a concern once again. The recent outbreak of the measles disease is at the centre of the controversy before this court.

[12] The father now contends that the child must be vaccinated before the trip to Germany and that the situation has changed materially changed since the parties entered into that agreement in 2007. The mother strongly opposes the child being vaccinated. She is an adherent to the homeopathic approach to health and treatment. She submits that the introduction of pathogens into her child by vaccination is harmful to the child. It is the mother’s submission that the vaccination is harmful and the benefits do not outweigh the harm.

[13] To complicate this issue, both parties were self-represented when this matter first came before me on March 11, 2015. On that date, I made a determination that the evidentiary record was simply insufficient for the court to make a decision that would have potential serious implications on the public and children in addition to this family. Although the parties did their best to put their case forward, they did not understand all of the evidentiary issues they faced. As a result, their affidavits are replete with inadmissible evidence such as copies of newspaper and other articles taken off the internet. In addition, they did not have any legal authorities that might assist the court in making such an important decision as the one placed before the court

[14] The court is placed in an extremely difficult position when it is faced with unrepresented litigants that come before the court. Often the record is vacant of proper pleadings and material facts are all too frequently lost within the maze of emotional diatribe. Although judges have an ethical duty to make efforts to inform self-represented litigants, a court cannot enter the fray to the extent of doing its own research on the evidentiary issues or legal issues that the parties have not placed before the court.

[15] Most often a difficult balance is struck and these matters struggle through to decision making. This is not a case that I felt this struggle would result in a just result and fair process. I am not able to take judicial notice of articles that are not shown to have general acceptance in the medical community. I cannot simply pick and choose from medical literature plucked by the parties from the internet and attached to the parties’ affidavit nor is it proper for me to do my own research. Judges should not be relying on law that the parties have not had the opportunity to consider and make submissions on.

The Involvement of the Office of the Children’s Lawyer

[16] As a result of the above described conundrum, I made an order on March 11, 2015 requesting the Office of the Children’s Lawyer to become involved to assist the court by acting for the child and ensuring that a complete evidentiary record be placed before the court and to make legal submissions that would provide for a better opportunity for a just determination of this issue.

[17] The Office of the Children’s Lawyer was served with my endorsement and replied in a letter to the court on March 13, 2015. The letter states:

Thank you for forwarding me the endorsement of Justice Harper dated March 11, 2015 on the above-mentioned matter. I have since reviewed the endorsement and have spoken with Justice Harper.

By way of background, in Ontario, a child may have legal representation any stage of a custody/access proceeding upon receipt of a court order made pursuant to subsection 89(3.1) of the Courts of Justice Act. The order is in the form of a request that the Children's Lawyer provide such services as she deems appropriate. As such, unlike orders made under section 38 of the Child and Family Services Act in which the provision of child's counsel in protection matters is mandatory, the Children's Lawyer has the discretion to either accept or decline the court's referral of a custody/access case. If the case is accepted and legal representation is assigned for the child(ren), the child's counsel provides legal services including safeguarding procedural matters, adducing evidence and arguing relevant law, all of which support the child client's position. The lawyer acting in this role does not put forward his or her own personal views to the court regarding the best interests of the child, nor does he or she adduce evidence for the specific purpose of supporting or explaining the position of the parent parties.

In this case, as we understand it, the Court is seeking assistance in a context where parents are not represented and are therefore unable to put a proper evidentiary record before the Court in support of their conflicting positions on child vaccination. In the circumstances, the Court is seeking assistance to create such an evidentiary record to assist its decision making. The Court is not asking for the child's position on the matters in contention between the parents.

Based on the information available and our discussion with Justice Harper, I have decided to respectfully decline the request.

[18] This matter is urgent given the impending trip set to start on April 28, 2015. I do not comment on whether the Children’s Lawyer’s position as set out above is the position that is sustainable in law. However, given the position that has been taken, I resorted to my parens patriae jurisdiction to appoint an amicus curiae to represent the child for the motion that was set for argument March 27, 2015.

The Appointment and the Parameters

[19] The Ontario Court of Appeal in Bhajan v. Ontario (Children’s Lawyer) 2010 ONCA 560, Weiler J.A.(in chambers) stated commencing at para 4:

[4] The appointment of amicus curiae is in the discretion of the court. The role of amicus curiae has not been defined by legislation but has evolved in the jurisprudence.

[5] In Peel (Regional Municipality) v. Great Atlantic and Pacific Company of Canada Limited (1990), 1990 6886 (ON CA), 74 O.R.(2d) 164, at p. 167, Dubin C.J.O. succinctly stated:

Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

[6] Insofar as the nature of the case is concerned, in Childs v. Desormeaux (2003), 2003 47870 (ON CA), 67 O.R. (3d) 385, Chief Justice McMurtry explained that much litigation falls in between the private and constitutional or public spectrum. The closer a case is to the purely private end of the spectrum the higher the burden will be on those seeking to intervene as amicus. Although in that case the litigation was private in nature, it raised the policy issue of whether the social hosts of a bring your own booze New Year`s Eve party owed a duty of care towards a guest to see that he did not become intoxicated and subsequently drive.

[7] Chief Justice McMurtry also observed that the role of amicus curiae has evolved from that of a neutral, objective person making submissions to the court, to that of an advocate on behalf of a particular person or point of view in many cases. The word “argument” in r. 13.02 imports the notion of advocacy and reasoned persuasion. Accordingly, he granted intervener status to Mothers Against Drunk Driving (MADD) to intervene, although they would be arguing in support of Childs’ position, because he was of the opinion they could make a useful contribution.

[8] An additional consideration in deciding whether to appoint amicus curiae is whether there will be a party responding to the appeal. One of the roles of amicus curiae is to help the court if no one responds to an appeal or a party is unrepresented. See e.g. R. v. Lariviere (2001), 35 S.C.R. 1013.

[20] In the case before me, the amicus is needed, not only to make legal submissions but also to ensure that proper and compete evidence is placed before the court in order to make the important decision that has implications extending beyond this family and into the public. Although there are expanded implications of any decision that I might make to the public, my sole consideration is the best interest of the child who is the subject of this proceeding.

[21] In R. v Russel, 2011 ONCA 303, the Ontario Court of Appeal considered a ruling of Justice Marrocco, as he then was, appointing amicus curiae in a criminal matter before him. In that case, Marrocco J. ordered an experienced criminal lawyer to represent an accused in the middle of a lengthy trial in which the accused had fired multiple lawyers who had been defending him. Justice Marrocco set the parameters of the role of the amicus and the terms of his compensation. The parameters or the role and the compensation became the subject matter of the appeal. I note that the appointment of the amicus in that case was not made pursuant to the Criminal Code. It was made pursuant to the court’s inherent authority to make such an appointment.

[22] The Court of Appeal upheld Marrocco J’s ruling.

Appointment, Terms, and Parameters

[23] In the case before me the child needs the amicus’ assistance of a lawyer who has special knowledge and skills in family law and more particularly in children’s issues. I appointed Alfred Mamo to be the amicus in this case. He agreed to the appointment and to provide his services on an expedited basis to meet the needs of this case. He task was to ensure that all the necessary evidence was placed before the court including, but not limited to, the relevant medical evidence.

[24] Mr. Mamo would be allowed to fully participate in the hearing of this motion and to make whatever submissions he felt necessary.

[25] In my earlier ruling, I ordered that Mr. Mamo, as senior counsel, would be entitled to senior counsel rates. I fixed his remuneration at the rate the Ministry of the Attorney General pays its senior crown law office counsel. The Ministry of the Attorney General would be responsible for the payment of the amicus accounts. I also ordered that any disagreement over his fees and disbursements could be placed before me.

[26] This ruling was served on the parties, Mr. Mamo, and the Ministry of the Attorney General. I directed that if any of the above wished further direction they could arrange a teleconference with me. Apparently there was an attempt to arrange such a conference; however, it did not occur. Instead, the Ministry of the Attorney General brought a motion that was returnable on the day the motion was argued, March 27, 2015. At the motion, the Ministry did not oppose the appointment of Mr. Mamo. However, they did oppose the rates that I had fixed for his compensation. The Ministry cited the Supreme Court of Canada Criminal case of Her Majesty the Queen v. Criminal Lawyers’ Association of Ontario et al. 2013 SCC 43, [2013] 3 SCR 3; 2013 SCC 43.

[27] In that case, the Supreme Court dealt with the issue of trial judges appointing amici curiae who set higher rates of compensation than those offered by the Attorney General. The Attorney General took the position that the authority of the judge to appoint amici did not necessarily imply the authority to set a specific rate of compensation. The Attorney General argued that the ability to fix rates of compensation was not necessary for the court to make in its power to appoint amici curiae effective and the ability to fix rates was did not form part of the inherent jurisdiction of a superior court.

[28] The Supreme Court stated that it was vital that each branch of government respect its proper institutional roles and capacity in the administration of justice, in accordance with the Constitution and public accountability. It was also pointed out that a lawyer who was appointed as amicus who then took on the role of a defence counsel was no longer a “friend of the court” in criminal cases.

[29] Absent statutory authority or a challenge on constitutional grounds, courts did not have the institutional jurisdiction to interfere with the allocation of public funds. While the jurisdiction to control court processes and functions as a court of law gave the courts power to appoint amici curiae, it did not in itself provide the power to determine what the Attorney General had to pay them.

[30] I note that all four matters that were the subject of the above appeal were of criminal proceedings. The Court of Appeal had ruled that the court did have the power to fix the rates of compensation. The Supreme Court of Canada disagreed. Counsel for the Ministry of the Attorney General could not site any cases where this issue came before the court in a civil case involving children where the court was exercising its parens patriae jurisdiction to appoint the amicus. Counsel for the Ministry of the Attorney General submitted that this court should adopt the same procedure that has been developed in the criminal cases involving amici appointments. The Attorney General has set up a panel of lawyers willing to act as amicus and willing to accept legal aid rates. The program is administered through the office of Legal Aid Ontario.

[31] Mr Mamo stated that he was not taking a position of the issue of fixing of rates and left the matter in my hands. I ruled that I would amend my earlier order to allow for Mr. Mamo’s rates to be set by Legal Aid Ontario. In doing so I was not ruling on whether or not a Superior Court could fix rates when exercising its parens patriae jurisdiction. My ruling was accepted by both Mr. Mamo and the Ministry of the Attorney General. In my view it is more important to have this matter proceed with the assistance of the Amicus then to get bogged down in the issue of fixing rates. Under those circumstances, the matter proceeded to argument.

Judicial Consideration of Parenting Agreement

[32] Justice Nolan reviewed the statutory considerations that must be analysed when courts are dealing with parenting agreements made by the parties. In Wainwright v. Wainwright, 2012 ONSC 2686 commencing at para 136:

The Children’s Law Reform Act provides the following:

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

68. Where a domestic contract as defined in the Family Law Act makes provision in respect of a matter that is provided for in this Part, the contract prevails except as otherwise provided in Part IV of the Family Law Act.

69. This Part does not deprive the Superior Court of Justice of its parens patriae jurisdiction.

[137] The Divorce Act provides:

16. (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

17. (5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

[138] The Family Law Act, R.S.O. 1990, c. F.3, contains the following directions:

54. Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children;

(d) the right to custody of and access to their children; and

(e) any other matter in the settlement of their affairs.

56. (1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

[33] Whether the court is considering an issue or incident of custody and access to a child, under the Divorce Act or the Children’s Law Reform Act, the only consideration is the best interests of the child. In considering the best interest of a child, the court may disregard any provision of a domestic contract where in the opinion of the court to do so is in the best interest of the child.

[34] In this case, the agreement of the parties was made part of a court order on the consent of the parties. It is clear that there had been no adjudication on the issue of the clause in the agreement that dealt with the child being vaccinated. Where there has been a court order that was made on consent without adjudication, I am mindful of the following:

[35] Lenney, Duguay, M.K. and McGrath involved agreements that had already received prior judicial approval in that they had been incorporated into a court order on consent before trial. Justice Nolan reviewed these decisions in Wainwright and stated commencing at para 144:

[144] The parties in Lenney v. Lenney (1996), 1996 10601 (AB QB), 194 A.R. 50 (Q.B.) were divorced in 1995. At that time, it was agreed by them in their judgment of divorce that they would have joint custody of their two children. In the event that any conflict arose between them, the judgment included a provision whereby the parties agreed to engage in mediation, and further, that this would be “followed to its conclusion prior to either party seeking relief from the Court” (Lenney, at para. 1). Sometime thereafter, the mother decided that she should have sole custody of the two children and therefore, brought a motion requesting such an order. In its dismissal of the mother’s motion as “premature”, the court pointed out that she had not first endeavoured to resolve the matter through mediation as she had promised to do in the agreement she had entered into with her former husband (Lenney, at para. 36). I find the court’s analysis in Lenney helpful in considering the issue before me.

[145] At para. 17, the court stated that while ordinarily an agreement made in the commercial or business context to mediate or arbitrate will be enforced by the court, the same will not always be true in the case of a domestic contract:

The reason for the difference between the family law situation and the commercial one is that the best interests of children – where the children are urgently in need of intervention by the court – constitute an even more important priority than the need to re-enforce [sic] the importance of keeping promises set out in a contract.

[146] Thus, the court held that where it is in the best interests of the child or children to do so, courts will intervene before the mediation process has concluded and issue its own decision with respect to custody and access. However, Veit J. noted that such interference must be tempered by the requirement that there be some urgent or exigent circumstance warranting intervention. In other words, “unless special circumstances exist, the court should enforce the agreement between the parties to mediate” (Lenney, at para. 18). Looking to the facts of the case before her, Veit J. found that there was no urgency or threat to the best interests of the children, and so concluded that it would be improper for her to interfere with the parties’ agreement at that point.

[147] Veit J. made two other observations in her judgment that, while not the decisive factors, remain important. First, she noted in her conclusion that requiring parties to adhere to a contractual term that calls for mediation of custody and access issues is “very much in the best interests of children” (Lenney, at para. 37). The rationale said to underlie this conclusion was rooted in the fact that mediation often enables parents to come to “healthy, reasonable” solutions to their conflicts, as opposed to the adversarial process where “children are often drawn into the fray” (Lenney, at para. 37). Veit J.’s second observation related to courts’ parens patriae jurisdiction: “where children are concerned, the state might still have a role even though the parents have not asked for intervention” (Lenney, at para. 30).

[148] The suggestion that the best interests of the child may enable a court to override or disregard a provision in a separation agreement governing custody or access was also recognized in the decision of the Ontario Superior Court of Justice in Duguay v. Thompson-Duguay (2000), 2000 22515 (ON SC), 7 R.F.L. (5th) 301 (Ont. S.C.). At para. 31, Perkins J. noted that where an agreement deals with custody or access, even if it is in proper form, “the court is free to disregard those terms – though on other matters it still prevails over the statute – if the best interests of a child are, in the court’s opinion, not served by the contractual terms” (Duguay, at para. 32). The court also discussed at para. 31 the fact that arbitration and arbitration clauses, albeit well-suited to commercial contracts, were not as appropriate in the context of family law disputes:

The legislature has given the courts clear instructions to exercise the highest deference to arbitration awards and arbitration clauses generally. However, the Arbitration Act, 1991 governs all kinds of disputes, typically but not exclusively commercial. Its term about enforcing arbitration clauses and awards are not framed particularly for family law, and still less are they drawn for custody and access matters.

[149] The parties in Duguay had signed minutes of settlement whereby they had agreed to arbitrate any access disputes. When the father sought to change the weekend access arrangements that had been in place, the mother refused to attend mediation or arbitration, citing, among other reasons, the fact that she could no longer afford the proceedings and that she had lost confidence in the parties’ arbitrator. The father’s application to enforce the arbitration award that had been made without the mother’s participation was dismissed. Perkins J. ultimately made a court order on the issue of access, and justified the court’s intervention by stating that “the imposition of mediation would provide another source of strife, the effects of which would be felt by the children” (Duguay, at para. 36). Also, as in Lenney, he invoked the court’s parens patriae power, which he asserted gave him jurisdiction to intervene where it was necessary in the best interests of the children (Duguay, at para. 41).

[36] I agree with Justice Nolan’s comments at para 166 of Wainwright:

[166] Based on the authorities outlined above, it is clear that the Superior Court of Justice can refuse to give judicial to the mediation/arbitration clause contained in the parties’ minutes of settlement, provided it is determined that to do otherwise would risk the best interests of the child. The Superior Court’s jurisdiction to do so is grounded in both its parens patriae jurisdiction (s. 69 of the Children’s Law Reform Act), the statutory requirement to disregard domestic agreements where they do not accord with the best interests of the child (s. 56(1) of the Family Law Act), and its general duty not to abdicate responsibility for custody and access issues to third parties.

[37] I am of the view that I must consider the best interests of the child. The fact that the parties entered into an agreement is only a consideration. The fact that the agreement had been incorporated into a court order on consent, without litigation, will be a further consideration for me when determining the best interests of the child. I do not feel, under the circumstances of this case, that I am bound by the terms of that order when I must consider the best interests, at this stage. The terms of the agreement that is significant for the issue I must determine is as follows:

a. That the applicant and the respondent are to have joint and shared custody of the child, S G-S

b. That with respect to medical decisions relating to the child, in the event of a disagreement in a serious, life threatening situation, a medical professional’s recommendations will be implemented; otherwise, the applicant mother would have final say.

c. That with regard to vaccinations for S G-S, both parties agreed not to vaccinate the child and that she may decide for herself when she reaches the age of 12. (emphasis is mine)

d. The parties are to agree to openly share with each other all information relating to any medical, education, banking and extra-curricular information involving Sarah, including access to

a. S G-S’s birth certificate, health-card, banking card and passport when needed.

[38] The parents’ absolute prohibition on vaccinations for the child prior to age 12, in my view, is not in the best interests of the child. That agreement of the parents does not reflect any reasoned analysis that is required in order to make a decision to vaccinate or not vaccinate the child. It does not deal with any reasoned consideration of issues that may arise in the future. It represents a simple ban of vaccinations where a complex analysis is required. I accept the evidence of the father that that agreement represented a simple way to end the litigation rather than deal with the disputed issues. In my view, a joint custody scheme that is entered into on the basis does not reflect the legal considerations that are clearly set out by many courts.

[39] Justice Whalen stated in Rapoport v. Rapoport, 2011 ONSC 4456 at para 48:

[48] However, the courts have consistently held that there must be a high level of co-operation and communication between the parents if joint custody is to be a viable option consistent with the best interests of the children. Rivard v Rivard, 2010 ONSC 2711; Lawson v. Lawson (2006), 81 O.R. (3d) (C.A.); Roy v. Roy, 2006 15619 (ON CA), [2006] O.J. No. 1872 (C.A.); Kaplanis v Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275 (C.A.). In Kaplanis, the court observed that hoping communication would improve post-litigation or as the result of a joint custody order does not provide a sufficient basis for the making of such an order. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. This was re-affirmed in Giri v. Wentges, 2009 ONCA 606, at para. 10, where the court held:

...as this court has repeatedly held, joint custody requires a mutual commitment between parents to co-operate on matters pertaining to the raising of the child, and an ability for the parents to put their own interests behind those of the child.

[40] The agreement that the child may make her own decisions on whether to receive any vaccinations at age 12 is also a mere statement without analysis where a reasoned analysis is required. In considering the best interests of this child, I must make that complex analysis in order to determine what that is. I am not bound to accept what the parents agreed to with respect to vaccinations and their child.

The Child’s Input to Medical Decision Making

[41] As stated above, both parents arbitrarily set the age of 12 to be the age in which the child could make her own decisions. Although I do not agree that setting this arbitrary age confers any capacity to make a medical decision by the child, I infer that the parents thought the child was not capable of making such a decision until age 12. She is presently 10 years of age. Despite the agreement that the child not make a decision until she is 12, the mother now argues that the voice of the child should be heard on this issue. When I pointed out to the mother’s counsel, Ms Ichem, that the Office of the Children’s Lawyer declined to become involved, counsel urged me to seek other methods of determining the wishes of the child including a judicial interview.

[42] Mr. Mamo, the appointed Amicus Curiae, submitted that the child should not be placed in the middle of this issue. He submitted that this is a high conflict case in which the parents have been lobbying the child to varying degrees and it would be abusive to place the child in the middle of such an issue under these circumstances. I agree with Mr. Mamo.

[43] In the case of Ward v. Swan, 2009 25611 (ONSC), I had the opportunity to consider the issue of views and preferences of the children. In that case, I detailed some of the statutory considerations commencing at para 15:

The Law and Analysis

[15] The Children's Law Reform Act, R.S.O. 1990, c. C.12 s. 64 states:

Child entitled to be heard

64(1) In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.

Interview by court

(2) The court may interview the child to determine the views and preferences of the child.

Recording

(3) The interview shall be recorded.

Counsel

(4) The child is entitled to be advised by and to have his or her counsel, if any, present during the interview.

[16] In the case of Uldrian v. Uldrian and Uldrian, 1988 8700 (ON CA), [1988] O.J. No. 1139, 14 R. F. L. (3d) 26, the Ontario Court of Appeal clearly expressed the view that the Children’s Law Reform Act does not impose a duty on the trial judge to interview the child. It is a matter of discretion. The statute obligates the trial judge to consider the views and preference of the child where they can be.

[17] Mr. Haas provided a number of cases dealing with the issue of when a trial judge should exercise his or her discretion to conduct such an interview. In Hamilton v. Hamilton (1989) CarswellSask 68; 1989 8862 (SK CA), 20 R. F. L. (3rd) 152, the Saskatchewan Court of Appeal made the following comment at para. 3:

We have reviewed the transcript of the interview, and while the advisability of holding such an interview is a matter properly left to the discretion of the trial judge, we agree that its use should be limited and not seen as an opportunity to obtain vital information shielded from the knowledge of and challenge by the litigants.

[18] In L.E.G. (Plaintiff) and A.G. (Defendant), 2002 CarswellBC 2643; 2002 BCSC 1455, Martinson J. observes:

17. Canada also has an international obligation to make sure that children have an opportunity to make their views known in custody decisions affecting them. Article 12 of the United Nations Convention on the Rights of the Child, Can. T.S. 1992, No. 3, which has been ratified by Canada, requires that children be given opportunities to participate in legal proceedings:

18. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

19. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or appropriate body, in a manner consistent with the procedural rules of national law.

[19] Martinson J. states at para. 15:

Three purposes of a judge’s interview have been identified: obtaining the wishes of the children; making sure children have a say in decisions affecting their lives; and providing the judge with information about the child.

[20] At para. 45, Martinson J described the balancing of the important considerations:

[4]5 In each case the court can consider not only the general benefits of and concerns relating to a judge's interview, but also: the relevance of the information that may be obtained; the reliability of the information; and the necessity of obtaining the information in this fashion.

[44] I have carefully considered all of the factors and considerations that are set out above. In the case before me, the parents are at the extreme end of high conflict and their positions relative to the issue of vaccinations is equally polarized. The tragedy in such circumstances is that the child is placed in the middle of parents who she deeply loves. The parents have discussed the issues with the child and it is my view that no 10 year old child should be put in a position such as the child in this case.

[45] In his factum, the amicus, Mr. Mamo, set out some of the evidence that highlights the extent of the parental conflict that this child is caught in the middle of:

57. In the material presently before the Court, the following statements are relevant considerations in a decision as to the appropriate process, if any, to be adopted in order to ascertain the child’s wishes and preferences:

a. Marked as exhibit B to the applicant’s affidavit sworn January 7, 2015, is an incident report of the Waterloo Regional Police filed on December 8, 2014, which lists S G-S as an “involved person” with respect to the conflict between her parents relating to unwanted text messages.

b. In the respondent’s affidavit sworn on January 12, 2015, at paragraph 8, Mr. Sinclair states that the applicant is an advocate of homeopathic medicine and that “it began at the birth of the child S G-S, and continues today, and regretfully, now the battle is on the shoulders of the child S G-S.” (emphasis added)

c. In paragraph 9 of the January 12, 2015 Affidavit, the father goes on to say that roughly two months before that time, S G-S said to her father: “Dad, did you know, 138 people died in Canada last year from vaccinations?” And again, on the same weekend, “Dad, will I die from the vaccination?” Mr. Sinclair goes on to say that these statements are indicative of how the applicant supports her position and influences the child.

d. In her Affidavit sworn January 27, 2015, the applicant at paragraph 19 states that “S G-S has expressed that she does not wish to get vaccinated, yet she very much wishes to travel, S G-S feels forced into choosing to get vaccinated and it has been a source of undue stress.” Then at paragraph 21, “Such coercion, intimidation and manipulation of S G-S is characteristic of the respondent’s parenting approach with Sarah.”

e. In his Affidavit sworn February 3, 2015, the respondent states in paragraph 11, “The Order dated May 9, 2014, by the Honourable Justice R.D. Reilly has put unnecessary pressure and stress on the child Sarah regarding vaccination. This controversy was the demise of the relationship and now continues on the shoulders of our 10 year old girl.”

f. The applicant’s Affidavit sworn February 6, 2015, states at paragraph 37, that “S G-S herself is strongly against getting vaccinated.” And again, in paragraph 39, “I only recently learned that S G-S is extremely against vaccinations. On December 2, 2014, S G-S was distraught and told me that she and the respondent “argued until 12:30 in the morning” the night before over vaccination. It was then that S G-S told me that she does not want to get vaccinated and that she has been doing her own research and is very afraid of getting vaccinated. She undertook this initiative of educating herself after the respondent told S G-S that he would not let her travel unless she was vaccinated.”

g. The applicant’s Affidavit sworn February 6, 2015, in paragraph 40, “S G-S is aware of my view on vaccinations, and she is a curious child and had asked this question in the past. Given that S G-S decides for herself on the matter of vaccinations at the age of 12, I have told her that I will support any decision that she makes and that it is important that she is well informed and educated on the matter. I also encouraged her not to worry about this now as she still has time to consider and decide.”

h. The applicant’s Affidavit sworn February 6, 2015, in paragraph 45, “Given that S G-S has taken the initiative to conduct her own research and information gathering, she is clearly capable to consent or refuse consent – especially in this matter of vaccination.”

i. The applicant’s Affidavit sworn February 6, 2015, in paragraph 54, “S G-S herself does not wish to get vaccinated. Denying S G-S of her informed and capable decision to refuse medical treatment would be wrongful and against the Canadian Constitution Act, Canadian medical law and statutes. Furthermore, the vaccinations are not required for her life or death.”

j. In her affidavit sworn March 3, 2015, the applicant states in paragraph 15 that, “S G-S has expressed strong views on the matters which the respondent has brought forth for change. It is important that S G-S has an opportunity to express her views and wishes with a representative from the Office of the Children’s Lawyer before the respondent’s motion is revisited.”

58. Based on the foregoing evidence, it is clear that S G-S has been drawn into the conflict between her parents. Any decision which is to be made by the Court has to take this factor into consideration; in addition to her age and any other consideration relating to the maturity of the child.

[46] Custody is a bundle of rights and obligation that are assigned to each parent. Section 20 of the Children’s Law Reform Act refers to it as “incident of custody,” which includes the right to physical care and control of the child, to determine the child’s residence, to discipline the child, and to make decisions about the child’s education, religion, medical care and general health and activities (Young v. Young (1993), 1993 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.); Chou v. Chou, 2005 11195 (ON SC), [2005] O.J. No. 1374 (Ont. S.C.J.); Harsant v. Portnoi, 1990 6703 (ON SC), [1990] O.J. No. 1144, 74 O.E. (2d) 33 (Ont. H.C.J.)).

[47] With these rights and obligations, there are duties on the parent that is charged with making decisions that impact on their child’s best interest to inform themselves fully and as objectively as possible in order to make the necessary decision. As the child matures, such decisions, allow for input of the child. The level of input increases, on a case specific basis, to the point of autonomy, when the child is able to understand all of the issues and appreciate the consequences of a decision.

[48] It is my view that this child is not in a position that would allow her to consider and understand all of the relevant information and appreciate the consequences of a decision to be vaccinated for measles, mumps, and rubella. She is in a conflict of loyalty between the two parents she loves. In such circumstances, she cannot decipher which information given by either parent has validity and should be accepted. How is it possible for her to decide when her own parents cannot decide what data is valid and worthy of acceptance? Even if that were possible, by making a choice she would be aligning with one parent and being disloyal to the other. I will not place this child in such a position. Whatever information I may obtain from interviewing the child would not be relevant and would most certainly be harmful to the child. I decline to interview the child.

Balance of Decision Making

[49] It is necessary to consider balancing “incidents of custodial decision making” relative to medical treatment decisions by a parent on behalf of a child with the Health Care Consent Act, 1996, S.O. 1996, c. 2, scheme of capable persons making medical treatment decisions. Capacity to make decisions for medical treatment is not age specific in the Health Care Consent Act. In that statute, capacity depends on the ability of the person to understand all of the relevant information and appreciate the consequences of making a decision (section 4, Health Care Consent Act).

[50] The capacity to make decisions is issue and time specific. A person may be capable of making a decision to take an aspirin but not capable of making a decision to take or refuse more significant medications. This capacity or incapacity may change over time.

[51] In custody or incidents of custody, decisions the best interests of the child always remain the primary focus.

[52] It is my view that medical decision making is an incident of custody unless there is evidence that the child is a mature minor. Otherwise, the capacity to make decisions with respect to medical decisions does not fall within the scheme of the Health Care Consent Act.

[53] When the court is faced with decision making as to custody of a child, the Children’s Law Reform Act provides that the views and preferences of a child should be considered where those views can be reasonably ascertained. I am of the view that this applies to “incidents of custody” as well. In this case I have found that they cannot be reasonably ascertained.

[54] As stated by Justice Turnbull, and I agree, in J.K.L. v. N.C.S. 2008 30289 (ON SC), [2008] O.J. No. 2115; 54 R.F.L. (6th) 74, the Health Care Consent Act, 1996, S.O. 1996, c. 2, was not intended to trump the discretion of the court under sections 16 and 17 of the Divorce Act, R.S.C. 1985, c. 3, (2nd Supp.) as am., or section 24 of the Children’s Law Reform Act in issues of custody and access.

The Structure of the Motion Hearing

[55] At the outset of the hearing of the motion, the amicus, Mr. Mamo filed two affidavits, a factum and a book of authorities. The parties had previously filed a number of affidavits. The mother filed further affidavits through counsel, Ms. Ichem, who represented her at this motion.

[56] Some of the affidavits contained opinion evidence and summaries of various deponents of their proffered expertise. The parties and the amicus all agreed that this matter would be argued on the basis of all material filed. There would be no viva voce evidence in addition to the affidavit material. There would be no voir dire as to whether or not any witnesses expressing opinions had sufficient qualifications in order to be qualified as an expert. That decision would be left up to me upon a review of all of the evidence. I would either qualify or leave it to a matter of the weight to be given to their evidence or indicate in my reasons why I felt that their opinions should be disregarded altogether as a result of a lack of expertise.

The Evidence Relating to Vaccinations

[57] This evidence came from a number of sources:

a. The mother

b. The father

c. The family doctor, Dr. Janet Zettel

d. Jacinta Willems, Naturopathic Doctor

e. Nicole Marie Lederman, Doctor of Chiropractic

f. Dr. Marina Salvadori, Physical and Paediatrician Specializing in Infectious Diseases.

Jacinta Willems, Nicole Marie Lederman and Dr. Marina Salvadori were all offered as “litigation experts” and not as “participation experts.” Jacinta Willems and Nicole Marie Lederman treated the child in their respective fields. However, their testimony was not offered for them to give an opinion based on their observations and treatment. Their opinion was offered to give an opinion on the benefits versus harm of vaccinations. I will consider all of this proffered evidence having regard to the considerations that I must that flow from R. v. Mohan, 1994 80 (SCC), [1994] 2 SCR 9 and many subsequent cases that follow.

The mother’s evidence

[58] The mother asserts that although she applies natural approaches to her own health and wellness, she has “great reverence, respect and appreciation for medicine and science.” She states that when it comes to the health of her children: “[she] ha[s] always employed a balanced approach between modern mainstream medicine and natural medicine.” She states that she takes the child to all medical appointments and check-ups. She takes her child to both a naturopathic doctor and a medical doctor and that she has taken the child to a chiropractor since birth. The mother claims that her approach results in a balanced approach to the child’s healthcare.

[59] On the issue of vaccinations, the mother asserts that she will not put anything into a child’s bloodstream until she is sure that:

a. The child’s health demands it, and

b. There is no chance of harm

[60] In her affidavit of February 5, 2015 she stated that “relying on a medical unproven opinion on vaccination was not enough to convince me” that S G-S needed vaccinations for her health and that there would be no harm.

[61] The mother claims that she has researched this vaccination issue for over 15 years. She states that she has a Bachelors and Master’s Degree in Human Biology and Nutritional Sciences. She also states that she has worked in the health care industry for the last 5 years and she is well versed in research technique and analysing medical studies.

[62] At paragraph 28 of her affidavit she states,

I have not found sufficient evidence that proves the safety of vaccines or that they are effective in actually preventing disease. What I have found is an enormous amount of evidence that supports the contrary – vaccines are dangerous and ineffective. After objectively reviewing this evidence, one cannot but doubt why a child’s bloodstream should be injected with toxic, foreign substances. By vaccinating my children, not only am I subjecting them to a real risk of a severe reaction to the vaccine, but the children are still at risk of maybe catching the disease for which the vaccine is said to protect against.

[63] The mother then goes on in this same affidavit and itemizes from a) to l), “key undisputable facts” supporting my decision not to vaccinate:

a. Most diseases were resolved, and almost non-existent, before vaccines were introduced

b. Most diseases were due to conditions of overcrowding, lack of sanitation and poor hygiene – all of which are not a risk today

c. Most diseases today are very rare or are considered mild

d. Most diseases today are treatable and resolve without complication

e. There is no testing on the effects of combining vaccines together. Random mixing of viral agents causes unpredictable effects; this viral inference is a well-know occurrence

f. Vaccines containing highly toxic ingredients, including mercury, aluminum, and formaldehyde as well as infected animal cells

g. There are unmistakable links between vaccines and severe reactions, including SIFS, autism, meningitis, joint pain and fibromyalgia

h. Other common reactions to vaccines include; convulsions, encephalopathy, high-pitched screaming, seizures, shock, permanent neurological damage, anaphylactic reactions

i. There have been no long terms studies on the safety of vaccines

j. S G-S is of an age where vaccine is NOT recommended; in addition, S G-S’s history of eczema is another contradiction to the vaccination

k. The vaccines are ineffective and diseases and epidemics continue to occur in highly vaccinated populations

l. The risk of vaccination do NOT outweigh the benefits

[64] The above list of “indisputable facts” that are set out by the mother, in my view, demonstrates her lack of objectivity and thoroughness of research. She offered no evidence that the claims set out above are “indisputable facts supporting her decision not to vaccinate.” Far from being indisputable facts, I find that they are rigidly held beliefs of the mother and others who support her that are not supported in scientific community.

[65] I find that the mother and her supporting witnesses are locked in a never ending spiral of blind acceptance of statements by individuals who claim to be experts in the field in which they are not. The mother accepts many of their statements about the state of the research and like the alleged experts who filed evidence on her behalf; she passes these beliefs on as if they are legitimate studies that have received general acceptance. Most of the supporting research offered by the mother and her supporters is not valid and does not consider objective facts, research and literature that are thorough and peer reviewed. Counsel for the mother submitted that the present hysteria around measles and vaccinations is something that is a creation of the media and not grounded in fact and research. I strongly disagree.

[66] One of the alleged experts offered by the mother to support her position is Jacinta Willems. She graduated from the University of Waterloo in 1991 with a Bachelor of Science degree. She received a Doctor of Naturopathic Medicine, from Bastyr University, Seattle Washington in 1995. She is in her twentieth year of clinical practice with a focus on nervous system, immune and gut health.

[67] Ms. Willems states that the child, S. G-S, is a patient of hers. She states that the child is aware of the conflicting positions of her parents regarding immunization. She has known the child’s mother for 14 years but does not know the father. Ms. Willems offers in her affidavit that the mother’s background in biological sciences and lifelong interest in health and nutrition gives her a strong foundation in caring for the health of children naturally.

[68] Ms. Willem states that the mainstream media provides a polarized view of vaccination that does not acknowledge the risks and concerns for a balanced perspective. She attributes the “current scare” to the media about the spread of measles.

[69] Some examples that are given by Jacinta Willems in her affidavit in support of the mother are:

a. She claims that most diseases were resolved and almost non-existent, before vaccines were introduced

b. Epidemics still occur in highly vaccinated populations

c. There are significant levels of adverse reactions to vaccinations which are usually unreported

d. Vaccines stimulate a reaction of the immune system that can potentiate inflammatory, allergic and autoimmune responses in the body. The most serious of these consequences can lead to an inflammation of the brain and nervous system

e. North American children are now among the most vaccinated of all children since 1980. Canadian vaccine schedules have more than doubled the types of vaccines given. In the first 18 months of a life, public health authorities now recommend 32-41 doses of thirteen different vaccines. New Brunswick, the North West Territories and Nunavut start injecting the first dose of Hepatitis B vaccine at birth; the rest of the country starts multiple infection/drops at two months

f. Over the years alongside the increased use of vaccines, there have been major declines in children’s health in many categories. Ms. Willems goes on to associate the declining health of children with increases in asthma, learning disabilities, autoimmune diseases and death in female children and women in all age groups to 64 years of age.

g. A review of the historical data from England, Wales and Untied States shows a more than 90% decline in the mortality rates from measles and pertussis (whooping cough) before vaccinations for the diseases became widespread. In the case of measles the death rate had declines by 99.96%. Children in the developing world almost always got mild cases of the measles before vaccinations.

[70] Many of the assertions as set out above were backed up by citations from individuals who were advocates of no vaccinations. Dr. Suzanne Humphries, MD and Roman Bystianyk’s web site and articles on “Dissolving Illusions” amounted to much of the corroborating literature cited by Ms. Willem. I find that the data relied on by those offered as experts by the mother amounted to a cherry picking of resources derived from anti vaccination advocates. This form of evidence offered as expert evidence does not amount to evidence from a person with special skills who can assist the court in drawing a conclusion that it could not otherwise make.

[71] The second alleged expert filing an affidavit in support of the mother’s position is Nicole Marie Lederman. She is a Doctor of Chiropractic. She states in her affidavit that she knows the mother in a professional capacity through loaning her educational materials related to children’s health and vaccinations. She states that she was asked to provide a “review of the literature regarding measles and the MMR vaccine.” Ms. Lederman states that the information she provides is based on her personal and professional knowledge. She does not explain how being a chiropractor provides her with professional knowledge on the issue of vaccinations and communicable diseases. I find that much of the material she presents in her affidavit is a recitation of personal studies that she has engaged by reading publications “that I consider to be from a scientific source that is credible and reliable.”

[72] The above noted introduction of Nicole Marie Lederman goes more to describing a person who is has a bias and sets out to support her position by selectively picking publications of only those who support the position she has started with. Her affidavit further confirms this.

[73] In her affidavit, she claims that severe consequences of measles can occur in malnourished children especially with insufficient vitamin A. She states that there is no specific treatment for measles since it is caused by a virus and most people recover within two to three weeks. She describes common side effects of the MMR vaccine to include a low-grade fever, skin rash, itching, hives, swelling, reddening skin, and weakness. Serious adverse side effects following MMR vaccination include seizures, severe headaches, double vision, vomiting, joint pain, or pain in the digestive system. She cites various websites in support of these conclusions.

[74] One of the resources cited by Ms. Lederman to support her “information” she shares with the court is the “activity5measles-database.” When that source is reviewed it is clear that the information she provides is so selective that it is taken out of context and material pieces of information are left out. One example taken from the site is the following:

Measles—Incidence (Historic)

During this century, there has been a dramatic decrease in measles epidemics. Prior to the development of the measles vaccine, 5.7 million people died each year from measles. (Some historians have suggested that measles might have contributed to the decline of the Roman Empire.)

In 1920, the United States had 469,924 measles cases and 7,575 deaths due to measles. From 1958 to 1962, the United States had an average of 503,282 cases and 432 deaths each year. (Measles reporting began in 1912; prior to this time, no statistics are available.) In large cities, epidemics often occurred every two to five years.

When the measles vaccine came on the market in 1963, measles began a steady decline worldwide. By 1995, measles deaths had fallen 95 percent worldwide and 99 percent in Latin America. In the United States, the incidence of measles hit an all-time low in 1998, with 89 cases and no deaths reported.

There have been several epidemics in the United States since 1963: from 1970 to 1972, 1976 to 1978, and 1989 to 1991. The epidemic of 1989-1991 claimed 120 deaths out of a total of 55,000 cases reported. Over half of the deaths occurred in young children.

[75] The above quote that is taken from the source cited by this witness is evidence of Ms. Lederman backing up her opinions with data that does not say what she asserts it does when the full document is reviewed.

[76] Another resource that Ms. Lederman sites is the MedAlerts search which facilitates an online search of the federal Vaccine Adverse Events Reporting System (VAERS) database. At first glance this appears to be a valid federal reporting site for adverse effects. However, Miss Lederman does not relate the limitations of the information that the site itself discloses:

A passive monitoring system (such as VAERS) is one in which reports of vaccine reactions are voluntarily submitted by patients, doctors, and pharmaceutical companies. No reports are filed for healthy people, very little past history is recorded, and few post-reaction follow-ups are available

[77] The above are just two examples of concerns that expose themselves when a witnesses who is offered as an expert witness presents in a manner that is not neutral and objective. One of the main concerns that was set out in the Osborne report that led to amendment to the Rules of Civil Procedure r 53.01 being amended was recently reviewed by the Ontario Court of Appeal in the case of Westerhof v. Gee Estate, 2015 ONCA 206 at para 32:

[32] As Sharpe J.A. noted in Moore v. Getahun, 2015 ONCA 55, [2015] O.J. No. 398, in 2010, significant changes were made to the Rules relating to expert witnesses following the recommendations of the Honourable Coulter Osborne in his review of the civil justice system, Civil Justice Reform Project: Summary of Findings & Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007).

[33] Mr. Osborne’s report highlighted, at page 71, the common complaint that “too many experts are no more than hired guns who tailor the reports and evidence to suit the client’s needs.” At pages 80-84 of his report, Mr. Osborne also highlighted the need for adequate disclosure of the basis for an expert’s opinion.

[34] Two significant recommendations of the Osborne Report were subsequently adopted through amendments to the Rules, which came into effect on January 1, 2010.

[35] First, rule 4.1.01 was added to the Rules. It sets out the overriding duty of every expert engaged by or on behalf of a party to provide opinion evidence that is fair, objective and non-partisan and within the expert’s area of expertise. Significantly, the introductory paragraph to rule 4.1.01(1) refers specifically to the duty of experts “engaged by or on behalf of a party”:

4.1.01(1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules….

[36] Second, rule 53.03(2.1) was added. It specifies the information to be included in an expert’s report and requires that the expert sign an acknowledgment of the expert’s duty. Some of the required information relates to the expert’s retainer to give evidence in relation to the proceeding:

53.03(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

1. The expert’s name, address and area of expertise.

2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.

3. The instructions provided to the expert in relation to the proceeding.

4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.

6. The expert’s reasons for his or her opinion, including,

i. a description of the factual assumptions on which the opinion is based,

ii. a description of any research conducted by the expert that led him or her to form the opinion, and

iii. a list of every document, if any, relied on by the expert in forming the opinion.

7. An acknowledgement of expert’s duty (Form 53) signed by the expert

[78] The case before me is a family matter. Pursuant to the Family Law Rules, the neutrality of an expert witness is as equally important as experts who testify as litigation experts in other civil cases. I find that the evidence advanced by both Ms. Lederman and Ms. Willem does not provide me with the neutral and objective evidence that is either necessary or helpful. I must apply the criteria set out in R. v. Mohan and many subsequent cases that deal with the admissibility of expert witnesses to their offered testimony.

[79] In order for expert evidence to be admissible under the exception to the general hearsay rule, it must be relevant and necessary, there must be no exclusionary rule against it, and the expert must be properly qualified (R. v. Mohan).

[80] In R. v. Abbey, 2009 ONCA 624, [2009] O.J. No. 3534, leave to appeal refused, the Ontario Court of Appeal (“ONCA”) modified the Mohan analysis for admitting expert evidence. The Court compiled all the “preconditions” set out in Mohan into the first step, and added a second step, which is essentially a probative/prejudicial analysis. To quote the Court, at paragraph 76,

1. The party proffering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence.

2. The trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence.

Expert Impartiality

[81] The decision in Abbey makes clear that impartiality is part of the probative value assessed in the second step of the admissibility test. “[T]he extent to which the expert is shown to be impartial and objective” will be a factor in considering how reliable, and thus how probative, the expert’s evidence is (Abbey, at para 87). Ontario courts have expanded on this point, stating the onus is on the party tendering the expert to prove the expert has the requisite independence, Deemar v. College of Veterinarians (Ontario), (2008) 2008 ONCA 600, 92 O.R. (3d) 97 (ONCA). Wein J, in R. v. Docherty, 2010 ONSC 3628, [2010] O.J. No. 3460 expressed the view that the impartiality requirement “is properly dealt with as a preclusionary factor,” and highlighted several leading texts that emphasize “the need for impartiality in experts” (Docherty, at paras 10, 12). He went on to say at para 11:

The rules permitting the introduction of opinion testimony are clearly predicated on impartiality. The independence and objectivity of a professional opinion requires the absence of bias. Confidence in the decisions based in whole or in part on expert testimony, requires that there be no appearance of bias. It has been held that while a tangential vested interest in the outcome of proceedings by way of payment, or continuing associations with either the Crown or defence, do not necessarily require exclusion of such a witness, the ethical limits under which an expert testifies must be adhered to or the confidence of the public in allowing expert testimony will inevitably be undermined.

Knowledge and Experience of the Expert

[82] The Court in Abbey also held at para 112 that the Daubert factors are not applicable where reliability of the expert opinion “depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it,” quoting Kumho Tire Co. v. Carmichael, (1999), 526 U.S. 137, 119 S.Ct. 1167. The ONCA held that the proper question in such circumstances is to ask whether the expert’s research and experiences allowed the expert to develop a specialized knowledge about the issue that was sufficiently reliable to justify placing the expert’s opinion on the issue before the jury (Abbey, at para 117).

[83] When a court encounters expert evidence like that in Abbey, i.e. dependant on knowledge and experience rather than rigorous scientific methodology, the court should look to the following factors to determine if the evidence is admissible (Abbey at 118):

• To what extent is the field in which the opinion is offered a recognized discipline, profession or area of specialized training?

• To what extent is the work within that field subject to quality assurance measures and appropriate independent review by others in the field?

• What are the particular expert's qualifications within that discipline, profession or area of specialized training?

• To the extent that the opinion rests on data accumulated through various means such as interviews, is the data accurately recorded, stored and available?

• To what extent are the reasoning processes underlying the opinion and the methods used to gather the relevant information clearly explained by the witness and susceptible to critical examination by a jury?

• To what extent has the expert arrived at his or her opinion using methodologies accepted by those working in the particular field in which the opinion is advanced?

• To what extent do the accepted methodologies promote and enhance the reliability of the information gathered and relied on by the expert?

• To what extent has the witness, in advancing the opinion, honoured the boundaries and limits of the discipline from which his or her expertise arises?

• To what extent is the proffered opinion based on data and other information gathered independently of the specific case or, more broadly, the litigation process?

[84] In applying the above analysis to the mother’s witnesses, I find that their evidence is not helpful. They are advocates who do not present a balanced analysis supported by data that has reasonable foundation. I give their evidence no weight.

The Evidence Presented by the Amicus, Mr. Mamo

[85] Dr. Salvadori is also a professor at the Department of Pediatrics, Infections Diseases at the Schulich School of Medicine and Dentistry at the University of Western Ontario, and a consultant at the London Health Sciences Centre Paediatrics, London, Ontario. Her lengthy Curriculum Vitae (C.V.) is attached to her affidavit. She has represented the Canadian Pediatric Society on the National Advisor Committee for Immunizations (NACI). The BIO SKETCH that is part of her C. V. states that she has advocated locally, provincially and nationally for public funding immunization for children.

[86] Dr. Salvadori became a member of the American Committee on Immunization Practices, Measles Mumps and Rubella Working Group at the Center for Disease Control in the United States. In 2013-2014 she was also a member of the Ministry of Health and Long Term Care Ontario “Immunization System Review – Immunization Decision-Making and Program Delivery Task Group – Committee convened by the Medical Officer of Health, Ontario. She had received many research grants and peer reviews articles and other publications on the topic of infectious diseases and immunizations. She has also written many journal articles that have been peer reviewed on similar topics.

[87] One of the more relevant publications Dr. Salvadori was a co-author of is: “Measles and Rubella Elimination Working Group (WREWG). An Advisory Committee Statement (ACS), Measles and Rubella Elimination Working Group, (WREWG). Guidelines for the Prevention and Control outbreaks in Canada. 2013 Nov. CCDR. 2013 Nov; 39 ACS-3. Publication of Expert committee of Health Canada.

[88] At paragraph 7 of her affidavit, Dr. Salvaldori states:

I am mindful of my duty to be fair and objective. I believe that the statements in this affidavit are fair and objective given my professional experience, knowledge and belief.

[89] Dr. Salvadori states at the outset that she believes that the development of vaccines against known infectious diseases is essential for the health of the individuals and those that she/he may come into contact with. In contrast to the witnesses supporting the mother, Dr. Salvadori sets out in her affidavit a reasoned analysis of the issue and she supports it with data that does have a reasonable foundation.

[90] Dr. Salvadori states that the study of infectious diseases is one of the fundamental cornerstones of medicine. According to her, the devastation worldwide of infectious diseases cannot be overemphasized and, as such, the understanding and eradication of infectious diseases is crucial to individual, family, and community health.

[91] Dr. Salvadori describes how vaccines work. She states that vaccines work by stimulating our immune system to produce antibodies (substances produced by the body to fight disease) without actually infecting us with the diseases. They trigger the immune system to produce its own antibodies, as though the body has been infected with a disease. This is called “active immunity.” If the vaccinated person then comes into contact with the disease itself, their immune system will recognize it and immediately produce the antibodies they need to fight it.

[92] She states that the vaccination of children is to provide them with “active immunity” is to protect them once their passive immunity that they receive from their mothers wears off.

[93] Dr. Salvadori states that there are two ways the body can produce anti-bodies, by getting the disease or by getting the vaccine. At paragraph 14 of her affidavit she states: “Getting the Vaccine is a much safer way to make antibodies without the suffering of the disease itself and the risk of becoming disabled or dying.”

[94] It is important for my determination that the Canadian Health Policy and the Ontario Health Policy with respect to vaccinations be considered. Dr. Salvadori reviews these policies. According to Dr. Salvadori, over the past 50 years, immunization has saved more lives than any other health measure. Canada has a public policy in favour of the vaccination of children and youth. Vaccination is the best way for individuals and families to avoid contracting very serious diseases. She further states that immunization prevents illnesses, disabilities and death from vaccine-preventable diseases including cervical cancer, diphtheria, hepatitis B, measles, mumps, pertussis, pneumonia, polio, rotavirus diarrhoea, rubella, and tetanus.

[95] Dr. Salvadori is of the view that it is important to make decisions about vaccinations based on facts. She offers that the Public Health Agency of Canada provides “credible, science-based advice about vaccines.” They work with national and international public health experts to ensure the safest and most effective vaccine programs for Canadians. According to Dr. Salvadori, vaccines are constantly being monitored and improved by world experts in the field of infectious diseases.

[96] With respect to measles, she states that measles is a highly contagious disease caused by a virus, which usually results in a high fever and rash, can lead to blindness, encephalitis or death. By the end of 2013, 84% of children had received one dose of the measles vaccine by their second birthday and 148 countries had included a second dose as part of routine immunization.

[97] Dr. Salvadori discusses in her evidence the “anti-vaccination movement.” She sates that there is “a small but very vocal group of people who are against vaccinations.” Unfortunately, such groups give out the misinformation that can lead to exposing individuals and the community to harmful and potentially deadly infectious diseases, the spread of which could have been stopped.

[98] Dr. Salvadori states at paragraph 25 of her affidavit:

There are no veritable scientific studies that have shown vaccinations to be harmful. The control and eradication of certain infectious diseases throughout the world is simply beyond dispute. The rationalization by those who are against vaccinations that such phenomena would have developed without the use of vaccinations is indefensible and illogical.

[99] Dr. Salvadori states that claims that herbal or naturopathic medicines are as effective as vaccines against the diseases named (such as measles, mumps and rubella) are simply not borne out by any scientific studies. She goes on to state that side effects of vaccinations, when they occur are nothing more than a very temporary mild irritation around the location of the immunization or a low grade fever for one to two days.

[100] Dr. Salvadori points out that the Canadian Public Health Policy in favour of vaccinations against common and potentially fatal infectious diseases has led to the decline or elimination of very serious illnesses. She states that those who are not vaccinated are at increased risk of becoming ill as a result of contact with others in the community who are infected due to lack of immunization by choice or as a result of such program not having been available to them in their country of origin.

[101] Unlike Ms. Willem and Ms. Lederman, Dr. Salvadori does not know any of the parties in this case. Her testimony is based on her many years of research and clinical participation in the field of infectious diseases.

[102] In addition to the Canadian Health Policy in favour of vaccinations, Ontario also has a public health policy that also favours vaccinations. Legislation requires children to be vaccinated unless a parent has filed for an exemption claiming religious beliefs or as a matter of conscience. The mother in this case filed for an exemption, on what she claimed was a matter of conscience.

Immunization of School Pupils Act R.S.O. 1990, CHAPTER I.1

[103] The legislation reads:

Purpose of Act

2. The purpose of this Act is to increase the protection of the health of children against the diseases that are designated diseases under this Act. R.S.O. 1990, c. I.1, s. 2.

Duty of parent

3. (1) The parent of a pupil shall cause the pupil to complete the prescribed program of immunization in relation to each of the designated diseases. R.S.O. 1990, c. I.1, s. 3 (1).

Exception

(2) Subsection (1) does not apply to the parent of a pupil in respect of the prescribed program of immunization in relation to a designated disease specified by a physician or a registered nurse in the extended class in a statement of medical exemption filed with the proper medical officer of health and, where the physician or registered nurse in the extended class has specified an effective time period, only during the effective time period. 2007, c. 10, Sched. E, s. 2.

Idem

(3) Subsection (1) does not apply to a parent who has filed a statement of conscience or religious belief with the proper medical officer of health. R.S.O. 1990, c. I.1, s. 3 (3).

Idem

(4) Subsection (1) does not apply to a parent who, before the coming into force of this section, has filed with the proper medical officer of health a statement of religious belief in the form prescribed before the coming into force of this section. R.S.O. 1990, c. I.1, s. 3 (4).

Offence

4. Every person who contravenes section 3 is guilty of an offence and on conviction is liable to a fine of not more than $1,000. R.S.O. 1990, c. I.1, s. 4.

Certificate by M.O.H. as evidence

5. In proceedings under section 4, a certificate by a medical officer of health as to whether or not he or she has received a statement of medical exemption, a statement of conscience or religious belief or a statement of religious belief is admissible in evidence as proof in the absence of evidence to the contrary of the facts stated therein without proof of the appointment or signature of the medical officer of health. R.S.O. 1990, c. I.1, s. 5.

Order for suspension re designated diseases

6. (1) A medical officer of health, in the circumstances mentioned in subsection (2), by a written order may require a person who operates a school in the area served by the medical officer of health to suspend from attendance at the school a pupil named in the order. R.S.O. 1990, c. I.1, s. 6 (1).

Grounds for order re designated diseases

(2) The circumstances mentioned in subsection (1) are,

(a) that the medical officer of health has not received,

(i) a statement signed by a physician or a member of the College of Nurses of Ontario showing that the pupil has completed the prescribed program of immunization in relation to the designated diseases,

(ii) a statement of medical exemption in respect of the pupil or, where the medical officer of health has received a statement of medical exemption, the effective time period specified in the statement has expired and the medical officer of health has not received a further statement of medical exemption, or

(iii) a statement of conscience or religious belief in respect of the pupil; and

(b) that the medical officer of health is not satisfied that the pupil has completed, has commenced and will complete or will commence and complete the prescribed program of immunization in relation to the designated diseases. R.S.O. 1990, c. I.1, s. 6 (2); 2007, c. 10, Sched. E, s. 3.

Term of suspension

7. A suspension under an order by a medical officer of health under section 6 is for a period of twenty school days. R.S.O. 1990, c. I.1, s. 7.

Service of copy of order upon parent

8. (1) A medical officer of health who makes an order under section 6 shall serve a copy of the order upon a parent of the pupil. R.S.O. 1990, c. I.1, s. 8 (1).

Written reasons

(2) An order under section 6 is not valid unless written reasons for the order are included in or attached to the order. R.S.O. 1990, c. I.1, s. 8 (2).

Repeated orders

(3) A medical officer of health may make orders under section 6 from time to time in respect of a pupil where the circumstances specified in the section for making the order continue to exist. R.S.O. 1990, c. I.1, s. 8 (3).

Rescission of order

9. A medical officer of health who has made an order under section 6 shall rescind the order where the circumstances for making the order no longer exist. R.S.O. 1990, c. I.1, s. 9.

Statement by physician or nurse

10. Every physician or member of the College of Nurses of Ontario who administers an immunizing agent to a child in relation to a designated disease shall furnish to a parent of the child a statement signed by the physician or member of the College of Nurses of Ontario showing that the physician or member of the College of Nurses of Ontario has administered the immunizing agent to the child. 2007, c. 10, Sched. E, s. 4.

Record of immunization

11. (1) Every medical officer of health shall maintain a record of immunization in the form and containing the information prescribed by the regulations in respect of each pupil attending school in the area served by the medical officer of health. R.S.O. 1990, c. I.1, s. 11 (1).

Review of record

(2) A medical officer of health shall keep under review the immunization record maintained by the medical officer of health in respect of a pupil who has not completed the prescribed program of immunization in relation to the designated diseases. R.S.O. 1990, c. I.1, s. 11 (2).

Order by M.O.H.

12. (1) A medical officer of health, in the circumstances mentioned in subsection (2), by a written order may require a person who operates a school located in the health unit served by the medical officer of health to exclude from the school a pupil named in the order. R.S.O. 1990, c. I.1, s. 12 (1).

Grounds for order

(2) The circumstances mentioned in subsection (1) are,

(a) that the medical officer of health is of the opinion, upon reasonable and probable grounds, that there is an outbreak or an immediate risk of an outbreak of a designated disease in the school at which the pupil attends; and

(b) that the medical officer of health has not received,

(i) a statement of immunization signed by a physician or a member of the College of Nurses of Ontario showing, or is not otherwise satisfied, that the pupil has completed the prescribed program of immunization in relation to the designated disease, or

(ii) a statement of medical exemption in the prescribed form signed by a physician or a registered nurse in the extended class stating that the prescribed program of immunization in relation to the designated disease is unnecessary in respect of the pupil by reason of past infection or laboratory evidence of immunity. R.S.O. 1990, c. I.1, s. 12 (2); 2007, c. 10, Sched. E, s. 5.

[104] I find that the public policy as expressed in this legislation is in favour of vaccinations of children. The exemption allowance can be overridden by the medical officer of health if there are reasonable grounds that there is an outbreak or an immediate risk of an outbreak of a designated disease (including measles) at the location the unvaccinated child attends. Even with the exemption, the emphasis is on prevention by vaccination of disease outbreak.

[105] I find the there is sufficient evidence on the balance of probabilities that the child in this case should be vaccinated in her best interests. Public policy as expressed by the Ontario and Canadian governments supports vaccinations as essential to the health of children and the public in general. The World Health Organization promotes vaccinations for the same purposes as a matter of public health and safety.

[106] I accept the evidence of Dr. Salvadori that the benefits far outweigh the minimal side effect risks. I reject, as it has not been supported in the evidence before me, claims that vaccinations are harmful.

[107] As a result of the above reasons, there shall be an order that the father shall have the decision making ability with respect to the child getting vaccinations. Prior to the child being taken on the trip to Germany, she shall receive a vaccination for measles, mumps, and rubella or whatever vaccination combination for these diseases is recommended by the child’s family doctor. The mother shall do all that is necessary to cooperate with the father in having the child attend the family Doctor, Dr. Janet Zettel.

[108] Counsel for the mother submitted in argument that the child was fearful of vaccinations. She cited as an example that when the child was eight years of age, she became “aware” that her pet cat died as a result of a vaccination. I expressed my concern that there was insufficient evidence before me that connected the death of the cat to a vaccination or that this somehow could be connected to human risks of vaccinations. My more serious concern was that the child was told that the pet died of a vaccination. All an eight year old needed to be told was that her cat was ill and died. The father denied that he told the child and he denied that the child was expressing fear of being vaccinated. As a result of that evidence, I further order that the mother is not to communicate with the child in a manner that would be negative to the child receiving the vaccinations.

R. J. Harper, J.

Released: April 10, 2015

CITATION: C.M.G. v. D.W.S., 2015 ONSC 2201

COURT FILE NO.: FS-809-13

DATE: 2015-04-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: C. M. G., Applicant

AND:

D. W. S., Respondent

BEFORE: The Honourable Mr. R.J. Harper

COUNSEL: Gloria Ichim, Counsel for the Applicant

In Person, the Respondent

Alfred Mamo, Amicus Curiae

HEARD: March 11, 2015

ADDENDUM

Paragraph 108 is amended to read the following:

[108] Counsel for the mother submitted in argument that the child was fearful of vaccinations. She cited as an example that when the child was eight years of age, she became “aware” that her pet cat died as a result of a vaccination. I expressed my concern that there was insufficient evidence before me that connected the death of the cat to a vaccination or that this somehow could be connected to human risks of vaccinations. My more serious concern was that the child was told that the pet died of a vaccination. All an eight year old needed to be told was that her cat was ill and died. The father denied that he told the child and he denied that the child was expressing fear of being vaccinated. As a result of that evidence, I further order that the mother is not to communicate with the child in a manner that would be negative to the child receiving the vaccinations.

R. J. Harper, J.

Released: April 14, 2015