COURT FILE NO.: FS-19-96672-00
DATE: 2020/05/01
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Julian Chambers Applicant
AND: Mariusz Klapacz Respondent
BEFORE: Bloom, J.
COUNSEL: L. Jackson Lawrence, agent for counsel for the Applicant
J. Mammon, for the Respondent
HEARD: 2020/04/30
E N D O R S E M E N T
I. INTRODUCTION
[1] There are two issues before me: (a) the motion by the Applicant for authorization of the court to have the child of the parties, Marcus Liam Chambers Klapacz born September 13, 2017, vaccinated in accordance with the advice of the Urgent Care Pediatric Clinic located at 222 Dixon Rd., Unit 106, Etobicoke, Ontario; and (b) costs on the motion of the Respondent on which I delivered an endorsement dated April 17, 2020.
II. ARGUMENTS OF THE PARTIES
A. ARGUMENTS OF THE APPLICANT
[2] On the issue of vaccinations for the child, the Applicant argues that the order in question should be made, because it is in the best interests of Marcus to have medically recommended vaccinations, especially during the Covid-19 pandemic when he would be more vulnerable to the virus without normal immunizations.
[3] On the costs issue, the Applicant contends that in exercising my discretion regarding costs I should have regard to her conduct which sought compromise and was motivated by panic as a result of the pandemic; and that the endorsement I made was partially reflective of the success of her position.
B. ARGUMENTS OF THE RESPONDENT
[4] The Respondent argues that, while he is not opposed to vaccinations for Marcus, they should be done by his regular doctor with the Respondent having input in the process.
[5] On the issue of costs, he contends that he is entitled to full recovery costs, and alternatively partial recovery costs. In that regard he relies upon what he contends was success on the motion and his achieving a better result than what he had offered the Applicant. He concedes that both parties are currently not employed.
III. ANALYSIS AND ORDER
A. THE VACCINATIONS ISSUE
[6] The Applicant has primary de facto custody of Marcus. No order for custody has been made. As an incident of her custody, as a matter of law she may not need the Court’s authorization for the vaccinations. However, for purposes of this motion, I am assuming that I must make a decision on the issue. In doing so, the test I am applying is the best interests of Marcus.
[7] The Applicant’s affidavit dated April 15, 2020 attaches as exhibits a letter from Dr. Sameer Mehta dated April 15, 2020 and information from the Government of Ontario regarding vaccination of children. These materials clearly establish an evidentiary basis to conclude that the granting of an order to have Marcus vaccinated under the direction and supervision of a medical doctor is in Marcus’s best interests; the Respondent has produced no medical evidence to the contrary.
[8] Further, it is uncontested that the child’s pediatrician is not practising during the pandemic. Moreover, the Applicant in her affidavit sworn before me in the teleconference hearing of April 30, 2020 has provided evidence that an urgent care pediatric clinic located at 222 Dixon Road, Unit 106 in Etobicoke is prepared to provide Marcus with the vaccinations he needs.
[9] In C.M.G. v. D.W.S., 2015 ONSC 2201 at para. 105 Justice Harper makes comments which are apposite:
[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.
[10] Further, in view of the acrimonious relationship which obviously exists between the parties, allowing the Respondent to attend the vaccination appointments would not be in the best interests of Marcus.
[11] Accordingly, I order that the Applicant be permitted to attend with Marcus at the urgent care pediatric clinic for vaccinations under the direction and supervision of a medical doctor or medical doctors there. She is to observe in respect of Marcus all applicable governmental directives and recommendations regarding Covid-19.
B. COSTS ON THE RESPONDENT’S MOTION
[12] In making an order as to costs on the Respondent’s motion I have regard to the Respondent’s substantial success on it; and to the lack of means of both parties. I am also taking into account the offer made by the Respondent and the panic experienced by the Applicant in addressing the matter in the context of the Covid-19 pandemic.
[13] In view of all of the circumstances I award the Respondent on his motion partial indemnity costs of $3131.29 inclusive of fees, disbursements, and applicable taxes payable by the Applicant within 90 days.
IV. COSTS
[14] I will receive written submissions of the parties as to costs on the Applicant’s motion. They shall be limited to 3 pages, excluding a bill of costs. There shall be no reply.
[15] The Applicant is to by one e-mail addressed to counsel for the Respondent and to my assistant, Sara Stafford at Sara.Stafford@ontario.ca, serve and file her submissions within 14 days from release of this endorsement. No affidavit of service is necessary.
[16] The Respondent shall serve and file his submissions on counsel for the Applicant by the same means within 14 days of service of the Applicant’s submissions.
V. FURTHER ORDER
[17] The parties shall file with the court documentation used on the Applicant’s motion and pay any filing fee once normal operations of the court have resumed.
Justice Ivan Bloom
DATE: May 1, 2020