Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Roxane Campbell
AND:
Joshua Heffern
BEFORE: Madam Justice Shore
COUNSEL: J. Hannaford and A. Pagano for the Applicant
J. Heffern for the Respondent
HEARD: December 2, 2021
ENDORSEMENT
1This motion was originally returnable before me as an urgent motion on November 16, 2021. Although the Respondent father filed materials, he did not attend at the motion. I found the matter to be urgent and I made an interim order in his absence, pending the return of the motion. Written reasons were provided to the parties. Both parties were present for the motion today.
2The Applicant mother is seeking an order for primary residence of the child, O.C., born in 2014, currently age 7, sole decision-making responsibility to allow her to vaccinate the child, the ability to renew the child’s passport without the Respondent father’s consent, no contact between the Father and child pending application by the Father, a restraining order, and a date for a further motion to address issues of child support and disclosure.
3The essence of the motion revolves around the Respondent’s vehement opposition to the child wearing a mask and receiving his COVID-19 vaccination. The Respondent uses language in his affidavit such as “imminent danger”, “experimental shot” and “unquestioned submission to rules/bylaws that infringe upon basic human rights”. The Respondent’s solution is for him to home school the child. The mother is seeking temporary sole decision-making responsibility for the child and temporary primary residence of the child. The Applicant would like decision making authority so she can take the child to be vaccinated. The Applicant would like the child to have his primary residence with her to ensure the child wears a mask and therefore can attend at school. From reading a prior endorsement of Justice Diamond, it is unclear whether there is a binding parenting agreement between the parties. In any event, until now, they have been operating as if they have joint decision-making responsibility.
4The parties had an on again/off again relationship starting in 2001, ending for the last time in 2017. They never married. The child was born in 2014 and is the only child of their relationship. The mother works for the City of Toronto as a Control of Infectious Disease Investigator. The father previously worked as a real estate agent and property manager but has not worked since he quit his job on receiving a lump sum payment related to these proceedings in 2018.
Vaccines:
5Should this court give the Mother decision making responsibility so that the child can be vaccinated? There have been a number of cases already decided on the very issue of vaccinations for COVID-19. In each of those cases, the Courts have found that it is in the best interest of the children to get their COVID-19 vaccination. Although each case must be decided on its own set of facts, there is little distinguishing this case from the facts in the other cases. For the reasons set out below, I find it is in the best interest of the child to receive his COVID-19 vaccine.
6In A.C. v. L.L., 2021 ONSC 6530, Justice Charney focused his analysis on the best interest of the child and concluded that the children should get vaccinated. Justice Charney found that if in-person schooling is available the presumption is that it is in the best interest of the child to attend school in-person. Charney J., took judicial notice of information publicized by the government and public health authorities.
7In Saint-Phard v. Saint-Phard, 2021 ONSC 6910, Justice Mackinnon also found that the decision on whether a child should be vaccinated for COVID-19 is governed by the best interests of the child, pursuant to A.C. v. L.L., 2021 ONSC 6530. Findings of facts on the safety and effectiveness of the vaccination may be found by taking judicial notice: see B.C.J.B. v. E-R.R.R., 2020 ONCJ 438, 47 R.F.L. (8th) 165; A.P. v. L.K., 2021 ONSC 150; and A.C. v. L.L. The court relied on public documents concerning Covid-19 and the authority of A.C. v. L.L. concerning taking judicial notice of such documents in concluding that Covid-19 vaccination is safe and effective for children ages 12-17. The court rejected the evidence of the doctor retained by the mother because, similar to I.S. v. J.W., 2021 ONSC 1194, her objections against the vaccine were directly countered by the judicial notice taken that the vaccine is safe and effective for those in the child’s age group.
8Ultimately, the court ordered that the child was entitled to receive the Covid-19 vaccine, and that the father shall have sole parental decision-making responsibility in this area. The court also prohibited the mother from sharing her anti-vaccination views, including social media sites, with her son or from allowing anyone to do so. No other medical doctor, other than the doctor retained by the father, should be involved in this aspect of the child’s care.
9In OMS v EJS, 2021 SKQB 243, Justice Megaw of the Saskatchewan Court of Queen’s Bench decided on September 9, 2021, that a 12-year-old child should be vaccinated despite the mother’s opposition because it was in the child’s best interest. The parents were separated in this case. The father wanted his daughter to get vaccinated while the mother did not. The father favoured the vaccine because he was concerned about the virus. The mother opposed it based on three grounds: (a) the daughter didn’t want to be vaccinated and her voice should be hear; (b) the daughter had special medical concerns; and (c) the mother didn’t believe the accuracy of information about Covid-19. Accordingly, the judge ruled that the father could arrange for the child to be vaccinated. In reaching that conclusion, the judge held that he could take judicial notice that the Covid-19 vaccination is safe and effective for both adults and children. Although at the time there weren’t a lot of cases specifically about the Covid-19 vaccine, the judge reviewed other vaccine cases and in almost all of them, courts have ordered a child to be vaccinated when parents are in dispute on the issue.
10I take judicial notice that Health Canada has approved the Pfizer vaccine for children 5 to 11 years old and Ontario is offering appointments for children to be vaccinated. All three levels of government have proclaimed the pediatric COVID-19 vaccines to be safe and effective. The dose given to young children is smaller than the vaccine received by adults. There was no medical evidence to suggest that the child suffers from a medical condition that would prevent him from being vaccinated at this time. There is nothing distinguishable on the facts of this case that would indicate a finding other than it is in the best interest of the child to be vaccinated. Without the vaccine, not only is the child susceptible to the virus, but he will be excluded from places that require proof of vaccination. I find it is in the child’s best interest to be vaccinated for COVID-19.
11Section 28(1)(a)(i) of the Children’s Law Reform Act, RSO 1990, c.C.12, s.28, provides authority for this Court to make an order with respect to parental decision-making responsibility, with the sole factor being the best interest of the child. For the reasons set out above, the Mother shall be given sole decision-making responsibility on medical issues at this time.
Wearing a Mask:
12The Mother is seeking sole decision making with respect to education and primary residence of the child to ensure that the child wears a mask to school but also because she has concerns about the Father not returning the child to either her or to school.
13For the reasons set out below, I find it is in the best interest of the child for the Mother to have sole decision-making responsibility for education which shall include the decision as to whether the child wears a mask to school. As found by Justice Charney in A.C., if in-person schooling is available the presumption is that it is in the best interests of the child to attend schooling in-person.
14The Father repeatedly referred to wearing a mask as a “medical procedure” and a violation of the child’s “human rights”. His position with respect to wearing a mask was made clear in an email he sent to the Mother on November 11, 2021 as follows:
Mask wearing in public places [is] nothing more than a city run last minute by-law, that infringes on human rights, not the mention is contradictory to the findings of many peer reviewed studies showing complete ineffectiveness unless work in a proper setting with proper use. I have not worn masks for many weeks, nor asked Orlando to, and all that is required is that I inform those who intrude on my person, and privacy, that I am exempt from the medical procedure.
15The child cannot attend school without wearing a mask. The following excerpt are from the Toronto District School Board mask policy:
Following guidance from the Toronto Public Health and the Ministry of Education, the TDSB requires that all students wear masks while indoors on school property, unless an exemption applies.
School visitors, including parents/guardians, are required to wear a mask/face covering when indoors and outdoors on school property, such as during pick-up and drop-off. Students must wear non-medical masks or face coverings while in school.
If students, staff and visitors are able to wear masks but choose not to, they do not qualify for a mask exemption and in-person attendance at school or the workplace without a mask will not be allowed.
16It is in the child’s best interest to continue attending school in person, which would require him to wear a mask. The child has no medical reason to be exempted from wearing a mask. The Father is opposed to the child wearing a mask. In his emails to the Applicant, he has threatened to unilaterally withdraw the child from TDSB and home school the child if he is required to wear a mask at school. As set out in more detail below, the Father attended at the school demanding that they not force the child to wear a mask in school. As a result of the demands (which contradict the TDSB policy), the child was placed at a desk in the hallway, outside the classroom, and isolated from his friends. The entire incident was traumatic for the child.
17I therefore find the mother shall have temporary sole decision-making authority with respect to education, including whether the child shall wear a mask to school.
Parenting schedule and Restraining Order:
18Under s.28(1) of the CLRA, the Court:
(a) may by order grant,
(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),
(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or
(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);
(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and
(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,
(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,
(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,
(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,
(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,
(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,
(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or
(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. 2020, c. 25, Sched. 1, s. 6.
19Section 35 of the CLRA, gives the Court authority to make a restraining order:
35 (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15.
(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate. 2009, c. 11, s. 15.
20Do any adjustments need to be made to the current parenting schedule and specifically whether the Mother should have primary residence of the child? Is a restraining order warranted in this case? The Father has made a number of concerning comments/threats in his emails to the Mother. I have provided some examples of his concerning behaviour below.
21On October 15, 2021, the Respondent sent the following message to the Applicant:
Anyone who attempts to force my son to be experimented on when we know the virus itself has proven to be a non-threat to children will receive the full load of my energy and resources in retaliation to protect him and neutralize the real threat he faces in being coerced into compliance with this scam.
22On November 1, 2021, the Respondent attended with the child at school, neither wore a mask. The Respondent demanded that his child not be forced to wear a mask. As a result, the child was not permitted to enter the classroom, but a desk was set up outside the classroom to accommodate the Respondent’s demands. The child was upset at being kept apart from his classmates and asked to be permitted to wear a mask and enter the room. The school told the child they had to honour his father’s wishes but that they were trying to work something out. The Respondent sent an email that same day to the school. To understand the Respondent’s state of mind, I have included the entire email:
Rita,
You have made a terrible choice here. You are wrong for segregating my son. Of course he was crying and asking to wear a mask at that point, he has felt the weight of discrimination and was forced to segregate at your instruction because he is no longer like the other kids, or made.to feel as such for the sake of a failed and destructive policy in human control...
...he is not subject to the harmful, unsafe and illegal medical procedures being performed on him any longer like the other kids have now already surrendered to.
You mentioned discussing the "solution" to this situation in a voicemail this afternoon. Rita, the solution is the same as it was this morning when we spoke and it will be the same tomorrow and forever moving forward.
You must stop complying with requests from your superiors to commit human rights violations, to coerce others to participate in medical procedures against their consent and refuse the temptation to take the easy path and segregate children for being unwilling or unable to participate in the unsafe conditions of wearing masks.
Just like Muslims, blacks and natives, women and other minority groups over the years have been mistreated for their religious, ethnic or visible differences, gender or personal preferences, by the ruling class, Orlando has now been ostracized, mistreated and wronged to the extent that he even asked to be allowed to subject himself to the very thing everyone openly hates and knows is both unnatural, ineffective and against our human rights!
Have you ever heard a child ask to be allowed to put on a mask that obstructs their natural breathing (other then for temporarily wearing a Halloween costume)? The answer is obvious.
Breathing is an essential bodily task, just as eating, drinking, sleeping and attending to the toilet is each day. The wearing of a mask greatly obstructs that essential behaviour. Segregation based on someone's unwillingness to allow themselves to have their breathing hindered is almost maddening to think about.
My notice to you and that was previously shared with Orlando's mother offered a handful of health and safety measures you and the TDSB should and must take in order that unnatural and otherwise unsafe/unhealthy mask wearing be even considered as a temporary solution.
The fact that these measures have not already been conducted and put in place is pure negligence on your part and that of the school board. The fact that you chose today and are informing will be your choice to discriminate and risk the natural health of children by subjecting them to mask wearing INSTEAD of performing these basic safety precautions is beyond negligence, it's willful.
You are in quite a predicament.
There is no emergency order that supersedes your responsibility to uphold unalienable human rights and ensure a non-discriminatory learning environment for my son. It does not matter the cost of execution, you are endangering children by forcing mask wearing, far more than any proof can be shown that not wearing a mask spreads covid.
Wearing a face shield as an alternative is unacceptable and is no different than forcing the wearing of a mask. It is a medical apparatus designed for a medical purpose, and you are not authorized to require it of any. That is a personal medical.decision that requires informed consent amd to be discussed privately with medical professions, not to mention if it violates religious or creed based reasons. Screens also do not protect anyone, there are countless peer reviewed studies that show this to be the case, and simple common sense tells you that air moves about rooms no differently than when masks or shields are not worn.
Additionally, the cited purpose behind mask wearing is to help protect against a virus that has a 99.85% survival rate!!!!! And the 0.15% of deaths are heavily skewd towards elderly with serious pre-existing health complications.
Forced mask wearing is not a solution Rita, you are against the science, and now you are subject to liabilities after having been noticed amd choosing to force my son into isolation. Maybe you are aware that isolation is a punishment reserved for only the most dangerous criminals in the world. You had better meditate on that really hard tonight.
TPH for many years had mass campaigns in place all over the city that when you cough or sneeze, you can and should cover your mouth with the elbow of your sleeve. It was not mandatory, nor could it EVER be made mandatory because it would be a human rights violation to force such behavioir, but yet this itself is a much more practical, reasonable and effective "solution" to teach children this courtesy of habit, than to force mask wearing.
I hope you see the incredible irony in Orlando being coerced into asking to wear a mask.. if in fact that is even true. Your choice to segregate Orlando has caused him some emotional trauma at the least from.what it sounds from your own written account.
For each occurrence of him being segregated while on your watch based on his inability to be like the other kids in wearing a mask for medical purposes, I will be serving you with a Notice of Liability as I mentioned.
I will consult with Orlando and his mother for details as to the extent of your discrimination against him. I expect his mother's cooperation and alliance in protecting our son from unconsentual medical procedures forced upon our boy, but even without it, I will be relentless in pursuing his protection nonetheless.
Our children are entrusted to you each day Rita, to be cared for, and to be educated with fairness and honesty. Under no circumstance is it okay to violate their human rights or discriminate and then segregate them from others based on the grounds you are citing.
This is your 2nd notice.
23On November 1, 2021, he sent the following in an email to the Applicant:
If you continue to disregard the health and human rights issues with forced mask wearing for Orlando, I will have no choice but to pull Orlando out from the TDSB and take on teaching him in a safe environment. Do not send him to school tomorrow if you will not stand up against the mask policy. This is your final notice.
24The Respondent is using his emails to try to bully, intimate and scare both the school and the Applicant into doing what he wants. There is no positive spin on the words “will receive the full load of my energy and resources in retaliation to protect him and neutralize the real threat” or “You must stop complying with requests from your superiors to commit human rights violations, to coerce others to participate in medical procedures against their consent” or “For each occurrence of him being segregated while on your watch based on his inability to be like the other kids in wearing a mask for medical purposes, I will be serving you with a Notice of Liability as I mentioned.”.
25I have considered s.24 of the Children’s Law Reform Act giving primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.
26The Respondent has no fixed address and no employment. He has very little keeping him grounded in Toronto. Each time he has the child overnight he is sleeping somewhere else with the child. He submits that he is moving around each time he has the child to teach the child about “adaptability”. I find it is in the best interest of the child to have security and stability in his life, rather than moving each time he is with his father.
27I have concerns that the Respondent will not adhere to court orders and he was upfront about not wearing a mask in public settings. His attitude was set out in an email to the Applicant which included the following:
The "mandate" is for policies to be implemented. There is not an enforceable mask or vaccine mandate. The province has pushed the execution of policy setting to the municipal level and any city bylaws that do not respect privacy of medical disclosure, body autonomy and informed consent are in violation of our unalienable rights, they will never supersede those.
Fines are smoke and mirrors to scare people into compliance. I know several people now that challenged them and the fines get thrown out the window or trial dates are left pending for well over a year without any information. Most people will never stand up to them however, which is how this all gets accomplished without the province getting their hands dirty.
What would be far worse than dealing with a temporary discomfort like this (which can be significantly minimized through a number of suggestions I've offered), is for Orlando to be lead sheepishly through life, following all the rules without questioning, and where he sees his parents bending to the oppressive and overreaching, and unjust demands of government, just as it gets uncomfortable, to make the discomfort go away. What message does that send to him? What future will he have if everyone continues to accept authoritarianism. This is not Canada. Look what's happening.in Australian now. It's right around the corner... its here in fact already
28I have concerns about the Father’s conversations with the child and the psychological and emotional consequences of same. By way of one example (only to emphasize this point), the Father has placed the child on a vegan diet while the child is with him. The evidence before the court is that the child has developed an obsessive/anxious relationship with food, asking his mother to list the ingredients in his food so he can report back to his father. The Mother’s evidence is that the child had a panic attack at school because she packed yogurt in the child’s lunch, and he was afraid his father would find out. The child is 7 years old. He is too young to be burdened with these concerns.
29I have concerns about family violence. The Respondent has made several threats to the Applicant (see emails above) and has threatened to search for the Applicant at the homes of family and friends if the child is kept from him. The Mother previously moved residences because the Father was sitting in his car outside her home for hours at a time. She moved to a more secure building.
30In an email to the Applicant on November 13, 2021, the Respondent wrote:
If you win, you will lose miserably still...because Orlando will lose time with me, something that is irreplaceable, and if you lose his respect and trust, some immediately, and all of it over time…and then I will have nothing left to lose either, so my risk tolerance becomes immeasurable.
You think I’m difficult on things now when Orlando and I have days to look forward to? Imagine what an extra 10 days of free time will do for whatever I put my devotion towards.
31The email ends with “See you on the other side”. In light of the threatening nature of the emails, I am prepared to grant a restraining order.
32I have concerns about the Respondent’s ability to support the Mother’s relationship with the child, especially when he had threatened that the child will lose respect and trust in the Mother.
33However, in considering the facts set out in the Act, I cannot ignore that the child is bonded with both parents and that it is in the best interest of the child to continue spending time with his Father and to maintain a relationship with both parents.
34The motion before me was brought on an emergency basis and there has been little time to file a fulsome record or to test the allegations of the parties. It is possible that once a more fulsome record is before the Court, the Court may arrive at a different result. However, on an interim without prejudice basis, I find that it is in the best interest of the child that the parenting time be supervised. On a temporary basis, this will ensure the child attends school in person, receives his vaccines, has stable and secure living conditions, alleviates concerns about inappropriate discussions with the child, ensures the Respondent does not malign the Mother to the child, ensures stability vis a vis the location of the parenting time, and ensures the parenting time takes place in a safe and secure location for both Mother and child.
35The supervision centers require parents and children to wear masks. It will be up to the Father to decide whether he is prepared to wear a mask in order to spend time with the child. Further, there are limited supervisor’s willing to supervise if the family is not vaccinated. Assuming the Respondent is willing to wear a mask and finds someone willing to supervise the parenting time if he is not vaccinated, he shall have supervised access at Braydon, Side-by-Side or another agreed upon supervision center, for three hours on either Saturday or Sunday, depending on the availability at the supervision center. Once implemented, the place and date shall be consistent each week. On a without prejudice basis, the Father shall pay the cost for the supervised visits.
Passport:
36The child should have a valid passport. The Father refused to sign the passport application unless the Mother consented to the Father travelling with the child, including a trip to Africa. I am satisfied that the Father will not sign the passport application or will use it as a point of leverage against the Mother. The Mother may obtain a passport for the child and I hereby dispense with the need for the Father’s consent or signature on same. The Mother should be the custodian of the passport.
Next Step:
37With respect to the request for a motion date regarding child support and disclosure, the parties have a conference date scheduled for January 28, 2022, where these issues can be canvassed. Further, as per the Notice to Profession, as of January 4, 2022, Toronto Family Superior Court of Justice will resume open motions lists for regular motions. Provided the issue has been case conferenced, parties can bring a motion returnable on any Tuesday or Thursday.
Order:
38On a temporary without prejudice basis, order to go as follows:
a. The Applicant Mother shall have temporary sole parental decision-making responsibility for the child with respect to education and medical issues, which includes the ability to take the child to obtain his COVID-19 vaccine without the consent of the Respondent Father.
b. The Applicant may renew the child’s passport, dispensing with the need to obtain the Respondent’s consent. However, neither party may remove the child from Ontario until further order of the court or consent of both parties.
c. Neither party shall speak badly about the other parent to the child or within earshot of the child.
d. The child shall have his primary residence with the Applicant.
e. The Respondent shall have supervised parenting time with the child on the following terms:
i. The parenting time shall take place for three hours each week, on either Sunday or Saturday, depending on the availability of the supervision centers. Once the availability of the supervision centers has been determined then the day of the week shall be consistent every week.
ii. The supervision shall take place at either Braydon Supervision Center, Side-by-Side Supervision Center, or another supervision center as agreed to between the parties.
iii. The parties shall cooperate in filling out the intake forms for the supervision within 7 days of release of this order to minimize the delay in the commencement of the parenting time;
iv. On a without prejudice basis, the Respondent shall pay the cost of the supervision center.
f. The Respondent is restrained from sharing his anti-vaccination views with the child.
g. The Respondent is restrained from attending at or within 250 meters of the child’s school.
h. The Respondent is restrained from attending within 500 meters of the Applicant or child except for the sole purpose of attending at the supervision center for parenting time with the child, as set out above.
i. This order is in full force and effect from the date this decision is released.
Date: December 14, 2021
