COURT FILE NO.: FS-20-19424
DATE: 20210922
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
B.C.J.B. Applicant/ Respondent in Appeal
– and –
E.-R.R.R. Respondent/ Appellant in Appeal
Gabrielle Pop-Lazic, for the Applicant/ Respondent in Appeal
Gary S. Joseph, for the Respondent/ Appellant in Appeal
HEARD (By Videoconference): July 13, 2021
REASONS FOR DECISION
A.A. SANFILIPPO, J.
Overview
[1] B.C.J.B. and E.-R.R.R. are the parents of a child. The Applicant father, B.C.J.B., sought an order that he be given decision-making authority over having the child vaccinated. The Respondent mother, E.-R.R.R., opposed. At the time of the motion, heard on August 28, 2020, the child was almost ten years old.
[2] On the basis of Reasons for Judgment released on September 28, 2020, Finlayson J. granted the father the authority to make decisions about whether the child should receive Ontario’s existing publicly funded vaccinations, after obtaining medical advice, but not including authority to decide whether to administer a future COVID-19 vaccine: B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438 (the “Reasons”). The motion judge later determined the issue of costs of the motion, on written submissions, and awarded costs of the motion to the father, fixed in the amount of $3,000, all inclusive: B.C.J.B. v. E.-R.R.R., 2020 ONCJ 512 (“Reasons on Costs”).
[3] E.-R.R.R. appeals these Orders.
I. THE MOTION JUDGE’S DECISION
A. Uncontested Facts
[4] The parents never married or cohabited. The child was born in 2010. The parents negotiated a draft parenting agreement in 2011, never executed, that provided that the mother would have custody of the child.[^1] They then entered into a Parenting Agreement, signed April 18, 2013, that contains a term granting the mother sole custody of the child and providing for access between the child and the father: Parenting Agreement, s. 3.1: “[The mother] will have sole custody of [the child.”
[5] The father commenced this proceeding on July 19, 2017. About a year into this litigation, the parents signed an Interim Parenting Agreement dated June 29, 2018 that deals with the father’s parenting time. Neither the Parenting Agreement nor the Interim Parenting Agreement was ever incorporated into a Court Order. There was no temporary or final order on decision-making made in these proceedings at the time of the motion under appeal.
[6] The child is generally in good health. The child has never received the childhood vaccines that other children in Ontario routinely receive.
[7] By December 17, 2019, this case was on the trial track, for the first time, and scheduled for assignment court on May 7, 2020 and for the trial sittings in June 2020. The vaccine issue was one of the issues listed for trial. The assignment court and trial sittings were cancelled on account of the COVID-19 pandemic. At a case conference conducted on July 22, 2020, the motion judge agreed to hear this motion, which also dealt with other relief that is not material for this appeal.
B. The Parties’ Positions
[8] The father submitted that from the time that he became aware of the mother’s unwillingness to vaccinate the child, he attempted to persuade her of the benefits of vaccination. The mother submitted that the father was not previously concerned that the child was not vaccinated. She contended that the father never sought custody, or an agreement that the child be vaccinated, when negotiating the Parenting Agreement and the Interim Parenting Agreement although he was, by that time, aware that the mother did not intend to vaccinate the child.
[9] The mother submitted that she decided not to vaccinate the child based on a number of factors, including: (i) the mother’s medical history and that of her family; (ii) her research into vaccination issues; and, (iii) her freedom of conscience and religion. The mother signed a Statement of Conscience or Religious Beliefs Affidavit, pursuant to the Immunization of School Pupils Act, R.S.O. 1990, c. I.1, with the result that the child’s lack of vaccination was not an impediment to attendance at school.
[10] The father maintained that the mother did not rely on any expert medical or scientific advice in making her decision not to vaccinate the child, and had no evidence that vaccination was contraindicated for the child. The father submitted that because of the COVID-19 pandemic, the issue of vaccination was even “more relevant now than ever”, and the resolution of the vaccination issue could not be delayed until trial but must be determined on motion.
[11] The parties agreed that because the custody term in the Parenting Agreement had never been incorporated into a Court Order, this was not a variation case. Section 29 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) did not apply. Neither side argued that it was necessary for the motion judge to find a material change in circumstances in order to make an order that would be inconsistent with the custody term in the Parenting Agreement. However, the parties disagreed on the legal framework to govern the motion judge’s determination of the vaccine issue.
[12] The father submitted that the “best interests of the child” test should govern the issues on the motion, regardless of the history of parenting and the custody term in the Parenting Agreement. He maintained, further, that the need for the child to be vaccinated now is an “exigent circumstance” and cannot be delayed to trial. The father contended that because of COVID-19, the child is at greater risk of contracting vaccine preventable diseases, and at greater risk of harm should he contract a vaccine preventable disease. The father submitted that the mother had an onus to demonstrate why the child should not be vaccinated.
[13] The mother relied heavily on the status quo and the custody term contained in the Parenting Agreement and argued that the father must demonstrate “exigent circumstances” in order to change the status quo prior to trial. The mother urged the motion judge to defer the vaccination issue to trial, where it could be determined on a full record. Both sides submitted that there must be some new circumstances to warrant the motion judge’s intervention.
[14] Neither side tendered affidavits sworn by experts. Both parties attached to their affidavits letters from physicians who had seen the child. In some instances, the physicians were consulted jointly by the parties, reported jointly to the parties and, importantly to the issues raised on this Appeal, both parties relied on this evidence in their submissions.
[15] The father tendered into evidence several documents that contained information about Ontario’s public vaccine program. These included the Government of Ontario publication, Immunization 2020: Modernizing Ontario’s Publicly Funded Immunization Program (“Immunization 2020”) and a Government of Canada publication, the Canadian Immunization Guide, as well as materials published by the World Health Organization and newspaper articles. The father submitted that the motion judge should take judicial notice of the adjudicative and legislative facts contained in these publications, as establishing that vaccines are safe and effective. The mother objected to the motion judge relying on any of the information contained in these sources.
[16] The motion judge afforded the parties an opportunity to address whether the Court should just direct a trial, rather than determine the vaccine issue on motion.[^2] The parties reported to the Court that they intended to argue the vaccine issue.[^3]
C. The Decision
[17] The motion judge granted the father decision-making authority about the child’s health, not absolutely, but rather only as it relates to deciding whether to administer Ontario’s existing publicly funded vaccinations, which did not include “a future Covid-19 vaccine”. The operative terms of the resultant Order are as follows:
The father shall have decision-making authority about the child’s, B.R.M.R.’s, health, but only as it relates to deciding whether to administer Ontario’s existing publicly funded vaccinations. If Dr. De Souza is unwilling to administer vaccines to B.R.M.R., then the father may take the child to another health care provider authorized to administer them. The father shall follow medical advice as to which ones B.R.M.R. should receive, and how they shall be administered, to get B.R.M.R.’s immunizations up to date.
Paragraph (1) does not include authority to decide whether to administer a future COVID-19 vaccine. No such vaccine yet exists. If this remains an issue, then the trial judge will have to hear evidence from the parents as to how they intend to deal with a future COVID-19 vaccine, and, if appropriate, the Court will make a decision.
[18] On the basis of the Reasons on Costs, the motion judge awarded the father costs of the motion, fixed in the amount of $3,000, all inclusive of HST and disbursements.
II. THIS APPEAL
[19] An Appeal from an order of the Ontario Court of Justice relating to decision-making under Part III of the CLRA, lies to the Superior Court of Justice. Part III of the CLRA – “Decision-Making Responsibility, Parenting Time, Contact and Guardianship” – includes s. 28, which is the provision governing decision-making orders. As this Appeal was filed before March 1, 2021, the transitional provision in s. 73(3)(a) of the CLRA would apply, making applicable the previous s. 73, which provides as follows: “An appeal from an order of the Ontario Court of Justice under this Part lies to the Superior Court of Justice”: Christodoulou v. Christodoulou, 2010 ONCA 93, 75 R.F.L. (6th) 266, at para. 34.
A. Standard of Review
[20] The parties agreed on the appropriate standard of review, as it is clearly established in the case law. On questions of law, the standard of review is correctness, while findings of fact and factual inferences are reviewable for palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-10, 25. In Sferruzzi v. Allan, 2013 ONCA 496, 33 R.F.L. (7th) 1, at para. 43, the Ontario Court of Appeal explained that the standard of appellate review in family law matters pertaining to custody and access is narrow, applying the statement by the Supreme Court of Canada in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 SCR 1014, at paras. 11-13, that an appellate court may only intervene where the lower court judge “erred in law or made a material error in the appreciation of the facts”.
[21] The Supreme Court emphasized that “custody and access decisions are inherently exercises in discretion” that attract deference: Van de Perre, at para. 13; Chitsabesan v. Yuhendran, 2016 ONCA 105, 396 D.L.R. (4th) 657, at paras. 3-5: “In short, the Supreme Court has made clear that it is not the function of an appellate court to impose the decision it would have made itself by engaging in a fresh analysis or by balancing the factors differently. This court can intervene in the decision below only if the judge erred in law or made a material error in the appreciation of the facts.” See also Hickey v. Hickey, 1999 691 (SCC), [1999] 2 SCR 518, at para. 12; N.S. v. R.M., 2019 ONCA 685, at paras. 4-5.
B. The Issues Raised on Appeal
[22] The Appellant claims that the motion judge made errors that support setting aside his orders on the vaccination issue and directing that the Appellant have decision-making authority over the vaccination of the child. In the appeal of the costs decision, the Appellant claims that the motion judge exercised his discretion on improper principles.
[23] The Appellant raised the following issues for appeal:
(a) Whether the motion judge erred in imposing a change in the child’s status quo pending trial, determining triable issues on an interim motion in the face of conflicting evidence, without the benefit of cross-examination, largely on the basis of unsworn letters from doctors.
(b) Whether the motion judge erred in law by taking judicial notice of the propositions set out in his Reasons.
(c) Whether the motion judge erred in law by determining the issues before him in the absence of any evidence with respect to the child’s views and preferences, contrary to s. 64 of the CLRA.
(d) Whether the motion judge erred in awarding costs to the Applicant father in the amount of $3,000.
[24] I will now turn to an analysis of these issues.
III. ANALYSIS
A. Did the Motion Judge Err in Identification of the Applicable Test in Changing the Child’s Custody Status Prior to Trial?
[25] The motion judge held that the vaccine issue was not to be determined as a Motion to Change an existing order, as the custody term in the Parenting Agreement had never been incorporated into a Court Order. He thereby concluded that “material change in circumstances” was not the applicable test.[^4] I see no error in this determination.
[26] The Appellant submitted that the motion judge erred in his consideration of the custody term in the Parenting Agreement, including by not giving it sufficient weight or recognizing the importance of maintaining status quo. I do not accept this submission, for the following reasons.
[27] The motion judge concluded that the Parenting Agreement is not a domestic contract,[^5] but he, nonetheless, considered the role of the Parenting Agreement as if it were a domestic contract, surveying applicable case law.[^6] The motion judge concluded that the custody term in the Parenting Agreement was not binding on his analysis, but rather was a factor to be considered in a best interests analysis, applying Woodhouse v. Woodhouse (1996), 1996 902 (ON CA), 29 O.R. (3d) 417 (C.A.), and the following cases: Askalan v. Taleb, 2012 ONSC 4746; C.(M.A.) v. K.(M.), 2009 ONCJ 18; Carpenter v. Carpenter (2000), 2000 22443 (ON SC), 11 R.F.L. (5th) 281 (Ont. S.C.); Molloy v. Molloy, 1991 CarswellOnt 3554 (Gen. Div.). He then assessed the role of the Parenting Agreement, and the status quo on the issue of custody, as part of his analysis. In his best interests analysis, the motion judge considered the custody term in the Parenting Agreement for two factors: first, as a reflection of the parties’ intention at the time that they signed it; and second, evidence of the status quo, which is pertinent to the best interests analysis.[^7]
[28] The motion judge thoroughly assessed the weight to be attached to the custody term contained in the parties’ Parenting Agreement, and decided to attribute to it less weight than that submitted by the mother. In my view, he had a basis, in applicable law and on the facts that he found, to attribute less weight to the custody term than sought by the Appellant and did not commit a reversible error in doing so.
[29] The motion judge held that the best interests test applied to determination of an incident of custody, in accordance with former ss. 24(2), (3) and (4) of the CLRA.[^8] He concluded, further, that s. 28(1)(b) of the CLRA provided him with power to “determine any aspect of the incidents of the right to custody or access”. The motion judge set out the legal principles that he found to be applicable to his analysis, as follows:[^9]
(a) Although there was no Order or domestic contract, the Appellant was the child’s de facto custodial parent.
(b) The vaccine issue raised by the motion required that the motion judge conduct a best interests analysis.
(c) The existing status quo was a factor to be considered as part of a best interests analysis.
(d) The Respondent placed into issue the wisdom of the Appellant’s decision-making in relation to the vaccine issue, alleging that it was contrary to the child’s best interests.
(e) The party seeking to disturb the status quo must show why it is in the child’s best interests to do so, and the party seeking to maintain the status quo is required to show why it is in the child’s best interests to do so.
(f) The Court is required to look at all relevant, admissible evidence concerning the child’s best interests.
[30] The motion judge found, in my view correctly, that the mother did not bear an onus to show why the child should not be vaccinated. However, as the father had placed the mother’s past and current decision-making into issue, this was a pertinent consideration to the motion judge’s best interests analysis.[^10]
[31] In my view, the motion judge correctly identified the legal test applicable to his determination of the vaccine issue – the best interests test – and correctly identified the principles that would guide his analysis. I see no error in these determinations.
B. Did the Motion Judge Err in Consideration of the Evidence?
[32] I will now turn to the Appellant’s submission that the motion judge ought not to have determined the motion on the evidentiary record presented by the parties, but rather ought to have maintained the status quo and deferred the vaccine issue to trial.
[33] The motion judge found that the best interests analysis required that he vary the status quo prior to trial, explaining this conclusion as follows:
I find the child is already exposed to risk by not being vaccinated as it is. It is not an answer to argue that the child has not contracted a disease during the last 10 years, so what’s the harm in waiting a few more months to trial. This, in effect, is what the mother argues. If it is in the child’s best interests to act now, then the Court should intervene. It must not wait until a trial, because of a threshold test that was developed in a different factual context.[^11]
[34] The Appellant submitted that the motion judge did not have a proper evidentiary basis on which to reach this conclusion, particularly because, in the Appellant’s submission, the father sought the issuance of a final order disposing of the vaccine issue without need for trial. The Appellant maintained that the motion judge was required to defer determination of a final order to trial and not on the record presented on the motion.
[35] The Respondent submitted that he did not bring a motion for a final order, but rather a motion for a temporary order. He submitted that the Order under appeal on the vaccine issue is not a final order, but rather is a temporary order. The Respondent committed that the vaccine issue will be listed for final determination at trial, notwithstanding the temporary order rendered by the motion judge.
[36] I pause to observe that the party opposed to the motion judge’s order argued that it was a final order incapable of further consideration at trial, while the party who obtained the order conceded that it was temporary and a factor for assessment by the trial judge in consideration of a final order on health decision-making authority concerning the child’s vaccines.
[37] I do not accept the Appellant’s submission that the motion judge was asked to issue a final order, or that he did so. The Motion Record states that the relief being sought was a temporary order. This motion was not brought as a summary judgment motion for a final determination of the vaccine issue, but rather for a temporary order. The Order issued by the motion judge states, on its face, that it is a temporary order. And the Reasons show that the motion judge intended to issue a temporary order. There are three further reasons.
[38] First, the motion judge did not make an order that the child be vaccinated. He made an order as to which parent would have the authority for that decision, including the factors that govern the making of the decision. The motion judge ordered that the Respondent follow medical advice about which vaccines the child should receive, and how to receive them.[^12]
[39] Second, the motion judge did not make any determination of parental authority for the child to receive the COVID-19 vaccine: “I am not deciding about future Covid-19 vaccines at this time.”[^13] This issue was specifically directed to be listed for trial: “In any event, the authority to make decisions about Covid-19 vaccine(s) for B.R.M.R. will have to be dealt with at the trial, if either side raises this”.[^14]
[40] Third, even if the child receives the routine childhood vaccines before trial, and I note that the parties consented to a stay pending determination of this Appeal,[^15] the issue of all future vaccines and whether they should be administered remains to be determined at trial.
[41] Temporary orders can have permanent consequences. In this case, any vaccines administered prior to trial could not be undone regardless of the final determination of this issue at trial. But where an issue is raised that impacts the best interests of a child, the legislation and jurisprudence authorize the Court to render a decision even though further evidence may be available at trial.
[42] The Appellant conceded that the only impact to this Appeal of whether the motion judge’s Order was temporary or final is the nature and quality of the evidentiary record required for determination. This is a core element of the Appellant’s submission on this Appeal: that the motion judge did not have an adequate evidentiary record on which to make his findings. I will turn to my review of the motion judge’s analysis of the evidence.
[43] The father tendered four principal sources of evidence in his affidavit: his own direct affidavit evidence; documents issued by governmental or non-governmental bodies; newspaper articles; and letters from physicians. The mother also tendered, as part of her affidavit, letters from physicians, in addition to her direct evidence. The motion judge found that while the father did not have to meet an “exigent circumstances” test in relation to his motion for health decision-making over vaccines, he had an obligation to explain why he is challenging the mother’s decision-making now and why the order that he sought was in the child’s best interests.[^16]
[44] The motion judge took judicial notice of the following adjudicative facts:[^17]
(a) Ontario’s publicly funded vaccines are safe and effective at preventing vaccine preventable diseases.
(b) The widespread use of Ontario’s publicly funded vaccines has led to severe reductions or eradication of incidents of disease in our society.
(c) The harm to a child from contracting a vaccine preventable disease may even include death.
[45] The motion judge took judicial notice of the following legislative facts:[^18]
(a) Canada and Ontario have a coordinated immunization strategy in the interest of public safety.
(b) Canada and Ontario’s immunization strategy includes sophisticated delivery systems, oversight and vaccine safety monitoring and compliance measures.
(c) The Immunization of School Pupils Act is part of Ontario’s public health strategy.
(d) Government policy, at both the federal and provincial levels, supports the widespread use of vaccination to promote individual health and public safety.
[46] The motion judge found that he was not able to take judicial notice that the child had no health conditions that contraindicate vaccinations.[^19] However, he held that there was more than ample evidence for the Court to make this specific finding about the child, as follows:
(a) In considering the Appellant’s reasons for not vaccinating the child, as part of his analysis under former ss. 24(2)(d), (e), (g) and s. 24(3)(b) of the CLRA (and not because he attributed to the mother an onus to prove her decision not to vaccinate), the mother failed to tender any evidence of what “careful science-based research” she has sourced and relied upon.[^20] Further, the motion judge found that the mother had “absolutely no actual medical evidence of her own adverse reaction to vaccines, her ‘pharmacogenomic sensitives’ and ‘detected genetic mutations’, nor about the child’s ‘potential genetic predispositions’, nor how those would impact the child from a vaccination perspective”.[^21]
(b) Although the Appellant signed a Statement of Conscience or Religious Beliefs Affidavit pursuant to the Immunization of School Pupils Act, the mother’s counsel advised the Court that she was not advancing any religious arguments, nor a freedom of religion claim.[^22]
(c) The father tendered the Immunology Report of Dr. Vy Kim dated February 18, 2020, which the mother did not challenge.[^23] Dr. Kim’s report stated that she “did not see any contraindications for the child to receive immunizations, including inactivated vaccines and live attenuated vaccinates”.[^24] Dr. Kim explained to the mother that vaccines used in Canada are “extremely safe”.
(d) The father tendered a letter from the child’s primary health care physician, Dr. De Souza, dated July 31, 2020, from whom both parents requested and obtained letters for use in this litigation.[^25] Dr. De Souza wrote that: “At this time, there is no clear medical evidence that [the child] could not be vaccinated”.[^26] The motion judge noted that Dr. De Souza did not state, in any of her reports, that she either recommended or supported the mother’s decision not to vaccinate the child.[^27]
[47] The motion judge found that the fact that the Appellant signed an exemption, or professed to have a right to do her own research and decide, was not persuasive, and unsupported by “the overwhelming abundance of case law”.[^28] The motion judge took judicial notice of the adjudicative and legislative facts, regarding the safety of the children’s vaccination program, and accepted the evidence of Dr. Kim and Dr. De Souza, which was unchallenged by the Appellant, that there were no contraindications in vaccination for the child, and concluded that it was in the best interests of the child that the Respondent have health decision-making authority concerning the child’s vaccines.
[48] The Appellant does not take issue with the admissibility of the direct evidence tendered by the Respondent. The motion judge upheld the Appellant’s objection to the admission of the newspaper articles. The motion judge declined to take judicial notice of the documents tendered from non-Canadian governmental and non-governmental sources. The Appellant submits that the motion judge erred in taking judicial notice of facts contained in Immunization 2020 and the Canadian Immunization Guide and erred in relying on the physicians’ letters. I will now turn to these issues.
(a) Did the Motion Judge Err in Taking Judicial Notice?
[49] The motion judge conducted a comprehensive and thoughtful analysis of the principles pertaining to judicial notice, well-established by the Supreme Court,[^29] referring to R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Williams 1998 782 (SCC), [1998] 1 S.C.R. 1128. The motion judge concluded, in my view correctly, that “scientific facts can become so well-known generally, that the court can judicially note them without the need for expert evidence”.[^30]
[50] Additionally, the motion judge surveyed 13 cases[^31] that have considered parental authority to make health decisions about vaccines, not to rely on any particular statement by an expert in any particular case, but rather because there may be precedential value where certain facts have been judicially noted by other courts.[^32] In all but one of the surveyed cases, the Court granted authority to make health decisions regarding vaccination to the parent who supported the child’s vaccination. The motion judge concluded that “the case law, read as a whole, reflects the reality there is no debate in the medical community about the facts about which I am prepared to take judicial notice”.[^33]
[51] A decision to take judicial notice is discretionary: R. v. Zundel (1987), 1987 121 (ON CA), 35 D.L.R. (4th) 338 (Ont. C.A.), at p. 392, as applied in R. v. Zundel (1990), 1990 11025 (ON CA), 53 C.C.C. (3d) 161, at pp. 167-68: “The Judges, however, have a wide discretion as to matters of which they will take judicial notice and may notice matters which they cannot be required to notice” (emphasis in original).
[52] I see no error by the motion judge in taking judicial notice of the adjudicative facts and legislative facts set out earlier. I see no error in law, in application of the correct legal principles, or in the motion judge’s exercise of discretion. The motion judge had an evidentiary basis, grounded in case law, on which to judicially note these facts, and I will not interfere with his determination.
[53] The motion judge’s finding of judicial notice was commented upon by Akbarali J. in A.P. v. L.K., 2021 ONSC 150, at paras. 181-186, who agreed with the motion judge’s thorough analysis. Justice Akbarali found, as well, that the Immunization 2020 publication is a public document, admissible for proof of the truth of its contents under the public document exception to the hearsay rule: A.P., at para. 173. The admissibility of this document on the basis of the public document exception to the hearsay rule, or on the basis of s. 25 of the Evidence Act, R.S.O. 1990, c. E.23, was not raised before the motion judge.
(b) Did the Motion Judge Err in Admitting the Physicians’ Letters?
[54] The motion judge found, in my view correctly, that a Court cannot take judicial notice that a specific child has no health conditions that may contraindicate vaccinations.[^34] I also agree with the motion judge’s finding that the evidentiary burden that will be required in most instances will not be onerous: see also A.P., at para. 187.
[55] I will turn to the Appellant’s submission that the motion judge erred in admitting evidence from the child’s primary health care physician, Dr. Melissa De Souza, and a consultation letter provided by Dr. Vy Kim, an immunologist at Toronto Hospital for Sick Children who saw the child for the purpose of an immunology assessment. The evidence of Dr. De Souza and Dr. Kim was not tendered in affidavits sworn by these medical practitioners, but rather in unsworn letters annexed as exhibits to the father’s affidavit.
[56] The Appellant stated that the motion judge erred in admitting this medical evidence because the evidence did not meet the requirements set out in Berger v. Berger, 2016 ONCA 884, 85 R.F.L. (7th) 259, at paras. 74-75: specifically, the father did not “explain why the original source of the information did not swear his or her own affidavit and explain the circumstances of how the hearsay evidence was obtained”. The Appellant submitted that the motion judge ought to have declined to admit the evidence, as in E.B.H. v. E.H., 2017 ONSC 5233, at paras 23-24, requiring affidavit evidence directly from the physicians.
[57] These principles are reflected in the Ontario Court of Appeal’s statement in L.M. v. Peel Children's Aid Society, 2019 ONCA 841, 149 O.R. (3d) 18, at para. 78, that: “Facts that are not subject to judicial notice should generally be established by direct evidence or admissions: R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at paras. 61-68; R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128, at p. 1155-1156; and R. v. Le, 2019 SCC 34, at paras. 83-85.”
[58] The Appellant submitted further that the motion judge erred in determining issues of credibility arising from the evidence without directing a trial. The Appellant relied on cases that have stated that credibility determinations on matters of importance must proceed to trial: Menchella v. Menchella, 2012 ONSC 1861, at paras. 36 and 38; Ierullo v. Ierullo (2006), 2006 33301 (ON CA), 32 R.F.L. (6th) 246 (Ont. C.A.), at paras. 16-19, 22.
[59] The Respondent submitted that, in the particular circumstances of this motion, the motion judge did not offend these principles by admitting and accepting the medical evidence annexed to the affidavit evidence. I agree, for the following reasons.
[60] First, the Appellant did not contest the use of medical evidence at the motion by annexing medical letters to the parties’ affidavits. Indeed, the Appellant tendered three unsworn letters authored by Dr. De Souza as exhibits to her affidavit: specifically, Dr. De Souza’s letters of March 27, 2019, December 6, 2019, and August 18, 2020. The Respondent annexed Dr. De Souza’s letter of July 31, 2020 which, although addressed to the mother, was not tendered by the mother even though she tendered the other three letters from Dr. De Souza.
[61] Second, the mother did not challenge the statements made by Dr. De Souza in her July 31, 2020 letter.[^35] In the July 31, 2020 letter, Dr De Souza stated that it is Dr. De Souza’s “practice to recommend routine childhood vaccinations for children in general” and that, “at this time, there is no clear medical evidence that [the child] could not be vaccinated”.[^36] The motion judge found that the three letters tendered by the mother authored by Dr. De Souza “reveal[ed] no concerns from a vaccine perspective”.[^37] Therefore, in accepting Dr. Souza’s unsworn letters, the motion judge admitted the evidence from three such letters tendered by the mother and one letter tendered by the father.
[62] Third, the letter from Dr. Kim arose from the mother’s presentation of the child in the Sick Kids immunology clinic, which both parents attended.[^38] The mother was involved in the appointment, and the motion judge found, based on Dr. Kim’s letter of February 18, 2020, that Dr. Kim explained her role and her analysis directly to the mother.[^39] The motion judge accepted Dr. Kim’s finding, from an immunodeficiency perspective, that Dr. Kim “did not see any contraindications for [the child] to receive immunizations, including inactivated vaccines and live attenuated vaccines”.[^40]
[63] Fourth, the mother did not challenge the statements made by Dr. Kim in her February 18, 2020 letter pertaining to Dr. Kim’s opinion that she was unaware of any contraindications for the child to be vaccinated.[^41]
[64] Fifth, while the mother submitted on the motion that she intended to challenge at trial Dr. Kim’s opinion evidence regarding the role of a family history of vaccine reactions, the role of additives or chemicals added to vaccines, and any known association of vaccination with increased risk of malignancy, the motion judge found that much of this information is also available in the government documentation supplied by the father to the Court.[^42] Accordingly, the motion judge did not need to rely on Dr. Kim’s evidence on these issues but rather could rely on the adjudicative and legislative facts that he admitted into evidence through judicial notice.
[65] Sixth, the mother did not adduce any medical or scientific evidence to support her decision not to vaccinate the child. She did not explain or lead evidence on the “careful science-based research” that she deposed that she had conducted. The motion judge’s assessment that the mother’s affidavit evidence on this point was not persuasive and unsupported is entitled to deference.
[66] The motion judge’s acceptance of the medical evidence presented by the father did not deprive the mother of a right of cross-examination because the mother did not contest the manner by which the evidence was tendered and did not challenge the evidence of Dr. De Souza and Dr. Kim that neither was aware of any medical reason for the child not to be vaccinated.
[67] The motion judge concluded that he had more than ample evidence to make a specific finding about whether vaccination was contraindicated for the child.[^43] I do not see any reviewable error in this determination by the motion judge.
C. Did the Motion Judge Err by Determining the Motion Without Evidence of the Child’s Views and Preferences?
[68] I turn now to the Appellant’s submission that the motion judge erred by deciding the motion without considering the child’s views and preferences. The Appellant submitted that s. 64 of the CLRA imposes a mandatory requirement that all matters affecting the child must take into consideration the child’s views and preferences. Section 64(1) provides as follows:
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.
[69] I do not accept this submission for the following reasons. Section 64 is not absolute. It specifically states that a child’s views and preferences shall be taken into consideration “where possible”. This is consistent with s. 24(3)(e) of the CLRA (formerly 24(2)(b)), which establishes that the best interests analysis includes consideration of the “child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained”.
[70] The motion judge reviewed the case law and statutory authority pertaining to the child’s views and preferences as it pertained to medical decision-making.[^44] The motion judge noted that there was some evidence of the child’s views and preferences as contained in Dr. De Souza’s letter of July 31, 2020, but that neither parent had taken any step to adduce evidence of the child’s views and preferences for the motion.[^45] The motion judge determined that he would not appoint the Office of the Children’s Lawyer in relation to the vaccine issue out of concern that the child’s involvement in the vaccine issue could be detrimental to the child.[^46]
[71] I do not accept that the motion judge erred in law by deciding the motion in the absence of evidence of the child’s views and preferences. The motion judge reviewed the legislative and case law principles related to the role of the child’s views and preferences and assessed the potential for impact to the child through involvement in this issue. In my assessment, the motion judge made no reviewable error in deciding the motion without evidence of the child’s views and preferences.
D. Did the Motion Judge Err in Awarding Costs to the Respondent in the Amount of $3,000?
[72] Last, I turn to the Appellant’s submission that the motion judge erred in awarding costs of the motion to the Respondent in the amount of $3,000. The Appellant relies on two cases where courts declined to award costs to a successful party, on the basis that the parties acted in good faith and were focused on the best interests of the child: Basley v Basley, 2017 ONSC 886, at paras. 9-11, applying Reid v. Mulder, 2006 9981 (Ont. S.C.), at paras. 10-11. The Appellant submitted that the motion judge erred by not following this approach.
[73] The case law is clear, that a costs award should be set aside on appeal only if the motion judge erred in principle or the award was plainly wrong: Ehsaan v. Zare, 2018 ONCA 453, at para. 8, applying Davies v. Clarington (Municipality), 2009 ONCA 722, at para. 27. Here, the motion judge considered, in his eight-page Reasons on Costs, all applicable legislative provisions affecting the court’s exercise of discretion in awarding costs, including s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and rr. 2(2) and 24 of the Family Law Rules, O. Reg. 114/99. The motion judge identified and applied the principles on the issue of costs as set out by the Court of Appeal, including in Mattina v. Mattina, 2018 ONCA 867, and Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519.
[74] The motion judge’s exercise of his discretion on the issue of costs was based on a correct application of the pertinent legal principles to the facts as he found them on the admissible evidence. I see no basis to interfere with the exercise of the motion judge’s discretion in making this costs award.
IV. CONCLUSIONS
[75] The motion judge applied the correct legal principles in deciding to hear this motion prior to trial, and identified the correct legal test in applying a best interests analysis to determine the incident of decision-making in issue: namely, health decision-making authority regarding the child’s vaccination. The motion judge identified the correct factors in application of the best interests analysis, and applied those principles on the evidence that he admitted and weighed. The motion judge had a basis on which to admit, accept and weigh the evidence as he did. His findings were supported by the evidence and are owed deference.
[76] The motion judge applied the correct legal principles to his judicial notice of adjudicative and legislative facts, and in consideration of the affidavit evidence. He properly instructed himself on the applicable law and applied that law to the facts as found by him. In so doing, he committed no reversible error. There is no basis to overturn his conclusions.
V. COSTS
[77] The parties agreed that the costs of the Appeal be awarded to the successful party, fixed on a partial indemnity basis in the amount of $10,000, inclusive of HST and disbursements. Accordingly, as the Respondent has been successful in the Appeal, the Respondent is awarded costs of the Appeal, payable by the Appellant, fixed in the amount of $10,000, all inclusive.
VI. DISPOSITION
[78] This Appeal is dismissed, with costs payable by the Appellant to the Respondent on a partial indemnity basis, in the amount of $10,000, inclusive of HST and disbursements.
A.A. Sanfilippo J.
Released: September 22, 2021
[^1]: The motion under appeal was determined prior to the March 1, 2021 amendments to the Children’s Law Reform Act brought about by the Moving Ontario Family Law Forward Act, S.O. 2020, c. 25. The amendments changed the terminology used in relation to custody and access of children. Custody was changed to decision-making responsibility and access was changed to parenting time. Pre-amendment terminology will be used in these reasons where required to explain the argument made before the motion judge and to accurately reflect the motion judge’s reasons. [^2]: Reasons, at para. 56; Reasons on Costs, at para. 3. [^3]: Reasons, at para. 57; Reasons on Costs, at para. 3. [^4]: Reasons, at para. 63. [^5]: Reasons, at para. 77. [^6]: Reasons, at paras. 78-102; 125(d), (e) and (k). [^7]: Reasons, at para. 15. [^8]: The amendments of the CLRA effective March 1, 2021, as explained in footnote 1, above, resulted in amendment to s. 24. Neither counsel raised any issue on the Appeal arising from the amendment to s. 24 of the CLRA, considering that the motion judge’s decision was made prior to the amendment and is thereby based on the pre-amendment s. 24. [^9]: Reasons, at para. 241-242. [^10]: Reasons, at paras. 103-106. [^11]: Reasons, at para. 124. [^12]: Reasons, at para. 194. [^13]: Reasons, at para. 194, footnote 9. [^14]: Reasons, at para. 194, footnote 9. [^15]: The parties consented to an order, issued on November 30, 2020 by Nishikawa J. on a consent Form 14B motion in writing, staying the motion judge’s Order pending the outcome of this Appeal. [^16]: Reasons, at para. 122. [^17]: Reasons, at paras. 186-190. [^18]: Reasons, at paras. 191-193. [^19]: Reasons, at para. 190. [^20]: Reasons, at para. 198. [^21]: Reasons, at para. 198. [^22]: Reasons, at para. 202. [^23]: Reasons, at para. 208. [^24]: Reasons, at para. 208(d) and (e). [^25]: Reasons, at paras. 213. [^26]: Reasons, at para. 214. [^27]: Reasons, at para. 237. [^28]: Reasons, at para. 205. [^29]: Reasons, at paras. 145-159. [^30]: Reasons, at para. 155. [^31]: Reasons, at paras. 160-185. [^32]: Reasons, at para. 156. [^33]: Reasons, at para. 189. [^34]: Reasons, at paras. 129, 190. [^35]: Reasons, at para. 215. [^36]: Reasons, at para. 214. [^37]: Reasons, at para. 198. [^38]: Reasons, at para. 208. [^39]: Reasons, at para. 208. [^40]: Reasons, at para. 208. [^41]: Reasons, at para. 208. [^42]: Reasons, at paras. 209-211. [^43]: Reasons, at para. 190. [^44]: Reasons, at paras. 238-242. [^45]: Reasons, at para. 239. [^46]: Reasons, at para. 241-242.