COURT FILE NO.: FC-18-2411
DATE: 2021/10/18
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Jean-Marc Saint-Phard, Applicant
AND
Ginelle Saint-Phard, Respondent
BEFORE: Mackinnon J.
COUNSEL: Ms. Linda Hanson, for the Applicant
Mr. Michael Leibovitch Randazzo, for the Respondent
Ms. Pamela Barron, for the OCL
HEARD: October 5, 2021
ENDORSEMENT
[1] The father seeks an order for sole decision making authority in the area of vaccinating the parties’ son Elyon against COVID-19. Elyon turns 14 next month. The parents currently share joint decision making.
[2] The father relies on governmental and public health recommendations and the recommendation of the child’s physician. Until very recently he also relied on the child’s expressed consent to the vaccination. The mother opposes the motion. She relies on the opinion of another medical doctor and on her own information of individual cases where the vaccine has had negative consequences. She also relies on the child’s current stated wish not to be vaccinated.
[3] For reasons that follow I have decided that it is in the child’s best interests to be vaccinated against COVID-19. I order that the father shall have sole decision making authority in this area. I find that the current views expressed by the child are not independent, rather are the result of influence by his mother and the doctor she retained to oppose the motion. The mother will be ordered, in terms more fully set out below, not to provide the child with any information directly or indirectly about COVID-19 vaccines contrary to what is provided by the Canadian, Ontario and Ottawa public health authorities.
The test is the child’s best interests
[4] The decision to be made is governed by the best interests of the child: A.C. v. L.L., 2021 ONSC 6530. It is required to be based on findings of fact made from admissible evidence before the court: O.M.S. v. E.J.S., 2021 CarswellSask 547 (Q.B.); B.C.J.B. v. E.-R.R.R., 2021 CarswellOnt 13242 (S.C.J.).
Judicial notice may be taken
[5] Facts may be found by taking judicial notice: B.C.J.B. v. E.-R.R.R., A.P. v. L.K. 2021 ONSC 150, and A.C. v. L.L. Each of these cases include findings related to the safety and efficacy of publicly funded vaccines on the basis of judicial notice. For example, in A.C. v. L.L. at paragraphs 21, 23 and 25 the court made the following findings by taking judicial notice under the public documents’ exception to the hearsay rule :
• The COVID-19 vaccination has been approved for children aged 12-17.
• All levels of government have been actively promoting vaccination against COVID-19 and expending significant resources to make it available to the public.
• The safety and efficacy of the COVID-19 vaccine has been endorsed by governments and public health agencies.
• The Ontario Ministry of Health website states that Pfizer-BioNTech vaccine is now licensed by Health Canada for adolescents aged 12 years and older, has been proven to be safe in clinical trials and provided excellent efficacy in adolescents, and that NACI continues to strongly recommend a complete series with an MNRA vaccine for all eligible individuals in Canada, including those 12 years of age and older, as the known and potential benefits outweigh the known and potential risks.
[6] Elyon’s father relied on statements made by Dr. Tam, Chief Officer of Health for Canada on the Canadian Government website recommending COVID-19 vaccinations for those between the ages of 12 and 17, stating that thorough testing has determined the vaccines to be safe and effective at preventing severe illness, hospitalization, and death from COVID-19. Dr. Kieran Moore is the Chief Medical Officer for Ontario. The father tendered his recommendation to vaccinate all youth ages 12 to 17 against COVID-19 as set out in a publication by the Ontario COVID-19 Science Advisory Table. Elyon’s school is administered under the Ottawa Catholic School Board. That Board released a notice advising that all students over age 12 are eligible to be vaccinated for COVID-19 and stating that the vaccine is key in protecting schools from the virus.
[7] Relying on these public documents and the authority of the court in A.C. v. L.L., I find that the applicable government authorities have concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to be vaccinated.
Medical letters
[8] Dr. Tchen has been Elyon’s primary care physician since 2020. In her letter dated September 21, 2021 she recommends that he be vaccinated with two doses of Pfizer vaccine, stating that it would prevent serious illness with COVID-19 and enable him to have a better opportunity to attend school uninterrupted this year. She noted there were no contraindications for Elyon, who has a history of asthma and takes medication for it in receiving the vaccine.
[9] The respondent provided a note and letter from Dr. O’Connor dated September 15, 2021. She stated that Elyon should not be given the COVID-19 vaccine on account of having asthma. She also wrote that the vaccine is experimental, testing will continue to 2022/23 thus “we have no evidence yet of any benefits to children”. Dr. O’Connor cites many adverse effects of the vaccine including a “huge incidence of myocarditis in young men”. She followed with another letter to say she saw Elyon on September 18, discussed with him the present COVID situation, the multiple adverse effects of the vaccine and that Elyon does not want it.
[10] In her affidavit, the mother refers to information she has received from people in the community and from Dr. O’Connor as to adverse outcomes from COVID-19 vaccines. In the format presented this information is not admissible evidence to prove the truth of its contents, namely the alleged adverse outcomes from the vaccine.
[11] I accept the opinion of Dr. Tchen in preference to that of Dr. O’Connor. Neither physician had actually seen Elyon, until Dr. O’Connor saw him on September 18. By then she had already formulated her opinion that he should not be vaccinated. Dr. Tchen did have the advantage of access to his medical records, including with respect to asthma. Dr. O’Connor does not refer to medical or scientific support for her conclusion that there is no evidence of any benefits to children from the vaccine, other than she has heard of ill effects in her practice. This statement is too general to be given weight.
[12] Similar to I.S. v. J.W., 2021 ONSC 1194, Dr. O’Connor’s objections raised against the vaccine were directly countered by the judicial notice taken that the vaccine is safe and effective and provides beneficial protection against the virus to those in this age group.
Child’s wishes and consent
[13] Elyon’s initial instructions to the lawyer provided for him by the OCL was that he wanted the vaccine. The day before the hearing he told her he did not want to be vaccinated, explaining that he was only 13 and did not want to die. He added that he would decide in 2023 when the “full list” is available but could not explain to his lawyer what that meant. Elyon also told his lawyer that the Government of Canada was not recommending the vaccine.
[14] Elyon had also told his father that he did want to be vaccinated. This changed after Dr. O’Connor talked to him. He told his father he would rather wait until 2023 when the vaccine had been tested and that his mother told him one of his former teachers was paralyzed due to the vaccine.
[15] Elyon made these statements to his father immediately on getting into his car on September 21 and on September 28 when he came into his father’s bedroom at almost midnight.
[16] He has also made two videos, one for each parent in which he takes that parents position on the issue.
[17] I find that Elyon changed his mind due to influence from Dr. O’Connor and his mother. The explanations he gave his lawyer and his father are based on wrong information and inadmissible anecdote. His current stated view to not have the vaccine is not based on an understanding of accurate medical information as to the benefits and risks of the vaccine. As such it is not a properly informed decision. This is an important finding because if the health care provider administering the vaccine is satisfied that a youth of Elyon’s age is capable of understanding information about the vaccine, why it is recommended and what will happen if they accept or refuse the vaccine, they may administer the vaccine without parental consent. The court in A.C. v L.L. noted at para [37] that the Ontario Ministry of Health’s COVID-19 Vaccine Youth (Age 12-17) Consent Form does not require a parent or legal guardian’s signature or consent (although this option is provided) and its website states:
COVID-19 vaccines are only provided if informed consent is received from the person to be vaccinated, including those aged 12 to 17, and as long as you have the capacity to make this decision. …
[18] The mother relied on Chmiliar v. Chmiliar, 2001 ABQB 525 to support her submission that Elyon’s views against being vaccinated should result in the dismissal of the father’s motion. In my view Chmiliar is distinguishable. That court stated:
[50] I must determine whether the daughter is capable of consenting. That is determined by an analysis of whether she appreciates the nature and purpose of the vaccinations and the consequences of refusing the vaccinations. Indicia of a minor’s ability to consent may include the age of the minor, the maturity of the minor, the nature and extent of the minor’s dependence on the parent(s) and the complexity of the treatment. The nature and extent of the minor’s dependence goes to the ability of the minor to make an independent decision without coercion and influence of a parent or a guardian.
[19] At para 54 the court found that the child understood the issues involved, understood what the vaccinations were intended to do, and understood that without them her health might be at risk. She understood that the rubella vaccine was to reduce her risk of contracting rubella when she was pregnant as an adult but stated she would prefer to wait to take that when she was older. Based on what Elyon appears to have been told by Dr. O’Connor in particular, and also by his mother , as he relayed to his lawyer and father, I concluded that Elyon did not have the requisite medical information on which to make an informed decision. It is correct that in Chmiliar the court also found the child was absolutely terrified of an allergic reaction to vaccines because of immense pressure from her mother which negated the child’s capacity to make a rational decision. However, the court went on to determine whether it was in the child’s best interests to order the vaccinations despite the child’s views and concluded that it was not, stating as follows:
[65] The vaccinations involved are not required for life or death at this time. Therefore, given that the daughter is so fearful of the consequences of the vaccine, I will not order the vaccinations because on balance, her fear outweighs the benefits at this time. She will be sixteen in three years and has said that she will undertake the rubella vaccine. I am hopeful that she will do so to protect her children. Further, as she matures, I am hopeful that she will come to her own conclusions about her healthcare in a balanced way, not tainted by irrational fear.
[20] Whereas the child in Chmiliar had accurate medical information about the proposed vaccinations, Elyon has been misinformed by the physician his mother took him to. In Chmiliar the proposed vaccinations were described as “regular”, and one could very safely be delayed for a number of years. COVID-19 vaccines arise in the context of an exceptional, time sensitive public health emergency generated by a virus which does have life and death consequences. And unlike the judge in Chmiliar I have concluded that it is in Elyon’s best interests to be vaccinated against COVID-19.
[21] The father should arrange for Elyon to be properly informed of the medical and scientific facts of the virus and the vaccine personally by Dr. Tchen prior to being taken for a vaccination.
The order
[22] I order that Elyon is entitled to receive the COVID-19 vaccine. The father shall have sole parental decision making authority in this regard. The mother shall not tell, or suggest to Elyon directly or indirectly, that the COVID-19 vaccines are untested, unsafe, ineffective, or that he is particularly at risk from them. Nor may she permit any other person to have any such discussion, or make any such suggestion to the child, directly or indirectly. My order includes that she is prohibited from showing Elyon social media sites, websites, other online information, literature, or any other material that calls into question the safety or efficacy of COVID-19 vaccines or permitting any other person to do so. The respondent shall not involve any medical doctor other than Dr. Tchen in this aspect of Elyon’s care.[^1]
Costs
[23] As agreed between counsel costs of $2,000 are awarded to the applicant as the successful party, to be paid by the respondent within 30 days.
Mackinnon J.
Date: October 18, 2021
COURT FILE NO.: FC-18-2411
DATE: 2021/10/18
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Jean-Marc Saint-Phard, Applicant
AND
Ginelle Saint-Phard, Respondent
BEFORE: Mackinnon J.
COUNSEL: Ms. Linda Hanson, for the Applicant
Mr. Michael Leibovitch Randazzo, for the Respondent
Ms. Pamela Barron for the OCL
ENDORSEMENT
Mackinnon J.
Released: October 18, 2021
[^1]: See A.P. v. L.K, 2021 ONSC 150 at paras 281 and 283, for the authority and wording for this order.