Court File and Parties

Warren v. Charlton, CITATION: 2022 ONSC 1088

COURT FILE NO.: 557/19 DATE: 2022-02-16

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Anthony Nathaniel Warren, Applicant AND: Lauraly Kimberly Charlton, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Ashley Gibson for the Applicant; Miranda J. Belansky for the Respondent

HEARD: February 16, 2022 at Welland by teleconference

Endorsement

[1] The parties married in 2005 and separated in 2019. The parties have three children – Gabriel, age 14, Shawn, who will turn 13 next May and Guinevere, who is a few days shy of her sixth birthday. The parties have executed partial minutes of settlement that dispose of all issues but one – health care, in particular as it relates to vaccination. The parties agree that this question should be settled by way of summary judgment under rule 16 of the Family Law Rules.

The scope of the partial minutes of settlement

[2] In the minutes, the Applicant has decision-making authority over Gabriel, who resides principally with him, and the Respondent has decision-making authority over the younger two children, who reside principally with her, subject to the following:

The parties acknowledge that the issue of healthcare, specifically vaccinations for the children, remains outstanding and shall be dealt with by way of Summary Judgment Motion.

[3] This could well be taken to mean either that health care in general is in issue or that vaccination is in issue. Given the factual matrix I interpret it to mean the latter. This was a high conflict separation that was resolved after intervention of the Children’s Lawyer. The essence of the partial minutes is to minimize the potential for conflict by separating the spheres of authority by child according to principal residence. In the alternative, I would have left decision-making authority for health care in general for Gabriel with the Applicant and for the younger children with the Respondent. Apart from the question of vaccination, I have no reason to think that the younger children have had any health issues that have not been properly handled.

Order to Respondent to refrain from influencing Shawn

[4] The Respondent agrees that Guinevere should be vaccinated against COVID-19 and the usual childhood diseases. She does not object to Shawn being vaccinated as long as Shawn consents.

[5] The Applicant is concerned that Shawn is unduly influenced by the Respondent who has views that the Applicant says are irresponsible. He wants me to order the Respondent not to talk to Shawn about vaccination to protect him from her bizarre views.

[6] I think that his concerns should be alleviated by the fact that the Respondent is willing to have Guinevere catch up on all her vaccinations. I infer from this that she recognizes that the connection between childhood vaccinations and autism has been disproven. I am not prepared in any event to act on the Applicant’s uncorroborated account of some utterances that the Respondent is said to have made over the years. I am not satisfied that she holds bizarre views.

[7] The Respondent also agrees that Shawn can talk to a doctor about vaccination and inform himself. I think that that is sufficient to deal with the Applicant’s concerns.

Vaccination against COVID-19

[8] Disagreements between parents about vaccinating children against COVID-19 have been considered by many courts of first instance.

[9] Within limits, I can take judicial notice of some facts related to the issue. I think that I can go as far as to say the following:

a. SARS-CoVi-2 has a low mortality rate, especially in children. b. The authorized vaccines are generally safe and have a low risk of harmful side effects, especially in children. c. The vaccines do not prevent infection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes.

[10] In the absence of evidence of any particular vulnerability, whether to the virus or to the vaccine, I would defer to the party who has decision-making authority. I do not think that whether to vaccinate a 12-year-old against COVID-19 is a question that justifies intervention by the court where decision-making authority has already been allocated.

[11] Depending on the child, the question may be determined without reference to parental authority, as it was here in the case of Gabriel. He arranged his own vaccination. The Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A provides:

4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

10 (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.

15 (1) A person may be incapable with respect to some treatments and capable with respect to others.

[12] Capacity to consent is not determined by a set age. It depends on the patient’s abilities. In the case before me it is obvious and all but conceded that Shawn is capable of consenting to vaccination.

[13] If I give the Applicant decision-making authority over Shawn’s vaccination, Shawn will still have the right to withhold his consent. Whether his mother’s influence is behind it or not is ultimately irrelevant.

[14] I think that the best way to deal with the question in the particular circumstances of this case is to make the following order under the Divorce Act:

a. The Applicant shall have decision-making authority over Gabriel for health care. b. The Respondent shall have decision-making authority over Shawn and Guinevere for health care, subject to the following provisions. c. The Respondent shall have Guinevere vaccinated pursuant to Canada’s Provincial and Territorial Routine (and Catch-Up) Vaccination Programs for Infants and Children and for COVID-19 in consultation with Guinevere’s physician or nurse practitioner. d. The Respondent shall provide the Applicant with a copy of Guinevere’s vaccination schedule within 30 days. e. Either party may schedule and accompany Shawn for an appointment with a qualified medical professional for the purposes of obtaining information and documentation with respect to the pros and cons of vaccinations. f. Either party may have Shawn vaccinated for COVID-19 if Shawn consents.

[15] I think that this motion was made necessary by an honest difference of opinion. The parties handled it fairly and efficiently by agreeing to summary judgment. They are now ready to move on. I wish them well and make no order as to costs.

J.A. Ramsay J. Date: 2022-02-16