COURT FILE NO.: FC-17-44-1
DATE: 2022/03/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: A.M., Applicant
AND
C.D., Respondent
BEFORE: The Honourable Justice Charles T. Hackland
COUNSEL: Vanessa Baker-Murray, for the Applicant
Andre Lozano, for the Respondent
HEARD: February 25, 2022 (videoconference from Ottawa)
ENDORSEMENT (Motion by mother for an order Permitting her to have her child vaccinated against Covid-19)
Overview
[1] This motion comes before me as an urgent motion, with leave granted by an Associate Justice. The applicant mother seeks an order permitting her to have the child, “L”, vaccinated against COVID-19 and also to be permitted to arrange for any further booster shots approved by Health Canada for children of L’s age.
[2] The motion arises in the context of a Motion to Change brought by the mother to give her sole decision-making power over the child’s health. The father is seeking similar relief, in his favour. The issue for this hearing is whether on an interim basis pending final determination, the child should be vaccinated despite the father’s final decision making authority granted by a final order of this court. Section 29 of the Children’s Law Reform Act (CLRA) requires that before a court varies a parenting order there must have been a material change in circumstances that is likely to affect the best interests of the child. The underlying factual issue in the proceeding is based primarily, but not solely, on whether there is a need for the child to receive the Covid-19 vaccine.
The Child
[3] The child, L, is seven years of age. She is a healthy well-adjusted child who resides principally with her mother, with the father’s parenting time consisting of a midweek overnight and alternate weekends. There is every appearance that the parents are dedicated to the child’s best interests. The parents are not married, nor have they ever cohabited. There was a “one night stand”, as the father describes it.
[4] There is no evidence before the court as to whether L has an opinion on whether she wishes to be vaccinated. Section 24(3) of the CLRA requires that in making a parenting order the court shall only take into account the best interests of the child, including “the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained”. As L is only seven, I think the parents, who have the best understanding of her level of maturity, have acted reasonably in not engaging with her on the issue of vaccinations.
[5] There is currently in place a final order of Justice Mackinnon, dated February 22, 2019, obtained on consent, which provides, in relevant part as follows:
Decision-making
- … (the parents) shall have joint custody of the child, … If, after meaningful discussions, the parents are unable to agree on a decision related to (L’s) health, education, or religion, A.M. (mother) shall have final decision-making responsibility relating to (L’s) education and religion, and C.D. (father) shall have final decision-making responsibility relating to (L’s) health.
[6] It can be seen that the father has the final decision-making authority on L’s health, which encompasses the issue before the court. Whether the court concludes there has been a material change in circumstances justifying final decision-making responsibility for L’s health being changed will be addressed by the judge ultimately hearing the Motion to Change.
Mother’s position
[7] The mother swore an affidavit on January 28, 2022, in which she deposes that she no longer believes the father to be capable of making decisions with respect to L’s health which are in her best interests. She deposes that since the beginning of the COVID-19 pandemic the father has told her on numerous occasions that he does not believe in following public health recommendations, including getting vaccinated or wearing masks. He has sent to the mother articles suggesting that information from the government regarding the pandemic is not to be trusted. The mother states:
(L) is 7 years old, and is eligible to receive the COVID-19 vaccine. I believe that it is urgent to get her vaccinated, given the severity of the pandemic and the fact that the Omicron variant is highly transmissible. The Respondent disagrees and has expressed to me on multiple occasions his disdain toward the COVID-19 vaccine. He has vehemently expressed that he will refuse to let (L) get vaccinated, and threatened via text message that (L) would never see him again if I vaccinated her.
[8] The mother has attached several text messages from the father which appear to support her characterization of his beliefs. The mother swore a further affidavit on February 18, 2022, (“the second affidavit”), which attaches text messages in which the father expresses further objections to masking his daughter, such as “I left because it’s painful to see her masked and getting into what I see and know like watching something suffocate her”, and at a later point he remarks “no temperature check at forehead! It prevents your pineal gland from opening… I do not consent to anyone pointing a temperature gun at (L’s) forehead”.
[9] The main point of the mother’s second affidavit is to disclose that both she and L tested positive for COVID-19 on or about January 30, 2022. L’s symptoms improved rapidly and she returned to school by February 8, 2022, after the quarantine period had passed. The mother went on to observe that she was “thankful L’s symptoms were not worse and that she had recovered quickly, but she would like to take whatever steps are possible to prevent L from getting sick again in the future or spreading the virus to others” and concludes by observing “having Covid 19 was not a pleasant experience for either of us”. The mother also reports an incident in February 2021 in which she was contacted by the Children’s Aid Society to advise that the father had gotten into a verbal altercation with the school principal over the fact that the child was asked to wear a mask when the father was dropping her off.
[10] The mother’s second affidavit is remarkable for what it does not say. There is no reference to the father being advised about L testing positive. It can be seen from the father’s affidavit that he was completely unaware of this. Remarkably, there is no explanation in the mother’s affidavit materials as to why she would conceal this information from the father. However, her factum has this to say:
[6] The Applicant tested positive for COVID-19 on January 23, 2022. L subsequently tested positive for COVID-19 on January 30, 2022. While the Respondent knew that L was sick, he did not know that she had COVID-19. The Applicant did not tell him at the time, as she feared his reaction, given the distrust he has expressed regarding COVID-19 in general.
[11] I would comment that the mother’s omission to convey this important health information concerning L to the father displayed poor judgement and was in breach of her obligations under the existing court order.
Father’s position
[12] If L’s testing positive for COVID-19, now that the father is aware of this, has shaped his views on the need to vaccinate his daughter, he has not filed any affidavit to comment on the matter. His two affidavits continue to make the point that he abides by COVID-19 safety guidelines and L has never tested positive, with the implication being she does not require a vaccination.
[13] The father deposes that it was agreed that he be the final decision maker concerning L’s health issues, because he has a scientific background. He advises he has a Bachelor’s degree from Laurentian University in health promotion and epidemiology; he has an education degree from the University of Ottawa and is currently enrolled in a Bachelor of Medical Science degree at an overseas institution. He was also a representative for a pharmaceutical company, presenting scientific study materials to physicians. His position is that he is opposed to COVID-19 vaccinations at this point in time and he told the mother in the summer of 2021 that he wished to wait to see further vaccine study data about the safety of these vaccines.
[14] The father makes a number of other points in his two affidavits, including:
he says “if the applicant can demonstrate, rather than simply disagree, that vaccinating L is in her best interest or that she will suffer harm if she remains unvaccinated against COVID-19 he “would be happy” to have her vaccinated.
he has considered medical information readily available to the public and has concluded there is no material benefit or urgency to having L receive the vaccine.
he refers to the Pfizer publication pertaining to the application of its vaccine to children between five and 11 years old, listing a series of potential side effects.
he speaks of certain ingredients in the vaccine having several potential complications. He has a copy of the Cleveland Clinic’s publication on an ingredient found in the vaccine.
he expresses views about mRNA technology. He says, “put simply, a person’s DNA performance may become dependent on outside information of mRNA vaccines in order to defend itself rather than naturally producing its own defence system. Introducing these potentially DNA altering vaccinations to a child can be life altering” there is a risk that these side effects are harmful, painful and long lasting”.
he offers this concluding statement, “presently, there is no scientific proof L will not contract the Omicron variant of COVID-19 if vaccinated and there is also no scientific guarantee she will not experience the vaccine’s side effects. Considering the risks of harm L may face if vaccinated against COVID-19, I have chosen to preserve and protect her physical integrity until further testing of the vaccine is done.”
[15] Absent from the father’s observations is any detailed consideration of Public Health guidelines which recommend the use of the Pfizer vaccine for children 5 to 11, or to the Public Health advice that this vaccine has been found to be safe and effective in reducing the spread of the virus and the relative seriousness of infections when they occur.
[16] On the other hand, I was impressed with the following balanced observation from the father’s second affidavit (para. 16) “I am at a crossroad and struggle in concluding that vaccinating L against Covid 19 is in some way less harmful or better than if she remained unvaccinated against Covid 19”. He notes that his daughter has “done extremely well without the Covid 19 vaccine and I believe preserving her medical status quo is in her best interest”.
Analysis
[17] I agree with certain observations made by the father as to the changing environment surrounding the pandemic and the strategies to manage it. There does indeed seem to be a consensus that the risk of serious harm from the Omicron variant of COVID-19 is not as serious as initially thought. Moreover, vaccine mandates are being withdrawn in many workplaces. Many government mandated health restrictions were withdrawn effective March 1st in this province and mask mandates are expected to be withdrawn shortly. It would appear that vaccinations will continue to be recommended, although not mandated. Hospitalization rates are falling rapidly. Most people recognize that all of these encouraging developments could be reversed in the event that another threatening variant appears. Lastly, and this is not mentioned in the father’s affidavit, there are media reports that the efficacy of the Pfizer vaccination in the 5 to 11 age group may be significantly lower than expected.
[18] In summary, I think the father’s views are reasonable that at this point in time (March 2022) we appear to be in a dynamic and rapidly changing and more positive environment so far as managing the public health threat posed by the coronavirus is concerned and a responsible parent is entitled to consider this when assessing their child’s need for the Pfizer vaccination.
[19] As noted previously, the mother wishes to protect her seven-year-old daughter’s health by following the vaccination recommendations made by public health authorities. The courts have supported the proposition that adherence to Public Health guidelines in the current pandemic are in the best interests of children. To many, this would be a matter of common sense. That of course does not obviate the need for a procedurally fair hearing in which the objecting parent has the opportunity to have their views considered by the court. In determining the best interests of the child, which is always the objective, considerations can go beyond the Public Health guidelines. They can include parenting issues and issues personal to the individual child and a consideration of family dynamics and for more mature children, a consideration of their own wishes about their health care.
Judicial Notice
[20] For the reasons that follow, I will take judicial notice of Health Canada advisories, as permitted in our established case law, in the context of the vaccination issue presented in this case. The father’s counsel has provided me with a recent decision that may call this approach into question, J.N. v. C.G., 2022 ONSC 1198. In J.N., Pazaratz J. denied the father’s motion to have his two children vaccinated and accepted the mother’s position opposing the vaccinations. The children, who resided with the mother, did not want to receive the vaccines and the court discussed the importance of considering the children’s feelings, even at a young age. The self-represented father focused his submissions on discrediting the mother. In contrast, the mother provided a thoughtful assessment of the children’s best interests and presented the court with reasonable information to support her concerns.
[21] On the subject of judicial notice, the court disapproved of the established jurisprudence that supports the taking of judicial notice of public health advisories concerning the need and the efficacy of COVID-19 vaccinations. The court asserted that judicial notice cannot be taken of a government official’s opinion that a medical treatment is safe and effective. It was also said that courts should be reluctant “to take judicial notice that the government is always right”.
[22] The court in JN took issue with the reasoning of Mackinnon J. in her decision in Saint-Phard v. Saint-Phard, 2021 ONSC 6910, dealing with judicial notice in the context of a parental dispute over the safety of vaccines. Justice Mackinnon stated:
[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.
[23] Justice Pazaratz went on to “whole heartedly adopt” the opinion expressed by Breithaupt Smith J. in R.S.P. v. H.L.C., 2021 ONSC 8362, that courts may not take judicial notice of the safety and efficacy of any medical treatment because this is a medical opinion. It is stated in R.S.P:
[56] Unfortunately, the recent case of Saint-Phard v. Saint-Phard does not assist in navigating medical treatment for minors because of its fatal flaw regarding judicial notice. In that case, the Court wrote: "Facts may be found by taking judicial notice. [citations omitted] Each of these cases include findings related to the safety and efficacy of publicly funded vaccines on the basis of judicial notice." This shows a misunderstanding of the purpose of taking judicial notice, which, according to the Supreme Court's definitive decision in R. v. Find, 2001 SCC 32 (at paragraph 48) is intended to avoid unnecessary litigation over facts that are:
...clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.
[58] Judicial notice cannot be taken of expert opinion evidence. Chief Justice McLachlin for the unanimous Court in R. v. Find underscored that: "Expert evidence is by definition neither notorious nor capable of immediate and accurate demonstration. This is why it must be proved through an expert whose qualifications are accepted by the court and who is available for cross-examination” (at paragraph 49).
[59] … a statement concerning the safety and efficacy of any medication in the prevention or treatment of any condition is, in and of itself, an opinion. Judicial notice cannot be taken of the opinion of any expert or government official that a medical treatment is "safe and effective."
[24] I respectfully disagree that Health Canada advisories on the efficacy of vaccines are a species of ‘expert opinion’ which can not or ought not to be the subject of judicial notice. With respect, I view this conclusion as being contrary to the established jurisprudence in this court and it advocates an approach to litigating issues of vaccine efficacy which is not workable and will not promote the best interests of children. I am content to adopt the thoughtful comments of Jarvis J. in a very recent vaccine case of D.Jr. v. T., 2022 ONSC 1441, at paras 21-24:
[21] The mother challenges this father’s reliance on Health Canada and other government guidance on vaccination and the degree to which this court should apply, if at all, judicial notice. In R.S.P. v. H.L.C., a case to which the court in J.N. referred, Breithaupt Smith J. noted the definitive decision of judicial notice by the Supreme Court of Canada in R. v. Find. In R. v. J.M. the Ontario Court of Appeal elaborated on Find in describing that facts of which a court could take judicial notice included: “(a) those that are so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons; and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy . . . The sources may include both large bodies of scientific literature and jurisprudence”.
[22] So what are the notorious or “accepted” facts which this court is prepared to accept and which cannot be the subject of dispute among reasonable persons? And represent our collective lived experience. They are:
(a) The Covid virus kills;
(b) The virus is transmissible;
(c) The virus can, and has, mutated;
(d) Variants of the virus are more transmissible than others;
(e) Asymptomatic carriers of the virus can infect other people;
(f) Symptoms of the virus may vary according to age, health and comorbidity
factors;
(g) The virus does not discriminate;
(h) There is no known immunity to contracting the virus;
(i) There is no verifiable evidence of natural immunity to contracting
the virus, or any mutation, a second or more times;
(j) Vaccines work;
(k) Vaccines are generally safe and have a low risk of harmful effects,
especially in children;
(l) Vaccines do not prevent infection, reinfection or transmission,
but they reduce the severity of symptoms and the risk of bad
outcomes.
[23] This is not “fake science”. It is not “fake medicine”. Whether there is a drug company conspiracy callously or negligently promoting unsafe medicine (the “lie”) in collusion with federal and provincial authorities this court leaves to another day and to those who think Elvis is alive. He isn’t. He left the building decades ago.
[24] In A.C. Charney J. suggested that as general presumption it is in the best interests of a child to be vaccinated. This court agrees. In J.N. Pazaratz J. asked rhetorically whether judicial notice should be taken of the fact that all children should get vaccinated. The answer in my view is that parents should rely on government guidance and should have their children vaccinated unless there is a compelling reason not to do so. That may amount to a legal presumption, placing the onus on the objecting parent…
[25] I further note that in another recent vaccine case, Warren v. Charlton, 2022 CarswellOnt 2359, Ramsay J. took judicial notice of certain basic facts concerning the safety of vaccines:
[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 outcome.
[26] When a government health advisory is judicially noticed, this does not mean that it is necessarily determinative of the issue before the court. Because a vaccine has been deemed safe and efficacious for administration to children in a particular age group, it does not necessarily mandate a finding that it would be in a particular child’s best interests to receive it. In many cases, as Jarvis J. points out in D.Jr., it may amount to a legal presumption, placing the onus on the objecting parent. But it does obviate the need for a parent who wishes to have their child vaccinated to prove that the vaccine is safe and efficacious. This type of evidence needs to be capable of being placed before the court in a convenient and affordable manner by a parent of ordinary means (often a self-represented parent) and by parents who are not sophisticated in science or medicine, or who are unable to afford to retain expert witnesses. The doctrine of judicial notice facilitates this need.
[27] If we exclude Health Canada advisories from the assessment of whether vaccines are safe, the court will be left in most cases with whatever random information the parties are able to download from the internet. The court often lacks the expertise or the resources to assess this information. In JN, the court was reassured that the mother’s downloads included qualified and reputable sources. Dr. Robert Malone was the primary example referred to. A Google search will, however, disclose that Dr. Malone was barred by Twitter for violating the platform’s coronavirus misinformation policy and includes a recent Washington Post article stating that Dr. Malone’s “claims and suggestions have been discredited and denounced by medical professionals as not only wrong, but also dangerous”. The point being that internet downloads are simply not reliable in many instances, particularly when contrasted with public health advisories.
Conclusion
[28] In the present case, I would give considerable weight to the mother’s belief that her daughter L’s best interests in terms of her health are protected by following Public Health guidelines that recommend the Pfizer vaccination for children in L’s age group. I will take judicial notice of the efficacy of this vaccine to mitigate the serious risks to some children who become infected by the coronavirus and to reduce the spread of the virus to children’s teachers and older relatives, among others.
[29] However, there are countervailing considerations in this case, including the factor that the objecting father is the ultimate decision maker on matters of L’s health under the existing court order. Further, on the record before me, the father’s interest in the well-being of his daughter appears to be sincere, non-dogmatic, and supported by reasonably held factual assertions set out in his affidavit material. Importantly, we are currently in a rapidly changing environment as the COVID-19 pandemic subsides and vaccine and masking mandates are being withdrawn. There appears to be particular scrutiny directed at the efficacy of the Pfizer vaccine for children in the 5 to 11 age group.
[30] I am not persuaded on this interim motion that there has been a material change in circumstances sufficient to justify a change to the father’s responsibilities for L’s health care decision making as provided in the present court order or that it is in the child’s best interests to be vaccinated in the face of her father’s objections. We are currently in a dynamic and rapidly changing situation in public health advisories concerning the COVID-19 situation, particularly concerning children. I think the Motion to Change should proceed to determine if there has been a material change of circumstances justifying a change in the health care decision making responsibilities in the child’s best interests. I am simply declining to make that determination on an interim basis. The vaccination issue can be examined in more depth and hopefully on a better record than was available to this court.
[31] The mother’s motion to have L receive the COVID-19 vaccination recommended by Health Canada at this time is dismissed, without prejudice to the further consideration of this matter in the present proceeding. Costs of the motion are reserved to the court hearing the Motion to Change.
Date: March 9, 2022
COURT FILE NO.: FC-17-44-1
DATE: 2022/03/09
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: A.M., Applicant
AND
C.D., Respondent
COUNSEL: Vanessa Baker-Murray, for the Applicant
Andre Lozano, for the Respondent
ENDORSEMENT (motion by mother for an order permitting her to have her child vaccinated against covid-19)
Justice Charles T. Hackland
Released: March 9, 2022