COURT FILE NO.: FC-21-1568

DATE: 2022/06/07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Farah Rashid

Applicant

– and –

Samvel Avanesov

Respondent

Dilshad Mohamed, for the Applicant

David Howard, for the Respondent

HEARD: April 26, 2022

REASONS FOR DECISION ON MOTION

SOMJI J INTRODUCTON

[1] The mother brings a motion for an interim order allowing her to obtain medical vaccinations recommended by Ottawa Public Health Guidelines (“OPH Guidelines”) for the parties’ seven-year-old child L.A. (“child”). In particular, the mother seeks to have the child vaccinated for measles, mumps, and rubella (“MMR”) and for COVID-19 in accordance with OPH Guidelines and upon the recommendation of the child’s family physician. In addition, the mother seeks an order dispensing with the need to obtain the father’s consent for any future vaccinations and for the father to refrain from discussing vaccinations with the child.

[2] The father opposes the motion. He does not support the administration of medically required vaccines to children. He is skeptical of vaccines because family members have had

negative experiences in the past. He also has safety concerns because he suffers from rheumatoid arthritis, an autoimmune disease. The father relies on materials from the United States Centers for Disease Control and Prevention (“CDC”) to support his position that individuals who have a parent or sibling with an autoimmune disorder should not receive the MMR vaccine. With respect to the COVID-19 vaccine, he argues that there is worldwide research that the current vaccine for children ages five to 11 has side effects and the risks of those side effects outweigh any benefit of the vaccine.

THE ISSUE TO BE DECIDED

[3] Pursuant to ss. 16.1 and 16.3 of the Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp), this court has jurisdiction to make a parenting order granting a parent with decision-making responsibility on any issue, including health, for any child of the marriage. The order may be made on an interim basis or for a definite or indefinite period: ss.16.1(2) and 16.1(5). The court may impose any terms and conditions that it considers appropriate: s 16.1(5).

[4] In deciding any parenting order, whether on an interim or final basis, the court shall take into consideration only the best interests of the child: s. 16.

[5] In this case, the mother seeks an order allowing her to obtain all medical vaccinations recommended by OPH Guidelines, including COVID-19 vaccinations. In addition, the mother seeks an order dispensing with the need to obtain the father’s consent for future vaccinations.

[6] The court does not have the authority to mandate a child to be vaccinated. While the safety and efficacy of vaccines may inform the court’s determination on whether any parent should be granted decision-making responsibility on matters of health, the ultimate decision to grant or withhold vaccination for a child is to be determined by the parent in consultation with the medical physicians administering the vaccine.

[7] In short, the issue to be decided is not whether the child should or should not be vaccinated but whether it is in the best interests of the child that the mother have decision-making responsibility on an interim basis on matters of health, including vaccination of the child.

[8] The father argues that the parties’ family law litigation is ongoing with respect to issues of parenting time and decision-making responsibility, and this court should refrain from making an interim order on decision-making responsibility until the matter can be effectively litigated at trial.

The reason for this is obvious. If the mother is granted interim decision-making responsibility for the child on matters of health and certain vaccinations are administered, the issue is effectively moot at trial. The vaccinations cannot be undone.

[9] This is a motion for interim relief based on affidavit evidence. I am acutely aware that the evidence of the parties is not tested as is the case at trial, and that the court does not have the benefit of hearing expert evidence on, for example, the safety and efficacy of vaccines for this child’s age group. I am also mindful that vaccines cannot be undone. However, I do not find these issues preclude me from making a determination in this case. Rather, these issues must be taken into consideration with all the other evidence in determining whether a parenting order granting the mother interim decision-making responsibility on matters of health, which includes vaccination, is in the best interests of the child.

EVIDENCE

[10] In addition to the parties’ factums, I have relied on the following evidence:

1. Mother’s affidavit dated February 9, 2022;

2. Affidavit of the child’s physician, Dr. Regimbal, dated March 29, 2022;

3. Letter from Dr. Regimbal (undated), Exhibit C of the Mother’s affidavit; and

4. Father’s affidavit dated April 20, 2022, and supporting exhibits.

BACKGROUND FACTS

[11] The parties entered a relationship in December 2011, married on August 4, 2012, and separated in December 2016. L.A. was born in April 2015. He is the parties’ only child, but the father also has a child from another relationship.

[12] The father has always opposed vaccinations. He states in his affidavit that he expressed his strongly held views on natural immunity and vaccination to the mother prior to conceiving the child. He made the decision to have the child with the mother on their mutual understanding that the child would never be vaccinated. He states that his immediate friends and family have been well aware of his views on vaccination.

[13] Following separation, the parties attended two mediation sessions in April 2018 and February 2020 to resolve various parenting issues. On February 14, 2020, the parties entered into

Minutes of Settlement (“Minutes”), which partly resolved the issue of vaccinations. Pursuant to the Minutes, the father agreed that the child would receive vaccinations against all illnesses present in Ottawa and would provide consent for same, including consent to emergency vaccinations recommended by health care professionals. The father’s agreement was premised on completion of the following: one, the mother would research the presence of illnesses in Ottawa; two, the parents would review a CDC document provided by the father with the child’s paediatrician/health care provider; three, the parents would inform the child’s health care provider of the father’s genetic history of immune disorder; and four, would receive the health care provider’s advice with whether to proceed with the MMR vaccine. If vaccination is recommended, the father is entitled to sign a document indicating his opposition to the MMR v[1a4c]cineT. he Minutes do not specifically address the COVID-19 vaccine. The Minutes do state, however, that the father will not withhold consent should the child require an emergency vaccination recommended by a health care provider who has been advised of the father’s genetic autoimmune disorder.

[15] Upon consultation with the child’s physician as per the Minutes and upon receiving the physician’s recommendation to proceed with a vaccine, the mother booked an appointment for the child to receive the MMR vaccine. However, on June 23, 2021, the father revoked his consent for both the MMR and COVID-19 vaccines.

[16] The mother informed the father that the vaccinations had been recommended by OPH and upon consultation and recommendation by the child’s family physician, Dr. Regimbal. The father maintained his refusal to consent unless the physician would provide a written undertaking to assume all liability for any future medical repercussions from the child receiving the vaccinations.

[17] Starting in August 2021, the father sent six emails and YouTube links to articles and videos about the effects of vaccinations on children. The father states that his intention was not to harass the mom, but to provide her information about his concerns.

[18] The father states that he is adamantly opposed to L.A. being vaccinated. He states he signed the Minutes very reluctantly because he understood the jurisprudence in Canada was generally “pro-vaccination” and he believed he had little recourse in the courts at the time of signing.

[19] The child’s physician has not identified any specific medical issues with respect to the child that would prevent him from being eligible for immunization. To date, the child has not received any vaccines for any illnesses.

ANALYSIS

Issue: Is it in the best interests of the child for the mother to have decision-making responsibility for matters of health on an interim basis, including vaccinations?

[20] The best interests of the child factors are set out in s. 16(3) of the Divorce Act as follows:

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[21] As stated in Phillips v Phillips, the list of best interest factors is not a checklist to be tabulated with the highest score winning. Rather, the court must take a holistic look at the child’s needs and the people around them: 2021 ONSC 2480 at para 47.

[22] When determining the child’s best interests, a person’s past conduct is not to be considered unless the conduct is relevant to the exercise of their decision-making responsibility or parenting time: Divorce Act, s. 16(5).

[23] On motions for interim parenting orders, generally the status quo will be maintained absent compelling reasons requiring change to meet the child’s best interests: Grant v Turgeon (2000), 5

R.F.L. (5th) 326 at para 15. The court’s responsibility is to focus on the short-term needs of the child and minimize possible disruptions. This is due to the limited and contradictory evidence untested by cross-examination. The court must attempt to provide the child with certainty and stability in an environment that is safe and secure for them: M.P.D.S. v J.M.S., 2022 ONSC 1212.

[24] Based on the evidence provided and upon consideration of the above-noted factors, I find that it is in the best interests of the child that the mother have interim decision-making responsibility for the child on matters of health, including vaccinations. While I have considered all the best interest factors in arriving at my decision, I address below the most pertinent factors that have informed my decision.

a. s. 16(3)(d) - the history of care of the child

[25] While it appears that both parents have been involved in the child’s care, the mother has been the parent primarily responsible for matters of health. She has taken the child to all the medical appointments and taken steps to consult with the child’s physician on whether the child should be immunized for prevalent illnesses in the community.

[26] The father is against immunization and has expressed concerns about the safety of vaccines because of his own autoimmune disorder. However, he reported during the motion hearing that he has not attended any of the child’s medical appointments with Dr. Regimbal where these matters

were discussed, nor has he had discussions about his concerns with the child’s physician. When asked why he would not attend the child’s medical appointments and speak directly with the doctor, he replied that he did not know he could attend the medical visits.

[27] I note, however, that the Minutes are clear that the parents would review the CDC document provided by the father with the child’s paediatrician/health care provider and would make the health care provider aware of the father’s genetic history of immune disorder. It is difficult to understand in light of that clause how the father believed he was not entitled to participate in discussions with the child’s physician.

[28] The mother took specific steps as per the parties’ agreement to ascertain with Dr. Regimbal whether the MMR vaccine was safe for L.A. given the father’s rheumatoid arthritis. Dr. Regimbal prepared a letter indicating that she recommends that the child be immunized in accordance with the OPH Guidelines, starting with MMR, as it can be a serious disease and is present in the area. Dr. Regimbal also indicated that she is aware of a family history of an autoimmune disease, juvenile rheumatoid arthritis, but that this would not be a contraindication to this vaccine. Dr. Regimbal noted that the child would be monitored for any adverse reactions.

[29] The father states that he is concerned Dr. Regimbal has made reference to juvenile rheumatoid arthritis, and this is distinct from adult arthritis. Therefore, he has concerns about the adequacy of the physician’s recommendations. He states that it seems “grossly irresponsible” that Dr. Regimbal would support MMR vaccination in light of his autoimmune disorder. However, the father has not taken any steps to clarify the distinction or confirm the recommendation with the child’s physician. He has also failed to obtain a second opinion from any other medical physician or paediatrician about his concerns.

[30] The father’s approach is similar with the COVID-19 vaccine. His only response to the issue has been to gather research from various internet sources and forward them to the mother. He has not discussed the safety and efficacy of the COVID-19 vaccine with the child’s physician, nor does it appear that he has consulted with any other paediatrician about the issue. As discussed below, the Ottawa Public Health website makes references to a tremendous number of resources available to parents who have questions and concerns about the COVID-19 vaccine for children between the ages of 5 to 11. For example, there is a link to a free telephone consultation service with physicians at SickKids hospital in Toronto for those concerned about the COVID-19 vaccine.

[31] Based on the evidence to date, the mother has been predominantly involved in managing the child’s health care needs. I find the father has not been fully engaged in the child’s health care as compared to the mother. I find this factor warrants an order in favour of the mother.

b. s. 16(3)(g) - any plans for the child’s care

[32] It is the mother’s intention, if decision-making responsibility is granted, to follow through with the MMR and COVID-19 vaccinations in accordance with the OPH Guidelines and in accordance with the medical advice of the child’s physician. The mother also seeks to obtain any additional vaccinations recommended by OPH and approved by the child’s physician. As counsel for the mother points out, it would be financially costly to the mother if she had to bring a motion before the court each time the child requires a new vaccine.

[33] When considering a child’s best interests, the court must give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being: Divorce Act, s.16(2).

[34] It is evident that where a parent’s plan of care involves decisions on matters of health that could potentially endanger the child, the court will not be inclined to grant decision-making responsibility to that parent. It is in this context that the court may be required to examine more closely the evidence around a proposed medical procedure such as, in this case, the safety of the MMR and COVID-19 vaccines for children.

i. MMR Vaccine

[35] With respect to the MMR vaccine, the mother has filed documents from the Ontario Ministry of Health (Measles, Mumps and Rubella (MMR) Vaccine - Immunization - Publications

• Public Information - MOHLTC (gov.on.ca) and Government of Ontario (Vaccines and immunization | ontario.ca) indicating the importance of the MMR vaccine for children. The Ontario Ministry of Health website describes each of the three diseases captured by the MMR vaccine, the symptoms of the illnesses, the recovery periods, and the health risks from the disease. The site also emphasizes that the MMR vaccine is safe and identifies what groups of people should not be given the vaccine. The Government of Ontario website links to the Government of Canada website (Vaccine-Preventable Diseases - Canada.ca) which contains similar information about the MMR vaccine. Some points to highlight from these websites are as follows:

➢ The MMR vaccine is a three in one vaccine that protects against measles, mumps, and rubella and should be given to children soon after their first birthday. A second does is given in combination with the chicken pox vaccine at the ages of 4 to 6.

➢ The MMR vaccine is required by law for all children attending school in Ontario.

➢ Measles is a highly contagious viral infection that is spread though the air from coughing and sneezing. Most people fully recover from measles within 2 to 3 weeks, but it can cause complications in up to 25 percent of people, such as pneumonia, ear infections, diarrhea, hearing loss, encephalitis (brain swelling), seizures, or, rarely, death. Measles can be especially dangerous for infants, those with weakened immune systems, and pregnant women.

➢ Mumps is a contagious disease that is spread by droplets of saliva or mucus from the mouth, nose, or throat of an infected person when the person coughs or sneezes. People usually recover from mumps after a week or two, but mumps can occasionally cause serious complications including swelling of the testicles in males who have reached puberty. Other rare complications include encephalitis, meningitis (swelling of the tissue covering the brain and spinal cord), oophoritis (swelling of the ovaries in females), and deafness.

➢ Rubella is a contagious disease caused by a virus and is spread through sneezing and coughing. Complications are not common, but in rare cases rubella can cause serious problems including encephalitis.

➢ The MMR vaccine is safe and effective. Most individuals will have no reaction. The vaccine can cause a malaise and fever, possibly with a rash, in approximately 5 percent of children within 6 to 23 days after the immunization.

➢ Allergic reactions to the MMR vaccine are very rare. There is no evidence that the MMR vaccine causes autism.

➢ There are some groups who should generally not be given the vaccine, such as, but not limited to:

• Individuals who are pregnant

• Individuals who have a history of anaphylaxis after previous administration of the product (or components of the vaccine)

• Those who have medical conditions that may be contraindicated (for example, individuals with a history of convulsions, certain immunosuppressant medications, or congenital or hereditary immunodeficiency)

➢ People who have problems with their immune system should speak with their health care provider to determine when the MMR vaccine should be given.

➢ The vaccine is safe for household members of people with immune system problems.

[36] The father relies on a page excerpt from the CDC website addressing measles, mumps, and rubella. Like the Ontario Ministry of Health, the CDC also recommends that people get the MMR vaccine and that children get two doses of the MMR vaccine, with the second shot given at ages 4 to 6. However, in the section entitled “Who should not get the MMR vaccine?” the website states as follows:

Some people should not get MMR vaccine or should wait. Tell your vaccine provider if the person getting the vaccine:

….has a parent, brother, or sister with a history of immune system problems.

[37] It appears that the Canadian and American approach to the MMR vaccine may be slightly different. The Ontario Ministry of Health does not state that people with immune problems or with family members with immune problems are contraindicated whereas the CDC seems to suggest that persons who have a parent or sibling with a history of immune system problems should talk to the vaccine provider before obtaining the vaccine. The father has not provided any other evidence that elaborates on the CDC’s position, nor has he discussed the CDC’s position with the child’s physician.

[38] As indicated at the outset, it is difficult for the court to make a finding on the safety and efficacy of a vaccine in the absence of expert evidence. On the other hand, I am not persuaded that an interim decision-making order on matters of health should be delayed in all cases pending a full trial on the merits. Such an approach is impractical and costly, particularly if a parent is required to call expert evidence on the safety of each and every vaccine that might be considered for a child.

[39] It is in this respect that the doctrine of judicial notice serves to assist both litigants and the court. In many vaccine cases, judges have admitted documents from government and public

authorities under the public documents exception to the hearsay rule. For example, judges in Ontario have relied of government health advisories to take judicial notice of adjudicative and legislative facts concerning COVID-19 vaccinations for children (ages 5 to 11) and youth (ages 12 to 17) to establish a presumption that an eligible child should be vaccinated unless compelling evidence is presented to rebut that presumption: Saint-Phard v Saint-Phard, 2021 ONSC 6910 at para 5; A.C. v L.L., 2021 ONSC 6530 at paras 28-30; B.C.J.B. v E.-R.R.R., 2020 ONCJ 438 at

paras 144, 146; 186 to 188; aff’d B.C.J.B. v E.-R.R.R., 2021 ONSC 6294; D. Jr. v T., 2022 ONSC

1441 at para 24; A.B.S. v S.S., 2022 ONSC 1368 at para 4; M.P.D.S. v J.M.S. at para 52; McDonald v Oates, 2022 ONSC 394 at para 18.

[40] A similar approach with respect to judicial notice has been taken in other parts of the country: O.M.S. v K.J.S., 2021 SKQB 243 at paras 112-114; TRB v KWPB, 2021 ABQB 997 at paras 11-12; P.R. v S.R., 2022 PESC 7 at para 54; T.L.M. v J.T.M., 2022 ABQB 109.

[41] It is important to note that taking judicial notice of facts set out in a governmental health advisory that states that a particular vaccine is safe and effective for children of a particular age group does not necessarily mandate a finding that it would be in a particular child’s best interest to receive the vaccine. Judicial notice of government health advisories can serve to create a legal presumption that it is in the best interests of children to be vaccinated and thereby placing the onus on the objecting parent to displace the presumption with compelling evidence: D. Jr. at para 24;

A.C. at paras 28 to 30.

[42] To determine if a vaccine is contraindicated for a child, additional evidence is required, but the evidentiary burden to refute it will usually not be onerous: B.C.J.B. (ONCJ) at paras 129, 190.

[43] In this case, the mother has presented evidence from the Government of Ontario and Ontario Ministry of Health that the MMR vaccine is safe and effective for children and recommends they obtain the vaccine. I find I can take judicial notice that it is in the best interests of children to be vaccinated for MMR unless contraindicated. This is consistent with the finding made by Justice Harper on the safety and importance of the MMR vaccine in preventing disease outbreaks in C.M.G. v D.W.S., following a trial where expert evidence was called on the issue: 2015 ONSC 2201. Justice Harper concludes at paras 105 and 106:

I find the there is sufficient evidence on the balance of probabilities that the child in this case should be vaccinated in her best interests. Public policy as expressed by the Ontario and Canadian governments supports vaccinations as essential to the health of children and the public in general. The World Health Organization promotes vaccinations for the same purposes as a matter of public health and safety.

I accept the evidence of Dr. Salvadori that the benefits far outweigh the minimal side effect risks. I reject, as it has not been supported in the evidence before me, claims that vaccinations are harmful.

[44] The father has provided evidence from the CDC that is largely in line with the Ontario Ministry of Health. The CDC website does not state that children whose parents have an autoimmune disorder cannot receive the MMR vaccine. The CDC webpage simply indicates that parents should speak to the vaccine provider. This is precisely what the mother has done. She has obtained an affidavit from Dr. Regimbal that the MMR vaccine is not contraindicated for L.A., having considered the father’s autoimmune disorder. If there is any concern that Dr. Regimbal has misunderstood the issue, as the father suggests, it can be easily rectified through further discussion with the physician.

[45] Finally, an interim order can be structured to require the mother to make decisions on vaccinations upon consultation with the physician and full disclosure of any family medical history that might pose a risk to the child, and upon recommendation of the physician.

[46] I find the father’s materials does not displace the presumption that it is in the best interests of L.A. to obtain the MMR vaccine.

ii. COVID-19 vaccine

[47] The same approach has been taken with respect to the COVID-19 vaccines. Motion judges have considered the evidence of Canadian health authorities and applied a presumption in favour of vaccination for COVID-19 unless the opposing party has filed admissible and reliable documentary evidence to undermine the presumption.

[48] As noted at paragraphs 40 and 41 of this decision, several court decisions have specifically addressed the COVID-19 vaccines for children ages 5 to 11 and 12 to 17 and taken judicial notice

of the safety and efficacy of the vaccine based on documentary sources from government and other agencies. Three of these decisions are specific to the 5 to 11 age group and are discussed below.

[49] In M.P.D.S., the father opposed his five-year-old child receiving the COVID-19 vaccine on the grounds that the vaccine had been rushed by the government, that government and health officials could be wrong, that he had concerns about the effectiveness of the vaccine, which was still in clinical trials, and that there were nominal risks that his five-year-old child would contract COVID-19 and become ill because of his young age.

[50] Justice Tobin carefully considered the information filed by the mother from the Government of Canada website on the COVID-19 vaccine. He notes the following information from the Government of Canada website at para 48 of his decision:

Importance of vaccination

COVID-19 is having a significant impact on the mental and physical well-being of children, youth and their families.

Although children and youth are less likely to get really sick from COVID-19, they can still:

• get sick from COVID-19

• be infected and not have any symptoms

• spread COVID-19 to others

• experience longer-term effects if they do get infected

• get a rare but serious complication called multisystem inflammatory syndrome in children (MIS-C)

➢ this is a condition that can occur several weeks after COVID-19

➢ there's inflammation in the body and it can affect the heart, lungs, kidneys, brain, skin, eyes or gastrointestinal organs

o symptoms may include fever, abdominal pain, vomiting, diarrhea and skin rash

• the majority of children and adolescents in Canada who have had this condition have fully recovered with treatment

Children and youth with certain underlying medical conditions may have a higher risk for severe illness from COVID-19.

COVID-19 vaccines help the body fight off the virus. Like adults, children and youth are well protected against severe illness 14 days after their second dose. Those who have already had COVID-19 should still get vaccinated to protect themselves from getting it again.

How the vaccines are studied and tested for children and youth

The mRNA COVID-19 vaccines were tested in youth through clinical trials. The pediatric formula of the Pfizer-BioNTech Comirnaty vaccine was tested in children 5 to 11 years of age. These clinical trials compared the immune response, safety and effectiveness of the vaccine to a placebo. In these studies:

• no safety issues were detected

• the vaccine was shown to provide very good protection against COVID-19 in the 2 months after vaccination

Millions of children have safely received the pediatric Pfizer-BioNTech Comirnaty vaccine in Canada and around the world. Serious side effects continue to be very rare. The evidence continues to demonstrate that the vaccine is effective against severe outcomes and is very safe.

Vaccines approved for children and youth Children (5 to 11 years old)

Health Canada has approved a Pfizer-BioNTech Comirnaty vaccine made for children 5 to 11 years old.

This vaccine for children has a smaller dose than the vaccine for those 12 years of age and older. This is because in clinical trials, lower doses provided children with very good protection against COVID-19. It's not clear yet how long protection will last.

It’s recommended that children 5 to 11 years old receive 2 doses of the vaccine. The National Advisory Committee on Immunization recommends that the second dose should be given at least 8 weeks after the first dose.

Children that are moderately to severely immunocompromised should receive 3 doses. The recommended interval is 4 to 8 weeks between each dose. Children who turn 12 before their second dose may receive an adult dose for their second dose.

If your child has tested positive for COVID-19, they can receive the vaccine once they:

• no longer show symptoms of COVID-19 infection and

• are no longer considered infectious to others

If possible, children shouldn't receive the Pfizer-BioNTech Comirnaty vaccine within 14 days of other vaccines, such as the flu vaccine. This is a precaution to monitor any side effects from the COVID-19 vaccine or another vaccine. In some cases, your child's health care provider may recommend a vaccine that's needed urgently. This may happen even if your child has received the COVID-19 vaccine in the past 2 weeks.

[51] Based on the information from the Government of Canada website, Justice Tobin found that as a general presumption, it is in the best interests of children as young as five years of age to get the COVID-19 vaccine. He found that the father had not filed any admissible and reliable evidence to displace this presumption. He concluded it was in the best interests of the child to have the option to be vaccinated and that this would not happen if the father were to have decision- making responsibility on vaccinations. Consequently, he granted the mother sole decision-making responsibility for the child regarding the COVID-19 vaccine: M.P.D.S. at para 54.

[52] In M.P.D.S., unlike in this case, the parents had been administering vaccines to the child but at a slower schedule because of the father’s views on vaccines. Given that this approach of following a slower vaccination plan had been working successfully for the parties, Justice Tobin declined to make an order for final decision-making responsibility: M.P.D.S. at para 57.

[53] Similarly, in TRB v KWPB, 2021 ABQB 997, the father had filed evidence from US sources that the Pfizer-BioNTech COVID-19 (“Pfizer”) vaccine was not safe for children ages 5 to 11. Justice J.C. Kubik reviewed the scientific evidence in the Canadian context, which included the regulatory approvals for the Pfizer vaccine and the recommendations of government health officials, including the Chief Medical Officer of Alberta. Justice Kubik accepted the evidence from the Canadian sources as an accurate reflection of the current state of scientific knowledge regarding both the virus and the vaccine and preferred it over the American documentation filed by the father. Justice Kubik also noted that the state of regulatory approval of the vaccine in the United States is different than in Canada, and consequently she ascribed less weight to the American documentation than the regulatory approvals and the recommendations of public officials in Canada tasked with protecting public health: TRB at paras 12 and 13.

[54] Based on the documents filed, Justice Kubik took judicial notice of several facts related to vaccinations generally and the Pfizer vaccine in particular for children: TRB at para 14. She

concluded that the vaccine was approved by Health Canada and safe and effective for usage in children ages 5 to 11 and 12 to 17. Vaccination was the best protection against the global pandemic and reduced the risk of both contracting the virus and suffering serious consequences from it: TRB at para 32. Justice Kubik granted the mother decision-making responsibility on behalf of the children: TRB at para 38.

[55] In McDonald v Oates, Justice Van Melle considered whether it was safe to administer the COVID-19 vaccine to the parties’ ten-year-old child. The mother supported the vaccine while the father opposed it. Justice Van Melle reviewed the documentation from publicly accessible government sources and took judicial notice of facts relating to COVID-19 and the vaccine for children. In particular, he cited the findings of Justice Kubik, which he found reflected the advice of Public Health Canada and Ontario Health with respect to vaccine use in Ontario. Justice Van Melle found that it was in the child’s best interests that the mother be granted sole decision-making authority on COVID-19 vaccination. He also ordered that the father refrain from making statements to the child about the safety and efficacy of the COVID-19 vaccines: at paras 18, 21, and 28.

[56] While the bulk of the vaccine cases have taken judicial notice that it is in the best interests of children to be vaccinated against COVID-19, there have been some cases that have cautioned against permitting judicial notice on matters that require a qualified expert opinion. In J.N. v C.G., Justice Pazaratz found that the mother had filed admissible evidence from reputable sources, including the company Pfizer itself, that identified concerns about the safety of the vaccine such that he was not prepared to take judicial notice of the safety of the COVID-19 vaccine for children: 2022 ONSC 1198 at para 81.

[57] In arriving at his determination, Justice Pazaratz relied on the Supreme Court of Canada’s decision in R v Find, which states that judicial notice should be limited to facts that are (1) so notorious or generally accepted as not to be the subject of dispute among reasonable persons or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: 2001 SCC 32 at para 48.

[58] Justice Pazaratz found that in cases where the opposing party has filed admissible evidence on complicated and evolving issues, there can be no simplistic presumption that one side is right and the other side is comprised of a “bunch of crackpots”: at para 81. In his view, the matter of the

safety and efficacy of the COVID-19 vaccine for children required expert opinion and proper testing in a public trial. As Justice Pazaratz states at para 82:

The father insists the mother’s views have been debunked, but he provides no example of any such determination actually having been made. It would be helpful if, once and for all, the competing positions and science could be properly explored and tested in a public trial.

[59] Justice Pazaratz went on to find that upon consideration of the best interest factors, the mother should have sole decision-making responsibility with respect to the issue of administering COVID vaccines for the parties’ two children. One of the significant factors in that case, however, was that both children, ages 10 and 12, had independently expressed to a social worker their strong wish to not be vaccinated for COVID-19. The children had received other immunizations in the past. This is not the case here.

[60] Similarly, in C.M. v. S.L.S., 2022 ONCJ 206, the mother was opposed to vaccinations. The trial judge found the father had filed sufficient expert evidence on the safety and efficacy of routine childhood vaccines that it was not necessary to take judicial notice of this fact. However, he was not prepared to take judicial notice of the safety of the COVID-19 vaccine for children aged 5 to

11. The trial judge found that it could not be said that the fact of its safety and efficacy is so notorious that it cannot be the subject of reasonable debate: at para. 112. Nonetheless, the trial judge granted the father decision-making responsibility for vaccinations.

[61] In Rouse v Howard, 2022 ONCJ 23, the court was only prepared to take judicial notice of the existence of COVID-19 and the risk of serious illness posed by COVID-19 (at para. 13). The court found it was not in the child’s best interests to order the father have decision-making authority for the purpose of compelling the child to be vaccinated against COVID-19 given the child’s general opposition to vaccines and left the issue to be determined by the trial judge.

[62] Finally, several decisions are critical of the approach taken by Justice Pazaratz in J.N. the court in K.D.B. v K.B., 2022 NBQB 74 states that it will not follow J.N. v C.G. because it is contrary to the rest of the Canadian caselaw: at paras. 55-56; see also D. Jr. at paras 21-24 and A.M. v C.D. at paras 23-27.

[63] I agree with Justice Pazaratz that motion judges should be cautious about taking judicial notice and making factual findings in the absence of expert opinions. I also agree that

notwithstanding that there may be overwhelming evidence in support of a medical procedure, parents are entitled to have a fair and meaningful forum in which they may express their concerns about the medical evidence to ensure the safety of their children. However, when it comes to COVID-19 vaccines for children, I disagree that motion judges should leave the determination of this issue for trial after a full vetting of the issue by different experts for several reasons.

[64] First, as the caselaw shows, there is an overwhelming body of evidence from federal, provincial, and municipal governments that the current COVID-19 vaccine for children is safe, effective, and with minimal risk of harmful side effects: D. Jr. at para 22. In short, this is an area where the facts are so notorious or generally accepted as not to be the subject of dispute among reasonable persons that judicial notice can be taken.

[65] Second, taking judicial notice of these facts only amounts to a presumption that it is in the best interest of the child to be vaccinated against COVID-19. The motion judge is still required to fairly and objectively review materials filed by parties that challenge government or mainstream positions to determine if the presumption has been rebutted. Whether this is achieved is to be determined on the materials filed. These materials will vary in each case and inevitably with the passage of time. No one disputes that the science on vaccines will evolve as more and more children are vaccinated and data is collected on the effects of those vaccinations. The fact that vaccinations, like many medical treatments, are evolving does not mean that present day knowledge of the vaccine, including from clinical trials, cannot be relied on to establish a presumption.

[66] Third, requiring parents to await trial and call expert opinion evidence is costly and impractical. While it might be warranted in some circumstances, I find it is not on this particular issue, given the overwhelming and consistent scientific evidence on the subject.

[67] Finally, as already noted at the outset, the determination of vaccine safety is but one aspect of the best-interest analysis. There may be other compelling reasons to grant or not grant a parent decision-making responsibility on matters of vaccination. For example, in several vaccination cases involving older children, one of the determining factors in deciding which parent should have decision-making responsibility was the child’s own wishes and not merely the safety of the vaccine: J.N. at paras 29, 30, 74, and 78. I find that the absence of expert opinions at a motion’s

hearing should not hijack the entire best-interest analysis so as to foreclose the ability of courts to make interim parenting decisions.

[68] With respect to the COVID-19 vaccine, the mother has filed documents from both the Government of Ontario and Ottawa Public Health websites that specifically state that the paediatric Pfizer vaccine is safe for children aged 5 and up. The Government of Ontario website on COVID- 19 (https://covid-19.ontario.ca/covid-19-vaccines-children-and-youth) states the following:

Health Canada has approved the Pfizer vaccine for use in children aged five and over and the Moderna vaccine for use in children aged six and over and determined that these vaccines:

• are safe, effective, and manufactured with rigorous quality control and assurance

• show a strong immune response and prepare the immune system to fight against COVID-19

• significantly decrease the risk of severe outcomes from COVID- 19 infection

• significantly decrease the risk of longer-term illness from multisystem inflammatory syndrome in children (MIS-C), a rare but serious condition that can occur in the weeks following COVID-19 infection

Children and youth aged five and over are recommended to receive the Pfizer COVID-19 vaccine.

With informed consent, which should include awareness of possible elevated risk of myocarditis/pericarditis, children and youth aged six and over may receive the Moderna COVID-19 vaccine.

If your child had COVID-19, they should still get the vaccine. It will reduce the risk of getting sick again and will provide increased protection against COVID-19 variants.

[69] The Ottawa Public Health website at https://www.ottawapublichealth.ca/en/public-health- topics/covid-19-vaccination-and-children.aspx also contains detailed information about the benefits of the COVID-19 vaccine for children and recommends vaccination even where children have already had COVID. The website has links to several fact sheets including, Paediatric Pfizer COVID-19 Vaccine: Frequently Asked Questions and COVID-19 Vaccines for Children and Youth

which can be found at. Some of the key points on the safety and efficacy of the vaccine that emerge from the website are as follows:

• Health Canada authorized the use of the paediatric Pfizer COVID-19 vaccine for children aged five to 11.

• Children aged five to 11 will receive the paediatric Pfizer vaccine, which is a distinct formulation at a lower dose of one-third the amount given to individuals aged 12 and over, in a two-dose series at a recommended interval of eight weeks.

• Vaccinating children and youth will provide them with a strong level of protection against COVID-19 and the highly contagious Delta variant, keep schools safe and open, and stop the spread of the virus. This will help protect other family members too, such as those under five years old who can’t get vaccinated yet, or more vulnerable elderly individuals.

• The benefits of getting vaccinated and being protected against COVID-19 far outweigh the risks of any side effects from the vaccine. COVID-19 infection may cause longer-lasting symptoms and health problems for some people, including children, which is why it’s important to get vaccinated as soon as possible.

• A very small number of cases of myocarditis (inflammation of the heart muscle) and/or pericarditis (inflammation of lining outside the heart) following vaccination have been reported. Most cases occurred in young adult males between 18 and 30 years of age after the second dose of vaccine, and most had mild illness and recovered quickly.

[70] The Ottawa Public Health website contains information on how vaccines are studied and tested for children, the side effects of the vaccine, the risks of myocarditis, and the efficacy of the vaccine to prevent illness caused by COVID-19. It provides links to the Government of Canada website at https://www.canada.ca/en/public-health/services/vaccination-children/covid-19.html which provides detailed information about the safety and efficacy of the Pfizer vaccine for children 5 and older. Much of this information was reviewed by Justice Tobin in his recent decision.

[71] In addition, the Ottawa Public Health website provides a link to the Children’s Hospital of Eastern Ontario (CHEO) webpage on the COVID-19 vaccine for children. It references a video of several experts discussing the benefits of vaccination and the safety of the vaccine, including the results of clinical trials, any short- and long-term effects of the vaccine, and the thoroughness of the reviews undertaken to ensure the vaccine is safe.

[72] Finally, the Ottawa Public Health website provides a link to a consultation site for parents who have concerns. The SickKids COVID-19 Vaccine Consult Services provides a phone service that provides a safe judgment-free space to have an open conversation about the COVID-19 vaccine. It supports residents of Ontario who have questions or concerns and who have complex medical histories or medical conditions.

[73] I find that the materials filed by the mother support that as a general presumption, it is in the best interests of children ages five and up to be vaccinated against COVID-19.

[74] The father argues that the risks of side effects from the Pfizer vaccine far outweigh any benefits. The father’s arguments are based on several grounds.

[75] First, the father cites statistics from VigiAccess, which was launched by the World Health Organization and states that there have been 3,600,000 cases of reported side effects from the COVID-19 vaccine: Exhibit B to the father’s affidavit. He lists the various disorders that could result. However, upon closer examination of the VigiAccess exhibit filed, it is clear that this list of disorders does not pertain directly to the COVID-19 vaccine for children, but to the COVID-19 vaccine generally, which includes millions if not billions of adults around the world.

[76] The VigiAccess exhibit also contains several cautions. It states that the information on their website relates to potential side effects and that symptoms that have been observed following the use of a medicinal product may or may not be related to or caused by that product. In addition, the site cautions that information on their website does not reflect any confirmed link between a medicinal product and a side effect. Confirming a causal link is a complex process that requires a scientific assessment and detailed evaluation of all available data.

[77] Given the statistics are not specific to side effects experienced by children, I find the exhibit of little value in assessing the safety and efficacy of the COVID-19 vaccine for children.

[78] Second, the father files multiple references, including from UNICEF, that the mortality rate for children from COVID-19 is extremely low. On this basis, the father argues that given that

L.A. is an active, healthy, young boy, it is extremely unlikely that he will ever become seriously ill from COVID-19 or die from it. While this may be true for any given child, it is not necessarily a reason not to vaccinate. There are other reasons for having children vaccinated, including controlling the spread of the virus to those who may be more vulnerable. The decision to immunize

involves a balancing of multiple risks, some of which may relate to more than the individual. As noted in the UNICEF extract filed by the father (Exhibit D):

[G]ains in child survival are dependent on the continued provision of essential health services to women and children around the world. While the full extent of COVID-19's impact on economies, movement, and child health is not entirely clear, if life-saving interventions are disrupted, many more children could die of treatable and preventable conditions.

[79] Third, the father cites a video-recorded statement dated December 16, 2021 from Dr. Robert Malone, founder of the mRNA vaccine. Dr. Malone opines that the vaccine for children has not been adequately tested and that scientists need at least five years of testing and research before they can fully understand the risks associated with this new technology. In his view, given the low risk of harm to young children from COVID-19, the risk of short- and long-term side effects to children far outweigh any benefit from obtaining the vaccine. Those risks include damage to vital organs (brain, nervous system, heart, and reproductive system). In the extract from Dr. Malone’s recorded public statement filed by the respondent, Dr. Malone states:

A viral gene will be injected into your parent cells. This gene will force your child’s body to make toxic spike protein. These proteins often cause permanent damage in child critical, vital organs. These organs include their brain and nervous system, their heart and blood vessels, including blood clots, their reproductive system, and most importantly this vaccine can trigger fundamental changes to their immune system. The most alarming point about this, is that once those damages have occurred, they are irreparable. They cannot be reversed. You can’t fix the lesion within their brains. You cannot repair heart tissue scarring. You cannot repair a genetically reset immune system. And this vaccine can cause reproductive damage that can affect future generations of your family.

... this novel technology has not been adequately tested. We need at least five years of testing and research before we can fully understand the risks associated with this new technology. The harms and risks of new medicine often become revealed many years later.

….there is no benefit for your children or your family…against the small risk from the virus, given the known health risks from the vaccine that is apparent you and your children may have to live with for the rest of your lives. The risk/benefit analysis is not even close with this vaccine for children.

[80] One cannot deny that the information reported by Dr. Robert Malone, if accurate, would be alarming to any parent. The problem that arises is that the information provided is of a single scientist. The father has not filed information from any other government or non-government health agencies that review, support, or endorse Dr. Malone’s views.

[81] This is also not the first time that information from Dr. Robert Malone has been filed in a vaccine case. In A.M. v C.D., 2022 ONSC 1516, the father had final decision-making authority for the parties’ seven-year-old child under an existing court order. The mother brought a motion to change decision-making responsibility and sought an interim order granting her temporary decision-making responsibility on vaccination pending final determination of the issue. In particular, she sought an order allowing the child to be vaccinated against COVID-19 and to be permitted further boosters approved by Health Canada. The matter concerned the same Pfizer vaccine at issue in this case.

[82] The father objected to the child obtaining the vaccine and the mother’s motion to transfer decision-making responsibility to her. In support of his application, the father filed material from Dr. Robert Malone. Justice Hackland pointed out the challenge in ensuring that downloads from the internet provided by parties in vaccine cases are from qualified and reputable resources. Justice Hackland cites the risk of relying on Dr. Malone's materials as an example:

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.

[83] Justice Hackland took judicial notice of the efficacy of the Pfizer vaccine for children ages five to 11 to mitigate the serious risk to some children who become infected by COVID-19 and to reduce the spread of the virus to children’s teachers and older relatives, among others. However,

he acknowledged the father’s views were reasonable at the time (March 2022) and that it did appear that society was in a dynamic and rapidly changing and more positive environment regarding managing the public health threat posed by COVID-19. He found that this was something a responsible parent is entitled to consider when assessing their child’s need for a Pfizer vaccination.

[84] Ultimately, Justice Hackland denied the mother’s application for interim decision-making power and ordered that the issue proceed to trial. A significant factor informing Justice Hackland’s decision was the fact that the father had already been granted decision-making responsibility on matters of health under an existing court order. Such is not the case here.

[85] Upon review of all the evidence filed, I find that I can rely on the mother’s materials from the various Canadian health authorities to find that, as a general presumption, it is in the best interests of children as young as five to get the COVID-19 vaccine. I find that while the father’s materials do identify concerns raised by Dr. Robert Malone with respect to the safety risks of the Pfizer vaccine, this in and of itself does not displace the presumption. It is information that the parent who has decision-making responsibility will have to consider along with all the other literature related to COVID-19 immunization in consultation with the child’s physician.

[86] Furthermore, I find the mother has presented a plan of care with respect to immunization for L.A. that involves consideration of Canadian public health guidelines in conjunction with consultation with the child’s physician in determining whether L.A. should or should not receive a particular vaccination.

[87] The father has not presented any such plan of care with respect to immunization. In his affidavit, the father states he is opposed to all vaccinations. It is unclear if his position is ideological and applies to all vaccinations or is science based and only applies to particular vaccinations. He states that he made it clear to the mother before L.A. was conceived that he was against vaccinations. While that may be his preference, decisions around the child’s immunization are not to be determined simply on parental preferences, but what is in the best interests of the child. Furthermore, while the father has gathered materials from the internet in support of his position, what is disconcerting is that he has not taken any steps to discuss these materials with the child’s physician or to consult services available through SickKids Hospital or other health institutions to be able to make an informed decision in the child’s best interests.

[88] I find the mother’s plan of care and approach towards immunization warrants an order in her favour.

c. s. 16(3)(a) - the child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[89] L.A. is now seven years of age. He attends public school. His mother wishes for him to participate in summer camps, many of which require children to be vaccinated against COVID-

19. It is in the best interests of L.A. to be able to participate in school, camps, and extracurricular activities to the fullest extent possible for his physical, mental, and educational development.

[90] This is not to suggest that every child should receive vaccinations simply because the school or social programs (i.e. camps) mandate it. The decision is to be determined on the basis of the circumstances of the child. If upon medical consultation with medical practitioners, there are identifiable health risks to administering a vaccine to a child, then clearly the wise choice would be to refrain from such a course of action. In this case, however, no such evidence has been presented from a medical practitioner with respect to L.A.

[91] Furthermore, although a parent may provide the child’s school a letter requesting an exemption for vaccinations for medical or ideological reasons to permit the child to attend public school, the father has not taken steps to file such a letter. During the hearing, the mother informed the court that the child’s school has not yet restricted L.A.’s access to public school because he is unvaccinated. The Minutes states that the father is responsible for managing all vaccination exemptions, but he has still not addressed the issue with the school.

[92] In addition, Dr. Regimbal has indicated that measles, mumps, and rubella are prevalent in the Ottawa area and can be a serious disease. L.A. continues to be at risk of contracting these diseases. The greater the delay in obtaining the vaccinations, the greater the risk of harm to L.A. in contracting these diseases.

[93] Finally, the issue of L.A.’s immunization is not a recent one. Discussions have been ongoing since the parties’ separation in December 2016. The parties attended mediation to try to resolve the issue of vaccinations in April 2018 and again in February 2020. At that time, as discussed above, the parties were able to come to an agreement. The mother would confirm the illnesses present in Ottawa and the father would provide consent for vaccinations upon obtaining

a recommendation from a health care professional. The mother did her part. The father has maintained his refusal. Two years have passed, and no progress has been made on the issue.

[94] I would also note that the father’s response to the mother informing him that Dr. Regimbal had recommended immunization was that he would only consent if the doctor signed a document acknowledging responsibility for any future medical repercussions. I find this an unreasonable request. Every medical procedure, including a vaccination, involves some level of risk. It is a balancing exercise and decisions have to be made by parents in consultation with health care providers. Doctors undertake an oath to administer medical procedures in accordance with the ethics and standards of their professions. It is completely unreasonable to require them to provide an undertaking to assume all liability for any future medical repercussions from their treatment.

[95] Finally, the Minutes include a clause that if issues arise relating to vaccination and the parties cannot agree, they will return to mediation, if time permits, to resolve the issue. During the motion hearing, I was advised by the mother’s counsel that the parties have attempted two mediations without success, and it is highly unlikely that the issue would have been resolved. Consequently, the mother did not feel that there would be a benefit to another attempt, nor was it suggested. In these circumstances and given the passage of time, I would agree.

[96] I find that the child’s needs, age, and stage of development warrant that the issue of decision-making responsibility over vaccinations be resolved so that the child can obtain the necessary protections from the risks of serious illnesses within our society and be able to fully participate in school and social activities important for his development to the full extent possible. I find this factor warrants an order in favour of the mother.

d. s.16 (3)(i) - the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child and s. 16(3)(c) - each spouse’s willingness to

support the development and maintenance of the child’s relationship with the other spouse

[97] I find the mother’s conduct in following the parties’ agreement as set out in the Minutes demonstrates her willingness to communicate and cooperate with the father on matters affecting the child. She followed through with the terms of the agreement and kept the father informed. I find this factor warrants an order in favour of the mother.

e. s. 16(3)(e) - the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained

[98] The best interest factors require consideration of the child’s views and preferences. The weight to be given to those views will generally increase with the child’s age and maturity. However, in some cases, it may not be appropriate to involve the child if they are too young to meaningfully participate: J.N. at para 28.

[99] In addition, the court must ensure that the child’s views are independently ascertained and not merely the result of parental influence: Decaen v Decaen, 2013 ONCA 218 at para 42. For example, in McDonald v Oates, the motion judge declined to order a Voice of a Child report to determine a ten year old’s views on the COVID-19 vaccine. The motion judge found the child had received mixed messages about the risks and benefits of the COVID-19 vaccine and would be unable to make an informed choice: at para 26.

[100] In this case, I am not persuaded that as a seven year old, L.A. is currently mature enough to determine if he should be generally immunized and for what illnesses. Furthermore, I have not been provided any information in relation to L.A.’s views on immunization to ascertain what, if any, weight should be put on his views. I find this factor is neutral.

CONCLUSION

[101] In conclusion, I find that upon balancing all of the factors set out in s.16(3), it is in the best interests of the child that the mother have decision-making responsibility on matters of health including vaccinations.

[102] There will be conditions requiring the mother to consult with the father prior to proceeding with immunization, consult with the child’s health care provider, inform the provider of the family’s medical history, and keep the father informed of the medical provider’s recommendations of any final decisions she makes with respect to vaccines for the child.

[103] While I appreciate that the mother has already consulted with both the physician and the father about the MMR vaccine and the COVID-19 vaccine, it is necessary to confirm some issues raised by the father before proceeding with these two vaccines. With respect to the MMR vaccine, it would be prudent to confirm with Dr. Regimbal that she has considered the father’s rheumatoid arthritis (the father claims the doctor refers to juvenile arthritis). With respect to the Pfizer vaccine for COVID-19, it would be prudent to discuss the concerns raised by the father regarding the side effects of the Pfizer vaccine.

[104] There will be an order that the mother reasonably consult with the father about future vaccines.

[105] There will be an order that the mother will have interim decision-making authority on matters of health. In short, the mother does not require the father’s consent to proceed with a vaccine following reasonable consultation.

[106] The father is entitled to attend and participate in the child’s medical visits should he wish to do so. I have not been provided evidence that the parties’ relationship is so acrimonious that such an order would be unworkable. However, the child should not be present during any discussions that take place about immunization between the parents or as between the parents and the health care provider. There is no need to expose the child to the parties’ conflict on this issue.

[107] Given the child’s young age and the parents’ conflicting views on immunization, there will be an interim order that the father will refrain from making statements about immunization to the child. However, this is an interim order and the condition should be revisited at trial. As the child matures, one can anticipate that the child may wish to address these issues with either parent or be able to express his views on the matter. The child is entitled to have respectful and meaningful discussions with both parents which is not possible in the long term with a clause restraining communications on the subject.

ORDER

[108] There will be a temporary order that:

1. The mother will have decision-making authority for L.A. on matters of health, including vaccinations.

2. The mother will verify with the child’s health care provider the concern raised by the father with respect to his particular autoimmune disorder and if it poses any risk with respect to the MMR vaccine for L.A. The mother will inform the father of the information received and her decision with respect to the administration of the MMR vaccine.

3. The mother will address the concerns raised by the father with respect to the Pfizer vaccine for COVID-19 with L.A.’s health care provider. The mother will inform the father of the information received and her decision with respect to the administration of the Pfizer vaccine for COVID-19.

4. The mother will reasonably consult with the father prior to making a decision on the administration of any other vaccines for L.A. other than the MMR and COVID-19 vaccine (“future vaccines”).

5. The mother and father shall not discuss immunization in the presence of L.A.

6. The mother shall inform the health care provider administering any future vaccines for L.A. with information about the father’s autoimmune disorder and will follow the recommendations and advice of the health care provider.

7. The mother does not require the father’s consent to proceed with vaccinations for L.A.

8. The father is prohibited from discussing the issue of vaccines with L.A.

[109] Counsel for the mother will prepare a draft Order consistent with my decision for review and signature.

[110] The mother was successful on this motion. If the parties are not able to settle the issue of costs, submissions can be filed in writing. They shall not exceed two pages, exclusive of the Bills of Costs and Offers to Settle. The mother shall file his submissions by June 21, 2022, the father by July 5, 2022, and the mother will have until July 12, 2022 to reply. Please email the submissions to scj.assistants@ontario.ca and to my attention.

Somji J.

Released: June 7, 2022

Released: June 7, 2022

COURT FILE NO.: FC-21-1568

DATE: 2022/06/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Farah Rashid

Applicant

– and –

Samvel Avanesov

Respondent

REASONS FOR DECISION ON MOTION

Somji J.