COURT FILE NO.: FC-18-2348-1
DATE: 2022/06/30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Eric Soucy, Applicant
-and-
Ronnie Chan, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Jeremy Dolgin, for the Applicant
Andre Lozano, for the Respondent
HEARD: May 17, 2022, by Video Conference
ENDORSEMENT on motion
[1] The Applicant father brings this motion seeking sole authority to have the children, ages six and nine, vaccinated against Covid-19. The Respondent mother opposes the children being vaccinated at this time.
[2] Two other issues raised in this motion. The first was whether the children could be tested for Covid-19. The father asserted that the mother refused to agree to testing, which the mother denied. The parties consented to a temporary order that either party may have the children tested for Covid-19.
[3] The other issue on the motion was whether the mother could bring the children to the Pentecostal Church. On May 17, 2022, for oral reasons, I made a temporary order prohibiting the mother from taking the children to the Pentecostal Church without the father’s agreement.
[4] I reserved on the issue of decision-making for Covid-19 vaccinations. This is my decision on this issue.
[5] For the following reasons, I decline to make a temporary order changing the parties’ 2018 Separation Agreement that requires joint decision-making for the children, concerning vaccines or otherwise. On a temporary basis, the parties shall continue to have joint decision-making authority for the children, as provided for in their Separation Agreement.
Reasons
[6] I do not find that the children’s best interests require that there be a change to the parties’ joint decision-making under their 2018 Separation Agreement on a temporary basis pending a final resolution of this Application. Specifically, I do not find that the children’s best interests require the father to be granted sole temporary decision-making to administer the Covid-19 vaccine to the children or vice versa for the Mother. I find instead that the children’s best interests are best served by joint decision-making continuing pending a final resolution.
[7] This Application is under the Divorce Act. The sole consideration for the court in making a parenting order is the child’s best interest, considering all of the factors listed in s.16(3) and placing primary consideration on the child’s physical, emotional, and psychological safety, security and well-being.
[8] Temporary, or interim, orders are meant to be a band-aid to a difficult issue that requires immediate relief, pending the matter being fully adjudicated on a full evidentiary record at trial (see Sypher v. Sypher (1986) 2. R.F.L. (3d) 413 (Ont. C.A.)).
[9] In some situations, a trial may not be required to determine the issue justly. The Family Law Rules allow a party to bring a motion for summary judgment under Rule 16 where there is no genuine issue requiring a trial. Additional rules apply to a motion for summary judgment under Rule 16. In this case, there is no motion, by either party, for summary judgment before me.
[10] This motion may be seen as being less about whether the children should receive the Covid-19 vaccine and more about what to do when the parties’ decision-making model that they agreed to in their 2018 Separation Agreement, for decisions to be made jointly, breaks down. That issue should be left to trial unless there is a compelling reason why a decision must be made before then.
[11] There are several reasons for this. The evidence on this motion is limited. It is made up of affidavits, presumably prepared by the parties with the assistance of their lawyers. The parties have not been cross-examined on their affidavits. There is limited direct evidence available on the specific needs of the children and their wishes. An order was made, on consent, on April 1, 2022, referring this matter to the OCL for a s.112 investigation, with the order specifically noting the parties’ dispute about the Covid-19 vaccines. The OCL has not yet advised if it agrees to become involved.
[12] The Family Law Rules also provide a significant degree of flexibility in crafting a just process that furthers the primary objective of the rules (Rule 2), which offers several options for moving this matter to final adjudication. This may include, for example, a focused or expedited trial, or a summary judgment motion if there is no genuine issue requiring a trial.
[13] What is not supposed to happen is what is before me on this motion, which is that each party is effectively seeking an order on an interim motion that will largely determine the main issues in this Application, but is based on a limited evidentiary record, and without having the benefit of knowing the OCL’s position that the parties previously agreed was important for the court to determine this matter.
[14] There are situations when orders need to be made on a temporary basis, even given the limitations that are before me on this motion. I do not find that this is one of them. The evidence before me does not support that there is a compelling reason to change decision-making on an interim basis, before having a full evidentiary record and before knowing the position of the OCL.
[15] Both parties provided me with several cases, many of which dealt with the concept of judicial notice involving disputes about vaccinations for children[^1]. There is some disagreement in these cases regarding the extent to which courts should take judicial notice of the facts surrounding vaccinations for Covid-19, given the strict test to be met before doing so[^2].
[16] The father relies heavily on previous case law to argue, effectively, that there should be a presumption that all children eligible for approved vaccines should be vaccinated, and this issue must be determined on an urgent, interim basis before a final determination of the matters in this Application.
[17] The father relies on little evidence beyond the case law to support his position. Aside from the issue of judicial notice, the key factual evidence on this motion is as follows:
(a) since December 27, 2018, the parties have had joint decision-making under their Separation Agreement.
(b) the father has asked the mother to agree to vaccinate the children, but she has refused.
(c) the mother has vaccinated herself against Covid-19. She experienced side effects from the vaccine and is concerned about the risk of side effects to the children if vaccinated, balanced against what she perceives as a low risk to them having adverse outcomes if they remain unvaccinated.
(d) the father’s view is that the mother is anti-vaccine, although it is not disputed that the children have all of their other recommended vaccinations, to which the mother agreed.
(e) the father believes all children should be vaccinated unless they have a particular or unique medical reason not to be vaccinated.
(f) the father argues that the children’s weight makes them particularly vulnerable to complications from Covid-19. He provided no evidence supporting this, for example, evidence from the children’s medical care provider of the children’s needs regarding the vaccine. In response to my questions on the motion, the father’s counsel responded that he suspects the children have a professional medical caregiver. Still, he does not have any evidence of their recommendations concerning the vaccine.
(g) there was no reliable evidence before me regarding the children’s views on being vaccinated. The mother’s evidence was that the children did not want to be vaccinated. The father’s evidence was that they did want to be vaccinated. Neither is reliable.
(h) the parties agree that the Covid-19 vaccines carry a risk of side effects. The father’s view is that these risks are nominal. The mother’s view is that these risks are not minor.
(i) the mother alleges that the father has a history of making medical decisions for the children without her consent.
(j) there was no evidence before me that the children have been prevented from engaging in activities because they are not vaccinated. The father argues that the children missed some school because they were required to isolate themselves after a possible exposure due to being unvaccinated. However, the email chain attached as an exhibit to the father’s affidavit makes it clear that the children were not required to isolate if they did testing, upon which the parties now agree.
[18] The parties’ conflicting evidence regarding the children’s wishes supports that the more significant issue here may well be the harm caused by the children’s exposure to the parties’ conflict and what appears may be the parties’ attempts to use the Covid-19 vaccine as a wedge issue to gain sole decision-making, rather than the potential harm to the children of getting or not getting the vaccine.
[19] Concerning judicial notice, the father did not attach any government documents to his affidavit material. Instead, he relied on nine cases, none of which he provided to the court or opposing counsel, in advance of the motion.
[20] The mother also provided me with several cases on the issue of judicial notice, as well as approximately 150 pages of articles downloaded from the internet, many of which were unclear on their source, making it impossible to consider them reliable. Aside from commenting that these internet articles were not a very helpful way to advance the evidence in this matter, given the father’s agreement that there are side effects to the vaccine, I do not find that I must consider the admissibility of this material.
[21] The father requested that I take judicial notice that the children’s weight makes them particularly vulnerable if they do not get the Covid-19 vaccine. I decline to do so. To do so would require that I take judicial notice that a child’s weight over a certain body mass index (BMI) makes them particularly vulnerable to adverse outcome if they are not vaccinated. The father did not provide me with a source for his assertion that weight over a certain level increases vulnerability, that this applies to children of the same age group as these children, and that this applies to weight categories that encompass the children’s BMI’s. I do not find that these statements are so notorious or generally accepted as not to be the subject of debate among reasonable persons. Nor do I find that the statements are available from readily accessible sources of indisputable accuracy.
[22] A significant problem with relying on judicial notice that has been taken of particular facts in previous Covid-19 vaccine caselaw is that the Covid-19 situation is rapidly changing and developing. This includes changing public health directives such as masking protocols and vaccine mandates, new variants with changing transmissibility and virulence to the vaccinated and unvaccinated. These changes mean that a situation that may have been generally accepted and time-sensitive in September of 2021 is not as generally accepted and time-sensitive in May or June of 2022.
[23] I found the decision of Justice Hackland in A.M. v C.D. 2022 ONSC 1516 particularly helpful. Justice Hackland took judicial notice of the Health Canada advisories in the context of vaccinations and the efficacy of the vaccines to mitigate serious risk to some children and reduce the spread of Covid-19. Justice Hackland also gave considerable weight to the mother’s belief that her daughter’s best interests in terms of health are protected by following public health guidelines that recommend vaccinations for children in the child’s age group. Despite this, Justice Hackland refused to make an interim order changing the father’s decision-making authority to allow the mother to vaccinate the child. He found that the father’s position was reasonably held, that the Covid-19 situation was rapidly changing, and there was an insufficient basis to make an interim order to find that it was in the child’s best interest to be vaccinated in the face of the father’s objections.
[24] I arrive at a similar conclusion here. Even if I take judicial notice of the Health Canada advisories and public health directives, and give considerable weight to the father’s belief that the children’s best interests in terms of health are protected by following public health guidelines that recommend vaccinations against Covid-19 for children in their age group, I am still not persuaded that there are compelling circumstances, on this interim motion, to change the parties’ joint decision-making model that has been in place since December 27, 2018, when they signed their Separation Agreement.
[25] Although I give considerable weight to the father’s belief that the children’s best interests in terms of health care is protected by following public health guidelines that recommend vaccinations against Covid-19 for children in their age group, I find that the mother’s concerns about vaccinating the children are reasonably held. The mother is weighing the risks and benefits of the children being vaccinated against the risks and benefits of the children not being vaccinated. This is a reasonable exercise, and reasonable people may disagree on the proper balance for their children. It is not a situation that is so compelling as to call for an interim change to the previously agreed-upon joint decision-making model.
[26] The children’s physical health, and the physical risks of getting vaccinated or not getting vaccinated, are just one aspect of their best interests. The children’s best interests must be determined by considering all of the factors under s.16(3) of the Divorce Act. These include primary consideration of not just their physical health, but also their emotional and psychological safety, security and well-being.
[27] It appears to me that the harm caused by the children’s exposure to the parties’ conflict and what appears may be the parties’ attempts to use the Covid-19 vaccine as a wedge issue to gain sole decision-making is the more significant issue of a concern for their best interests than the risks to the children, at this time, of getting or not getting the Covid-19 vaccine.
[28] It may well be that the final determination of this matter will be that it is in the children’s best interests for one parent, or the other, to have the final say over medical, health or other decisions for the children. But I cannot determine this on an interim motion, on the limited evidentiary record before me. I am reluctant to temporarily interfere with the parties’ existing agreement to make decisions jointly, which has been in place since 2018, in the absence of compelling reasons that make it necessary to protect the children's best interests, to do so.
Conclusion
[29] The Applicant’s motion for a temporary order granting him sole authority to vaccinate the children against Covid-19 is dismissed.
[30] Pursuant to the Divorce Act, on a temporary basis, the parties shall continue to have joint decision-making authority for the children, as provided for in their Separation Agreement.
[31] If the parties cannot agree on the costs of this motion, the Respondent may file cost submissions on or before July 15, 2022. The Applicant may file cost submissions on or before July 22, 2022. The Respondent may file a brief reply, if necessary (proper reply only, limited to two pages) on or before July 29, 2022. Cost submissions of both parties shall be no more than three pages (except for the reply, limited to two pages) in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.
Justice P. MacEachern
Date: June 30, 2020
COURT FILE NO.: FC-18-2348-1
DATE: 2022/06/30
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Eric Soucy, Applicant
-and-
Ronnie Chan, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Jeremy Dolgin, for the Applicant
Andre Lozano, for the Respondent
ENDORSEMENT on motion
Justice P. MacEachern
Released: June 30, 2022
[^1]: A.C. v L.L, 2021 ONSC 6530 (decided October 1, 2021); Dyquiangco Jr. v. Tipay, 2022 ONSC 1441 (decided March 4, 2022), A.M. v. C.D., 2022 ONSC 1516 (decided March 9, 2022), A.P. v. L.K., 2020 ONSC 2520 (decided April 30, 2020), B.C.J.B. v. E.R.R.R., 2021 ONSC 6294 (decided September 22, 2021), J.N. v. C.G., 2022 ONSC 1198 (decided Feb 22, 2022), McDonald v. Oates, 2022 ONSC 394 (decided Jan 17, 2022), Rouse v. Howard, 2022 ONCJ 23 (decided Jan 20, 2022), Saint-Phard v. Saint-Phard, 2021 ONSC 6910 (decided October 18, 2021), Warren v. Charlton, 2022 ONSC 1088 (decided Feb 16, 2022), R.S.P. v. H.L.C., 2021 ONSC 8362 (decided Nov 25, 2021)
[^2]: See R v. Find 2001 SCC 32, 2001 1 S.C.R 863, R. v. Spence 2005 SCC 71, 2005 S.C.C. 71