Court File and Parties

COURT FILE NO.: FS-13-00000064-0002

DATE: 2022-01-17

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: L.M. v. C.O.

BEFORE: Van Melle, J.

COUNSEL: Taryn Simionati for the Applicant C.O. in person

HEARD: January 14, 2022

ENDORSEMENT

[1] This is the applicant’s motion, brought on an urgent basis, to have the child of the marriage vaccinated with the recommended COVID-19 doses and to prohibit the respondent from telling the child anything negative about the vaccine. After the hearing of the motion, I granted the relief claimed by the applicant with reasons to follow. These are my reasons.

[2] The parties attended a case conference before Justice Mandhane who ordered this matter to be heard on an urgent basis. Her endorsement dealing with today’s motion was in part as follows:

1. The parties appeared before me for a case conference. The issue between the parties relates to the vaccination of their 10-year-old child.

2. The Mother wishes to have the child vaccinated, consistent with the advice of the child’s doctor and public health guidance. She is worried about sending the child back to school for in-person learning next week without him being vaccinated. The Mother is a teacher and is worried about the risk posed to her family, including her elderly parents.

3. The Father will not consent to the child being vaccinated at this time. He wishes to have more time to consult with medical doctors and scientific experts. While he attempted to file a case conference brief, it was rejected by the court because it was late served. Apparently, it includes information from naturopaths and other health professionals regarding the efficacy of natural immunity against the virus.

4. As I expressed a view, I shall not be assigned to the motion to resolve the issue. However, I find the motion to be sufficiently serious that it should be determined prior to the child’s return to in person learning on Monday. This would allow the child to potentially receive his first dose of the vaccine this weekend.

[3] The applicant, L.M. and the respondent, C.O. share parenting of their 10-year-old son T.O. pursuant to a 2013 Final Order of Justice Herold. L.M. has been urging C.O. since June 2021 to have T.O. vaccinated as soon as the COVID vaccine was approved for children in Canada. C.O. refused saying that the government was “forcing” people to be vaccinated against COVID. He said that he did not disagree with vaccinations in general, just the COVID vaccination. C.O. says that there is no benefit to children to receive the COVID vaccine as it will not protect them from COVID-19 and that the risks outweigh the benefits. He also wants T.O. to be tested to determine whether he has antibodies to COVID-19.

[4] L.M. wishes to have T.O. vaccinated. L.M. and her current husband are both fully vaccinated including boosters. T.O.’s half-sister who is 6 years of age has received her first vaccine and her second one is scheduled. T.O.’s elderly maternal grandfather has medical issues including chronic leukemia and is fully vaccinated including his booster shot. She wishes to have T.O. vaccinated January 14, 2022 (the date of the hearing of the motion), because school resumes in person on January 17, 2022 and if he suffers any side effects from the vaccine he will have the weekend to recover.

[5] C.O. says that the parenting agreement between the parties sets out a procedure for the parties to follow in the case of a disagreement in that recourse to a parenting coordinator would be the first part of the resolution. He wants to wait until further evidence is available regarding the safety of the vaccine.

[6] In his affidavit, C.O. indicates that he wishes to obtain a second opinion from Dr. Martha Fulford, an associate professor at McMaster University. According to C.O., Dr. Fulford is not for or against the COVID-19, but as a neutral party, believes that her opinion would be valuable.

Is it in T.O.’s best interests to receive the COVID-19 vaccine?

[7] The test that must be applied in considering whether or not a child should be vaccinated is the child’s best interests: A.C. v. L.L., 2021 ONSC 6530. The factors to be considered in determining the best interests of the child are set out in the Children’s Law Reform Act, R.S.O. 1990, c. C.12:

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Factors

(3) Factors related to the circumstances of a child include,

(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

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

(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 co-operate, 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 co-operate 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.

[8] L.M. included in her materials a December 17, 2021 letter from T.O.’s doctor Dr. Aaron Smith. Dr. Smith writes that he supports the COVID-19 vaccine for children aged 5-11. He says that T.O. does not have any allergies to medication and has had all his recommended childhood vaccines to date. He feels that it is important for T.O. to receive the COVID-19 vaccine as soon as possible to avoid the potential chance of contracting COVID.

[9] At the hearing of the motion, I was advised that the parties and T.O. had a virtual meeting to discuss the COVID-19 vaccine with Dr. Fulford on January 13. According to C.O. Dr. Fulford said there was no reason for T.O. to receive the vaccine. I asked C.O. if Dr. Fulford stated unequivocally that T.O. should not receive the vaccine. C.O. replied that Dr. Fulford said if T.O. did receive the vaccine he should only receive one shot. L.M.’s recollection of the meeting is different from C.O.’s.

[10] I do not have a curriculum vitae for Dr. Fulford. Although she is an associate professor at McMaster University and according to C.O. she provides infectious disease consultations for both pediatric and adult patients, I do not believe that her participation in this motion is necessary for me to determine whether the COVID-19 vaccination protocol is in T.O.’s best interests.

[11] C.O.’s position is that he is not against vaccinations in general. At paragraph 4 of his affidavit he says that he is not an Anti-Vaxer and has always agreed that T.O. be up to date on his approved vaccines, except for the COVID-19 vaccine, “which is still in the trial stage and still being distributed under the EUA.”

[12] C.O. says that vaccinated people are getting sick at an “alarming” rate while the unvaccinated number of people getting sick is remaining steady. He says that vaccinated people are becoming sicker, hospitalized more and faster than the unvaccinated which demonstrates that vaccinations are not working.

[13] C.O. believes that it is against human rights to “force” this vaccine on people and that health agencies are discriminating between vaccinated and unvaccinated people.

[14] C.O. attaches to his affidavit “Top 10 Things You Should Know About COVID-19 Shots” distributed by Vaccine Choice Canada which is full of misstatements and mistruths. He attaches as well, a document alleging that Pfizer did not test its vaccines and that the deaths from the vaccines are being suppressed.

[15] The third attachment to C.O.’s affidavit is a Canadian COVID-19 vaccine study found at medRxiv.com titled: Effectiveness of COVID-19 vaccines against Omicron or Delta infection. The Ontario pre-print study, which has not yet been peer reviewed, suggested that any three doses of mRNA COVID-19 vaccines were just 37% effective against Omicron infection, while two doses actually showed negative protection.

[16] The Canadian Broadcasting Corporation “CBC” investigated and found that the findings were later found to have been influenced by behavioural and methodological issues, such as the timing of the observational study, the way in which vaccine passports altered individual risk and changes in access to COVID-19 testing. Dr. Jeff Kwong, the study’s lead author and an epidemiologist and senior scientist at the Institute for Clinical Evaluative Sciences in Toronto, is quoted as saying that the results are currently being updated with additional data that showed completely different results. Dr. Kwong told CBC news last week:

We’re in the process of adding two more weeks of data and it looks like there’s no core negative VE (vaccine effectiveness.) Our results are now more in line with the data from U.K. where it’s lower, for sure, compared to Delta, but never getting to negative.

[17] While I am not relying on reporting from the CBC in coming to the conclusion that this particular study is unreliable I do find that there is always a risk in relying upon early stage preprint, non-peer reviewed studies.

[18] Recent case law in connection with vaccinations in general and COVID-19 in particular, stand for the proposition that the Court is permitted to take judicial notice of the ongoing pandemic and the safety of mRNA vaccines. Saint-Phard v. Saint-Phard, 2021 ONSC 6910; OMS v. KJS, 2021 SKQB 243 and TRB v. KWPB, 2021 ABQB 997. In these cases the courts were presented with significant documentation from publicly accessible government sources to take judicial notice of facts relating to COVID-19 and the PFIzer-BioNTech vaccine.

[19] The information from Ontario Health suggests that there are indeed vaccinated people contracting the Omicron version of COVID-19. Data from the Public Health Agency of Canada found that Canadians with two doses of the vaccine were 19 times less likely to be hospitalized that those unvaccinated and a booster provides even more protection.

[20] On January 14, 2022 the Chief Public Health Officer of Canada released a statement which read in part:

Immunization for all those who are eligible, but are yet to receive their primary series, remains a top priority. Although uncertainties remain, evidence suggests that while two doses of vaccine may not provide good protection against getting infected, a two-dose primary series still provides good protection against hospitalisation. Encouragingly, the latest evidence indicates that a third dose improves protection against both infection and hospitalisation due to the Omicron variant.

[21] In TRB v. KWPB Justice Kubik at paragraph 12 and 13 said:

Since early 2020, Canadians have been living in the midst of a global pandemic caused by the SARS-CoV-2 virus. I take judicial notice of this fact which is so notorious and indisputable as to not require proof. I also take judicial notice of the regulatory approvals and directives issued by the various governments and agencies in Canada and Alberta. I accept that as a consequence of the pandemic, Alberta has, from time to time, invoked a state of public health emergency during which the Chief Medical Officer of Health has issued directives. At the time of this decision, Alberta is in a state of public health emergency, declared on September 15, 2021. On September 16, 2021 Health Canada approved the Pfizer-BioNTech vaccine for use in children aged 12-17, and on November 19, 2021, approved the same vaccination (with an adjusted dosage) for use in children aged 5-11. By virtue of its approval by the regulatory authority responsible for testing and approval of drugs for use in Canada, the vaccine is not experimental. It is deemed safe and effective for use in children aged 5-11, and 12-17.

Justice Kubik’s findings in reference to the vaccine for use in children reflects the advice of Public Health Canada, which advice has been adopted by Ontario Health.

Can T.O. decide whether or not to have the COVID-19 vaccination?

[22] C.O. says that the Health Act Consent Act 1996, S.O. 1996 C. 2, Sched. A mandates that T.O. is to have a say in whether he is vaccinated. He says that it is T.O.’s choice to wait to have the vaccination and that he supports T.O. and his decisions. C.O. seeks asks a Voice of the Child Report to put T.O.’s views and preferences regarding the vaccine before the court.

[23] L.M. says that in the past T.O. has expressed his desire to receive the COVID-19 vaccine. However, recently when T.O. returns from parenting time with C.O. he says that he no longer wants to receive the vaccine. T.O. told L.M. that C.O. wanted him to speak with Dr. Martha Fulford about the COVID-19 vaccine. Dr. Fulford is an associate professor at McMaster University. She is not T.O.’s doctor. T.O. is understandably upset about the different messages he is receiving about the vaccine from L.M. and C.O..

[24] The Health Care Consent Act contains the following:

There is no minimum age for giving consent. Health care practitioners and evaluators should use professional judgment, taking into account the circumstances and the client’s condition, to determine whether the young client has the capacity to understand and appreciate the information relevant to making the decision.

[25] While C.O. cited the Health Care Consent Act in support of his position, the Children’s Law Reform Act specifically says that a child’s views and preferences, giving dure weight to the child’s age and maturity, are a factor in determining a child’s best interests.

[26] I find that T.O. is receiving mixed messages about the risks and benefits of the COVID-19 vaccine and that at 10 years of age he is unable to make an informed choice. Given the contradictory information that he is receiving, I find that a Voice of the Child Report would be of no assistance to the court, and would only delay this matter unnecessarily.

[27] As the court found in OMS v EJS, 2021 SKQB 243, I find that C.O.’s views have been heavily influenced by the father and as such he is not making an informed choice.

[28] Taking all of these considerations into account, I find that it is in T’s best interests that L.M. be given sole decision-making authority on the issue of T.O.’s COVID-19 vaccinations. C.O. is not to tell or suggest to T.O. directly or indirectly that the COVID-19 vaccines are untested, unsafe, ineffective or that his particularly at risk from them. He shall not permit any other person to have any such discussions, or to make any suggestion to T.O., directly or indirectly. He is prohibited from showing the child social medica sites, websites, other online information, literature or any other material that calls into question the safety or efficacy of the COVID-19 vaccines or to permit any other person to do so. C.O. shall not involve any medical doctor other than Dr. Aaron Smith in this aspect of T.O.’s care.

[29] L.M., as the successful party on the motion, seeks costs on a full indemnity basis from December 7, 2021 on the basis that she tried to discuss the issue of vaccination for T.O. with C.O. for months. The documentation appended to her affidavit supports this. C.O. was advised that if he did not consent to the vaccine for T.O. L.M. would be seeking all of her costs.

[30] Ms. Simionati has submitted a costs outline showing $9,720.06 on a partial indemnity rate and an actual rate of $13,885.44. she shows two hourly rates which I assume reflects an increase for the new calendar year. While her current rate of $297.60 is reasonable for a lawyer called to the bar in 2011, I find that some of the time entries are on the high side. Therefore I order costs of $8,500 all-inclusive payable by C.O. forthwith.

JUSTICE VAN MELLE

DATE: January 17, 2022