Court File and Parties
LINDSAY COURT FILE NO.: FC 322/16 DATE: 2022-08-05 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M.M., Applicant AND: W.A.K., Respondent
BEFORE: J.C. Corkery J.
COUNSEL: Wylita Clark for the Applicant Jarret N. Johnston for the Respondent
HEARD: February 25, 2022
Endorsement
1The respondent father brings this motion seeking an order directing that the applicant mother ensure that their daughter is vaccinated against COVID-19 and that she receives any further and additional scheduled vaccinations in accordance with provincial recommendations, failing which the father shall be permitted to return this matter to seek sole decision-making authority over all aspects of the child’s medical care.
2The applicant mother is not against the COVID-19 vaccine but is not prepared to force her daughter to be vaccinated against her will.
3The respondent father seeks additional relief: police enforcement of the parenting provisions of the order made by McLeod J. on March 29th, 2017, and a finding of contempt against the applicant mother for failing to comply with the March 29th, 2017, order.
4A notice of contempt motion was not served on the applicant mother by special service as required by Rule 6(4). The motion is dismissed with respect to the contempt.
Background
5The parties married in October 2010. They separated on November 7, 2016. They have one child, a twelve-year-old daughter, S.
6Pursuant to a consent order made by McLeod J. on March 29th, 2017, the parties have joint custody with shared week-about parenting. However, since August 2021, S. has refused to see her father.
7On October 31, 2019, Mr. David Tonge and Dr. Gabriella Szanto of Kawartha Family Court Assessment Service completed a Children’s Law Reform Act section 30 assessment. They recommended the continuation of joint custody (parallel parenting) and the shared 50/50 week-about parenting.
8S. was nine years old at the time she was interviewed for the s. 30 assessment. She explained how she has felt being exposed to her parents' fighting, how she felt caught in the middle between her parents with one parent saying bad things about the other. She felt like she was in the middle of a pizza with her parents each pulling her to be on their side of the pizza. She expressed how she wanted to be a normal nine-year-old girl and that nine-year-old girls do not feel that they are in the middle of a pizza having to pick which side they are on. She wanted her parents to stop fighting. She felt she had to choose one parent over another but did not want to pick sides.
9On May 14, 2021, Mr. Tonge completed a Voice of the Child report. S., who was then eleven, said she wanted her parents to follow the rules so that she did not feel caught in the middle of the pizza. She wanted to live primarily with her mother rather than the week-about schedule provided for in the March 29, 2017, order. Mr. Tonge stated that S.'s views were not the result of parental influence.
10This motion was first before the court on January 19, 2022. On consent, Justice Ingram ordered that the parties meet with David Tonge for conflict management. The order stated “Mr Tonge … is requested not to give a medical opinion on the pros and cons of vaccination, but rather on presence or absence of parental influence and the understanding, capacity and maturity of this child to make a decision on vaccination within the family dynamics.”
11Unfortunately, Mr. Tonge was not able to provide the opinion requested. By letter to the parties dated February 22, 2022, Mr. Tonge stated that he understood he was requested and agreed to assist S. in reconnecting with her father and not to undertake an assessment of parental influence. He was unaware of the vaccination issue until it was raised by S.. Mr. Tonge could not comment on the “presence or absence of parental influence and the understanding, capacity and maturity of this child to make a decision” as he was not asked to, nor did he agree to conduct such an assessment.
12Mr. Tonge reported that the efforts toward reconciliation between S. and her father were unsuccessful.
Evidence
13I received and have considered the following evidence:
Father’s affidavits dated January 11, January 17, and February 2, 2022;
Mother’s affidavits dated January 13 and February 8, 2022.
14Included in the exhibits to the affidavits were:
An email from S. to father dated August 23, 2021;
An email from S. to mother’s lawyer dated November 9, 2021;
An email from S. to father dated December 22, 2021;
A handwritten note by S. dated January 6, 2022;
A handwritten note by S. dated January 11, 2022;
A note from Dr. Jane Clay dated December 16, 2021.
Positions of the parties
15The respondent father's position is that it is presumptively in S.’s best interest that she be vaccinated against the COVID-19 virus and mother has provided no evidence to rebut this presumption. The apparent objections of S. do not stem from any sound medical evidence or opinion. Mother has improperly left the decision up to S. who is not old enough, mature enough, or knowledgeable enough to make such a major health decision. Thus, it falls on this court to step in and protect the child’s best interests, to make sure that she receives her COVID-19 vaccination to protect her and to protect her classmates, her friends, her neighbours, and family.
16Given S.’s objection to being vaccinated, father submits “Let the judge be the bad guy. Let the court be the bad guy.” “Mom and dad can step back and say, ‘S., you have to be vaccinated. It's what everyone's doing right now. It's keeping everyone in our community safe. It's keeping you safe. The judge has ordered that you be vaccinated.’ Then mom's not the bad guy; dad's not the bad guy.”
17The applicant mother does not wish to force S. to be vaccinated against her will. She has offered several times to book a vaccine appointment for S. but S. has told her she is not interested and to stop asking. Given that S. is already estranged from her father, mother believes that forcing S. to be vaccinated would only compound her problems. Mother strongly disagrees with father’s suggestion that the court should be “the bad guy” and order that S. be vaccinated.
S.’s emails and notes
18By email dated August 23, 2021, S. tells her father she is not coming back because she does not want to, she does not feel safe with him and his temper, and other reasons.
19By email dated November 9, 2021, S. tells mother’s lawyer she does not want her COVID-19 vaccine and nothing will change her mind.
20By email to her father dated December 22, 2021, S. states “I thought I had made this perfectly clear, but it seems I did not so let me say it again. I do not want anything to do with you. I will not be showing up for Christmas. I do not want my Covid-19 vaccine. Do not contact me again.”
21In a two-page note dated January 5, 2022, S. states she does not want to receive her COVID-19 vaccine as it has had negative effects on children. She says she is mature enough to make her own decision and her mother has asked her countless times if she wanted the vaccine or if she has changed her views. S. says she has read many articles “based on” the effects of the vaccine on children. She states, “If you still deem me as ‘not mature enough’ you should be able to tell my level of maturity by how I write. This is me talking, not my mother. This is my final decision. I do not want the vaccine. I hope my wishes will be respected.”
22S. provides some of her reasons for not wanting the vaccine. People who have received both shots and the booster are still getting COVID-19. Nearly half the people who are getting COVID-19 have the vaccine. She has heard from friends that their doctors are advising that children not get vaccinated. She has heard about negative effects adults have experienced from the vaccine: hives, rashes, heart problems, menstrual issues.
23In a second two-page note dated January 11, 2022, S. expresses her dislike for her father and her opposition to his attempts to contact her and control her. She wants her opinion on the COVID-19 vaccine respected and thinks she should be able to make her own choices regarding her health care, not her father. She provides examples of her father’s behaviour that she believes are signs of psychopathy. She thinks that she needs her own children’s lawyer so that her voice can be properly heard.
Dr. Clay
24In response to a request by father for an opinion, S.’s family doctor provided a note dated December 6, 2022, addressed “To whom it may concern”, stating: “This note will serve to confirm that it is highly suggested that [S.] be vaccinated with the Covid-19 vaccination. She has no known contraindications for the vaccine.”
Analysis
25Pursuant to s. 16.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), this court has jurisdiction to make an order granting a parent or parents decision-making responsibility for a child for a definite or indefinite period and subject to any terms, conditions and restrictions that it considers appropriate:
Parenting order
16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by
(a) either or both spouses;
Interim order
(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.
Contents of parenting order
(4) The court may, in the order,
(b) allocate decision-making responsibility in accordance with section 16.3;
(d) provide for any other matter that the court considers appropriate.
Terms and conditions
(6) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions, and restrictions that it considers appropriate.
26In this case there is an existing temporary order from 2017 providing the parties with joint “custody” (now “decision making”). Father now seeks an order requiring that mother ensure that their daughter receives her vaccinations against COVID-19. He is, in effect, seeking to vary that order to add a condition to the exercising of their joint decision making: that mother ensure S. is vaccinated.
27Section 17 of the Divorce Act, states:
Variation order
17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,
(b) a parenting order or any provision of one, on application by
(i) either or both former spouses,
(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).
28The question then is: has there been a change in the circumstances of the child since the making of the 2017 consent order such that it is now in her best interest that an order be made that her mother ensure she is vaccinated against COVID-19?
29In deciding any parenting order, s. 16 of the Divorce Act provides that the court shall take into consideration only the best interests of the child having regard to the factors referred to in subsection (3), and giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
30A parenting order cannot be made because it may be in another’s interest or in the interests of society. A child cannot be ordered to be vaccinated to protect others.
31The respondent father submits that I may and should take judicial notice of the fact that the COVID-19 vaccines are proven safe and effective.
32In R. v. J.M., 2021 ONCA 150, Brown J.A. summarized the substantive principles applicable to judicial review:
[31] The basic principles regarding the substantive dimension of judicial notice can be summarized as follows:
(i) Judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court;
(ii) Judicial notice involves the acceptance of a fact or state of affairs without proof;
(iii) Facts judicially noticed are not proved by evidence under oath; nor are they tested by cross-examination;
(iv) Since judicial notice dispenses with the need for proof of facts, the threshold for judicial notice is strict; and
(v) Judicial notice applies to two kinds of facts: (a) those that are so notorious or "accepted", either generally or within a particular community, as not to be the subject of dispute among reasonable persons; and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy. The sources may include both large bodies of scientific literature and jurisprudence.
[32] However, as the editors of McWilliams helpfully point out, at §26.10, the jurisprudence discloses that the issue is somewhat more nuanced as the expression "judicial notice" captures several different forms of judicial notice:
(i) Tacit or informal judicial notice, which involves the trier of fact drawing on common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial;
(ii) Express judicial notice, which concerns the notice of specific facts of the notorious and indisputable variety; and
(iii) Contextual judicial notice that strives, at a generalized level, to provide context, background or a frame of reference to assist the trier of a fact in making case-specific findings of fact: To this category of "social framework facts" others would add "legislative facts", which do not so much involve taking notice of specific facts but concern the consideration of policy factors or facts relevant to judicial reasoning when the judge embarks upon the path of making or changing the law. Whatever may be the breadth of proper judicial notice in this category, a court must refrain from taking judicial notice of social phenomena unless they are not the subject of reasonable dispute for the particular purpose for which they are to be used.
[33] The current paradigm that judges must use to determine whether they may take judicial notice locates facts along a spectrum that runs from those that are central to or dispositive of an issue, at one end, to those that "merely paint the background to a specific issue." The closer the facts lie to the dispositive end of the spectrum, the more pressing it is to meet the two criteria of notoriety or immediate demonstrability. [Citations omitted.]
33In a very recent decision, Inglis v Inglis, 2022 SKCA 82, the Saskatchewan Court of Appeal provides a thorough review of judicial notice taken in Canadian cases involving the COVID-19 vaccination of children:
[45] Courts across Canada, including in Saskatchewan, have made various findings with regard to the scope of judicial notice related to the pandemic, the risk it poses to children, and the safety and efficacy of the vaccines. Several courts have taken judicial notice of the fact that it can be presumed that being vaccinated against COVID-19 is in the best interests of children, unless there is a compelling reason not to do so: Dyquiangco Jr. v Tipay, 2022 ONSC 1441 at para 24 [Tipay]; Steiner v Mazzotta, 2022 BCSC 827 at para 5 [Steiner]; Rashid v Avanesov, 2022 ONSC 3401 (WL) at para 85; Davies v Todd, 2022 ONCJ 178 at para 44 [Davies]; and G.W. v C.M., 2022 BCPC 29 at para 5 [G.W.].
[46] Judicial notice has been taken of the fact that contracting COVID-19 poses many serious and significant health risks to both children and adults: OMS at para 112; Manzon v Carruthers, 2020 ONSC 6511 at para 18; Rouse v Howard, 2022 ONCJ 23 at para 13; T.K. v J.W., 2022 BCPC 16 at para 11 [T.K.]; K.K. v M.A., 2022 NBQB 30 at para 109 [K.K.]; P.R. v S.R., 2022 PESC 7 at para 54, 68 RFL (8th) 328 [P.R.]; and K.M.S. v K.B.S., 2022 SKQB 57 at paras 13 and 18 [K.M.S.].
[47] Courts have taken judicial notice of the fact that the vaccine is safe: OMS at para 113; K.M.S. at paras 13 and 18; I.S. v J.W., 2021 ONSC 1194 at paras 182–183 [I.S.]; A.B.S. v S.S., 2022 ONSC 1368 at para 4 [A.B.S.]; Warren v Charlton, 2022 ONSC 1088 at para 9, 70 RFL (8th) 388 [Warren]; Campbell v Heffern, 2021 ONSC 5870 at para 10, 68 RFL (8th) 417 [Campbell]; J.F.P. v J.A.G., 2022 BCPC 44 at para 19; Saint-Phard v Saint-Phard, 2021 ONSC 6910 at para 7, 63 RFL (8th) 92 [Saint-Phard]; L.M. v C.O., 2022 ONSC 394 at para 18; G.W. at para 5; K.K. at para 109; P.R. at para 54; and Davies at para 43.
[48] Furthermore, courts have taken judicial notice of the fact that the COVID-19 vaccine is effective: Sembaliuk v Sembaliuk, 2022 ABQB 62 at para 16; A.M. v C.D., 2022 ONSC 1516 at para 28; I.S. at paras 182-183; A.B.S. at para 4; Steiner at para 5; Campbell at para 10; Saint-Phard at para 7; K.K. at para 109; G.W. at para 5; P.R. at para 54; Tipay at para 17; and Davies at para 37. Some courts have taken judicial notice that the specific Pfizer vaccine is safe and effective for both children and adults: OMS at para 113; T.K. at para 11; Campbell at para 10; and K.M.S. at paras 13 and 18. There are reported cases in which the courts have taken judicial notice of the approval of the Pfizer vaccine by health authorities: OMS at para 113 and K.M.S. at para 18.
[49] Additionally, judicial notice has been taken of the fact that the harm to a child from contracting a vaccine-preventable illness may include death: B.C.J.B. v E.-R.R.R., 2020 ONCJ 438 at para 187, 47 RFL (8th) 165 [B.C.J.B.], aff’d 2021 ONSC 6294; Moore v Moore, 2022 ONSC 2378 at para 26; I.S. at paras 182–183; and P.R. at para 54. At least one court has taken judicial notice of the fact that COVID-19 has a low mortality rate, especially in children: Warren at para 9.
[50] There is one reported case where judicial notice has been taken of the risks of the COVID‑19 vaccine: P.R. at para 54. In that case, the court took judicial notice of the fact that vaccination comes with a risk, just as all medical treatment does, but also took judicial notice of the fact that the vaccine is safe and effective.
[51] On the other side of this trend, there are also cases in which the courts were not prepared to take judicial notice of the efficacy and safety of COVID-19 vaccines: J.N. v C.G., 2022 ONSC 1198 at para 81, 64 RFL (8th) 277; R.S.P. v H.L.C., 2021 ONSC 8362 at paras 56–58; and C.M. v S.L.S., 2022 ONCJ 206 at para 112.
34In the cases cited in Inglis and other recent cases, judicial notice is taken of facts regarding COVID-19 and the COVID-19 vaccine based on representations by government public health authorities and the judicial notice taken in other cases.
35In Tipay, for example, Jarvis J. considers several cases, including A.C. v. L.L.:
[17] In A.C. v. L.L. [2021 ONSC 6530], a case involving in-person schooling and child vaccination, Charney J. observed that the safety and efficacy of the COVID-19 vaccine has been endorsed by all governments and public health agencies, in that case the Ontario Ministry of Health, Toronto Public Health and the Toronto District School Board. [Ibid, at paras 23-24.]
[28]…The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated.
[29] This analysis and conclusion is consistent with the approach taken by other courts addressing vaccinations prior to COVID-19: C.M.G. v. D.W.S., 2015 ONSC 2201, at para. 105; A.P. v. L.K., at para. 276; B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, at para. 180, aff’d B.C.J.B. v. E.-R.R.R., 2021 ONSC 6294, at paras. 49-53; Chambers v. Klapacz, 2020 ONSC 2717, at para. 7.
[30]…Given the government statements above, there can be no dispute that, as a general presumption, it is in the best interest of eligible children to get vaccinated before they attend school in person. [6]
36After reviewing the judicial notice taken in several other cases and information from Ontario Health, the Public Health Agency of Canada and Health Canada Jarvis J. states:
[22] So what are the notorious or “accepted” facts which this Court is prepared to accept and which cannot be the subject of dispute among reasonable persons? And represent our collective lived experience. They are:
(a) The Covid virus kills;
(b) The virus is transmissible;
(c) The virus can, and has, mutated;
(d) Variants of the virus are more transmissible than others;
(e) Asymptomatic carriers of the virus can infect other people;
(f) Symptoms of the virus may vary according to age, health and co-morbidity factors;
(g) The virus does not discriminate;
(h) There is no known immunity to contracting the virus;
(i) There is no verifiable evidence of natural immunity to contracting the virus, or any mutation, a second or more times;
(j) Vaccines work;
(k) Vaccines are generally safe and have a low risk of harmful effects, especially in children [R. v. J.M., 2021 ONCA 150];
(l) Vaccines do not prevent infection, reinfection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes [Ibid, at para. 31(v)].
[23] This is not “fake science”. It is not “fake medicine”. Whether there is a drug company conspiracy callously or negligently promoting unsafe medicine (the “lie”) in collusion with federal and provincial authorities this Court leaves to another day and to those who think Elvis is alive. He isn’t. He left the building decades ago.
37The issue before the court in taking judicial notice of scientific facts is not assessing whether the science is “fake science”, but whether scientific facts that would normally require expert opinion to be admitted, may be judicially noticed without proof. This issue was recently addressed by Breithaupt Smith J. in R.S.P. v. H.L.C. 2021 ONSC 8362 in which she provided what has been described as a timely warning (J.N. v. C.G., 2022 ONSC 1198 at para 65):
[56] Unfortunately, the recent case of Saint-Phard v. Saint-Phard [2021 ONSC 6910] does not assist in navigating medical treatment for minors because of its fatal flaw regarding judicial notice. In that case, the Court wrote: "Facts may be found by taking judicial notice. [citations omitted] Each of these cases include findings related to the safety and efficacy of publicly funded vaccines on the basis of judicial notice." This shows a misunderstanding of the purpose of taking judicial notice, which, according to the Supreme Court's definitive decision in R. v. Find 2001 SCC 32 (at paragraph 48) is intended to avoid unnecessary litigation over facts that are:
...clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.
[57] Judicial notice of the facts contained in government publications are "capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy." Such facts could include, for example, that there are two time zones in the Province of Ontario or that there were two deaths and 39 Intensive Care Unit admissions among Ontario children from January 15, 2020, to June 30, 2021 connected with SARS-CoV-2.
[58] Judicial notice cannot be taken of expert opinion evidence. Chief Justice McLachlin for the unanimous Court in R. v. Find underscored that: "Expert evidence is by definition neither notorious nor capable of immediate and accurate demonstration. This is why it must be proved through an expert whose qualifications are accepted by the court and who is available for cross-examination” (at paragraph 49).
[59] The acceptance of government-issued statements as evidence renders the facts published by the government agency (presumed to be a source of indisputable accuracy) admissible. Public Health Ontario's statement that two children died of SARS-CoV-2 between January 15, 2020 and June 30, 2021 is therefore admissible as fact. Public Health Ontario's publicly accessible document is admissible as proof of the truth of its contents. In contrast, a statement concerning the safety and efficacy of any medication in the prevention or treatment of any condition is, in and of itself, an opinion. Judicial notice cannot be taken of the opinion of any expert or government official that a medical treatment is "safe and effective." As judicial notice cannot be taken of expert opinion evidence, it is illogical to reason, as was done at paragraph 12 of Saint-Phard, that an expert's "objections raised against the vaccine were directly countered by the judicial notice taken that the vaccine is safe and effective and provides beneficial protection against the virus to those in this age group." To compound the problem, this statement draws a conclusion that is overbroad (i.e. that the vaccine provides beneficial protection to all children and ought therefore to be received by the child in question) without having considered the comparative analysis of the factors in A.C. v. Manitoba 2009 SCC 30. As a result, reliance upon this reasoning would be misguided.
38I agree with Breithaupt Smith J.
39I also share the concerns expressed by Pazaratz J. with respect to the court taking judicial notice of government information. In a recent case, similar to this case, he makes several critical observations:
[67] Why should we be so reluctant to take judicial notice that the government is always right?
a. Did the Motherisk inquiry teach us nothing about blind deference to “experts”? Thousands of child protection cases were tainted – and lives potentially ruined – because year after year courts routinely accepted and acted upon substance abuse testing which turned out to be incompetent.
b. What about the Residential School system? For decades the government assured us that taking Indigenous children away – and being wilfully blind to their abuse – was the right thing to do. We’re still finding children’s bodies.
c. How about sterilizing Eskimo women? The same thing. The government knew best.
d. Japanese and Chinese internment camps during World War Two? The government told us it was an emergency and had to be done. Emergencies can be used by governments to justify a lot of things that later turn out to be wrong.
e. Few people remember Thalidomide. It was an experimental drug approved by Canada and countries throughout the world in the late 1950’s. It was supposed to treat cancer and some skin conditions. Instead it caused thousands of birth defects and dead babies before it was withdrawn from the market. But for a period of time government experts said it was perfectly safe.
f. On social issues the government has fared no better. For more than a century, courts took judicial notice of the fact that it was ridiculous to think two people of the same sex could get married. At any given moment, how many active complaints are before the courts across the Country, alleging government breaches of Charter Rights? These are vitally important debates which need to be fully canvassed.
g. The list of grievous government mistakes and miscalculations is both endless and notorious. Catching and correcting those mistakes is one of the most important functions of an independent judiciary.
h. And throughout history, the people who held government to account have always been regarded as heroes – not subversives.
i. When our government serially pays out billions of dollars to apologize for unthinkable historic violations of human rights and security – how can we possibly presume that today’s government “experts” are infallible?
j. Nobody is infallible.
k. And nobody who controls other people’s lives – children’s lives – should be beyond scrutiny, or impervious to review.
40The science relating to COVID-19 is developing. The “facts” are changing:
[68] As well, how can you take judicial notice of a moving target?
a. During the past two years of the pandemic, governments around the world – and within Canada – have constantly changed their health directives about what we should or shouldn’t be doing. What works and what doesn’t.
b. And the changes and uncertainty are accelerating with each passing newscast. Not a day goes by that we don’t hear about COVID policies changing and restrictions being lifted.
c. Government experts sound so sure of themselves in recommending the current vaccines.
d. But they were equally sure when they told us to line up for AstraZeneca. Now they don’t even mention that word.
e. Even Pfizer has changed its mind. It recently approved vaccines for kids under five. Then more recently the company changed its mind.
f. None of this is meant as a criticism. Everyone is doing their best with a new and constantly evolving health crisis.
g. But how can judges take judicial notice of “facts” where there’s no consensus or consistency?
41The implications of a vaccine order including future doses must be considered:
[69] And then we have the issue of delegation.
a. As with almost all these vaccine motions, the father asks for an order that his children receive the current COVID vaccine “and all recommended booster vaccines.”
b. Which recommended booster vaccines?
c. When?
d. How many?
e. What will they contain?
f. Who will decide?
g. Will there be any opportunity for future judicial oversight, or will this simply be a forever commitment controlled by the government?
h. What are the health implications if children receive the current vaccine, but skip some or all of the boosters?
i. What future COVID variant will the boosters guard against? We already seem to be using the Delta vaccine to fight the Omicron variant. Will future boosters continue our pattern of using old medicine to fight new viruses?
j. These are all valid questions, requiring answers which are currently unavailable.
k. It is improper for the court to pre-determine future medical treatments at unknown times, in unknown circumstances, with decision making authority delegated to unknown persons.
l. If you can’t take judicial notice of the present, you can’t take judicial notice of the future.
42I am not prepared to take judicial notice of any government information with respect to COVID-19 or the COVID-19 vaccines.
43Even if I were to take judicial notice of the “safety” and “efficacy” of the vaccine, I still have no basis for assessing what that means for this child. I must still determine how safe, how efficacious the vaccine is for this child. Does safe mean there are no side effects? Is the vaccine effective in protecting her from contracting COVID-19, from spreading it, from dying from it, from severity of symptoms? As with informed consent, there are many factors that must be carefully considered in weighing risks and benefits.
44The facts about COVID-19 and the vaccines that our courts have taken judicial notice of are facts that that lie at the dispositive end of the spectrum where it is most pressing to meet the criteria of notoriety or immediate demonstrability (R. v. J.M.). I cannot find that these scientific facts are notorious or that the government is a source of indisputable accuracy.
45Doctor Clay has provided a note stating that “it is highly suggested that [S.] be vaccinated with the Covid-19 vaccination”. As worded, the statement appears to be a recitation of public health policy. It is not clear that this is even the doctor’s own recommendation. Regardless, the information contained in the note is an expert’s opinion and it is inadmissible in the manner presented, as an exhibit attached to an affidavit.
46Without taking judicial notice and without admitting the doctor’s note there is no evidence before me as to assess the risks, benefits, safety or efficacy of the COVID-19 vaccines. Absent judicial notice, there is certainly no presumption that it is in a child’s best interest that she be vaccinated.
47Among the factors to be considered in ss. 16(3) of the Divorce Act is:
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained
48S. has clearly expressed her views and preferences regarding being vaccinated against COVID-19 in the emails and notes she has written.
49I am unable to determine on this motion with the limited material before me the extent to which, if at all, the views and preferences that S. holds may have been influenced by a parent. However, I am satisfied that the emails and notes were written by S. and I am satisfied that she is able to reasonably form her own opinions.
50I make no finding as to the validity or truth of views held by S. that inform her preferences. It would appear that some, if not all, of the emails and notes were prompted by information regarding the litigation that was improperly shared by mother.
51I find S. to be quite mature in her ability to articulate and communicate. She is clear in her reasoning. This is supported by her positive report cards.
52In Grade 4 (June, 2019) her marks are all in the “B” and “A” range and her learning skills and work habits are reported as “E” (Excellent).
53In grade 7 (March, 2021) S’s subject marks are equally recorded as “Progressing Well” and “Progressing Very Well”. All of her learning skills and work habits are all reported as “E” (Excellent). Describing S.’s strengths, her teacher reports:
[S.] has shown that she understood the different writing forms, reading comprehension strategies, and conventions of writing. She expertly used her knowledge of the forms of text and elements of style to successfully write her Ghost story narrative, recount, and reading questions for ‘Skeleton creek'. [S.] confidently generates ideas when beginning the writing process, and gathered and organized her ideas using graphic organizers. [S.] has expertly used the conventions of writing (grammar, spelling, punctuation) and applies it in all written, oral and media forms this year.
54S. is capable of expressing her own views and preferences without being influenced. The May 14, 2021 Voice of the Child report stated that S. was “verbal and responsive”. Her preferences (regarding parenting time) “did not present as being the result of undue parental influence, but rather reflective of her experiences and her wishes. [S.] was wanting her parents to hear her voice. [S.’s] wishes and stated preferences were consistently stated during both individual sessions.
55Having regard to S’s age and her maturity, I am able to ascertain her views and preferences. She is strongly opposed to being vaccinated against COVID-19 and wishes her view to be respected.
56Considering S.’s views and preferences and ss. 16(2) of the Divorce Act, I find that requiring her to be vaccinated against her will would not respect her “physical, emotional and psychological safety, security and well-being” but would, in fact, put her at risk of serious emotional and psychological harm.
57Similarly, I reject the suggestion by father that the court should be the “bad guy” which would only serve to aggravate to the harm done by ordering a vaccination against S.’s will, fostering resentment toward the court and its process.
58I am mindful in considering S’s best interests that an order that mother ensure she is vaccinated would have irreversible consequences, if S. was vaccinated as a result. One cannot be unvaccinated. In that respect, it is a final order.
59Finally, I am satisfied that S. is a “mature minor” as explained by Abella J. in A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at para 47. S. is capable with respect to treatment pursuant to s. 4 of the Health Care Consent Act, 1996, SO 1996, c 2, Sch A. She is mature enough to accept or refuse treatment.
60It is not in S’s best interest that the 2017 order be varied to add a condition that her mother ensure that she is vaccinated.
61Considering S’s views and preferences and the unsuccessful efforts at reconciliation between father and S, assisted by Mr. Tongue, I am not prepared to order enforcement of the parenting provisions of Justice McLeod's March 29th, 2017, order.
62The respondent father’s motion is dismissed.
63If the parties cannot agree on costs, they may file written submissions (maximum of ten pages). Mother shall file on or before September 2, 2022, and father on or before September 16, 2022. Any reply by mother shall be filed on or before September 23, 2022 (maximum of two pages).
J.C. Corkery J.
Date: August 5, 2022
