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COVID - Vaccination (2). S.E.T. v. J.W.T
In S.E.T. v. J.W.T (Div Court, 2023) the Divisional Court considered (and allowed) a mother's family law appeal that resulted in her being able to vaccinate the children against COVID, here where the lower court erred in allocating the onus of prove on the appellant:[3] The motion judge rendered his decision after the Court of Appeal released its decision in J.N. v. C.G., 2023 ONCA 77, 477 D.L.R. (4th) 699. In that case, the Court of Appeal set out principles to apply in cases of pediatric vaccination against COVID-19. The relevant principles relate to judicial notice of regulatory approval of the vaccine, the importance of relying on admissible evidence that meets the criteria for expert evidence, and the onus to be applied when one party objects to vaccination. The motion judge, however, did not have the benefit of this court’s decisions in two cases applying the principles from J.N. v. C.G. to motions for temporary relief.1 On this appeal, the mother submits that the motion judge erred by failing to follow the principles set out in the decisions of the Court of Appeal and this court. ...
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[25] In a related argument, the father submits that this court should not interfere with the motion judge’s deferral of the issue to trial. In his submission, on an interim motion, the mother had the onus of convincing the motion judge that the status quo regarding decision-making should be varied pending trial. In the father’s submission, she failed to persuade the motion judge that it was in the children’s best interests to do so.
[26] The problem with this submission, and with the distinction drawn by the motion judge, is that the onus was not on the mother. J.N. v. C.G. puts the onus on the party objecting to vaccination to demonstrate why public health recommendation in favour of pediatric vaccination should not be followed. The Court of Appeal found that where one party seeks to have a child vaccinated in accordance with Health Canada approvals and recommendations, the onus is on the objecting party to show why the child should not receive the vaccination.
[27] This onus applies equally to prevent delaying vaccination in the context of an interim motion. In A.V. v. C.V., at para. 21, this court found, in the context of an interim motion, that compelling reasons would be required to disregard current regulatory approval and recommendations to delay vaccination. The court noted that, as emphasized in J.N. v. C.G., COVID-19 is dangerous. Given that regulatory approval provides a strong indicator of safety and effectiveness, “in the absence of admissible evidence and compelling reasons to the contrary, current health recommendations should be followed”: at para. 23. The court also noted that, in light of the weight of the existing case law, the party opposing vaccination should have known that fighting vaccination in the face of public health recommendations would be an “uphill battle.” This should have alerted the opposing party of the need to submit admissible evidence on the motion in support of their position.
[28] Here, the motion judge took the opposite approach. He did not put the onus on the objecting party. He stated instead that he did not have enough evidence before him to grant the mother decision-making authority regarding vaccinations. He found that, in the absence of the parties reaching a consensus based on further research and data, the issue should be decided at trial.
[29] In coming to this conclusion, the motion judge did not point to any compelling reasons that would justify a delay in the particular circumstances of the case. His findings that the children were healthy and happy and had had COVID-19 without serious symptoms did not constitute compelling evidence. There was no expert evidence recommending against vaccination in general or for these particular children. Indeed, the children’s pediatrician had submitted a letter recommending vaccination based on public health guidelines. The motion judge found the letter to be inadmissible because it did not address anything specific to the children, but there was no opposing expert evidence recommending against vaccination. In short, once the onus was correctly placed on the father to justify why vaccination should be delayed, there were no compelling circumstances to delay it.
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What remedy should be ordered?
[37] In J.N. v. C.G., the Court of Appeal granted decision-making authority to the party seeking to be able to vaccinate the children rather than remitting the matter to the Superior Court. I find it appropriate to take the same approach to remedy here. Given regulatory approval of the vaccine and the absence of evidence to outweigh vaccination for these children, there is no value in remitting the matter to the court below. . S.E.T. v. J.W.T
In S.E.T. v. J.W.T (Div Court, 2023) the Divisional Court, in allowing an appeal, reviewed recent COVID-specific judicial notice doctrine established in the leading COVID case of J.N. v. C.G. (Ont CA, 2023):[9] As further set out below, J.N. v. C.G. states that courts should take judicial notice of regulatory approval and recommendation of COVID-19 pediatric vaccination, and that regulatory approval is strong evidence that the vaccine is safe and effective. Further, evidence submitted to contradict Health Canada’s position must meet the criteria for expert evidence. The question of vaccine safety and efficacy requires scientific expertise. The problem with the father’s motion is that he has not provided any expert evidence to interpret the information he seeks to admit. In the face of Health Canada’s ongoing approval of COVID-19 vaccination for children, and without any expert interpretation of the significance of the father’s information, none of the information he seeks to admit could reasonably be expected to affect the result of the motion. Therefore, the motion is dismissed.
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Did the motion judge err by refusing to take judicial notice of regulatory approval?
[11] The motion judge in this case erred by failing to apply principles set out in J.N. v. C.G. The first error related to his refusal to take judicial notice of regulatory approval of the vaccine. While taking judicial notice is generally discretionary, the motion judge’s reasons were released shortly after the Court of Appeal’s decision. The Court of Appeal noted that “it is not the subject of dispute among reasonable people that Health Canada has, in the area of safety and efficacy of medical treatment,” special knowledge going beyond that of the trier of fact. The court therefore stated, at para. 45, that judicial notice “should” be taken of regulatory approval, and “regulatory approval is a strong indicator of safety and effectiveness.” The court emphasized that COVID-19 kills people, including children, and stated that it was unrealistic for parties to relitigate the question of vaccine efficacy each time there was a disagreement about it.
[12] In this case, the motion judge declined to follow this guidance. Contrary to the Court of Appeal’s approach, the motion judge stated, at para. 358, that “what public health authorities have been saying is evidence simply of the fact that the public health authorities have been saying that vaccines are ‘safe and effective.’” 2 [2 J.W.T. v S.E.T., 2023 ONSC 977.] He therefore was of the view that he could not take judicial notice of vaccines being safe and effective: at paras. 394 and 520. Similarly, he stated, at para. 466, that he may not be prepared to “take judicial notice of a ‘fact’ based on what is clearly speculation.”
[13] In the specific circumstances of this case, his refusal to take judicial notice of regulatory approval constituted a material error in the appreciation of the facts. He was addressing the same regulatory approval in the context of the same pandemic immediately after the release of the Court of Appeal’s decision. There was no factual distinction that justified a different approach.
[14] Further, in his approach, he erred in principle by relying on information that was not properly before him in evidence, contrary to the guidance in J.N. v. C.G. He used this information to question the validity of regulatory approval.
[15] J.N. v. C.G. underscored the importance of relying only on admissible expert evidence when assessing vaccine efficacy. The motion judge in that case had erred by failing to assess whether documents relied on by the party objecting to vaccination were independent, unbiased, and authored by someone with expertise in the area. The court stated, at para. 19, that the information relied on by the objecting party “was nothing but something someone wrote and published on the Internet, without any independent indicia of reliability or expertise, which, even if admissible, should have been afforded no weight at all.”
[16] Here, the motion judge stated that he was avoiding this problem by not relying on the inadmissible evidence for the truth of its contents: at para. 619. He instead relied on it to state that “reasonable people” disagreed with public health authorities about the effectiveness of the vaccine. Therefore, in his view, judicial notice should not be taken of the vaccine’s effectiveness.
[17] To reach this conclusion, however, he needed to be sufficiently satisfied that the competing authorities were authored by “reasonable people” with sufficient expertise to raise doubts about the conclusions of public health authorities. He did not make this assessment on evidence that was before him. He stated, at para. 446: “[W]hen individuals who appear to be “prima facie experts” in the field are questioning the very premise of which a court being asked to take judicial notice…the court should at least consider this in the analysis of judicial notice.”
[18] The only person the motion judge named as a “prima facie expert” was Dr. Robert Malone. The father did not submit any evidence from Dr. Malone. There is no article by Dr. Malone, much less an affidavit or curriculum vitae. Instead, the motion judge appears to have relied on previous motion decisions, such as the decisions in J.N. v. C.G. (which was overturned on appeal) and Rashid v. Avanesov, 2022 ONSC 3401. He stated that “other courts” had recognized Dr. Malone as the inventor or founder of the mRNA vaccine. However, the motion judge in Rashid raised the risk of relying on Dr. Malone’s evidence. The Court of Appeal in J.N. v. C.G. also specifically rejected the findings of the motion judge in that case regarding Dr. Malone. The court stated that it was unclear how anyone could conclude from the material filed that Dr. Malone invented the mRNA vaccine or that he was a leader in the field.
[19] In other words, the only expert named by the motion judge as a “reasonable person” was dismissed by the Court of Appeal due to the absence of evidence justifying any reliance on his views. In these circumstances, it was an error for the motion judge to rely on Dr. Malone’s “prima facie” expertise to discount the conclusions of public health authorities.
[20] The motion judge also erred by relying extensively on events and personal observations rather than on the evidence before him. His error here was similar to what occurred in J.N. v C.G., in which the Court of Appeal stated, at para. 23, that “instead of conducting a meaningful analysis of the appellant’s material, the motion judge simply cited historical events … as a reason not to place reliance on government sources generally.”
[21] A similar problem arose here. The motion judge in this case wrote for several pages about events and information not arising from the evidence. His observations were either generic and inapt comments on public events or, if more specific, not founded in the evidence before him. They included the following:. The Chief Medical Officer for Ontario had held a press conference recommending the wearing of masks but then was seen at a public event not wearing a mask: at paras. 425-29.
. Government messaging at the time of the Thalidomide drug was clearly wrong: at paras 470-72.
. Legislation in other countries provides immunity to pharmaceutical companies regarding vaccines: at paras. 478-80.
. The media and government continued to allow tobacco and alcohol companies to advertise even when it became known that they harmed people’s health: at paras. 486-89.
. Dr. Malone should not be discounted because he was banned from Twitter for spreading “misinformation”: at paras. 501-11.
. The court had concerns about the mainstream media promoting a “narrative”: at paras. 516-19. [22] The motion judge also stated that it appeared the mRNA vaccine was different from “conventional vaccines” and that the timeline in its “invention” and testing was far shorter than for other vaccines: at para 481. The record included one internet article citing Dr. Anthony Fauci as saying there was insufficient time to complete a clinical trial on an “updated vaccine.” The motion judge did not cite the article nor assess its independence or reliability.
[23] The motion judge relied on the observations set out above, among others, to conclude that he should not take judicial notice of regulatory approval. Particularly in the face of the significance placed on regulatory approval of the vaccine in J.N. v. C.G., it was an error to refuse to take judicial notice of it based on evidence that was either not before him or without having assessed the source of the information. . Harjee v. Ontario
In Harjee v. Ontario (Ont CA, 2023) the Court of Appeal dismissed as moot an appeal of a JR against some Ontario COVID precautions, described below:[2] This appeal involves a constitutional challenge to public health measures enacted by the Ontario government in the fall of 2021. The measures at issue required proof of vaccination for COVID-19 for a person to enter a restaurant, bar, sporting arena, movie theatre, fitness facility, and certain other businesses. Those measures were enacted by Ont. Reg 364/20 (“the Regulation”), under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 (“the Act”).
[3] The appeal is moot. On March 1, 2022, the provincial government ceased enforcement of the requirement that businesses and other organizations covered by the Regulation check for proof of vaccination. On April 27, 2022, the government revoked the Regulation and all other orders made under the Act. The revocation rendered this appeal moot. There would be no practical effect to the declaratory relief sought by the appellants – constitutional declarations of invalidity in relation to portions of the Regulation. Further, in the circumstances of this appeal, we do not accept that the appellants’ claim for nominal damages cures the mootness. . Spencer v. Spencer
In Spencer v. Spencer (Div Court, 2023) the Divisional Court allowed an appeal of a parenting order where a parent's access had been restricted due to their being unvaccinated for COVID:Parenting Schedule
[16] With respect to the parenting schedule, the motion judge erred in treating Mr. Spencer’s unvaccinated status as a primary factor impacting the best interests of the children.
[17] Subsection 16(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) requires the court to take into consideration only the best interests of the child when making a parenting order. In determining the best interests of the child, the court is required to consider the factors relating to the circumstances of the child set out in s. 16(3). Pursuant to s. 16(2), the court is required to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
[18] The motion judge correctly set out the principles applicable to the determination of a parenting order. For example, the list of best interest factors is not a checklist to be tabulated. It instead calls for the court to take a holistic look at the child: Phillips v. Phillips, 2021 ONSC 2480, 55 R.F.L. (8th) 442, at para. 47.
[19] In addition, the status quo with respect to parenting should ordinarily be maintained on an interim motion in the absence of compelling reasons that the children’s best interests require a change: Grant v. Turgeon, (2000), 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J), at para. 15; Coe v. Tope, 2014 ONSC 4002, at para. 25.
[20] In this case, the motion judge based the parenting schedule on two factors: The first was his finding that the mother had been the parent primarily responsible for caring for the children’s needs on a day-to-day basis. The second was Mr. Spencer’s unvaccinated status. The motion judge stated that Mr. Spencer’s “choice not to become vaccinated puts the children at risk of harm should they contract COVID-19.” He went on to state that “[h]is parenting time with the children must be restricted to reduce their risk of harm.”
[21] Although the motion judge acknowledged some of the factors in favour of parenting time for Mr. Spencer – such as his parental leave and positive relationship with the children – he ordered a substantial change from the status quo in Mr. Spencer’s parenting time. Mr. Spencer was only to see the children for parts of three days each week, with no overnights. Specifically, his parenting time was restricted to two days per week from 3:30 p.m. until 7 p.m. and one weekend day from noon until 7 p.m. The motion judge also ordered that all his parenting time be exercised at the matrimonial home or outside.
[22] In addition to substantially limiting Mr. Spencer’s parenting time, the motion judge ordered other strict conditions related to COVID-19. Mr. Spencer was required to send Ms. Spencer a screenshot of a COVID-19 rapid test result every Tuesday and otherwise follow all government recommended safety protocols while the children were in his care. He was also not to knowingly expose the children to any individual he knew or believed to be unvaccinated. If he were to breach any of these conditions, Ms. Spencer was entitled to bring a motion to court on an urgent basis to suspend his in-person parenting time.
[23] It was an error for the motion judge to put such weight on Mr. Spencer’s unvaccinated status in arriving at the parenting order. Prior to the motion, Mr. Spencer resided with the children, was on parental leave, and had a positive, meaningful relationship with them. As a result of his unvaccinated status, he was awarded limited parenting time, including no overnights, with the parenting time to occur only in the home or outside, and at risk of losing all in-person parenting time for any breach. There was no evidence of any of the children being at an elevated risk if they were to contract COVID-19. Indeed, the older children were attending school where they were exposed to unvaccinated students and potentially unvaccinated adults. The evidence was also that Ms. Spencer wished to put the youngest child in day care. She was continuing to pay for this spot to ensure the child can return upon the completion of Mr. Spencer’s parental leave. In these circumstances, it was an error for the parenting schedule to be substantially dependent on Mr. Spencer’s unvaccinated status. It significantly and unjustifiably sacrificed the children’s meaningful relationship with their father and thereby failed to maintain the primacy of the children’s physical, emotional and psychological safety, security and wellbeing.
[24] The court has already set aside the COVID-19 testing and other COVID-19 restrictions related to Mr. Spencer’s parenting time. However, the court below is in a better position to determine the appropriate parenting schedule. Accordingly, the parenting schedule is remitted to that court for determination in accordance with these reasons. . A.V. v. C.V.
In A.V. v. C.V. (Div Court, 2023) the Divisional Court, in a COVID child vaccination family law case, considered interim orders for vaccination and the role of parental choice:Ordering Vaccination on an Interim Basis
[19] A second issue that arises in these appeals is whether a motion judge should refrain from ordering vaccination on an interim basis and instead wait for a complete evidentiary record at trial. The concern is that vaccination is an elective procedure that is not immediately required but once done, cannot be reversed.
[20] Some cases have determined it was appropriate to refrain from allocating interim decision-making with respect to COVID-19 vaccination. However, those cases were decided before J.N. v. C.G. and may have come to a different result with the benefit of the Court of Appeal’s decision.
[21] COVID-19 vaccination recommendations are current advice addressing a dynamic situation involving a global pandemic. In J.N. v. C.G., the Court of Appeal emphasized the danger from COVID-19 (that it kills people, including children) and that regulatory approval for the vaccine is a strong indicator of safety and effectiveness. In this context, compelling reasons would be required to disregard current advice and delay a decision on vaccination.
[22] A motion judge may take into account a prior court order or agreement allocating medical decision-making. However, granting an order against the wishes of the parent with primary decision-making authority does not require that the entirety of the parent’s authority be set aside: the issue of COVID-19 vaccinations can be addressed as a singular issue of disagreement without otherwise affecting the status quo.
[23] There is no impediment to authorizing a parent to have children vaccinated against COVID-19 on an interim basis. In the absence of admissible evidence and compelling reasons to the contrary, current health recommendations should be followed.
Views of Primary Caregiver
[24] An additional issue in this case is whether the motion judge erred by failing to accord more weight to the mother’s views as the primary caregiver. Subsection 20(1) of the Children’s Law Reform Act, R.S.O. 1990 c. C. 12, which applies in this case since neither party is seeking a divorce, provides that parents are equally entitled to decision-making responsibility with respect to their child. Pursuant to s. 20(4), if the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent, or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child is suspended until a separation agreement or order provides otherwise. However, pursuant to s. 21(1), a parent may apply to the court for an order respecting decision-making.
[25] Where there is no prior order or agreement for decision-making, the motion judge may take into account and weigh both parents’ positions in determining how to allocate decision-making on this issue in the best interests of the child. The motion judge may weigh one parent’s views more heavily based on factors such as the history of decision-making, but an appeal court would defer to this weighing exercise absent an error of principle. The parents’ views and positions also should be considered together with all the circumstances relating to the best interests of the child. . A.V. v. C.V.
In A.V. v. C.V. (Div Court, 2023) the Divisional Court, in a COVID child vaccination family law case, considered the public document exception to the hearsay rule and judicial notice, both in relation to government health publications:Evidence of Government Recommendations and Judicial Notice
[11] The first issue raised in both appeals is whether the motion judge erred in admitting into evidence government recommendations with respect to vaccination. That question has now been settled by the Court of Appeal in J.N. v. C.G. As George, J.A. stated in that case at para. 26, reports of public officials are admissible into evidence for the truth of their contents, pursuant to the public document exception to the hearsay rule: see also A.C. v. L.L., 2021 ONSC 6530, 159 O.R. (3d) 600, at para. 26; A.P. v. L.K., 2021 ONSC 150, 51 R.F.L. (8th) 334, at paras. 147-173. The reason for the exception is not only the inherent reliability and trustworthiness of public documents, but also to avoid the inconvenience of public officials having to be present in court to prove the documents. Section 25 of the Evidence Act, R.S.O. 1990, c. E.23 also provides that certain public documents as defined in that provision, including those published under the authority of the government of any “dominion, commonwealth, state…shall be admitted into evidence to prove the contents thereof.”
[12] Government of Canada publications addressing paediatric vaccination against COVID-19 fall squarely within the public document exception to the hearsay rule. In addition to being reliable, allowing these documents into evidence permits parties to rely on them without the unnecessary burden of calling a government representative: J.N. v. C.G., at para. 44.
[13] For the same reasons, judicial notice may be taken of the regulatory approval of paediatric vaccination against COVID-19. Judicial notice is an exception to the rule of formal proof that requires parties to present evidence to establish facts. It dispenses with the need to prove facts that are clearly uncontroversial or beyond reasonable dispute. The threshold is strict. The Supreme Court of Canada has stated that a court may 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: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48.
[14] While judicial notice generally is not taken of expert evidence, as set out in J.N. v. C.G., at para. 43, this general principle does not apply “where the ‘expert opinion’ in question is the approval of medical treatment by Health Canada, the national body tasked with determining that treatment’s safety and effectiveness.” As explained at paras. 44-45:It is not the subject of dispute among reasonable people that Health Canada has, in the area of safety and efficacy of medical treatment, “special knowledge…going beyond that of the trier of fact”: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 243. … Stated otherwise, judicial notice should be taken of regulatory approval, and regulatory approval is a strong indicator of safety and effectiveness. [15] Indeed, both the public documents exception and judicial notice of these facts promote access to justice and the primary objective of the Family Law Rules, O. Reg. 114/99. They save the parties the time and expense of collecting expert evidence, which is a particularly challenging task on an interim motion. As stated in J.N. v. C.G., at para. 29, “it is simply unrealistic to expect parties to relitigate the science of vaccination, and legitimacy of public health recommendations, every time there is a disagreement over vaccination.” These principles allow the parties instead to focus on the central question: the best interests of the child. See A.P. v. L.K., at para. 186
[16] The admissibility of government recommendations into evidence is not determinative of the best interests of the child. However, it places the onus on the objecting party to show why the child should not be vaccinated: J.N. v. C.G., at para. 45. It remains open to the opposing party to file competing evidence. However, the competing evidence must be admissible. Opinion evidence is not admissible unless the person offering the opinion is qualified as an expert and the opinion relates to a matter within their expertise: see R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at pp. 20-25, see also R v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272 at para. 47. The proposed expert also must also be independent and unbiased: J.N. v. C.G., at paras. 12, 17. While in many cases, it will not be feasible or practical for a party to challenge the efficacy of the vaccine with competing expert evidence, an objecting party may, for example, submit a report from a treating family physician that provides evidence related to the circumstances of an individual child. This could include a child’s particular risk for contracting COVID-19.
[17] Another factor, which has arisen in the cases, is the child’s views and preferences. For example, in M.M. v. W.A.K., the motion judge declined to order vaccination where the child had clearly expressed her strong opposition to it. The motion judge considered the child, who was 12 years-old, to be mature and put significant weight on her views and preferences. However, a court must always carefully consider how much weight to give a child’s wishes in accordance with the factors set out in Decaen v. Decaen, 2013 ONCA 218, at para. 42. In J.N. v. C.G., the Court of Appeal found that the motion judge erred in giving the children’s views any weight, as the evidence did not support the finding that they had reached their own conclusions free from their mother’s influence.
[18] In short, government publications and recommendations may be admitted into evidence. Once admitted, regulatory approval of the vaccine places the onus on the objecting party to demonstrate that the child should not be vaccinated. The motion judge is to make this determination in the best interests of the child.
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