We recently reported on what can happen when parents disagree on whether their child should be vaccinated. If a custody dispute ends up in court, the court takes into account the best interests of the child.

We provided examples where courts have granted the parent who wishes the child to be vaccinated an order providing sole decision-making authority on the issue of COVID-19 vaccinations. We also reported on another case where this was declined, but it was in the context of a child with underlying medical conditions.

This issue hasn’t gone away. In an interesting recent decision by Justice Pazaratz of the Superior Court of Justice of Ontario, two parents sought sole decision-making authority on the issue of whether their children should receive the vaccine. J.N. v C.G. is noteworthy as another parental dispute relating to the COVID-19 vaccine, but also for the judge’s comments on the relevance of character evidence and judicial notice of government information about the vaccine.

Father seeks to have children vaccinated

The parents separated in 2014 and have three children between the ages of 14 and 10. The eldest resides primarily with the father, while the younger two reside primarily with the mother. Based on a settlement in 2021, the father has sole decision-making authority for the eldest, the mother for the younger two. The parents knew they disagreed about COVID-19 vaccinations, as the settlement said that the eldest can decide if he wants to be vaccinated, but whether the younger children would be vaccinated remains “a live issue and shall be determined at a later date”.

In January 2022, the father brought a motion requesting that the younger children receive the COVID-19 vaccine and all recommended booster vaccines. The mother stated that while she is not opposed to vaccines, she is concerned that the potential benefits are outweighed by the potential risks. She noted that the children have had COVID and referred to research indicating greater protection from future infection. Neither parent provided evidence from a medical professional concerning the benefits or risks to these children from receiving the vaccine.

Father attempts to discredit the mother

Justice Pazaratz was critical of the father’s extensive focus on labelling and discrediting the mother as a person, in contrast to the mother’s evidence which focused entirely on the medical and scientific issues. The father provided evidence relating to the mother’s political affiliation with the People’s Party of Canada and her alleged involvement in COVID-related conspiracy theories and vaccine hesitancy.

His Honour identified the father’s efforts as part of an “odious trend” that is “rapidly corrupting modern social discourse”, with the aim to “ridicule and stigmatize your opponent as a person, rather than dealing with the ideas they want to talk about”. His Honour asked of the father’s evidence, “how is any of this relevant?” Justice Pazaratz explained that while the court won’t punish intolerance, it certainly won’t reward it either. His Honour then turned to the matter at hand – determining whether receiving the vaccine was in the best interests of the children.

Views of the children are relevant in determining decision-making authority

Justice Pazaratz explained that under both the Divorce Act and Children’s Law Reform Act, in determining the best interests of the child, it is mandatory for the court to include considerations of a child’s views and preferences to the extent that they can be ascertained.

A report of a social worker who interviewed the children showed that they did not wish to be vaccinated. The father argued that they were too young to make an informed decision and that the mother had planted ideas in their minds. However, he did not offer any proof.

His Honour found that the mother had not inappropriately influenced the children to adopt their current views. While his Honour agreed with the father that the children were not old enough to decide this issue for themselves, he rejected the suggestion that their views should be completely ignored.

Judicial notice of government material is not automatic

Each parent sought to rely on material downloaded from the internet. The father drew the court’s attention to material, including from the Canadian Paediatric Society and the Government of Canada, recommending that children should receive COVID vaccinations. Unlike in other cases where “the internet materials presented by the objecting parent have been grossly deficient, unreliable and – at times – dubious”, the mother referred to documents such as the vaccine fact sheet from the manufacturer, peer-reviewed articles and material from the Centers for Disease Control and Prevention.

Justice Pazaratz, while noting that “there are obvious public policy reasons to avoid recklessly undermining confidence in public health measures” and not suggesting that the mother’s experts were correct, emphasized the importance of the court allowing both sides of the story to be equally presented, tested and considered. His Honour explained that courts could only take judicial notice of facts that are clearly uncontroversial or beyond reasonable doubt. His Honour expressed a reluctance to take judicial notice that the government is always right and said that “nobody who controls other people’s lives – children’s lives – should be beyond scrutiny, or impervious to review”.

Justice Pazaratz said that the mother’s materials satisfied him that a legitimate and highly complex debate existed on the efficacy and utilization of COVID vaccines. His Honour was satisfied that the mother’s request for a cautious approach was compelling and reinforced by the children’s views. Justice Pazaratz dismissed the father’s motion and granted the mother sole decision-making authority with respect to the issue of administering COVID vaccines for the two younger children.

Contact NULaw in Toronto to protect your custody and decision-making rights

If you are experiencing child access and parenting time disputes, contact the experienced family lawyers at NULaw in Toronto. NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters including custody and access. Contact us online or at 416-481-5604 to book a consultation.