The battle over vaccinations for children has been a hotly debated issue over the last couple of years. In fact, some provinces, such as New Brunswick, are debating whether mandatory vaccinations should be imposed on all children who enter the public-school system. This issue also impacts families at a micro level, with parents disagreeing over whether their children should be vaccinated. In a recent decision from the Ontario Superior Court of Justice, the court was asked to determine if new evidence could be used to re-litigate a prior ruling that did not require a separated couple’s children from being vaccinated.

The backstory

The mother and father separated in 2013 when their children were six and two years old. By the time of the trial, the children have not ever been vaccinated and were 13 and 9 years old. A minute of settlement from 2015 resolved many of their issues, but not vaccinations. The father was in favour of vaccinating the children, while the mother opposed it.

The parents entered mediation to try to resolve the issue. This resulted in the arbitrator determining the children did not have to be vaccinated.

Fresh evidence

The father appealed the arbitrator’s decision and asked the court if he could present fresh evidence during the appeal. The mother also asked to do the same. The evidence on both sides consisted mainly of experts taking the side of one parent or the other.

The court explained that the admission of fresh evidence is a discretionary matter, and that courts should rely on the factors set out in a 1979 Supreme Court of Canada decision. These factors are:

• The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
• The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
• The evidence must be credible in the sense that it is reasonably capable of belief;
• The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The court added that it also had a responsibility to consider the best interests of the children.

The mother’s argument was that the father had access to this evidence during the initial trial and that he was “not entitled to a second bite at the cherry.” However, the court determined that the father had only a limited amount of legal assistance by that point, and that the mother was able to present similar evidence in favour of her position. The court also determined the evidence could impact the outcome of the trial.

At NULaw, our experienced family lawyers can guide you through the process of making post-separation and post-divorce amendments. Contact us online or at 416-481-5604 to book a consultation, discuss your options, and ensure that you and your children are protected in changing circumstances.