The Lawyer's Daily is now Law360 Canada. Click here to learn more.

Sarah Boulby

Appellate court overturns decision ‘out of sync’ with Ontario COVID-19 jurisprudence: lawyer

Tuesday, February 14, 2023 @ 12:41 PM | By Jeff Buckstein

LexisNexis® Research Solutions
The Court of Appeal for Ontario overturned a lower court ruling to award a father of two children sole decision-making authority over whether they should be vaccinated against COVID-19.

The decision in J.N. v. C.G., 2023 ONCA 77, released Feb. 3, 2023, unanimously rejected a ruling from Ontario’s Superior Court of Justice, J.N. v. C.G., 2022 ONSC 1198, dated Feb. 22, 2022, which had dismissed a motion from the father and appellant, C.G., requesting such authority for his two youngest children, then aged 12 and 10.

The separated couple had diametrically opposite viewpoints. The father relied on the medical advice of health authorities that the vaccine was safe and effective and recommended for children 5 and older. The mother, respondent J.N., with whom the younger children resided, did not want them vaccinated because she believed sufficient doubt had been expressed about the vaccine's safety and efficacy.

The motion judge, Alex Pazaratz of the Superior Court of Justice, decisively ruled in favour of the mother’s position.

Justice Pazaratz said the available information about the safety and efficacy of the vaccine was “a moving target” with “no consensus or consistency” about its safety and effectiveness. He referenced historical events, including the forced sterilization of Indigenous women, residential schools, Japanese internment camps during the Second World War, Motherisk and the Thalidomide tragedy and questioned, “Why should we be so reluctant to take judicial notice that the government is always right?”

He found that the mother had “gone to extraordinary lengths to inform herself” in raising “legitimate questions and concerns” about the vaccine, and believed her sources were “qualified and reputable.”   

Justice Pazaratz also supported the mother’s position regarding the Voice of the Child Report, prepared by a social worker who interviewed each of the children twice, once while in the care of each parent, and wrote that “significant weight should be given to each child’s stated views and requests.” The children both said they did not want the vaccine. The judge did not believe they had been inappropriately influenced in that viewpoint by their mother.

The father appealed the lower court decision to the Court of Appeal, requesting, once again, that he be provided sole decision-making authority.

As appellant, he submitted that the motion judge made four errors: by accepting and relying on the respondent’s online resources as “expert” evidence and as credible sources of information; in finding that the evidence he had presented from public health authorities and other well-known sources was credibly disputed; in giving significant weight to the Voice of the Child Report and finding that the children’s views were independently held; and in placing the onus on himself to show that the children should be vaccinated.

On the first point, the Court of Appeal found that the documents filed by the respondent supporting her argument against medical science’s support for the vaccination included articles from authors of questionable expertise. Furthermore, some of the sources cited appeared to be self-published or quoted on a website.

“The information relied upon by the respondent 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. This was a palpable and overriding error and I would, therefore, give effect to this ground of appeal,” wrote Justice Jonathan George, in a ruling agreed to by Chief Justice Michael Tulloch and Justice Julie Thorburn.

On the second point, the Court of Appeal noted that despite past jurisprudence which had already taken notice of the safety, efficacy and importance of pediatric COVID-19 vaccines, the motion judge declined to do so, instead taking the position that the safety and effectiveness of the vaccine was not an established fact and still the subject of debate among reasonable people.

“I need not decide whether judicial notice should be taken of the public health and government information adduced by the appellant, as the motion judge fell into error in other respects, including by treating government approval of the vaccine as irrelevant,” wrote Justice George.

Moreover, “Instead of conducting a meaningful analysis of the appellant’s material, the motion judge simply cited historical events … as a reason to not place reliance on government sources generally,” the ruling added, characterizing such comparisons as being “inapt.”

It said “The motion judge erred in failing to conduct any meaningful review of the appellant’s authorities, or the laws of evidence, in favour of the respondent’s questionable and unreliable internet printouts with no independent indicia of reliability or expertise. This was a palpable and overriding error.”

On the third issue, regarding whether the children’s views were independently held, the Court of Appeal noted that the 12-year-old daughter told a social worker that her mother had advised that the vaccine was experimental and that she had provided her with research from scientists. The 10-year-old son told the social worker that whenever the vaccine had been tested on animals, he heard they had died.

The Court of Appeal said the motion judge failed to consider how informed the expression of the children was and also failed to acknowledge or factor into his analysis the “obvious influence” of the mother.

“In the end, the motion judge’s finding that the children reached their own conclusions — free from the respondent’s influence — was not supported by any evidence. In fact, the opposite is true. As such, his decision to give the children’s views any weight was an error,” wrote Justice George.

The Court of Appeal also agreed with the fourth ground of appeal, that the motion judge erred by placing the onus on the appellant to show that the children should be vaccinated. The ruling noted that most family court decisions related to the pandemic have deferred to the government recommendation that people, including children, receive a COVID-19 vaccine.

“The respondent, as the parent seeking not to have the children vaccinated, had the onus to establish that, despite Health Canada’s opinion as to the vaccine’s safety and effectiveness, they should not be. That onus was not satisfied,” said Justice George.

Having concluded that the motion judge committed several errors, the Court of Appeal then pondered whether to remit this case back to the Superior Court for further consideration, or use the existing record to make a decision.

“Bearing in mind that the only admissible evidence before the motion judge that was deserving of significant weight tended to suggest that vaccination was in the children’s best interests, I see no value in remitting this matter back to the Superior Court,” Justice George wrote.

The appeal was thus allowed, and the motion judge’s order set aside, with sole decision-making authority on whether the children should receive the COVID-19 vaccine residing with their father.

The Court of Appeal’s “obvious frustration with what the motions judge did is very clear in the way they’ve written that decision,” said Herschel Fogelman, principal of Fogelman Law in Toronto.

This ruling is instructive for justices to bear in mind that when writing their decisions, they need to “stay out of the trap [of getting into] personal aspects of judging,” he added.

Sarah Boulby, Boulby Weinberg LLP

Sarah Boulby, Boulby Weinberg LLP

“I think it’s a sensible decision,” said Sarah Boulby, a partner with Boulby Weinberg LLP in Toronto. “At the lower court, Justice Pazaratz’ decision was out of sync with a number of other cases that were decided in Ontario about this very issue. The Court of Appeal [used] its jurisdiction to error correct and to make sure that the law is applied universally and equally,” she added.

Richard Diamond, a partner with Bales Beall LLP in Toronto, also agreed with the Court of Appeal.

“In the age of social media, disinformation and conspiracy theories, it is even more incumbent on the courts to properly assess evidence in cases like this. The Court of Appeal was correct that the motion’s judge made palpable and overriding errors in rejecting the father’s motion to make the decision on whether the two youngest children would be vaccinated against COVID-19,” he elaborated.

The major issue before the Court of Appeal in this case was the reliability of the evidence tendered by the parties in support of their positions on whether the children should be vaccinated or not, said Diamond.

“The court determined that where one parent seeks to have a child treated by a Health Canada-approved medication, the onus was on the parent objecting to this treatment to show why the child should not receive that medication,” he said.

“I think the message to the litigants is really very narrow and fact specific,” said Fogelman. It is about marshalling evidence and determining what constitutes good evidence versus bad evidence, including how to use the Internet, for example, as an evidentiary tool, he elaborated.

Emma Katz, Kelly Jordan Family Law Firm

Emma Katz, Kelly Jordan Family Law Firm

Emma Katz, an associate lawyer with Kelly Jordan Family Law Firm in Toronto, believes this is an important ruling that provides litigants and lawyers, as well as parents and the general public, with clarity on the issue of vaccinating children.

A key paragraph in that decision states that “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,” said Katz.

Furthermore, the court was particularly mindful of some of the information sources presented, and it decided to give deference to public health guidelines, said Katz.

Another interesting aspect of this decision, said Boulby, related to the Voice of the Child Report, which was relied upon by Justice Pazaratz at the lower level, but not the Court of Appeal. The latter provided a clear summary regarding how courts need to deal with such reports, based on Decaen v. Decaen, 2013 ONCA 218, when it stated that:

“It is well settled that when determining how much weight to give a child’s wishes, a court is to consider: 1) whether the parents are able to provide adequate care; 2) how clear and unambivalent the wishes are; 3) how informed the expression is; 4) the age of the child; 5) the child’s maturity level; 6) the strength of the wish; 7) how long they have expressed their preference; 8) the practicalities of the situation; 9) parental influence; 10) overall context; and 11) the circumstances of the preference from the child’s point of view.”

For family lawyers, that was one of the more important parts of the decision, Boulby stressed.

“We are pleased with the outcome of the appeal,” said Erin Pleet, a partner with Ross Nasseri LLP in Toronto, and Jonathan Richardson, a principal with Richardson Hall LLP in Ottawa, co-counsels for the appellant father, C.G., in a joint statement issued for Law360 Canada.

The respondent, J.N., the children’s mother, represented herself in court.