Ontario judge rules in favor of mother not wanting to vaccinate children, rebukes father in amazing judgement

brass colored balance scale on a lawyer s table

J.N. v. C.G., 2022 ONSC 1198 (CanLII)

Here is an excerpt:


[1]               When did it become illegal to ask questions?  Especially in the courtroom?

[2]               And when did it become unfashionable for judges to receive answers?  Especially when children’s lives are at stake?

[3]               How did we lower our guard and let the words “unacceptable beliefs” get paired together? In a democracy? On the Scales of Justice?

[4]               Should judges sit back as the concept of “Judicial Notice” gets hijacked from a rule of evidence to a substitute for evidence

[5]               And is “misinformation” even a real word? Or has it become a crass, self-serving tool to pre-empt scrutiny and discredit your opponent?  To de-legitimize questions and strategically avoid giving answers.  Blanket denials are almost never acceptable in our adversarial system.  Each party always has the onus to prove their case and yet “misinformation” has crept into the court lexicon.  A childish – but sinister – way of saying “You’re so wrong, I don’t even have to explain why you’re wrong.”

[6]               What does any of this have to do with family court?  Sadly, these days it has everything to do with family court.

[7]               Because when society demonizes and punishes anyone who disagrees – or even dares to ask really important questions – the resulting polarization, disrespect, and simmering anger can have devastating consequences for the mothers, fathers and children I deal with on a daily basis.

[8]               It’s becoming harder for family court judges to turn enemies into friends — when governments are so recklessly turning friends into enemies.

[9]               The motion before me is a typical – and frightening – example of how far we are drifting from cherished values. 

[10]           The father wants two children ages 12 and 10 to receive COVID vaccinations.  The mother is opposed.

[11]           Now, answer honestly.  Did the previous paragraph give you enough information to form an opinion about how this case should turn out?

[12]           We’re all weary.  We all wish COVID would just go away.  But pandemic fatigue is no excuse for short-cuts and lowering our standards. We all have to guard against the unconscious bias of thinking “Why won’t these people just do what the government tells them to do?”

[13]           We have to decide on the basis of the best interests of each particular child in each particular fact situation. 

[14]           We have to rely on – and insist upon – evidence.

[15]           In this case the evidence provided more questions than answers.

a.   The father filed two affidavits. 

b.   The mother filed one. 

c.   They both relied extensively on unsworn “exhibits”, which were basically internet downloads.

d.   In addition, the father relied on numerous downloads from the mother’s social media accounts.

e.   They both consented to my receiving these materials, to demonstrate the sources of information which each of them is relying on in formulating their respective parenting position. 

[16]           The basic facts are not disputed:

a.   The mother is 34 years old. The father is 35.

b.   They were married on November 24, 2007 and separated on June 1, 2014.

c.   They have three children, a 14 year old son C.B.G.; a 12 year old daughter L.E.G.; and a ten year old son M.D.G..

d.   C.B.G. resides primarily with the father.  L.E.G. and M.D.G. reside primarily with the mother.

e.   Pursuant to final order based on minutes of settlement signed October 5, 2021, the father has sole decision-making authority with respect to the oldest child. The mother has sole decision-making authority with respect to the two children who are the subject of this motion. The order requires the parties to consult with each other prior to making major decisions for the children.

f.     When the parties signed the minutes of settlement, they already knew that they disagreed about the issue of vaccinations. The minutes of settlement specified: “The issue of the children L.E.G. and M.D.G. receiving a COVID-19 vaccine shall remain a live issue and shall be determined at a later date. The child C.B.G. can determine whether or not he wants to be vaccinated now.”

g.   In fact, earlier in the pandemic the father went to court complaining the mother was being too protective of the children when it came to COVID. In August 2020 the father brought a motion trying to compel the children to attend school in person for the 2020-2021 school year. The mother argued that the risk of COVID exposure was too high; she was particularly concerned about the oldest child’s medical vulnerability as a result of his history of asthma; and she proposed remote learning for the children until the pandemic risk subsided. On September 23, 2020 Justice Bale issued a lengthy endorsement dismissing the father’s motion, and confirming that the mother’s position was appropriate and in the best interests of the children.

h.   In 2020 the father alleged the mother was being too protective about COVID.  Now he’s saying she’s not protective enough.  He brought a motion dated January 25, 2022 requesting that L.E.G. and M.D.G. receive the COVID vaccine and all recommended booster vaccines. He also asks that he be permitted to arrange the vaccinations and attend with the children, because he doesn’t trust that the mother will comply even if she is ordered to do so.

i.      Meanwhile, soon after the parties signed Minutes in October 2021 the older child C.B.G. elected to be vaccinated. Both parents supported his decision. He’s had two shots, and the parents agree he has exhibited no adverse effects.

j.      The mother insists the father is misrepresenting her position. She is not opposed to vaccines.  She is offended by the pejorative term “anti-vaxxer”. She has always ensured that the three children received all of their regular immunizations. She says she’s open minded to vaccinating both younger children if safety concerns can be better addressed.  But she says her extensive research has left her with well-founded concerns that the potential benefit of the current COVID vaccines for L.E.G. and M.D.G. is outweighed by the serious potential risks.  She says there are too many unknowns, and she worries that “once children are vaxed, they can’t be unvaxed.”

k.   The mother notes that both children have already had COVID – with minimal symptoms – and they have recovered completely.   She refers to medical research which says that since they have already recovered from COVID, the children now have greater protection from future infection.

l.      Both parents agree L.E.G. and M.D.G. are in excellent health, with no special medical needs or vulnerabilities. 

m.  Neither parent provided any evidence from a medical professional about any potential positive or negative considerations with respect to these children receiving COVID vaccines.

[17]           The mother’s evidence focused entirely on the medical and scientific issues.

[18]           In contrast, the father focussed extensively on labelling and discrediting the mother as a person, in a dismissive attempt to argue that her views aren’t worthy of consideration.  

a.   This odious trend is rapidly corrupting modern social discourse: Ridicule and stigmatize your opponent as a person, rather than dealing with the ideas they want to talk about. 

b.   It seems to be working for politicians. 

c.   But is this really something we want to tolerate in a court system where parental conduct and beliefs are irrelevant except as they impact on a parent’s ability to meet the needs of a child?

[19]           For example, the father’s affidavits included the following:

a.   “I am aware that the Applicant has political affiliations with the People’s Party of Canada. The Applicant is entitled to her personal beliefs and ideologies, but I am very fearful that it is having a direct, negative impact on the children, especially when it comes to this vaccine issue.”

b.   “I searched the Applicant’s recent Facebook postings and was alarmed to see just how involved the Applicant is at perpetuating COVID-related conspiracy theories and vaccine hesitancy.”

c.   He attached “a collection of some of the Applicant’s Facebook postings ….. which I believe are indicative of her personal views.”

d.   “The Applicant is a self-proclaimed ‘PPC founding member’.  In my opinion, she is openly promoting very dangerous beliefs. Surely, these thoughts and feelings are also being promoted in her household, which is where L.E.G. and M.D.G. primarily reside.”

e.   “I looked up what the PPC stance is on the COVID-19 vaccine and was not surprised to read under its website’s “FACTS” section that “lockdowns, mask mandates, school closures and other authoritarian sanitary measures have not had any noticeable effect on the course of the pandemic.”  Unfortunately, no facts are actually provided.”

f.     He attaches a copy of the PPC’s COVID Policy taken from its website.

g.   “I am alarmed that the children are being exposed to the Applicant’s unsupported views on the issue of the pandemic, and in particular the efficacy of the available and Government-recommended vaccines.”

h.   “The Applicant’s anti-vaccination stance is much more severe than that of a regular concerned parent, who is unsure whether or not she wants the children to receive a relatively new vaccine. Rather, the Applicant is leading the charge, attending anti-vaccine rallies and refusing to follow COVID protocols.”

i.      He attaches a Facebook posting of the mother not wearing a mask “in a crowd of 10,000 people at a rally.”

j.      He makes other references to the mother’s Facebook account, and attaches numerous pictures of her social media pages.

k.   He attaches photographs of PPC leader Maxime Bernier addressing an audience.

[20]           Where to begin.

a.   How is any of this relevant?

b.   Have we reached the stage where parental rights are going to be decided based on what political party you belong to?

c.   Is being seen with Maxime Bernier – or anyone, for that matter – the kiss of death, as far as your court case is concerned?

d.   Can you simply utter the words “conspiracy theorist” and do a mic drop?

e.   If you allege that someone is “openly promoting very dangerous beliefs”, shouldn’t you provide a few details.  A bit of proof, maybe?

f.     And if you presume that a parent believes things they shouldn’t believe – can you go one step further and also presume that the parent must be poisoning their children’s minds with these horrible unspecified ideas? (“Surely, these thoughts and feelings are also being promoted in her household…”)

g.   The father criticizes the mother for something she didn’t say. He presumes she doubts the effectiveness of school closures, and then criticizes her for providing no evidence. But on this motion she didn’t raise the issue. And back in 2020 she was the one who wanted to keep the children out of school, and he fought (unsuccessfully) for them to attend. As with other allegations, the father provides no evidence of his own, and fails to address the fact that vigorous community debate led to school closures being abandoned.

h.   How far are we willing to take “guilt by association”? If you visit a website, read a book, or attend a meeting — are you permanently tarnished by something someone else wrote or said? At what point do the “thought police” move in?

i.      And really, how fine is the line between “vaccine hesitancy” and “not taking any chances with your kid”? All of the caselaw says judges have to act with the utmost caution and consider all relevant evidence in determining the best interests of the child. How can we then impose a lesser standard on a demonstrably excellent parent?

[21]           It is of little consequence that an individual litigant chooses to advance such dubious and offensive arguments.  Even though the father may not admit it, this is still a free country and people can say what they want.  Including him.

[22]           But there’s a bigger problem here.  An uglier problem.

[23]           We’re seeing more and more of this type of intolerance, vilification and dismissive character assassination in family court.  Presumably we’re seeing it inside the courtroom because it’s rampant outside the courtroom.  It now appears to be socially acceptable to denounce, punish and banish anyone who doesn’t agree with you. 

[24]           A chilling example: I recently had a case where a mother tried to cut off an equal-time father’s contact with his children, primarily because he was “promoting anti-government beliefs.”  And in Communist China, that request would likely have been granted.

[25]           But this is Canada and our judicial system has an obligation to keep it Canada.

[26]           I won’t belabor the point, because I still have to get to my real job: determining what’s in the best interests of these two children.  But the word needs to get out that while the court system won’t punish intolerance, it certainly won’t reward it either.

[27]           All parenting issues – including health issues – must be determined based upon the best interests of the child.  Last year’s amendments to the Divorce Act (applicable in this case) and the Children’s Law Reform Act make it mandatory for the court to include consideration of a child’s views and preferences to the extent that those views can be ascertained. 

[28]           As Justice Mandhane stated in E.M.B. v. M.F.B2021 ONSC 4264 (SCJ):

60.            The requirement in s. 16(3)(e) to consider the “child’s views and preferences” is new and is consistent with Article 12 of the Child Rights Convention. In the Legislative Background to the Divorce Act amendments, the Department of Justice explains that:

Under Article 12 of the United Nations Convention on the Rights of the Child, children who are capable of forming their own views have the right to participate in a meaningful way in decisions that affect their lives, and parenting decisions made by judges and parents affect child directly. The weight to be given to children’s views will generally increase with their age and maturity. However, in some cases, it may not be appropriate to involve the children, for example if they are too young to meaningfully participate.

See also: Official Report of Debates (Hansard), 42nd Parl., 1st Sess., No. 326 (26 September 2018) at p. 21866 (Hon. Jody Wilson-Raybould).

61.            A human rights-based approach fundamentally recognizes children as subjects of law rather than objects of their parents. Making children more visible in legal proceedings that affect their rights is fundamentally important in Canada because children are not guaranteed legal representation in family law proceedings. Therefore, in my view, even where there is no direct evidence about the child’s views and preferences, s. 16(3)(e) still requires the court should make a reasonable effort to glean and articulate the child’s views and preferences wherever possible, considering the child’s age and maturity and all the other evidence before it.

[29]           In this case, the children’s views have been independently ascertained — they both don’t want to receive the COVID vaccines – but the father is asking me to ignore how they feel and force them to be vaccinated against their will. The background:

a.   In 2021, in an effort to resolve parenting issues, the parties enlisted a well-respected local social worker, Michelle Hayes, to prepare a “Voice of the Child Report”. The father filed Hayes’ comprehensive seven-page report dated June 22, 2021. 

b.   For purposes of that report the children were each interviewed twice – once in the care of each parent.

c.   During the interview period the mother and father had clearly identified their respective positions on vaccination. The report specifically addressed each child’s views on the topic.

d.   L.E.G. advised that she had discussed vaccinations with each parent privately.  She knew her father favoured getting the shot and her mother didn’t.  L.E.G. specifically explained to Hayes the reasons why she didn’t want to receive the COVID vaccines. She explained herself in some detail.

e.   Similarly, M.D.G. had discussed vaccinations with each parent privately. He also knew his father promoted vaccination and his mother didn’t. M.D.G. not only told Hayes he didn’t want to be vaccinated, but he said he was “fearful that his father would make him.” Indeed, M.D.G. told Hayes that “he wanted the judge to know his thoughts about his parenting schedule as well as the vaccine.”

f.     The mother says her children are mature and intelligent, and that they have come to their own conclusions without being pressured by either parent. She feels it is important to respect their clear wishes, comfort level and anxieties.  She says she adopted the same position for her older son C.B.G., and when he decided he wanted to be vaccinated she was fully supportive. 

g.   The father says at ages 12 and 10 the children are too young to make an informed decision about this.  He admits both children have expressed fear of the COVID vaccine.  He suggests the younger child’s views are wavering. But he’s opposed to either child being interviewed again.  No matter what the children say, he doesn’t think the court should listen, because he feels the mother has planted these ideas in their minds.  But he offered no proof of any coaching, manipulation or inappropriate statement by the mother.

h.   Hayes’ June 22, 2021 report was actually a follow-up to an earlier report she prepared on March 3, 2020.  She has worked with the family for a long time and got to know the children quite well.  The social worker expressed no concerns or suspicions about either child being manipulated or pressured by either parent.  In her summary she stated: “As in the original report, each of the children presented confidently and thoughtfully for both interviews. As they reviewed their thoughts, they each showed consistency in their views and preferences in each interview.”

[30]           While I agree with the father that these two children are not old enough to decide this complicated issue for themselves, I disagree with his suggestion that we should completely ignore how they feel about what they experience and what their bodies are subjected to.  Rather than simplistically accept or reject what children say they want, the court must engage in a complex and sensitive analysis of the weight to be attributed to each child’s stated views.

[31]           In Decaen v. Decaen2013 ONCA 218 the Court of Appeal set out the factors to consider when assessing a child’s wishes:

a.   Whether both parents are able to provide adequate care;

b.   How clear and unambivalent the wishes are;

c.   How informed the expression is;

d.   The age of the child;

e.   The maturity level;

f.     The strength of the wish;

g.   The length of time the preference has been expressed;

h.   Practicalities;

i.      The influence of the parent(s) on the expressed wish or preference;

j.      The overall context; and

k.   The circumstances of the preferences from the child’s point of view.

[32]           With respect to L.E.G. and M.D.G.:

a.   They have received all their regular immunizations.  At ages 12 and 10 they understand the experience of getting needles.  And they understand the purpose of vaccinations is to create a long-term medical consequence in their body.

b.   They understand the magnitude of the COVID pandemic, and the personal and community health issues involved.

c.   They understand the extended and ongoing discussion about the COVID vaccine.

d.   They have both clearly and consistently stated their objection to receiving the COVID vaccine.

e.   They have both outlined very specific reasons for their decision.  Those reasons do not appear to be frivolous, superficial or poorly thought out. 

f.     Both children have sufficient age, intelligence, maturity and independence of thought to understand the issue and formulate their own views, feelings, comfort level, questions, and fears about what should or should not happen to their bodies.

g.   They hold these views very strongly.

h.   They have maintained these views for an extended period of time.

i.      Despite the father’s speculation, there is no evidence that the mother has inappropriately drawn the children into any sort of personal or political agenda.   Both parents have equally engaged in appropriate and necessary discussions with the children about the many aspects of the pandemic – including vaccinations.  Both parents have answered the children’s questions, provided information, and stated their own beliefs.  The social worker’s report gives no suggestion that either parent has pressured, manipulated, or unduly influenced either child. Nor did Hayes express any concern about internal inconsistencies or ambiguities with respect to either child’s strongly stated views.

[33]           For the past two years all children have been bombarded with all sorts of information about the pandemic.  It has become an inescapable, oppressive part of their daily lives.  Mental health experts regularly warn us that we need to be mindful of the emotional impact of this scary new world on the young mind.

[34]           In this case, the father doesn’t like what the children are saying, so he submits their views aren’t worthy of consideration – just as he submits the mother’s views aren’t worthy of consideration.  There’s a bit of a pattern here.

[35]           But when a ten-year-old child says he’s afraid he’ll be forced to take the vaccine – and he specifically wants the judge to know it – I don’t think that’s something the court can or should ignore.

[36]           Children may not have wisdom.  But they have Charter rights and undeniable emotions.  

[37]           Any best interests analysis must take into account all relevant factors, including the impact on a child’s mental health if their legitimate and powerful feelings and anxieties are ignored; and if they perceive they are being violated.

[38]           A number of recent court decisions have grappled with this new “COVID vaccine” issue, and in particular with the issue of the weight to be given to children’s views on the subject.  In most of those cases the children were younger than L.E.G. and M.D.G., so “views and preferences” were either unascertainable or less relevant because of the child’s lack of maturity.

[39]           In McDonald v. Oates 2022 ONSC 394 (SCJ) the court disregarded a ten-year-old’s views, concluding that the child was unable to make an informed choice due to the contradictory information the child was receiving from his parents. 

a.   But unlike the situation with 10-year-old M.D.G., in McDonald there was no independent information as to the nature or strength of the child’s views, and the court declined to order a Voice of the Child Report, to avoid delay. 

b.   Here I had the benefit of a thorough and highly informative Voice of the Child Report. 

c.   And unlike McDonald, as discussed below, I find that the objecting parent’s concerns cannot be dismissed as frivolous or uninformed. 

d.   More to the point I find that there is no evidence that either M.D.G. or L.E.G. have been unduly influenced by either their pro-vaccine or anti-vaccine parent. I am satisfied that they came to their own conclusions, for understandable reasons.

[40]           In Saint-Phard v. Saint-Phard  2021 ONSC 6910 (SCJ) the court overruled a 13-year-old’s opposition to vaccinations, as conveyed through the child’s lawyer. 

a.   Again, the child’s situation was quite different from L.E.G. and M.D.G.. 

b.   In Saint-Phard the child had made inconsistent and ambiguous statements; he had been misinformed by a physician; and the court concluded he was incapable of making an informed decision.

[41]           In Rouse v. Howard 2022 ONCJ 23 (OCJ) Justice Hilliard provided a thoughtful analysis of facts more similar to the case at bar – even though the child in question was only nine. 

17      Although Fiona is only 9, there is evidence before me that she is, at present, opposed to receiving the COVID-19 vaccine. In A.C. v. L.L., 2021 ONSC 6530 (CanLII), [2021] O.J. No. 4992, Justice Charney considered section 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2 (HCCA), in his analysis as to whether the mother’s consent was even required for the children to be vaccinated. Justice Charney noted that the HCCA does not provide any minimum age for capacity to make medical treatment decisions. That finding accords with the Supreme Court of Canada’s decision in A.C. v Manitoba (Director of Child and Family Services), 2009 SCC 30, wherein Justice Abella explained the common law “mature minor” doctrine at paragraph 47:

The doctrine addresses the concern that young people should not automatically be deprived of the right to make decisions affecting their medical treatment. It provides instead that the right to make those decisions varies in accordance with the young person’s level of maturity, with the degree to which maturity is scrutinized intensifying in accordance with the severity of the potential consequences of the treatment or of its refusal.

18      Unlike in A.C. , where the children wanted to be vaccinated, and Saint-Phard where the child only expressed opposition to being vaccinated after the influence of the mother and her doctor, Fiona’s views about vaccination appear to be long-standing and in accordance with her mother’s beliefs about vaccines in general. An order granting Mr. Rouse decision-making authority would result in Mr. Rouse having the ability to override Fiona’s right to withhold her consent to vaccination which may have negative emotional and/or psychological consequences.

[42]           The determination of any child’s best interests is a fact-specific exercise, based on the evidence presented – and tested – in each case.  As stated, an important – but not determinative – part of the analysis consideration of each child’s views and preferences. 

a.         In each of the recent cases where a child’s stated opposition to being vaccinated was overridden, the court made unfavourable findings with respect to the objecting parent’s rationale and their inappropriate influence over the child. 

b.        The court concluded that the pro-vaccine parent had presented more reasonable information to the child, and more compelling arguments to the court in relation to the science.

c.         In each case the court was left with more confidence in the pro-vaccine parent’s parental judgment and insight on the issue of vaccinations.

[43]           But that’s not at all what I’m dealing with in this case.

a.   Despite the father’s relentless campaign to dismiss the mother as some sort of lunatic, the reality is that the mother presented all her evidence and made all her oral submissions in a calm, mature, articulate, analytical, extensively researched, and entirely child-focussed manner.  She is to be commended for her skillful and professional presentation as a self-represented party.

b.   In contrast, the father came across as somewhat dogmatic, intolerant and paternalistic.  He focussed more on discrediting the mother’s ideas rather than explaining his own.  And his shameless efforts to vilify the mother by ridiculing her personal beliefs bordered on hysterical.

c.   I mention this to further explain why I have confidence that the mother has not inappropriately influenced the children to adopt their current views.

d.   If the mother explained herself to the children the way she explained herself to me…and if the father explained himself to the children the way he explained himself to me…then I have absolutely no doubt about which of the parents communicated with the children in a more responsible manner.

[44]           Finally, we have the other “evidence” filed by the parents.  And here we have to think carefully about what constitutes proper or sufficient evidence – and how we should apply it.

Leave a Reply