In Appeal Over Vaccinating Children, Can Parents Bring Fresh Evidence?
The parents, who separated seven years ago, had two children together, now aged 13 and 9. The children had never been vaccinated; essentially the sole remaining issue between the parents was whether they should be. The father was in favour of vaccines; the mother was opposed. Mediation had failed, and an arbitrator had declined to order that the children submit to being vaccinated.
The father appealed that decision to the court, alleging that the arbitrator had not considered all relevant evidence, and had made errors of fact that tainted his conclusions on how risky vaccines are, and what risks the children might face. He asked the appeal court for an order that the children be vaccinated as soon as possible.
In advance of that appeal hearing, both parents brought motions to permit them to introduce fresh evidence on appeal. The court was asked to rule on its admissibility.
The mother’s evidence included an updated Affidavit from the children’s family doctor and some purported experts on vaccinations. The father, who was self-represented, brought evidence of a friend that he had longstanding objections to vaccinations, as well as information from various medical professionals that he said were not available to him at the trial, and that he wanted to introduce now.
The court considered whether to admit both parents’ fresh evidence at the appeal stage. Under the established test, this involved considering whether: 1) it was available at trial and should have been adduced using due diligence, 2) it was relevant on a (potentially) decisive issue at trial; 3) it was credible; and 4) it could reasonably have affected the result. For cases involving children – especially concerning updated information about them – the court must also consider their best interests in the overall evaluation.
For the father’s evidence, the court focused in on the “due diligence” requirement in particular, assessing what information had been available to him at the time of the arbitration hearing he was now appealing. It noted the mother’s objection that the father had some legal assistance at one point, and that even as a self-represented person he was “not entitled to a second bite at the cherry.”
The court rejected the mother’s complaints on this ground. It noted the husband had only limited legal assistance so far, and pointed out that the mother had herself delivered some expert reports late. Most of the evidence he had lately assembled from the experts was also credible, was relevant to a decisive issue, and could reasonably have affected the result. As the court concluded:
I have already reviewed the law which holds that the due diligence branch of the test may be relaxed where the welfare of a child is at stake. The question about the vaccination of the children relates directly to their physical and mental welfare and justifies a relaxation of the due diligence branch of the test. It is important that decisions affecting a child’s best interests be made on the best evidence available. Here, the father attempted to get his expert’s views before the arbitrator and was precluded from doing so.
Similarly, the mother’s updating Affidavit from the children’s current doctor – who had been their medical caregiver since they were babies – was also admitted even though that doctor was not an expert on vaccines. It nonetheless met all the elements of the test.
The court added that from a procedural standpoint, the admission of this fresh evidence might require some new steps (such as allowing the parents to cross-examine); the court invited them to attend a case conference to sort out the next steps in the appeal. In light of privacy concerns, it also ordered a publication ban against publishing any information about the children or their health, except the fact that they are in unvaccinated.
For the full text of the decision, see:
A.P. v. L.K., 2019 ONSC 7256 (CanLII)