About a year ago, we covered a contentious ruling divorced parents of two children, aged 10 and 12, who could not agree over which of them would have decision-making authority over whether to vaccinate the kids against COVID-19. Their dispute was acrimonious, and featured unseemly allegations and much name-calling.
Before the motion judge, both parents had sought to rely on science and data to assert their positions. Among other things, the father relied on Health Canada advice that immunization was safe for children over 5; the mother, based largely on anti-vaccine sources from the internet, argued that sufficient doubt had been cast on the vaccine’s safety and efficacy.
The initial motion ruling was given by the famed Justice Pazaratz, who is noteworthy in Ontario Family Law circles for his blunt and unconventional style. He rejected the father’s bid to have decision-making authority over this aspect of the kids’ health, finding it was not in the children’s best interests. He concluded the father was “dogmatic, intolerant and paternalistic” and his attack upon the mother was “misguided and mean-spirited”.
Importantly, when assessing the medical evidence and conclusions he called them a “moving target”, and rejected the father’s Health Canada evidence outright, stating:
I have not been able to find any indication – in the father’s evidence or in the body of COVID vaccine case law – that allegedly debunked theories have ever been properly considered or tested. In any court. Anywhere.
In stark contrast was Justice Pazaratz’s assessment of the mother’s anti-vaccine evidence she had obtained online. He found she had “gone to extraordinary lengths to inform herself” and was satisfied that her sources were “qualified and reputable”. He found she had “demonstrated a clear understanding of the science” and that she raised “legitimate questions and concerns” about the vaccine. He described her position as “reasonable and helpful”.
Now, the Ontario Court of Appeal has overturned Justice Pazaratz’s earlier decision entirely.
Specifically, it was wrong for him to reject the father’s Health Canada evidence as disreputable, while accepting and relying on the mother’s internet-based materials as being credible sources of “expert evidence” showing legitimate concerns about the safety, efficacy and need for the COVID-19 vaccine. In fact, few of the mother’s materials even met the established legal criteria for accepting such material for consideration – much less accepting them as fact.
As the Court of Appeal explained:
 In my view, the motion judge fell into error by not assessing whether each document presented by the [mother] was reliable, independent, unbiased and authorized by someone with expertise in the area. Instead of engaging in an analysis of the evidence presented, he embarked on a lengthy discussion about whose materials were more thought-provoking, which has no bearing at all on whether the respondent’s materials were admissible and should be given any weight.
The Appeal Court concluded:
 The information relied upon by the [mother] 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.
But that was not the only way that Justice Pazaratz went astray in his reasoning: Rather than give due consideration to the Health Canada advice, he preferred instead to go on a diatribe about historical events, all purporting to show that Canadian government decisions should not always be relied on by its citizens.
We will cover that aspect of this important Appeal ruling next week.
Full text of the decision:
J.N. v. C.G., 2023 ONCA 77 (CanLII), <https://canlii.ca/t/jv9c5>
The lower court trial and costs decision:
J.N. v. C.G., 2022 ONSC 1198 (CanLII), <https://canlii.ca/t/jmk30>
J.N. v. C.G., 2022 ONSC 2225 (CanLII), <https://canlii.ca/t/jnmlj>