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This is a continuation of our December 10, 2020 post “Your Love is Like Bad Medicine” and we encourage you to review our last post on this issue before you dive into this post. 

In a recently released decision (A.P. v. L.K., 2021 ONSC 150) the Ontario Superior Court of Justice addressed an appeal of an arbitrator’s award that determined that it was not in the best interests of the parties’ children to be vaccinated.  The parents of the children had disagreed about whether or not it was appropriate to vaccinate their children.  The matter went to arbitration and the arbitrator determined that it was not in the best interests of the children to be vaccinated.  Interestingly, during the arbitration process, both children contracted a vaccine-preventable disease.  Fortunately they both recovered.  The father appealed that award. 

The appeal was successful and the Court ultimately concluded that the arbitrator had erred by “failing to admit certain government documents as public records,” and by “failing to take judicial notice of facts about the safety and efficacy of vaccines.  The Court concluded that it was in the best interests of the children that the father have sole decision making authority with respect to vaccination-related decisions for the children.

The father had been self represented throughout the arbitration and did not have an expert witness available at arbitration. He had attempted to admit certain government documents attesting to the safety and benefits of vaccines under the public documents exception to the hearsay rule. The arbitrator did admit the documents for proof of the fact that the statements were made, but not for proof of their contents. The Mother also gave evidence, and called experts whom called into question the safety and efficacy of vaccines, among other things.

At the appeal, the Court heard evidence from a variety of experts. The evidence included information about the risks of contracting vaccine-preventable illnesses, the safety and side effects of vaccinations, the risk to children from being unvaccinated as opposed to being up to date in their vaccinations, and the impact of receiving childhood vaccinations on an alternate schedule from what is generally recommended by the medical community.

The Court also permitted the Mother to adduce fresh evidence from the children’s family doctor who testified that the children were in excellent health and that the risk of the children contracting a serious illness as a result of not being vaccinated was low. The doctor was of the opinion that the parties’ older child had the capacity to understand the information relevant to making treatment decisions with respect to vaccination and that the child expressed a wish not to be vaccinated.

The Court also considered the arbitrator’s decision to qualify certain witnesses as experts during the arbitration. The Court looked at the education, experience, and expert qualifications to opine on vaccinations and pediatrics and noted that the Mother’s expert had received no formal education on vaccinations and rather was “self taught.” The Court commented on the reliability of the evidence of the expert, noting that some of the evidence was to the effect that vaccines are dangerous and ineffective. The Court took judicial notice of the benefits, risks, and efficacy of vaccinations in Canadian jurisprudence, which demonstrate the scientific consensus around the benefits, safety, and efficacy of vaccines. The Court held that it was also unreasonable for the arbitrator to qualify the expert as an expert in vaccines, immunochemistry, and microbiology. Therefore, the Court concluded that the arbitrator erred in permitting the experts to give expert evidence at the arbitration.

The Father also argued that the arbitrator erred by failing to admit the public records that he sought to introduce into evidence for proof of the truth of their contents; the “Canadian Immunization Guide” and “Immunization 2020: Modernizing Ontario’s Publicly Funded Immunization Program”. The Court concluded that these public records were admissible for proof of the truth of their contents under the public documents exception to the hearsay rule and it was an error of law for the arbitrator not to admit them for that purpose.

Overall, the Court concluded that the arbitrator disregarded relevant evidence about the risks of vaccine-preventable diseases, and the benefits of vaccines when he reached his conclusion that there was no risk to the children if they remain unvaccinated. In addition, the Court concluded that the evidence given by the Mother’s experts should not have been qualified to give expert opinion evidence. Therefore, the Court concluded that the arbitrator made an error in reaching these conclusions.

The Court considered the parties’ proposed plans with respect to vaccinating the children. The Father indicated that he intended to vaccinate the children against vaccine-preventable diseases in accordance with medical advice from a physician. The Court considered this plan appropriate as it addressed an unnecessary risk the children could face, including illness, permanent health consequences, or death, from vaccine-preventable diseases. The Court held that the Mother’s plan to not vaccinate the children left them vulnerable to unnecessary and serious disease, and possible resultant morbidity and mortality, when the risk could be significantly alleviated through the administration of common, safe, and effective vaccines.

The Court concluded that the Father should have sole decision making responsibility over vaccinated-related decisions for the children, which included choosing which physician would provide advice related to vaccinations, what vaccinations would be administered, and the right to take the children to the chosen physician for the purposes of obtaining vaccination related advice and receiving the vaccinations. The Court further ordered that the respondent could not tell or suggest to the children that vaccines are untested, unsafe, ineffective, or that they are particularly at risk from vaccinations.

This case illustrates the importance of sound expert evidence when the matters in question relate to medical issues.  This case is also timely as the question of whether or not divorced or separated parents will choose to vaccinate their children will likely become more prevalent if the Covid-19 vaccines are approved for use in children.  If you have questions or issues relating to medical care for your children, please do not hesitate to reach out to the family law lawyers at SVR Family Law.

This information is provided to you by the Calgary Divorce and Family Law Lawyers at SVR Family Law.

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