A couple of yr in the past, we coated a contentious ruling divorced mother and father of two kids, aged 10 and 12, who couldn’t agree over which ones would have decision-making authority over whether or not to vaccinate the children towards COVID-19. Their dispute was acrimonious, and featured unseemly allegations and far name-calling.
Earlier than the movement choose, each mother and father had sought to depend on science and knowledge to say their positions. Amongst different issues, the daddy relied on Well being Canada recommendation that immunization was secure for kids over 5; the mom, primarily based largely on anti-vaccine sources from the web, argued that adequate doubt had been forged on the vaccine’s security and efficacy.
The preliminary movement ruling was given by the famed Justice Pazaratz, who’s noteworthy in Ontario Household Legislation circles for his blunt and unconventional fashion. He rejected the daddy’s bid to have decision-making authority over this side of the children’ well being, discovering it was not within the kids’s finest pursuits. He concluded the daddy was “dogmatic, illiberal and paternalistic” and his assault upon the mom was “misguided and mean-spirited”.
Importantly, when assessing the medical proof and conclusions he referred to as them a “shifting goal”, and rejected the daddy’s Well being Canada proof outright, stating:
I’ve not been capable of finding any indication – within the father’s proof or within the physique of COVID vaccine case legislation – that allegedly debunked theories have ever been correctly thought-about or examined. In any court docket. Anyplace.
In stark distinction was Justice Pazaratz’s evaluation of the mom’s anti-vaccine proof she had obtained on-line. He discovered she had “gone to extraordinary lengths to tell herself” and was glad that her sources have been “certified and respected”. He discovered she had “demonstrated a transparent understanding of the science” and that she raised “reliable questions and issues” in regards to the vaccine. He described her place as “affordable and useful”.
Now, the Ontario Court docket of Enchantment has overturned Justice Pazaratz’s earlier choice totally.
Particularly, it was improper for him to reject the daddy’s Well being Canada proof as disreputable, whereas accepting and counting on the mom’s internet-based supplies as being credible sources of “skilled proof” displaying reliable issues in regards to the security, efficacy and want for the COVID-19 vaccine. Actually, few of the mom’s supplies even met the established authorized standards for accepting such materials for consideration – a lot much less accepting them as truth.
Because the Court docket of Enchantment defined:
[17] For my part, the movement choose fell into error by not assessing whether or not every doc introduced by the [mother] was dependable, impartial, unbiased and approved by somebody with experience within the space. As an alternative of participating in an evaluation of the proof introduced, he launched into a prolonged dialogue about whose supplies have been extra thought-provoking, which has no bearing in any respect on whether or not the respondent’s supplies have been admissible and needs to be given any weight.
The Enchantment Court docket concluded:
[19] The knowledge relied upon by the [mother] was nothing however one thing somebody wrote and printed on the Web, with none impartial indicia of reliability or experience, which, even when admissible, ought to have been afforded no weight in any respect. This was a palpable and overriding error and I’d, due to this fact, give impact to this floor of attraction.
However that was not the one manner that Justice Pazaratz went astray in his reasoning: Quite than give due consideration to the Well being Canada recommendation, he most popular as a substitute to go on a diatribe about historic occasions, all purporting to point out that Canadian authorities selections mustn’t all the time be relied on by its residents.
We are going to cowl that side of this vital Enchantment ruling subsequent week.
Full textual content of the choice:
J.N. v. C.G., 2023 ONCA 77 (CanLII), <https://canlii.ca/t/jv9c5>
The decrease court docket trial and prices choice:
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>
