Citation:	A.T. v. C.H.
	2022 BCPC 121
Date:		20220621
File No:		F19180
Registry:		Port Coquitlam

 

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

     

 

 

 

IN THE MATTER OF

THE FAMILY LAW ACT, S.B.C. 2011 c. 25

 

 

 

BETWEEN:

A.T.

APPLICANT

 

AND:

C.H.

RESPONDENT

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE W. LEE

Appearing on their own behalf:	A.T.
Appearing on their own behalf:	C.H.
Place of Hearing:	Port Coquitlam, B.C.
Date of Hearing:	June 8, 2022
Date of Judgment:	June 21, 2022

 

                                                                                                                                                                       

                                                                                                                                                           

Introduction

Evidence in Family Court

The Documentary Evidence of A.T.

[13]      The documents submitted into evidence by Ms. T. were as follows:

•         Letter from Dr. A. Karmali dated March 17, 2022, recommending that the oldest child receive the COVID-19 vaccine.

•         Letter from Dr. A. Karmali dated March 17, 2022, recommending that the youngest child receive the COVID-19 vaccine.

•         Printout from the BC Children’s Hospital website dated November 19, 2021, with the heading “Children five and up can be immunized for COVID-19 in B.C.”

•         Printout from the Government of Canada website “covid-vaccine.canada.ca” with the heading “Regulatory Decision Summary – Comirnaty – Health Canada.” The printout indicates that Health Canada made its decision on November 18, 2021. This document sets out the Health Canada recommendation for approval of the Comirnaty (Pfizer) COVID-19 vaccine for use in children aged 5 to less than 12.

•         Printout from the BC Government website “immunizebc.ca” with the heading “COVID-19 vaccine information for children ages 5 to 11.” The last page of this printout states that the webpage was last reviewed on May 10, 2022. This document states:

COVID-19 vaccines are safe and provide good protection against severe illness and hospitalization due to COVID-19.

The Pfizer vaccine is approved for use in children 5 to 11 years of age, and the Moderna vaccine is approved for children 6 to 11 years of age.

These vaccines are specially made for children and are a smaller dose.

Side effects of COVID-19 vaccines are usually mild. Serious side effects are very rare.

It is much safer to get the vaccine than to get COVID-19.

•         Handout from BC Children’s Hospital titled “COVID-19 vaccines for children 5-11 years old.” This document was published in March 2022. Among other things, it states:

More than 1.6 million children ages 5-11 have received the COVID-19 vaccine in Canada.

•         Handout from BC Ministry of Health titled “Vaccination after COVID-19.” This document is dated November 22, 2021.

•         Printout from Government of Canada website titled “Pfizer-BioNTech Comirnaty COVID-19 vaccine.” This webpage was last modified March 15, 2022. This document confirms the approval of the Pfizer vaccine for children 5 years of age and older.

•         Printout from Government of Canada website titled “Moderna Spikevax COVID-19 vaccine.” This webpage was last modified March 17, 2022. This document confirms the approval of the Moderna vaccine for children 6 years and older.

•         Printout from Government of Canada website titled “COVID-19: Making vaccination decisions for children 5 to 11 years of age.” This webpage was last modified March 17, 2022. Among other things, this document states:

The National Advisory Council on Immunization strongly recommends that children in the approved age groups:

• receive 2 doses of an mRNA
• use an interval of at least 8 weeks between the first and second doses.

•         Handout from Government of Canada titled “Vaccinating children against COVID-19.” This document is dated January 20, 2022.

The Documentary Evidence of C.H.

[14]      The documents submitted into evidence by Mr. H. were as follows:

•         A printout titled “Vaccine Research & Development.” The printout does not identify the source but Mr. H. said it came from the John Hopkins University website. This document describes the usual timeline for vaccine development. Pre-clinical trials can take between 1-10 years. Phase 1 clinical trials can take two to three months. Phase II clinical trials can take 2-3 years. The final Phase III trials can take 2-4 years. There is no dispute that the development of the COVID-19 vaccine took much less time.

•         A printout titled “Lawyers for Justice - Release of Pfizer Documents.” The printout indicates that this article was published as a blog post on the website “wordpress.com.” This post discusses the release or possible release of hundreds of thousands of pages relating to the development of the Pfizer vaccine. Although this post contains many references, no citations are provided to permit verification of any of the information. The author of this post is not named.

The Position of the Parties

[15]      Both parties are good parents. There is no question about that. Good parents can still have a difference of opinion and in this case, they ask the court to resolve the disagreement.

[16]      The children previously tested positive for COVID-19. I understand their symptoms resolved after a short time. The youngest child had a high fever for two days. She was vomiting, coughing, had a runny nose and a rash. The youngest child had a special concern in that she had tubes inserted into her ears. This had not fully healed when she became ill, and there was a concern she might develop an ear infection. I understand that this did not happen. The oldest child had similar symptoms although her fever was not as high and she did not have any vomiting.

[17]      Ms. T. has spoken to the children’s family doctor and he recommends that both children receive the COVID-19 vaccine. Ms. T. has submitted letters from the doctor confirming his recommendations.

[18]      Ms. T. has reviewed assorted COVID-19 vaccination literature, especially those put out by the Government of Canada, and she accepts their recommendations to have the children vaccinated.

[19]      Mr. H. is more cautious. He expressed concerns about the rapid development of the COVID-19 vaccines and prefers a “wait and see” approach so that more information can be gathered before making a decision to vaccinate.

[20]      Mr. H. noted that there is no government mandate to vaccinate the children.

The Law

[21]      The only relevant consideration when making decision about the children is their best interests. This is established by s. 37 of the Family Law Act. The Act sets out a number of factors to consider when assessing the best interests of the children, and this includes their health and emotional well-being.

[22]      Both parties also provided me with a number of court decisions for my review, which I will now discuss. I will also refer to a few additional cases.

[23]       In A.C. v. L.L., 2021 ONSC 6530, the parents disagreed about whether to vaccinate the children before they returned to in-person classes at school. The mother opposed vaccinations, arguing that since the government has not made vaccinations mandatory, there must still be some uncertainty about the safety of vaccinating children. The court rejected this argument, stating:

[19]      She argues that since the government has not made the COVID-19 vaccination mandatory for children attending in-person school, the government is still uncertain or ambivalent about the safety or efficacy of the COVID-19 vaccine. If vaccinations were “crucial”, she argues, they would be mandatory for school attendance.

[20]      This argument is based on a fundamental misunderstanding of both the government’s position on vaccinations and the legal test to be applied in this case.

[21]      The respondent mother points to no government document from any level of government to support her interpretation of the government’s position. Nor can she. The COVID-19 vaccination has been approved for children aged 12-17, and all levels of government have been actively promoting vaccination and expending significant resources to make it available to the public. The fact that it is not mandatory for children aged 12-17 cannot be interpreted as ambivalence or uncertainty.

[22]      The fact that government may try to promote or encourage vaccination through public education and voluntary compliance before imposing penalties on recalcitrant persons speaks more to the nature of public policy than it does to the safety and efficacy of the COVID-19 vaccine. It is understandable that governments may try the carrot before they have recourse to the stick.

[23]      The safety and efficacy of the COVID-19 vaccine has been endorsed by all governments and public health agencies. For example, on September 8, 2021 Toronto Public Health provided the following information to parents and guardians of school aged children:

As you prepare for your child/children to return to in-person school this September, I would like to provide you with some important information about COVID-19 prevention measures and Toronto Public Health school services for this year.

Get vaccinated

If your child born in 2009 or earlier has not yet received the COVID-19 vaccine, it is not too late. Getting vaccinated is one of our best tools for this fourth wave of COVID-19 and will help the most to prevent severe illness from COVID-19. To protect all children, all eligible youth and adults should be vaccinated. Clinics continue to be offered across the City.

[24]      This statement was repeated in a letter dated September 8, 2021 from the Toronto District School Board to all parents and guardians.

[25]      The Ontario Ministry of Health website states:

The Pfizer-BioNTech vaccine is now licensed by Health Canada for adolescents aged 12 years and older. The Pfizer-BioNTech vaccine has been proven to be safe in clinical trials and provided excellent efficacy in adolescents. Side effects reported in adolescents were similar to those observed in adults, and were more frequent after the second dose. NACI continues to strongly recommend that a complete series with an mRNA vaccine be offered to all eligible individuals in Canada, including those 12 years of age and older, as the known and potential benefits outweigh the known and potential risks.

[26]      These public pronouncements are all admissible under the public documents exception to the hearsay rule: A.P. v. L.K., 2021 ONSC 150, at paras. 147-173.

[24]      I agree with the reasoning in A.C. v. L.L. The government has not made it mandatory for all persons to be vaccinated. This is a public policy decision and does not mean vaccines are unsafe.

[25]      In Saint-Phard v. Saint-Phard, 2021 ONSC 6910, the court ordered the father have the sole-decision making authority to have the child vaccinated contrary to the wishes of the mother and the child. The court took judicial notice of the pandemic and the safety of the vaccines. At paragraphs 5 and 7, the court stated:

[5]        Facts may be found by taking judicial notice:  B.C.J.B. v. E.-R.R.R., A.P. v. L.K. 2021 ONSC 150, and A.C. v. L.L.  Each of these cases include findings related to the safety and efficacy of publicly funded vaccines on the basis of judicial notice.  For example, in A.C. v. L.L. at paragraphs 21, 23 and 25 the court made the following findings by taking judicial notice under the public documents’ exception to the hearsay rule :

•         The COVID-19 vaccination has been approved for children aged 12-17.

•         All levels of government have been actively promoting vaccination against COVID-19 and expending significant resources to make it available to the public.

•         The safety and efficacy of the COVID-19 vaccine has been endorsed by governments and public health agencies.

•         The Ontario Ministry of Health website states that Pfizer-BioNTech vaccine is now licensed by Health Canada for adolescents aged 12 years and older, has been proven to be safe in clinical trials and provided excellent efficacy in adolescents, and that NACI continues to strongly recommend  a complete series with an MNRA vaccine for all eligible individuals in Canada, including those 12 years of age and older, as the known and potential benefits outweigh the known and potential risks.

…..

[7]        Relying on these public documents and the authority of the court in A.C. v. L.L., I find that the applicable government authorities have concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to be vaccinated.

[26]      In the case O.M.S. v. E.J.S., 2021 SKQB 243, the Saskatchewan Court stated:

[112]   Applying that background to the matter before the Court, I conclude that I am able to take judicial notice of certain facts in the case before me. Firstly, I am able to conclude, without the necessity of specific proof, that Canada, and Saskatchewan in particular, have been in a Covid-19 pandemic which has resulted in a number of health and other restrictions being imposed to control the spread of the virus. Secondly, I am able to conclude without the necessity of any specific proof that the possibility of contracting the Covid-19 virus poses a serious and significant health risk to people generally, including children and adults.

[113]   Finally, and perhaps most directly relevant to the matters before the Court here, I conclude I am able to take judicial notice that the Pfizer Covid-19 vaccination is safe and effective for use in people, including both adults and children. I form this conclusion by taking judicial notice of the vaccine approval process in Canada and the approval by the health authorities of this particular vaccine. To argue it is experimental as is put forth by the mother and her supporting affidavits is not in accordance with the general knowledge available regarding this approval process and implementation.

[114]   I find these facts “to be so notorious as not to be the subject of dispute among reasonable people” (B.C.J.B. at para 188). These facts can be established by assessing sources that cannot reasonably be disputed to be accurate. These include health authority information put forth by Health Canada and the Saskatchewan Health Authority, amongst others.

[27]      In the decision S.W.-S. v. R.S., 2021 ONCJ 646, the Ontario Court stated:

[31]      All levels of government in Canada have issued health guidelines strongly urging people to become fully vaccinated – to protect themselves and to protect others in the community from contracting COVID-19. Vaccination is now the most important public health measure in fighting the pandemic. All levels of government have placed restrictions on the activities of persons who are unvaccinated to protect the general public – including requiring persons who work for the government to be fully vaccinated.

[28]      In the decision T.R.B. v. K.W.P.B., 2021 ABQB 997, the Alberta Court considered the father’s position to take a “wait and see” approach. Starting at paragraph 31, the court said:

[31]      Given its most generous interpretation, the father’s position is to take a “wait and see” approach to vaccine safety. This is not in the children’s best interests for the reasons set out below.

[32]      The vaccine is approved by Health Canada and is safe and effective for use in children age 5-11 and 12-17. The risks associated with vaccination are minimal and are outweighed by the risk of serious illness and death to unvaccinated individuals, including children. Vaccination is the children’s best protection against the illness given that we are living in a state of public health emergency, during a global health pandemic. It is important to recognize that the risk of illness at this particular point in time continues to be high, and that vaccination reduces the risk of contracting COVID-19 and suffering serious consequences as a result.

[33]      Vaccination will limit the risk of transmission and will allow the children to fully participate in school, extra curricular activities, social activities, and travel opportunities. This is important for their mental and emotional health and well-being.

[34]      Vaccination is consistent with the children’s historic healthcare and should be encouraged as a means of protecting their health and the health of others in their family and community. 

[35]      As such, vaccination serves the children’s best interests by protecting their physical health, fostering their psychological and emotional needs and imparting important social lessons to them about maintaining and protecting their health for the sake of themselves and those around them.

[29]      The court concluded that the risks of COVID-19 far outweighed the minimal risks of the vaccine. These concerns remain applicable today even if variants of the COVID-19 virus result in less serious symptoms for most people. I take judicial notice that to this day, people are still being hospitalized and dying from COVID-19.

[30]      In the decision R.S.L. v. A.C.L., 2022 BCPC 9, Judge Gouge found guidance in the Ontario decisions A.C. v. L.L. and St. Phard v. St. Phard, both of which I referred to earlier. Judge Gouge went on to say:

[6]        The latest guidance from the British Columbia Ministry of Health is posted on the government website, and dated December 29, 2021. It reads:

Like all COVID-19 vaccines in Canada, vaccines for children are free, safe and effective. When you get your child vaccinated, you protect them from severe illness from COVID-19 and reduce the spread of infection in your community.

For the reasons given in A.C. v L.L. @ paragraph 26 and St. Phard @ paragraph 5, that posting is admissible in evidence without the need for supporting evidence from a qualified expert.

[7]        By way of contradictory evidence, A.C.L. tenders his own summary of publications which are critical of COVID vaccination, and argues that the unknown risks of vaccination outweigh any possible benefits.

[8]        In short, R.S.L. proposes to make a parenting decision founded upon the advice of her family doctor and the publicly-stated position of the Ministry of Health.  A.C.L. opposes the decision upon the basis of statements by people whose qualifications are unknown.  Unfortunately, the issue would likely be rendered moot if I were to defer its adjudication to allow time for a trial with expert witnesses.  If A.L. needs to be vaccinated, she needs to be vaccinated now.

[9]        I order that R.S.L. make the decision about whether, how and when A.L. is to be vaccinated.

[31]      In the decision T.K. v. J.W., 2022 BCPC 16, Judge Heinrichs stated at paragraph 5:

[5]        As I will set out below, case law has determined that because the responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children, the vaccination is deemed to be in the best interest of the child unless there is compelling evidence to the contrary. I refer to the cases A.C. v. L.L., 2021 ONSC 6530 and A.S.N. v. K.E.K. 2021 BCSC 2435, which have also been applied here in British Columbia Provincial Court in R.S.L. v. A.C.L., 2022 BCPC 9.

[32]      As to whether a person should be vaccinated even after having recovered from COVID-19, Judge Heinrichs stated:

[35]      The British Columbia government and the British Columbia Center for Disease Control, recommend that even after a person has recovered from having COVID-19, he or she should be vaccinated to provide better immunity. I apply the same principles as above, that the responsible governments and public health authorities recommend the vaccine even after having had COVID-19 and that these authorities are in a better position than the Court to consider health benefits and risks associated with vaccination of children.

[33]      In the decision A.C. v. M.O., 2022 BCSC 219, the court considered the father’s argument to adopt a “wait and see” approach to the COVID-19 vaccine, even though the child was at risk of serious consequences if she caught the virus. The father downplayed the risk of catching COVID-19, noting that the government had not mandated vaccinations. The court stated:

[6]        In spite of the medical evidence, A.C. opposes the vaccine, arguing that it has only recently been approved for children and he feels that there are too many unknowns. A.C. urges that the parties take a “wait and see” approach as in his view, L. is not at significant risk of getting Covid-19 at school. In support of that proposition, he relies on the fact that the government of British Columbia has not introduced a vaccine mandate in schools. I pause to note that while he claims not to be against vaccines in general, A.C. has fought against M.O. having L. vaccinated for anything, including the flu (again, despite the recommendations of her doctors) since the parties separated.

[7]        There is no question that getting the Covid-19 vaccine is in L.’s best interests. The medical evidence is overwhelming and consistent that as a Type 1 diabetic, L. is vulnerable to serious consequences if she contracts the virus. The medical evidence is equally overwhelming and consistent that the vaccine is safe for children. Given that evidence, “wait and see” is not a reasonable or safe option. Neither is it in L’s best interests.

[8]        I order that M.O. is authorized to have L. vaccinated against Covid-19 at such time she deems appropriate. I further order that M.O. may take such steps as she deems necessary to prepare L., mentally and physically, for the vaccine.

[34]      In the decision J.F.P. v. J.A.G., 2022 BCPC 44, Judge Patterson stated:

[3]        I am required by the law, as it currently exists, to follow what is called precedent, and precedent has been very clear throughout Canada. The case law has determined that because the responsible government authorities have all concluded that the COVID-19 vaccines are safe and effective for children age 5 and older, vaccination is deemed to be in the best interest of the child unless there is compelling evidence to the contrary. You have given me no evidence to the contrary other than, for lack of a better term, your opinion.

[35]      In the decision G.W. v. C.M., 2022 BCPC 29, Judge Burnett stated:

[5]        Conflicts between separated parents regarding the decision to administer the COVID-19 vaccine to their children have been the subject of a number of recent court decisions throughout Canada. These decisions have established that a Court can take judicial notice of facts relating to the impact of COVID-19 and the safety and efficacy of vaccinations administered to combat COVID-19. In addition, they all find that because of our Federal and Provincial health authorities having determined that the COVID-19 vaccine is safe and effective for children it is deemed to be in a child’s best interest to be inoculated against COVID-19 unless there is compelling evidence to the contrary.

[36]      Earlier in my decision, I described the concept of “judicial notice” which allows a judge to accept certain facts without the need for evidence or proof. The case law I have described so far has accepted that a court can take judicial notice of the impact of COVID-19 and the safety and efficacy of COVID-19 vaccinations. That view is not universal. In the decision J.N. v. C.G., 2022 ONSC 1198, the Ontario Court refused to take judicial notice of the safety of the COVID-19 vaccine, requiring proof of such.

[37]      Subsequent court cases have rejected J.N. v. C.G. These include A.M. v. C.D., 2022 ONSC 1516 and K.D.B. v. K.B., 2022 NBQB 74.

Application of the Law to this Case

[38]      None of the documentary materials submitted by the parties meets the requirements set out in the Provincial Court Family Rules for the admission of expert evidence. However, the case law is clear that the court can take judicial notice of certain facts. I refer to para. 11 of the decision T.K. v. J.W., which I cited earlier:

[11]      In any event, my decision does not require my analysis of scientific evidence about the vaccine. Case precedent has already established that this Court may take judicial notice of various facts, without having to prove them. Those facts include that:

a)   Canada has been in a COVID-19 pandemic , resulting in a number of health restrictions being imposed to control the spread of the virus;

b)   contracting the COVID-19 virus poses a serious and significant health risk to both children and adults;

c)   the Pfizer COVID-19 vaccination is safe and effective for use in both children and adults.

[39]      From a review of the case law about the COVID-19 vaccine, the following principles emerge:

1)   The lack of a universal mandatory COVID-19 vaccination requirement does not mean the vaccines are unsafe.

2)   The Court may take judicial notice of the effects of COVID-19, including the risk of serious illness and death.

3)   The Court may take judicial notice of the safety of COVID-19 vaccines, especially when compared to the risks of COVID-19 itself.

4)   COVID-19 vaccination is deemed to be in the best interests of a child.

5)   The adoption of a “wait and see” approach to receiving the COVID-19 vaccine is not in the best interests of a child, especially when weighed against the risks of COVID-19 itself.

6)   Each of these principles may be rebutted by way of compelling evidence to the contrary.

[40]      Mr. H. prefers a “wait and see” approach to allow further time for information to be gathered about the effects of the vaccine. The minimal risks of receiving the vaccination must be weighed against the much greater risk of COVID-19. Although the children were able to recover from the virus the first time, there is no certainty that a second infection will not lead to serious consequences.

[41]      In accordance with the case law, I take judicial notice that COVID-19 poses a serious health risk. I also take judicial notice that COVID-19 vaccines are safe, and it is in the best interests of children to receive the vaccine.

[42]      The evidence submitted by Mr. H. does not rebut these presumptions.  The Lawyers for Justice blog post is not admissible as evidence as none of the information in the post is verifiable and there is no author named. At best, the blog post is an opinion that does not satisfy any of the requirements for an expert report under the Rules. Even if the blog post were admissible as evidence, it only raises unsupported suspicions.

[43]      Furthermore, Ms. T. bases her decision to seek vaccination on the recommendation of the children’s family doctor. There is no evidence to suggest that this recommendation is wrong.

[44]      Given the established case law and the lack of evidence to rebut the presumption of the safety and benefits of COVID-19 vaccination, I am satisfied that it is in the best interests of the children for Ms. T. to decide whether they should receive the COVID-19 vaccine.

[45]      I order that A.T. will have the parenting responsibility and authorization to obtain for the children the COVID-19 vaccination, including two doses, and a booster if and when recommended, without the consent of C.H.

 

 

_____________________________

The Honourable Judge W. Lee

Provincial Court of British Columbia