Earlier this month, the Court of Appeal released an important decision that will likely play a significant role in resolving disputes regarding vaccinating children. In J.N. v. C.G., 2023 ONCA 77, the appellant father and respondent mother were separated and shared three children. All of the parenting issues were resolved in minutes of settlement, with the respondent having sole decision-making responsibility for the two youngest children. The only outstanding matter was who should have decision-making authority for the same two youngest children regarding the COVID-19 vaccine. The appellant wanted decision-making authority because reputable health authorities said it was safe and effective to give children aged five and older the vaccine. In contrast, the respondent believed that sources had successfully questioned the vaccine’s efficacy and safety. She also claimed that the children did not want the vaccine.

The appellant brought a motion for sole decision-making responsibility for this limited issue. The motion judge dismissed the motion and did not take judicial notice (i.e. accept as legal truth/norm) of the vaccine’s efficacy and safety, determining that the current vaccine information was a moving target and there was no uniform opinion on the safety of the COVID-19 vaccine. Looking to Canada’s history of forced sterilization of Inuit women, Japanese interment during World War II and Thalidomide usage as well as other examples, the motion judge held that given a history of government errors, the court should not take judicial notice that would find the government is always correct.

This decision was appealed by the appellant, who argued that the motion judge erred in:

  1. Relying on the respondent’s online expert evidence as reliable;
  2. Holding that the appellant’s evidence from public health authorities was disputed;
  3. Granting the Voice of the Child Report tremendous weight and
  4. Requiring the appellant to have the onus of proving why children should be vaccinated.

The Court of Appeal found that the motion judge erred in each of these areas.

In providing an opinion about judicial notice for all children’s medications and not just the COVID-19 vaccine, the Court of Appeal held at paragraph 45, “judicial notice should be taken of regulatory approval, and regulatory approval is a strong indicator of safety and effectiveness. That being the case, where one party seeks to have a child treated by a Health Canada-approved medication, the onus is on the objecting party to show why the child should not receive that medication. The motion judge erred by reversing that onus.” The Court allowed the appeal, set aside the motion decision and awarded sole decision-making authority on the issue of the children’s vaccinations against COVID-19 to the appellant.

Five days later, the decision in J.N. v. C.G. was already distinguished in J.W.T. v. S.E.T., 2023 ONSC 977 where the matter of vaccines has been scheduled for a future trial to give both parties sufficient time to find expert evidence.

It is too soon to know how this Court of Appeal ruling on judicial notice for Health Canada-approved medications will be applied in other family law and substitute decision-maker decisions. We will continue to monitor these changes so as to best advise our clients.

If you need assistance with family law decision-making responsibility disputes or substituted decision maker questions, our experienced Family Law and Estates Law lawyers can help you. To learn more about how we may assist you and to book a consultation, contact us online or by telephone at (416) 863-0125.

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