By Munera Lawyers
Introduction
When parties with children separate, decision-making responsibility often becomes a major turf on which parents fight for control. The issue of whether or not to vaccinate children against COVID-19 has amplified this challenge, with parties seeking relief through the courts. Parents in favour of having their children vaccinated have sought to present their position as established facts with little room for debate. However, in J.N. v. C.G.[2] Justice A. Pazaratz addressed this as a flawed approach, calling into question situations where judicial notice has been taken of COVID-19 related issues that remain contentious.
Background
In J.N. v. C.G[3] the parties had three children, but the case concerned vaccination of their two youngest children aged 12 and 10 (collectively the “Children”). The crux of the matter was that the father wanted the Children to receive COVID-19 vaccines, while the mother did not. The mother’s position was not that she was against vaccines; she had ensured that her children were in receipt of all regular vaccines. Rather, based on the results of her own research, she expressed concerns about significant potential risks of the vaccine to the Children, indicating that this was uncharted territory and that “once children are vaxed, they can’t be unvaxed.”[4] Of note in this case was that the Children had previously had COVID-19, had displayed minimal symptoms, and had fully recovered. The mother referenced medical research that indicated that this resulted in stronger protection from the virus. It is further worth noting that the Children were themselves opposed to receiving COVID-19 vaccines.
Judgement in this case was rendered in favour of the mother. Justice Pazaratz, in dismissing the father’s motion, explained that the mother had presented a well-reasoned argument based on available materials and on her concerns about the risks of the vaccine to the wellbeing of the Children. The father on the other hand, had employed personal attacks aimed at vilifying and discrediting the mother.
Analysis
Judicial notice, defined as “[a] court’s acceptance, for purposes of convenience and without requiring a party’s proof, of a well-known and indisputable fact;”[5] plays a crucial role in the effective disposition of cases, allowing courts to be judicious with scarce judicial resources. The Supreme Court of Canada in R v. Find[6] states,
…Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy[7]
Yet, as Justice Pazaratz points out, the judgement from Saint-Phard v. Saint-Phard[8], building on a number of earlier cases, takes a contrary stance, asserting that “[f]acts may be found by taking judicial notice.”[9] The judgement then proceeds to lay out a litany of “facts” surrounding COVID-19 such as the fact that the vaccines have been approved for use in children and the fact that all levels of government have actively promoted the need for individuals to get vaccinated.[10] However, are these truly “facts” of which judicial notice can be taken? On the surface of it, it may seem so, but a probe of the issues reveal otherwise.
While government officials and medical professionals are touting the benefits of COVID-19 vaccination and the need to have children vaccinated, one cannot help but wonder if and to what extent the issue has been politicized. After all, as Justice Pazaratz points out, there are other notable medical experts and Pfizer, a major manufacturer of the vaccines that have produced dire warnings about the side effects associated with these vaccine.[11] It could very well be that the benefits of children obtaining the COVID-19 vaccine far outweigh the side effects. The challenge is that we do not yet know this to be a fact. At least not in the same way that we “accept that the sky on a clear day is blue”. There is no need to expend valuable and scarce court resources to debate this particular fact. The efficacy and impact of COVID-19 vaccinations, however, remain contentious. Consequently, at the very least, what information is available on the vaccines particularly as they pertain to the welfare of children should be subject to rigorous examination.
Justice Pazaratz, in his judgement in the case at hand, reviews various instances in which history repeatedly demonstrated that in hindsight, the government did not always know best.[12] He states that “[t]he list of grievous government mistakes and miscalculations is both endless and notorious. Catching and correcting those mistakes is one of the most important functions of an independent judiciary.”[13]
The point is clearly articulated that there ought to be well-reasoned debate surrounding issues of critical importance, particularly as they relate to children. In this case, evidence submitted by both parties largely centred on materials downloaded from the internet. In assessing the reliability of the evidence, Justice Pazaratz lay out the following criteria established in ITV Technologies Inc. v. WIC Television Ltd.[14] and Sutton v. Ramos[15]
- Whether the information comes from an official website from a well-known organization;
- Whether the information is capable of being verified;
- Whether the source is disclosed so that the objectivity of the person or organization posting the material can be assessed.[16]
He makes the crucial point that even after the “admissibility” threshold is met, there is still the decision to be made as to what weight must be given to the evidence.
In the case at bar, Justice Pazaratz ponders that perhaps a major driving force behind earlier judgements on COVID-19 cases has been the need to avoid irresponsibly undermining confidence in public health measures.[17] Instantly, he provides a compelling counter stating, “But that has to be weighed against our unbridled obligation to leave no stone unturned, when it comes to protecting children.”[18] With Ontario Courts fully vested in ensuring the bests interests of children[19], this latter sentiment must be keenly pursued including in every COVID-19 case that arrives in court.
Justice Pazaratz poses a critical question which is whether courts can simply take judicial notice of the fact that children ought to be vaccinated against COVID-19? He makes the case that if this is so, then there is no need to waste judicial time and resources. If the courts are of the opinion that all children must be vaccinated, then it should be clear that that is their position. If, on the other hand, that is not so, then conversely, the practice of taking judicial notice of COVID-19 positions must be halted.[20]
Conclusion
This caution ought to be taken to heart because matters that significantly impact the lives of children goes to their best interests. Determining the best interests of a child in a particular situation must be an exercise driven by the analysis of the facts of that particular case. Without permitting questions to be posed and answers to be dissected, without making allowance for an in-depth assessment of such, how is a proper determination to be arrived at? The facts of each case where parents are diametrically opposed on the issue of their children receiving COVID-19 vaccines must be put to a rigorous test. Only when a party’s position has been thoroughly vetted vis-à-vis all relevant evidence provided should the court rule on the issue of whether or not the children involved must be vaccinated.
[1] 2022 ONSC 1198 (CanLII).
[2] Ibid.
[3] Ibid.
[4] Ibid at para 16 (j).
[5] JUDICIAL NOTICE, Black’s Law Dictionary (11th ed. 2019).
[6] 2001 SCC 32 (CanLII), [2001] 1 SCR 863.
[7] Ibid at para 48.
[8] 2021 ONSC 6910 (SCJ).
[9] Ibid at para 5.
[10] Ibid at para 5.
[11] Supra note 1 at para 60 and 56.
[12] Ibid at para 67.
[13] Ibid at para 67 (g).
[14] 2003 FC 1056.
[15] 2017 ONSC 3181 (SCJ).
[16] Supra note 1 at para 48.
[17] Ibid at para 54 (d).
[18] Ibid at para 54 (e).
[19] Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(1) and 16 (3).
[20] Supra note 1 at para 65.
NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.