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Vaccinations? – Yes. Government health standards? – Yes. Sundry internet dribble as admissible evidence? – No.

Introduction: For purposes of Ontario family law, the debate regarding children receiving vaccinations over the objection of one parent is now effectively over.  In addition, judges have brought much-needed clarification as to what sort of ‘evidence’ is admissible at such interim motions.

The First Covid Debate – School Attendance: The debate during the early stages of the Covid epidemic was whether a child of separated parents should be permitted to attend school over the objections of one parent.  During those days in 2020, parents quite often held opposing views concerning school attendance.

Our firm was involved in what we believe to be the second such case included in the law reports in Ontario.  The father, Z, believed that his daughter’s best interests would be better served if she were to continue in online learning for the start of Grade One in September 2020.  The mother argued that the child should return to in-person learning.

What the government says, goes!: Justice Akbarali’s bottom line in Z. v. S. was that government edicts as to the safety of its students in class were to be followed.  Justice Akbarali adopted the approach of Justice Himel in Chase v. Chase (a decision released just days prior Z. v. S.) whereby a Quebec decision – Droit de la famille – 20641 – that advocated government as the supreme arbiter of these issues should be respected.  Justice  Akbarali endorses this quote from Justice Himel:

The Ontario government is in a better position than the courts to assess and address school attendance risks. The decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards. The teachers’ unions and others have provided their input as well as their concerns.

Nature of the Evidence: Justice Akbarali then struggled with the nature of the evidence with which courts were faced:

[24]   The problem is that the parties making these arguments are unlikely to be experts, and there is no expert evidence offered to explain or contextualize any of the allegations being made. Even leaving aside the hearsay concerns, without expert evidence, the court is not in a position to evaluate whether the Sick Kids report is correct on any given point, or whether an expert quoted in a newspaper article in opposition to the conclusions reached by Sick Kids is correct, or if neither are.

The nature of evidence at interim motions is an issue that has long plagued the Ontario courts.  While hearsay is allowed in some situations[1], this author would argue that one should never hang their hat on such evidence save and except where that evidence comes under the rubric of a recognized exception to the hearsay rule.  And one must pay particular attention to ensure that whatever evidence is included in affidavits – well, it just has to be admissible for starters.

Willy Nilly Hearsay – No!: Justice Vogelsang in 1990 in Lisanti v Lisanti, rang a cautionary bell that lawyers and judges have unfortunately frequently ignored for more than two decades now.  The Mother put forward as an exhibit “a lengthy prose statement” that covered many aspects of the Father’s alleged abusive behaviour.  His Honour stated in paragraph 4:

The allegations made in the exhibit are clearly stated to be hearsay.  The tone is highly pejorative and prejudicial to the husband.  The exhibit is not in affidavit form.  No one swears as to the source of information outside his or her knowledge and is deposed to a belief that the statements are true.  Not the subject of an affidavit, no one can cross-examine the statements or the source of the information.

The judge continued his analysis:

[5]   There has been a disturbing tendency in recent months to attempt to incorporate, in motion material, renditions of statements allegedly made by parties or other sources without their inclusion in an affidavit.  The rules, however, require evidence on a motion to be by way of an affidavit.  The basis of that requirement is obvious.  Without the possibility of testing an allegation through cross-examination, there is an incentive to swell the evidence freely with unsupported statements by persons not clearly identified and, therefore, safe from inquisition.  That is the situation with this exhibit.

[6]   … It is not enough to characterize the requirement in the rules as a “general rule” only.  The fact that the statements made may possess some superficial relevance does not, in my view, transform inadmissible evidence into an acceptable form.  If the respondent wishes to describe events during her marriage or happenings that were said by somebody else to have occurred during an access visit, then she must state them herself in an affidavit, if they are to be considered.  The production of these statements in their present form is improper, greatly prejudicial, and scandalous.  It cannot be salvaged by resorting to a plea concerning urgency or the demands of time.  I will give them no consideration whatsoever in deciding this motion.

Lisanti has been followed in many cases[2] but unfortunately, this writer’s and others’ experience in family court leads one to believe that the requirement for evidence to be in the first instance “admissible” tends to be all too often ignored.

Covid Evidence: All this leads us to examine the nature of evidence in Covid cases – where such “evidence” was not properly admissible.

We have over two years of COVID litigation since those earlier cases that I discussed above. The trend appeared to be that vaccinations “yes” were ruling the day (based upon government imprimatur) until Justice Pazaratz of the Ontario Superior Court of Justice came out with his startling, unconventional, anti-establishment, and uncharacteristically (at least for this highly respected jurist) nonsensical legal arguments in J.N. v. C.G.

But then the Ontario Court of Appeal weighed in. The Appellant-father relied primarily on information from Health Canada and the Canadian Paediatric Society to support his arguments that the children should be vaccinated.  The Respondent-mother “relied on information obtained from the Internet, primarily from those who cast doubt on the importance and safety of the vaccine.”  So just what hearsay evidence could the court rely upon?

The Court of Appeal held that the public document exception to the hearsay rule should have caused the motions judge to seriously consider the father’s evidence while the mother’s random internet sources from unqualified individuals did not even pass the admissibility test.  It followed that the father’s appeal was successful and the court then entrusted him with full vaccination decision-making.

The appellate court reminds us that the first step is to determine admissibility and not whether arguments are thought-provoking or not:

[17]   In my view, the motion judge fell into error by not assessing whether each document presented by the respondent was reliable, independent, unbiased, and authorized by someone with expertise in the area. Instead of engaging in an analysis of the evidence presented, he embarked on a lengthy discussion about whose materials were more thought-provoking, which has no bearing at all on whether the respondent’s materials were admissible and should be given any weight.

Let us take note of the Evidence Act where we learn that public documents form an exception to the hearsay rule:

[25]   Section 25 of the Evidence Act provides that:

Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof, and other public documents purporting to be published by or under the authority of the Parliament of the United Kingdom, or of the Imperial Government or by or under the authority of the government or any legislative body of any dominion, commonwealth, state, province, colony, territory or possession with the Queen’s dominions, shall be admitted in evidence to prove the contents thereof.

Once a document is found to be admissible under this exception to the hearsay rule, the appellate court reminds us that as a bare minimum, the motions judge should have explained just why he chose to so severely discount that patently admissible evidence:

[28]   Again, this does not compel a judge to give the evidence any weight, but given the purpose behind s. 25 and the public document exception, there is at least an obligation to explain why materials like those filed by the appellant are not trustworthy, which the motion judge’s reference to some of Canada’s historical misdeeds – all false equivalencies – fails to achieve.

It is important that we not force litigants to have to relitigate the government-recognized science:

[29]   I would also note that there is no question that: 1) there is a COVID-19 pandemic; 2) this disease kills people, including children; and 3) the vaccines available to Canadians, including children ages 5 and older, have received regulatory approval. The problem, apart from the question of judicial notice, is that it is simply unrealistic to expect parties to relitigate the science of vaccination, and the legitimacy of public health recommendations, every time there is a disagreement over vaccination.

We now have two more recent appeal cases from the Ontario Divisional Court (both released simultaneously on 14 March 2023), where the court takes a deeper dive into the nature of the evidence that is admissible at interim motions – Spencer v. Spencer, 2023 ONSC 1633  and A.V. v. C.V. 2023 ONSC 1634

Let’s take a look at A.V. v. C.V.:

[1]   Both appeals more specifically raise the question of whether, and the degree to which, the motion judge was permitted to rely on government-published recommendations and other information regarding the COVID-19 vaccine in the assessment of the best interests of the child.

In both cases, the Divisional Court relied upon the Ontario Court of Appeal in J.N. v. C.G.

[6]   For the reasons that follow, the appeal is dismissed. Under the guidance provided by the Court of Appeal in J.N. v. C.G., the motion judge in this case was correct to put weight on the Government of Canada’s recommendation that children be vaccinated against COVID-19. Further, in the face of that regulatory approval, the motion judge was correct to put the onus on the mother to establish that the child should not be vaccinated.

Is now established beyond any doubt at all that motion judges should first and foremost rely upon government pronouncements concerning vaccinations and the onus will fall on the objecting parent to displace that presumptive approach that the government is always right.

[11]   The first issue raised in both appeals is whether the motion judge erred in admitting into evidence government recommendations concerning vaccination. That question has now been settled by the Court of Appeal in J.N. v. C.G. As George, J.A. stated in that case at para. 26, reports of public officials are admissible into evidence for the truth of their contents, pursuant to the public document exception to the hearsay rule: see also A.C. v. L.L.2021 ONSC 6530, 159 O.R. (3d) 600, at para. 26A.P. v. L.K.2021 ONSC 150, 51 R.F.L. (8th) 334, at paras. 147-173. The reason for the exception is not only the inherent reliability and trustworthiness of public documents but also to avoid the inconvenience of public officials having to be present in court to prove the documents. Section 25 of the Evidence Act, R.S.O. 1990, c. E.23 also provides that certain public documents as defined in that provision, including those published under the authority of the government of any “dominion, commonwealth, state…shall be admitted into evidence to prove the contents thereof.”

Reliance upon government pronouncements and taking judicial notice of notoriously well-known facts the court finds promotes the primary objective of the Ontario Family Law Rules:

[15]   Indeed, both the public documents exception and judicial notice of these facts promote access to justice and the primary objective of the Family Law Rules, O. Reg. 114/99. They save the parties the time and expense of collecting expert evidence, which is a particularly challenging task in an interim motion.  As stated in J.N. v. C.G., at para. 29, “It is simply unrealistic to expect parties to relitigate the science of vaccination and legitimacy of public health recommendations, every time there is a disagreement over vaccination.” These principles allow the parties instead to focus on the central question: the best interests of the child. See A.P. v. L.K., at para. 186

To remove any doubt at all, both admissibility and onus are emphasized:

[18]   In short, government publications and recommendations may be admitted into evidence. Once admitted, regulatory approval of the vaccine places the onus on the objecting party to demonstrate that the child should not be vaccinated. The motion judge is to make this determination in the best interests of the child.

Here are the lessons to be learned from what I would like to call the “Ontario courts’ anti-Justice Pazaratz appellate trilogy”:

  1. Your motion evidence must first and foremost be admissible. Ie. It is direct evidence without hearsay; it is expert evidence; or, it is evidence that comes within a recognized exception to the hearsay rule.
  2. You do not have to relitigate basic accepted science. You are not obliged to prove through expert evidence that vaccines are good.  The government has already told you that they’re good.
  3. You can refer to public government pronouncements. It’s an exception to the hearsay rule.
  4. Once such evidence is admitted, the onus shifts to the vaccine-adverse parent to prove his / her case based on the particular child’s best interests. (And you had best not use questionable bric-a-brac from the internet.).

[1] See Frances Wood: Hearsay Evidence on Motions – Necessity and Reliability”, 35 OFLR 51

[2] Most recently see Nouri v. Watters, 2022 ONSC 5181 at para 113: “… a letter appended to an affidavit is not evidence.”

For more information, you can read this article.

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