Background

This was a matter involving parties who had been married for seven years with three children. Here, the issue was regarding which parent would have decision-making authority regarding the COVID-19 vaccine for the two youngest children, aged 10 and 12 at the time. The father wished for the children to be vaccinated, while the mother did not.

The motion brought by the father was dismissed, and the judge found that it would not be in the children’s best interests for the father to have decision-making authority over their COVID-19 vaccines.

The father now appealed the motion judge’s decision.

Issue

Should the husband’s appeal be allowed?

Analysis

The Court could only review the judge’s decision had he made a “palpable and overriding error”. In family law proceedings specifically, where parenting time and decision-making authority are at issue, the standard of review is narrow, with a high degree of deference being attached to the original decision. The Court is only willing to step in if an error of law or “a material error in the appreciation of the facts” was made.

Here, the Court found that such an error had been made in several respects.

The judge had given little weight to the father’s materials (which provided proof of the vaccine’s safety), whilst giving considerable weight to those of the mother. He incorrectly relied on the mother’s materials, which were simply posts people had published on the internet, as “expert evidence” and did not assess whether each document was reliable, independent, unbiased, and authorized by someone with expertise in the area.

Moreover, the judge had ignored the fact that all regulatory health agencies had approved the vaccine for children 5 and younger. Although it was within the judge’s discretion to opt to take judicial notice of this fact, several courts had already done so and accepted the safety and importance of pediatric COVID-19 vaccines.

The judge also chose to treat the government’s approval of the vaccine as irrelevant, citing various instances in history to explain why one should not rely on government sources. He did not review the father’s materials comprehensively, and he incorrectly shifted the burden of proof – where one party seeks to have a child treated by a Health Canada-approved medication, the onus should be on the objecting party to show why the child should not receive the medication.

Finally, the weight the judge afforded to a Voice of the Child report, stating that both children had expressed their views of not wanting to get the vaccine, was questionable. The judge had found that the children’s views were “strongly held and independently formulated”. However, he failed to consider various statements made by the children that showed that they had been coached, or at least influenced, by their mother.

Conclusion

The Court of Appeal allowed the father’s appeal, set aside the motion judge’s order, and granted the father sole decision-making authority pertaining to the vaccine.