Plaintiff’s Argument

The mother’s material included an article by Dr. Robert Malone, the inventor of the mRNA vaccine; a Pfizer fact sheet; a peer-reviewed article entitled “Immunization with SARS Coronavirus Vaccines Lead to Pulmonary Immunopathology on Challenge with the SARS virus”; and an article from the Centers for Disease Control and Prevention (CDC) entitled “Clinical Considerations: Myocarditis and Pericarditis after Receipt of mRNA Covid-19 Vaccines among Adolescents and Young Adults”. [1]

Defendant’s Argument

Finally, the Court considered information obtained from the internet including a “Position Statement” from the Canadian Paediatric Society;  a document from the Government of Canada entitled “Vaccines for Children: Deciding to Vaccinate”; and an article from the Canada Communicable Disease Report entitled “COVID-19 Cases and Hospitalizations Surge Among Children”, all proffered by the father.  [1]

The father, meanwhile, submitted fact sheets issued by the government and the Canadian Paediatric Society, as well as “numerous downloads” from the mother’s social media accounts on allegations she was promoting conspiracy theories, the ruling says. [2]

Relevant Prior Judgements/ Cases

Other similar cases have ruled in favor of the children being  vaccinated

Decision

Weighing the Evidence

The mother’s evidence focused entirely on medical and scientific evidence while the father focused on labelling and discrediting his children’s mother in a dismissive attempt to argue that her views were not worthy of consideration. Why? Because she had a political affiliation with the People’s Party of Canada led by Maxine Bernier; had perpetuated covid-related conspiracy theories and vaccine hesitancy on social media; and failed to wear a mask at a large rally. [1]

Puzzled by this evidence, Justice Pazaratz queries how any of these allegations and many similar ones are relevant and how far is one to take “guilt by association”? [1]

He remarks that “it is of little consequence that an individual litigant chooses to advance such dubious and offensive arguments. Even though the father may not admit this, this is still a free country and people can say what they want…including him. But there’s a bigger problem here. An uglier problem.” [1]

the children’s views took centre-stage in the analysis. A Views of the Child Report indicated that neither child wished to be vaccinated, and Justice Pazaratz agreed that their views were not determinative, but also could not be completely ignored, relying on Article 12 of the United Nations Convention on the Rights of the Child and the list of factors to be considered as set out in Decaen v. Decaen 2013 ONCA 218. The Court reviewed the children’s histories of regular immunizations, and their consistent reasons for rejecting a covid vaccination, which did not appear to be frivolous, superficial, or poorly thought out. [1]

Finally, the Court considered information obtained from the internet including a “Position Statement” from the Canadian Paediatric Society;  a document from the Government of Canada entitled “Vaccines for Children: Deciding to Vaccinate”; and an article from the Canada Communicable Disease Report entitled “COVID-19 Cases and Hospitalizations Surge Among Children”, all proffered by the father. [1]

Justice Pazaratz noted that information obtained from the internet can be admissible if it is accompanied by indicia of reliability, including whether it comes from an official website from a well-known organization, whether the information is capable of being verified and whether the source is disclosed so that the objectivity of the person or organization can be assessed. [1]

However, he also remarked that in almost all cases in Canada where COVID vaccinations have been ordered the court has made a finding that on the face of it, the internet materials presented by the objecting parent have been grossly deficient and at times, dubious. “The lack of an equally credible counter-point to government recommendations may have well been determinative in those earlier cases”. [1]

Notably, the Court recited the warning from Pfizer, a company that makes the vaccine, as follows: [1]

“There is a remote chance that the Pfizer vaccine could cause severe allergic reaction… Signs of an allergic reaction include difficulty breathing, swelling of the face and throat, a fast heartbeat, a bad rash, dizziness and weakness. Inflammation of the heart have occurred in some people who have received the Pfizer vaccine….” [1]

Justice Pazaratz also quotes from Dr. Robert Malone who warns that [1]

“therapeutic approaches that are still in the research phase are being imposed on an ill-informed public” and that  “public health leadership has stepped over the line and is now violating the bedrock principles which form the foundation upon which the ethics of clinical research are built.” [1]

‘Anyone reading even some of the articles presented by the mother would likely conclude that these are complicated and evolving issues, and there can be no simplistic presumption that one side is right and that the other side is comprised of a bunch of crackpots. That’s why the court should require evidence rather than conclusory statements.” [2]

The father, meanwhile, provided no evidence that the mother’s views had been debunked, the judge wrote. [2]

On Government Mistakes

Justice Alex Pazaratz found that the vaccines’ potential side effects justified her caution. He cited a long list of rights abuses to explain why courts should not simply defer to government experts. [3]

Justice Pazaratz points out other areas of life and the law where the government was wrong, including the Motherrisk expert evidence that turned out to be disastrous for families; the residential school system; the sterilization of Eskimo women; and the thalidomide crisis of the 1950’s. [1]

“What about the residential school system? For decades the government assured us that taking Indigenous children away – and being willfully blind to their abuse – was the right thing to do. We’re still finding children’s bodies,”[3]

“How about sterilizing Eskimo [sic] women? The same thing. The government knew best. Japanese and Chinese internment camps during World War II? The government told us it was an emergency and had to be done. Emergencies can be used by governments to justify a lot of things that later turn out to be wrong.” [3]

on tolerance

Justice Pazaratz then identifies the intolerance, vilification, and dismissive character assassination in family court. He presumes that he is seeing more of it because it is “rampant outside the courtroom” and appears to be socially acceptable to denounce, punish and banish anyone who doesn’t agree with you. An example? A recent case where a mother sought to terminate a father’s equal parenting time with their child because he was “promoting anti-government beliefs”. Judge Pazaratz declares: “…in Communist China that request would likely have been granted”. But not in Canada, [1]

On Previous Cases

The ruling represents a departure from earlier Canadian cases involving disputes over COVID-19 vaccinations, where courts have taken what’s called “judicial notice” – essentially accepting statements as fact – that immunization is beneficial for children, said Alyssa Bach, an associate lawyer at Shulman & Partners LLp. [2]

We now have cases where judges have taken that judicial notice that the vaccine is in the best interest, and now one where it was decided that that wasn’t the case. And so it’s a reminder that each family’s circumstances, and the circumstances of the children, are going to be taken into consideration on a case-by-case basis,” she said Tuesday. [2]

“It’s notable that Justice Pazaratz, in his decision, did go through the other cases where this judicial notice had been taken and distinguished it and how this case was different than the other cases.” [2]

• In most of the previous cases, the children were younger, so their views on COVID-19 shots were “either unascertainable or less relevant because of the child’s lack of maturity,” the judge wrote in his ruling. [2]
• And in the cases where the children’s preferences were overridden, the court found the parent seeking vaccination had presented more reasonable information to the children and made more compelling arguments in court, Pazaratz said. [2]
• As well, the court in many of those cases found the materials presented by the parent opposed to vaccination were “grossly deficient, unreliable and – at times – dubious. This lack of an equally credible counterpoint to government recommendations may well have been determinative in those earlier cases,” he said. [2]
• Not so in the case at hand, the judge noted. [2]

Aftermath

The parties agreed in Minutes of Settlement that each party would have sole-decision making authority for the child(ren) in their care and control, however, their agreement also stated that: “The issue of LEG and MDG receiving a covid vaccine shall remain a live issue and shall be determined at a later date. The child CBG can determine whether or not he wants to be vaccinated now”. [1]

Jesse Herman, who represents the father, declined to say whether his client would seek to challenge the ruling. [2]

‘At this time, all I can comment is that we strongly disagree with the decision that was made,” he said in an email. [2]

References

1. Ground-Breaking Covid Decision in Family Law
2. What? There ‘s A Common Sense Judge In The House , And The Mainstream Media Carried It?
3. Ontario judge rules mother doesn’t have to vaccinate children against COVID-19

Keyword

Canada, Child, Children, China, Communist, ethics, Family, Father, Heart, Inflammation, Justice, Malone, mis-information, Mother, Motherrisk, myocarditis, Ontario, Parents, Pazaratz, Pfizer, sterilization of Eskimo women, thalidomide, United Nations Convention on the Rights of the Child, Vaccination