G.W. v. C.M., 2022 BCPC 29

Citation: G.W. v. C.M. 2022 BCPC 29 Date: 20220207 File No: 107824 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: G.W. APPLICANT AND: C.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BURNETT Appearing in person: G. W. Counsel for the Respondent: L. Thompson

Place of Hearing: Kelowna , B.C. Date of Hearing: February 7, 2022 Date of Judgment: February 11, 2022 [ 1 ] C.M. and G.W. were married in June of 2011. On August 13, 2012 their daughter A.W. (“A.W.”) was born. In April of 2014, their relationship broke down and they separated. They formalised the dissolution of their marriage in a written separation agreement dated June 18, 2015 (the “Agreement”).

The Agreement, amongst other things, stated that they were to have “joint responsibility for the care” of A.W. [ 2 ] The parties are of differing opinions regarding the issue of having A.W. vaccinated with the COVID-19 vaccine. G.W. believes she should receive the vaccine forthwith whereas C.M. believes she should not. C.M. feels it is more prudent to wait until more is known about any possible negative health outcomes arising from the long-term effects of the vaccine on young children.

C.M., pursuant to an Application about a Priority Parenting Matter, asks that she be given the parenting responsibility to decide if A.W. should be vaccinated and for an order that A.W. not be vaccinated. ISSUE [ 3 ] The issue I must address is whether it is in A.W.’s best interest to receive the COVID-19 vaccine forthwith. THE LAW [ 4 ] In determining this issue I am directed by

section 37 of the Family Law Act (the “ FLA ”) to only consider what is in the best interest of A.W. Any order I pronounce must ensure that it protects, to the greatest extent possible, A.W.’s physical, psychological and emotional safety, security and well-being. In assessing what is in her best interest, I am to consider all of her needs and circumstances. These include her health and emotional well-being.

The history of her care and the appropriateness an arrangement that would require her parents to cooperate on issues affecting her including whether requiring cooperation would increase any risk to her safety, security or well-being. [ 5 ] Conflicts between separated parents regarding the decision to administer the COVID-19 vaccine to their children have been the subject of a number of recent court decisions throughout Canada.

These decisions have established that a Court can take judicial notice of facts relating to the impact of COVID-19 and the safety and efficacy of vaccinations administered to combat COVID-19. In addition, they all find that because of our Federal and Provincial health authorities having determined that the COVID-19 vaccine is safe and effective for children it is deemed to be in a child’s best interest to be inoculated against COVID-19 unless there is compelling evidence to the contrary. [ 6 ] Judge Heinrichs of this Court helpfully summarized a number of them in her decision of T.K. v.

J.W. 2022 BCPC 16 commencing at paragraph 11 : [11]…Case precedent has already established that this Court may take judicial notice of various facts, without having to prove them. Those facts include that:

a) Canada has been in a COVID-19 pandemic, resulting in a number of health restrictions being imposed to control the spread of the virus;

b) contracting the COVID-19 virus poses a serious and significant health risk to both children and adults;

c) the Pfizer COVID-19 vaccination is safe and effective for use in both children and adults. [12] I refer to the case O.M.S. v. E.J.S. , 2021 SKQB 243 , paragraphs 112 through 114. [13] I further refer to the case TRB v. KWPB, 2021 ABQB 997 , at paragraphs 12 and 32 where the court takes judicial notice of Health Canada’s approval of the Pfizer-BioNTech vaccine for use in children aged 5-11, and that the vaccine is not experimental but deemed safe and effective for use in children. [14] I refer also to A.C. v.

L.L. , 2021 ONSC 6530 , paragraphs 28 and 34 where Justice Charney states with reference to various Canadian public health authorities that, “these government and public health authorities are in a better position than the courts to consider the health benefits and risks to the children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated.” [15] This principle was recognized by the BC Supreme Court a few weeks later in A.S.N. v. K.E.K. , 2021 BCSC 2435 .

At paragraph 44 Justice Weatherill writes: “Now, respecting vaccinations, I understand that to date C.N. has received no vaccinations of any kind. The responsible governments and public health authorities have all concluded that vaccinations of children are safe and effective. These authorities are in a better position than the Court to consider health benefits and risks associated with vaccination of children.

In my view, absent compelling evidence to the contrary, the general proposition is that it is in the best interests of children to receive vaccinations as recommended by the public health system.” [ 7 ] These cases establish a presumption that can only be rebutted by compelling evidence that shows that it would not be in a child’s best interest to be vaccinated. Compelling evidence may involve situations in which the child is known to be allergic to vaccines or has

underlying health issues that would place her or him at greater risk from the vaccine than the risk of contracting COVID-19. There are no doubt other examples that may be applicable. THE EVIDENCE [ 8 ] The parties filed a number of Affidavits in support of their respective positions. Both parties attached a number of exhibits to their Affidavits.

These exhibits included publications from the BC Center for Disease Control regarding the administration of COVID-19 vaccinations to school children from kindergarten to grade 12 and statistical analysis of reported side effects following the administering of COVID-19 vaccines published by the Public Health Agency of Canada. [ 9 ] C.M. in her Affidavit filed January 14, 2022 stated that she was not an “anti-vaxxer”. She said that she has herself received two doses of a COVID-19 vaccine and that A.W. has received the full course of vaccines recommended for children.

These being the polio, measles, mumps, and rubella vaccines. She said that she does not want A.W. to receive the COVID-19 vaccine because she is of the opinion, based on her review of information available on the Health Canada, the World Health Organization (“WHO”), and Immunize BC websites, that there are far too many known risks (being side effects) and unknown risks to risk her daughter receiving it.

Additionally she said that as the statistical evidence published by Immunize BC and the WHO states that children and adolescents have milder symptoms and less severe health outcomes from contracting COVID-19 than adults there may be a greater risk of adverse effects from the vaccine to A.W. than from her catching COVID-19. [ 10 ] G.W. in his Affidavit stated that he disagrees with C.M. that they should wait to have A.W. vaccinated against COVID-19. He said A.W. needs to be vaccinated to help mitigate the effects of the virus should she catch it.

He also stated that A.W. has no underlying health conditions that would prevent her from receiving the vaccine. [ 11 ] I was not presented with any evidence that established that A.W. had any known medical reasons as to why it would be unsafe for her to receive the vaccine. DISCUSSION [ 12 ] I do not doubt the veracity of C.M.’s concerns regarding her daughter receiving the COVID-19 vaccine. C.M. is not someone who has fallen into the quagmire of conspiracy theories regarding the COVID-19 pandemic or the vaccines developed to combat it.

I accept she honestly believes that it is not in A.W.’s best interest that she be vaccinated at this time. She does not think it is safe for her daughter. She has concluded that the risk of known side effects and the risk of possible unknown side effects emerging later in life is greater than the risk to A.W. of contracting COVID-19. [ 13 ] However, her conclusion is contrary to the conclusion of all of the public health authorities in Canada.

They have determined that it is safe to administer the COVID-19 vaccine to children of A.W.’s age. [ 14 ] Our responsible governments and public health authorities are in a better position than the Court to consider the health benefits and risks associated with children being vaccinated. They have recommended that children be vaccinated. [ 15 ] Canadians of all ages have now received millions of doses of the COVID-19 vaccine. It has been very effective in minimizing the severity of illness from the disease.

The number of individuals who have experienced adverse reactions to receiving it has been minimal. [ 16 ] There is no evidence that A.W. cannot receive the vaccine because of a known health risk to her. In other words, there is no compelling evidence as to why A.W. should not receive the COVID-19 vaccine. C.M. has not rebutted the presumption that it is in A.W.’s best interest to be vaccinated. [ 17 ] G.W. wants to have A.W. vaccinated promptly. He bases his decision on the recommendation of health authorities. It is in her best interest that she be vaccinated. A delay in her receiving it puts her health at risk.

CONCLUSION [ 18 ] A.W. being inoculated against COVID-19 is in her best interest. [ 19 ] G.W. is the parent best able to exercise this parenting responsibility. [ 20 ] In the circumstances I dismiss C.M.’s application that A.W. not receive the COVID-19 vaccine. I order that G.W. has the parenting responsibility and authorization to obtain the COVID-19 vaccination, being two doses, and a booster, if recommended, for A.W., without the consent of C.M. ____________________________ The Honourable C. Burnett Provincial Court Judge