T.K. v. J.W., 2022 BCPC 16

Citation: T.K. v. J.W. 2022 BCPC 16 Date: 20220201 File No: 116276 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.K. APPLICANT AND: J.W. RESPONDENT RULING ON APPLICATION OF THE HONOURABLE JUDGE C. HEINRICHS

Counsel for the Applicant: J. Chalkley Appearing on their own behalf: J.W. Place of Hearing: Kelowna , B.C. Date of Hearing: January 26, 2022 Date of Judgment: February 1, 2022 [ 1 ] T.K. and J.W. are the parents of N.W., 11. They separated in 2016. The court has acknowledged each as a guardian of N.W., and has granted a number of interim parenting time orders and a final child support order. The parties have a trial scheduled for July 2022 to determine parenting responsibilities and parenting time.

There is no interim order designating parenting responsibility. [ 2 ] The parents have different views about whether or not N.W. should be vaccinated with the COVID-19 vaccine.

T.K. brings this Application about a Priority Parenting Matter for an order that: 1) N.W. be vaccinated with the COVID-19 pediatric vaccine, forthwith, with T.K. to facilitate the vaccination and J.W. to cooperate; and 2) N.W. not be in the physical presence of J.W. until both N.W. and J.W. are vaccinated, or alternatively that all time that N.W. spends with J.W. be outdoors, or indoors if both are masked the entire time. [ 3 ] J.W. is opposed to having N.W. vaccinated, believing that the vaccine is too new to know the long-term impacts, that N.W. has already developed immunity as a result of recovering from COVID-19 last week, and that the risk of harm from the vaccine outweighs the possible benefit he may receive from the vaccine.

He further believes that this application is an attempt by T.K. to reduce or prevent contact between him and N.W. based on falsehoods. THE ISSUES 1) Is it in N.W.’s best interest to receive the COVID-19 vaccine? 2) Should J.W.’s parenting time be adjusted depending on N.W.’s or J.W.’s vaccination status? THE LAW [ 4 ] The Family Law Act (s. 37) requires that the Court must only consider the best interest of the child. The order must protect to the greatest extent possible, the child’s physical, psychological and emotional safety, security and wellbeing.

Some of the factors to consider in determining N.W.’s best interests include the ability of each parent to exercise parental responsibility, whether requiring cooperation between the parents would increase risks to the safety, security or well-being of the child or other family members, and the views of the child, unless inappropriate to do so. [ 5 ] As I will set out below, case law has determined that because the responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children, the vaccination is deemed to be in the best interest of the child unless there is compelling evidence to the contrary.

I refer to the cases A.C. v. L.L. , 2021 ONSC 6530 and A.S.N. v. K.E.K. 2021 BCSC 2435 , which have also been applied here in British Columbia Provincial Court in R.S.L. v. A.C.L. 2022 BCPC 9 . THE EVIDENCE [ 6 ] Due to the priority nature of the application, the hearing was

summary and proceeded with evidence provided by affidavit. [ 7 ] The affidavits contained considerable hearsay evidence from third parties, for example evidence from the Central Okanagan Soccer Association contact. I have not considered the hearsay in my decision. [ 8 ] M., the 22 year old son of T.K. and step-son of J.W., filed an affidavit setting out his own understanding of why the parties separated in 2016, and described his recollection of some events that have occurred between them since their separation. Most if not all of that information is not relevant to the application before me.

M. provides his opinion about COVID-19 attaching numerous articles and print-outs from the internet, none of which is properly before the court as evidence. M. attaches to his affidavit what he purports to be text messages between himself and his mother. T.K. denies M.’s understanding of her texts, and I agree that the texts are subject to

interpretation. I have not placed weight on M.’s evidence in coming to my decision as it is either inadmissible or largely irrelevant. [ 9 ] J.W. included additional information, both direct and hearsay, in his oral submissions. I have not considered that information in my decision. [ 10 ] Affidavits filed in support of J.W.’s position attach references to various scientific documents, links, and purported expert opinions attempting to support the inefficacy of the COVID-19 vaccine.

There are problems with the admissibility of information that is printed from the Internet or is submitted with the intent of offering an opinion to the court, without meeting the requirements of expert evidence. I have not considered the purported medical or scientific information in my decision. Presumption and rebuttal of the presumption [ 11 ] In any event, my decision does not require my analysis of scientific evidence about the vaccine. 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.” [ 16 ] I adopt the principles set out above. The COVID-19 vaccine is safe and recommended for use by adults and children, to help prevent the spread of the virus. [ 17 ] Is there evidence before me that it would not be safe for N.W.? I have received none. T.K. has provided a letter from N.W.’s doctor which states that there is no contra indication.

J.W. has not provided any evidence that N.W. suffers from allergies or has any medical condition that would cause him any health risk if vaccinated. [ 18 ] In the case Buckman v. Wyckham , 2020 BCSC 2076 , the Supreme Court of British Columbia has also considered and adopted the principles set out in Ribeiro v. Wright , 2020 ONSC 1829 . Justice Kent writes at paragraph 45 that the courts expect parents to demonstrate sensible insight, meaningful COVID-19 awareness and [take] all appropriate precautions necessary to protect children.

Although the Buckman case precedes the COVID-19 vaccination, our public health authority recommends the vaccination as one of the precautions necessary to protect children and to prevent spreading the virus and I understand that this is an appropriate precaution necessary to protect children. [ 19 ] The presumption then in British Columbia, is that it is in the best interests of an eligible child to be vaccinated with the COVID- 19 vaccination.

Ability of each parent to exercise parenting responsibility [ 20 ] To consider the ability of the parents to exercise their parenting responsibility, I look at each parent’s behaviour with respect to following COVID-19 protocols. [ 21 ] J.W. testified by affidavit that he and those in his household are hygienic and wash their hands, they maintain good immunity by consuming vitamins and healthy food, and wear masks when required to do so. [ 22 ] J.W. refutes T.K.’s allegation that N.W. must have contracted COVID-19 at J.W.’s residence as a result of illness in his household.

He submits that T.K.’s partner, D., was sick before Christmas and that T.K. did not provide N.W. with clothing sufficient for the cold weather at New Years, perhaps causing N.W. to contract COVID-19. Neither party needs to prove how or where N.W. contracted COVID-19, and the evidence and submissions on this point do not weigh into my decision. [ 23 ] T.K. testified by affidavit that N.W. reported that his father has a fake vaccine passport to get into places that require proof of vaccination.

T.K. testified that J.W. was sitting in the bleachers at the Capital News Centre (CNC) without a mask, contrary to COVID- 19 protocols and attached a photograph of J.W. J.W. has not disclosed whether or not he is vaccinated, deposing that “there is also no evidence before the court to support the applicant’s assertion that I am not vaccinated.” He has not disclosed whether or not he has a valid or invalid vaccine confirmation card. He submitted that

a) people are permitted into the concession area at the CNC without a vaccine confirmation card, and

b) the photograph shows that he is wearing a mask. It is difficult to tell from the scanned copy of the photo attached to the printed affidavit in the file. J.W. submitted that he has not been cited for any violation of the COVID-19 protocols. On a balance of probability, I find from the evidence that regardless of whether or not J.W. is vaccinated, he is not a proponent of the provincial recommendation for vaccinations for children and would be less likely than T.K. to follow that recommendation. [ 24 ] T.K. has testified by affidavit that she and her partner have received the double vaccination for COVID-19.

Her partner D. is a firefighter and as a front-line worker, follows strict COVID-19 protocols. One of the concerns in the pandemic, and a continuing concern if this becomes an endemic, is the loss of community service in the event of widespread illness. Our society is at greater risk if, for example, many of the firefighters are absent from work simultaneously due to COVID-19.

T.K. and her partner have a social responsibility to be as healthy as possible. [ 25 ] Further, T.K. testified by affidavit that her mother-in-law has cancer and will be receiving treatment in the near future, which will impact her immunity. T.K. and her partner are the primary caregivers for her mother-in-law. It is important that T.K. and her household remain as healthy as possible, for the sake of this vulnerable family member.

[ 26 ] There was some evidence that N.W. has not been vaccinated with other vaccinations, but despite the position T.K. or J.W. or both had about vaccinations in the past, T.K. has brought this application forward, showing her support of the COVID-19 protocols and recommendations. [ 27 ] As between the parties, I find that T.K. is more likely to comply with the recommendation by government that the child, N.W., be vaccinated. To expect the parents to cooperate and reach a mutual agreement, places N.W. at risk of delay in getting the vaccine.

Views of the child [ 28 ] I must also consider the views of the child, unless inappropriate to do so. [ 29 ] J.W. says that N.W. does not wish to be vaccinated for the following reasons: - he rarely gets sick and when he does, it is just the sniffles; - many of his friends are not getting the vaccine; - he does not want to take something that has not been tested on lots of other people first to see if it works. [ 30 ] T.K. says that N.W. is willing to be vaccinated, but is concerned about J.W.’s reaction if he does. She deposes that J.W. has negatively influenced N.W. about the vaccine.

I am satisfied that N.W. is aware of his parents’ different views, and this must be stressful for him because if he makes the decision, he is either deciding with his father against his mother, or vice versa.

Even 22-year-old M.’s sudden move out of his mother’s home after writing the Affidavit in support of J.W. exemplifies how an adult child can still find themselves in the middle. [ 31 ] While at age 11, N.W. may start wading in to making medical decisions for himself, I am not satisfied that he has maturity to understand and appreciate the significance of the recommendations and public health orders made by the public health office, nor the psychological, emotional and social benefits of receiving the vaccination. He thinks the vaccine is experimental, which it is not.

It has now been applied globally on millions of people, with effective results. He apparently is relying on what his friends are doing to determine whether he will take the vaccine, which does not suggest that he has an independent, considered conviction about the matter. While he may be considering his own health, N.W. is part of T.K.’s household and shares in the responsibilities of maintaining a healthy home for not only himself but other family members as well.

J.W. submits that this should not be N.W.’s obligation, but rather that the mother-in-law should bear the responsibility to get vaccinated, to keep herself safe. [ 32 ] In TRB , Justice Kubik writes at paragraphs 34 and 35 that: “vaccination … should be encouraged as a means of protecting [the child’s] health and the health of others in their family and community.

As such, vaccination serves the children’s best interests by protecting their physical health, fostering their psychological and emotional needs and imparting important social lessons to them about maintaining and protecting their health for the sake of themselves and those around them.” [ 33 ] I find that it would be inappropriate to take N.W.’s views into consideration for the following reasons: a.

I am not convinced of his maturity to make a fully informed decision; b. based on his father’s evidence, N.W. is placing more weight on the actions of his pre-teen friends than on the recommendations of our public health officer; c. N.W. has already been influenced by his parents and if he feels that he has to make the decision, it puts him in the middle of the conflict between the parties in having to “take a side”; and d. the case law is clear that absent any evidence of specific risk to the child, the vaccination is held to be in the child’s best interest.

Impact of having had COVID-19 [ 34 ] J.W. argues that this application is no longer a priority parenting matter and should be adjourned to the trial set for July 2022. He also submits that as a result of having had COVID-19, N.W. has natural immunity against COVID-19.

I do not place weight on the material he has attached to his Affidavit, purporting to provide an expert opinion about natural immunity or on J.W.’s submission in that regard. [ 35 ] The British Columbia government and the British Columbia Center for Disease Control, recommend that even after a person has recovered from having COVID-19, he or she should be vaccinated to provide better immunity.

I apply the same principles as above, that the responsible governments and public health authorities recommend the vaccine even after having had COVID-19 and that these authorities are in a better position than the Court to consider health benefits and risks associated with vaccination of children.

CONCLUSION Conclusion on the vaccination [ 36 ] Getting the COVID-19 vaccine is in N.W.’s best interest. [ 37 ] As between the parties, T.K. is the parent best able to exercise this parenting responsibility. [ 38 ] Accordingly, I order that T.K. has the parenting responsibility and authorization to obtain the Covid-19 vaccination, including two doses, and a booster if and when recommended, for N.W., without the consent of J.W. She may take any steps she deems necessary

to ensure N.W. is physically and emotionally prepared for the vaccination. Adjustment to parenting time [ 39 ] T.K. seeks an order that J.W.’s parenting time with N.W. be suspended until both N.W. and J.W. are vaccinated, or in the alternative that N.W. only see his father outdoors and with a mask if indoors. [ 40 ] The recommendation of an 8-week gap between the first and second doses would mean that N.W. will not be fully vaccinated for about 9, perhaps 10, weeks from now.

Prior to November 2021 when the vaccine became available for N.W.’s age group, N.W. was spending time in the care of his father, hopefully with J.W. complying with the COVID-19 protocols. Once N.W. receives even his first dose of vaccine, he will be less at risk of contracting COVID-19 again. [ 41 ] I am satisfied that it will be safe for N.W. to see his father after N.W. has received his first vaccination and at that time J.W. will resume his parenting time with N.W., on the parties’ current interim order.

In the event that T.K. delays arranging for N.W. to get his first vaccination beyond February 15, 2022, J.W. is at liberty to bring this matter back before me for further consideration. [ 42 ] Because of the tension and polarization that this issue has caused between the parties, I also make the following conduct orders: 1. J.W. will not discuss, or permit any third party to discuss, the issue of the COVID-19 vaccination with N.W., or supply social media or other information about the vaccine or the disease to N.W. T.K. may discuss the COVID-19 vaccination with N.W. 2.

Neither T.K. or J.W., or any third parties on their behalf, will discuss this litigation with N.W., other than to advise him that the Court has made this decision on the parents’ behalf. 3. Neither T.K. or J.W. will speak negatively about the other in front of N.W. or allow any third parties to speak negatively about the other parent in front of the children. This is a term of general application, but also relates specifically to the issue of COVID-19 and the vaccination. ____________________________ The Honourable C. Heinrichs Provincial Court Judge