D.R.B. v. D.A.T., 2019 BCPC 334

Citation: D.R.B. v. D.A.T. 2019 BCPC 334 Date: 20191231 File No: 17182 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.R.B. APPLICANT AND: D.A.T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME

Counsel for the Applicant: C. Ferguson Appearing on her own behalf: D.A.T. Place of Hearing: Salmon Arm , B.C. Date of Hearing: November 18, 2019 Date of Judgment: December 31, 2019 [ 1 ] This is an application by D.R.B. for an order that the children of the relationship be vaccinated; and an order to compel the children to attend periodic medical and dental appointments and to comply with all reasonable medical and dental recommendations. [ 2 ] D.A.T. is not entirely opposed to the children being vaccinated or to having the children comply with reasonable medical and dental recommendations.

Her issue is that she does not want unnecessary inoculations from medical and dental treatments. [ 3 ] D.R.B. and D.A.T. met in 2012 and were in a relationship for just over five years. From that relationship, they have two children. Those children are A.J.B., born [omitted for publication] and C.D.B., born [omitted for publication]. Both of the boys are healthy, have no immunity problems and no ailments that would otherwise make them ineligible for live vaccines.

In other words, there are no health presentations in either child that would cause their doctor to recommend against vaccinations. [ 4 ] D.R.B. has requested on numerous occasions that D.A.T. consent to the children being vaccinated. He said this was from the time she was first pregnant with the first child until as recently as a week before the hearing. [ 5 ] In addition, D.A.T. is also opposed to having x-rays done at the dentist office. The dentist recommends the x-rays to ensure cavities are not worse than they appear.

In C.D.B.’s case, he had to have a root canal, a cavity filled and teeth pulled because D.A.T. did not consent to the x-rays which may have prevented these additional and dramatic steps. D.R.B. said that multiple dentists at the dentist office had recommended that they do those x-rays. [ 6 ] C.D.B. is now in Grade 1 and A.J.B. is in daycare. They both play soccer, are in swimming lessons and take karate. They are very social children. D.R.B. himself travels for work, coming in contact with people throughout Canada and the United States.

He wants the children vaccinated in accordance with the immunization schedules issued by Immunize BC. [ 7 ] D.A.T. does not want the children vaccinated for diseases that no longer exist in Canada, saying they have been eradicated. She also does not want the children to be vaccinated if they already carry immunity to the specific illness targeted.

She wants to have them tested for these immunities before any determination is made about vaccinations. [ 8 ] The concern is more imminent now for D.R.B. not only because of the recent measles outbreaks in this country and the United States, where he travels, but also because of a notice issued by the school district. That notice is with respect to vaccination status reporting pursuant to a regulation passed by the Province of British Columbia.

If a child has not been vaccinated, the school sends home a notice that the child may not be permitted to attend school in the event of an outbreak of any one of the listed illnesses. [ 9 ] D.R.B. has also received a letter from Interior Health advising that D.A.T. has a documented refusal on file, confirming there are no medical contraindications to vaccinations noted in C.D.B.’s medical records, and recommending that C.D.B. be given age- appropriate immunizations according to the BC Centre for Disease Control Schedule. [ 10 ] The letter concludes with the following: Immunizations play a central role in the prevention of infectious diseases in children and the severe complications that can result.

In addition, immunized children contribute to a herd immunity effect that protects the community as a whole.

In particular, children who travel abroad should be up to date with the immunization schedule. [ 11 ] Because of D.A.T.’s refusal, the medical health officer requires that D.R.B. obtain a letter with D.A.T.’s agreement to vaccinate, a copy of a custody order showing he has the sole authority to make medical decisions for the child, or an order from a judge giving him the right to have the children immunized. [ 12 ] The immunization schedules specified which immunization should occur at each of two months, four months, six months, 12 months, 18 months, four years, Grade 6 and Grade 9.

Those immunizations include the Chickenpox or Varicella vaccine; Diphtheria; Tetanus; Pertussis; Hepatitis B; Polio; and Haemophilus influenza Type B (DTaP-HB-IPV-Hib); Hepatitis A; Inactivated influenza vaccine; Measles, Mumps or Rubella (MMR vaccine); Meningococcal C Conjugate (Men-

C) vaccine; Pneumococcal (PCV 13); Rotavirus vaccine; Human Papillomavirus (HPV) vaccine; Quadrivalent vaccine; and the variations of them, both for boosters and initial vaccinations. There is specific information provided in the Immunize BC

schedule which advises parents when their children need not only to have the vaccine but whether or not it is necessary in each circumstance. [ 13 ] D.R.B. said that he has spoken to Dr. Grieve, being the children’s general physician, in D.A.T.’s presence. However, he said D.A.T. never wanted to talk about the vaccinations with the doctor because she felt pressured. [ 14 ] D.A.T. said that she has never been a “fan” of the flu vaccine. She worked at a health centre and was having discussions with various people about what was happening around these flu vaccines. She acknowledged that Dr.

Grieve felt it was “tragic” that people did not vaccinate. She also went to see a naturopathic doctor, Dr. Spooner, who was not opposed to vaccines but did speak with her about adverse reactions. That practitioner recommended a protocol one week prior to the vaccinations. The children’s Vitamin A and iodine levels needed to be up in order to withstand the vaccine. D.A.T. wondered why the medical profession did not tell people this before their children were vaccinated. D.A.T. asked Dr. Spooner whether there was a test for adverse reactions and Dr. Spooner said there was, but it cost money.

D.A.T. said this is when she became uncomfortable with vaccinations. [ 15 ] D.A.T. said she has been doing research and has determined that there are adverse reactions to vaccinations. She said there are tests that can be done and steps that can be taken to prevent adverse reactions. She seeks titer tests to show if her sons already have

antibodies for the childhood diseases. She would like this done before the children are vaccinated. However, she does not have the money for it and would like D.R.B. to pay. D.R.B. is not prepared to pay for it. [ 16 ] D.A.T. would also like to have both of the boys gene tested for the MTHFR gene. She wants allergy and food sensitivity testing done as well. This will ostensibly remove harm from the children being vaccinated. There is no reliable evidence before me that supports any connection between the MTHFR gene, vaccines and autoimmune diseases.

There is no clear path linking the benefits of allergy and food sensitivity to vaccines either. [ 17 ] D.A.T. would also like A.J.B. tested for Giardia because he contracted it at his daycare. He was successfully treated with an antibiotic successfully but she would like him tested for any residual infection. She wants to ensure that he is in his best possible health before he is immunized. [ 18 ] D.R.B. is not only opposed to paying for the testing but feels it is unnecessary as well. He has refused outright to have this testing done. [ 19 ] D.A.T. purported to offer the expert report of Dr. Toni Lynn Bark.

This report, while delivered to D.R.B. at a pre-trial conference, was not properly proffered as an expert report. Not only is the report with respect to an entirely different child (the report was offered by the mother to assist D.A.T. in this litigation), but the attachments referred to in the report are not attached to the copy provided. In other words, all of the supporting documentation that Dr. Bark refers to and relies upon is not available for review by D.R.B. or his counsel. Nor is Dr. Bark present for cross examination.

Finally, there are considerable concerns about the foundation of the contents of this report. [ 20 ] In her qualifications and expertise, Dr. Bark says that she has no conflict of interest but has co-produced a documentary and appeared in others which highlight the conflicts of interest in vaccine policies. She believes there is no conflict for her because she has received no pay for her work and has received no money directly or indirectly from the sale for distribution of the films. That is not determinative of her expertise, though. What Dr. Bark’s involvement in this industry lacks is balance.

There is no evidence of any expertise or clinical review that meets this challenge of evident conflict. [ 21 ] Dr. Bark also said that she provided expert testimony in relation to vaccinations in numerous family law cases in several countries and for the National Vaccine Injury Compensation Program. However, there is nothing identifying these cases or whether her expert testimony was accepted in the judgments that followed. [ 22 ] Dr.

Bark bases her opinion on her expertise in vaccination and vaccine targeted infectious diseases from both her formal medical training and from her experience in pediatric emergency as well as her private medical practice. She links to these anecdotal experiences of unexpectedly high numbers of patients who have been vaccinated and then suffered serious reactions, as well as patients she has found to be suffering chronic disorders such as autoimmune and neurological damage with a strong temporal link to vaccination. There is no supporting documentation in the copy of the report.

It is difficult to tell whether this is purely anecdotal or whether there is a proper testing environment done to reach these conclusions. It lacks the proper foundations of an expert opinion. [ 23 ] Dr. Bark maintains that her fields of expertise include vaccine adversomics, which she acknowledges is a new, emerging research field. It is the study of vaccine adverse reactions including their frequencies and mechanisms of causality. She acknowledges at paragraph 6 of her report: Vaccine adversomics is not yet covered in any formal medical training.

Hence qualifying in such fields as immunology, epidemiology, pediatrics or genetics (or gaining membership of any associated societies) does not involve or require any study of risks of vaccines relative to their benefits, in relation to determining either population averages or any individual variations in susceptibilities. Formal medical education is supported by funding from the vaccine industry, which has no beneficial interest in sponsoring any field of study that might lead to a reduction in vaccine uptake. [ 24 ] In other words, Dr.

Bark purports to be an expert in a field that has not been recognized by her industry, and for which she has received no training. Dr. Bark continues at paragraph 7: The development of expertise in vaccine adversomics requires extensive study of relevant medical research. Some of that study I have demonstrated by way of the Notes and References in my report.

It is augmented by my substantial clinical experience in this area, as stated in paragraph 4.b above. [ 25 ] The difficulty with this is that vaccine adversomics is not a recognized field, none of the references she referred to are attached to the report, and it is difficult to know whether or not this is junk science or a recognized emerging field. Presented as it is in her report, her theory or opinion sounds like a conspiracy theory. [ 26 ] Perhaps what is most damaging to the reliability of this report is that Dr.

Bark does not have any stated expertise in immunology, virology, epidemiology, genetics or any other field that might lend strength to her stated opinions. Indeed, she appears to lack any expertise other than anecdotal experiences. Anecdotal experiences cannot form the foundation for an expert opinion since such anecdotes could be obtained from any parent, teacher, medical office assistant, or indeed any other member of the community where immunizations and illness have been experienced. There are none of the usual clinical controls or trials expected in reports with solid foundations. [ 27 ] Dr.

Bark proceeds to premise her report not on anything specific to the child she was preparing the report for but on what appears to be her position that targeted infectious diseases pose very low risk to the population; there are very high rates of adverse effects reported from vaccine clinical trials; clinical trials indicate higher true rates of adverse effects; and very high rates of adverse effects are evident from government surveillance, among others. [ 28 ] One of the diseases that she claimed is very low risk to contract is measles. That is simply not the case.

She also identifies tuberculosis which is also not eradicated in some parts of Canadian communities. She believes these vaccinations are unnecessary

because the identified or targeted diseases have essentially disappeared from developed countries. She overlooks the higher risk ofcontacts derived from traveling in foreign countries. [29] In short, without a proper examination of the veracity of Dr. Bark’s findings subjected to cross examination, the report cannotprovide the assistance D.A.T. believes it provides. [30] In contrast, D.R.B. has produced two binding Supreme Court decisions, excerpts from UN Foundations Measles Initiative,excerpts from World Health Organization Measles Key Facts, excerpts from Health Link BC, and excerpts from the Centre for DiseaseControl, BC Centre. D.R.B. also provided an

article from the Telegraph purporting to be an opinion from England’s top doctor blamingsocial media fake news for the low MMR vaccine take uptake. For the same reasons that I do not find Dr. Bark’s report reliable, I mustdisregard this news article. It does not indicate to me what Dr. Sally Davies’ qualifications are, what clinical studies or evidence she hasrelied upon or otherwise.

While it would appear that she certainly comes from a more likely background for reliability, none of thatevidence is before me for consideration. [31] However, I can and do accept the facts laid out in the balance of the materials provided by D.R.B. I find them reliable resourcesupon which we as a community rely in order to make important medical decisions not only for ourselves but for our community as awhole. [32] The BC Centre for Disease Control in its Measles Vaccine circular says that serology testing to establish immunity to measles isnot routinely recommended before or after vaccination.

It then goes on to discuss how adults may have acquired immunity to measlesfrom natural infection if born before January 1, 1970. Born thereafter, individuals require laboratory evidence of immunity ordocumentation to that effect. In other words, both C.D.B. and A.J.B. must either be able to establish immunity through serology or bydocumentation. At this point, they can do neither. [33] Not everyone is recommended to get the immunizations. The correspondence provided to the parents in this case specifiescertain people who should not receive the vaccine. These boys do not fall into that category.

In addition, the US Department of Healthand Human Services Centre for Disease Control and Prevention also recommend against vaccination for those who have had a prior lifethreatening allergic reaction to a dose of MMR or any part of the vaccine. The vaccine components are available on request. Itrecommends against vaccinating pregnant women, vaccinating people with weakened immune systems due to disease such as cancer orHIV/Aids or who are undergoing such treatments as radiation, immunotherapy, steroids or chemotherapy.

It also recommends againstvaccinating people with parents, brothers or sisters with a history of immune system problems or people who have a condition that makethem bruise or bleed easily. In other words, not everyone should be vaccinated. These are the people protected by herd immunity ratherthan vaccine. These boys do not fall in those categories. [34] In a 2012 decision of Wedge J. in M.J.T. v. D.M.D., 2012 BCSC 863 , 2012 B.C.S.C. 863, Justice Wedge was taskedwith assessing the question of immunization and had this to say: [88] Mr. T. sought the opinion of Dr.

David Scheifele, a Professor of Pediatric Medicine at the University of British Columbia andpracticing physician at B.C. Children’s Hospital. Dr. Scheifele is recognized as a leading expert in pediatric infectious diseases andimmunization. He was appointed to the Sauder Family Chair in Pediatric Infectious Diseases (UBC) in 1995. He was the founding chairof the Canadian Association for Immunization Research and Evaluation in 2000. [89] Dr. Scheifele has had a career-long special interest in vaccines and immunization.

He chaired the Infectious Diseases andImmunization Committee of the Canadian Paediatric Society from 1981 to 1988. He chaired the National Advisory Committee onImmunization from 1993 to 1997, having previously served for 10 years as a committee member. He was the principal author of the1998 edition of the Canadian Immunization Guide. Since 1988 he has been the director of the Vaccine Evaluation Center (VEC) at B.C.Children’s Hospital. The VEC was the first academic vaccine testing centre in Canada and remains one of the country’s largest and mostactive centres.

He has been involved in over 200 vaccine-related studies and publications. [90] Dr. Scheifele has a particular interest in vaccine safety. In 1992 he helped establish a nationwide surveillance network amongtwelve pediatric centres known as the Canadian Immunization Monitoring Program, Active (IMPACT). This program is federally fundedand managed by the Canadian Paediatric Society. The purpose of the program is to identify children hospitalized with adverse eventsfollowing immunization or with potentially vaccine-preventable infections.

He has overseen the data centre for this program for the past20 years and has co-authored a number of reports on vaccine safety. He has given dozens of lectures on childhood immunization at localand national conferences. He served as the Distinguished Lecturer at the 2010 Canadian Immunization Conference. [91] A familiar task for Dr. Scheifele is the evaluation of children prior to vaccination. He is frequently asked to advise aboutvaccinations for children with unusual conditions such as possible allergies or previous adverse reactions following vaccination … [94] Dr.

Scheifele prepared a written opinion for the Court concerning the question of the risks and benefits of V.’s immunization.He also addressed the question of the benefits and risks of childhood immunization generally, and the risks facing an unvaccinated childin Vancouver. Dr. Scheifele was called as a witness by Mr. T. to speak to his qualifications and opinion, and to answer questions in cross-examination by Ms. D. [95] In response to Ms. D.’s questioning, Dr. Scheifele explained that aluminum adjuvants are important components of somevaccines because they enhance the immune response to the vaccine.

He noted that researchers at the United States Food and DrugAdministration recently modelled carefully the amounts of aluminum in infants after infant vaccinations using the best available humandata. They found that the amount of aluminum in infants’ bodies from vaccines and diet was significantly less than the levels determinedto be safe. The researchers concluded that episodic exposures to vaccines containing aluminum adjuvants continue to present anextremely low risk to infants, and that the benefits of using those vaccines outweighed any theoretical risks. [96] Ms. D. asked Dr.

Scheifele whether he could guarantee that V. would not suffer any adverse reaction to any of thevaccinations recommended for children. Dr. Scheifele was clear in his response: medical science can never offer such a guarantee. Hereiterated his opinion that the risk of V. suffering an adverse reaction is extremely low, and the benefits to V. of receiving the

vaccinations significantly outweighed the theoretical risks. [97] Addressing Ms. D.’s concern that vaccinations may cause autism, Dr. Scheifele said that studies have convincingly shownthat autism does not result from immunization. In any event, autism becomes evident during early childhood; this is no longer a concernfor V., who is developmentally normal. [98] Dr. Scheifele also addressed Ms. D.’s concerns about the fevers and seizures she and her siblings suffered followingvaccinations as children.

He said the following: The “baby shot” formulation used at that time contained the first generation pertussis vaccine which consisted of whole, killedorganisms. About 50% of children had fever shortly after this vaccination so such a history is not surprising. Since 1992 Canada has useda second generation (acellular) pertussis vaccine as part of the “baby shot,” which causes fever in fewer children (15%), with lesslikelihood of high fever [less than 5%].

Thus V. is unlikely to react to the modern vaccine as his mother and her siblings did to the oldervaccine. ... [T]he first generation pertussis vaccine sometimes caused high fever, sufficient to trigger convulsions in seizure-prone individuals.Children can be seizure-prone from a variety of causes but the most common is “benign familial febrile convulsions.” This conditionoccurs in about 5% of the population and is expressed only during early childhood, triggered by fever. The condition is outgrown bymid-childhood and does not progress to epilepsy or result in neuro-developmental impairment ...

Parent to child inheritance of this traitdoes occur but is expressed in a minority of offspring. [35] Dr. Scheifele also pointed out that since the child in question in his case had never had seizures resulting from colds, earinfections and cough illnesses, it was unlikely that vaccine related fevers would do so either. Such is the case here before me. [36] Wedge, J. also considered Dr. Scheifele’s opinion with respect to risks facing unvaccinated children: [101] Dr. Scheifele is of the opinion that there are certain risks facing an unvaccinated child in Vancouver.

On that issue, he stated thefollowing: Unimmunized children, as with V., typically avoid vaccine-preventable infections like measles and whooping cough because mostchildren around them in school or in the community are immune following immunization. With high levels of population protection,contagious diseases cannot readily circulate. However, this so-called herd immunity or indirect protection has limits.

A study inColorado, where childhood immunization rates resembled those in BC, showed that unimmunized children were 22 times more likelythan immunized children to develop measles and 6 times more likely to develop pertussis/whooping cough ... Such observations reflectthe highly contagious nature of common childhood infections. If overall vaccination rates slip, infections previously held at bay canreturn to cause outbreaks among susceptible children and adults.

Given that childhood vaccination rates in BC are suboptimal (70%-80%), one can predict that periodic outbreaks of some vaccine-preventable infections will occur and could involve V. If he is anadolescent at the time, the course of measles or chickenpox illness is likely to be more severe than in infancy, with greater risk ofcomplications and hospitalization. Travel can also increase risk of exposure. V.’s mother spoke of possibly travelling with him toCalifornia, likely unaware that the state is experiencing the largest epidemic of pertussis since 1958, with over 9,000 cases in 2010 andover 2,000 cases in 2011.

Under-immunized children were contributors to the situation. [102] Dr. Scheifele addressed in his opinion the risks of each vaccine-preventable infectious disease against which children in BritishColumbia are routinely vaccinated. There are 14 such diseases. Six of them -- tetanus, diphtheria, pertussis (commonly known aswhooping cough), polio, haemophilus influenzae b invasive infections (such as meningitis) and hepatitis B -- are included in a “six-in-one” vaccine given to infants. Meningococcal C and pneumococcal 13-valent vaccines are also given to infants.

Measles, mumps, rubellaand chickenpox vaccines are given in the second year of life. Apart from booster doses, adolescents are offered hepatitis B vaccine (ifnot previously given), human papillomavirus vaccine (administered to girls only) and 4-valent meningococcal vaccine. Young childrenare also offered influenza vaccine. [103] It is Dr. Scheifele’s opinion than none of the vaccinations given for these 14 infectious diseases poses any greater risk ofsignificant adverse effects to V. than to any other child his age. All of the vaccines are well-tolerated by children.

Most importantly, it ishis view that the benefits of securing V.’s protection from each of the 14 diseases far outweigh the limited risks of vaccine side effects. [37] Wedge, J. contrasted this to the evidence of Dr. Christopher Shaw, a neurobiologist researcher and professor at the Departmentof Ophthalmology at UBC. He was not a medical doctor and had no expertise in pediatric infectious diseases or pediatric immunization.He had become interested in examining the question of whether adverse reactions, including possible neurological disabilities, could becaused by aluminium adjuvants in vaccines.

As in the case before me, Dr. Shaw had no expertise to provide the opinions he presented toWedge, J. She rejected Dr. Shaw’s qualifications and opinion. [38] This decision was considered by Affleck, J. in another 2012 Supreme Court decision Vincent v. Roche-Vincent, 2012 BCSC1233 , 2012 B.C.S.C. 1233. Affleck, J. relied upon Wedge, J.’s findings in M.J.T. v. D.M.D. and reached the same conclusionthat the risks with a vaccination were extremely low and the benefits significantly outweighed them. I reach the same conclusion absentany properly qualified expert evidence to the contrary subsequent to 2012.

There is no such evidence before me. [39] That does not mean to say that parents should blindly follow whatever medical advice they are given. Errors - sometimescatastrophic ones - can be made by the pharmaceutical and medical industries.

It remains the responsibility of the parents to hear theadvice, ask the questions, do the research and reach the appropriate decision for their children. [40] It may well be that vaccine adversomics will gain some traction and some credibility over time, just as diseases and illnessessuch as depression, fibromyalgia, and lupus are now recognized, and are no longer dismissed - sometimes derisively.

The reliability andcredibility of such a field of study must derive from thorough study, balanced expertise and objectivity. [41] The current best evidence is that vaccination is preferable to non-vaccination, that it is required in order to protect those who

cannot be vaccinated as well as to protect ourselves, and that any adverse reaction the person may have from the vaccine is largely outweighed by the risk of contracting the targeted disease. Both boys are considered to be in good health and have no contraindications in their medical records that would suggest they should not be vaccinated. They are active, social and connected children.

They are exposed in their home and social environment to the risk of these diseases and should be vaccinated to be protected against them. [ 42 ] I am also concerned that D.A.T.’s unsupported concerns regarding x-rays have led to unnecessary and painful dental procedures for at least one of these boys. This is not in their best interests. [ 43 ] I am satisfied on the evidence that the parental responsibility for the medical and dental treatments for both boys should lie solely with D.R.B. I order that C.D.B. and A.J.B. be vaccinated in accordance with Immunization BC’s immunization

schedule and the recommendations of their family doctor. I further order that D.R.B. have full parental responsibility for the medical and dental treatment of C.D.B. and A.J.B. going forward. However, D.R.B. is required to advise D.A.T. of any medical appointments, recommended treatment, and course of action with respect to the medical or dental treatment of these boys. [ 44 ] I make two exceptions. If either child presents with a medical emergency and D.A.T. is unable to contact D.R.B. in a timely manner, then she may authorize such emergency treatment as may be necessary.

Secondly, if D.A.T. wishes to proceed at her own cost with no contribution from D.R.B. with having gene testing and titer testing done of her sons, then she has liberty to make those arrangements. She must provide D.R.B. with any appointments for such testing, provide the results to D.R.B., and copy him with any reports from any practitioners performing those tests. To be clear, only D.R.B. may decide after reviewing those reports and in consultation with his own medical practitioner whether any further vaccination should take place.

This is solely for D.A.T.’s peace of mind and I make the exception only because it is not contrary to the best interests of the children – even though the testing is not specifically and positively in their best interests. There is to be no delay in obtaining vaccinations while D.A.T. makes those arrangements. [ 45 ] Mr. Ferguson shall prepare the order. D.A.T.’s signature is not required. ______________________________ S.D. Frame Provincial Court Judge