D.E. Applicant v. W.E., 2022 NBKB 211

2022 NBKB 211 COURT FILE: FDSJ 697-2015 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: D.E. Applicant and W.E. Respondent Before: Mister Justice Danys R.X. Delaquis Date of hearing: October 28, 2022 Date of Decision: November 7, 2022 Appearances: D.E. - Per Se W.E. - Per Se

Summary: Decision making; Covid-19 vaccination DECISION DELAQUIS, J., Orally

OVERVIEW [ 1 ] A Final Order was issued by Justice Christie on November 7, 2016. As part of that Order, corollary relief was included that included the following parenting arrangement: (

a) the parties shall continue with the joint and shared parenting arrangement that they have had in place since October 24th, 2015 and shall continue to have joint and shared custody of the children of the marriage (…) [ 2 ] The parties have been embroiled in a longstanding family law dispute on a range of issues since that time.

The latest dispute relates to Covid-19 vaccination of the two children, [M.E.E.] (D.O.B. […], 2010, age 12) and [M.V.E.] (DO.B. […], 2012, age 10). [ 3 ] As a result of the existing parenting arrangement, the Applicant (Mother) asked the Respondent (Father) for his consent to have the children vaccinated against Covid-19. The Father does not consent. The Mother is therefore seeking a Court Order in relation to decision-making authority on health and more specifically, Covid vaccinations for the children. [ 4 ] The parties appeared before the Court as self-represented litigants.

FACTS [ 5 ] The Mother states in her Affidavit at paragraph 5 that: 5. Vaccinations against COVID-19 are recommended as the best tool for protection against the virus and to help reduce serious illness by the Centers for Disease Control and Prevention and NB Public Health, as well as all public health agencies worldwide. This is well known information and can be found on any public health website. (www.cdc.gov; www.gnb.ca). [ 6 ] The Mother further states more specifically about the children in her affidavit that: 6.

The children have missed out on extracurricular events as a result of not being vaccinated, and although restrictions are now removed there is no guarantee that they will not be implemented again. 7. The children cannot travel internationally without vaccinations. 8. The children have missed out on being able to visit with their great grandmother, who is in a nursing home because of not having their vaccinations. 9.

The pandemic is an ever-evolving situation and there are still many unknowns and new variants emerging and it is important to have the children protected against the illness to avoid short term or long term illnesses as a result of the virus. 10. Not having the children vaccinated increases the risk of illness for them, as well as all their family members and friends and is not in their best interest. [ 7 ] In addition, the Mother attached to her Affidavit the position statement for COVID-19 vaccine for children and adolescents by the Canadian Pediatric Society [See Exhibit C to the Mother’s Affidavit].

[ 8 ] Lastly, the Mother submits that much of the Father’s evidence is irrelevant or untrustworthy as some it is simply downloaded from online blogs, such as for example, Exhibit A. The Mother is correct that that Exhibit A is a download from a website bearing the address https://boersenwolf.blogspot.com. [ 9 ] The thrust of the Mother’s argument is that the vaccine offers protection to her children against Covid-19 and associated health concerns.

In other words, the vaccinations are in their best interests from a medical perspective. [ 10 ] The Father opposes the relief sought on several grounds including, as he states at paragraph 2 of his affidavit: “I am opposed to the mRNA treatment of my children for the COVID-19 mRNA treatment therapy that was allowed to be administered under the Emergency Usage Authorization.” [ 11 ] The Father relies on various documents downloaded from various sites on the Internet including a study conducted in Germany that allegedly concluded that: “the deaths related to COVID-19 are from the vaccine, not COVID”. [See Exhibit D of the Father’s Affidavit.] [ 12 ] The Father also relies on a CTV News

article published on July 5, 2022, that “shows that ill-defined and unknown cause is leading cause of death in the province of Alberta, Canada for 2021 according to the Alberta government”. [See Exhibit E to the Father's affidavit.] [ 13 ] Furthermore, the Father relies on an ongoing criminal investigation by the European Public Prosecutor's Office into the acquisition of COVID-19 vaccines in the European Union. [See paragraph 13 and Exhibit K attached to the Father's Affidavit]. [ 14 ] The Father also relies upon a study by Public Health Ontario for the period of January 15, 2020, to June 30, 2021, which, according to him, shows the breakdown of COVID-19 infections in children and confirms that there are no deaths of children aged 17 and under.

The Father adds in his affidavit at paragraph 8 that he has not been able to find any COVID-19 related deaths in healthy children in North America. [See Exhibit F to the Father's Affidavit]. [ 15 ] The Father further relies upon what he describes to be a ruling from the Supreme Court of Canada on July 10, 2020 “brought in part by the Canadian coalition for genetic fairness, shows the need to protect people from the possible discrimination from COVID-19 mRNA gene therapy.” [See Exhibit J to the Father's affidavit]. [ 16 ] At paragraph 14 of the Father’s Affidavit, he states: 14.

The evidence provided in this affidavit shows there is great debate over the COVID-19 mRNA gene therapy. To force [M.] and [M.] to undergo a medical procedure that has no benefits and many possible side effects, would be irresponsible and a violation of the Nuremberg Code. Just because government creates legislation to allow a medicine to be available to the public, it does not make it right. [ 17 ] In oral submissions, the Father argued that his son did not contract COVID and while his daughter did, she “survived”.

The Father opines that there has never been proper testing done to ensure the safety of vaccines and that Pfizer officials have allegedly admitted to the European Union some kind of wrongdoing, which led to an $87 billion dollar lawsuit against it. [ 18 ] The Father further referenced recent statements from public officials who allegedly provided updates that the increased number in hospitalizations were for reasons other than COVID, and that as a result, the COVID numbers were inflated. He argues that it would be reckless to subject their children to the vaccine.

He is against experimental testing for vaccines that were not approved for use in humans. In essence, the Father argues that the government acted too quickly in approving the vaccinations for the population at large and that everyone believed what they were told in good faith. ISSUES

[19] The issues in this matter include the following: 1. Has there been a change in circumstances since the Final Order issued on November 7, 2016. 2. If there has been a change in circumstances, should the Final Order be varied to give the mother decision-making authority and morespecifically whether the children should be vaccinated against Covid-19? 3. Is the successful party entitled to costs? LAW AND ANALYSIS Issue 1 – Change in Circumstances [20] As indicated above, the parties are self-represented litigants. To that extent, it is not surprising that the Notice of Motion didnot refer to paragraph 17(1)(

b) of the Divorce Act. That

section provides that a court may make an order varying a parenting order. [21] Pursuant to subsection 17(5) of the Divorce Act, the Court must be satisfied that there has been a change in circumstances ofthe children since the making of the previous Order dated November 7, 2016.

When granting a parenting order, a Court may allocatedecision-making responsibility. [22] If I decide that there has been a change in circumstances, it shall only take into account the best interests of the childrenpursuant to subsection 16(1) of the Divorce Act (amended on March 1, 2021), I must take into consideration only the best interests of thechildren. Factors to be considered by the Court are listed in subsection 16(3) of the Divorce Act.

One such factor found in subsection16(3) of the Divorce Act refers to the children’s needs, given the children’s age and stage of development, any plans for the children’scare, and the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of thechildren. [23] I note that in considering the factors referred to in subsection 16(3) of the Divorce Act, primary consideration is to be given tothe children’s physical, emotional and psychological safety, security and well-being. [24] In the recent case of K.D.B. v.

K.B., 2022 NBQB 74 , Madam Justice d’Entremont was faced with an Application bythe mother seeking an order that she be granted sole decision-making responsibility with respect to any medical decisions pertaining tothe child, including, but not limited to, whether the child would receive the COVID-19 vaccination, or any related booster shots whichbecome available for his age group. [25] Justice d’Entremont first had to determine whether there was a material change in circumstances in relation to the child sincethe final order had been rendered. [26] The Supreme Court of Canada decision in Gordon v.

Goertz (SCC), is the leading case on material change.McLauchlin, J., as she then was, explained material change as follows: What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have alteredthe child’s needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), (BCSC), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances nowexisting prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.).

Moreover, the change should represent a distinctdeparture from what the court could reasonably have anticipated in making the previous order. “What the court is seeking to isolate arethose factors which were not likely to occur at the time the proceedings took place”: J. G. McLeod, Child Custody Law and Practice

(1992), at p. 11-5. [ 27 ] In this case, I must decide firstly whether the Final Order signed by the parties might have been different had the circumstances now existed at that time. Was it likely that the parties contemplated the coming of a pandemic, more specifically the Covid-19 pandemic, when the Final Order was issued? I do not believe they did. [ 28 ] In this case, the Final Order was endorsed by the Court on November 7, 2016. At that time, the parties could not have contemplated a world-wide pandemic, with all of its ensuing consequences.

Very few, if any, people could. [ 29 ] Indeed, if the pandemic could not be reasonably contemplated at the time the Final Order was signed, the existence of vaccines, how they would be created and produced in response to the spread of Covid-19 and any possible risks they posed, could not be contemplated either. None of that was foreseeable by the parties when the Final Order was issued. [ 30 ] The Court in V.L.M. v. B.S.F. , 2022 NBQB 023 , and K.D.B. v.

K.B. , supra also found that there was a material change based on the onset of the Covid-19 pandemic and related vaccine issues. [ 31 ] I therefore find that the Mother has established a material change for the purposes of her motion to vary the Final Order dated November 7, 2016. Issue 2 – Should the Order be Varied? [ 32 ] Before I analyze whether medical decision-making authority should be granted to the Mother, I will explain the concept of judicial notice.

I will do so because many cases that have decided the same or similar issue surrounding Covid vaccinations for children have taken judicial notice of certain facts in doing so. [ 33 ] The concept of judicial notice is also important in the context of this case because the parties are self-represented litigants and may not appreciate all of the subtleties of evidence law and expert evidence in particular.

This is clear to me to the extent that they have simply attached to their affidavits various documentation downloaded from the Internet. [ 34 ] In the text the Law of Evidence in Canada by Letterman, Fuerst and Stewart (6th edition) 2022, the authors explained judicial notice at page 1532: Judicial notice is the acceptance by a court or judicial tribunal, in a civil or criminal proceeding, without the requirement of proof, of the truth of a particular fact or state of affairs. Facts which are (

a) so notorious as not to be the subject of dispute among reasonable persons; (

b) capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy, maybe noticed by the court without proof of them by any party. The practice of taking judicial notice of facts is justified. It expedites the process of the courts, creates uniformity and decision making and keeps the courts receptive to societal change. Furthermore, the tacit judicial notice that surely occurs in every hearing is indispensable to the normal reasoning process. (…) [ 35 ] In B.C.J.B. v. E.R.R.R. 2020 ONCJ 438 , a decision that Justice d’Entremont referred to in K.D.B. v.

K.B. at para 51 as being helpful, the Court aptly described how Courts have taken judicial notice of certain facts in cases involving so-called requests for vaccinations. Here is how Justice Finlayson explained it at paragraphs 160 to 163: 160 There are a number of decisions from Ontario and across Canada about vaccines decided in similar contexts as this case before me.

The cases are not only helpful to my determination about where B.R.M.R.’s best interests lie, but also to the judicial notice questions before the Court. 161 Each of the cases review a parent’s prior decision-making about vaccinating his or her child(ren), to determine which parent should be empowered with some form of health decision-making going forward. This issue has been determined, both by way of motion and by

way of trial, on initial applications, on variation applications, and also in cases where there were custody terms in written agreements inconflict with the orders the courts were asked to make. 162 Regardless of the process employed to arrive at a decision (motion versus trial), in all but two cases which I have reviewed, courtshave consistently and overwhelmingly bestowed decision-making authority over health, or sometimes more narrowly over the healthdecision of whether to vaccinate a child, upon the parent best able to make an informed decision, based on sound medical advice.

Thecourts in some of these cases have taken judicial notice of various facts relating to vaccines.

In almost all of the cases, the parent opposedto vaccinating his or her child, relied on inadmissible junk-science material, internet evidence from questionable sources, biased andmisleading information from the so-called “anti-vaccination movement”, or even opinion evidence from persons with questionablequalifications to give that opinion in the first place. 163 Regarding the two cases where in the end result, the children remained not vaccinated, one case turned on the fact that the childwas 13, had the capacity to consent to medical treatment, and had developed an unreasonable fear of being vaccinated based on parentalinfluence.

I note in that even in that case, however, the Court did order that the younger 10 years’-old sibling of the 13 years’-old child,be vaccinated. The other case is a recent decision of an arbitrator. The facts of that case are not yet fully known in any publisheddecision, due to the confidentiality of the arbitration process. An appeal to the Superior Court is pending. I understand the appealscheduled to be argued on September 29, 2020. See A.P. v. L.K., 2020 ONSC 5551 (…). [36] Justice Finlayson in B.C.J.B. v. E.R.R.R., supra, referred to the case of C.M.G. v.

D.W.S., 2015 ONSC 2201 as “the leadingOntario decision involving vaccines.” That was a case were the Court had expert evidence before it, including the opinion of a pediatricinfectious diseases expert. The Court also took judicial notice of Canada’s and Ontario’s health policies respecting vaccinations,including the policy behind the Immunization of School Pupils Act. The Court held that Canadian public policy favours the vaccinationof children and youth, and that informed the Court’s legal reasoning. The Court also relied on information from the World HealthOrganization.

In the final analysis, the Court decided that the father would make decisions about vaccinations despite the terms of theSeparation Agreement. [37] Very recently, the Saskatchewan Court of Appeal in Inglis v Inglis, 2022 SKCA 82 provided a

summary of the manycases that have addressed the issue of Covid vaccinations. In Inglis v. Inglis, supra, the parties had had an equal shared parentingarrangement, but the parenting of the children had become complicated by the father’s move and disagreements over medical andcounselling issues. The Father argued that the Chambers judge erred, among other reasons, by providing the Mother with sole authorityto decide on COVID-19 vaccinations for the children. The Chambers judge decided he could take judicial notice of the following facts: (

a) the existence of the COVID-19 pandemic; (

b) the effect of the COVID-19 pandemic on individuals, including children; and (

c) that government-approved vaccines are an effective way to protect children from the effects of the virus. [38] The Court of Appeal in Inglis v. Inglis, supra, first observed that it had already been determined by the Court of Queen’sBench, and upheld on the appeal, that it is in the children’s best interests for the mother to have sole decision-making authority regardingtheir medical issues.

As such, the Court of Appeal examined whether the Chambers judge erred by not effectively carving out this onediscrete medical decision – should they receive COVID-19 vaccinations – from the general medical authority given to Ms. Inglis. TheCourt then provided the follow synthesis of the law across Canada on the question of judicial notice in vaccination cases at paragraph 45to 51: [45] Courts across Canada, including in Saskatchewan, have made various findings with regard to the scope of judicial notice relatedto the pandemic, the risk it poses to children, and the safety and efficacy of the vaccines.

Several courts have taken judicial notice of the

fact that it can be presumed that being vaccinated against COVID-19 is in the best interests of children, unless there is a compelling reason not to do so: Dyquiangco Jr. v Tipay, 2022 ONSC 1441 at para 24 [Tipay] ; Steiner v Mazzotta, 2022 BCSC 827 at para 5 [Steiner] ; Rashid v Avanesov, 2022 ONSC 3401 (WL) at para 85 ; Davies v Todd, 2022 ONCJ 178 at para 44 [Davies] ; and G.W. v C.M., 2022 BCPC 29 at para 5 [G.W.] . [46] Judicial notice has been taken of the fact that contracting COVID-19 poses many serious and significant health risks to both children and adults: OMS at para 112; Manzon v Carruthers, 2020 ONSC 6511 at para 18 ; Rouse v Howard, 2022 ONCJ 23 at para 13 ; T.K. v J.W., 2022 BCPC 16 at para 11 [T.K.] ; K.K. v M.A., 2022 NBQB 30 at para 109 [K.K.] ; P.R. v S.R., 2022 PESC 7 at para 54 , 68 RFL (8th) 328 [P.R.] ; and K.M.S. v K.B.S., 2022 SKQB 57 at paras 13 and 18 [K.M.S.] . [47] Courts have taken judicial notice of the fact that the vaccine is safe: OMS at para 113; K.M.S. at paras 13 and 18 ; I.S. v J.W., 2021 ONSC 1194 at paras 182–183 [I.S.] ; A.B.S. v S.S., 2022 ONSC 1368 at para 4 [A.B.S.] ; Warren v Charlton, 2022 ONSC 1088 at para 9 , 70 RFL (8th) 388 [Warren] ; Campbell v Heffern, 2021 ONSC 5870 at para 10 , 68 RFL (8th) 417 [Campbell] ; J.F.P. v J.A.G., 2022 BCPC 44 at para 19 ; Saint-Phard v Saint-Phard, 2021 ONSC 6910 at para 7 , 63 RFL (8th) 92 [Saint-Phard] ; L.M. v C.O., 2022 ONSC 394 at para 18 ; G.W. at para 5 ; K.K. at para 109 ; P.R. at para 54 ; and Davies at para 43 . [48] Furthermore, courts have taken judicial notice of the fact that the COVID-19 vaccine is effective: Sembaliuk v Sembaliuk, 2022 ABQB 62 at para 16 ; A.M. v C.D., 2022 ONSC 1516 at para 28 ; I.S. at paras 182-183 ; A.B.S. at para 4 ; Steiner at para 5 ; Campbell at para 10 ; Saint-Phard at para 7 ; K.K. at para 109 ; G.W. at para 5 ; P.R. at para 54 ; Tipay at para 17 ; and Davies at para 37 .

Some courts have taken judicial notice that the specific Pfizer vaccine is safe and effective for both children and adults: OMS at para 113; T.K. at para 11 ; Campbell at para 10 ; and K.M.S. at paras 13 and 18 .

There are reported cases in which the courts have taken judicial notice of the approval of the Pfizer vaccine by health authorities: OMS at para 113 and K.M.S. at para 18 . [49] Additionally, judicial notice has been taken of the fact that the harm to a child from contracting a vaccine-preventable illness may include death: B.C.J.B. v E.-R.R.R., 2020 ONCJ 438 at para 187 , 47 RFL (8th) 165 [B.C.J.B.] , aff’d 2021 ONSC 6294 ; Moore v Moore, 2022 ONSC 2378 at para 26 ; I.S. at paras 182–183 ; and P.R. at para 54 .

At least one court has taken judicial notice of the fact that COVID-19 has a low mortality rate, especially in children: Warren at para 9 . [50] There is one reported case where judicial notice has been taken of the risks of the COVID 19 vaccine: P.R. at para 54 .

In that case, the court took judicial notice of the fact that vaccination comes with a risk, just as all medical treatment does, but also took judicial notice of the fact that the vaccine is safe and effective. [51] On the other side of this trend, there are also cases in which the courts were not prepared to take judicial notice of the efficacy and safety of COVID-19 vaccines: J.N. v C.G., 2022 ONSC 1198 at para 81 , 64 RFL (8th) 277 ; R.S.P. v H.L.C., 2021 ONSC 8362 at paras 56–58 ; and C.M. v S.L.S., 2022 ONCJ 206 at para 112 . [ 39 ] Dyquiangco Jr. v Tipay , 2022 ONSC 1441 , was, as the Court described it at paragraph 1: “(...) yet another of the plethora of Covid-19 vaccination cases involving children, the applicant (“the father”) has brought a motion to have vaccinated the parties’ twelve- year old daughter who primarily resides with him.

The respondent (“the mother”) opposes the child being vaccinated at this time.” In allowing the request to vaccinate the child, the Court considered several cases, including A.C. v. L.L. 2021 ONSC 6530 , and referred to it at paragraph 17 as follows: [17] In A.C. v.

L.L. [4] , a case involving in-person schooling and child vaccination, Charney J. observed that the safety and efficacy of the COVID-19 vaccine has been endorsed by all governments and public health agencies, in that case the Ontario Ministry of Health, Toronto Public Health and the Toronto District School Board.[5] [28] The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated.

These government and public health authorities are in a better position than the courts to consider the health benefits and risks to 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.

[29] This analysis and conclusion is consistent with the approach taken by other courts addressing vaccinations prior to COVID-19:C.M.G. v. D.W.S., 2015 ONSC 2201, at para. 105; A.P. v. L.K., at para. 276; B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, at para. 180, aff’dB.C.J.B. v. E.-R.R.R., 2021 ONSC 6294, at paras. 49-53; Chambers v.

Klapacz, 2020 ONSC 2717, at para. 7. [30] Given the government statements above, there can be no dispute that, as a general presumption, it is in the best interest of eligiblechildren to get vaccinated before they attend school in person. [6] [40] I now come back full circle to the law in New Brunswick and Justice d’Entremont’s decision in K.D.B. v. K.B., supra, whereshe stated at paragraph 38: [38] I intend to rely on the information from Health Canada and the COVID-19 dashboard of the Province of New Brunswick.

Irecognize that other courts have relied on information from the Center for Disease Control of the United States and the declarations ofthe World Health Organization. [41] The Court then stated its intention to take judicial notice of certain facts regarding Covid-19 and concluded at paragraphs 55and 56 on this point: [55] The conclusions arrived at in J.N. and C.G. are contrary to most other Canadian decisions wherein one parent requested soleauthority to make arrangements for children to receive the COVID-19 vaccine, in cases where the other parent was strongly opposed tothe vaccination.

See OMS v EJS, 2021 SKQB 243, Droit de la famille-212035, 2021 QCCS 4484, Droit de la famille-212222, 2021QCCS 4862; Saint-Phard v Saint-Phard, 2021 ONSC 6910; T.K. v J.W., 2022 BCPC 16; L.M. v C.O., 2022 ONSC 394, V.L.M. v B.S.F.,2022 NBQB 23; and D.O. v. C.J. 2022 NBQB 019. [56] With respect, I cannot follow the reasoning outlined in J.N. and C.G.

While I appreciate that intelligent people may havedifferent points of view regarding the COVID-19 vaccinations, the concept of judicial notice is still a recognized principle of law whichmay be challenged by compelling and reliable evidence to the contrary. [42] I have attempted to summarize the law in Canada, as well as in New Brunswick, on the question of taking judicial notice insimilar cases. See also the decision in D.O. and C.J. 2022 NBQB 019, where Justice Hackett adopted a similar approach of takingjudicial notice. That was a case referred to by Justice d’Entremont in K.D.B. v.

K.B., supra. [43] My review of the case law supports and confirms Justice d’Entremont’s conclusions with respect to the approach adopted bythe majority of Courts in Canada on this issue as stated above. I am also bolstered in this view by the fact that leave to appeal Justiced’Entremont’s decision was refused by our Court of Appeal in K.B. v K.D.B., (NB CA). This is what Madam JusticeBaird said in her decision to deny leave: [17] In Dyquiangco Jr. v. Tipay, 2022 ONSC 1441, [2022] O.J. No. 1030 (QL), Jarvis J. was faced with a similar fact situation.

In thatcase, pursuant to the terms of an agreement, both parents had joint decision-making powers concerning their 12-year-old child. In theevent of a dispute, mediation was to be attempted first, before returning to court. The mother objected to the child receiving the COVID-19 vaccine. The father filed a motion. The mother objected, asserting it was pre-mature because of the mediation provision. On the issueof judicial notice, Jarvis J. concluded, as a general presumption, it is in the best interests of a child to be vaccinated, and he granted thefather’s motion.

He took judicial notice of scientific articles on point, as did the judge in this case. Recently, Quigg J.A. dismissed amotion in which a father sought leave to appeal the decision of a motion judge which granted the mother the authority to have a childvaccinated. In B.S.F. v. V.L.M., [2022] N.B.J. No. 51 (QL) (C.A.), she wrote:

In my view, the taking of judicial notice by the motion judge in this case did not result in unfairness to B.F. […] [para. 9] [18] For the same reasons, I disagree the motion judge in this case erred when she took judicial notice of certain materials. It is my view the decision in the lower court was interlocutory. Applying the criteria, I do not doubt the correctness of the order or decision in the court below. It was well reasoned, and the judge thoroughly canvassed the issue in dispute.

The judge accepted the expert opinion of the child’s physician, and rejected the opinion proffered by a retired physician who had no personal knowledge of the child. The judge considered the best interests of the child and exercised her discretionary authority.

Further, I am not satisfied this proposed appeal involves matters for which leave to appeal should be granted. [Emphasis mine]. [ 44 ] Based on the foregoing, I will therefore take judicial notice of the following facts: • Vaccines reduce the risk of contracting COVID-19 and suffering serious illness as a result; • Although children are less likely to become really sick from COVID-19 they still can get sick and spread the virus to others; • Health Canada and the provincial government of New Brunswick have endorsed vaccinations against COVID-19 for children; • Health Canada has concluded the benefits of vaccination outweigh the risks in children 5 to 11 years of age; and • Health Canada has approved vaccinations for children between the ages of 5 to 11 years of age, and New Brunswick has made children 5 to 11 years old eligible for the vaccine. [ 45 ] As Justice Hackett said in D.O. and C.J. , supra, at paragraph 25, “The above information is in public documents available on the provincial government website (www2.gnb.ca).

Therefore, in my view, it would also meet the exception to the hearsay rule for public documents ( see A.C. v L.L. , 2021 ONSC 6530 .).” [ 46 ] I note that Justice Hackett’s comments in D.O. and C.J. , supra, were adopted by Justice d’Entremont in K.D.B. v. K.B. , supra, at paragraph 62 : [62] For the purposes of this decision, I will take judicial notice of the facts outlined in the previous paragraph, relating to COVID-19 and the safety and efficacy of the vaccines.

As well, the said websites of the government of New Brunswick and Health Canada are admissible evidence under the public documents exception to the hearsay rule pursuant to

section 43 of the Evidence Act, R.S.N.B., 1973, Chap. E-11 . [ 47 ] I will also adopt them here. [ 48 ] The evidence relied upon in this matter must be scrutinized. In many cases on the issue that confronts the Court here, parties often rely upon inadmissible evidence to support their claims for or against vaccination. This evidence often takes the form of various downloads from the Internet. This case is no different.

[ 49 ] The evidence led by the Father unfortunately is not relevant, unreliable hearsay, and, in addition, it contained non-expert opinion. For example, Exhibit “A” is a download from a website bearing the address https://boersenwolf.blogspot.com. It relates to someone’s opinion and

interpretation about a US Supreme Court decision involving Robert F. Kennedy Jr. “who won the case against all the lobbyists”. The author of this blog then goes on to provide an opinion about how the judgment “opens up something internationally (…)” “because Switzerland has a special position here with its federal constitution.” The author then opines that: But this judgment should also make the rest of the world sit up and take notice, because the Nuremberg Code is internationally valid and is also included in

Article 7 of the International Covenant on Civil and Political Rights. In the case of criminal charges, the statement must include a reference to the contrarian scandal in order to give special weight to the importance of this charge.

The policies thus facing a hot autumn. [ 50 ] Exhibit “A” to the Father’s Affidavit is inadmissible evidence and shall not be considered by me on this motion. [ 51 ] The same rationale applies to Exhibit “D” to the Father’s Affidavit which is a document downloaded from PaulCraigRoberts.org entitled “German Study Shows That It Was the “Vaccine” That Killed, Not Flu/Covid”. [ 52 ] The same rationale further applies with respect to Exhibit “E” of the Father’s affidavit which is a CTV News articles from Calgary entitled: “Deaths with unknown causes now top Alberta’s top killer: province”. This

article begins by stating that “Alberta is reporting an unprecedented increase in ill-defined and unknown causes in death in 2021.” The

article further states that “Dementia was the second leading cause of death in Alberta in 2021. COVID-19 took the third spot.” [ 53 ] For clarity, the reason Exhibits “A”, and “D” to the Father’s Affidavit are inadmissible is because they are not relevant, unreliable hearsay and they contained non-expert opinion and commentary. [ 54 ] Exhibit “I” to the Father’s Affidavit is a copy of An Act to Prohibit and Prevent Genetic Discrimination , assented to May 4, 2017 (Bill S-201). Exhibit “J” is a

summary of the Supreme Court of Canada decision Reference re: Genetic Non-Discrimination Act 2020 SCC 17 . The

summary was prepared by communications staff of the Supreme Court of Canada. I am certainly able to take judicial notice of case law and legislation.

However, this particular legislation and decision bears no application to this matter. [ 55 ] Exhibit “K” to the Father’s Affidavit is a publication from the European Union Prosecutor’s Office indicating that “it has an ongoing investigation into the acquisition of Covid-19 vaccines in the European Union.” While this document relates to Covid -19, it is of little to no probative value to this case and I will attach no weight to it. [ 56 ] Lastly, Exhibit “L” to the Father’s Affidavit is a one page document that was attached without reference to the author or where it came from.

It purports to refer to a quote from Martin Luther King: “Never Forget That Everything Hitler did in Germany was Legal”. I find that this document is totally irrelevant and inadmissible. [ 57 ] I find that the Father has simply not offered any admissible, reliable and cogent evidence to rebut the facts that I have taken judicial notice of in this matter.

In fact, other than stating that one of the children “survived” Covid, and that the other did not contract it, the Father has not provided any evidence to show how vaccination will impact them specifically. [ 58 ] In fact, there is nothing in the Father’s Affidavit that disputes the facts set out in paragraphs 6, 7 and 8 of the Mother’s Affidavit.

Arguably, the Father has not presented any reliable, cogent evidence to refute or challenge the facts set out in paragraphs 9 and 10 of the Mother’s Affidavit either. [ 59 ] There was no admissible expert evidence submitted from any treating physician, such as the children’s family physician, to demonstrate that vaccinating the children will harm them in any manner due to some pre-existing health concern or otherwise, or that

vaccinations present a serious health risk to them, or even that they are contra-indicated. In short, no reliable expert evidence was submitted to suggest that the facts of which I have taken judicial notice of are unreliable or “so notorious” that they should not be judicially noticed.

If anything, any admissible evidence emanating from government sources corroborate my findings. [ 60 ] No evidence with respect to the views of preferences of the children was presented either. [ 61 ] I am satisfied that the Mother is the parent who is best able to make reasonable decisions regarding the overall health and well- being of the children and, more specifically, with respect to vaccinating them. I have taken into consideration the children’s ages as well and their level of education.

It is in the children’s best interests to make this finding because it best ensures that their health and medical needs will be met, in addition to their overall well-being, pursuant to s. 16(3) of the Divorce Act .

DISPOSITION [ 62 ] The Mother’s Motion is therefore allowed. [ 63 ] The Final Consent Order effective November 7, 2016, signed November 2, 2016, which was incorporated as corollary relief when the divorce was granted is varied such that the mother is granted sole decision-making responsibility with respect to any medical decisions pertaining to the children [M.E.E.] (D.O.B. […], 2010) and [M.V.E.] (DO.B. […], 2012) including, but not limited to, whether or not and when they will receive the COVID-19 vaccination or any related booster shots going forward that become available for this age group. [ 64 ] On the issue of costs, the Notice of Motion did not make any request for an order of costs.

Both parties are self-represented litigants and therefore did not have any legal expenses. I will order that costs shall be payable in the cause, which means that I will hear the parties on this issue after the next hearing scheduled for November 14-16, 2022. DATED at Saint John, New Brunswick this ______ day of November 2022. _________________________________ Danys R.X. Delaquis Judge of the Court of King’s Bench of New Brunswick - Family Division