B.L.O. v. L.J.B., 2019 ONCJ 534

ONTARIO COURT OF JUSTICE CITATION: B.L.O. v. L.J.B. , 2019 ONCJ 534 DATE: 2019 07 23 COURT FILE No.: Toronto 18-15966 BETWEEN: B.L.O. Applicant — AND — L.J.B. Respondent Before Justice Alex Finlayson Heard on July 18, 2019 Reasons for Judgment released on July 23, 2019 Liam McAlear................................................................................... counsel for the applicant Jean Hyndman........................................................................... counsel for the respondent ALEX FINLAYSON J.:

PART I: NATURE OF THIS MOTION [ 1 ] The parties are the parents of a 13 month old girl named M.I.O. The Applicant, B.L.O. is her father and the Respondent, L.J.B. is her mother. This proceeding concerns claims for custody and access of M.I.O, and child support. [ 2 ] This matter first came before the Court when the father launched an ex parte Notice of Motion dated December 6, 2018. It was initially heard on December 7, 2018.

Justice Brian Weagant made an ex parte order, on a temporary without prejudice basis, that the father have sole custody of M.I.O., and he ordered the mother not to remove the child from the City of Toronto. Weagant J. also directed that the matter was to return before me on December 19, 2018. [ 3 ] The return of the motion did not proceed on December 19, 2018.

Instead, there have been a number of appearances, between December 19, 2018 and now, at which the Court made a number of orders on consent, leading up to the hearing of this motion. [ 4 ] While the motion I heard on July 18, 2019 was technically the return of the father’s ex parte motion, each party filed fresh Notices of Motion to clarify the precise relief each now seeks, since things have changed since the father’s first attendance before this Court on December 7, 2018. [ 5 ] That said, many of the claims made in the parties’ fresh Notices of Motion resolved on consent, either at the outset of argument on July 18, 2019 or during the course of argument, and so the Court made various orders accordingly. [ 6 ] At the conclusion of the motion, the Court raised with each counsel whether it should appoint the Office of the Children’s Lawyer.

Both counsel consented to the appointment, and so the Court made that order too. [ 7 ] For oral reasons delivered, the Court dismissed the parents’ competing custody claims. I indicated I would release a written

decision concerning certain remaining issues. [ 8 ] The remaining issues are: (

a) Whether the child should be vaccinated now, in accordance with “the

schedule of publicly funded immunizations for Ontario for children starting immunizations between 1-6 years” (this is the father’s position); or (

b) Whether the child should be vaccinated pursuant to a delayed vaccination schedule, with the child only receiving aluminum free vaccines (this is the mother’s position); and (

c) Whether the Court should order each parent to disclose their health and counselling records to the other. [ 9 ] This is my judgment respecting these remaining issues before the Court raised on the motions. [ 10 ] For the reasons that follow, the Court is granting the father’s motion that the child be vaccinated. The Court is also ordering certain terms respecting the health and counselling records. [ 11 ] In this Judgment, I will first provide a brief background and summarize the history of this case. I provide a brief

summary of the Court’s oral judgment respecting the temporary custody claims. I will then analyze the remaining issues before the Court.

PART II: BACKGROUND [ 12 ] The parties began living together either in June or August 2017. They disagree about when they started living together, but that does not matter for the purposes of this motion. [ 13 ] The parties were married on April 15, 2018. M.I.O. was born on [...], 2018. [ 14 ] The parents did not start M.I.O. on any

schedule of vaccination after her birth. I was shown some of their written communications about this that they exchanged after the separation. I do not know what their pre-separation discussions were. [ 15 ] The parents separated on October 25, 2018. The mother left with M.I.O. at that time. Initially, the father did not know where she went. [ 16 ] Initially, after she left with M.I.O., the mother only allowed the father to have limited contact with the child.

She said she wanted his access to be supervised. [ 17 ] The father telephoned the Children’s Aid Society of Toronto, thereby triggering their involvement with this family. Leading up to this motion, I made an order that the Society disclose its notes and records concerning this family. The notes and records that were placed before the Court for this motion reveal that the Society did not have concerns about the mother’s care of the child. [ 18 ] In his affidavit filed in support of the ex parte motion, the father alleged that after leaving their shared apartment, the mother was homeless.

He was worried that the mother might take the child to Prince Edward Island, where she is originally from. The father also deposed that the mother has struggled with alcoholism and depression. He talked about a history of mental illness in the mother’s family. [ 19 ] The mother has now responded to these allegations. She has confirmed some of the facts that the father set out, but she has provided an explanation, or information for context, and she has refuted other of his statements.

This includes information about the history of her residential arrangements, and that although she is a recovering alcoholic, she is sober. [ 20 ] The mother filed an affidavit of her Alcoholics Anonymous’ sponsor to confirm her evidence on this point. The mother also provided evidence to the Court about the mental health supports that she has in place, including a report from a psychiatrist at Women’s College Hospital dated December 13, 2018. [ 21 ] That report states that the mother has been under the care of the psychiatrist for Alcohol Use Disorder since January 2018.

It states that she has been abstinent since that time. The mother’s affidavits also reveal that she receives individual therapy. She has appropriately sought out other mental health resources and services too. [ 22 ] After the separation, the mother and the child lived, for a time, in a house in Newmarket, with her AA sponsor. But she has since moved back to Toronto.

The parents now live near one another, which has enabled the father’s access to expand, without having to deal with the logistic problems that might have otherwise been present, were the mother still in Newmarket. [ 23 ] The mother deposed that the father was abusive towards her during the relationship. While she did not allege any physical violence, she said that the father was emotionally and verbally abusive. She also said that the father was financially controlling when they were together. [ 24 ] The mother’s position is that the father has an anger problem.

She explained that during their relationship, they went to some counselling sessions, but the father did not follow through. [ 25 ] The father responded to the mother’s allegations, denying any abuse. He also provided his perspective respecting some of the mother’s statements. Meanwhile, the father is now attending individual counselling, although he did not say where or with whom. [ 26 ] Each party provided the Court with his and her account of the extent to which he and she was involved in parenting M.I.O. following her birth. The mother said she was and is the child’s primary parent.

The father disputed that and talked about his own involvement in parenting. There is some acknowledgement by the mother that the father was involved in parenting M.I.O., although she maintains it was to a lesser degree.

[ 27 ] The evidence about the division of parenting responsibilities is conflicting. [ 28 ] While it is true that the mother has been the child’s primary parent since the separation, at this stage of the case, the Court is not prepared to place much weight on this fact. It is unclear whether this is just a continuation of the status quo from prior to the separation, or whether this is a new situation that has been created as a result of the fairly recent separation.

PART III: PRIOR LEGAL PROCEEDINGS [ 29 ] This Court has made the following orders since this case began: (

a) On December 7, 2018, Weagant J. made an ex parte order that the father have temporary sole custody of the child and that the mother shall not remove the child from the City of Toronto; (

b) On December 19, 2018, on consent, I set aside the temporary without prejudice custody order, ordered that the child would be in the mother’s primary care pending the motions and I ordered access. I varied the non-removal order such that either party could leave the GTA with the child, if he or she had the consent of the other. I also ordered terms respecting communication between the parties; (

c) On January 24, 2019, also on consent, I ordered that the mother was to invite the father to attend medical appointments, I further expanded the father’s access to the child, and I made an order for disclosure of police and CAS records. I also made a scheduling order for the exchange of materials for the return of this motion and I adjourned this matter to June 4, 2019; (

d) As I said earlier, this matter did not proceed on June 4, 2019. On that date, I made an order permitting the mother to travel to the Ottawa area with the child to visit family, I made an order that the father could have certain additional access as he would miss visits as a result of the trip, and I issued additional directions regarding the conduct of this motion. One of the directions I made was that the Court would hear viva voce evidence concerning the vaccination issue, since the father had filed expert evidence attached to an affidavit on this topic. I scheduled the motion to be heard over a full day on July 18, 2019; (

e) At the outset of the motion on July 18, 2019, again during the argument, and again at the end of argument, matters were either resolved on consent or it became apparent that certain claims were not opposed. As such, I made the following orders, either on consent or on an unopposed basis:

(1) I made an additional order for CAS disclosure at the father’s request;

(2) The mother agreed to the father’s access proposal set out in his Notice of Motion, with minor modifications, to which the father agreed. As such, I again increased the father’s access with M.I.O. The temporary access

schedule that is now in place will be from Sundays at 10:00 am overnight until Mondays at 9:00 am, on Tuesdays from 12:30 pm until 5:30 pm, on Wednesdays from 9:00 am until 4:00 pm, and on Fridays from 11:00 am until 1:00 pm;

(3) I varied the non-removal order so that the parties are now able to travel with the child within Ontario. They must have the consent of the other to leave Ontario with the child, but that consent is not to be unreasonably withheld;

(4) I varied the communication terms previously ordered. The new order respecting communication is based on paragraph 9 of the mother’s Notice of Motion; and

(5) I appointed the Children’s Lawyer; (

f) Not on consent, I made the following orders:

(6) I dismissed the competing requests for temporary custody;

(7) I directed that the parties are to continue to attend at medical appointments for the child together, as previously ordered on consent; and

(8) Except for the vaccination and health and counselling records issues that I address later in this Judgment, I dismissed all other prayers for relief: In their respective Notice of Motion.

PART IV:

SUMMARY OF THIS COURT’S ORAL RULING RESPECTING TEMPORARY CUSTODY AND CERTAIN OTHER ISSUES [ 30 ] Things have calmed down since this case began. [ 31 ] Based on the record before the Court, at this stage of the case, the following facts are not disputed: (

a) The parents now know each other’s addresses; (

b) The father’s visits with M.I.O. have expanded pursuant to the various Orders summarized above and those visits have gone well; (

c) The parents are communicating by way of a communication book and that method of communication seems to be working for now; (

d) Both parents are in individual counselling. The mother is accessing additional services; and (

e) The parents have been attending medical appointments for the child together since January 2019, without incident. [ 32 ] That said, there are a number of other factual disputes in the evidence. Those factual disputes will have to be resolved by a trial

judge if this case does not resolve during this Court’s case management process. In part for this reason, the Court appointed theChildren’s Lawyer. In my view, a report prepared pursuant to

section 112 of the Courts of Justice Act will be helpful to the trial judge. It may also assist the parties to reach a resolution of this dispute. [33] It appears to the Court that the only decision that must now be made for this young child relates to her vaccinations.

So whilethe Court dismissed the competing claims for temporary custody, I indicated to the parties that I would decide the vaccination issue, as adecision needs to be made about that now, and in my view, there is a proper evidentiary record about it before the Court about it. [34] In the absence of any other evidence or specific submissions about a particular decision that must be made either now or in thenear future, there is no need for the Court to decide the issue of temporary custody at this point.

Subject to further order of this Court,(such as should there be a change in circumstances on an interim basis prior to trial), and unless this case settles prior to trial, the issue ofcustody will be left for the trial judge. Hopefully, he or she will have the benefit of a s. 112 report.

PART V: SHOULD M.I.O. BE VACCINATED IN ACCORDANCE WITH THE USUAL

SCHEDULE FORVACCINATIONS IN ONTARIO? A. Applicable Legal Principles [35] The crux of the motion focussed on the vaccination issue. Each parent essentially asserted a claim for temporary custody sothat he or she could implement his preferred position respecting the child’s vaccinations. [36] Although the Court declined to make a temporary custody order at this time, the issue of whether the child should be vaccinatednow or later may nevertheless be dealt with by the Court. [37] Pursuant to section 28(1)(

b) of the Children’s Law Reform Act, the Court may determine any aspect of the incidents of the rightto custody or access. [38] As Justice Craig Perkins said at ¶ 21 of Chou v. Region District School Board, (S.C.J.): “Custody” is not defined in Ontario legislation, though its meaning in family law is generally understood. It consists of a bundle ofrights and obligations, called “incidents” in sections 20 and 21 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended. Family law cases often deal with the allocation of rights of custody.

Those rights include the right to physical care and control of thechild, to control the child’s place of residence, to discipline the child, to make decisions about the child’s education, to raise the child in aparticular religion or no religion, to make decisions about medical care and treatment. The incidents of custody can be dealt with alltogether or separately, according to

section 21, and today it is common for parents who have separated to agree, and for courts to order,that some incidents of custody are jointly vested in the parents and some belong to one parent exclusively. If a custodial right is joint, itmay be exercised by any one of the persons who has it. See also the decision of Justice Roselyn Zisman in Webster v. Suteu, 2015 ONCJ 538 at ¶ 232. [39] Decisions about when to have a child vaccinated, and what vaccines to administer, are important medical decisions. The rightto consent to medical treatment on behalf of a child is an incident of custody. As such, it is within this Court’s authority to deal with thisissue pursuant to section 28(1)(

b) of the Children’s Law Reform Act. This Court will also be guided by what is in M.I.O.’s bestinterests. See

section 24 of the Children’s Law Reform Act. [40] For the reasons that follow, this Court has no hesitation in concluding that it is in M.I.O.’s best interests to grant the father’smotion respecting the vaccination issue. B. The Parties’ Positions and the Evidence Before the Court

(1) The Mother’s Position and Evidence [41] The mother’s alternative position to this Court awarding her temporary sole custody is that she should be authorized to make allmedical decisions, including but not limited to what immunizations, if any, will be given to the child. The mother is prepared to consultwith the father and the child’s doctor, but she wants to decide. [42] The mother’s position is not that there should never be any vaccines at all. Rather, she wants the child to receive fewervaccinations and on a delayed schedule.

She does not want the child to receive any vaccines that contain aluminum. [43] The aspect of the mother’s position that requires consultation with the father is not meaningful. That is because there hasalready been consultation. The parents do not agree. [44] The mother’s evidence rested in large part on an alleged agreement between the parents about vaccination. [45] At ¶ 15 of her affidavit of January 18, 2019, the mother deposed that both she and the father had concerns about earlyvaccination. She said they each wanted to research the ingredients in vaccines.

She said they were interested in learning about the risksand benefits of vaccinating, to determine if it was truly necessary for M.I.O. to have vaccinations, while she was still being breastfed. However, as I will explain, the mother’s current objection to vaccinating is longer term than just during breastfeeding. [46] The mother produced an excerpt of an exchange between the parents on Facebook, in which they referred to a “Homeschool”study that apparently discussed “vaccinated vs. unvaccinated” children. In this exchange, the mother appeared to be sceptical about thearticle.

She said that she was not sure about the percentage of error in the study. She also said that the author may have had a “singularobjective within all her articles”. [47] Nevertheless, she suggested to the father that they talk about “skipping the first round of shots giving her a few years to grow

naturally… then for school or foreign trips etc., we do the minimum required…just thinking out loud..” [ 48 ] At this point, the father was on board with this plan. The father responded, “I think waiting is great and refusing most. Until more research is proven safe, no side effects and ( sic. ) necessary”.

The father also said, “[s]ome diseases/illnesses are occurring elsewhere or aren’t ( sic. ) serious and can be cured naturally”. [ 49 ] At ¶ 15 of her affidavit of January 18, 2019, the mother said that she had discussed the issue with the child’s family doctor, and she would be attending an information session on vaccinations on January 30, 2019. She said she invited the father to attend, and he accepted the invitation.

She also said that at a well-baby check up on January 17, 2019, both parents discussed the “appropriateness of vaccinations including delaying them.” [ 50 ] Despite this, the mother did not explain what the family doctor’s advice was, nor what the father’s view was at the well-baby check-up, nor did she explain who hosted the vaccination information session on January 30, 2019, nor what had been discussed at the information session, nor whether the father attended in the end. [ 51 ] At ¶ 9 of her affidavit of May 24, 2019, the mother now said that in addition to having consulted with the child’s doctor, Dr.

Sheppard, she has consulted with a naturopathic doctor. She again said that the father had shared her concerns about safety of the vaccines, “particularly the newer ones which have not been adequately tested”. [ 52 ] To support the latter statement, the mother attached an email from the father dated March 23, 2019. I have reviewed the email in full. It only partially confirms the mother’s evidence that there was some sort of agreement amongst the parties. [ 53 ] In the email, the father referred to the mother first having shared her position on vaccinations with him at a doctor’s appointment on March 22, 2019.

He said that he didn’t disagree with the “conspiracy component [she] mentioned.” But he also went on to say that “it would be better to study the history of the diseases that the vaccinations protect [M.I.O.] from, and not focus on the global capitalist manufacturers of the product, to determine it’s ( sic. ) worth to our baby”. [ 54 ] In the email, the father went on to say that he was concerned about M.I.O. being in certain public places, un-vaccinated, for fear that she might be at risk of catching certain diseases. He said he had been given information from a “trusted source”. He forwarded that information.

He then proposed a compromise position. [ 55 ] What the father forwarded to the mother was a link to information about the contents of various vaccines.

This document associated with that link appears to be from the “Johns Hopkins Bloomberg School of Public Health”. [ 56 ] Separately, he forwarded a link to a “more reasonable vaccination schedule, with a lot less shots.” I will come back to what this link was associated with momentarily. [ 57 ] While the father may have been reluctant, originally, to vaccinate M.I.O., the father’s email of March 23, 2019 does not entirely signal his agreement with the mother about vaccines as the mother claimed.

Although he proposed the compromise position, at the end of the email, the father also said that he intended to bring a motion to ask the Court to order the “normal recommended

schedule as per the govt.” He proposed the “more reasonable vaccination schedule, with a lot less shots” as a compromise to avoid the motion. [ 58 ] The mother agreed to this only after the father filed an affidavit asking for his preferred plan. [ 59 ] This compromise position is based on a document from someone named Dr. Paul Thomas. The document is entitled the “Dr. Paul Approved Vaccine Plan.” [ 60 ] What the father forwarded to the mother (insofar as what was included in the motion materials) is a 9 page internet pamphlet. According to “Dr.

Paul”, this vaccine plan, combined with exclusive breastfeeding, a certain diet and vitamins, exercise and avoiding toxins, will result in a child experiencing superior health and a significantly lower rate of autism (0 in 1176) than the national average, which he says is 1 in 45. [ 61 ] The “Dr. Paul” plan spreads vaccinations over 18 years rather than the much shorter standard vaccine

schedule approved by physicians and public health organizations across Canada. “Dr. Paul’s” document also suggests using “low aluminum options if offered” in certain instances. [ 62 ] In a one paragraph “note about new vaccines”, “Dr. Paul” warns readers that when a new vaccine comes onto the market, or when a new vaccine is recommended, it is wise to wait a few years before administering it. He talks about “greater pressure” to bring vaccines to the market before extensive testing, and there is rarely any long-term safety testing done.

He writes that the public becomes the “long-term experiment”. [ 63 ] In this document, “Dr. Paul” alleges that many physicians fail to report vaccine side-effects. He says they dismiss severe vaccine reactions as a “coincidence”. They often refuse to file “Vaccine Adverse Events Reporting System” reports. [ 64 ] According to “Dr.

Paul”, vaccine side effects may be grossly underreported, especially when it comes to the “chronic side effects of the slow poisoning that may be occurring from the cumulative negative effects of toxic vaccine ingredients, or the slow damage to the immune system that may be occurring from aluminum adjuvants.” [ 65 ] It appears that the mother has relied, at least in part, on this internet document in formulating her position.

At ¶ 10 of her affidavit of May 24, 2019, the mother said: I continue to have concerns about the safety of the vaccinations because of the ingredients in some of them and the amount injected by the

schedule suggested. Some studies have shown this to cause a buildup of toxin in the organs and brain which can manifest as autoimmune disorders, be carcinogenic or mutagenic. I am also concerned with these vaccines being given in combination. I do

appreciate the risk of not being vaccinated and contracting the diseases, however, and I am prepared to accept the compromise proposed by the Applicant in his email, to administer the recommended

schedule of Dr. Paul Thomas.

(2) The Father’s Position and Evidence [ 66 ] Again, the father told the Court he want the child vaccinated in accordance with “the

schedule of publicly funded immunizations for Ontario for children starting immunizations between 1-6 years”. [ 67 ] Notwithstanding his prior communications with the mother, in his affidavit of May 15, 2019, the father deposed that he believes it to be in M.I.O.’s best interests that she be vaccinated as soon as possible to protect her from dangerous illness. He said the mother had refused to allow M.I.O. to be vaccinated despite repeated requests. [ 68 ] Dr. Susan Sheppard has been M.I.O.’s doctor since her birth. The father attached to his affidavit a letter from Dr. Sheppard dated May 2, 2019, recommending that M.I.O. undergo a standardized catch up

schedule for her vaccines. After explaining that she is both M.I.O.’s and the mother’s doctor, Dr. Sheppard’s letter reads, “I understand [L.’s] concern about vaccinations but I support vaccination as per the Canadian Pediatric Society”. [ 69 ] The father filed a further affidavit sworn May 30, 2019 for use at this motion. To it, he attached the Report of Dr. Joan Robinson dated May 13, 2019. Dr. Robinson is a paediatric infectious disease physician at the Stollery Children’s Hospital in Edmonton, Alberta. The father also supplied the Court with Dr. Robinson’s curriculum vitae. She signed a Form 20.1 Acknowledgement of Expert’s Duty.

(3) The Conduct of this Motion Respecting the Evidence [ 70 ] In my Endorsement of June 4, 2019, I adjourned the motion to July 18, 2019 for a full day hearing. The Court indicated that it wanted to hear oral evidence about the vaccine issue. I directed that the father could have Dr. Robinson testify via video using the remote witness technology that is available at this Court (ie. the Court’s “Jabber” technology) rather than him having to fly Dr. Robinson to Ontario to testify.

I also directed that the mother was at liberty to file her own expert report and could call that witness to testify if she wanted. [ 71 ] The mother chose not to call a witness. She relied only on her affidavit evidence and the documentation attached thereto. Her counsel also cross-examined Dr. Robinson.

(4) Dr. Robinson’s Evidence [ 72 ] Dr. Robinson was asked to provide an expert opinion concerning the risks and benefits of routine immunization for a child living in Canada who has no chronic medical problems [1] . [ 73 ] Dr. Robinson obtain her MD degree with distinction from the University of Alberta in 1983. She has other certificates in pediatrics and Infectious diseases. She has undergone years of post-graduate training. She is a member of the college of physicians and surgeons of Alberta. She is currently the director of pediatric infectious diseases at the University of Alberta.

She is a professor there too. [ 74 ] Dr. Robinson’s curriculum vitae details her years of holding numerous appointments relating to pediatrics and infectious diseases. She has been on a number of committees in that field. She also has an exhaustive list of publications. [ 75 ] On consent, I qualified Dr. Robinson as an expert in pediatric infectious diseases and immunization. [ 76 ] In her report, Dr. Robinson answered five questions that she said are commonly asked of her about immunization. [ 77 ] First, Dr. Robinson explained that the routine childhood vaccines recommended in Canada prevent infection.

She explained that the 2019 vaccine

schedule for healthy children includes vaccines for measles, mumps, rubella, chicken pox, diphtheria, tetanus, polio, Haemophilis influenza type b, pneumococcus, meningoccus, HPV, Hepatitis B and whoopping cough. [ 78 ] Some vaccines do not cover all “strains” of the infection that occur in Canada, but they cover the most common ones. [ 79 ] Dr. Robinson explained both in her report, and during her testimony, that the incidence of disease in every country where the issue could be studied, dropped dramatically in children who had received all recommended doses of the vaccine.

She addressed and dispelled the myth advanced by some, that the drop in infection diseases is related to other factors, such as improved hygiene. [ 80 ] Dr. Robinson commented about the effectiveness of the vaccines. Vaccines are never 100% effective. However most are over 90% effective. Protection usually lasts throughout childhood. [ 81 ] Dr. Robinson also addressed concerns that immunizing children may lead to “childhood diseases” being postponed to adulthood. She explained that hardly ever happens. She explained persuasively why that is with reference to the operation of the body’s immune system. [ 82 ] Dr.

Robinson also explained the various effects on a child should he or she contract any of the diseases that the vaccines are designed to prevent. The symptoms of these diseases are, at a minimum, highly unpleasant. But many of the diseases cause serious and sometimes long lasting debilitating effects. Some will lead to death. [ 83 ] The diseases cause encephalitis (the inflammation of the brain, which can lead to permanent brain damage and death), inflammation of the testes (which can lead to infertility), permanent hearing loss, flesh eating disease, heart failure, obstructed breathing,

“lock jaw”, paralysis, deafness, permanent handicap, cervical cancer, genital warts, head and neck cancer, cirrhosis of the liver, liver failure, cancer of the liver, respiratory failure and death. [ 84 ] In her report and during her testimony, she explained which of these symptoms were more or less likely, but all of these are possible symptoms depending on which of the various diseases is contracted. [ 85 ] By contrast, Dr. Robinson explained the side effects of the vaccines.

The most common side effects of the vaccines are generally a low-grade fever and/or pain and redness at the injection site that lasts 1 to 3 days. She explained that very rarely, a vaccine can result in anaphylaxis (a life-threatening allergic reaction). But this almost always occurs within 15 minutes of the injection and is rapidly reversed with one dose of epinephrine. This is why children are kept in the clinic for a minimum of 15 minutes after a vaccine. [ 86 ] Dr.

Robinson was not aware of any child in Canada dying or having sequelae from vaccine-induced anaphylaxis during her 28 year career as an infectious diseases physician. [ 87 ] Dr. Robinson explained that there are four vaccines that contain live viruses. These are measles, mumps, rubella and chicken pox. They are to be given to a child at 12 months of age (M.I.O. is now 13 months old). They can cause a very mild version of the disease that they are designed to prevent. However, Dr, Robinson explained that the child receiving the vaccine hardly ever gets sick.

Rather, he or she will typically just get a mild rash for a few days. [ 88 ] If the child had a congenital immune problem that had not yet been diagnosed, though, they could die from the vaccine. But Dr. Robinson testified that the presence of a congenital immune problem would generally be diagnosed in a child by 12 months of age. This is generally tested for. And Dr.

Robinson also explained that even if testing for this had not yet been done, a child would have experienced symptoms of this problem by 1 year of age and so it would have been detected. (There is no evidence that M.I.O. has this condition). [ 89 ] Dr. Robinson was aware of at least one case where a child got encephalitis from the measles vaccine. However, she also said the chance of getting this is “far, far higher” from a measles infection itself, than from the vaccine designed to prevent measles. [ 90 ] Vaccines can cause a drop in the blood’s platelets. Dr.

Robinson explained this is most likely after the measles, mumps and rubella vaccines are administered. She explained that it occurs after about 1 in 25,000 to 1 in 40,000 doses. Most children fully recover from this, sometimes on their own and sometimes with the aid of medication or a blood transfusion. There is a small chance that a child could die from bleeding or suffer brain damage should this drop occur, but once again, Dr. Robinson explained that the chance of getting low platelets is higher from natural infection, than from the vaccine. [ 91 ] Dr.

Robinson specifically addressed the myth that there is a link between vaccines and autism. She said there is no evidence that autism, and for that matter, no evidence that an increased risk of allergies or asthma, are side effects of vaccination. In her report, she wrote that these are “completely unproven and are based on anecdotal evidence rather than science”. [ 92 ] Dr. Robinson addressed the “herd” argument that is sometimes advanced. She agreed that if most children are immunized, there is far less circulation of vaccine-preventable diseases, and so even the unimmunized child is protected to some degree.

However that child is not completely protected because certain diseases can be contracted in other ways, such as from dirt. And some diseases are very infectious, increasing the likelihood of exposure in populated places, like Disneyland, where there are lots of other children. Traveling to countries with less robust vaccination programs would also be problematic. [ 93 ] It is Dr. Robinson’s opinion that the benefits of immunization far outweigh the risks of not vaccinating.

She feels that it is irresponsible for a parent not to vaccinate a healthy child in accordance with the standard practice in Canada. [ 94 ] Dr. Robinson testified as to what that standard practice is. She explained that in every province in Canada there is a routine immunization schedule. These vary slightly from province to province, but they all involve immunizations at 2, 4, 6, 12 and 18 months and again at ages 4 and 5. Plus, there are certain vaccines given at older ages, such as the HPV vaccine, which is administered starting at age 9. [ 95 ] It was Dr.

Robinson’s opinion that M.I.O. should be vaccinated as soon as possible. In response to a question for the Court about how it works given that M.I.O. has missed the first four sets of vaccines, she explained that there is a protocol for updating immunizations, no matter at what age the person presents to be immunized. [ 96 ] Also in response to a question from the Court, Dr. Robinson testified that the catch up vaccines could be administered by any public health unit, or by a family physician. She testified that either option would be completely acceptable. [ 97 ] In cross-examination, Dr.

Robinson explained that the vaccines mentioned in her report are recommended for all children, and that they are completely covered by all provinces and territories in Canada. [ 98 ] In response to a question from the mother’s counsel as to whether there is a live scientific controversy about vaccinating children, Dr. Robinson explained that very few “medical doctors” have any concerns about these vaccines. She said that it would be “incredibly unusual that a medical doctor” would have a major concern about a routine vaccination. [ 99 ] Although Dr. Robinson was not asked to specifically comment on “Dr.

Paul’s” internet pamphlet, she was asked questions that effectively addressed its content. She explained that there is no real concern about the proper testing of vaccines and or unknown side effects. She explained that vaccines in Canada are tested in “huge numbers” before they are released to the public. She also explained that vaccines undergo various trials. She said there is an “incredible” amount of data available before Health Canada approves of vaccines. [ 100 ] There are also programs in place to monitor the safety of vaccines.

Thirteen of Canada’s largest hospitals monitor admissions for vaccine related illness. If there was ever a safety issue or an effectiveness issue, she said the medical community would know about

it. The chance is very high that physicians would find out about rare side effects. [101] In cross-examination, Dr. Robinson acknowledged that breastfeeding and antibodies from the placenta do provide someadditional protection against infection. However, she said “not a lot of additional protection”. Beyond 6 months of age, the protectionoffered from the latter is “pretty minimal”. [102] In cross-examination, Dr. Robinson also admitted that some vaccines do have aluminum in them, but the aluminum content isvery small. Incidentally, she pointed out that there is aluminium in breast milk too. Dr.

Robinson testified that there is no evidence thatthe tiny amounts of aluminum in certain vaccines are harmful at all. [103] Dr. Robinson testified that there is no evidence that spreading out vaccines would be useful. This is because, she said, thehuman immune system can tolerate the usual vaccine schedule. [104] There are downsides to spreading out the vaccines, however. In effect, a child will end up getting more shots, not less. And thatchild remains exposed to more illness in between vaccines while waiting for the next round.

In other words, if the vaccines are spreadout, the child is older before she is protected properly from certain diseases. C. Analysis Respecting the Evidence Concerning Immunization [105] Dr. Robinson signed the Acknowledgement of Expert’s Duty Form. She testified about the duties listed therein. I am satisfiedthat she understood and took her duty to the Court seriously. [106] Dr. Robinson is a highly qualified expert in the field of pediatric infectious diseases and immunization. Her report, augmentedby her oral testimony, was clear and straight forward. She easily explained various concepts to the Court.

And she was unshaken incross-examination. [107] Dr. Robinson made fair concessions in her report and during her testimony. For example, she explained the science based risksassociated with the various vaccines. She also placed those risks into context, comparing those to the benefits of getting the vaccines,and the risks associated with not getting them. [108] Dr. Robinson’s testimony was properly before the Court. Her evidence was relevant, necessary to assist the Court, there was noexclusionary rule preventing it and she was properly qualified to testify about the vaccine dispute before the Court. See R. v.

Mohan, (SCC), [1994] 2 S.C.R. 9. [109] The Court completely accepts Dr. Robinson’s evidence. [110] Quite apart from the strength of Dr. Robinson’s evidence on its own, there is no evidence from a competing expert to thecontrary. The mother’s evidence is based on her own research, plus “Dr. Paul’s” internet pamphlet. The mother is not an expert and theinformation from “Dr. Paul” is hearsay. [111] I acknowledge that pursuant to rule 14(19) of the Family Law Rules, the Court may admit and rely on hearsay. That said, thehearsay upon which the mother wishes to rely is in the nature of opinion.

It does not come anywhere close to meeting the requirementsfor admissibility in R. v. Mohan. Even if the information from the internet is admissible hearsay, by virtue of rule 14 (19), which Iseriously doubt, the Court would place no weight on it. [112] To be clear, I wish to acknowledge that counsel for the mother readily agreed that Dr. Robinson should be qualified as anexpert. Acting on the mother’s instructions, counsel for the mother cross-examined Dr. Robinson on much of the subject matter that iscontained in the “Dr. Paul” document.

However, the cross-examination could not undermine the science that underlies Dr. Robinson’sopinion. [113] Counsel for the mother did not really seek to rely on the “Dr. Paul” information in argument. Rather, Ms. Hyndman argued thatthe parties had agreed to a delayed

schedule for vaccination and so that is what the Court should order. [114] The Court is also not satisfied that the vaccine issue can, or should be resolved by way of the parties “consent”. The Court doesnot find that the parties’ email and Facebook exchanges represent a consent of the parties. [115] It is true that in the email of March 22, 2019, the father proposed the reduced

schedule in “Dr. Paul’s” material as acompromise. But he also said he was going to bring a motion. His statement is hardly an unequivocal statement of his consent. [116] If I am wrong in this regard and the exchanges between the parties, coupled with the mother’s statement in her affidavit that sheaccepts the compromise offered on March 22, 2019, is tantamount to offer and acceptance, the Court has the discretion to decline toaccept that consent. [117] Pursuant to section 67(1) of the Children’s Law Reform Act, the Court has the duty to have regard to the best interests of a childwhen it accepts the consent of the parties. The Court does not find a delayed

schedule of vaccination to be in M.I.O.’s best interests. [118] Rather, the Court finds that it is in M.I.O.’s best interests that the vaccination process be started now, that M.I.O. gets caught upin accordance with best medical practices, and that her remaining vaccinations be completed in accordance with the standard practice forvaccinations in Ontario. D. The Father’s Request to Testify about Other Health Issues [119] During the motion, counsel for the father advised the Court that there was some recent evidence of the mother not following thechild’s doctor’s advice in other ways. That information was not properly before the Court though.

[120] The father could have prepared an updating affidavit on this point and sought leave to file it with the Court for the motion. Hedid not do so. Instead, his counsel asked for leave to call the father to testify. He did not serve a motion asking for this relief. Themother objected. [121] The affidavit materials filed by the parties for this motion were voluminous. The Court previously made a scheduling order forthe exchange of material. The Court also set aside time to hear from Dr. Robinson and an expert chosen by the mother (whom she didnot call).

The motion did not start on time as the father’s counsel was delayed in arriving at Court. The Court indicated that it would notallow the father to testify. [122] I presume that the father wished to testify about whatever the recent event was to bolster his claim for temporary custody. TheCourt does not know what has been going on, if anything, of late. [123] That said, for the most part, the evidence before the Court is that the child is well cared for by both parents. But the parentsshould be following the advice of the child’s doctor and that has not been done respecting vaccinations.

Based on the evidence that isproperly before the Court, I also intend to order the parents to follow the advice of Dr. Sheppard. If there is a larger issue that I amunaware of, either parent may seek to return that issue before the Court, properly, on motion. E. Disclosure of Health and Counselling Records [124] As stated earlier, both parties have requested production of health and counselling records. The father wants disclosure of themother’s health records from Dr. Sheppard, Gillian Frise, who is the mother’s psychotherapist, her treating psychiatrist(

s) at Women’sCollege Hospital, and the notes and records from any other mental health professionals she has been seen by for alcoholism, drug use orother mental health issues. [125] The mother objected to production of these records. She submitted that she should only be required to produce a report detailingher current mental health and sobriety. [126] Meanwhile, the mother sought an order compelling the father to disclose the details of any counselling that he is attending, orthat he has attended since the separation, and that he be required to provide a report from his counsellor(s).

The father objected to this,saying that it is irrelevant. [127] The Supreme Court dealt with the production of counselling records in M. (A.) v. Ryan, (SCC), [1997] 1 S.C.R.157. The Court’s commentary applies to other health records too. [128] There is no blanket privilege protecting such records. Whether they will be ordered disclosed must be dealt with on a case bycase basis. [129] The four part “Wigmore test” applies to the determination of whether health and counselling records should be disclosed. Thefour part test is: (

a) Did the communication originate in a confidence?; (

b) Was the confidence essential to the relationship in which the communication arose?; (

c) Was the relationship one that must be “sedulously fostered” in the public good?; and (

d) If all the above circumstances are met, do the interests served in protecting the communications from disclosure outweigh theinterest in getting at the truth and disposing correctly of the litigation? [130] Neither counsel referred to M. (A.) v. Ryan during submissions. Although it was not fully argued by counsel, usually the firstthree prongs of the test will generally apply to health and counselling records. However, I wish to give counsel an opportunity to arguethe contrary.

Perhaps there is something about the nature of the records sought that I was not made aware of that would lead the Court toconclude otherwise. [131] Assuming without deciding that the first three branches of the Wigmore test are met, the Court must then balance the competinginterests identified under the fourth prong of the test. [132] Whether to order disclosure, or not, must be decided with Charter values in mind. Privacy interests are engaged. [133] Whether to order disclosure, or not, is not an all or nothing proposition. On the one hand, fishing expeditions are to bediscouraged.

But on the other hand, where justice requires that communications be disclosed, the Court should consider placing limitson the scope of the disclosure or conditions on the disclosure. The result will be that what is required for the case will be madeavailable, while preserving the confidential nature of the documents to the greatest degree possible. [134] The parties have placed in issue the following issues in this case: (

a) Whether they have an ability to communicate; (

b) Whether the father has an anger issue; (

c) Issues of abuse or control during the relationship; (

d) The mother’s mental health and its impact on her parenting; and (

e) The mother’s substance abuse and its impact on her parenting.

[ 135 ] On the one hand, the Court is sensitive to the confidentiality concerns raised by the disclosure requests. For example, the father made statements in his affidavit materials about mental health issues in the mother’s family, and other historic information of a sensitive nature. There may very well be information in the mother’s health and counselling records that is irrelevant to the issues before the Court.

The same rings true of the father’s counselling records. [ 136 ] And the Court should avoid making an order that will interfere with an ongoing therapeutic relationship. [ 137 ] On the other hand, this case concerns a child. To arrive at the correct determination of the child’s best interests, the trial judge should have the best evidence that exists in order to arrive at the correct determination. See Godwin v. Bryceland , 2008 ONCJ 495 ¶ 18- 20 .

Separately, t he clinical investigator at the Office of the Children’s Lawyer may also wish to have access to health and counselling records to undertake a comprehensive investigation. [ 138 ] The Court considered Ms. Hyndman’s suggestion that the parties obtain reports from the treating practitioners to supply to each other. The difficulty with that approach is that if there is a trial, these reports are not necessarily admissible on their own. And the other will have the right to cross-examine the author of the report.

The notes and records may contain useful and relevant information for the purposes cross-examination. [ 139 ] I also considered making the order for the reports as suggested by Ms. Hyndman, and deferring the question of whether to order disclosure of the notes and records. The problem with that approach is that there is ongoing therapy. I would not want to make an order that would have the effect of making either parent feel that he or she cannot be forthcoming and honest with his and her therapist(

s) in counselling. [ 140 ] The challenge in this case is that neither counsel has yet obtained the records. It is not fair to make a disclosure order in the absence of each counsel having had an opportunity to review the records. [ 141 ] In the result and based on the Court’s discussion with counsel, I am setting a further process for the records issue to be decided, should counsel be unable to resolve the issue.

PART VI: ORDER [ 142 ] Based on the foregoing, I make the following orders: (

a) M.I.O. shall be vaccinated by her doctor, Dr. Susan Sheppard; (

b) The parents shall forthwith arrange to meet with Dr. Sheppard for this purpose. If the parents cannot agree as to a time for an appointment, then the father shall

schedule the appointment. The mother may attend; (

c) The parents shall follow Dr. Sheppard’s advice as to a ‘catch up’

schedule for the vaccinations that M.I.O. ought to have had by now, and regarding the

schedule of future vaccinations; (

d) The child shall receive the usual vaccinations that children receive in Ontario. Dr. Sheppard shall determine what those vaccines are; (

e) There shall be no objections from either parent to M.I.O. receiving vaccinations based on their own research from sources on the internet, like “Dr. Paul’s” pamphlet, or based on other, not verified concerns, such as inadequate vaccine testing or about aluminum in a vaccine; (

f) If Dr. Sheppard requires parental consent to administer the vaccines notwithstanding this Order, then the father is hereby empowered to give consent pursuant to section 28(1) (

b) of the Children’s Law Reform Act ; (

g) After the first appointment, the parents shall

schedule such further appointments as are necessary to complete the vaccinations as Dr. Sheppard directs and the parents shall ensure that they take M.I.O. to all such appointments; (

h) The parents shall otherwise follow Dr. Sheppard’s advice respecting M.I.O.’s medical care; (

i) The mother or her counsel shall obtain the mother’s health records from Dr. Sheppard, her counselling records from Gillian Frise, and the records of any treating psychiatrists at Women’s College Hospital; (

j) The father shall advise the mother, through counsel, of the names of any counsellors he has seen since the date of the separation. He or his lawyer shall obtain all of his counselling records from those persons; (

k) If the parties obtain these notes and records directly, they shall not remove any particular record prior to delivering the records to his or her counsel; (

l) Each party shall review the notes and records with his or her counsel. In consultation with his and her client, each counsel shall produce what he or she determines to be relevant; (

m) Above the Court has set out some of the issues in this case to which the records might pertain. But it may be that there are other relevant issues. I leave that to counsel to decide at this point; (

n) If either counsel, in consultation with his or her client, decides to withhold any notes or records, then that lawyer shall write a letter to opposing counsel setting out the number of pages of material that is being withheld, the nature of the document(

s) being withheld and he or she shall provide a general description of the records being withheld and the reason for withholding them. The letter should have sufficient information to enable the other side to determine whether he or she intends to seek further production;

(

o) If there is a dispute about any of the disclosure not being produced, then the Court will review the disputed records, hear submissions about it and make a ruling; (

p) I may be spoken to at a future Court date about setting up a process for this to happen if there is a dispute. I request that counsel review the M.(A.) v. Ryan decision and the subsequent case law in which the principles articulated therein have been referred to and applied in custody and access cases. It would be helpful for counsel to submit a Book of Authorities with any relevant authorities upon which either seeks to rely if there is to be further argument about health and counselling records; (

q) If there is any issue about the scope of disclosure sought by the Children’s Lawyer then I may also be contacted; and (

r) If either party seeks an order for costs, then counsel should exchange a Bill of Costs and come prepared on the next date to make oral submissions as to costs. If there is to be a costs argument, counsel bring the Bills of Costs, copies of any Offers to Settle and any relevant case law for the Court’s review at that time.

These need not be filed in advance. [ 143 ] A copy of this Endorsement shall be sent by the Court to the Office of the Children’s Lawyer along with the transcript of the Court’s oral ruling on July 18, 2019 (once it is transcribed). [ 144 ] I wish to thank counsel for their assistance with this matter and for working hard to narrow and focus the issues before the Court. Released: July 23, 2019 Signed: Justice Alex Finlayson