Inglis v Inglis, 2022 SKCA 82

Court of Appeal for Saskatchewan Docket: CACV3965 Citation: Inglis v Inglis , 2022 SKCA 82 Date: 2022-07-28 Between: Fraser Inglis Applicant/Appellant (Respondent) And Kayla Inglis Respondent/Respondent (Petitioner) Before: Richards C.J.S., Barrington-Foote and Tholl JJ.A. Disposition: Fresh evidence application dismissed, appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Barrington-Foote On appeal from: DIV 8 of 2020 (QB), Estevan Appeal heard: June 13, 2022 Counsel: David Barth for the Appellant Chris Butz for the Respondent Tholl J.A. I. INTRODUCTION [ 1 ] Fraser Inglis and Kayla Inglis have two children. Since May of 2020, the parties have had an equal shared parenting arrangement, but the parenting of the children has become complicated by Mr. Inglis’s move to Manitoba and disagreements over medical and counselling issues. Mr.

Inglis appeals from a recent interim Court of Queen’s Bench Chambers decision that resulted from applications by each party: Inglis v Inglis (6 January 2022) Estevan, DIV 8 of 2020 (Sask QB) [ Chambers Decision ]. He asserts that the Chambers judge erred in not finding that Ms.

Inglis was unreasonably withholding permission for the children to travel to his new residence in Manitoba, by giving her sole decision-making authority in relation to medical and counselling matters, and by providing her with sole authority to decide on COVID-19 vaccinations for the children. [ 2 ] For the reasons that follow, the appeal and Mr. Inglis’s fresh evidence application are dismissed. II. BACKGROUND [ 3 ] Mr. Inglis and Ms. Inglis have two children, currently aged 7 and 9.

At the time of the parties’ separation in December of 2019 or January of 2020, they lived in the family home in a small town in Saskatchewan. When they separated, Ms. Inglis moved to Regina, approximately 300 kilometres away, leaving the children in Mr. Inglis’s care.

On April 20, 2020, Wilkinson J. granted an interim order establishing the children’s primary residency with their father in the family home. [ 4 ] Less than one month later, on May 13, 2020, an interim consent order was granted by Bardai J. [May 13th order], which, among other things, provided for joint custody and shared parenting on an alternating weekly basis between Ms. Inglis in Regina and Mr. Inglis in the family home.

Another provision in the May 13th order, which permitted travel outside of Saskatchewan for one day without conditions, required details to be provided for any other extra-provincial trips between one and three days and prohibited travel outside of the province that exceeded three days without the other parent’s written consent. [ 5 ] Shortly after the May 13th order was issued, Mr. Inglis bought a farmhouse in Manitoba, with the intention of moving there. It is located approximately 175 kilometres from the family home and approximately 450 kilometres from Regina. Ms.

Inglis refused to consent to the children residing in Manitoba, which resulted in Mr. Inglis making an application to vary the May 13th order. He initially sought permission for the children to spend their alternating weeks with him in Manitoba, but amended his application to seek primary residency. Concurrently, Ms. Inglis filed an application and asked that she be granted primary residency of the children in Regina. The applications contained other requests as well.

On November 25, 2020, both parties’ applications were dismissed and the Chambers judge ordered, among other things, that the May 13th order remain in force, and the extra-provincial travel condition be amended to require written consent by the other parent if such travel exceeded one day: Inglis v Inglis (25 November 2020) Estevan, DIV 8 of 2020 (Sask QB) at para 23(a)(iii) [ November 25th Fiat ]. [ 6 ] A further application regarding Christmas parenting time was determined by McMurtry J. on December 17, 2020. A pretrial conference was held on May 3, 2021, but was adjourned sine die . Subsequently, Ms.

Inglis and Mr. Inglis each applied for additional relief. Ms. Inglis sought permission to enroll one of the children in counselling, an order that Mr. Inglis’s parenting occur in the family home in Saskatchewan, and a police assistance order. Mr. Inglis, among other things, requested an order permitting him to parent the children in his new home in Manitoba.

On August 13, 2021, Hildebrandt J. rendered a decision in which she dismissed both applications and confirmed the November 25th Fiat , while clarifying a few aspects of that order: Inglis v Inglis (13 August 2021) Estevan, DIV 8 of 2020 (Sask QB) [ August 13th Fiat ]. Those clarifications included the confirmation that Mr. Inglis’s residence for the purposes of his parenting time was the town in Saskatchewan where the family home was located. Additionally, Hildebrandt J. added the requirement that Ms. Inglis not unreasonably withhold her consent for the children to travel outside of Saskatchewan.

[ 7 ] In November of 2021, Mr. Inglis made an application without notice to vary the parenting arrangements to permit his parenting to occur in Manitoba. That application was dismissed by the Chambers judge on November 23, 2021. [ 8 ] None of the orders or decisions that have been summarized above were appealed. [ 9 ] On November 26, 2021, Mr. Inglis, who was self-represented at the time, filed an application in which he sought the following relief: (

a) an order that all interim custodial decisions for the children be made only by him; (

b) an order abridging the time for service; (

c) an order permitting his parenting time to occur in Manitoba; (

d) an order restricting Ms. Inglis’s parenting time to every other weekend; (

e) punitive measures against Ms. Inglis and her counsel; (

f) an order that Ms. Inglis be held in contempt; and (

g) costs. [ 10 ] On December 21, 2021, Ms. Inglis filed an application in which she sought the following relief: (

a) an order requiring Mr. Inglis to comply with prior court orders regarding the location where his parenting time would be exercised; (

b) an order suspending Mr. Inglis’s parenting time until he provides confirmation of the current suitability of the family home; (

c) an order authorizing her to solely make medical decisions for the children including, but not limited to, COVID-19 vaccination; and (

d) costs. [ 11 ] The two applications were heard together by the Chambers judge resulting in a fiat, which was rendered on January 6, 2022 ( Chambers Decision ). It is the Chambers Decision that is the subject of this appeal. III. CHAMBERS DECISION [ 12 ] The Chambers judge summarized the applications and the background of the matter. He included, by reference, the reasons from his November 25th Fiat . Mr. Inglis’s applications for punitive measures and a finding of contempt were dismissed. That determination is not challenged in this appeal. In dismissing Mr.

Inglis’s application for his parenting time to occur in Manitoba, the Chambers judge reasoned as follows: [14] Fraser seeks, for a fourth time, to vary the parenting arrangements established by the orders of May 13, 2020; November 25, 2020; and August 13, 2021. For the brief reasons which follow, I dismiss Fraser’s application. [15] My fiat of November 25, 2020 addressed in detail his request to vary the parenting arrangements. So, too, did the recent fiat of Hildebrandt J. on August 13, 2021.

In light of this, I need only set out my reasons for dismissing his current application in abbreviated form. [16] The legal framework for addressing such applications was set out in earlier fiats and need only be briefly summarized. [17] The paramount consideration of an application regarding custody or access is the best interests of the children … . [18] In this regard, I observed that many of Fraser’s submissions during his argument on these applications were premised on the notion that he has “custodial rights”.

He made several submissions in which he referred to Kayla’s efforts to “circumvent my custodial rights” or to “deny my custodial rights”. … [A]ny reliance on the notion of “custodial rights” is misplaced.

The paramount consideration is the best interests of the children, not a choice between the rights of one parent over that of the other. [19] Further, the legal framework makes clear that interim relocations of children are not lightly countenanced by a court, and compelling circumstances must exist before a custodial parent will be allowed to relocate with a child … . [20] Courts generally exercise caution before allowing an interim relocation … . [21] In this application, his fourth, Fraser establishes no compelling circumstance as to why it is necessary to relocate the children on an interim basis.

In these circumstances, therefore, there is no compelling reason to vary the orders of November 25, 2020 and August 13, 2021. [22] While he submits Kayla is unreasonably withholding her consent, this submission appears to be based on a fundamental misinterpretation of the previous orders. He interprets the order of Hildebrandt J. of August 13, 2021 as permitting him to exercise his parenting time in Manitoba without Kayla’s consent. He submits the spirit of that order is to permit his travel out of province and that, when Kayla fails to consent, she exhibits what he calls her “overbearing control”.

[23] Fraser’s

interpretation is simply wrong. All previous orders make clear he is to exercise his parenting time in [Saskatchewan], save and except for occasions where Kayla consents. Exercising his parenting time in Manitoba is intended to be the exception, not the rule. His repeated demands to exercise his parenting time in … Manitoba – in the face of three court orders which state otherwise – betrays an unwillingness to accept the orders. [ 13 ] The Chambers judge then moved on to consider Mr. Inglis’s application for sole decision-making, along with Ms. Inglis’s application. He found no need to order that Mr.

Inglis comply with the existing orders, because the orders already required compliance. The Chambers judge adjourned, sine die , Ms. Inglis’s application to suspend Mr. Inglis’s parenting time. [ 14 ] Turning to Ms. Inglis’s application for sole decision-making authority with regard to COVID-19 vaccinations, the Chambers judge found that Mr. Inglis was opposed to the vaccinations on religious grounds.

After noting that he must restrict his consideration of this issue to the best interests of the children, and referring extensively to the reasoning of Megaw J. in O.M.S. v E.J.S. , 2021 SKQB 243 , [2021] 12 WWR 316 [ OMS ], the Chambers judge concluded as follows: [45] The information before me is very limited compared to the information before the court in OMS . The child in OMS had a pre- existing medical condition which was used by the opposing parent as a justification to refuse the vaccination. As well, there was considerable medical evidence which spoke of the risk of vaccine toxicity in some individuals.

Further, in this case, the opposition to the vaccine voiced by Fraser is not based on medical grounds. [46] Here, like Megaw J. in OMS at paras 112–113 , I conclude I am able to take judicial notice of the existence of the Covid-19 pandemic and its effects on individuals including children.

I similarly take judicial notice that the government approved vaccines are an effective way to protect children from the effects of the virus. [47] In these circumstances, while on a different evidentiary record than that before the court in OMS , I also conclude it is in the best interests of the children to receive an approved vaccination, or vaccinations, notwithstanding the objection of Fraser.

Because the opposition of Fraser is not based on any specific medical issue, I conclude it is appropriate for Kayla to make arrangements for vaccinations for the children without the need to first consult with medical personnel. [ 15 ] The Chambers judge then addressed Ms. Inglis’s request for authority to make all medical and counselling decisions, as follows: [49] A review of the evidence establishes that Kayla has engaged with medical and counselling professionals with respect to the children and that she has received advice with respect to treatment options and prescription medications.

She has sought to undertake some options for treatment. Fraser vigorously opposes any such intervention by medical or counselling professionals and the evidence reflects that this is a source of considerable conflict between the parties. [50] After reviewing the evidence, I conclude Kayla has proceeded on a good faith basis to address any medical or counselling issues the children may have. By contrast, I conclude Fraser’s opposition to Kayla’s choices is grounded on what he considers to be his “custodial right” to determine what treatment the children may receive.

He takes the view he has a veto over any choice suggested by Kayla. When listening to Fraser’s submissions on this issue, his argument is framed around the rights he has, vis-à-vis the rights of Kayla. An important omission in his framing is the best interests of the children. [51] I therefore conclude that Kayla shall have the final decision-making authority over medical or counselling decisions to be made with respect to the children. While Kayla must consult with Fraser on these issues, if the parties are unable to agree, Kayla shall have final decision-making authority. IV.

ISSUES [ 16 ] The following issues arise in this matter: (

a) Did the Chambers judge err in not dispensing with the portion of the existing order that requires Ms. Inglis’s consent for Mr. Inglis to take the children to Manitoba for a period exceeding one day? (

b) Did the Chambers judge err in granting Ms. Inglis sole decision-making authority with regard to medical and counselling decisions? (

c) Did the Chambers judge err in granting Ms. Inglis sole decision-making authority with regard to COVID-19 vaccinations by misapprehending or ignoring evidence or otherwise? [ 17 ] Although Mr. Inglis raised other grounds of appeal in his notice of appeal, he did not present any oral or written argument on those issues. As a result, I consider them to be abandoned. V. ANALYSIS A. Fresh evidence application [ 18 ] Mr. Inglis applied, pursuant to Rule 59 of The Court of Appeal Rules , to adduce fresh evidence in the form of his affidavit and two attachments. Ms.

Inglis opposes the application, but filed her own affidavit in response in the event that we allow Mr. Inglis’s fresh evidence application. [ 19 ] The averments from Mr. Inglis’s affidavit can be summarized as follows:

(

a) The children have now both had COVID-19, having tested positive on January 29, 2022. Their symptoms were mild and didnot require any medical intervention. Mr. Inglis offers his personal conclusion that the children now have natural immunity to COVID-19. (

b) He located a research paper, dated January 21, 2022. The paper is entitled, “Innate Immune Suppression by SARS-CoV-2mRNA Vaccinations: The Role of G-quadruplexes, exosomes and microRNAs”. It is purported to have been written by Stephanie Seneff,Greg Nigh, Anthony M. Kyriakpoulos, and Peter A. McCullough. In his affidavit, Mr. Inglis excerpts the following from its abstract(emphasis omitted): In this paper, we present the evidence that vaccination, unlike natural infection, induces a profound impairment in type I interferonsignalling, which has diverse adverse consequences to human health.

We explain the mechanism by which immune cells release into thecirculation large quantities of exosomes containing spike protein along with critical microRNAs that induce a signaling response inrecipient cells at distant sites. We also identify potential profound disturbances in regulatory control of protein synthesis and cancersurveillance. These disturbances are shown to have a potentially direct causal link to neurodegenerative disease, myocarditis, immunethrombocytopenia, Bell’s palsy, liver disease, impaired adaptive immunity, increased tumorigenesis, and DNA damage.

We showevidence from adverse event reports in the VAERS database supporting our hypothesis. We believe a comprehensive risk/benefitassessment of the mRNA vaccines excludes them as positive contributors to public health, even in the context of the COVID-19 pandemic. (

c) He has located a medical study, dated April 29, 2022, entitled, “On the Use of the Pfizer and the Moderna COVID-19 mRNAVaccines in Children and Adolescents”. It appears to have been printed from the website doctors4covidethics.org. It is purported to havebeen written by three medical doctors, Michael Palmer, Sucharit Bhakdi, and Wolfgang Wodarg. Mr.

Inglis included two excerpts fromthe document in his affidavit: [I]t makes the case that the vaccines are neither needed nor safe and have not been proven to be efficacious, particularly when consideringthe Omicron variant of SARS-CoV-2, which currently dominates worldwide.

In addition to the evidence of manifest harm from the USand EU adverse event reporting systems, it also addresses the risk of genotoxicity of the mRNA vaccines, which due to recentexperimental evidence of their integration into host cell genomes must be considered urgent. … We note that the total of the COVID vaccine facilities in VAERS already exceeds that reported for all other vaccines combined, over theentire 30 year period that this reporting system has been in existence.

It is therefore clear that these vaccines are far and away the mostdeadly ones in history – quite predictably so, and all for a disease whose case fatality rate does not exceed that of influenza and isnegligible in otherwise healthy persons. (Footnotes omitted) (

d) During the week of May 30, 2022, Ms. Inglis refused her consent for the children to go to Manitoba for more than three days. (

e) Counselling with the children has gone well. [20] In response, Ms. Inglis filed her own affidavit. A

summary of the relevant portions is as follows: (

a) The children have both tested positive for COVID-19. They have not had antibody testing to determine whether they havenatural immunity. (

b) Her own personal research on the internet turned up a fact-checking website that indicated that the first

article appended byMr. Inglis to his affidavit is not verified and that the conclusion reached by the

article is not supported by the evidence. With regard to thesecond article, she accessed the About page for the organization that published the paper, which indicates that it is “demanding theimmediate withdrawal of all experimental gene-based COVID-19 vaccines”, opposes “vaccine passports, which threaten public health andviolate Nuremberg and other protections” and warns “that ‘health passes’ place coercive pressure on citizens to submit to dangerousmedical experimentation, in return for freedoms that once were human rights”. (

c) Her own internet research revealed that other publications of the same nature as the two now submitted by Mr. Inglis wereavailable in advance of the Chambers hearing. (

d) She continues to have concerns that Mr. Inglis takes the children to Manitoba without her consent. (

e) Counselling is benefitting the children immensely. [21] The test for the admission of additional evidence on appeal is set out in R v Palmer, (SCC), [1980] 1 SCR 759at 775. This approach applies whether a party is seeking to admit fresh evidence or new evidence on appeal: Barendregt v Grebliunas,2022 SCC 22 at paras 2–3 and 34, 469 DLR (4th) 1. The four criteria that a court must examine are as follows: (

a) the evidence could not, by the exercise of due diligence, have been obtained for the original hearing; (

b) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (

c) the evidence is credible in the sense that it is reasonably capable of belief; and (

d) the evidence is such that, if believed, it could have affected the result at the hearing. [22] The evidence establishing that the children have now had COVID-19, and that each of them had very mild symptoms, isuncontroverted and credible. It has relevance to the issue of the need for immunizations. However, given that there is no evidenceestablishing the significance of having had COVID-19 to the issue of whether vaccination is advisable or necessary, it would receive littleweight and, therefore, would not weigh decisively on an issue or have an effect on the outcome of the hearing. As such, this evidence is

not admissible on appeal. [23] Mr. Inglis’s personal conclusion that the children now have natural immunity to COVID-19 cannot be admitted because he hasno medical expertise to offer such an opinion. [24] The two reports appended to Mr. Inglis’s affidavit are not admissible because the authenticity and credibility of this evidencehas not been sufficiently established. Mr. Inglis does not (

a) disclose the sources of these two reports; (

b) indicate whether they have beenpublished or peer-reviewed; (

c) provide any information regarding the impartiality, independence, or qualifications of the authors, otherthan their titles, positions and, for the authors of the second paper, a brief biography; (

d) provide any expert evidence interpreting theinformation in the reports; or (

e) otherwise attempt to assist the Court in determining their authenticity, reliability, admissibility,interpretation, or applicability.

The best that can be said is that it appears he has found two reports on the internet which, on their face,appear to have some of the characteristics of an authoritative report and provide some support for his position. [25] This Court will not accept expert opinion evidence on the flimsy basis upon which it has been offered in this application: Kish vFacebook Canada Ltd., 2021 SKQB 198 at paras 17–23, leave to appeal to Sask CA refused, leave to appeal to SCC refused,, and Thorpe v Honda Canada Inc., 2010 SKQB 39 at paras 19–24, 352 Sask R 78.

In this day and age, it is not an exaggeration tosay that a report that bolsters almost any position can be found on the internet. As noted by Popescul J. (as he then was) in Thorpe, “Theinternet is an abundant source of information. Some of the information available is impeccably accurate, while other information is puregarbage” (at para 21). Here, there is no way of knowing where these two reports fall on the spectrum bounded by the two categories fromThorpe.

As a result, they cannot be admitted into evidence. [26] The confirmation by both parents that counselling is going well is credible and could not have been adduced before by duediligence, but it does not satisfy the other two criteria. We can assume that the Chambers judge expected the counselling would bebeneficial to the children, or he would not have made the order that he did. Mr. Inglis is not seeking to have the counselling discontinued.Confirmation that the Chambers judge’s expectations have been met could not have affected the outcome of the Chambers hearing. [27] Lastly, the fact that Ms.

Inglis has again refused to provide her consent to Mr. Inglis to parent the children in Manitoba simplyrepresents the continuation of a circumstance that was in existence at the time of the Chambers hearing and of which the Chambers judgewas aware. This continuing refusal is not a fact that would weigh decisively on an issue or have an effect on the outcome of the hearing. Itis merely one additional instance of a pattern of conduct that was already known to the Chambers judge at the time the ChambersDecision was rendered. [28] The application to adduce fresh evidence by Mr. Inglis is dismissed.

As a result, the Court will also not consider the affidavitfiled by Ms. Inglis in response. B. Standard of review [29] This matter involves an appeal from an interim parenting order. The deferential standard of review that applies on an appeal ofa parenting order after trial was succinctly summarized by Kalmakoff J.A. in S.A.R. v A.K.L., 2021 SKCA 124: [14] Custody and parenting orders are exercises in judicial discretion. They are generally heavily fact-dependant. A deferential standardof review applies to appeals from such orders.

Absent an error in law, a palpable and overriding error of fact, or a misapprehension ofevidence, an appeal court should not intervene. An error of law includes a failure to correctly identify the legal criteria which governed theexercise of discretion or a misapplication of those criteria.

However, an appellate court cannot overturn the trial decision simply because itwould have made a different decision or balanced the factors in a different way than the trial judge did (Van de Perre v Edwards, 2001SCC 60 at paras 13–15, [2001] 2 SCR 1014 [Van de Perre]; Olfert v Olfert, 2013 SKCA 89 at para 17, 417 Sask R 283 [Olfert];Ackerman v Ackerman, 2014 SKCA 86 at para 14, 442 Sask R 113 [Ackerman]; Peterson v Peterson, 2019 SKCA 76 at para 20, 30 RFL(8th) 341 [Peterson]; S.T. v J.T., 2019 SKCA 116 at para 44, 33 RFL (8th) 253); Kot v Kot, 2021 SKCA 4 at para 20, 63 ETR (4th) 161. [15] Not all errors are material.

Where an error or misapprehension cannot reasonably be seen as having affected the conclusion, it doesnot provide a basis for appellate intervention (Van de Perre at para 15; Kane v Proffitt, 2018 BCCA 106 at para 42, 6 RFL (8th) 282). [30] Although this passage refers to a decision following trial, the standard of review it describes applies equally on an appeal of aninterim order: see, for example, R.C.S. v R.D.L., 2022 SKCA 52 at para 19; Bolan v Bolan, 2013 SKCA 97 at para 6, 423 Sask R 151; andJochems v Jochems, 2013 SKCA 81 at paras 23–24, [2013] 10 WWR 80. [31] Findings of fact by the Chambers judge are reviewed on a standard of palpable and overriding error: Yorkton (City) v Mi-SaskIndustries Ltd., 2021 SKCA 43 at paras 19–28, [2021] 6 WWR 18, and S.G. v K.B., 2021 SKCA 133 at para 26.

C. Withholding consent to travel [32] Mr. Inglis asserts that Ms. Inglis is in violation of the term of the August 13th Fiat, which requires her to not unreasonablywithhold consent for the children to travel to Manitoba for periods exceeding one day. He argues that the Chambers judge failed to make afinding as to whether she was unreasonably doing so. [33] This ground of appeal may be addressed summarily. Mr. Inglis’s arguments on this issue are a thinly veiled effort to circumventthe existing order, which requires him to parent the children in the family home in Saskatchewan.

He has now failed in four attempts toobtain permission to parent the children at his new home in Manitoba. Having had no success on that front, he is asking to obtainindirectly what the Court of Queen’s Bench has repeatedly said he cannot receive directly. He fully admits this in his factum: 31. It is apparent that Mr. Inglis will be requesting to go to [Manitoba] every week. Mr. Inglis has his new life there, and there is nothingin [Saskatchewan] for either him or the children. The question is, when does Ms. Inglis lack of consent become unreasonable. Thatquestion was never answered.

[ 34 ] Contrary to Mr. Inglis’s submissions, the question of whether he can parent the children in Manitoba on an interim basis has been answered four times by the Court of Queen’s Bench. The answer has always been no. It cannot have been unreasonable for Ms. Inglis to withhold consent for an arrangement that the Court of Queen’s Bench, on multiple occasions, has found not to be in the children’s best interests. The existing order does not permit Mr. Inglis to indirectly obtain the relief that he has previously failed to receive, despite his multiple applications. There is no merit to this ground of appeal. D.

Medical and counselling decisions [ 35 ] The Chambers Decision provided sole decision-making authority to Ms. Inglis with regard to medical issues, including decisions regarding counselling. Mr. Inglis argues that there was no change in circumstances that justified this order. Ms. Inglis contends that such a change did occur, which permitted the Chambers judge to make an order that he found was in the best interests of the children. [ 36 ] The previous orders provided the parties with joint custody, which included joint decision-making with regard to medical issues. As rightfully conceded by Ms.

Inglis, in order to modify that existing situation, the Chambers judge had to have been satisfied that there had been a material change in circumstances of the children of such a nature that justified a variation. If he were satisfied that the required change existed, he would then have had to decide afresh what order should be made in the best interests of the children.

These principles arise out of s. 17 of the Divorce Act , RSC 1985, c 3 (2d Supp), and are summarized in Thievin v Thievin , 2019 SKCA 128 at paras 22–25 , 30 RFL (8th) 257. [ 37 ] In my view, it is apparent from the Chambers judge’s reasons that he found a material change of circumstances had occurred. This is seen by comparing Hildebrandt J.’s findings on this issue with those of the Chambers judge.

Justice Hildebrandt commented as follows on the circumstances at the time when she declined to order counselling in granting the August 13th Fiat : “Indeed, if the parties assume their roles as respectful and cooperative parents, both seeking to put the interests of the children first, any stress of the parties’ separation experienced by the children would be diminished.

This, in turn, would likely reduce the length and intensity of any counselling, should such be pursued” (at para 16). [ 38 ] Conversely, when the variation application came in front of the Chambers judge, the situation had changed (repeated here for clarity): [18] In this regard, I observed that many of Fraser’s submissions during his argument on these applications were premised on the notion that he has “custodial rights”. He made several submissions in which he referred to Kayla’s efforts to “circumvent my custodial rights” or to “deny my custodial rights”.

As set out in the cases mentioned above, any reliance on the notion of “custodial rights” is misplaced. The paramount consideration is the best interests of the children, not a choice between the rights of one parent over that of the other. … [48] Kayla also seeks an order permitting her to make all medical decisions in relation to the children. [49] A review of the evidence establishes that Kayla has engaged with medical and counselling professionals with respect to the children and that she has received advice with respect to treatment options and prescription medications.

She has sought to undertake some options for treatment. Fraser vigorously opposes any such intervention by medical or counselling professionals and the evidence reflects that this is a source of considerable conflict between the parties. [50] After reviewing the evidence, I conclude Kayla has proceeded on a good faith basis to address any medical or counselling issues the children may have. By contrast, I conclude Fraser’s opposition to Kayla’s choices is grounded on what he considers to be his “custodial right” to determine what treatment the children may receive.

He takes the view he has a veto over any choice suggested by Kayla. When listening to Fraser’s submissions on this issue, his argument is framed around the rights he has, vis-à-vis the rights of Kayla. An important omission in his framing is the best interests of the children. (Emphasis in original) [ 39 ] The Chambers judge implicitly determined that there had been a material change of circumstances that justified a variation. That change consisted of a finding that Mr.

Inglis was now viewing medical and other decisions through the lens of his parental rights as opposed to focussing on the best interests of the children. The Chambers judge found that this was creating conflict and that Mr. Inglis’s actions were detrimental to the children. These facts were sufficient to ground a material change of circumstances in relation to this one aspect of the overall parenting arrangement. The Chambers judge then determined that sole medical decision-making by Ms. Inglis was in the best interests of the children.

He did so after having observed that she was engaged with the medical professionals and had proceeded on a good faith basis with regard to the necessary medical decisions. [ 40 ] Applying the applicable standard of review, I can find no error that would permit interference in these determinations by this Court. There was ample evidence that the change had occurred, that it was significant enough to require a modification of the existing decision-making regime and that it was in the best interests of the children for Ms. Inglis to solely make the medical decisions going forward.

No error is revealed in this aspect of the Chambers Decision . I cannot give effect to this ground of appeal. E. COVID-19 immunization [ 41 ] Mr. Inglis asserts that the Chambers judge erred by failing to take into account evidence that he had filed at the hearing. It is uncontested that, in his submissions to the Chambers judge, Mr.

Inglis had referred to an excerpt from a Government of Canada report entitled, An Advisory Committee Statement (ACS) National Advisory Committee on Immunization (NACI) : Recommendation on the use of the Pfizer-BioNTEch COVID-19 vaccine (10 mcg) in children 5–11 years of age (Public Health Agency of Canada, 19 November 2021) [ NACI Report ]. The parties are in agreement that the Chambers judge asked Mr. Inglis to file the full version of the NACI Report after the Chambers hearing and that he did so. This document differs from the two documents Mr. Inglis sought to tender as part of his fresh

evidence application in this Court in at least two significant ways. One factor, though not determinative, was the relatively higher indicia of reliability presented by the NACI Report . More crucially, the NACI Report was filed with Ms. Inglis’s consent. Mr. Inglis argues that the failure of the Chambers judge to mention the report in his fiat means that he overlooked or ignored that evidence. As part of this argument, Mr.

Inglis contends that the Chambers judge erred in determining that his objection to the children being vaccinated was based entirely on religious grounds in the face of the fact that he filed the NACI Report . He further submits that the Chambers judge placed too much reliance on the reasoning from OMS . [ 42 ] Ms. Inglis submits that the Chambers judge considered all of the evidence, including the NACI Report . She argues that the Chambers judge specifically requested the report and would have had it at hand when making his decision. Ms. Inglis contends that the evidence revealed Mr.

Inglis’s objection to the vaccinations was based on religious, not medical grounds. Lastly, she says that the Chambers judge appropriately relied on OMS . [ 43 ] The analysis must start with the observation that it has already been determined by the Court of Queen’s Bench, and upheld on this appeal, that it is in the children’s best interests for Ms. Inglis to have sole decision-making authority regarding their medical issues.

As such, this Court must examine whether the Chambers judge erred by not effectively carving out this one discrete medical decision – should they receive COVID-19 vaccinations – from the general medical authority given to Ms. Inglis. [ 44 ] In making his determinations, 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. [ 45 ] Courts across Canada, including in Saskatchewan, have made various findings with regard to the scope of judicial notice related to 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 . [ 52 ] Even with this wealth of jurisprudence, it is my view that the appropriateness of the Chambers judge’s bottom-line decision to give Ms.

Inglis decision-making authority in relation to the COVID-19 vaccinations for the children should be determined on a more straight-forward basis, without the necessity of addressing the propriety of the judicial notice utilized in the case law in general and this matter in particular. The determination of the proper scope of judicial notice, regarding the issues surrounding COVID-19 and vaccinations, is best left for a case where it is more fully engaged. Here, this ground of appeal can be resolved by observing that none of the evidence tendered by Mr.

Inglis provided sufficient grounds for the Chambers judge to find that Ms. Inglis should not have sole authority for this one medical decision in the face of the fact that she had sole authority for all other medical decisions. [ 53 ] The evidence put forth by Mr. Inglis on this issue consisted of the NACI Report and the following averments from his December 28, 2021, affidavit: 8.

(14) I did provide a response to the November 25, 2021, Letter from Attorney Butz ATTACHED as EXHIBIT E is my response to the

November 25, 2021, Letter from Attorney Butz. I sent the response on Friday November 26, 2021. He never responded. When Attorney Butz sent a second email, requesting a reason, I again referred him to that same response by the date of his letter, and still they are misquoting my response in their affidavit. Attorney Butz and his client Kayla Inglis are in my opinion intentionally misleading the Court by leaving out relevant information, and misquoting. The response they are saying is to the letter about vaccination, was written in response to EXHIBIT A.

The Petitioner and her counsel are putting on show, yet again, their inattention to detail. I believe that this is only a stance Kayla is taking in front of the court, as the children state that Kayla is unvaccinated and without proof of vaccination of Kayla, I believe this request for consent is made in the absence of good faith. Furthermore, there is no evidence that the variants are of any risk to children, and I have not been made aware of any benefits to the children. Kayla has expressed no concern in the past about vaccination of the children, when I tried to discuss it with her.

Kayla’s only justification at this time is that, “they won’t be able to do anything”. However there is no mandate of any kind for children and the Federal Government has said they have no plans of extending the restrictions to children. 9. Further to that email response to Attorney Butz, the children and I oppose the vaccination on religious grounds. I am compelled to exercise the virtue of prudence which is an integral part of the Catholic faith, to safeguard myself and my sons from

an act we would need to answer for personally on the day of judgment. ATTACHED as EXHIBIT F is my Religious Exemption Letter. Taking a vaccine against my prudential judgment and free will would violate the image of God we bear, causing a disturbance and violation that touches the core of our souls, as would any rape with gross bribery. I asked my sons once, if their mother made it easy for them to be good Catholics, [the younger child’s] response was immediate and clear: “No, she makes it a lot harder”.

The children have also informed me that when they ask Kayla to take them to church, that she makes excuses, like she doesn’t know where it is, or says where in the Bible does it say to go to church? When they respond with “Google the address”, and “The Third Commandment”, she responds, “You seem to be very passionate about this”. I heard her say this myself. As Catholic faithful, all Sunday’s are days of holy obligation, at their age they understand this. Even through the direct opposition of their mother, the children’s faith endures and grows with each passing day.

While not strictly necessary to mention, I note that Ms. Inglis responded to this affidavit by, among other things, averring that she was fully vaccinated against COVID-19 and naming the specific vaccine that she had received. [ 54 ] Mr. Inglis submits that the NACI Report concludes COVID-19 is of little risk to children aged 5–11 and points to the following excerpts from it in support of his position (footnotes omitted, at 3 and 5):

Summary of evidence COVID-19 burden of disease in children Children 5–11 years of age generally present with mild or asymptomatic SARS-CoV-2 infection. Among the 12 jurisdictions currently reporting detailed age data to PHAC, severe outcomes from COVID-19 such as hospitalization and death are very infrequent in children, occurring in <0.3% and <0.002% of confirmed SARS-CoV-2 infections in children aged 5–11 years.

As of November 09, 2021, children aged 5–11 years represent 7.5% of confirmed SARS-CoV-2 infections, 0.3% of COVID-19 associated hospitalizations, 0.3% of COVID- 19 associated ICU admissions, and 0.007% of COVID-19 deaths in Canada. … Implications of the SARS-CoV-2 Delta variant on COVID-19 in children Due to its increased transmissibility compared to other variants of concern, the SARS-CoV-2 Delta variant may pose a higher risk of infection for children when in congregate settings, including in-person schooling, compared to other variants.

The Delta variant has been the predominant circulating SARS-CoV-2 strain in Canada since June 2021. A recent rapid review conducted by the Public Health Agency of Canada estimates the Delta variant has increased transmissibility over the Alpha variant by 43–115%. However, data from Canada and the United States (US) suggest that COVID-19 disease severity in children since June 2021 remains consistent with previous waves of the pandemic. [ 55 ] In response, Ms. Inglis points out that the NACI Report does not say there is no risk to children from COVID-19, but rather that there is less risk than to older persons.

She notes that the report indicates that there have been hospitalizations and deaths among children in the age 5–11 group. She submits that the NACI Report does not examine the question of children’s best interests. Ms. Inglis argues that this report does not provide medical evidence that supports an order that the children not be vaccinated and was only filed to bolster Mr. Inglis’s religious objection to the vaccinations.

I also note, as a bottom line, the NACI Report recommends that a complete series of the Pfizer-BioNTech COVID-19 vaccines may be offered to children 5–11 years of age, who do not have contra-indications to the vaccine. [ 56 ] On an examination of the material filed by the parties, it is clear that Mr. Inglis failed to provide sufficient evidence to establish that the COVID-19 vaccination decision should be addressed any differently than any other medical decision. As found by the Chambers judge, Mr. Inglis’s objection “is not based on any specific medical issue …” (at para 47). Mr.

Inglis’s religious beliefs are an important aspect of his life and his parenting. However, in the circumstances of this case, those beliefs, combined with the lack of evidence of risk to these children from the vaccine – whether the NACI Report was or is considered or not – did not demonstrate that a situation exists where this specific medical decision should be isolated and require joint consent. There is no error revealed in the Chambers judge’s conclusion that Ms. Inglis should also have sole authority regarding COVID-19 vaccinations for the children. VI.

CONCLUSION [ 57 ] The application to adduce fresh evidence and the appeal are dismissed. Mr. Inglis shall pay Ms. Inglis costs for the fresh

evidence application, the appeal, and the Court of Appeal Chambers application heard on February 22, 2022, fixed in the total amount of $2,000. “Tholl J.A.” Tholl J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.