O.M.S. v E.J.S., 2023 SKCA 8

Court of Appeal for Saskatchewan Docket: CACV3908 Citation: O.M.S. v E.J.S. , 2023 SKCA 8 Date: 2023-01-12 Between: O.M.S. Applicant/Appellant (Petitioner) And E.J.S. Respondent/Respondent (Respondent) Before: Whitmore, Leurer and Barrington-Foote JJ.A. Disposition: Application to adduce fresh evidence dismissed; Appeal allowed Written reasons by: The Court On appeal from: 2021 SKQB 243 , Saskatoon Appeal heard: May 4, 2022 Counsel: Timothy Turple for the Appellant Jason Brunton for the Respondent The Court I.

INTRODUCTION [ 1 ] A Court of Queen’s Bench judge in Chambers has ordered that a child – then just days shy of her thirteenth birthday – be vaccinated against the Covid-19 virus contrary to her wishes and those of her mother: O.M.S. v E.J.S. , 2021 SKQB 243 , 61 RFL (8th) 341 [ Chambers Decision ]. [ 2 ] The mother appeals from the Chambers Decision . Among her arguments is that the Chambers judge erred in finding that the physical risks to the child, if not vaccinated, are outweighed by the vaccine’s benefits. We disagree with the mother. The Chambers judge did not err in reaching this conclusion.

The child’s physical safety, security and well-being would be served by receiving the Covid-19 vaccine. Based on the fact of the vaccine’s approval, and in a context where there remains widespread community transmission of the Covid-19 virus, this will be the case for almost all children within the age groups approved to receive it. [ 3 ] However, we agree with one of the mother’s other submissions. When making a parenting order, the court must consider “only the best interests of the child” ( Divorce Act , RSC 1985, c 3 (2d Supp), s 16(1)).

When evaluating what is in a child’s best interests, the court “shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being” (s. 16(2)). In our respectful view, the Chambers judge erred in law by having a singular focus on reducing the physical risk to this child associated with the Covid-19 virus and by failing to account for other factors that bear on this child’s well-being. When all the relevant factors are examined in the unique facts of this case, we conclude that Covid-19 vaccination is not in this child’s bests interests . II. BACKGROUND A.

Previous litigation [ 4 ] The child is the elder of two children born to the mother and father during their marriage. The mother and father separated in 2012. [ 5 ] Following the separation, the parties could not agree on parenting matters. A trial was held, resulting in a judgment: O.M.S. v E.J.S. (26 March 2014) Saskatoon, DIV 625 of 2012 (Sask QB) [ Trial Decision ]. Pursuant to the Trial Decision , the parties have joint custody. Although the children reside primarily with the mother, the father is to have specified parenting time.

As for the medical care of the children, the Trial Decision contained a direction that “both parents should abide by what is recommended by medical or professional caregivers as being in the interests of the children” (at para 26).

However, the trial judge also found that “there has to be a tie breaker” and, because the “final decision-making authority with respect to education and medical matters rests with the [mother as the] primary residence parent”, the trial judge ordered that the mother have the final say if the parties could not agree (at para 27). [ 6 ] The trial judge provided further clarification around all of this in a September 19, 2014 fiat, wherein he stated, among other things, that “the consent of [the father] is not required for all medical assessments and/or medical attendances of the children” (at para 4), but that he “shall have the right to have a medical assessment of the health of the children conducted by a qualified medical person of his choice to be conducted in the next two months, failing which the right is forfeited” (at para 5). [ 7 ] Nevertheless, the Trial Decision did not resolve matters once and for all between the parties.

They have been involved in many disputes beyond those relating to the medical care of the children. In a fiat dated July 5, 2016, Danyliuk J. likened the situation between the parties to the Hundred Years’ War between England and France, which “seemed to go on forever with no clear victor” (at para 1). Justice Danyliuk further stated that it appeared that “the fight itself is the actual prize, with the children being not only forgotten but trampled underfoot” (at para 2). [ 8 ] Against this background, it is not surprising that the Covid-19 pandemic provided an occasion for further disagreement. The

father wanted the child vaccinated when the vaccine was approved for children aged 12 and older. The mother did not. The disagreement was not confined to the mother and father alone. The father’s parents – the child’s paternal grandparents – have declined the vaccine. Because of this, the father refused to allow the children to see them. In turn, the paternal grandparents have allied with the mother in relation to the matters now before the Court. [ 9 ] On May 20, 2021, the father filed an application for an order that the mother “shall have [the child] vaccinated for Covid-19 by June 14, 2021”.

He supported his motion with his own affidavit. In it, he explained that the child had been diagnosed with type 1 diabetes, which he said puts her “at a much higher risk for a serious medical condition from Covid”. He described the steps that he had taken to protect himself and the children, when they were in his care, from catching Covid-19. He recounted the medical advice he had received, which recommended that the child be vaccinated.

He also provided particulars of other information he had gathered from the Saskatchewan Health Authority and Health Canada, as well as the Centers for Disease Control and Prevention and the Food and Drug Administration in the United States. [ 10 ] The father’s application was adjourned several times to allow the mother to file responding evidence. She did so. This prompted the father to file additional evidence of his own. As a result, by the time the matter was argued in Court of Queen’s Bench Chambers on August 31, 2021, the parties had prepared a voluminous evidentiary record.

On the father’s part, this consisted not only his own original affidavit and several others he had since sworn, but also affidavits from: (

a) Dr. Oksana Yatsina, the child’s family doctor; (

b) Dr. Alexander Wong, an infectious disease physician; and (

c) Dr. Jason Kindrachuk, an assistant professor and Canada Research Chair in emerging viruses in the Department of Medical Microbiology and Infectious Diseases at the University of Manitoba. For her part, the mother filed four affidavits of her own, as well as affidavits from: (

a) the child’s paternal grandparents; (

b) Dr. William Code, a specialist in anaesthesiology; (

c) Dr. Stephen Malthouse, a family physician; and (

d) Dr. Keren Epstein-Gilboa, a registered psychotherapist and registered nurse. Like the parties themselves, several of these individuals swore more than one affidavit. In addition to this evidence, the parties brought to the Chambers judge’s attention various matters from sundry sources not proven in any way, whether by affidavit or otherwise. [ 11 ] Both parties filed notices objecting to parts of the affidavits filed by the other side. On September 1, 2021, the Chambers judge issued a fiat addressing the parties’ objections [ Evidentiary Fiat ]. Additionally, at the opening of argument on August 31, 2021, the mother asked for an order that (

a) the hearing be closed and only the parties may attend; (

b) prohibiting the parties from posting information on social media; and (

c) prohibiting the publication of any matter connected with the application or given in evidence at the hearing. The Chambers judge issued a separate fiat dismissing these requests [ Publication Ban Fiat ]. The mother has separately appealed from the Evidentiary Fiat and the Publication Ban Fiat . We, like the Chambers judge before us, have given our reasons for dismissing the appeals from the Evidentiary Fiat and the Publication Ban Fiat in a separate judgment, delivered concurrently with this one: O.M.S. v E.J.S. , 2023 SKCA 9 . B.

Positions in the Court of Queen’s Bench [ 12 ] At the time of the father’s application, the Pfizer-BioNTech Covid-19 vaccine [Pfizer vaccine] was the only vaccine approved for administration to a person of the child’s age. The father’s contention was that the child’s best interests were served by being vaccinated with it, in consultation with Dr. Yatsina and the child’s endocrinologist, Dr. Munier Nour. In making his submissions, the father relied on the opinions of Dr. Yatsina, Dr. Wong and Dr. Kindrachuk. Dr.

Yatsina offered the opinion, supported by a statement of the Canadian Pediatric Society, that it would be beneficial for the child to receive the Pfizer vaccine. Dr. Wong’s affidavit spoke in detail about the relative risks of Covid-19 and the benefits and risks of the approved vaccines against it. He concluded that the benefits of vaccination for this child, and children generally, outweighed any risks associated with it. Dr.

Kindrachuk reported on Covid-19 cases and disease severity, concepts of herd immunity and vaccination, as well as other matters. [ 13 ] The mother made three basic arguments in opposition to the father’s application. First, she asserted that “the child has indicated she does not wish to be vaccinated at this time and her voice should be heard” ( Chambers Decision at para 22). The opinion of Dr. Epstein-Gilboa supported this assertion.

Second, she advanced the idea that “the child may have a physical medical condition called vaccine toxicity” and therefore faces physical risks if she were to be vaccinated (at para 23). She relied on the opinion of Dr. Code to advance this submission. Third, the mother stated her opposition to “vaccination generally and question[ed] the accuracy of the various Covid-19 information being disseminated by the health authorities” (at para 24). The affidavits from Dr. Malthouse and the child’s paternal grandparents, among other sources, were relied upon by the mother to advance this last argument. C.

The Chambers Decision [ 14 ] The Chambers Decision was rendered on September 9, 2021. We note this date only because it was mere days before the child’s thirteenth birthday. The mother used this fact to advance several arguments before the Chambers judge and in this Court. [ 15 ] The Chambers judge began his decision by describing the evidence filed by the parties. He also reviewed the background to the application and outlined the parties’ positions. Following this, he inventoried matters that he was not prepared to consider.

This included information that had been laid before him that was drawn from the internet but not introduced by way of a proper affidavit. He concluded that this material had been “put forth to advance argument contra Covid-19 as a pandemic, contra steps taken by various health authorities to deal with Covid-19, and contra both the safety and the efficacy of the Pfizer vaccine” (at para 27).

He further found that this information had been placed before him “to allow a questioning of the entirety of that which is presented through health authorities with respect to Covid-19 to the world” and he observed that the mother’s brief had contained a reference, “stated to be a fact, that the World Health Organization has misled the public with respect to Covid-19 and its effects” (at para 28).

He noted that the mother’s brief appeared “to take a pre-emptive strike at judicial neutrality and absence of bias” (at para 31), but found that, in the “absence of a suggestion of a reasonable apprehension of bias, it is inappropriate for counsel to admonish the Court on what counsel is concerned the presiding justice may or may not do” (at para 34). The mother had included a

section in her Chambers brief under the heading “International Law”, which contained references to the Nuremberg Code and the Helsinki Declaration. The Chambers judge described the arguments under this head as being “opaque” at best and “offensive ” at worst (at para 36). He observed that the mother had offered submissions relating to Pfizer’s “substantial history of fines and product liability judgments against it” but had not explained the relevance of this to the issues before him

(at para 39 ) . [ 16 ] The Chambers judge next described several things that the application was “not about”, including that it was “not about the current health situation and any suggestion it has been politicized” or the “propriety or impropriety of the various levels of government imposing health guidelines, restrictions, masking, or lack of vaccination consequences” (at para 43).

He then said that the application was “about only one thing: should this 12-year-old child be ordered to be vaccinated for the Covid-19 virus if she is saying she does not want that to be done and in light of evidence concerning a condition called ‘vaccine toxicity’?” (at para 44). He stated that his “singular focus on all matters involving children is to do that which is in the child’s best interest” (at para 45). [ 17 ] Having laid all this groundwork, the Chambers judge reviewed applicable case law and s. 16 of the Divorce Act .

In this context, the Chambers judge rejected as irrelevant the mother’s allegations of historical domestic violence and what she described as “a severe form of child abuse” associated with health protocols the father had implemented because of the Covid-19 pandemic (at para 53). [ 18 ] The Chambers judge then turned to examine the child’s physical needs. He concluded, based on the evidence, that “the child’s type 1 diabetic condition does not place her at any greater risk than any other members of society with respect to the effects of contracting Covid-19” (at para 59).

When considering the diagnosis of “possible” vaccine toxicity for the child offered by Dr. Code (at para 63), the Chambers judge noted the “truncated and incomplete information” referred to by this witness in expressing his opinion, and “decline[d] to accept it or to implement the vaccine exemption he seeks to provide” (at para 72). [ 19 ] The Chambers judge next examined the child’s views and preferences. He took note of the mother’s evidence that the child had said she does not want to receive the Covid-19 vaccine and that the child had formed this opinion based in part on her own research.

The Chambers judge observed that the evidence failed to particularize what information the child had received or what independent research she could have done. He also reviewed the evidence of Dr. Epstein-Gilboa. [ 20 ] The Chambers judge then turned to discuss the doctrine of mature minor. He established that he was “required to consider the child’s views and assess his or her maturity to form those views against the entire backdrop of the situation”.

He noted that this “approach incorporates the requirement under the Divorce Act that [he] consider the child’s views commensurate, always, with how those fit into their best interests” (at para 82). Although he felt that the child was a “mature, bright, and capable, young woman” (at para 83), he found that the “background circumstances here raise rather significant concern over the influence others are having over this young person and whether these others are causing her to form her views with respect to the vaccine” (at para 84).

More specifically, he stated that he did “not accept this child is speaking independently” (at para 88). After a review of more case law, he determined that, in this situation, “the child’s views, while considered, do not decide the issue”. He said there is “concern over how much she has been influenced” and, moreover, “concern over Covid-19 and the need to be vaccinated” (at para 96). [ 21 ] This brought the Chambers judge “to an analysis of the situation in light of the existence of Covid-19 and the vaccine available for immunization from it” (at para 97).

He stated that he intended to “move to the consideration of what facts are established before [him]”. The Chambers judge began this by considering the facts of which he may take judicial notice. After an extensive review of case law, he concluded as follows on this subject: [112] Applying that background to the matter before the Court, I conclude that I am able to take judicial notice of certain facts in the case before me.

Firstly, I am able to conclude, without the necessity of specific proof, that Canada, and Saskatchewan in particular, have been in a Covid-19 pandemic which has resulted in a number of health and other restrictions being imposed to control the spread of the virus.

Secondly, I am able to conclude without the necessity of any specific proof that the possibility of contracting the Covid-19 virus poses a serious and significant health risk to people generally, including children and adults. [113] Finally, and perhaps most directly relevant to the matters before the Court here, I conclude I am able to take judicial notice that the Pfizer Covid-19 vaccination is safe and effective for use in people, including both adults and children.

I form this conclusion by taking judicial notice of the vaccine approval process in Canada and the approval by the health authorities of this particular vaccine.

To argue it is experimental as is put forth by the mother and her supporting affidavits is not in accordance with the general knowledge available regarding this approval process and implementation. [ 22 ] With apparent reference to both these paragraphs of the Chambers Decision , the Chambers judge explained further why he felt he could take judicial notice of the facts that he did: [114] I find these facts “to be so notorious as not to be the subject of dispute among reasonable people” ([ B.C.J.B. v E.-R.R.R. , 2020 ONCJ 438 ] at para 188).

These facts can be established by assessing sources that cannot reasonably be disputed to be accurate. These include health authority information put forth by Health Canada and the Saskatchewan Health Authority, amongst others. [ 23 ] The Chambers judge next observed that he had “taken judicial notice of those facts which allow the Court to make a decision on the specific issue” before him. However, he did not end there. He went on, “in the interest of completeness”, to evaluate the evidence (at para 121).

After a review of the expert evidence, the Chambers judge found that, were he “required to make a factual determination regarding whether children should be vaccinated for the Covid-19 virus, based on the evidence before the Court, [he] would accept the opinions in this regard provided by Dr. Wong and Dr. Kindrachuk”. He added that were he “required to determine whether the Pfizer vaccine was safe and effective based on the evidence presently before the Court, [he] would accept the opinion of Dr.

Wong” (at para 130). [ 24 ] Finally, the Chambers judge rejected the mother’s argument that the father’s failure to certify that the parties had participated in a family dispute resolution process, as contemplated by s. 7.6 of the Divorce Act , required the application to be struck. [ 25 ] As a bottom line, the Chambers judge concluded that it was in the “child’s best interest to be vaccinated as protection against the Covid-19 virus”.

He determined that the father was entitled to arrange for this, without the consent of the mother, but that it “shall only be completed following receipt of such further advice as Drs. Yatsina and Nour are prepared to give” (at para 142).

III. ISSUES [26] The outcome of the mother’s appeal is determined by the answers to three questions: (

a) Did the Chambers judge err in concluding that the child’s physical safety, security and well-being would be served byreceiving an approved Covid-19 vaccine? (

b) Did the Chambers judge err by failing to account for the child’s emotional and psychological safety, security and well-beingwhen considering whether to order that she be vaccinated against her wishes? (

c) When proper account is taken of all relevant factors, is it in this child’s best interests that she be vaccinated? IV. ANALYSIS A. Did the Chambers judge err in concluding that the child’s physical safety,security and well-being would be served by receiving an approved Covid-19 vaccine? [27] Although the mother approaches the proposition from several different directions, she argues that the Chambers judge erred inconcluding the child’s physical safety, security and well-being would be served by receiving the Covid-19 vaccine. Her complaint is inrelation to the Chambers judge’s findings in connection with ss. 16(2) and 16(3)(

a) of the Divorce Act. These provisions state as follows: Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotionaland psychological safety, security and well-being. Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability[.] [28] More specifically, the mother takes aim at two of the Chambers judge’s conclusions. The first is that the Pfizer vaccine is safefor administration to children. The second is his decision to reject the suggestion that this child may suffer from “vaccine toxicity”, suchthat the Pfizer vaccine is unsuitable for administration to her, even if it is generally safe for use in children. We will consider these twoarguments separately. 1.

General safety of the Pfizer vaccine [29] As seen from our earlier review of the Chambers Decision, the Chambers judge followed two different paths to find that thePfizer vaccine was safe to administer to children. First, he used the tool of taking judicial notice of facts. Second, he determined, afterevaluating the expert opinions filed with him, that the vaccine was safe. The mother argues – as she must to succeed on this part of herappeal – that the Chambers judge erred in both lines of reasoning.

As to the first, she submits that the Chambers judge accepted matters tobe facts that were beyond the scope of permissible judicial notice. As to the second, she says that the Chambers judge ignored evidencethat pertained to the general safety of the Pfizer vaccine. We will analyze these submissions separately but, as a bottom line, we see noerror in the Chambers judge’s conclusion that, taking account solely of the physical risks and benefits, it was in the child’s best interests toadminister the Pfizer vaccine to her. a.

Judicial notice in this case [30] The mother does not, in this appeal at least, argue that the Chambers judge erred by taking judicial notice about the fact that“Canada, and Saskatchewan in particular, have been in a Covid-19 pandemic which has resulted in a number of health and otherrestrictions being imposed to control the spread of the virus”.

Although parts of her submissions could be understood to question whetherit was proper for the Chambers judge to take judicial notice that “the possibility of contracting the Covid-19 virus poses a serious andsignificant health risk to people generally, including children and adults” (at para 112), this too is not her primary concern.

Rather, hermain submission considered under this head is that the Chambers judge erred by taking judicial notice of the safety of the Pfizer vaccine. [31] A judge’s decision to decline to take judicial notice of a fact involves the exercise of discretion (R v Zundel (1987), (ON CA), 35 DLR (4th) 338 (Ont CA) at 392 [Zundel]). On the other hand, a decision to take judicial notice of a fact involvesa question of law.

See: Taylor v Taylor, 2009 ABCA 354 at para 40, 312 DLR (4th) 448, leave to appeal to SCC refused,; Coltsfoot Publishing Ltd. v Foster-Jacques, 2012 NSCA 83 at para 70, 320 NSR (2d) 166; Kay Kay Corporation v CondominiumCorporation No. 072 4807, 2017 ABCA 335 at para 10, 59 Alta LR (6th) 5; R v M.L., 2019 NLCA 33 at para 70, 376 CCC (3d) 263; EliteMortgage Corp. v Derewenko, 2019 BCCA 125 at para 26, 440 DLR (4th) 619; and R v Poperechny, 2020 MBCA 81 at para 27, 396CCC (3d) 478. See also: Sidney N. Lederman, Michelle K. Fuerst & Hamish C.

Stewart, Sopinka, Lederman & Bryant: The Law ofEvidence in Canada, 6th ed (Toronto: LexisNexis, 2022) at para 19.77 [Sopinka]. All of this means, in the context of this appeal, that themother’s challenge to the decision of the Chambers judge to take judicial notice of certain facts is reviewable on the correctness standard. [32] We begin our consideration of this issue with first principles. One of these principles relates to the relationship between judicialnotice and the establishment of facts used to decide a litigious dispute.

In this regard, judicial notice “is the only exception to the generalrule that cases must be decided on the evidence presented by the parties in open court” (David M. Paciocco, Palma Paciocco and Lee

Stuesser, The Law of Evidence, 8th ed (Toronto: Irwin Law, 2020) at 573 [Paciocco]). See also: R v Find, 2001 SCC 32 at para 48, [2001]1 SCR 863 [Find]; and R v J.M., 2021 ONCA 150 at para 31, 154 OR (3d) 401 [J.M.]. [33] Judicial notice “dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute” (Findat para 48; and Paciocco at 575).

As such, it applies to two kinds of facts: those that are “(1) so notorious or generally accepted as not to bethe subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessiblesources of indisputable accuracy” (Find at para 48). These are often referred to as the “Morgan criteria”, from the

article by Professor E.M. Morgan, “Judicial Notice” (1944) 57 Harv L Rev 269. See also: R v Mabior, 2012 SCC 47 at para 71, [2012] 2 SCR 584; Reference ReAlberta Statutes, (SCC), [1938] SCR 100 at 128; Quebec (Attorney General) v A, 2013 SCC 5 at para 238, [2013] 1 SCR61; Saskatchewan v Good Spirit School Division No. 204, 2020 SKCA 34 at para 107, 445 DLR (4th) 179; and Sopinka at para 19.25. [34] Another principle is that the permissible scope of judicial notice varies “according to the nature of the issue underconsideration” (R v Spence, 2005 SCC 71 at para 60, [2005] 3 SCR 458 [Spence], emphasis removed).

If a particular fact is far removedfrom the centre of the controversy between the parties, a court ought to ask itself simply whether such a fact would be accepted as such“by reasonable people who have taken the trouble to inform themselves on the topic” (at para 65), keeping in mind, of course, that thecourt must always focus on the precise purpose for which that fact is being used in the case. The closer a particular fact is to the heart ofthe controversy, the more a court should insist that one of the two Morgan criteria be met before that fact can properly be noticed.

If thematter “relates to adjudicative issues, the strict Morgan criteria of notorious or indisputable fact govern” (annotation by Don Stuart toSpence, 33 CR (6th) 1 (WL) at 3. See also: Spence at para 61; and R v Le, 2019 SCC 34 at para 85, [2019] 2 SCR 692). [35] Matters that are the proper subject of expert evidence are, by definition, “neither notorious nor capable of immediate andaccurate demonstration” (Find at para 49. See also: J.M. at para 35; and Paciocco at 577).

That said, recourse to a scientific treatise ortextbook may be permissible to prove a fact that is not notorious, but which is capable of immediate and accurate demonstration, if thecourt can be certain that there will be no conflict between different sources of that kind.

See: Sopinka at para 19.54; and J.M. at para 31.However, the exception to the general rule that judicial notice cannot be taken of matters that require reference to an expert’s guidancemust be applied only where it is clear that this condition has been met; that is, only where there is well-established, and clearly applicableconsensus. [36] Returning to the facts of this case, Tholl J.A. has recently summarized much of the jurisprudence thus far regarding judicialnotice of Covid-19 and vaccines in Inglis v Inglis, 2022 SKCA 82 at paras 45–51.

One point that comes from his helpful review is that,while many judges have taken judicial notice of the safety and efficacy of Covid-19 vaccines, the view is not unanimous. We also observethat the issue has not, to our knowledge at least, been directly confronted by a Canadian appeal court, and Inglis itself does not providedirect assistance on this issue since the dispositive question in that case was different than that here. In Inglis, the Court was required todetermine which of two parents should be responsible for making decisions on medical matters.

For this reason, Tholl J.A. concluded thatthe “determination of the proper scope of judicial notice, regarding the issues surrounding Covid-19 and vaccinations, is best left for acase where it is more fully engaged” (at para 52). [37] In any event, precedent in matters involving judicial notice must be approached cautiously in a context where there iscontinuing development regarding what facts are notorious and which sources are indisputably accurate.

This is nowhere more so the casethan with the information surrounding the Covid-19 pandemic, where important aspects of what “everybody knows” today have come tobe perceived, at least by some, as suspect or incorrect tomorrow. [38] The mother in this case isolates the Chambers judge’s alleged error to be his statement that he was “able to take judicial noticethat the Pfizer Covid-19 vaccination is safe and effective for use in people, including both adults and children” (Chambers Decision atpara 113).

As a starting point, we agree with the mother that this was an inappropriate exercise of judicial notice in this matter unless oneof the two Morgan criteria could be satisfied. This is because, although the safety and efficacy of the vaccine was not the primary subjectof the litigation, it bore heavily on the best interests question which was the central matter in dispute. We also agree with the mother that aproper application of the Morgan criteria does not allow for judicial notice to be taken of the safety and efficacy of the Pfizer vaccine inthis litigation.

That is so because this is an issue in relation to which expert evidence was required; indeed, the conflicting expert opinionson this point that were admitted by the Chambers judge amply demonstrate that fact.

For these two reasons, the Chambers judge erred infinding that he was “able to take judicial notice that the Pfizer Covid-19 vaccination is safe and effective for use in people, including bothadults and children”. [39] We are cognizant that the Chambers judge formed his conclusion that the vaccine is safe and effective “by taking judicialnotice of the vaccine approval process in Canada and the approval by the health authorities of this particular vaccine” (Chambers Decisionat para 113). This reasoning initially invites consideration of two subsidiary questions.

First, did the Chambers judge err by “takingjudicial notice of the vaccine approval process in Canada and the approval by the health authorities of this particular vaccine” (ChambersDecision at para 113)?

Second, if the answer to the first question is no, did he err by taking judicial notice of the fact that the vaccine wassafe and effective for use in people, including both children and adults, based on the Health Canada approval? [40] Dealing first with the decision by the Chambers judge to take judicial notice of the fact that the Pfizer vaccine had beenapproved by the appropriate government authorities, it should be said at the outset that it was unnecessary for the Chambers judge to takejudicial notice of this fact. This is because this fact was in evidence and was uncontested.

The father’s experts spoke to this. The mother’sexpert, Dr. Malthouse, accepted as a starting point that the vaccine had been approved by Health Canada for administration to children. Hesimply criticized this decision. [41] Yet, even if the Pfizer vaccine’s approval had not been effectively agreed to by both parties and their witnesses, it wasappropriate for the Chambers judge to take judicial notice of this fact because it is capable of immediate and accurate demonstration.

Asthe Chambers judge stated, “[t]hese facts [regarding the vaccine’s approval] can be established by assessing sources that cannotreasonably be disputed to be accurate. These include health authority information put forth by Health Canada and the SaskatchewanHealth Authority, amongst others” (Chambers Decision at para 114). As a rule, the fact that a government regulator has approved avaccine can hardly come from a more indisputably accurate source than the regulator itself.

Considering all of this, the Chambers judgedid not err by taking judicial notice of the fact that the Pfizer vaccine had been approved by the applicable government regulators. In theresult, the answer to the first subsidiary question is no.

[ 42 ] As to the second subsidiary question, the Chambers judge found that because the Pfizer vaccine was government-approved, he could take judicial notice that the vaccine was safe and effective and conduct his best interests analysis on the basis of that finding. At its root, his conclusion as to safety and efficacy was based on the nature of the regulatory process that leads to such an approval.

An assessment of this conclusion turns on the implications of an approval of a product like a vaccine in a family dispute, such as this one. [ 43 ] As a matter of law, vaccines are regulated by Health Canada under the Food and Drugs Act , RSC 1985, c F-27 , and the regulations under that Act. Without going into the details of all of this, before a vaccine is approved for human use, Health Canada undertakes an assessment, based on scientific and clinical evidence, of its safety, efficacy and quality.

That regulatory assessment involves a risk-benefit analysis and various judgment calls that are within the province of the regulator. Further, approval of a vaccine, like any other drug, includes the information that accompanies its distribution – most importantly, its product monograph. Part of this is the consumer medication information that must accompany the product when it is distributed relating to such matters as indications and contraindications, side effects or potential side effects, and warnings. All of this is spelled out in

Part C – Drugs, Division 8 of the Food and Drug Regulations , CRC, c 870 [ Regulations ].

Critically, a judge is required by law to judicially notice these regulations, pursuant to s. 16(1) of the Statutory Instruments Act , RSC 1985, c S-22 . [ 44 ] The Pfizer vaccine at issue here was approved for use in adolescents aged 12 to 15 years on May 5, 2021, under the Interim Order Respecting the Importation, Sale and Advertising of Drugs for Use in Relation to COVID-19 [Interim Order], which was first made by the Minister of Health on September 16, 2020: see definition of “ISAD Interim Order” in C.01.001(1) of the Regulations .

The Interim Order was authorized by s. 30.1(1) of the Food and Drugs Act , which provides that the “Minister may make an interim order that contains any provision that may be contained in a regulation made under this Act if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to health, safety or the environment”. In order to achieve the goal of responding to the risk presented by Covid-19, the Interim Order not only allowed, but required that authorization of a Covid-19 drug be issued if certain conditions had been met.

One of these conditions is if “the Minister has sufficient evidence to support the conclusion that the benefits associated with the drug outweigh the risks, having regard to the uncertainties relating to the benefits and risks and the necessity of addressing the urgent public health need related to Covid-19” (s. 5(

c) of the Interim Order). [ 45 ] However, the fact that Health Canada approval of a new drug can only occur if its safety, efficacy and quality have been assessed does not mean that approval constitutes, in and of itself, evidence that would enable a judge to take judicial notice that it is safe and effective.

Quite apart from the fact that such a broad and categorical statement has little meaning or utility in a case such as this, regulatory approval means only that Health Canada has determined, based on a risk-benefit analysis, that a drug is sufficiently safe, effective and of sufficient quality to be approved, if it is used in accordance with the approval, including the product monograph, together with any medical advice and monitoring that may be required.

While this would always be the case, the limited meaning to be attributed to Health Canada approval in a case of this kind is particularly clear because of the approval that was granted for the Pfizer vaccine.

We also note the existence of easy-to-find case law reports of instances where drug companies have been found to have brought on the market products that have passed a regulatory process and have been found to be associated with risks that are later determined to have been misdescribed or missed altogether in the product information that accompanies the distribution of the product. [ 46 ] For these reasons, we find it impossible to say that a conclusion that the Pfizer vaccine is safe because it is government-approved is so “notorious or generally accepted as not to be the subject of debate among reasonable persons” or so “capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy” ( Find at para 48 ).

In the result, we respectfully conclude that the Chambers judge erred by taking judicial notice that the Pfizer vaccine was safe and effective on this basis. [ 47 ] That does not mean, however, that Health Canada approval was irrelevant. Governments invest in the kinds of regulatory regimes that govern the approval of such products as pharmaceuticals with the expectation that the public will rely on the approvals given to products under them.

The reality is that, given the volume and scientific complexity of the evidence that must be evaluated to determine the safety and efficacy of a vaccine or other drug, it is beyond the capacity of almost all consumers and medical personnel to effectively assess their safety, efficacy or quality. The Health Canada regulatory process fills that void not only for consumers, but for medical health providers in clinical practice.

A parent is entitled to make health care decisions for their child as to the administration of vaccines and other drugs based on Health Canada approvals, and on the advice of qualified medical professionals to the extent reasonably required in the circumstances. They need not enter into an independent assessment of the safety, efficacy and quality of the drug. [ 48 ] None of this changes simply because a parenting decision has been taken out of the parents’ hands and placed in the hands of a court.

In a family dispute, it is both unnecessary and, in most cases, unhelpful , for the parties and the court to look for more than the approval of a drug, such as the Pfizer vaccine, together with any medical advice that may reasonably be required as to the risks and benefits to the child at issue, as the basis to conclude that it is in the child’s best interests to administer the drug.

It is unnecessary because a parent is not obliged to prove, and a court is not obliged to consider or decide, that an approved drug is safe or efficacious when used in accordance with and to the extent specified in the approval – just as they need not consider whether medical advice from the family doctor meets that mark.

In most cases at least, additional evidence is unhelpful because, absent sufficient evidence to the contrary, parents and courts are entitled to decide that a child should be treated with approved medications in accordance with the approval, subject, of course, to any child-specific medical concerns that may be in play, or other relevant factors. [ 49 ] All of this means that a parent is not required to prove that an approved vaccine or other drug is safe and effective merely because the other parent objects to their decision.

That is so because the issue in a case of this kind is not whether the vaccine was not safe or effective enough to have been approved at all, for any indication or for any adult or child. Rather, the issue is whether it was in the best interests of this child to be vaccinated, taking account of all of the factors that bear on that decision. [ 50 ] We have reached this conclusion by applying first principles, but without direct reference to the many first-instance cases that have discussed the use of judicial notice for the purposes of determining Covid-19 vaccine safety.

A review of this case law discloses that trial judges have followed many different paths of reasoning. We note simply that the approach we have determined to be appropriate is similar to that used in Campbell v Heffern , 2021 ONSC 5870 at para 10 , 68 RFL (8th) 417. [ 51 ] None of this is to say, of course, that, even in a family law context, the fact of regulatory approval is utterly conclusive as to the question of safety or efficacy, even within the narrow confines of an analysis of a child’s best interests. Just as a parent who is called upon

to make the decision about the use of a pharmaceutical product can evaluate information outside of the approved product monograph, it must be open to a parent to lead admissible evidence to demonstrate that a drug is not safe and effective, whether generally or for the child at issue and that, as a result, neither the parents nor the court can proceed in the usual way based wholly on Health Canada approval and medical advice given on the basis of that approval. [ 52 ] Where this occurs, the court must consider all relevant evidence.

In practical terms, it will rarely be the case that a parent will have access to the expertise and other resources or the time to demonstrate that a drug or vaccine should not be administered to their child because it was not sufficiently safe or effective to have been approved by Health Canada to be used in accordance with the product monograph. This is true even where, as here, one or both of the parties brings forward an opinion of an expert that speaks to the issue. [ 53 ] This was the situation that faced the Chambers judge.

It was an accepted fact that the Pfizer vaccine had received all required Health Canada approvals. Accordingly, the father was not required to prove that the Pfizer vaccine was safe and effective merely because the mother objected to it being administered. He was entitled to challenge the mother’s refusal to have the child vaccinated with an approved vaccine that was developed to respond to the pandemic.

In the circumstances of this case, where the mother asserted that the vaccine was not physically safe or effective despite regulatory approval, the onus was on her to provide sufficient evidence to satisfy the Chambers judge that there was a material risk to this child if it was administered and that there was insufficient benefit to outweigh that risk. [ 54 ] In this case, in addition to the fact of the approval of the Pfizer vaccine, the Chambers judge also admitted other evidence that he took as bearing on the efficacy and safety of the Pfizer vaccine.

However, as we will explain, the Chambers judge misapprehended its purport, and used it to address a question that went beyond its scope. [ 55 ] On the father’s side, the Chambers judge had the opinions of the father’s experts, Dr. Wong, and Dr. Kindrachuk. Dr. Wong’s evidence was that the child’s risk of complications and severe illness from Covid-19 exceeds the risk of potential complications from receiving the Pfizer vaccine, and that “there is no data to suggest that the COVID-19 vaccine would not be efficacious and safe for [the child] given her diagnosis of [type 1 diabetes mellitus]”. Dr.

Kindrachuk’s opinion favoured vaccination of children both for their own benefit and to curb transmission in the community. [ 56 ] On the mother’s side, the Chambers judge had the contrary opinion of Dr. Malthouse. However, although he admitted it, the Chambers judge’s finding was that Dr. Malthouse’s opinion should be given no weight. It therefore could not affect his conclusion. The Chambers judge explained, in some detail, why he found Dr. Malthouse’s opinion to have no evidentiary value: [132] With respect to Dr.

Malthouse, I note he has no particular qualifications for engaging in the research role he has personally undertaken. There is nothing in his curriculum vitae which indicates he has acquired any expertise in the specific area of infectious diseases much less Covid-19. Furthermore, there is nothing in his curriculum vitae which provides for any measure of expertise, study, research, or understanding, of vaccines generally, or the Pfizer vaccine in particular.

While I mean no disrespect to his professional integrity, it might fairly be observed his criticism of the Pfizer vaccine is somewhat of an interesting hobby for him and not a professional vocation. [133] He is a family physician. I have no doubt from a review of his curriculum vitae that he has practiced his profession diligently and effectively for the 43 years as indicated. Despite that achievement, that does not qualify him to opine in the area he has sought to opine. He then makes certain statements regarding the effects of Covid-19 on children and alternative treatments available.

However, his statements are devoid of either supporting material or independent study in this regard. In short, his inquiring mind does little more than any other lay person’s questioning personality. These traits do not warrant considering his opinions in this regard, much less accepting them in a best interests of the child analysis . [ 57 ] We find no error in this analysis. That being so, and quite apart from the opinions of the father’s experts, the usual approach that we have described above applied.

This is to say that the Chambers judge should have conducted the analysis as to what was in this child’s best interests on the basis that, because the Pfizer vaccine was an approved drug that has been recommended for administration to children, no further inquiry was necessary as to whether it was safe and effective. Nothing in the mother’s evidence was of sufficient evidentiary force to have enabled him to proceed in any other way. [ 58 ] However, the Chambers judge did not approach the issue in this fashion.

He misunderstood that the matter before him required him to make a determination as to the safety and efficacy of the Pfizer vaccine, because that was how the parties had presented their arguments. He concluded, based on the opinions of Dr. Wong and Dr. Kindrachuk, that “the Pfizer vaccine is safe and effective” ( Chambers Decision at para 134). For the reasons we have given, there was no need for him to make this finding. Also, we must add, this statement is too sweeping and goes beyond the scope of the opinions offered by these two experts in this case. [ 59 ] The opinion of Dr.

Wong makes it clear that the science and evidence that relate to the Covid-19 pandemic, the virus and vaccines have evolved and continue to evolve rapidly, as does the virus itself. That is consistent with the nature of the approval granted to the Pfizer vaccine. Based on the evidence that the Chambers judge accepted, it was open to him to conclude that there was a consensus in the medical community that approved vaccines should be administered to children despite the fluidity of the situation, to reduce the risk to children and to the community. However, neither Dr. Wong nor Dr.

Kindrachuk offered an opinion that the Pfizer vaccine “is” safe and effective. That is not surprising, as that was not the question either of them was asked to answer. Indeed, the simple statement that the Pfizer vaccine “is” safe and effective is inconsistent with the reality that safety and efficacy are not absolute concepts. To the contrary, pharmaceutical products “carry potential risks of side effects, which must be weighed, in individual cases, against the potential benefits of the drug” ( Merck Frosst Canada Ltd. v Wuttunee , 2009 SKCA 43 at para 46 , [2009] 5 WWR 228).

The safety and efficacy of a pharmaceutical is defined with reference to what is identified in its product monograph. As a rule, the safety and efficacy of a pharmaceutical product cannot be discussed in such blunt fashion as to say that it “is”, or “is not”, safe and effective. [ 60 ] This reality was reflected in Dr. Wong’s opinions, which spoke of the risk and benefits of vaccination to this child. Neither he nor Dr. Kindrachuk made a sweeping statement as to the safety and effectiveness of this vaccine. Indeed, Dr.

Kindrachuk did not advert to the Pfizer vaccine at all, dealing with vaccinations only in the context of herd immunity. For this reason, it was not open to the Chambers judge to make a judicial finding that the Pfizer vaccine is safe and effective on the record before him. To be clear, our conclusion that it

was not open to the Chambers judge to have made this finding also does not mean that we have found that the Pfizer vaccine is unsafe or ineffective, or that it should not be administered to children.

To the contrary, as we have emphasized, there was no reason for the Chambers judge to make a finding as to the Pfizer vaccine’s safety and efficacy at all, given the fact of its regulatory approval. [ 61 ] We would finally note that, because safety and efficacy are relative concepts, there will generally be more room for expert evidence to assist the court in understanding the implications that flow from the fact that the product has been approved in light of the circumstances of the case, than to challenge the general safety and efficacy of the product itself.

In this case, however, that approach would not have assisted the mother. The undisputed evidence was that the Pfizer vaccine was indicated for children of this child’s age, and there was no evidence of a contraindication or material physical risk associated with the vaccine that would be peculiar to this child. b.

Conclusion as to the safety and efficacy of the Pfizer vaccine [ 62 ] Although the Chambers judge erred by taking judicial notice of the fact that the Pfizer vaccine was safe and effective for use in children aged 12 and older, and by making a general finding about this based on the limited record before him, nothing of substance turns on these mistakes.

Absent sufficiently compelling evidence to the contrary, a judge, like a parent, called upon to make a decision of this kind is entitled to base their decision as to the physical risks and benefits of a vaccination on the fact that a vaccine has been approved by Health Canada to be administered in accordance with that approval, together with related medical advice bearing on that question. Here, there was no evidence of value to the contrary. 2.

Safety of the vaccine for this child – the vaccine toxicity issue [ 63 ] The mother argues that, even if the Chambers judge did not err in his conclusion that the Pfizer vaccine is generally safe for use in children, he did err in dismissing the evidence of Dr. Code that this child may suffer from a condition referred to as “vaccine toxicity” that rendered the vaccine unsuitable for administration to her. [ 64 ] The Chambers judge determined “to give no weight to the opinions [Dr. Code] has expressed and his apparent diagnosis with respect to this child” ( Chambers Decision at para 62).

The Chambers judge provided detailed reasons for this conclusion, grounded in a careful consideration of Dr. Code’s credentials, the information Dr. Code had (and did not have) to reach the conclusions he expressed, and Dr. Wong’s critique of Dr. Code’s opinion. [ 65 ] The determination of the weight to be given to evidence of this sort is within the province of the Chambers judge. In all the circumstances, it would only be proper for this Court to interfere with the Chambers judge’s finding on this point if it is a product of palpable and overriding error. We can see no such error.

Given this, and because we would allow the mother’s appeal on other grounds, we also see no need to further explain this conclusion. 3. Conclusion on issue A [ 66 ] For the reasons we have given, the Chambers judge did not err in his conclusion that, from a Covid-19 risk perspective, the child’s physical safety, security and well-being would be served by receiving the Pfizer vaccine. B.

Did the Chambers judge err by failing to account for the child’s emotional and psychological safety, security and well-being when considering whether to order that she be vaccinated against her wishes? [ 67 ] As previously noted, s. 16(2) of the Divorce Act directs that, when considering the factors that bear on a child’s best interests, “the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”.

The mother’s second broad argument is that the Chambers judge failed to account for the child’s emotional and psychological needs when ordering that she be vaccinated against her expressed wishes. [ 68 ] As we have mentioned, this child had expressed ideation of self-harm, associated with parenting decisions made by the father. When matters were argued before the Chambers judge, the child was just days shy of her thirteenth birthday. The evidence of the mother and both paternal grandparents was that the child had said that she did not want to receive a Covid-19 vaccine. Dr.

Epstein-Gilboa had interviewed the child on two occasions. She provided a written report, which included that the child did not want to be vaccinated. She concluded that forcing the child to be vaccinated created risks that were “greater than the benefit” for the child. She also said that “it is more developmentally appropriate to listen to her perspective about and goals for her body”. As we will explain, Dr.

Epstein-Gilboa also offered evidence that this child’s emotional and psychological safety, security and well-being would be compromised if she were to be vaccinated against her wishes. [ 69 ] The father acknowledged that the child did not want to receive the vaccine. His position was that the child’s views had been guided by misinformation from the mother and his own parents, and that the child was therefore incapable of making an informed decision. Accordingly, he said, she should be vaccinated against her own expressed wishes. He arranged for Dr.

Wong to interview the child so that the doctor could answer the child’s questions about the Pfizer vaccine and its safety. She did not change her view as a result of the information provided by Dr. Wong during that interview. Dr. Wong did not offer an opinion relating to the emotional or psychological impacts to the child were she to be vaccinated against her wishes. [ 70 ] The Chambers judge was alert to the requirement that he must consider the child’s emotional and psychological safety, security and well-being.

In this regard, he introduced his discussion of the child’s physical needs by stating that he would “consider her mental and emotional matters when reviewing her expressed wishes” ( Chambers Decision at para 57). The Chambers judge’s discussion of the child’s expressed wishes occurred under a heading titled “The Child’s Views and Preferences – Section 16(3) (e)”, which is in reference to that

section of the Divorce Act . This provision states that, in determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, including “the child’s views and preferences, giving due weight to the child’s age and maturity,

unless they cannot be ascertained”. [ 71 ] Although the Chambers judge indicated that he would consider the child’s “mental and emotional matters when reviewing her expressed wishes” (at para 57), our review of the Chambers Decision convinces us that he did not evaluate these matters. Instead, the Chambers judge considered only whether the child was situated to make an informed and reasoned decision.

More specifically, the sole focus of the discussion found in the part of the Chambers Decision where he said he would consider the child’s mental and emotional interests was on why she had come to hold the views that she did. In this regard, a s noted earlier, the Chambers judge described the application as being “about only one thing: should this 12-year-old child be ordered to be vaccinated for the Covid-19 virus if she is saying she does not want that to be done and in light of evidence concerning a condition called ‘vaccine toxicity’?” (at para 44).

This statement of the issues left no place for the weighing of other factors that bear on this child’s best interests. [ 72 ] We are reinforced in our conclusion that the Chambers judge did not account for all relevant matters by his

summary conclusions under the heading, “What then is in this Child’s Best Interests with Respect to the Administration of the Pfizer Vaccine for Covid-19?”. This

summary states as follows: [118] I have determined there is nothing before me that satisfies me on a balance of probabilities that this child’s health will be compromised by the administration of the Covid-19 vaccine. In any event, with the manner in which the order is being granted, any health concerns may be the subject of consultation with the family physician and the endocrinologist.

This will ensure the child’s medical issues are properly and thoroughly considered by those that are most familiar with her and her medical file. [119] In light of the determinations concerning Covid-19, its effects, and the need to be vaccinated to avoid these effects, I determine it is in the child’s best interests to have the Pfizer Covid-19 vaccine administered forthwith. [120] This is so because she must have the ability to avoid contracting the virus. The most efficacious way that is done at this time is through the administration of the vaccine.

The adverse and serious health effects of Covid-19 have been noted. This child’s best interests dictate she be given the best opportunity to avoid such health risks. [ 73 ] As we interpret this passage, the Chambers judge determined that it is in the child’s best interests to have the vaccine “because she must have the ability to avoid contracting the virus” (at para 120).

In light of this, we do not read the statement by the Chambers judge that nothing in the evidence satisfied him “on a balance of probabilities that this child’s health will be compromised by the administration of the Covid-19 vaccine”, as encompassing the child’s mental health (at para 118). Rather, we take him to be speaking to the impact of the administration of the vaccine on this child’s physical health.

The singular focus is on the physical safety of the child from a Covid-19 risk perspective. [ 74 ] Respectfully, the failure by the Chambers judge to account for the implications of a forced vaccination on this child’s emotional and psychological safety, security and well-being is an error in principle: Kot v Kot , 2021 SKCA 4 at para 20 , 63 ETR (4th) 161. [ 75 ] We must also, respectfully, point out a second error in this part of the Chambers judge’s reasons.

It is related to the Chambers judge’s statement that he was not satisfied “ on a balance of probabilities that this child’s health will be compromised by the administration of the Covid-19 vaccine” (at para 118, emphasis added). [ 76 ] When a court weighs the risks and benefits of different courses of action when assessing a child’s best interests, it must consider not only what has been proven, on a balance of probabilities, will occur, but also what might occur.

Moreover, the weight that must be assigned to an uncertain future event depends not only on the chance that such an event will occur, but also the severity of the consequences if it does. This is the case whether the future possibility has risks or rewards, advantages or disadvantages. We will give a simple example to illustrate this idea. If it is likely that a child’s life is in danger, but may be saved if a drug is administered, the benefit of administering the drug will justify greater risks than if the drug was offered simply to make the child more comfortable.

The point is that it is not only probabilities that future events will occur that matter when assessing what course of action is in a child’s best interests, but possibilities . [ 77 ] Requiring proof on a balance of probabilities is appropriate where the existence of a risk depends on an event or condition that either exists or does not exist or where a party is asserting that an event will occur.

In such a situation, a trier of fact may be called upon to determine whether the condition that results in the risk exists on a balance of probabilities: K.L.K. v E.J.G.K. , 2011 BCCA 276 at paras 37–38 , 19 BCLR (5th) 320. In this case, as we will explain, the events and circumstances that create the risk to the child associated with a forced vaccination are established on the evidence.

Said perhaps more clearly, while it is uncertain if the risk would materialize if the vaccination were administered in this fashion, the evidence is clear that there is a serious risk that a forced vaccination may well negatively impact, in a material way, the emotional and psychological health of the child. [ 78 ] In these circumstances, it was an error in law on the part of the Chambers judge to simply ask if, on the balance of probabilities, it had been demonstrated that the child’s health and safety will be compromised if forced to be vaccinated.

Put another way, he failed to ask whether there is a material risk that this would occur and what the likelihood of the risk was, as well as what range of consequences to the child could result if it in fact materialized. [ 79 ] Because of these two errors, it falls to this Court to redo the best interests analysis, considering all of the relevant factors that bear on this child’s well-being. C.

When proper account is taken of all relevant factors, is it in this child’s best interests that she be vaccinated? [ 80 ] The decisive issue is whether, when account is taken of this child’s physical, emotional and psychological safety, security and well-being, it is in her best interests that she be vaccinated against her wishes. Properly answering this question demands that account be taken of all relevant factors.

[81] We are satisfied that there would be significant physical health and safety benefits to this child were she to be vaccinatedagainst Covid-19. These benefits are associated with reducing the risk of contracting Covid-19 and the reduced risk of experiencing moreserious health effects were this to occur. This conclusion is easily reached from the evidence in this case.

It is one that can be drawn onceit is judicially noticed that there was and continues to be community transmission of Covid-19 – a fact that we find to be so notorious andalso so generally accepted as not to be the subject of debate among reasonable persons – and the fact that this vaccine has been approvedfor the purpose of reducing the risk of both transmission and serious illness as a result of contracting this disease. [82] However, in evaluating this benefit, account must be taken of the weight it carries and other concerns that may balance againstit.

As to the weight of this benefit, the Chambers judge concluded that the father’s initial contention that the fact the child suffered fromtype 1 diabetes rendered her more vulnerable to serious complications were she to become infected with Covid-19 was not borne out by theevidence. Therefore, in the absence of any other contraindication, the benefit to the child, if vaccinated, must be seen as consistent withthat of her age-cohort. In assessing this, the court is entitled to consider the information found on the product monograph. However, in thiscase, there is also more specific evidence given by Dr. Kindrachuk.

The Chambers judge accepted this evidence and, having heard thearguments, we see no error in him having done so. [83] Dr. Kindrachuk, who was opining as of August 13, 2021, identified that Covid-19 has a diverse “range of clinical presentationsthat range from asymptomatic infections to severe and fatal disease”. He identified that the “presentation of symptoms is variable withinincreasing severity of illness associated with older age and/or underlying health complications”.

He also opined that as variants of thevirus emerge – and, at the time of his report, the Delta variant had been identified – the risk of transmission is likely to increase, with theoverall consequence that, even among children, the risk of infection and the overall risk of serious infection within the population ofchildren, would increase.

Bringing all of this together, we conclude that there is a high risk that the child will be infected with the Covid-19 virus if she is not vaccinated, and that the risk of a serious health consequence to this child associated with a Covid-19 infection wouldbe material, but still low. [84] Considering the evidence before the Court from all sources, we are easily satisfied that, from a Covid-19 risk perspective, thechild’s physical well-being would be served if she were to receive the Pfizer vaccine. Doing so would reduce the risk that she will beinfected by Covid-19.

It would also reduce the already low risk that she will suffer serious symptoms or die were she to become infected. [85] If these benefits stood alone, they would justify an order requiring that this child be vaccinated. However, they do not standalone. Other considerations come into play. [86] First, in this child’s case, there is an offsetting physical risk associated with being forced to be vaccinated against her will. Thisis not a risk of adverse side effects; those are already accounted for in the evaluations of risk found in the product monograph and in thereports of Dr. Wong and Dr. Kindrachuk.

What is unique about this case is the possibility – however small – that a forced vaccinationmay prompt this child to self-harm. In this regard, there was a single incident where the child had raised self-harm as a possibility afterexperiencing a perceived threat of bodily harm that she associated with the father. This took place several months before the ChambersDecision and resulted in healthcare professional intervention. The occurrence is identified in Dr. Epstein-Gilboa’s report. [87] The Chambers judge discussed this in the Chambers Decision.

He said that he “cannot determine exactly what happened in thisincident based on the affidavit material”, but it appeared that the father had “taken parenting action and the child reacted badly to that” (atpara 55). He noted that, after this event, parenting continued without a reoccurrence of anything similar.

Based on this, he concluded that“the incident is not such as to affect the single issue” he was called upon to decide (at para 56). [88] In our respectful view, the decision to ignore this incident is contrary to the requirement that a court, when evaluating a child’sbest interests, must consider not only probabilities, but possibilities. In this regard, before a court can ignore completely the risk that thechild might self-harm if forced to be vaccinated, it would have to be satisfied that the risk is not real or material.

The weight to be attachedto it may be diminished as the risk goes down, but if there is a real or material risk it must be considered. Here, the risk may be low, butthe consequences if it materializes could be grave or, at their most serious, life-threatening. This weighs against the conclusion that aforced vaccination would be in this child’s best interests. [89] Other mental health concerns also weigh against the benefits to this child if she were to be vaccinated against her will. In herreport, Dr. Epstein-Gilboa reviewed the child’s previous experiences with medical and other trauma.

She explained the trauma the childwould experience if she was required to endure “what she seems to perceive as yet another potentially harmful physical act that threatensher safety and body integrity”. She opined that repetition of such an experience created a real “risk for post traumatic stress disorder withall of the physical and mental consequences, including risk for mental health disorder, obstructed developmental tasks, and threats to herdiabetic and physical stance”. Dr.

Epstein-Gilboa identified a risk of diagnosable longer-term mental health problems. [90] We would emphasize that the Chambers judge recognized Dr. Epstein-Gilboa’s qualifications to offer these opinions. TheChambers judge was not required to defer to Dr. Epstein-Gilboa’s views as to what was ultimately in this child’s best interests – that is adecision for the court.

However, unless her evidence is to be discarded completely – which the Chambers judge did not do – it must be putinto the balance. [91] Finally, in the evaluation of what will serve this child’s emotional and psychological safety, security and well-being, accountmust be taken of the impact of a forced vaccination on her relationship with her father.

In considering this, we emphasize that the court’sconcern is the impact on the child’s best interests, not those of the father. [92] Of course, a child’s emotional and psychological well-being is, in general, fostered by having a healthy, stable and continuousrelationship with both parents. See: Young v Young, (SCC), [1993] 4 SCR 3 at 41 and 53; Barendregt v Grebliunas, 2022SCC 22 at paras 131–135, 469 DLR (4th) 1; J.H. v. T.H., 2017 NBCA 7 at para 16; Prime v Prime, 2020 SKQB 326 at para 58; JTS v JB,2022 ABKB 791 at para 21 [JTS]; and Julien D. Payne & Marilyn A.

Payne, Canadian Family Law, 9th ed (Toronto: Irwin Law, 2022) at615–616. Conversely, a damaged relationship with a parent – including damage that might flow from the impacts of a court order – isharmful to a child’s emotional and psychological well-being, and is thus, considered in isolation, contrary to their best interests: SeeWaldron v Clemens, 2017 BCSC 2742 at para 27; M.P. v P.P., 2022 BCSC 1511 at para 45; JTS at para 28; D.N.L. v. C.N.S., 2013 BCSC809 at paras 60–65 [D.N.L.]; DC v NC, 2021 ABQB 1015 at para 201; and Stavropoulos v Stavropoulos, 2021 ONSC 5753 at paras 32–33.

[ 93 ] In this case, the child’s relationship with her father is already fraught. The evidence is such that if the child is to be vaccinated at the father’s insistence, it will damage that relationship further. That can be said with near certainty. The court must also weigh the possibility, if not the probability, that it will destroy the relationship completely, if not irretrievably, if the father forces a vaccination on the child.

An order which might damage an already tenuous relationship with a parent presents a real risk of causing the very harm that orders made pursuant to the Divorce Act are meant to avoid. See JTS at para 28 ; and D.N.L. at paras 61–62 . [ 94 ] We have set off to the side a consideration of the mature minor doctrine. The Chambers judge concluded that he did “not accept this child is speaking independently” (at para 88). Assuming, without deciding, that the mature minor doctrine is limited to circumstances when a child can be said to be speaking independently, there is ample evidence supporting this finding.

Our determination that the best interests of this child are served by not requiring her to be vaccinated is not dependent on questioning the Chambers judge’s conclusion on this point. From the perspective of this child’s best interests in this case, it is less relevant why this child is opposed to being vaccinated, or how she came to the view that she does not want to be vaccinated.

Instead, the decisive point is that she holds the views and the risks that we have identified that are associated with a forced vaccination in the face of these views outweigh the health benefits of the vaccine in her unique circumstances. [ 95 ] In conclusion, we are satisfied that, when all relevant considerations are accounted for, the delicate balancing of the matters that bear on this child’s best interest tilts against an order that she be vaccinated against her wishes. D.

Other issues [ 96 ] The mother argued that the timing of the Chambers Decision , in relation to the child’s then-pending thirteenth birthday, was a disguised effort by the Chambers judge to avoid the applicability of a health authority directive which stated that children over the age of 13 “who demonstrate the ability to understand the information regarding the vaccine can legally consent to receive or refuse immunizations in Saskatchewan”. We see no merit in this submission. The father’s motion was launched shortly after the vaccine was approved for this child’s age cohort.

The delay after that point was largely a product of the time the parties took to assemble the massive evidentiary record that the Chambers judge was asked to review. After the record was settled, the Chambers judge was indefatigable in his successful effort to decide the motion in the face of the urgency of the overall situation.

In short, the mother’s submission – in substance impugning the integrity of the Chambers judge – is without foundation and has no proper place in this appeal. [ 97 ] The mother applied at the hearing of these appeals for leave to introduce, as evidence in these appeals, affidavits sworn by herself and three doctors: Dr. Steven Pelech, Dr. Francis Christian and Dr. Byram Bridle.

In part only, these were directed toward showing the evolution in the scientific knowledge relating to Covid-19 and its variants since the Chambers Decision was issued, as well as in connection with the effectiveness of vaccines against it. Given the conclusion we have reached on the existing record, we find it unnecessary to consider the admissibility of this evidence and we would dismiss the application to admit these affidavits into evidence.

This means that we also do not need to consider whether to admit affidavits filed by the father in reply to the mother’s proposed new evidence or a sur-reply affidavit of Dr. Bridle proffered by the mother. [ 98 ] Before the Chambers judge, the mother also argued that the father’s application should be dismissed because he had not fulfilled duties said to be owed by him under ss. 7.1 to 7.5 of the Divorce Act and did not provide the certificate contemplated in s. 7.6 .

The latter provision requires that every document that “formally commences a proceeding under this Act, or that responds to such a document, that is filed with a court by a party to a proceeding shall contain a statement by the party certifying that they are aware of their duties under sections 7.1 to 7.5 ”. The Chambers judge rejected the mother’s argument, finding that non-compliance with these provisions will not, in every case, result in the dismissal of an application. The mother appeals from this ruling. However, given our other conclusions, we prefer to leave a decision about this to another case. V.

CONCLUSION [ 99 ] Although the Chambers judge committed missteps at certain points in his reasoning, he did not err in his bottom-line conclusion that the child’s physical safety, security and well-being would be served by receiving the Pfizer vaccine.

Based on the fact of the vaccine’s approval, and in a context where there remains widespread community transmission of the Covid-19 virus, this will be the case for almost all children within the age groups approved to receive it. [ 100 ] However, in this case, there is a risk, albeit small, that a forced vaccination may prompt this child to self-harm, and a much greater risk that it will cause other very real psychological and emotional harm to this child. For these reasons only, in the unique circumstances of this case, this child should not be vaccinated against her expressed wishes.

Therefore, as a bottom line, we would allow the appeal and set aside the order directing that the child be vaccinated. We would also set aside the costs award made by the Chambers judge. [ 101 ] In determining that the Chambers Decision must be reversed, we have, reluctantly but necessarily, set to one side our very real concern that this outcome could have several non-salutary consequences. They mostly flow from the fact that the child’s views towards the vaccine appear in large part to be the product of misinformation given to the child.

In this regard, the Chambers judge concluded that the evidence raised a “rather significant concern over the influence others are having over this young person and whether these others are causing her to form her views with respect to the vaccine” (at para 84). He identified the mother and paternal grandparents as lying at the root of this. There is an unfortunate risk that the decision by this Court to allow the mother’s appeal will be seen by some as providing a reward to the providers of misinformation or as countenancing that misguided activity.

There is the further risk that it will encourage others to act similarly. However, as the Chambers judge appropriately stated, the Court’s singular focus is on this child’s best interests. For this reason, we must ignore these broader concerns, except to the extent that they bear on what is right for this child.

We are hopeful that an understanding of the exceptional facts of this case will limit the opportunity that mischief will come from the result in this appeal. [ 102 ] Although the mother has prevailed in the ultimate outcome of this appeal, she introduced unnecessary issues into it, including her groundless arguments impugning the integrity of the Chambers judge. Also, there has been mixed success on important matters in this appeal, and the father has been successful in the related appeals from the Evidentiary Fiat and the Publication Ban Fiat . Considering all of

this, we would award no costs to either party in relation to proceedings in the Court of Queen’s Bench or in relation to any of the appeals to this Court. “Whitmore J.A.” Whitmore J.A. “Leurer J.A.” Leurer J.A. “Barrington-Foote J.A.” Barrington-Foote J.A.