O.M.S. v E.J.S., 2023 SKCA 9

Court of Appeal for Saskatchewan Docket: CACV3903 and CACV3904 Citation: O.M.S. v E.J.S. , 2023 SKCA 9 Date: 2023-01-12 Between: O.M.S. Appellant (Petitioner) And E.J.S. Respondent (Respondent) Before: Whitmore, Leurer and Barrington-Foote JJ.A. Dispositions: Appeals dismissed Written reasons by: The Court On appeal from: DIV 625 of 2012, Saskatoon Appeals heard: May 4, 2022 Counsel: Timothy Turple for the Appellant Jason Brunton for the Respondent The Court I. INTRODUCTION [ 1 ] This judgment addresses two appeals.

They arise in the context of a disagreement between a father and a mother over whether one of their children should be vaccinated against the Covid-19 virus. The father applied for an order that this occur. The mother opposed this relief. [ 2 ] The matter came before the Chambers judge, who was also called upon to decide several matters that are incidental to it. In this regard, 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 to the affidavits filed by the other side [ Evidentiary Fiat ]. [ 3 ] As well, at the opening of argument on the father’s application, the mother asked for an order that would limit dissemination of information about the proceedings.

On September 1, 2021, the Chambers judge issued a fiat dismissing these requests [ Publication Ban Fiat ]. [ 4 ] Later, in a separate decision, the Chambers judge ordered that the child be vaccinated against the Covid-19 virus against her wishes and those of her mother: O.M.S. v E.J.S. , 2021 SKQB 243 , 61 RFL (8th) 341 [ Vaccination Decision ]. [ 5 ] The mother has separately appealed against these three decisions.

In a judgment delivered concurrently with these reasons, we have explained why the mother’s appeal against the Vaccination Decision must be allowed: O.M.S. v E.J.S. , 2023 SKCA 8 [ CA Vaccination Decision ]. These reasons explain why the mother’s appeal against the Evidentiary Fiat and the Publication Ban Fiat must be dismissed. II.

APPEAL AGAINST THE EVIDENTIARY FIAT (CACV3903) [ 6 ] The mother appeals from the order made by the Chambers judge striking parts of the affidavits sworn on her behalf by the child’s paternal grandmother and paternal grandfather, and, conversely, the refusal of the Chambers judge to strike parts of an affidavit sworn by the father on August 13, 2021. 1. Paternal grandmother’s evidence [ 7 ] The paternal grandmother sided with the mother on the vaccine issue. In her affidavit, she stated that she has had “health issues of [her] own specifically in relation to vaccinations”.

She explained that, as a result, she has “been cautious of receiving the Covid- 19 vaccine”. The Chambers judge struck this evidence because it is “irrelevant to the proceedings” ( Evidentiary Fiat at para 10). [ 8 ] In this Court, the mother contends that the “medical history of a close family member having an adverse reaction to a flu vaccine is a relevant fact to be taken into consideration by a judge when considering whether to grant an order directing a close family member to be vaccinated”. We cannot agree.

To draw the connection the mother invites would require expertise, which she lacks, and an evidentiary connection between whatever experience the paternal grandmother had and the vaccine the child would receive, which is wholly absent. [ 9 ] The Chambers judge also struck, as irrelevant, the paternal grandmother’s evidence that the father would not permit her or the paternal grandfather to see the parties’ children until the grandparents were vaccinated for Covid-19. In addition, the affidavit explained the grandmother’s concern over what she described as the father’s “controlling behaviour”.

The mother argues that this evidence was relevant because it “harmonizes” with evidence that the child “views her father as her abuser as it is evidence of his mistreatment of his

mother and father”. The mother contends that this was evidence of “family violence” as defined in the Divorce Act , RSC 1985, c 3 (2d Supp), s 2(1). [ 10 ] As noted, the Chambers judge found the grandmother’s evidence to be irrelevant but did not further explain in the Evidentiary Fiat why he rejected the submissions that were made to him. However, he did explain this in the Vaccination Decision , when he stated that he did not view any such allegations of family violence “as impacting on the particular decision that is before the Court”.

In this regard, he stated that he would only consider such evidence “to the extent the actions may impact on [the child] and her approach to vaccination” ( Vaccination Decision at para 51 ). We see no error in this approach. 2. Paternal grandfather’s evidence [ 11 ] In his affidavit, the paternal grandfather explained his concerns with the Covid-19 vaccination and over the treatment of medical professionals who have expressed concerns of their own. As part of this, he attached a computer flash drive that contained a speech given by a medical doctor, and a copy of a newspaper

article that detailed how this doctor had been fired from his university position after making this speech. Finally, the grandfather also explained his own involvement in various organizations. He concluded his affidavit by stating that he was “alarmed that medical professionals are being censored in relation to the Covid-19 vaccination” and that it “concerns [him] very much for [the child’s] safety that public debate and examination is not permitted”. [ 12 ] The mother challenges the Chambers judge’s determination that all of this is irrelevant.

She asserts that it is “highly relevant to the Court to know that medical experts who have made public statements indicating why they are opposed to the Covid-19 vaccine being administered to children which contradict the official narrative have been professionally sanctioned and censored”. However, she does not explain why this is the case. [ 13 ] We simply do not understand the connection the mother seeks to draw. The medical doctor who was apparently censored gave no evidence in the proceedings.

Without more, we cannot see a connection between any sanction or censorship this doctor became subject to and the question as to whether the child should be vaccinated. We do, however, understand that it was with reference to this, and other evidence the mother brought forward, that the Chambers judge explained in the Vaccination Decision that certain things were not at all relevant to the matters before him: [42] This case is also not about governments bullying or forcing citizens to take experimental drugs. It is not about freedom of speech or the lack thereof.

And, it is not about the inability of certain individuals to have their points of view heard to their personal satisfaction. [43] Finally, it is not about either right or left politics. And it is not about society or the Court picking a side in a legitimate ongoing societal debate. In short, it is not about the current health situation and any suggestion it has been politicized. Thus, it is not about the propriety or impropriety of the various levels of government imposing health guidelines, restrictions, masking, or lack of vaccination consequences. We agree with these comments. 3.

The father’s evidence [ 14 ] The mother appeals from the refusal of the Chambers judge to strike three paragraphs from the father’s affidavit of August 13, 2021. This affidavit contained the father’s response to the mother’s affidavit sworn on July 15, 2021, as well as several others filed on her behalf. The impugned paragraphs all related to the contents of certain text messages that the father had read on the child’s cell phone while she was sleeping, and actions taken by the father because of this.

Among these messages were statements by the child indicating that she had suicidal ideations and expressing her negative views about the father. There was also a text from the mother to the child discussing how the father was a negative force in the child’s life. As well, the father used the child’s phone to send messages back to the mother, as if he were the child. [ 15 ] The mother argued before the Chambers judge that these paragraphs should be struck because the text messages had been read surreptitiously by the father, and the prejudicial effect of their admission exceeded their probative value.

The Chambers judge rejected this submission, reasoning that the “text messages were discovered as a result of what appears to be a normal parental intervention” and that their contents were “relevant to these proceedings as are [ sic ] the fact that the texts were made” ( Evidentiary Fiat at para 36). [ 16 ] We can find no error in this determination. It is important to understand that the mother does not say that the evidence given in these paragraphs of the father’s affidavit is irrelevant.

Instead, she relies upon S.C. v J.C. , 2009 SKQB 87 , which suggests that the decision to refuse to admit otherwise relevant evidence involves an element of discretion that requires the balancing of interests.

In that case, Dufour J. excluded surreptitiously copied text messages because the “probative value is small [and] the prejudice is great” (at para 75). [ 17 ] We do not consider this appeal to be an appropriate occasion to consider what discretion, if any, exists to exclude relevant evidence, because these paragraphs of the father’s affidavit are highly relevant, and, if discretion is involved, the Chambers judge did not err by refusing to exclude them.

Indeed, as we have explained in the CA Vaccination Decision , the fact that the child has expressed suicidal ideation bears directly on the question as to whether she should be vaccinated against her expressed wishes. 4. CACV3903 was improperly filed as a separate appeal [ 18 ] Before considering the appeal from the Publication Ban Fiat , we must emphasize one final point. As we mentioned at the outset, the mother brought her appeal from the Evidentiary Fiat by way of a notice of appeal that was separate from her notice of appeal from the Vaccination Decision .

It is for this reason that the appeal from the Evidentiary Fiat has been assigned an appeal file number that is different than her appeal against the Vaccination Decision . This was procedurally improper, and these reasons should not be read as endorsing the procedure followed by the mother of advancing the appeal from the Evidentiary Fiat as a stand-alone appeal. We will briefly explain.

[ 19 ] As a first step in our explanation for this statement, it is important to understand that the Chambers judge’s decision with respect to the admissibility of evidence was interlocutory to the father’s application. In this regard, “an interlocutory decision is one made during the progress of an action or other proceeding that relates to some intermediate matter at issue in the case, not to the ultimate matter in issue” ( Poffenroth Agri Ltd. v Brown , 2020 SKCA 68 at para 15 , [2021] 2 WWR 302).

Because the Evidentiary Fiat was an interlocutory decision, leave to appeal from it, as a stand-alone appeal , was required by virtue of s. 8(1) of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 , which states as follows: Interlocutory appeals 8

(1) Subject to subsection (2), no appeal lies to the court from an interlocutory decision of the Court of Queen’s Bench unless leave to appeal is granted by a judge or the court. [ 20 ] We would distinguish the Evidentiary Fiat from the parenting order made by Chambers judge in the Vaccination Decision . There is authority for the proposition that leave to appeal the latter order is not required because it was made pursuant to the Divorce Act .

According to s. 21(1) of the Divorce Act , “an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act”. In Veskovic v Nielsen , 2022 SKCA 134 at para 36 , Richards C.J.S. noted that “the case law nationally is not entirely consistent on the question of whether s. 21(1) of the Divorce Act provides a right of appeal, unqualified by the need to obtain leave, in relation to decisions made pursuant to an authority granted by that Act”.

However, he did not question the prior decisions of this Court which establish that the right of appeal conferred by this provision “is limited to those judgments or orders arising from a power specifically conferred” by the Divorce Act ( Rimmer v Adshead , 2003 SKCA 19 at para 8 , 224 DLR (4th) 372).

The right of appeal from the kind of ruling made in the Evidentiary Fiat is therefore found in The Court of Appeal Act, 2000 and not the Divorce Act . [ 21 ] In this case, the mother did not obtain leave to appeal from the Evidentiary Fiat as a stand-alone appeal, and this separate appeal from it might be dismissed for that reason alone.

We have not done so, because the requirement that she obtain leave to appeal from it was not raised in argument by the father and because she could have appealed it as an order that was incidental to the appeal from the Vaccination Decision . [ 22 ] To be clear about all of this, the mother had a right to appeal from the Evidentiary Fiat as a ground of appeal from the Vaccination Decision , if she wished to advance an argument that the evidentiary ruling had an impact on that latter decision.

Her right to appeal the Evidentiary Fiat as part of an appeal from the Vaccination Decision existed by virtue of s. 9(5) of The Court of Appeal Act, 2000 , which provides as follows:

(5) Where a decision is made during or after the hearing of an application in chambers and the decision is only incidental to the application and does not dispose of the matter in issue, a notice of appeal from the incidental decision must be served not later than 15 days after the date of the judgment on the matter in issue in the application, and a party appealing from the judgment may include in the notice of appeal of the judgment an appeal from the incidental decision.

To be even more clear about all of this, the mother had a right to appeal from the Evidentiary Fiat , but only in the context of an appeal from the order ultimately made in the Vaccination Decision . She had no right to advance a separate appeal from the Evidentiary Fiat without obtaining leave to do so. [ 23 ] The concern we raise is not simply one of form. The prosecution of this appeal separately from the Vaccination Decision allowed the mother to file an additional factum. This expanded the number of pages of written argument from what she would have been entitled to had the proper procedure been followed.

In turn, the father was forced into filing a separate, additional, factum. All of this has caused additional expense to the parties and has inconvenienced the Court. [ 24 ] As a bottom line, the procedure of appealing from the Evidentiary Fiat separately from the Vaccination Decision , without obtaining leave, was improper. It is a practice that should not be followed by litigants in future cases. 5. Conclusion on CACV3903 [ 25 ] For the reasons we have given, we see no merit to any part of the mother’s appeal from the Evidentiary Fiat . III.

APPEAL AGAINST THE PUBLICATION BAN FIAT (CACV3904) [ 26 ] At the opening of argument on the father’s application in the Court of Queen’s Bench, the mother separately applied for orders: (

a) that 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 dismissed these requests for the reasons set out in the Publication Ban Fiat . [ 27 ] The mother now appeals from one part only of the Publication Ban Fiat , being the Chambers judge’s refusal to limit the father from communicating publicly about the case.

The Chambers judge gave the following reasons for dismissing this part of the mother’s request: [11] Finally, with respect to the prohibition on social media, I determine the requested order is both too broad and not supported by the available evidence here. While I note this specific request is not part of the draft order, it was part of the notice to the court and the submissions of counsel. [12] The submission is that the parties do not post information on social media regarding this case that could reveal their identities.

There is evidence before the court that the father has been involved in social media on this matter. I am unable to determine that involvement has been either inappropriate or detrimental to the parties or the child. As a result, I cannot determine a prohibition of the

nature sought is supported by the evidence filed. [13] Moreover, the request was for a complete ban on posting of information on all social media with respect to this case, if it couldidentify the parties. This request is made quite distinct from any connection such disclosure might have to the child. Rather, what is beingsought is a blanket restriction prohibiting the parties from even engaging in social discourse on what is happening in this matter.

Idetermine this is too broadly stated in the circumstances and I decline to make such an order. [28] The decision as to whether to grant an order prohibiting the publication of information is discretionary. The standard of reviewthat applies to discretionary decisions was described in Kot v Kot, 2021 SKCA 4, 63 ETR (4th) 161.

This standard allows for appellateintervention in circumstances which include “where the judge made a palpable and overriding error in their assessment of the facts,including as a result of misapprehending or failing to consider material evidence … [or] failed to correctly identify the legal criteria whichgoverned the exercise of their discretion or misapplied those criteria, thereby committing an error of law” (at para 20).

However, “[w]herean error or misapprehension cannot reasonably be seen as having affected the conclusion, it does not provide a basis for appellateintervention” (S.A.R. v A.K.L., 2021 SKCA 124 at para 15). [29] The mother submits that the Chambers judge erred in failing to recognize the harm to the child associated with the father’sactions which had been identified by a psychotherapist, Dr. Epstein-Gilboa, and a psychiatrist, Dr. Hinz, and by allowing the father topublicize his case without any restrictions. This alleges an error of fact.

She also asserts that the Chambers judge erred in failing toconduct an analysis of the balancing of the interests of the parties in the manner that the Court performed in Radtke v Gibb, 2009 SKQB440, 347 Sask R 9, and by failing to protect the child and her sibling’s privacy interests. This would amount to an error of law.

In theresult, she seeks an order that the parties be prohibited from posting information on social media with respect to this case that couldidentify the parties or the children. [30] In our respectful opinion, the reasoning of the Chambers judge in refusing to grant an order limiting social media posts doesreflect error. There was a good deal of evidence that the father had disclosed the child’s identity and private information about her inpublic media and in posts on social media relating to this case, and that she felt violated and embarrassed as a result. That evidence wascontained in reports by Dr.

Epstein-Gilboa of her conversations with the child and in the mother’s affidavit. The disclosure includedphotographs, the fact the child has diabetes and a false assertion that she wished to be vaccinated.

In her July 25, 2021 affidavit, the motherattested to the fact that the child had access to the posts and was “very distraught” because her photographs were attached to the posts. [31] It is apparent that the Chambers judge considered this evidence, referring as he did to the father’s involvement in social media.However, we cannot agree, based on the uncontradicted evidence as to the father’s public and social media activity and its impact on thechild – including the evidence of Dr.

Epstein-Gilboa – that the publication of her photograph and medical information in the context ofthis case was not inappropriate and detrimental to her. The conclusion that it was not constituted a palpable error of fact. That isparticularly so given that this was not only a high conflict case, but one that involved direct conflict between the child and father inrelation to a highly politicized issue. [32] Further, we would agree with the mother that the Chambers judge failed to undertake the correct legal analysis.

The question isnot whether the applicant has proven that there has been publication that was detrimental to the child. It is whether there is sufficientevidence of a risk of serious harm and, if so, whether a different remedy or a less restrictive order than that sought would serve toadequately mitigate the risk.

This idea is consistent with the direction given in the CA Vaccination Decision that, when “a court weighs therisks and benefits of different courses of action when assessing a child’s best interests, it must consider not only what has been proven, ona balance of probabilities, will occur, but also what might occur” (at para 76, emphasis in original).

This idea was also expressed by courtsconsidering requests for the grant of confidentiality orders in family law proceedings in Coltsfoot Publishing Ltd. v Foster-Jacques, 2012NSCA 83, 320 NSR (2d) 166 [Foster-Jacques] and R.F. v O.B., 2006 SKQB 496, 35 RFL (6th) 163 [R.F.]. [33] Foster-Jacques dealt with an appeal of a sealing order had been granted by the trial judge in relation to a divorce file, based onconcerns as to identity theft.

The Nova Scotia Court of Appeal set aside that order on specified conditions, explaining as follows: [33] There have been matrimonial authorities where the courts have approved confidentiality orders. The severity of the confidentialityorder varies with the degrees that the evidence established both a serious risk of harm, usually involving children, and that no reasonablealternative measure would alleviate the risk: e.g.: M.S.K. v. T.L.T. (also known as Kolesa v. Thomson), (ON CA),[2003] O.J. No. 352 (C.A.); Himel v. Greenburg, 2010 ONSC 2325; Radtke v. Gibb, 2009 SKQB 440; K.V. v. T.E., (BC SC), [1998] B.C.J.

No. 1150, paras 7 and 20; S.(C.) v. S.(M.)

(2007) R.F.L. (6th) 373 (O.S.C.); and see discussion in M.E.H. v.Williams, 2012 ONCA 35 paras 25-29; R.F. v. O.B., 2006 SKQB 496, paras 39-41; A.B. v. C.D., 2012 BCSC 267, paras 115-17. … [98] That is not to say that a divorce file never may be subject to a partial or complete sealing order. I refer to the examples in theauthorities set out earlier (para 33) that discuss various gradations of confidentiality orders.

Such an order would require evidence thatestablishes a serious risk of harm beyond mere embarrassment, particularly but not exclusively where children are involved, and theinadequacy of alternative measures to alleviate that risk. Here, that identified risk is identity theft, and there is no evidence that a partialpublication ban or redaction would inadequately protect the respondents from any risk of identity theft. [34] R.F. reflects the same approach. There, Ryan-Froslie J. (as she then was) considered an application for a blanket publicationban in an adoption case.

As she explained, such an application engages the Dagenais/Mentuck test (see: Dagenais v CanadianBroadcasting Corp., (SCC), [1994] 3 SCR 835, and R v Mentuck, 2001 SCC 76, [2001] 3 SCR 442).

That test specifiesthat a publication ban should be ordered only if it is necessary to prevent a serious risk to the proper administration of justice becausereasonably alternative measures will not prevent the risk, and the salutary effects of the publication ban outweigh the deleterious effectson the rights and interests of the parties and the public, including the effects on the right to free expression: Mentuck at para 32; andDagenais at 878. Further, such an order should be restricted “as far as possible without sacrificing the prevention of the risk” (Mentuck atpara 36).

In the result, Ryan-Froslie J. ordered “a limited publication ban prohibiting the publication of any information which serves toidentify the parties, the child or his step-siblings” (R.F. at para 42).

[ 35 ] Here, the Chambers judge erred in law by failing to undertake this analysis. It accordingly falls to this Court to do so. In this regard, we are satisfied that the father’s social media posts containing information as to the identity and medical status of the child, including photographs, were not only ill-advised, but posed some risk of harm to the child. However, the bulk of the evidence about the publication of such information as to its impact on the child, including the evidence of Dr. Epstein-Gilboa, related to the father’s television interviews, not his social media posts.

The mother did not appeal the refusal by the Chambers judge to refuse to grant an order restricting activity of that kind by the father. We are not persuaded, based on the evidence as to the impact of the father’s social media posts, that such posts, in and of themselves, pose a serious risk of harm, or that a ban on social media posts alone would materially reduce the risk of harm. For that limited reason only, we are not prepared to grant an order banning such posts. [ 36 ] In the result, the mother’s appeal from the Publication Ban Fiat must be dismissed.

We wish to be clear that this outcome does not prevent the grant of such relief in the future if a judge is satisfied, based on the evidence before them, that a publication ban is called for. IV. CONCLUSION [ 37 ] We dismiss the mother’s appeals from the Evidentiary Fiat and the Publication Ban Fiat . Although the father has prevailed in the ultimate outcome of these two appeals, and we have concluded that the separate appeal from the Evidentiary Fiat was procedurally improper, these appeals are inextricably linked to the appeal from the Vaccination Decision , in respect to which the mother has prevailed.

Overall, there has been mixed success on important matters. For this reason, we award no costs to either party in relation to proceedings in the Court of Queen’s Bench or in relation to any of these appeals to this Court. “Whitmore J.A.” Whitmore J.A. “Leurer J.A.” Leurer J.A. “Barrington-Foote J.A.” Barrington-Foote J.A.