OCA rejects internet-sourced evidence on children’s vaccination in family law appeal

Ruling will make courts 'much more stringent' in how they assess evidence obtained online: lawyer

OCA rejects internet-sourced evidence on children’s vaccination in family law appeal
Marta Siemiarczuk, Nelligan Law

In a parental dispute about who should have decision-making authority over whether to vaccinate their children for COVID-19, the Ontario Court of Appeal addressed how courts should treat the submission of material from official sources versus information from the internet.

In J.N. v. C.G., the appellant and his ex-wife were married for nearly seven years and had three children. The dispute concerned the vaccination of the younger two, who live with their mother, and were 10 and 12 during the litigation. The father had brought a motion asking the court to grant him decision-making authority over their vaccination. On Feb. 22, 2022, Superior Court Justice Alex Pazaratz dismissed his motion, finding it was not in the children’s best interests.

In a decision released on Feb. 3, the Court of Appeal has set aside Pazaratz’s order and granted the father sole decision-making authority over the children’s COVID-19 vaccination. The panel consisted of Justices Michael Tulloch, Julie Thorburn, and Jonathon George.

“Family law is mired with people who are self-represented or who don't have a pile of money to invest in experts or research,” says Marta Siemiarczuk, a family law, estates, and civil litigation lawyer and partner at Nelligan Law in Ottawa. Siemiarczuk was not involved in the case.

“If they are able to find information on the internet – and we all do this – they want to be able to use it. With this decision from the Court of Appeal, I think our judiciary, especially in the lower courts, is going to be much more stringent in how they consider evidence or ‘evidence’ that's obtained from the internet.”

The father’s position was that the vaccine had been recommended for children five and older and that “all reputable health authorities had found it to be safe and effective.” He relied on information from Health Canada and the Canadian Paediatric Society in his affidavit .

The mother argued that the vaccine’s safety and efficacy were not certain and that the children should remain unvaccinated “until more is known.” She said the children did not want the vaccine, which the Voice of the Child Report confirmed.

But the information the mother submitted was “nothing but something someone wrote and published on the Internet, without any independent indicia of reliability or expertise, which, even if admissible, should have been afforded no weight at all,” said Justice George, who wrote the reasons for the Court of Appeal.

According to Pazaratz, the mother, who was self-represented, “presented all her evidence and made all her oral submissions in a calm, mature, articulate, analytical, extensively researched, and entirely child-focussed manner.” Whereas the father “came across as somewhat dogmatic, intolerant and paternalistic,” was on a “relentless campaign to dismiss the mother as some sort of lunatic,” and “focussed more on discrediting the mother’s ideas rather than explaining his own.” To Pazaratz, the father’s “shameless efforts to vilify the mother by ridiculing her personal beliefs bordered on hysterical.”

In family law disputes regarding vaccination, “pro-vaccine parents” have consistently and effectively presented the disagreement as one of “reputable government experts versus a lunatic fringe consisting of conspiracy theorists and socially reprehensible extremists,” said Pazaratz. “This was absolutely the wrong case to attempt that strategy,” he said. “The professional materials filed by the mother were actually more informative and more thought-provoking than the somewhat repetitive and narrow government materials filed by the father.”

Pazaratz also based his ruling on the Voice of the Child Report, which, he found, showed that the children had strong opinions and had arrived at them independently, free from inappropriate influence.

At the appeal, the father argued that Pazaratz had made four errors. He had erred by accepting and relying on the mother’s online resources as credible expert evidence and finding that the father’s evidence was “credibly disputed.” According to the father, the judge had also erred  in giving significant weight to the Voice of the Child Report and finding that the children’s views were independently held, as well as by putting the onus on the father to show that the children should be vaccinated.

The father’s “chief complaint” was that Pazaratz did not properly scrutinize the mother’s evidence and consider whether it met the threshold for the admission of expert evidence, said George.

Pazaratz had failed to refer to any of the leading cases on expert evidence admissibility, and most of the mother’s materials did not meet the criteria from the internet-reliability caselaw that the judge had cited, himself, said George. The authors the mother had cited, and on whom Pazaratz had relied, had “no apparent or verifiable expertise.” Rather than assess whether each document the mother submitted was “reliable, independent, unbiased, and authorized by someone with expertise in the area,” Pazaratz had “embarked on a lengthy discussion about whose materials were more thought-provoking,” he said.

The Court of Appeal found that in his treatment of the mother’s evidence, Pazaratz had made a palpable and overriding error.

Before Pazaratz, the father had submitted materials from the Canadian government that confirmed his view of the importance of vaccinating children and laid out potential side effects and information on the testing and development of the vaccines. Pazaratz declined to take judicial notice of the vaccine’s safety and effectiveness, finding the fact fell short of the “strict” threshold of being either “so notorious or generally accepted as not to be the subject of debate among reasonable persons,” or “capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.”

But to the Court of Appeal, Pazaratz had failed to conduct “a meaningful analysis” of the father’s evidence. Instead, he listed historical events which demonstrated why one should be “reluctant to take judicial notice that the government is always right.” The events included the Motherisk inquiry, Thalidomide, the Residential School system, the sterilizing of Inuit women, Japanese and Chinese internment camps, and various other Charter violations.

The materials from the Canadian Paediatric Society met the criteria for judicial notice, said George. The materials are from a “well-known organization (whose objectivity and sources can be readily and easily assessed), and the information contained in its documents is capable of verification.”

“The motion judge erred in failing to conduct any meaningful review of the appellant’s authorities, or the laws of evidence, in favour of the respondent’s questionable and unreliable internet printouts with no independent indicia of reliability or expertise,” he said. “This was a palpable and overriding error.”

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