Father given sole responsibility to make vaccine-related decisions for children
The Ontario Superior Court of Justice has overturned an arbitrator’s decision that it would be in the children’s best interests not to be vaccinated and has directed the mother to refrain from suggesting to the children that vaccines are ineffective.
In A.P. v. L.K., 2021 ONSC 150, the parties, who married in 2001, separated in January 2013 when their children were six and two years old. The parties disagreed on the issue of vaccination, with the father preferring the children to receive routine vaccinations for measles, mumps and rubella, and with the mother opposing.
The dispute was brought before an arbitrator, as the parties had earlier agreed to resolve major decisions involving the children’s health care, including vaccination, via arbitration.
Two weeks before the hearing, the mother filed reports of expert witnesses, which included an alternative medicine practitioner, said to be self-taught and with no formal education on vaccines, who claimed that the polio vaccine was more lethal than polio itself. Another witness, who worked in the pharmaceutical industry and for Health Canada before he was terminated, submitted that vaccinations were concocted to increase the new product sales of certain pharmaceutical organizations.
The father, who was self-represented, tried to present expert evidence on the last day of the arbitration, but was only able to provide a letter from a proposed expert witness, which the arbitrator chose not to admit.
In 2018, the arbitrator determined that it would be in the children’s best interest to remain unvaccinated because the status quo supported this, because the mother had a methylenetetrahydrofolate reductase genetic variation that would increase the risk of vaccination, and because the children were anxious about being vaccinated. The arbitrator also accepted the witnesses that the mother presented as experts.
On appeal, the Superior Court of Justice of Ontario set aside the arbitrator’s decision and gave the father, on the basis of the best interests of the children, the sole authority over the children’s vaccine choices, including for matters such as the timing and the administration of the vaccination.
The court ordered the mother not to discuss with or to suggest to the children that vaccines are untested, unsafe, ineffective or particularly risky to them. The court banned the mother from showing the children any material that debates whether vaccines are safe or effective. The court then ruled that the arbitrator should have excluded the testimonies of the mother’s two expert witnesses, whose credentials were not properly assessed and whose evidence failed to comply with the threshold criteria for expert evidence.
The court then said that, as regards the evidence of the children’s family doctor which suggested that the older child was a mature minor who did not wish to be vaccinated, the issue of the child’s ability to give informed consent was a matter between the child and the physician tasked with administering the vaccination and was beyond the scope of the present proceedings.
Christopher Deeble, family law lawyer at Nelligan O'Brien Payne LLP, discussed the case in a blog post. While the arbitral decision was made before the COVID-19 outbreak, the Superior Court’s recent judgment may be valuable in future cases involving the issue of vaccine hesitancy, especially in light of the pandemic, Deeble wrote in the blog post.
“During the pandemic, we’ve seen an explosion of high-conflict disputes arising from parents having different perspectives on health and medical concerns,” Deeble told Canadian Lawyer.
The case can serve as a reminder to arbitrators, as well as lawyers involved in mediation or in collaborative-law processes, to meticulously examine the qualifications of proposed expert witnesses and to challenge junk science, Deeble said. Beginning this month there will be a new focus on consensual dispute resolution, including mediation or collaborative law, he added.
“This case is a reminder to be vigilant that your trier of fact perform the gate-keeping function on expert evidence,” said Deeble. “Expert reports have to be filed on time. In this case, one party was allowed to file expert reports late, causing prejudice to the other party.”
