In the fall, we wrote about an Ontario decision, in which a court considered which parent should be granted decision-making for their daughter’s vaccination against COVID-19, if and when such a vaccination became available.

More recently, a court considered a similar issue in an appeal from a family arbitration decision. The arbitrator had concluded that it was not in the best interests of the parents’ two children to be vaccinated, although the decision was not specifically aimed at the COVID-19 vaccine.

Parents Disagree on Vaccination of Two Children

The parents married in 2001 and separated in January 2013. At the time, the children were six and two years old. The children had never been vaccinated.

While the parents signed Minutes of Settlement in July 2015, which addressed many of the issues in dispute between them, the issue of whether to vaccinate the children remained unresolved. 

The father wanted the children to become vaccinated; the mother did not. 

In January 2017, both children contracted a vaccine-preventable disease, from which they both recovered.

In June 2017, the parents attended an arbitration at which vaccination, as well as certain other parenting issues, was raised. 

At arbitration, the father argued that all levels of government, including municipal, provincial and federal, support vaccination. While the father had acceded to the mother’s views on vaccinations during the marriage, he stated that he was not longer prepared to do so. 

The mother argued against vaccination because she did not believe that the science supporting vaccinations had been adequately or rigorously tested. She submitted that there was a body of evidence indicating that vaccinations may be more harmful than beneficial and that there was a conspiratorial nature to the interplay between “big pharma” and government that led to a propensity toward vaccination.

The arbitrator released his final award on April 11, 2018.

Arbitrator Rules in Favour of Mother 

The arbitrator accepted the father’s general statement that all levels of government support vaccinations, but also noted that parents retain the right to make health-related decisions for their children that may “differ from conventional wisdom,” including choosing not to vaccinate their children.

Additionally, the arbitrator gave significant weight to the fact that during the marriage the parents had not vaccinated the children; he thus relied on the status quo of the children’s unvaccinated status.

Further, the arbitrator found that there was no evidence that either child’s health had been negatively impacted as a result of their unvaccinated status. He noted evidence from the children’s physician that the children had been relatively healthy since birth.

While the father did not call an expert, the mother called two. The arbitrator noted that one of the mother’s experts had given evidence with respect to each vaccination that forms part of government protocols and in each circumstance “indicated that the risks outweigh the benefits”.

The arbitrator then stated, “[i]n fairness to [the father], he did not call any expert in reply. I strongly suspect that for every antivaccination proponent there is an equally fervent opposite party.” He further stated that it was not his role to determine the efficacy of the Canadian vaccination system “or to make findings on the correctness of the evidence of [the expert witness]”.

Additionally, the arbitrator noted that because the mother had a genetic variation wherein her body does not produce specific enzymes needed to detoxify certain toxins, there was a risk the children had the same genetic variation, which would put the children at greater risk of adverse effects if they were vaccinated.

In the result, the arbitrator concluded that it was not in the best interests of the children to become vaccinated based on four determinations:

  • The status quo supported the children remaining unvaccinated;
  • There was no risk to the children if they did not become vaccinated;
  • The children were at increased risk from vaccination due to the mother’s genetic variation; and
  • The children were anxious and stressed due to the prospect that they would be forced to become vaccinated, and only an award that they not become vaccinated would free them from the conflict between the parties.

The father appealed the arbitrator’s award.

Court Rules in Favour of Father 

The court first reviewed the expert evidence considered by the arbitrator. Ultimately, it held that the mother’s experts were not properly qualified, had inconsistencies in their credentials, and raised issues of reliability. Referring to the mother’s first expert witness, the court stated:

“I conclude that [first expert]’s evidence of her contested scientific theories is not reliable. Because it is not reliable, it is neither necessary nor relevant. The arbitrator erred in law by failing to consider whether, in view of the contested nature of [first expert]’s evidence, her theories were unreliable having regard to the analysis I have just undertaken. If I am wrong, and the arbitrator’s acknowledgment of the contentious nature of the evidence is an indication that he did consider it, I find that the arbitrator made a clearly unreasonable determination when he concluded that the evidence was reliable.”

Moreover, the court reviewed the other evidence considered by the arbitrator and concluded:

“The arbitrator […] disregarded relevant evidence about the risks of vaccine-preventable disease, and the benefits of vaccines when he reached his conclusion that there was no risk to the children if they remain unvaccinated. He made a palpable error in reaching this conclusion for that reason alone. Moreover, given that I have concluded that neither [of the mother’s experts] should have been permitted to give expert evidence, there was no admissible evidence on the record to support a conclusion that remaining unvaccinated presented no risk to the children. The conclusion is a palpable error for this reason as well.”

For the same reasons, the court held that the arbitrator’s conclusion that the children were at greater risk from vaccination due to the mother’s genetic variation was a palpable error made by the arbitrator because it was not based on admissible evidence.

Additionally, the court rejected the arbitrator’s finding that the conflict between the parents relating to vaccination was a source of anxiety for the children, or that the children were stressed or anxious about the prospect of being vaccinated, finding no evidence to support such a conclusion. 

The court therefore held that three of the four reasons given by the arbitrator in reaching his conclusion constituted palpable errors.

Finally, the court reviewed the applicable principles and held that it was in the children’s best interest to be vaccinated.

As a result, the court ordered that the father have the sole responsibility to make vaccination-related decisions for the children. The court stated that its order would ensure that the children be vaccinated in accordance with the advice of a physician as to the vaccines to be administered, and the manner and timing by which to administer the vaccinations.

Get Advice 

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.