Most of us are looking forward these days to vaccines, especially to help us see a world where we are living following a pandemic. Not everyone is keen on vaccines though, and those divisions extend to disputes between parents over their kids.
The Ontario Superior Court of Justice recently released an appeal in A.P. v. L.K. of an arbitration, where the arbitrator concluded it was not in the best interests of the two children of the relationship to become vaccinated. A court may confirm, vary, or set aside an arbitral award, or remit it to the arbitral tribunal, under s. 45(5) of the Arbitration Act, 1991.
The arbitrator did not make this determination on their own about these best interests, and instead relied upon the position of one of the parents, who opposed the vaccination of the children,
 [The arbitrator] summarized the respondent’s arguments against vaccination as follows: (i) she does not believe that the science supporting vaccinations has been adequately or rigorously tested; (ii) there is a body of evidence indicating that vaccinations may be more harmful than beneficial; and (iii) there is a conspiratorial nature to the interplay between “big pharma” and government that leads to the propensity of vaccination medication: at para. 38.
 He declined to consider the last argument, finding it irrelevant to his analysis: at para. 39. I pause here to note that, while there has been some debate in this appeal as to the nature of the arbitrator’s conclusions, it is apparent from this portion of his reasons that he considered the first two arguments advanced by the respondent, placing the safety and efficacy of vaccines squarely in issue on the arbitration.
The mother also introduced several expert reports and evidence to support her position that the vaccines were dangerous and ineffective. In contrast, the father, who was self-represented at the arbitration, simply introduced numerous government documents which supported the use of vaccines.
The vaccines in question were not any experimental vaccines, or even the new COVID-19 vaccines. The children were 6 and 2 when the parties separated in 2013, and they were not vaccinated at that time. None of the routine childhood immunizations were implemented at that time, and the parties continued to dispute whether the children should be vaccinated in the years that followed.
What this essentially created was a form of status quo, which the arbitrator then used to give weight to the mother’s position around vaccines. The court in A.C.V.P. v. A.M.T. described the status quo in family proceedings as follows,
Status quo is neither a rigid concept nor a short-term living arrangement. Rather, it is the regime in place during the relationship and prior to separation. It assists the court by examining how parenting has worked in the past and the benefit or detriment to the children. The status quo, however, is but one factor to consider in the circumstances of the case and within the framework of the best interests of the children test. See: Moggey v. Moggey, (1990) 1990 CanLII 7339 (SK QB), 28 R.F.L. (3d) 416 (SK QB), 28 R.F.L. (3d) 416 (Sask.Q.B.); Sodhi v. Sodhi, 2002 CanLII 41503 (Ont.C.A.); Izyuk v. Bilousov, 2011 ONSC 6451; Gerbert v. Wilson, 2015 SKCA 139; and K.R. v. J.K., 2018 SKCA 35.
Following separation, parents must be allowed a reasonable period of time to establish a new parenting regime. I remain of the view, a status quo cannot be manufactured by a delay in the court process: See: White v. Richardson (2005), 2005 CanLII 14148 (ON SC), 18 R.F.L. (6th) 229 (Ont.S.C.J.). However, it must be recognized that the passage of time can result in the establishment of a new status quo. See: Gebert v. Wilson, supra.
He also noted that there was no risk to the children from not being vaccinated, and may be at an increased risk due to a genetic anomaly that the mother carried. There was no conclusive evidence that the children carried this same genetic anomaly.
Perhaps most importantly, the arbitrator noted that the vaccination issue had continued over many years, and the prospect of forcing them to be vaccinated was making them anxious and stressed. Only an award that they would not become vaccinated would free them from the conflict between the parents, which required an award that they would not become vaccinated. The arbitrator stated,
Choosing not to vaccinate is not illegal, negligent nor immoral. It is a personal choice.
After a successful motion on fresh evidence, the court found that on appeal of the award the conclusions by the arbitrator were palpable errors, and the arbitrator erred in the conclusion that it was not in the best interests of the children for them to be vaccinated.
Central to this conclusion was the failure of the arbitrator to properly conduct the gatekeeping function in regards to the expert evidence introduced by the mother, as required by Rules 20.1 and 20.2 of the Family Law Rules.
Although courts have noted in Bruff-Murphy v. Gunawardena and R. v. Shafia that the application of Mohan principles is discretionary and a low threshold, the Supreme Court of Canada expressed concern in White Burgess Langille Inman v. Abbott and Haliburton Co. about introducing expert evidence of dubious value.
The court took significant issue with the experts and the evidence that the mother relied upon at arbitration, including their qualifications and knowledge of Canadian vaccine products and the National Advisory Committee on Immunization (NACI).
Experts were not properly qualified, and had inconsistencies in their credentials. There were also questions about their reliability, given that it contradicted with scientific consensus on the safety and efficacy of vaccines. One of the experts had a long history of personal litigation, specifically was tied to the conspiracy theory theme, which affected any claims of impartiality.
Scientific evidence that is not reliable is not necessary or relevant for determining legal issues, and admitting them in this case was an error in law.
The court also took note that the father was self-represented at the arbitration. The Arbitration Act 1991 requires under s. 19 that parties should be treated equally and fairly. The father relied on Morwald-Benevides v. Benevidesto suggest that there are special duties to accommodate self-represented litigants with the unfamiliarity in the process. The court concluded,
 I reviewed the transcripts of the arbitration in their entirety. I agree that, overall, the arbitrator took steps to ensure that the appellant’s self-represented status would not impede his ability to present his case. The arbitrator checked in with the appellant often to ensure that he understood the process, and he took other steps to accommodate the appellant, including modifying the traditional order of taking evidence and providing some information about the law and evidentiary requirements relevant to the appellant’s case.
Returning the matter to arbitration would introduce additional cost and delay for the parties. Given that the views and preferences of the children were not ascertainable, the court awarded the father the sole responsibility to make vaccination-related decisions for the children. This conclusion was supported by the father’s intent to follow the advice of physicians as to the timing and manner to administer the vaccines,
 At the arbitration, the appellant was asked what advice he had been given from physicians as to what vaccinations would be administered to the children and when, if vaccination were ordered. The appellant said, “If I had the power to give the vaccinations, that is the question I would ask the doctors.” The appellant’s plan is thus to vaccinate the children against vaccine-preventable diseases in accordance with medical advice from a physician. I agree that it would be appropriate to obtain a physician’s advice and guidance as to the best way to vaccinate a child who has not received any of the usual childhood vaccines on the usual schedule. The appellant’s plan is appropriate because it addresses an unnecessary risk the children currently face: illness, permanent health consequences, or death, from vaccine-preventable diseases. It does so in an appropriate way – through the administration of vaccines that are properly tested, and have been found to be safe and effective, with only minor side effects, in accordance with medical advice. Vaccinating the children is a safe way to protect them against unnecessary and serious risks.
The court also ordered that the mother could not tell or suggest to the children that the vaccines were untested, unsafe, or ineffective. She could not show them movies, social media, websites, or other materials that conveyed the same message.
It is not uncommon for high-conflict parties in family law to dispute which medical decisions should be made for the children. Often these parents rely on different perspectives or philosophies of medicine.
This decision highlights the importance of using credible and verifiable medical evidence in family law disputes, while illustrating the dangers of and adjudicative body relying primarily on the expert information provided by one side alone. Hiring medical experts is an expensive process, and is an option that most family law litigants cannot easily incur. The role of the arbitrators and the courts in scrutinizing that information becomes that much more important.
Soon we will see the COVID-19 vaccine roll out to the general population. Some people will have questions, and a few may even be concerned. Where separated parents are charged with making these decisions for their children, the direction of credible and reliable medical professionals is invariably the best means to determine the best interests of the children.