Below is an excerpt from the judgement recently handed down by Ontario Judge Justice A. Pazaratz in a court case where the father wanted his two children, ages 12 and 10, to receive COVID vaccinations.  The mother was opposed.

[1]               When did it become illegal to ask questions?  Especially in the courtroom?

[2]               And when did it become unfashionable for judges to receive answers?  Especially when children’s lives are at stake?

[3]               How did we lower our guard and let the words “unacceptable beliefs” get paired together? In a democracy? On the Scales of Justice?

[4]               Should judges sit back as the concept of “Judicial Notice” gets hijacked from a rule of evidence to a substitute for evidence

[5]               And is “misinformation” even a real word? Or has it become a crass, self-serving tool to pre-empt scrutiny and discredit your opponent?  To de-legitimize questions and strategically avoid giving answers.  Blanket denials are almost never acceptable in our adversarial system.  Each party always has the onus to prove their case and yet “misinformation” has crept into the court lexicon.  A childish – but sinister – way of saying “You’re so wrong, I don’t even have to explain why you’re wrong.”

[6]               What does any of this have to do with family court?  Sadly, these days it has everything to do with family court.

[7]               Because when society demonizes and punishes anyone who disagrees – or even dares to ask really important questions – the resulting polarization, disrespect, and simmering anger can have devastating consequences for the mothers, fathers and children I deal with on a daily basis.

[8]               It’s becoming harder for family court judges to turn enemies into friends — when governments are so recklessly turning friends into enemies.

[9]               The motion before me is a typical – and frightening – example of how far we are drifting from cherished values. 

[10]           The father wants two children ages 12 and 10 to receive COVID vaccinations.  The mother is opposed.

[11]           Now, answer honestly.  Did the previous paragraph give you enough information to form an opinion about how this case should turn out?

[12]           We’re all weary.  We all wish COVID would just go away.  But pandemic fatigue is no excuse for short-cuts and lowering our standards. We all have to guard against the unconscious bias of thinking “Why won’t these people just do what the government tells them to do?”

[13]           We have to decide on the basis of the best interests of each particular child in each particular fact situation. 

[14]           We have to rely on – and insist upon – evidence.

[70]           As well, there is a systemic issue common to most of these COVID vaccine cases.

a.   The father presented his expert evidence.

b.   The mother then presented her expert evidence.

c.   The father responded that the mother’s theories have already been “debunked” – so we shouldn’t waste time talking about them. 

d.   Alleging that your opponent’s position has already been debunked is a common tactic these days.

e.   And quite effective.

f.     Because unlike stare decisis – the doctrine of precedent which requires judges to follow specifically cited earlier court decisions – there is no such formality to the concept of debunking.

g.   All you have to do is make the blanket assertion that an opposing view has already been debunked – without providing any details – and hope that nobody asks for proof.

h.   In this case, I reject the father’s claim that all of the mother’s concerns about COVID vaccines have already been properly considered and disproven, in a process adhering to natural justice, conducted by an appropriate judicial body. 

i.      Quite to the contrary, I have not been able to find any indication – in the father’s evidence or in the body of COVID vaccine case law – that allegedly debunked theories have ever been properly considered or tested.  In any court.  Anywhere.

[81]           With the mother’s materials satisfying me that a legitimate and highly complex debate exists on the efficacy and utilization of COVID vaccines, I am not prepared to apply judicial notice as a method of resolving the issue.  Anyone reading even some of the articles presented by the mother would likely conclude that these are complicated and evolving issues, and there can be no simplistic presumption that one side is right and that the other side is comprised of a bunch of crackpots.  That’s why the court should require evidence rather than conclusory statements.

[82]           The father insists the mother’s views have been debunked, but he provides no example of any such determination actually having been made.  It would be helpful if, once and for all, the competing positions and science could be properly explored and tested in a public trial.

[83]           On balance, I am satisfied that that mother’s request for a cautious approach is compelling, and reinforced by the children’s views and preferences which are legitimate and must be respected.  The mother has consistently made excellent decisions throughout the children’s lives.  Her current concerns about the vaccines are entirely understandable, given the credible warnings and commentary provided by reputable sources who are specifically acquainted with this issue.

[84]           The mother has consistently made excellent, informed, and child-focussed decisions.  In every respect she is an exemplary parent, fully attuned to her children’s physical and emotional needs.  She has demonstrated a clear understanding of the science.  She has raised legitimate questions and concerns.   I have confidence that she will continue to seek out answers to safeguard the physical and emotional health of her children. 

[85]           She is not a bad parent – and no one is a bad citizen – simply by virtue of asking questions of the government.

[86]           At a certain point, where you have absolute confidence in a parent’s insight and decision-making, you have to step back and acknowledge that they love their child; they have always done the right thing for their child…and they will continue to do the right thing for their child.

[87]           The father’s motion is dismissed. 

[88]           The mother shall have sole decision-making authority with respect to the issue of administering COVID vaccines for the children L.E.G. and M.D.G..

POSTSCRIPT:

[91]           It’s irrelevant to my decision and it’s none of anyone’s business.

[92]           But I am fully vaccinated. My choice.

[93]           I mention this because I am acutely aware of how polarized the world has become.

[94]           We should all return to discussing the issues rather than making presumptions about one another.

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