Family Law Update: August 2022
By: Lacey Bazoian & Alexandria Palazzo
As we head into summer, we thought we would take a quick look back at some of the interesting cases and issues from the first half of 2022.
COVID-19 Vaccinations for Children
Since I first wrote about COVID-19 vaccinations in early 2021 (somewhat speculatively, I acknowledge), vaccines have now been approved for children 5 years of age and older, and vaccines may soon be approved for children under 5 years old. As more vaccination cases are being determined by the Court, interesting issues have arisen about judicial notice, the public documents exception to the hearsay rule, and parental consent to a minor’s medical treatment.
B.C.J.B. v. E.-R.R.T.
The case of B.C.J.B. v. E.-R.R.T. (2020 ONCJ 438), wherein the Honourable Justice Finlayson granted the father’s pre-trial Motion for decision-making authority over vaccinations (although specifically excluding “future” COVID-19 vaccinations), was appealed. In the motion decision, Justice Finlayson took judicial notice of several facts, including that Ontario’s publicly funded vaccines are safe and effective, that widespread use of vaccines has led to the reduction or eradication of diseases, and the harm that could occur to a child from contracting a vaccine-preventable disease, including death. The Court also took judicial notice of Canada and Ontario’s public safety immunization strategy, and that government policies (at both the federal and provincial level) support the use of vaccinations to promote individual health and public safety (see paras. 186-193).
On appeal to the Superior Court of Justice (2021 ONSC 6294), the Honourable Justice Sanfilippo upheld Justice Finlayson’s decision, including the judicial notice of several adjudicative and legislative facts. The Court agreed with Justice Finlayson’s conclusion that “scientific facts can become so well-known generally, that the court can judicially notice them without the need for expert evidence” (para. 49). Noting the discretionary nature of the decision to take judicial notice, Justice Sanfilippo held that the motion judge had an evidentiary basis, grounded in case law, on which to take judicial notice of these facts.
A.P. v. L.K
The arbitration award in A.P. v L.K. was also appealed (2021 ONSC 150). The Arbitrator found that it was not in the children’s best interest to become vaccinated for several reasons, including that the status quo was that the children had not received any vaccinations, that there was no risk to the children if they were not vaccinated, that the children were at an increased risk from vaccination due to a genetic variation caried by the Respondent mother, and that the children were anxious and stressed about the possibility of having to be vaccinated.
On appeal, Justice Akbarali found that the Arbitrator erred in qualifying the Respondent’s two medical witnesses as experts or, in the alternative, that the evidence of both witnesses exceeded their expertise. Justice Akbarali allowed fresh evidence on the appeal, including expert evidence on behalf of the Respondent which was denied for procedural reasons at the arbitration.
Justice Akbarali also found that the Arbitrator’s refusal to accept certain government documents, including the “Canadian Immunization Guide” and “Immunization 2020: Modernizing Ontario’s Publicly Funded Immunization Program”, for the truth of their contents pursuant to the public document exception to the hearsay rule was an error of law. The Court discussed the purpose of this exception, namely the inherent reliability of records and reports from public officials and the inconvenience of requiring public officials to attend in court. Justice Akbarali found that both documents were made for the purpose of the public making use of them and being able to refer to them and therefore should have been admitted for the truth of their contents, not the limited use of confirming that all levels of government support vaccination as stated by the arbitrator.
The intervenor, the Medical Officer of Health (City of Toronto), also made submissions regarding judicial notice of certain facts relating to vaccination for the same reason as the public document exception to the hearsay rule, in that judicial notice can avoid the need to call additional witnesses and expedite the Court’s process, which can enhance access to justice for individual litigants. While the Court ultimately found that there was no error as the Arbitrator was not specifically asked to take judicial notice at the Arbitration, Justice Akbarali did cite with approval Justice Finlayson’s analysis in B.C.J.B. v. E.-R.R.T., noting at para. 186:
...I agree with the intervener that both the public documents exception and taking judicial notice of these facts promote access to justice and the primary objective of the Family Law Rules. This is so because these evidentiary rules allow the court to deal with questions about vaccinations without putting litigants to the time and expense of proving the safety and efficacy of vaccines in each individual case where the issue may arise, enabling parties and the court to focus their resources on what must be the heart of the question at issue: whether it is in the best interest of the child who is the focus of the proceeding to be vaccinated.
Justice Akbarali also agreed the Court cannot take judicial notice that a particular child does not have health conditions that may contraindicate vaccinations, but noted that it would not be onerous to the parties to provide information about unique facts particular to a child in each case (such as a letter from the child’s family doctor, for example).
Finally, Justice Akbarali held that Arbitrator erred in disregarding 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, and ultimately overturned the Arbitrator’s award, ordering that the Appellant have sole responsibility to make vaccination-related decisions. The Court engaged in a fresh best interest analysis, including the views and preferences of the eldest child, and ordered that the Appellant have sole responsibility to make vaccination-related decisions for the children, and restricted the Respondent from communicating to the children that vaccines are untested or unsafe.
J.N. v. C.G.
While the general trend in these vaccination cases is to award decision-making responsibility to the pro-vaccine parent, that is not always the case. In a recent Motion decision in J.N. v. C.G. (2022 ONSC 1198), our own Honourable Justice Pazaratz questioned the interplay of “judicial notice” and actual evidence, and asked the question: “how fine the line is between ‘vaccine hesitancy’ and ‘not taking any chances with your kid?” (para. 20)
Justice Pazaratz noted that in each of the recent cases where a child’s stated opposition to being vaccinated was overridden, the court made unfavourable findings with respect to the objecting parent’s rationale and their inappropriate influence over the child. However, in this case, the Court found that both parties were excellent parents and there was no evidence children were unduly influenced by either their pro-vaccine or anti-vaccine parent. These children had regular childhood vaccines, had already had COVID-19 with minimal symptoms, and had no special health needs or vulnerabilities.
The Court criticized the pro-vaccine father for focusing his position on undermining the mother’s anti-vaccine ideas rather than explaining his own, and noted that the mother’s submissions were articulate, well-researched, and child-focused, while the father attempted to vilify and ridicule the mother for her personal beliefs. Justice Pazaratz noted that the father’s dismissive personal attacks against the mother were “misguided and mean spirited”, and raised doubts about his insight into the vaccination issue and the importance of the mother’s relationship with the children. (para. 79)
In contrast, Justice Pazaratz found that the mother “took a reasonable approach in acknowledging the pro-vaccine materials, while at the same time attempting to reconcile them with contrary viewpoints and warnings issued by equally competent and credible medical professionals.” (para. 79) Unlike in some previous cases, where internet downloads from fringe websites and dubious authors were put before the court, in this case the mother included a fact sheet from Pfizer, and an article quoting Dr. Robert W. Malone, the inventor of the mRNA vaccine, to counter the father’s government sources. While Justice Pazaratz emphasized that the Court was not presuming that the mother’s experts were correct, the Court equally cannot presume that they are incorrect. His Honour questioned the reluctance to take judicial notice that the government is always correct and concluded that, “[w]ith 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 this issue.” (para. 81)
Justice Pazaratz emphasized the importance of both evidence and considering both sides of the story as well as the best interests of each particular child in each particular fact situation. His Honour emphasized the legislative requirement to consider children’s views and preferences, especially in a case like this where the children’s views were independently ascertained by a respected social worker through a “Voice of the Child Report”, and the children consistently and thoughtfully communicated their opposition to and fear of receiving the COVID-19 vaccine.
His Honour was ultimately “satisfied the 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” (para. 83) and awarded the mother sole decision-making authority regarding administering COVID vaccines for the children. This decision is currently being appealed.
A New Foundation of Family Violence
Another very interesting case that arguably, fundamentally changes the way family lawyers look at damages for family violence also emerged from the Ontario Superior Court of Justice in 2022. The case, Ahluwalia v. Ahluwalia, 2022 ONSC 1303, is touted as one of the first of its kind in Ontario, and will change the landscape for family violence cases in Canada.
Although the existence of domestic violence is largely acknowledged, identifying the early signs may be difficult as they are not always obvious or voluntarily divulged. Whether you are a family doctor, social worker, psychologist, or lawyer, professionals alike are trained to spot and address these problems in order to help victims and children cope.
But, has there ever been financial compensation for these issues awarded in family court? On February 28, 2022, the Honourable Justice Renu Mandhane released her reasons for awarding a mother $150,000 “in compensatory, aggregated, and punitive damages for the tort of family violence”. Her Honour acknowledges that this is well outside the “boundaries of family law” but the relationship itself was not within the boundaries of a “normal” relationship, by any stretch of the imagination.
Briefly, the familial facts are as follows: the parties were married in 1999 and immigrated to Canada from India in 2000. Both parties were highly educated in India, the Father as a lawyer and the Mother as a teacher. They have two children, both of which have been estranged from their Father since 2017. The Mother worked various factory jobs and the Father was the owner of a trailer truck, successfully driving for Canadian National Trucking Lines.
After the parties separated, the Father saw the children only a handful of times before both children refused to continue seeing him. On September 7, 2021, the Father was charged with two counts of assault against the Mother, and one count of uttering threats to cause death.
An 11-day trial transpired on the issues of child support, spousal support, and equalization of net family property. The most contentious issue, of course, was whether or not the Father should be held liable in damages for family violence.
Her Honour opined that, with the 2021 reforms to the Divorce Act (which I wrote about in my June 2021 HLA article, conveniently), Parliament explicitly recognized the devastating, life-long impact of family violence on children and families. Further, the Divorce Act defines “family violence” expansively to include conduct that goes well beyond physical assaults:
family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes:
- physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
- sexual abuse;
- threats to kill or cause bodily harm to any person;
- harassment, including stalking;
- the failure to provide the necessaries of life;
- psychological abuse;
- financial abuse;
- threats to kill or harm an animal or damage property; and
- the killing or harming of an animal or the damaging of property.
Although moving in the right direction, this improved statutory scheme does not address all of the issues arising from alleged family violence. Spousal support is one way to compensate a spouse in a relationship, but it is designed to do just that: compensate. The legislation failed to recognize family violence in a way that holds people accountable for their actions; actions that are found to be their fault.
Justice Mandhane acutely points out that “…new causes of action in tort can be created through re-interpretation of precedent, extension of an existing cause of action, or the recognition of a new interest that warrants protection under the civil law.” The elements of the family violence tort are as follows:
- Conduct by a family member towards the plaintiff, within the context of a family relationship, that:
is violent or threatening, or
- constitutes a pattern of coercive and controlling behaviour, or
- causes the plaintiff to fear for their own safety or that of another person.
In fact, I think there are circumstances where this is a lot more common than one would think. Justice Mandhane goes on to accurately state that women may not leave or be equipped to leave abusive relationships due to “environmental factors” such as a lack of job skills, the presence of children to care for, and the fear of retaliation. In R. v. Malott,  1. S.C.R. 123 at para 42, the Court recognized other systemic barriers to leaving an abusive relationship, which include: fear of losing custody, pressures to keep the family together, a weak social and financial support system, and that fact that the violence often does not end after leaving.
Analyzing the totality of the evidence, Her Honour found that the Mother was entitled to an award of $150,000 in relation to the family violence she experienced during the marriage.
While this decision remains under appeal, courts outside of Ontario have already started to recognize higher award damages for family violence.
In Schuetze v. Pyper 2021 BCSC 2209, the B.C. trial judge awarded damages in the amount of $795,029 for physical violence displayed by one partner in an intimate relationship. In this case, Justice Fleming found that the Father’s previous pattern of violence and controlling behaviour on the plaintiff’s physical and emotional injuries, diminished lifestyle, future care costs was enough to justify a monetary award of this magnitude.
Ultimately, I think compensatory and punitive damages for family violence will be here to stay (speculatively, of course). When punitive damages such as these are awarded, the trial judge is satisfied that a party is at fault for violent, threatening, and coercive behaviour. It is about time that family courts hold family litigants responsible for reprehensible behaviour that takes people months, if not years, to recover from. Even a small amount of money can be used towards various therapies and other coping mechanisms that will help heal litigants in a new phase of life.
Save the Date! The HLA Family Law Seminar will be held on Thursday, October 27, 2022 at 1:00 p.m. in personal at the Hamilton Convention Centre, 1 Summers Lane, Hamilton in Webster Room A & B. We look forward to seeing you there!
Lacey Bazoian is a sole family practitioner practicing at LMB Family Law. She can be reached at: [email protected] or 289-389-4991.
Alexandria Palazzo is an associate at Scarfone Hawkins LLP practicing family law. She can be reached at: [email protected] or 905-523-1333 ext. 280.
For other examples of vaccination cases, see Warren v. Charlton (2022 ONSC 1088), M.P.D.S. v. J.M.S. (2022 ONSC 1212), Dyquiangco Jr. V. Tipay (2022 ONSC 1441), Rouse v. Howard (2022 ONCJ 23) and L.M. v. C.O. (2022 ONSC 0394). For an interesting discussion of a mature minor’s consent to medical treatment, including vaccination, see A.C. v. L.L. (2021 ONSC 6530).
Ahluwalia v. Ahluwalia, 2022 ONSC 1303 at para 4.
For explanatory reading, see: S.S. v. R.S., 2021 ONSC 2137, at paras 28, 47 and J.K. v. R.K., 2021 ONSC 1136, at paras 34-39.
Ahluwalia v. Ahluwalia, 2022 ONSC 1303 at para 50.
Ibid. at para 6