Contributed by Alison Braley-Rattai
In February, the Ontario Superior Court released a decision, JN v CG, the context for which was a parental dispute over the vaccination of two of the couple’s children, aged 10 and 12, against COVID-19. A third child, aged 14, elected to be vaccinated, a decision that was supported by both parents.
In JN v CG, the judge determined that it was neither in the children’s best interest to order that they be vaccinated against COVID-19, nor to allocate decision-making in this regard to the father, the parent who desired that the children be vaccinated. This case is worthy of examination because it departed significantly from the line of vaccination cases in the context of parental dispute, including those specific to COVID-19 vaccination. In doing so, it announced a possible jurisprudential turn. That turn, however, increasingly appears not to be imminent. To properly contextualize this case, we need to understand how it fits in relation to—and why it departed from—the relevant jurisprudence.
The Best Interest of the Child
Over the past two decades, a line of cases has developed addressing the question of childhood vaccinations in the context of parental dispute following marital breakdown, which I examine in detail here. Very recently, cases particular to COVID-19 vaccination have ballooned. The guiding legal principle in all vaccination cases is the best interest of the child. In the vast majority of such cases, the court has determined that vaccination is in the child’s best interest and has either ordered it, or allocated vaccination decision-making to the parent evincing a desire for their child to be vaccinated. How have courts come to the determination that vaccination is generally in the child’s best interest?
Quality of Evidence
In the majority of pre-COVID vaccination cases, the expert evidence made it relatively easy to determine. Generally, the parent desiring vaccination adduced witness testimony from qualified experts. These invariably testified that, absent any particular contraindication, vaccination was medically preferable to non-vaccination even given the possibility of adverse events. The opposing parent was usually at an evidentiary disadvantage as most of what they presented was readily dismissed as unreliable; expert “credentials were either not-established or non-existent.” For example, comparing the evidence of both parents in a 2015 Ontario case, the judge referred to the anti-vaccination parent and her supporting witnesses as being “locked in a never-ending spiral of blind acceptance of statements by individuals who claim to be experts in the field in which they are not.”
In JN v CG there was a role-reversal in terms of evidentiary quality. In this case, the opposing parent—the mother—was found not to have adduced ‘disinformation’ garnered from rabid, anti-vaxxer internet gurus. Rather, she focused upon the possible adverse events as presented by, among others, the vaccine manufacturer itself—a clearly credible source. Referring to the mother’s evidentiary submissions, the justice opined that while he was “not suggesting that we should presume that the mother’s experts are right, but once we determine that they’re not crackpots and charlatans, how can we presume that they are wrong?” Not only, then, was the quality of the mother’s evidence generally superior to what we had previously seen from the opposing parent, but here the father was deprived of the benefit of the judicial notice that might otherwise have helped him.
Impropriety of Prior Judicial Notice
Judicial notice refers to the adoption of facts by the court which are seen to be so notorious as to evade any serious doubt and for which, therefore, expert testimony need not be adduced. In BCJB v ERRR, the court said that “the case law, read as a whole, reflects the reality [that] there is no debate in the medical community” that vaccines are “safe and effective” and that public policy supports their widespread use. Subsequent courts have, similarly, taken judicial notice of these same facts and included the approved COVID-19 vaccines among those deemed safe and effective; advisories issued by governmental public health organizations have figured prominently. However, the decision in JN v CG appeared to serve as a brake on such judicial notice.
In JN v CG, the court determined that previous vaccination cases had improperly taken judicial notice. Opining that judicial notice had been “hijacked” from a “rule of evidence to a substitute for evidence” the judge, citing positively from RSP v HLC, adopted the view that “judicial notice cannot be taken of expert opinion evidence”, because, by definition, such evidence is just that, an opinion, therefore theoretically capable of credible refutation, and, thus, must be subject to cross-examination before adoption. Had the father produced an expert witness to address the mother’s evidence, that might have been sufficient to tilt the balance differently.
Relevance of Children’s ‘Expressed Views’
Another material difference between the instant case and the vaccination cases generally, regards the expressed views of the children themselves. Importantly, in arriving at a best interest determination the judiciary is directed by statute to consider “the child’s views and preferences” whenever these can “be ascertained” and to give them “due weight” as “the child’s age and maturity” permit.
In many previous vaccination cases, the courts had declined to hear from the children at all, sometimes because doing so would unfairly “place the child in the middle” of an “intense disagreement between the parents”, which itself was held to be contrary to the child’s interest. In part, the judge in JN v CG distinguished between the instant and previous cases by stating that in “most” of the previous “COVID vaccine” cases the children were younger, thus their views would have been “unascertainable”, or were properly given much less weight than was appropriate here. While the judge overstates the difference in ages of children involved in most other COVID-vaccination cases, it is not obvious that much turns on this.
More relevantly, in previous cases when the children’s views were canvassed, they were generally found to have been sullied by misinformation usually provided by the opposing parent, and therefore considered not truly their own. In this regard, the justice distinguished from these earlier situations stating that, here, the children’s views had “been verified independently by an experienced social worker who would be alive to the possibility of parental influence or interference.”
JN v CG turned on a combination of three things that distinguished it from the previous line of cases: that the children’s expressed views against vaccination were, both, considered, and found to be truly their own, that the mother’s evidence establishing the reasonableness of a cautious approach to COVID-19 vaccination was deemed credible, and that the father’s evidence failed to refute that reasonableness, thus failing to establish that the benefit of COVID-19 vaccination outweighed any potential harm, all things considered. Indeed, the father was castigated frequently by the judge for engaging in “personal attacks” against the mother and her views, rather than responding seriously to the legitimate concerns her evidence raised.
The most significant aspect of JN v CG, however, regards the claim that previous courts had improperly taken judicial notice of certain adjudicative facts regarding the safety and efficacy of vaccines. While JN v CG has been referred to as a “groundbreaking decision in family law”, three subsequent cases have put that view in doubt. In one case the court, expressly choosing not to adopt JN v CG’s approach, opined that “parents should rely on government guidance and should have their children vaccinated unless there is a compelling reason not to do so.” Similarly, in a second case, the court agreed that judicial notice regarding the safety and efficacy of vaccines was not determinative, but opined that it should be considered presumptive. Specifically, that court disagreed that Health Canada advisories were a species of expert opinion. Rather, the court expressed its concern that without the ability to take appropriate judicial notice of Health Canada advisories, the court would be left with “whatever random information the parties are able to download from the internet.” And—often self-represented—parties seeking to demonstrate that vaccines are generally safe and effective would face the unnecessary inconvenience and expense of having to demonstrate as much in each case. Moreover, the court was critical that the stance on judicial notice in JN v CG had led to its reliance upon some dubious sources alongside the credible. A third court, simply, dismissed JN v CG’s position as in opposition to the majority of the relevant jurisprudence.
When it emerged, JN v CG announced the possible need for specific guidance from a higher court, given the judiciary’s newfound—but insistent— reliance upon judicial notice in the above-described way. A few weeks later, and JN v CG increasingly appears to be an outlier. Meanwhile, to overcome any uncertainty, offering proper expert testimony capable of addressing the specific concerns of the opposing parent is likely prudent, if not paramount. Given the increased burden of doing so upon parties, however, requiring as much may be suboptimal and, at any rate, no longer appears imminent.
Alison Braley-Rattai is an assistant professor in the Labour Studies Dept. at Brock University in St. Catharines, Ontario. She received her doctoral degree from Western University, and her LLM from Osgoode. Her research interests include labour law and policy, political theory, constitutional law, and children’s rights.