Childhood vaccines are safe and effective according to current medical evidence, an Ontario court has ruled in a dispute between separated spouses over whether to vaccinate their two children.
The ruling reverses a controversial 2018 decision of an arbitrator that it was in the best interests of the children in the case not to be vaccinated. That decision brought an unusual intervention in Superior Court from Toronto’s Medical Officer of Health, Eileen de Villa, who argued that vaccination was in the children’s best interests.
Ontario Superior Court Justice Jasmine Akbarali said in a ruling released this month that the arbitrator had relied on debunked theories in considering testimony from two supposed experts, one of whom said that the polio vaccine is worse than the disease.
Vaccinating the two children in the case is appropriate “because it addresses an unnecessary risk the children currently face: illness, permanent health consequences, or death, from vaccine-preventable diseases,” she wrote in a ruling released on Jan. 7. “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.”
The case involved a young teen and a child of around 9, whose parents separated in 2013. (A publication ban means the family can’t be identified.) The mother opposed vaccination as a health risk. The father wanted the children vaccinated against once-common childhood diseases such as mumps, measles and rubella.
An arbitrator, Herschel Fogelman, had heard the dispute in 2017, and accepted as a vaccination expert Toni Bark, an alternative-medicine practitioner from the United States, who said the polio vaccine is worse than the disease. (A B.C. court had found in 2019 that Dr. Bark appeared to lack any expertise in the subject but anecdotal experience.)
Mr. Fogelman also heard evidence from a former Health Canada employee who was dismissed for cause more than a decade ago, and who accuses the U.S. Centers for Disease Control of aiming to boost lagging sales for pharmaceutical companies through mass vaccination programs. As the mother filed their reports less than two weeks before the arbitration hearing, rather than 30 days as she was supposed to have done, the father (who was unrepresented by counsel at the hearing) was unable to find an expert to testify in response.
The arbitrator decided in 2018 that it was not in the children’s best interests to be vaccinated. He said there was no risk from not being vaccinated, and some risk from being vaccinated. Also, the children were stressed and anxious, he said, about the prospect they would be forced to become vaccinated. The arbitrator ordered the father to pay $34,833 in legal costs to the mother.
When the father appealed, this time with the help of counsel, Justice Akbarali permitted him to introduce evidence from experts, including an associate medical officer of health from Peel Region (now the chief medical officer) and a University of Toronto professor who is also a staff physician at the Hospital for Sick Children.
Justice Akbarali, pointing to a Supreme Court ruling that warned of the dangers of “junk science,” said Mr. Fogelman should have excluded testimony from the two people he considered authorities on vaccination.
She granted the father control over vaccination decisions related to the children, though because of the older child’s age, the ultimate decision could be between the child and their doctor. The judge also ordered the mother not to tell the children vaccines are unsafe (she had already taken the older child to an anti-vaccination movie). The judge also threw out the $34,833 costs award against the father, and said she would hear from both sides on a new award. Typically, the loser pays the winner’s costs.
“I think it’s a helpful decision,” Queen’s University law professor Nicholas Bala said in an interview. “It gives some structure to parents when they’re disagreeing and keeps them out of the courts if they can avoid it.”
He added that while the decision doesn’t directly affect the COVID-19 vaccines, which haven’t been approved for young children in Canada, the day could come when they are, and Prof. Bala said courts are likely to defer to government policy on its use when parents disagree.
Gary Joseph, a lawyer representing the mother, said his client was disappointed with Justice Akbarali’s decision, and added that he has filed a motion asking the Ontario Court of Appeal to hear an appeal. He declined to comment further. Caroline Kim, a lawyer representing the father at his appeal, said she was in a trial and unable to comment Monday. Dr. de Villa was not immediately available to respond to requests for comment on Monday.
She had asked the court to take judicial notice of vaccine safety. Judicial notice means that a court accepts as proven a matter that some people may dispute. The best-known example in Canada came in a 1980s case involving Holocaust denier Ernst Zundel when a judge took judicial notice of the Holocaust. Four months ago, Ontario Court Justice John Finlayson took judicial notice of vaccine safety, in a parental dispute over whether their 10-year-old should be vaccinated. “The reality is there is no debate in the medical community,” he said.
Justice Akbarali said, however, that the question was whether the arbitrator was obliged to take judicial notice of certain facts, particularly when no one asked him to do so, and she ruled that he was not.
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