This polarizing issue has become the subject of significant media coverage as anti-vaccine groups are becoming increasingly vocal. One father even launched a GoFundMe campaign in order to appeal an arbitrator's decision that allowed the mother to refuse to vaccinate their children. The arbitrator cited the work of anti-vaccine activists to support his decision, and so a number of experts have come forward to testify for free during the appeal of the decision.
How have the courts qualified anti-vaccine experts in past cases and how have custody arrangements been decided as a result?
In G. (C.M.) v. S. (D.W.), 2015 ONSC 2201, the father in this case refused consent for his 10 year old daughter to travel unless she was vaccinated. As a result he brought a motion to change the joint custody order to sole custody when it came to medical related decisions. The hearing went on to become a battle of the experts.
The motion judge found that the mother demonstrated a "lack of objectivity and thoroughness of research" and went on to critique the experts she put forward for their dearth of objective facts, research and literature that was peer-reviewed.
The motion judge also considered the evidence of the amicus curiae who pointed out that Canadian Public Health Policy is in favour of vaccinations which has led to the decline or elimination of potentially fatal illnesses. Their testimony was found to be based on many years of research and clinical participation in the field of infectious diseases.
Furthermore, the Immunization of School Pupils, R.S.O. 1990, CHAPTER I.1, requires the immunization of school children unless exempted for religious beliefs or as a matter of conscience. In the end, the motion judge granted the father decision making ability with respect to vaccinations and ordered the mother to no longer tell the child negative information about vaccines.
This decision was circulated and heavily cited by the judge in the Nova Scotia Supreme Court decision W. (P.) v. M. (C.), 2017 NSSC 91. The judge in this case found that the mother's rigid and inflexible approach when it came to vaccinations demonstrated an inability to make medical decisions that were in the child's best interests. As a result the father was granted sole decision making authority with respect to medical decisions, including vaccinations without the mother's consent.
Finally, in Di Serio v. Di Serio, 2002 CanLII 49568, the motion judge found that the father's affidavit and book of authorities citing various anti-vaccine articles was not considered properly tendered evidence from a qualified expert. The mother called the children's family physician to provide an opinion that they are in need of childhood immunizations and again the Immunization of School Pupils Act was cited. As a result, the motion judge found it was in the children's best interests to be vaccinated.
Based on the case law, it appears that the father appealing the arbitrator's decision has a fighting chance in court. Unfortunately, his two young children contracted whooping cough, one of the standard childhood vaccinations, since the decision was rendered. Proponents of both sides of the debate will surely be closely following and anticipating the decision's release.
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