Mother resists mandatory vaccination for her children
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Summary
In this episode, we discuss the case of J.N., who is seeking to get the Supreme Court to affirm her rights as a parent to stand up for what she thinks is in the best interests of the family. The lawyer for this case, Leah Malousis, is from the Acacia Group.
Transcript
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I want to talk about one case, which is that of J.N., who is hoping to get the Supreme
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Court to affirm her rights as a parent to stand up for what she thinks is in the best
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The lawyer for this case, which has details on helpamom.ca, is from the Acacia Group, and
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So I've tried to give a bit of a primer there, and obviously I know you can't identify your
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client by name here, but explain to me what led us here.
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Yeah, so maybe just stepping back, there was a breakdown of the marriage.
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There are three children involved, and at the time, so this litigation has gone on for eight
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Neither has my colleague who is helping me with this case.
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So there's been this messy litigation, and ultimately the father and the mother came
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to minutes of settlement, and they were able to resolve every issue except the question
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of vaccinating the children, and not all three of the children, just the younger two.
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The eldest child was 14 years old at the time of the minutes of settlement, and they
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concluded that he was old enough to be able to decide on his own whether he would like the
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But with the younger two children who are now, now their ages are about 13 and 11, if I'm
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And so now the issue was, well, what about the younger children?
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And there was this fight over whether they should be vaccinated.
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Now, it's important to understand that these children didn't want to be vaccinated.
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And so even though they are younger than their older brother, they indicated their preferences
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And the father's position is that that's essentially, you know, their views are the results of the
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mother and shouldn't be respected, and that they should receive this vaccine regardless.
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And the mother's position isn't that she's against the vaccine per se.
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She would just like some additional information, some additional time.
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And she, in particular, is wanting to respect the views of the children, who are now very
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close to the age of their older brother when he was old enough in the view of both parents
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And as you'll be aware, Andrew, there was a lower court decision that, you know, resulted
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in the mother being awarded what's called decision making.
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And so she was given decision making over the question of COVID vaccines.
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Just, you know, to be clear, the children reside with her primarily.
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She'll, you know, have decision making for most matters.
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And so now she was awarded by the motion judge the ability to make decision regarding COVID
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And then this was appealed to the Ontario Court of Appeal, and they overturned the decision.
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And not only did they overturn the decision, and typically, you know, it would get sent back
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to trial for another decision from a motion judge, but they actually implemented their own
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order, and they awarded decision making to the father.
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There were a number of reasons of that, which, you know, for that, which I'm happy to go
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But that's kind of, that's what, where we're at, and that's a little bit of the background
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So let's just, I mean, talk about the vaccination aspect here, because the mechanics of getting
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vaccinated is that you can't, as I'm under, as I understand it, be de-vaccinated.
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So once it's been done, it's done, which means I think the stakes are higher if you side in this
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case with the father than, than with the mother.
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But I am sympathetic to the argument that younger kids are probably getting a lot of their influence
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I mean, I think kids are smart, and kids can make up their own minds, but kids are also
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products of their surrounding, and kids will be products of their, their mothers, I'll
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How does the mother articulate where the children got their aversion to the vaccine from?
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Yeah, so, so there are a few things I would say to answer that question, Andrew.
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First of all, there was what's called a view of the child report, or two views of the child
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And that wasn't done specifically regarding the question of the vaccine.
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But one of the issues touched on in the second views of the child report was about the question
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And it was in that case, sorry, in that report that the social worker who did the, you know,
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the different interviews concluded, you know, these children, these are the views that they
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The social worker didn't flag any, any type of influence.
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Now, I think, you know, obviously, children are going to hear both sides.
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And so I think it's interesting that, you know, with the, with the other child, there wasn't
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concern that, you know, he was just going along with what his father wanted.
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And in that case, it was the decision to get the vaccine.
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But then in the younger, you know, with the younger two, they're, despite the fact that
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they're being exposed to the same kind of voices on both sides, both parents have, the
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record says that both parents have spoken to the children about this issue, the children
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are very clear about the positions of the parents.
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And the younger two children have, have decided that they don't want the vaccine at this point
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Now, I mean, the, the trial judge concluded that there wasn't evidence that the views of the
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But it's also important to understand, and there is case law, and we, we referenced this
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case law in our, in our motion to stay, because we put forward a motion to stay the order of
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And one of the things that, that has been demonstrated in some of the case law is that
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even if, even if the views of the children are, are misguided, are, you know, are only
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the result of a parent, if they're sincerely held, you know, if these children really are
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this opposed, then moving forward with, in this case, a medical treatment that cannot be reversed
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is going to have a pretty severe impact on them, particularly when the person kind of
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moving that forward is going to be their father, there, there are going to be some serious
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And it's important that people understand, obviously, when it's the COVID vaccine issue,
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you know, there, there are a lot of, a lot of emotions and perspectives that come to play.
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But really, this is not a question about the vaccine, whether it's good or bad, whether
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In a, in a case like this, a family law case, the only question that the court is supposed
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to look at with regard to access or parenting decision making order is the question of what
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is in the best interest of these specific children, not children generally, not people
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And so you have to think not just about, you know, who, who gave these children these views,
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which, according to the trial court, it wasn't, it wasn't clear on the record that it was just
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the result of the mother, but even if it was, you need to think about how, how moving forward
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with a forced vaccine for these children will impact them and, and impact their relationship
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And, and I think that's something that the Ontario court of appeal didn't consider properly.
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Let me drill down further into that best interest of the child bit, because one question you've
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raised in your commentary on, on this case is about accepting, or should a judge be able
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to accept a government statement on an irreversible medical intervention as fact.
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So how does the, the government's position factor into this case?
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So the, the, you know, this, this from a, in terms of how we speak about it in layman's
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terms, obviously we're thinking about the, the children, the parents, the vaccine, that's
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But from a legal perspective, this case rests on something called judicial notice and to
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kind of fast track and explain this evidentiary concept.
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The idea is that in a case, the judge has the option.
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It's a discretionary option to, to take what's called judicial notice of a fact.
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And that's done in cases where the fact is so evident, so obvious that, you know, reasonable
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people couldn't, couldn't, wouldn't disagree about this.
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So for example, applying that here, you know, a judge could take judicial notice.
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And many judges have of the, the fact that the COVID pandemic happened, you know, that
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COVID exists, you know, there'll, there'll be some people I imagine who dispute whether
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But the reality is that we know there's been a pandemic.
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Now, judicial notice cannot be taken of what's called expert opinion.
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So once you start getting into the question of not just facts, but what ought to happen,
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or maybe what, what the ideal treatment would be for a child, like that's where you start
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getting close, much, much further into the realm of expert opinion.
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So that's the important thing to understand about judicial notice.
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So in this case, so there have been cases across the country regarding vaccines and children
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So in this specific case, the trial judge decided not to take judicial notice of the government
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statements that had been put forward by the father.
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They both brought what's called, you know, internet downloads.
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They kind of downloaded stuff off the internet and put it before the court.
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And the, the trial judge concluded that he wasn't going to take judicial notice of the
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government statements because the, the approval of the vaccine by health Canada, he said, you
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know, didn't translate to it automatically being in the best interest of these children.
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So, so yeah, I mean, government, you know, the government approved the vaccine and, and,
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you know, that is a fact, but the question of whether it's now by default, safe and effective
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and not just safe and effective, but in the best interest of these children is a separate
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Now the courts have been taking very different views on this.
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And this is one of the reasons we've appealed it to the Supreme court, because we really think
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we need some, some insight into how to sort through this very messy area of law, because
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basically some courts have said, you know, COVID exists, vaccines are generally good.
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Some have gone a step further and saying, you know what, the government has said that this
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So we're going to conclude without getting any evidence before us that, you know, that
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And then others have gone even a further step and said, not only is the vaccine safe and
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effective, but it is in the best interest of children generally.
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And, and the, the real issue with that, Andrew, is that, is that the, the best interest of the
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child analysis is not about what's in the best interest for children generally, but about
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And so while I don't think, you know, the courts are trying to kind of undermine, you
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And while I don't think the government intended for their statements to be used this way, what's
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kind of happened with the clash of judicial notice and, you know, the issue of the vaccines
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is we've now had kind of government statements, almost substituting in a decision when you think
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about whether a child should get a vaccine or not.
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And basically what the Ontario court of appeal said is that when a question like this arises and
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one parent would like the children to get a procedure that has, or like, like a vaccine
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that has been approved by the government, it's basically now the onus, the burden of proof
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is on the parent who doesn't want that procedure to go forward to, to prove why it's, why it's
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And, and, and that's just, that's a huge evidentiary burden for, for in this case, a
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And it's also, it really undermines the best interest of the child analysis, which again,
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is a hyper-individualized, laser-focused analysis about what's good for these children, not
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what might, might generally be safe and effective.
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Well, and I think that's an important point here because, you know, obviously we accept
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that adults have the right in some ways to do things that may not be in their own best
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Maybe it will have a risk to it and adults can calculate that risk.
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And, and we also accept that adults are the primary caregivers and decision makers for
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children who don't legally have the ability to make that decision.
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And I think the gap between those two things is a little bit perplexing to people because
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on one hand, we, we don't want to say that adults have the right to harm children.
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But on the other hand, we, we don't want, or shouldn't want, certainly don't want, and
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people that do and watch and listen to this show don't want government stepping in to,
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And I, I think that what I'm, I'm struggling with here is that you have two parents that
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And I, I'm assuming probably in good faith, each of them believes that what they are oriented
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towards is in the best interest of the children.
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So assuming this goes on, you know, even further to, till it gets to the Supreme Court, are we
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starting from scratch every time a case like this comes up?
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Or is this, in your view, a precedent setting case?
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I mean, the process is that, you know, we don't by default get to go to the Supreme Court.
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And I think it's important because there, there, like I said, there have been conflicting
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decisions across the country, not just at the trial level, but even with courts of appeal,
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where there is this big dispute over what, you know, like how far do we take a government
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And, and how does it factor into this decision?
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And, and, and I think, yeah, again, like this isn't about the vaccine.
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This isn't about saying the government is, you know, wrong and Health Canada is lying or
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anything like that, but it's just, it cannot be the case that, that we, we defer or we
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kind of default to whatever the government thinks is in the best interest of the children.
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You know, the government might think that a medical treatment is ideal for a child, but
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And, and, and that's why the, the role of the court isn't to, to, the, the court doesn't
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decide, you know, is it best for the child to be vaccinated or not necessarily.
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They're often just looking at who is thinking about the best interests of the child and
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therefore who should have the decision-making to kind of move forward with, with that line
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It's also important to, to note, and this is a whole other can of worms, so we probably
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can't get into it in detail, but there, there is case law that says it's, it's what's called
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And there, there is case law that says that, and this came up in the context of, you know,
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Jehovah's witness children who were refusing blood transfusions and the, you know, doctors
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wanted to interject and, and force the children to get blood transfusions and, and the Supreme
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Court wrestled this question and ultimately concluded that the, a mature minor, a minor,
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so obviously someone under the age of 18, was able to understand the medical condition
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they had, understand, you know, the treatment, what it would mean to get it, what it would
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But that it could be, depending on, you know, what the, what the doctors conclude, maybe
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the court conclude, if it gets litigated, it could be up to the child to conclude, you
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know, what, what is in his, her best interests in terms of that specific medical procedure.
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And so, yeah, I, I certainly agree with you, Andrew.
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We have two individuals, parents who love their children.
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And I mean, the, the evidence on record is that they're both good parents.
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And so that's not what this, you know, and you said they've agreed on everything else
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about their arrangement, but this, yeah, yeah, exactly.
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So it really is, um, for us, it's not, it's not a matter of, you know, these children absolutely
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It's just, it, we're, we're really concerned that, you know, a government statement is going
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to now kind of subvert, um, the, the ability of a parent to, to have, um, a shot at kind of
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making their case to a court about what's in the best interest of their children.
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Um, and, and I don't think anyone intended for government statements from health Canada
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about a vaccine being approved to kind of subvert the ability of a parent to act in the
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So, uh, that's what I would say this case is ultimately about.
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And, and I think if this gets appealed to the Supreme court, if we get leave to appeal,
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I think it would be precedent setting for sure.
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Uh, you've got a website set up, explain why that is.
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Um, yeah, so, so, um, I mentioned, I think at one point that we're kind of, we jumped
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So this, the mother has been self-represented for, um, for, you know, at the trial level
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and at the Ontario court of appeal, um, and that's kind of a separate concern.
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We're worried that, um, you know, in light of her having six kids and, and her resources
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having been depleted over eight years of messy litigation, that there was just no way for
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Um, not just for her interest, but also for, for the preferences and views of, of her two
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Um, and so we're, we jumped in, um, and we're helping with, you know, this latter stage,
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uh, of litigation, but, um, but her resources are still depleted.
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And so we have, um, a fundraising, um, a fundraising page set up for her to kind of get some support.
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Um, uh, this case has national ramifications if it goes to the Supreme Court.
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So it really is not just about her, um, but it's about kind of families across the country
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and their ability to, to act in the best interest of their children.
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Um, and so you can go to helpamom.ca, um, that's all one word, helpamom.ca and, uh, make a donation
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You can also get some additional information for those who are really interested and, um,
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and, and we didn't have time to cover all the details.
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So if you're curious, you can go there for more information and to, to help out a mom.
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Leah Melosis from the Acacia group, that website again, helpamom.ca.
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We did talk about this case in its earlier iteration.
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So I'm glad that she has an advocate in this as to those children.
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Thanks for listening to the Andrew Lawton Show.
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Support the program by donating to True North at www.tnc.news.