Juno News - Mother resists mandatory vaccination for her children

00:00:00.000 I want to talk about one case, which is that of J.N., who is hoping to get the Supreme

00:00:14.640 Court to affirm her rights as a parent to stand up for what she thinks is in the best

00:00:20.880 interests of the family.

00:00:23.020 The lawyer for this case, which has details on helpamom.ca, is from the Acacia Group, and

00:00:31.420 that is Leah Malousis.

00:00:32.980 Leah, thank you for coming on today.

00:00:34.700 Good to speak to you.

00:00:35.780 Thanks for having me, Andrew.

00:00:37.580 So I've tried to give a bit of a primer there, and obviously I know you can't identify your

00:00:43.240 client by name here, but explain to me what led us here.

00:00:47.620 What's actually at hand?

00:00:48.960 Yeah, so maybe just stepping back, there was a breakdown of the marriage.

00:00:55.020 There are three children involved, and at the time, so this litigation has gone on for eight

00:01:01.340 years.

00:01:01.820 I've not been involved in that.

00:01:03.880 Neither has my colleague who is helping me with this case.

00:01:06.620 So there's been this messy litigation, and ultimately the father and the mother came

00:01:10.720 to minutes of settlement, and they were able to resolve every issue except the question

00:01:16.540 of vaccinating the children, and not all three of the children, just the younger two.

00:01:21.940 The eldest child was 14 years old at the time of the minutes of settlement, and they

00:01:26.220 concluded that he was old enough to be able to decide on his own whether he would like the

00:01:31.260 vaccine or not.

00:01:32.040 He ultimately chose to get the vaccine.

00:01:34.220 Both parents were supportive of that decision.

00:01:35.960 But with the younger two children who are now, now their ages are about 13 and 11, if I'm

00:01:42.660 correct there.

00:01:43.940 And so now the issue was, well, what about the younger children?

00:01:48.020 And there was this fight over whether they should be vaccinated.

00:01:51.040 Now, it's important to understand that these children didn't want to be vaccinated.

00:01:54.660 And so even though they are younger than their older brother, they indicated their preferences

00:01:59.600 and their views.

00:02:01.000 And the father's position is that that's essentially, you know, their views are the results of the

00:02:05.880 mother and shouldn't be respected, and that they should receive this vaccine regardless. 0.96

00:02:10.680 And the mother's position isn't that she's against the vaccine per se.

00:02:14.760 She would just like some additional information, some additional time.

00:02:17.860 And she, in particular, is wanting to respect the views of the children, who are now very

00:02:23.500 close to the age of their older brother when he was old enough in the view of both parents

00:02:28.660 to make this decision.

00:02:29.720 So that's kind of what led us here.

00:02:32.580 And as you'll be aware, Andrew, there was a lower court decision that, you know, resulted

00:02:37.160 in the mother being awarded what's called decision making.

00:02:40.200 And so she was given decision making over the question of COVID vaccines.

00:02:44.320 Just, you know, to be clear, the children reside with her primarily.

00:02:48.260 She'll, you know, have decision making for most matters.

00:02:51.820 And so now she was awarded by the motion judge the ability to make decision regarding COVID

00:02:58.240 vaccines.

00:02:59.540 And then this was appealed to the Ontario Court of Appeal, and they overturned the decision.

00:03:04.740 And not only did they overturn the decision, and typically, you know, it would get sent back

00:03:09.600 to trial for another decision from a motion judge, but they actually implemented their own

00:03:14.640 order, and they awarded decision making to the father.

00:03:17.860 There were a number of reasons of that, which, you know, for that, which I'm happy to go

00:03:22.160 into.

00:03:22.540 But that's kind of, that's what, where we're at, and that's a little bit of the background

00:03:27.480 of the case.

00:03:28.140 So let's just, I mean, talk about the vaccination aspect here, because the mechanics of getting

00:03:35.380 vaccinated is that you can't, as I'm under, as I understand it, be de-vaccinated.

00:03:39.700 So once it's been done, it's done, which means I think the stakes are higher if you side in this

00:03:45.100 case with the father than, than with the mother.

00:03:47.700 But I am sympathetic to the argument that younger kids are probably getting a lot of their influence

00:03:55.220 on this from their mother.

00:03:56.660 I mean, I think kids are smart, and kids can make up their own minds, but kids are also

00:04:00.460 products of their surrounding, and kids will be products of their, their mothers, I'll 0.98

00:04:03.920 characterize it as, as vaccine hesitancy.

00:04:06.580 So how does she answer to that?

00:04:07.780 How does the mother articulate where the children got their aversion to the vaccine from?

00:04:12.800 Yeah, so, so there are a few things I would say to answer that question, Andrew.

00:04:17.580 First of all, there was what's called a view of the child report, or two views of the child

00:04:23.020 reports that were done for all three children.

00:04:25.800 And that wasn't done specifically regarding the question of the vaccine.

00:04:29.280 But one of the issues touched on in the second views of the child report was about the question

00:04:34.720 of vaccines.

00:04:35.440 And it was in that case, sorry, in that report that the social worker who did the, you know,

00:04:41.000 the different interviews concluded, you know, these children, these are the views that they

00:04:44.460 have, they seem consistent.

00:04:46.960 The social worker didn't flag any, any type of influence.

00:04:51.720 Now, I think, you know, obviously, children are going to hear both sides.

00:04:56.580 And so I think it's interesting that, you know, with the, with the other child, there wasn't

00:05:01.420 concern that, you know, he was just going along with what his father wanted.

00:05:05.560 Both parents respected the child's decision.

00:05:08.220 And in that case, it was the decision to get the vaccine.

00:05:10.280 But then in the younger, you know, with the younger two, they're, despite the fact that

00:05:15.660 they're being exposed to the same kind of voices on both sides, both parents have, the

00:05:21.280 record says that both parents have spoken to the children about this issue, the children

00:05:25.380 are very clear about the positions of the parents.

00:05:29.020 And the younger two children have, have decided that they don't want the vaccine at this point

00:05:33.340 in time.

00:05:34.060 Now, I mean, the, the trial judge concluded that there wasn't evidence that the views of the

00:05:38.940 children were only a product of the mother.

00:05:42.360 There was, so that was a factual finding.

00:05:44.500 But it's also important to understand, and there is case law, and we, we referenced this

00:05:49.900 case law in our, in our motion to stay, because we put forward a motion to stay the order of

00:05:54.880 the ONCA, the Ontario Court of Appeal.

00:05:57.000 And one of the things that, that has been demonstrated in some of the case law is that

00:06:01.420 even if, even if the views of the children are, are misguided, are, you know, are only

00:06:07.320 the result of a parent, if they're sincerely held, you know, if these children really are

00:06:11.980 this opposed, then moving forward with, in this case, a medical treatment that cannot be reversed

00:06:18.460 is going to have a pretty severe impact on them, particularly when the person kind of

00:06:23.600 moving that forward is going to be their father, there, there are going to be some serious

00:06:26.960 ramifications there.

00:06:28.700 And it's important that people understand, obviously, when it's the COVID vaccine issue,

00:06:32.900 you know, there, there are a lot of, a lot of emotions and perspectives that come to play.

00:06:37.360 But really, this is not a question about the vaccine, whether it's good or bad, whether

00:06:41.400 children should get it or not.

00:06:42.700 In a, in a case like this, a family law case, the only question that the court is supposed

00:06:47.440 to look at with regard to access or parenting decision making order is the question of what

00:06:55.260 is in the best interest of these specific children, not children generally, not people

00:07:00.200 generally, these children.

00:07:01.920 And so you have to think not just about, you know, who, who gave these children these views,

00:07:06.540 which, according to the trial court, it wasn't, it wasn't clear on the record that it was just

00:07:12.400 the result of the mother, but even if it was, you need to think about how, how moving forward

00:07:18.780 with a forced vaccine for these children will impact them and, and impact their relationship

00:07:23.700 with both of their parents.

00:07:24.800 And, and I think that's something that the Ontario court of appeal didn't consider properly.

00:07:28.660 Let me drill down further into that best interest of the child bit, because one question you've

00:07:33.440 raised in your commentary on, on this case is about accepting, or should a judge be able

00:07:38.520 to accept a government statement on an irreversible medical intervention as fact.

00:07:43.740 So how does the, the government's position factor into this case?

00:07:47.380 Yeah.

00:07:47.920 So the, the, you know, this, this from a, in terms of how we speak about it in layman's

00:07:52.840 terms, obviously we're thinking about the, the children, the parents, the vaccine, that's

00:07:56.640 what this is about.

00:07:57.200 But from a legal perspective, this case rests on something called judicial notice and to

00:08:01.640 kind of fast track and explain this evidentiary concept.

00:08:04.520 The idea is that in a case, the judge has the option.

00:08:08.560 It's a discretionary option to, to take what's called judicial notice of a fact.

00:08:14.480 And that's done in cases where the fact is so evident, so obvious that, you know, reasonable

00:08:19.280 people couldn't, couldn't, wouldn't disagree about this.

00:08:22.800 So for example, applying that here, you know, a judge could take judicial notice.

00:08:27.140 And many judges have of the, the fact that the COVID pandemic happened, you know, that

00:08:32.260 COVID exists, you know, there'll, there'll be some people I imagine who dispute whether

00:08:36.600 you want to call it COVID or whatever.

00:08:37.920 But the reality is that we know there's been a pandemic.

00:08:40.320 We know people have been affected.

00:08:41.960 That is a fact.

00:08:43.300 Now, judicial notice cannot be taken of what's called expert opinion.

00:08:46.820 So once you start getting into the question of not just facts, but what ought to happen,

00:08:52.280 or maybe what, what the ideal treatment would be for a child, like that's where you start

00:08:57.000 getting close, much, much further into the realm of expert opinion.

00:09:00.460 So that's the important thing to understand about judicial notice.

00:09:03.160 And again, it's just discretionary.

00:09:05.420 So in this case, so there have been cases across the country regarding vaccines and children

00:09:11.020 and what's best for the children.

00:09:12.580 So in this specific case, the trial judge decided not to take judicial notice of the government

00:09:18.860 statements that had been put forward by the father.

00:09:20.800 Both parents brought different evidence.

00:09:23.740 They both brought what's called, you know, internet downloads.

00:09:26.520 They kind of downloaded stuff off the internet and put it before the court.

00:09:30.040 And the, the trial judge concluded that he wasn't going to take judicial notice of the

00:09:35.100 government statements because the, the approval of the vaccine by health Canada, he said, you

00:09:42.640 know, didn't translate to it automatically being in the best interest of these children.

00:09:47.240 So, so yeah, I mean, government, you know, the government approved the vaccine and, and,

00:09:51.920 you know, that is a fact, but the question of whether it's now by default, safe and effective

00:09:56.740 and not just safe and effective, but in the best interest of these children is a separate

00:10:00.980 one.

00:10:01.440 Now the courts have been taking very different views on this.

00:10:04.480 And this is one of the reasons we've appealed it to the Supreme court, because we really think

00:10:08.040 we need some, some insight into how to sort through this very messy area of law, because

00:10:12.760 basically some courts have said, you know, COVID exists, vaccines are generally good.

00:10:18.060 And that's as far as they go.

00:10:19.640 Some have gone a step further and saying, you know what, the government has said that this

00:10:23.800 is a safe procedure.

00:10:24.900 They've approved it.

00:10:25.960 So we're going to conclude without getting any evidence before us that, you know, that

00:10:30.400 this vaccine is safe and effective.

00:10:32.300 And then others have gone even a further step and said, not only is the vaccine safe and

00:10:36.520 effective, but it is in the best interest of children generally.

00:10:39.940 And, and the, the real issue with that, Andrew, is that, is that the, the best interest of the

00:10:45.420 child analysis is not about what's in the best interest for children generally, but about

00:10:49.060 these specific children.

00:10:50.340 And so while I don't think, you know, the courts are trying to kind of undermine, you

00:10:55.300 know, what's best for children.

00:10:56.540 And while I don't think the government intended for their statements to be used this way, what's

00:11:00.540 kind of happened with the clash of judicial notice and, you know, the issue of the vaccines

00:11:05.360 is we've now had kind of government statements, almost substituting in a decision when you think

00:11:11.320 about whether a child should get a vaccine or not.

00:11:13.320 And basically what the Ontario court of appeal said is that when a question like this arises and

00:11:19.680 one parent would like the children to get a procedure that has, or like, like a vaccine

00:11:25.220 that has been approved by the government, it's basically now the onus, the burden of proof

00:11:31.020 is on the parent who doesn't want that procedure to go forward to, to prove why it's, why it's

00:11:36.580 not fair.

00:11:37.420 And, and, and that's just, that's a huge evidentiary burden for, for in this case, a

00:11:41.940 self-represented litigant to bear.

00:11:44.420 And it's also, it really undermines the best interest of the child analysis, which again,

00:11:49.220 is a hyper-individualized, laser-focused analysis about what's good for these children, not

00:11:55.380 what might, might generally be safe and effective.

00:11:58.220 Well, and I think that's an important point here because, you know, obviously we accept

00:12:02.500 that adults have the right in some ways to do things that may not be in their own best

00:12:07.960 interest.

00:12:08.440 We, we accept that adults are human beings.

00:12:10.680 They can make mistakes.

00:12:11.620 Maybe it will have a risk to it and adults can calculate that risk.

00:12:15.480 And, and we also accept that adults are the primary caregivers and decision makers for

00:12:19.660 children who don't legally have the ability to make that decision.

00:12:22.920 And I think the gap between those two things is a little bit perplexing to people because

00:12:29.240 on one hand, we, we don't want to say that adults have the right to harm children.

00:12:32.680 But on the other hand, we, we don't want, or shouldn't want, certainly don't want, and

00:12:36.400 people that do and watch and listen to this show don't want government stepping in to,

00:12:41.160 to make these decisions for, for children.

00:12:43.060 And I, I think that what I'm, I'm struggling with here is that you have two parents that

00:12:49.180 are equally passionate about something.

00:12:52.040 And I, I'm assuming probably in good faith, each of them believes that what they are oriented

00:12:57.340 towards is in the best interest of the children.

00:12:59.820 So assuming this goes on, you know, even further to, till it gets to the Supreme Court, are we

00:13:05.860 starting from scratch every time a case like this comes up?

00:13:09.180 Or is this, in your view, a precedent setting case?

00:13:14.380 This could be a precedent setting case.

00:13:16.880 I mean, the process is that, you know, we don't by default get to go to the Supreme Court.

00:13:21.540 We have to ask permission.

00:13:22.600 We have to ask for leave to appeal.

00:13:24.080 So that's what we've done.

00:13:25.120 So we'll be waiting for that decision.

00:13:26.780 That's where things are at right now.

00:13:28.620 But I do think it could be precedent setting.

00:13:30.680 And I think it's important because there, there, like I said, there have been conflicting

00:13:34.740 decisions across the country, not just at the trial level, but even with courts of appeal,

00:13:39.640 where there is this big dispute over what, you know, like how far do we take a government

00:13:44.720 statement?

00:13:45.160 And, and how does it factor into this decision?

00:13:49.160 And, and, and I think, yeah, again, like this isn't about the vaccine.

00:13:53.520 This isn't about saying the government is, you know, wrong and Health Canada is lying or

00:13:57.220 anything like that, but it's just, it cannot be the case that, that we, we defer or we

00:14:04.160 kind of default to whatever the government thinks is in the best interest of the children.

00:14:09.100 You know, the government might think that a medical treatment is ideal for a child, but

00:14:13.440 it really is up to that family to decide.

00:14:16.120 And, and, and that's why the, the role of the court isn't to, to, the, the court doesn't

00:14:21.180 decide, you know, is it best for the child to be vaccinated or not necessarily.

00:14:24.880 They're often just looking at who is thinking about the best interests of the child and

00:14:29.000 therefore who should have the decision-making to kind of move forward with, with that line

00:14:33.480 of thinking.

00:14:33.880 It's also important to, to note, and this is a whole other can of worms, so we probably

00:14:37.720 can't get into it in detail, but there, there is case law that says it's, it's what's called

00:14:42.740 the mature minor doctrine.

00:14:43.980 And there, there is case law that says that, and this came up in the context of, you know,

00:14:48.960 Jehovah's witness children who were refusing blood transfusions and the, you know, doctors

00:14:53.900 wanted to interject and, and force the children to get blood transfusions and, and the Supreme

00:14:59.380 Court wrestled this question and ultimately concluded that the, a mature minor, a minor,

00:15:05.440 so obviously someone under the age of 18, was able to understand the medical condition

00:15:10.720 they had, understand, you know, the treatment, what it would mean to get it, what it would

00:15:14.640 mean to not get it.

00:15:15.900 But that it could be, depending on, you know, what the, what the doctors conclude, maybe

00:15:20.520 the court conclude, if it gets litigated, it could be up to the child to conclude, you

00:15:25.200 know, what, what is in his, her best interests in terms of that specific medical procedure.

00:15:30.880 And so, yeah, I, I certainly agree with you, Andrew.

00:15:33.900 We have two individuals, parents who love their children.

00:15:36.560 And I mean, the, the evidence on record is that they're both good parents.

00:15:40.060 They both love their children.

00:15:41.060 And so that's not what this, you know, and you said they've agreed on everything else

00:15:45.080 about their arrangement, but this, yeah, yeah, exactly.

00:15:48.120 So it really is, um, for us, it's not, it's not a matter of, you know, these children absolutely

00:15:53.660 shouldn't have the vaccine or not.

00:15:55.100 It's just, it, we're, we're really concerned that, you know, a government statement is going

00:16:00.140 to now kind of subvert, um, the, the ability of a parent to, to have, um, a shot at kind of

00:16:07.260 making their case to a court about what's in the best interest of their children.

00:16:11.280 Um, and, and I don't think anyone intended for government statements from health Canada

00:16:16.340 about a vaccine being approved to kind of subvert the ability of a parent to act in the

00:16:21.260 best interest of their child.

00:16:22.540 So, uh, that's what I would say this case is ultimately about.

00:16:25.540 And, and I think if this gets appealed to the Supreme court, if we get leave to appeal,

00:16:29.640 I think it would be precedent setting for sure.

00:16:32.040 Uh, you've got a website set up, explain why that is.

00:16:34.760 Um, yeah, so, so, um, I mentioned, I think at one point that we're kind of, we jumped

00:16:40.540 in at, at the later stage.

00:16:41.960 So this, the mother has been self-represented for, um, for, you know, at the trial level

00:16:46.900 and at the Ontario court of appeal, um, and that's kind of a separate concern.

00:16:50.940 We're worried that, um, you know, in light of her having six kids and, and her resources

00:16:55.980 having been depleted over eight years of messy litigation, that there was just no way for

00:16:59.720 her to make the strongest case she could.

00:17:02.780 Um, not just for her interest, but also for, for the preferences and views of, of her two

00:17:07.560 children.

00:17:08.560 Um, and so we're, we jumped in, um, and we're helping with, you know, this latter stage,

00:17:13.780 uh, of litigation, but, um, but her resources are still depleted.

00:17:17.560 And so we have, um, a fundraising, um, a fundraising page set up for her to kind of get some support.

00:17:23.940 Um, uh, this case has national ramifications if it goes to the Supreme Court.

00:17:28.720 So it really is not just about her, um, but it's about kind of families across the country

00:17:33.280 and their ability to, to act in the best interest of their children.

00:17:36.180 Um, and so you can go to helpamom.ca, um, that's all one word, helpamom.ca and, uh, make a donation

00:17:43.320 there.

00:17:43.620 You can also get some additional information for those who are really interested and, um,

00:17:47.660 and, and we didn't have time to cover all the details.

00:17:49.800 So if you're curious, you can go there for more information and to, to help out a mom.

00:17:54.520 Leah Melosis from the Acacia group, that website again, helpamom.ca.

00:17:58.860 We did talk about this case in its earlier iteration.

00:18:01.760 So I'm glad that she has an advocate in this as to those children.

00:18:05.420 Thank you very much, Leah.

00:18:06.920 Thanks so much, Andrew.

00:18:08.160 Thanks for listening to the Andrew Lawton Show.

00:18:10.520 Support the program by donating to True North at www.tnc.news.

00:18:19.800 www.tnc.news.com

Juno News - April 23, 2023

Mother resists mandatory vaccination for her children

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