An increasingly common issue facing family law courts across Canada is the disagreement between two separated parents over the decision to vaccinate children against COVID-19. When family courts make an order about parenting, they must consider what is in “the best interest of the children”.
In a 2022 case out of Prince Edward Island, PR v SR, 2022 PESC 7, a father brought a motion for sole decision-making responsibility over the vaccination of his children. The mother, on the other hand, was arguing to take a “wait and see” approach to vaccinating the children.
Both parties to this case were self-represented litigants. The father, who desired the vaccination of the children, did not present expert testimony from a doctor, but used documents from government websites and other health care bodies to support his position.
The court decided that the COVID-19 vaccination was in the best interests of the children. This decision was made after considering the best interest of the child factors in section 16(3) of the Divorce Act, such as the history of care of the children and the children’s preferences.
In making her decision, the Judge commented that there had been no expert testimony in this case but this was not required. Instead, the judge took “judicial notice” that Canada and PEI are experiencing a global pandemic and “vaccines are safe and effective at preventing vaccine preventable diseases including COVID-19.”
Judicial notice is when a judge recognizes that no evidence is required to prove a particular fact because it is so well known that it cannot be reasonably doubted.
The father was therefore successful in his motion and granted the order to allow him to vaccinate the children. Some courts across Canada have similarly taken judicial notice and made decisions that COVID-19 vaccinations are in the best interests of the child.
This case is a helpful illustration of “judicial notice”. It also shows that if you are arguing a case regarding vaccination there is case law out there where expert testimony was not required to argue in favour of vaccination.