In J.N. v. C.G., 2023 ONCA 77, the Court of Appeal for Ontario considered whether information from the internet was admissible in Court and reliable as expert evidence.
The appellant father and respondent mother were married for almost seven years before separating. They had three children. The oldest child lived with the father while the younger two, ages 10 and 12, lived with the mother. The only issue the parties could not agree upon was which parent had decision-making authority over the COVID-19 vaccine for the two youngest children.
The father had brought a motion asking the Court to grant him that authority, which the mother opposed. The parties’ affidavit attached information they relied upon in support of their position. The father attached information from Health Canada and the Canadian Paediatric Society, which addressed the vaccine’s safety, efficacy and the importance of children being vaccinated. The mother’s affidavit attached Pfizer’s Fact Sheet which detailed potential side effects of the vaccine and various medical articles from online sources.
In addition, the Office of the Children’s Lawyer prepared a ‘Voice of the Child Report’ indicating that neither of the younger children wished to be vaccinated against COVID-19.
The motion judge dismissed the father’s motion, as he determined that it would not be in the children’s best interests for the father to have decision-making authority over their COVID-19 vaccination. The motion judge described the father as “dogmatic, intolerant and paternalist”, and declined to take judicial notice of the safety and efficacy of the vaccine because the available information was a “moving target” and there was “no consensus or consistency” as to its safety and efficacy. Moreover, the Court should be reluctant to take judicial notice from a government source as Canada had a history of being wrong, citing the country’s history of forced sterilization of Inuit women, residential schools, Japanese internment camps during Word War II, Motherisk, and the Thalidomide tragedy.
In contrast, the motion judge found the mother had gone to great lengths to inform herself, was satisfied that the mother’s internet sources were “qualified and reputable”, that the mother had demonstrated a “clear understanding of the science”, and had raised legitimate questions and concerns about the vaccine.
The motion judge also gave significant weight to the Voice of the Children Report. Although children lack wisdom due to immaturity, they have Charter rights and emotions. The motion judge found the children’s views were strongly held and independently formulated, without inappropriate influence from their mother.
The father appealed on the basis that the motion judge made the following errors:
(1) accepting and relying upon the mother’s online resources as “expert” evidence and as credible sources of information;
(2) finding that the father’s evidence (from public health authorities and well-known sources) was credibly disputed;
(3) giving significant weight to the Voice of the Child Report and finding that the children’s views were independently held; and
(4) placing the onus on the father to show the children should be vaccinated.
The father asked that he be granted decision-making authority over the children’s vaccination or that a new hearing be ordered before a different judge.
(1) On the first ground of appeal, while the motion judge referred to the test for admitting online material (the information comes from an official website from a well-known organization, the information can be verified, and the source is disclosed so that the objectivity of the person or organization posting the material can be assessed), he did not actually apply the criteria to any of the online materials filed by the mother. The motion judge also failed to refer to any leading cases on the the admissibility of expert evidence. For example, one of the articles filed by the mother quoted one Dr. Robert Malone, who claimed he invented the mRNA vaccine. the motion judge accepted Dr. Malone’s expertise, without having conducted an inquiry into his qualifications. The motion judge erred in failing to assess whether each document presented by the mother was reliable, independent, unbiased and authorized by someone with expertise in the area. Instead, the motion judge’s analysis was focused on whose materials were more thought-provoking, rather than whether the mother’s materials were actually admissible and should be given any weight.
The motion judge also failed to consider that, notwithstanding the well-known side effects, the vaccine has been approved for children 5 years and older by regulatory health agencies, and seemed to justify the mother’s position that the children should not be vaccinated because of Pfizer’s knowledge about potential side effects.
(2) Regarding the motion judge’s treatment of the father’s evidence, which included the Government of Canada materials, several Courts had already taken judicial notice of the safety, efficacy and importance of paediatric COVID-19 vaccines. The motion judge declined to do so. However, the motion judge erred in treating government approval of the vaccines as irrelevant. Instead of analyzing the father’s materials, the motion judge cited historical evidence and the fact that Courts routinely find that the government violates people’s Charter rights as the reason not to rely upon government sources generally.
The motion judge did not consider whether the father’s evidence was admissible under s.25 of the Evidence Act, R.S.O. 1990, c. E.23, or as a public document exception to the hearsay rule, which provide that reports of public officials are admissible for the truth of their contents. The motion did not apply the test for internet reliability. While the motion judge was not required to give the evidence any weight, the judge was at least obliged to consider the father’s materials and explain why they were not trustworthy, aside from referring to some of Canada’s historical wrongs as a point of comparison. The motion judge did not refer to the materials from the Canadian Paediatric Society, also attached to the father’s affidavit, which was not a government agency. The motion judge therefore erred in failing to meaningfully review the father’s authorities, or the laws of evidence, in favour of the mother’s questionable internet printouts.
(3) As for the significant weight the motion judge gave to the Voice of the Child Report, the motion judge failed to consider how informed the children’s expression was, and did not factor in the mother’s obvious influence. In particular, the motion judge did not consider the fact that the social worker reported that the mother had advised one of the children that the vaccine was experimental and that in every case the vaccine had been tested on animals, the animals died. The motion judge ought to have explored further to ensure the children had good and complete information about the vaccine before considering the independence of their evidence. The motion judge therefore erred in giving any weight to the children’s views.
(4) Regarding whether the motion judge erred by placing the onus on the father to show that the children should be vaccinated, the father was not obliged to prove that an approved drug is safe or effective. Judicial notice should be taken of regulatory approval, which is a strong indicator of safety and effectiveness. The onus is on the party objecting to show why the child should not receive the medication. The motion judge erred by reversing the onus. The mother, as the parent seeking not to have the children vaccinated, had the onus of showing that the children should not be vaccinated despite Health Canada’s opinion.
The appeal was therefore allowed, the motion judge’s order was set aside, and the father was granted sole decision-making authority with respect to the children’s vaccination against COVID-19.
While a family law case, this decision is applicable to estate matters (and civil litigation cases in general) as it demonstrates the standards and legal tests that must be met before online materials can be deemed admissible by the court, and whether online materials can be tendered as expert evidence on a particular subject matter. Online articles from unknown sources, from non-reputable authors and unverifiable sources, will not meet that standard.