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Ontario: Father Pushes to Take Custody from ‘Anti-Vaccine’ Mother — Judge Rebukes Argument

An Ontario Superior Court of Justice (ONSC) judge rebuked a man for deriding his ex-wife as a “conspiracy theorist” in a family law dispute related to custody of two minor children — a 12-year-old daughter and 10-year-old son — centered on disagreement between parents over coronavirus vaccinations for their children.

In his judgment issued on Tuesday, Justice Alex Pazaratz questioned the father’s line of argumentation. The father wants the two children, who have both “recovered completely” from the coronavirus, to receive vaccinations. The mother opposes this.

Pazaratz challenged the father’s use of the term “misinformation,” a term regularly used by Big Tech to censor interrogation of left-wing political orthodoxies. He wrote:

And is “misinformation” even a real word? Or has it become a crass, self-serving tool to pre-empt scrutiny and discredit your opponent? To de-legitimize questions and strategically avoid giving answers. Blanket denials are almost never acceptable in our adversarial system. Each party always has the onus to prove their case and yet “misinformation” has crept into the court lexicon. A childish – but sinister – way of saying “You’re so wrong, I don’t even have to explain why you’re wrong.”

He contrasted the mother’s use of “evidence focused entirely on the medical and scientific issues” with the father’s approach. “The father focussed extensively on labelling and discrediting the mother as a person, in a dismissive attempt to argue that her views aren’t worthy of consideration,” he determined.

Pazaratz linked the father’s legal strategy with a broader phenomenon of public discourse’s degradation via ad hominem argumentation.

He warned:

This odious trend is rapidly corrupting modern social discourse: Ridicule and stigmatize your opponent as a person, rather than dealing with the ideas they want to talk about. … It seems to be working for politicians. … But is this really something we want to tolerate in a court system where parental conduct and beliefs are irrelevant except as they impact on a parent’s ability to meet the needs of a child?

The judge questioned reflexive subordination to government directives. He added, “We’re all weary. We all wish COVID would just go away. But pandemic fatigue is no excuse for short-cuts and lowering our standards. We all have to guard against the unconscious bias of thinking ‘Why won’t these people just do what the government tells them to do?‘”

The mother disputed the father’s castigation of her as an “anti-vaxxer,” a term used by government, news media, and leftists to denigrate those opposed to universal coronavirus vaccination mandates.

Pazaratz wrote:

The mother insists the father is misrepresenting her position. She is not opposed to vaccines. She is offended by the pejorative term “anti-vaxxer”. She has always ensured that the three children received all of their regular immunizations. She says she’s open minded to vaccinating both younger children if safety concerns can be better addressed. But she says her extensive research has left her with well-founded concerns that the potential benefit of the current COVID vaccines for L.E.G. and M.D.G. is outweighed by the serious potential risks. She says there are too many unknowns, and she worries that “once children are vaxed, they can’t be unvaxed.”

He noted the mother’s emphasis of her two children’s natural immunity following their recovery from coronavirus. He wrote, “She refers to medical research which says that since they have already recovered from COVID, the children now have greater protection from future infection.”

The judge rejected the father’s use of affidavits citing the mother’s political postings on Facebook as grounds for judgment in his favor.

The father accused the mother of “perpetuating COVID-related conspiracy theories and vaccine hesitancy.” He claimed the mother’s “anti-vaccination stance is much more severe than that of a regular concerned parent, who is unsure whether or not she wants the children to receive a relatively new vaccine. Rather, [she] is leading the charge, attending anti-vaccine rallies and refusing to follow COVID protocols.”

The judge replied:

Where to begin.
a. How is any of this relevant? b. Have we reached the stage where parental rights are going to be decided based on what political party you belong to? c. Is being seen with [founder and leader of the People’s Party of Canada (PPC)] Maxime Bernier – or anyone, for that matter – the kiss of death, as far as your court case is concerned? d. Can you simply utter the words “conspiracy theorist” and do a mic drop? e. If you allege that someone is “openly promoting very dangerous beliefs”, shouldn’t you provide a few details. A bit of proof, maybe? f. And if you presume that a parent believes things they shouldn’t believe – can you go one step further and also presume that the parent must be poisoning their children’s minds with these horrible unspecified ideas? (“Surely, these thoughts and feelings are also being promoted in her household…”) g. The father criticizes the mother for something she didn’t say. He presumes she doubts the effectiveness of school closures, and then criticizes her for providing no evidence. But on this motion she didn’t raise the issue. And back in 2020 she was the one who wanted to keep the children out of school, and he fought (unsuccessfully) for them to attend. As with other allegations, the father provides no evidence of his own, and fails to address the fact that vigorous community debate led to school closures being abandoned. h. How far are we willing to take “guilt by association”? If you visit a website, read a book, or attend a meeting — are you permanently tarnished by something someone else wrote or said? At what point do the “thought police” move in? i. And really, how fine is the line between “vaccine hesitancy” and “not taking any chances with your kid”? All of the caselaw says judges have to act with the utmost caution and consider all relevant evidence in determining the best interests of the child. How can we then impose a lesser standard on a demonstrably excellent parent?

The judge concluded with a warning about an “uglier problem” displayed by the father’s legal argumentation.

“We’re seeing more and more of this type of intolerance, vilification and dismissive character assassination in family court,” he lamented. “Presumably we’re seeing it inside the courtroom because it’s rampant outside the courtroom. It now appears to be socially acceptable to denounce, punish and banish anyone who doesn’t agree with you.”

He continued, “A chilling example: I recently had a case where a mother tried to cut off an equal-time father’s contact with his children, primarily because he was ‘promoting anti-government beliefs.’ And in Communist China, that request would likely have been granted. But this is Canada and our judicial system has an obligation to keep it Canada.”

The case is J.N. v. C.G., ONSC 1198 in the Ontario Superior Court of Justice.

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