The area and practice of family law is shaped by and evolves through societal change, legislation, global events (like a pandemic), and through judicial decisions of the Courts in Ontario and across Canada. FamilyMatters is a weekly update from our Family Law Lawyers on how that change is being made:
In the courtroom, decisions are made on the basis of evidence, weighed by impartial judges who make decisions based on the relevance, strength and coherence of that evidence.
Occasionally, judges may accept a statement without evidence. In legal parlance, this is called judicial notice and applies to two kinds of facts:
- those that are so notorious that they generally wouldn’t be disputed among reasonable people
- those that can be backed up with sources of indisputable accuracy.
When a judge accepts such a statement, it means that the judge believes the fact to be so obvious that requiring evidence of the fact would waste the court’s time. For example, in motor vehicle claims, no one needs to “prove” that Ontario drivers typically stay on the right side of the road. Facts like: people who consume too much alcohol become intoxicated; the debris fell down and not up; and silence is not consent, do not require “proof”.
Evidence Matters
What about when the government takes a position on a matter? Does that require proof? This issue has arisen recently in cases where parents disagree about vaccinating their children. In some cases, courts have taken judicial notice of the fact that government policy supports widespread vaccination. Does that mean that there is nothing more to say on the matter? As Justice Pazaratz asks in a recent decision, “can the court just fill in the blanks and take judicial notice of the fact that all children should get vaccinated?” His Honour said no, and his reasons speak to the fundamental role of our courts.
Justice Pazaratz dismissed a motion to permit a father to take control of his children’s vaccinations. The parties had previously agreed to give the mother sole decision-making authority for the children. The father alleged that the mother was an “anti-vaxxer” and seemingly took it for granted that this called the mother’s decision-making into question and provided sufficient grounds to rule in his favour. He primarily relied on government-provided fact sheets that encouraged citizens to get vaccinated and stated that vaccinations are safe and effective. The mother relied on evidence including medical journals, peer-reviewed articles and a Pfizer fact-sheet.
Justice Pazaratz noted that “(p)ro-vaccine parents have consistently (and effectively) attempted to frame the issue as a contest between reputable government experts versus a lunatic fringe consisting of conspiracy theorists, and socially reprehensible extremists. This was absolutely the wrong case to attempt that strategy.” Why was this the “wrong case” for that? Because, in His Honour’s opinion, “the professional materials filed by the mother were actually more informative and more thought-provoking than the somewhat repetitive and narrow government materials filed by the father.” While Justice Pazaratz was clear that he was not deciding that the mother’s evidence was correct, or that the government sources were wrong, he was convinced that “there can be no simplistic presumption that one side is right and that the other side is comprised of a bunch of crackpots. That’s why the court should require evidence rather than conclusory statements.”
In short, evidence matters, as it always has.
The Bottom Line
I will confess that I sympathize with the father’s counsel. It’s not unusual for family lawyers to tell their clients, both those who are supportive of vaccines and those who are vaccine-hesitant, that the courts support the government’s position and will likely side with the vaccine-supportive parent.
Justice Pazaratz, however, reminds us that the role of the court is not to accept that each position taken by the government is correct and parents must still meet a burden of proof.
As Justice Pazaratz noted, governments are far from infallible. Whether it was the Residential School system, sterilizing indigenous women, or Japanese internment camps, the government makes mistakes.
This is not to say that the government is always or even often wrong, but they do make mistakes. According to Justice Pazaratz, “catching and correcting those mistakes is one of the most important functions of an independent judiciary.” How are mistakes caught? By testing the evidence, clearing sacred cows out of the courtroom and insisting that the burden of proof be met. This is particularly important where the well-being of children is concerned.
As lawyers, we must not indulge in the luxury of assuming that our clients who are “aligned” with the government position are going to win simply because of that alignment. We need to gather evidence and apply analytical skills to decide what the evidence shows. As ever, we need to use our written and oral advocacy skills to persuade a court that our client’s position is correct. This is the job that we signed up to do, and the courts still expect us to do it.
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