Andrea Mrozek: A cry for kindness in the courts

In late February, an Ontario Superior Court ruled in the case of divorced parents who did not agree about vaccination for their two youngest kids, age 10 and 12. The facts in brief: a man and a woman separate after seven years of marriage. They have three kids and remain in the family court system some seven years later. The eldest lives with the father and is vaccinated. The younger two live with the mother and are unvaccinated. The father wants them to be vaccinated; the mother is hesitant.

What is our first reaction to learning that Judge Alex Pazaratz said vaccination ought not be compelled? Applause or derision? He might prefer neither of those — instead asking each one of us to pause and look at the evidence instead.

The decision is specifically about vaccines for children in one divorced family and could set a precedent that vaccinating children isn’t required simply because the government encourages it. Yet it reads more broadly as a lament for the replacement of evidence with partisanship. “‘Misinformation’ has crept into the court lexicon,” writes the judge, going on to call this “(a) childish — but sinister — way of saying ‘You’re so wrong, I don’t even have to explain why you’re wrong.’ ”

Both sides provided affidavits to support their position. The mother presents scientific studies and cites an early contributor to the creation of mRNA vaccines, Dr. Robert W. Malone, alongside acknowledging the good of vaccines. The father’s affidavit includes the public health guidance but spends considerable energy highlighting the mother’s political affiliations and her attendance at particular rallies. The judge viewed this as vilifying her for her political views: “The father focused extensively on labelling and discrediting the mother as a person, in a dismissive attempt to argue that her views aren’t worthy of consideration.”

Clearly frustrated by the number of times this has happened in his court, Judge Pazaratz now takes the reader on a tour of government/public health mistakes over the past decades. The Motherisk scandal, which removed children from their mothers based on what turned out to be flawed drug testing. Residential schools. The campaign of forced sterilization of Indigenous women. Japanese and Chinese internment camps. Thalidomide. His conclusion? “Throughout history, the people who held government to account have always been regarded as heroes — not subversives.”

That’s true but, sadly, it’s generally only in hindsight. I have no doubt that those Canadians who have done excessive prison time for peacefully protesting abortion will one day also be called heroes. For now, it’s the same court system where he is currently a judge that puts them in prison.

It happens that some weeks after this family court decision came out, more research was released about the COVID vaccine for children, showing “dispiriting” results. For this and countless other reasons, a humble approach toward current events is important in and outside the courts. The next study may yet show benefits from the vaccine for children again.

Other aspects deserve more attention. For one, the case shows how in divorced families there’s a high burden on children to moderate conflict. The 10-year-old feared his dad would force him to be vaccinated, as per a social worker, and wanted to share his thoughts about the parenting schedule with the judge, too. Parents, in turn, end up asking much of the courts. As judges interpret family law, they dictate family responses. It gives a lot of power to a stranger for intimate health decisions that are typically made within the family. Then there’s the difficult burden placed on family court judges, navigating family disputes with children’s lives at stake. Some of them may wonder when a vaccine against divorce might be created. 

At first glance, this decision is about whether two kids must get vaccinated. Looking deeper, it’s about how we treat people who fail to act in prescribed ways, particularly when those actions transgress government recommendations. It’s also about what constitutes sound evidence and whether today’s public health norms actually do. It’s about whether we should listen to Voice of the Child reports, which can be part of court proceedings.

“It’s becoming harder for family court judges to turn enemies into friends,” the judge writes, “when governments are so recklessly turning friends into enemies.” Navigating those choppy waters demands we extend grace to those who disagree. It requires humility. More of that, hopefully, could help return some enemies to friendship inside the courtroom and out.

(Mrozek is Senior Fellow at Cardus Family.)