Note — June 3, 2019: This article was edited to remove the name of the father and other details in order to comply with a new publication ban.

A Toronto father has taken his battle to vaccinate his children to Superior Court.

This week, he asked the court to green-light his appeal of an arbitration ruling that upheld the wishes of his ex-wife and allowed his two sons to remain unvaccinated. In an affidavit filed with the court, the father argues that family law arbitrator Herschel Fogelman based his ruling on “pseudo-scientific evidence” about the dangers of vaccines.

The father, who owns a marketing agency, insists his main concern is the well-being of his sons, now aged 8 and a month shy of 13.

“The fact that both boys have already suffered whooping cough (a vaccine preventable illness) and could be infected with measles just by standing in the same room as someone with measles is tremendously concerning to me,” his affidavit says.

The father began his vaccination battle when he and his ex-wife separated in January 2013. The dispute eventually landed before a family law arbitrator.

“Choosing not to vaccinate is not illegal, negligent nor immoral. It is a personal choice,” Fogelman ruled in April 2018. In Ontario, children can attend school unvaccinated only after their parents attend an education session at their local public health unit, and then sign an exemption form before a commissioner for taking affidavits.

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In his ruling, Fogelman stressed that his role was “not to decide whether vaccinations in general are harmful or beneficial,” but whether it was in the best interests of the two children.

“I can only compel vaccination if I find that the failure to do so has prejudiced the children or that it is truly in their best interests from a medical perspective to immunize them now. On the evidence before me, I cannot make those findings.”

The father couldn’t believe what he was hearing.

“I was shocked,” he says, sitting in a sunny co-working space, with exposed brick and ceiling-high warehouse windows. “I felt a sense of injustice.”

He had walked into the hearing without a lawyer, largely for financial reasons, but also thinking it was a slam dunk.

“I thought this was going to be an easy case,” says the father, who is originally from France. “I couldn’t imagine an arbitrator, who has the same power as a judge, going against the policy of the governments of Canada and Ontario, and going against the science. It was a big surprise.”

The shock didn’t end with the ruling.

A year later, the arbitrator ordered the father to pay his ex-wife legal costs totalling $34,833. It included an $11,000 fee she paid to fly in an American doctor who gave anti-vaccination evidence widely dismissed by the scientific community. The cost award is on top of the $20,000 the father says he spent on the three-day hearing.

The father missed the 30-day appeal deadline after the 2018 ruling — he says he was mainly waiting for the cost award — and is asking the court’s permission to file one late. If successful, he plans to appeal both the arbitration ruling and the cost award.

His legal attempt to get his sons vaccinated comes as the United States battles its largest outbreak of measles since 1994. The U.S. declared measles eliminated in 2000. But so far this year, the Centers for Disease Control and Prevention reports 704 confirmed cases of measles in 22 states.

In Greater Toronto, almost 30 per cent of all schoolchildren at age 7 are not fully vaccinated, according to data obtained by the Toronto Star. A March report by Toronto’s Medical Officer of Health, Dr. Eileen de Villa, estimated that 20 per cent of parents in Canada are “vaccine hesitant and are unsure about the safety and effectiveness of vaccines.

“Social media and the internet play a significant role in spreading misinformation about vaccines and have contributed greatly to vaccine hesitancy,” de Villa said in the report.

In January, the World Health Organization declared vaccine hesitancy one of the top 10 global health threats in 2019.

In his arbitration ruling, Fogelman said he placed “significant weight” on the fact that the couple did not vaccinate their children while they were married; that the father went along with his wife’s anti-vaccination views, even though he didn’t agree with them.

The father says he complied with his wife’s views at the time because “when you’re married you have to choose your battles.” Besides, when their first son was born in 2006, he says no one was talking about infectious outbreaks, unlike when the couple separated seven years later.

The mother did not respond to emails and a phone message from the Star requesting comment. (The Star is not naming her to help protect the privacy of her children.) Her lawyer at the arbitration hearing, Jaret Moldaver, said he could not comment because of “the confidential nature of the arbitration process.” He added he is not representing her in the appeal request.

In his submission, the father describes the arbitration hearing as unfair and argues the arbitrator “relied heavily on unreliable ‘expert’ evidence.” He claims Fogelman erred when he accepted Dr. Toni Bark and Shiv Chopra as experts. Both testified on behalf of the mother.

Fogelman described Bark and Chopra as “experts in the field” of immunization. “While their evidence may be controversial, their expertise is unassailable.”

In a 2017 court case in Oakland County, Mich., a judge ruled that Bark, a Chicago-based pediatrician, did not qualify as an expert on immunization. At the time, Bark noted she had administered thousands of vaccinations as a pediatrician and had witnessed their negative consequences. Fogelman described her CV as “extensive.”

Chopra, who died in 2018 at 84, was a scientist with the Canadian government best known as a whistleblower in the late 1980s, when he testified at a Senate committee about pressure to approve a drug to boost milk production in cows.

In his ruling, Fogelman noted that for a list of vaccines — against diphtheria and pertussis, HPV, mumps, measles and rubella, polio, and hepatitis A or B — Bark indicated that “the risks outweigh the benefits.” His ruling described at length Bark and Chopra’s arguments against vaccines.

“On the evidence submitted, I am unable to find any risk to (the children) if they remain unvaccinated,” Fogelman wrote, adding that vaccinations “may pose addition risk to them” if they inherited their mother’s genetic mutation preventing the breakdown of toxins.

The fact that both boys were diagnosed with whooping cough in January 2017 — five months before the arbitration began — didn’t sway Fogelman. He noted the boys recovered after treatment with antibiotics. “While one can assume that the vaccination would have prevented the illness, the illness itself was not fatal,” Fogelman wrote.

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The father says his concern went beyond the “weeks” of intense coughing fits his children experienced. He was in a new relationship by then, his partner in the early stages of pregnancy. Whooping cough in newborns can be fatal, and doctors recommend pregnant women get vaccinated to pass on protective antibodies to the baby before birth.

“We were in panic mode,” the father says. “My partner had to get a booster to protect herself and the baby.”

At the arbitration hearing, the father filed as an exhibit the federal government’s immunization guide, which describes vaccines as “a cornerstone of public health” in the prevention of infectious diseases.

In his appeal request, he notes that during an adjournment before the hearing’s final day, he obtained a letter of support from Dr. Alana Rosenthal, a Toronto pediatrician who specializes in infectious diseases. “There are no scientific studies that have shown vaccines to be harmful,” her letter stated.

The appeal request says Fogelman didn’t allow Rosenthal to testify and didn’t accept her letter as an exhibit. The arbitrator cited a violation of how and when expert testimony can be presented. The father disputes that in his appeal request.

The request includes evidence from Rosenthal and three other immunization experts, including Dr. Lawrence Loh, a professor at the University of Toronto’s Dalla Lana School of Public Health. The children “are currently at much greater risk from being unvaccinated than from being up to date on their vaccinations,” Loh says in the appeal submission.

In an interview, Dr. Natasha Crowcroft, chief science officer at Public Health Ontario, said settling vaccination disputes through legal means is problematic.

“If the (arbitrator) had said these children should be vaccinated, nobody would be comfortable taking children away from a parent and forcing them to be vaccinated,” says Crowcroft, who isn’t involved in the case. “Nobody wants to cause children distress.”

Still, she called the arbitration hearing “extremely disappointing” because it did not hear from experts countering the anti-vaccine information presented.

“The information presented was, frankly, wrong,” says Crowcroft, whose provincial agency was set up to give scientific advice to the government and health-care providers after the SARS outbreak. All the anti-vaccine statements made “are verifiably incorrect.”

“Vaccines are incredibly safe and we are monitoring that all the time,” she adds. “There’s no study that raises credible issues about safety that would make us think that vaccination was anything we would be concerned about.”

Side effects usually amount to a bit of a fever and a sore arm. The risk of a serious adverse reaction is about one in a million, Crowcroft says.

Crowcroft, who read the arbitration ruling, disputes statements made by Bark about specific vaccines, including her evidence of no benefits to immunizing for tetanus, since it’s treatable. Crowcroft notes a recent U.S. case where a child spent more than two months in intensive care with violent spasms.

“Tetanus is absolutely horrible, and the idea that you wouldn’t immunize for it in advance of developing tetanus is just totally wrong.”

While Bark acknowledged in her evidence that measles can lead to death in children, she described the risk as extremely rare and the disease as generally treatable in hospital.

“There is no treatment for measles,” Crowcroft insists. Most people fight it off in two or three weeks. She notes that in 2018, 82,000 people in Europe had measles — more than triple the year before — and 72 died, according to the World Health Organization.

Crowcroft also dismissed evidence that Fogelman described as “most compelling.” Bark testified that the mother has a genetic variation — known as MTHFR mutation — preventing the production of toxin-fighting enzymes. “Vaccinations pose a greater risk” to the children, Fogelman concluded, because they might have that mutation and risk harm from the toxins that shots contain.

Crowcroft says the risk due to that genetic mutation is so low that screening isn’t required. Besides, no evidence was presented on whether the children have it or the risks if they did.

She describes anti-vaccination advocates as “a small hard-core group with a very loud platform.” But she’s especially concerned about the need to better inform health-care providers.

“There are physicians and nurses who are hesitant about vaccines, and that is really problematic,” she says. “There are also physicians and nurses who haven’t had enough training to necessarily feel confident to counsel their patients.”

What needs to be stressed, she adds, is the power of herd immunity or, as she prefers to call it, community protection.

“You’re protected partly because you’re vaccinated and partly because everyone around you is vaccinated,” she says. “It’s like the reason we have rules of the road when we drive. I’m not just safe because I stop at the red light, I’m safe because when my light turns green others stop at the red light as well and don’t hit me.”

The father says his request for an appeal will be heard May 30. He feels a positive decision can’t come soon enough.

“For me to know that my children are not vaccinated, it’s not good for the community, it’s not good for them,” he says. “It’s dangerous.”

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