A Judge’s Call to Listen



March 1, 2022 | Tabitha Ewert

Without a doubt, the courts that have had the most work navigating Covid-19 are our family law courts. Whether it was one parent intending to leave the Atlantic bubble, a situation where one parent was in a polyamorous relationship trying to figure out how many households were involved, decisions around schooling and so much more. Most recently, courts have been grappling with what to do about parents who disagree over whether children should be vaccinated or not.

Justice Pazaratz heard just such a case on February 18th in Ontario dealing with a shared custody situation with three children ages 14, 12, and 10. The eldest child chose to be vaccinated with the support of both parents. The younger two, however, have not been vaccinated and do not want to be. The father wants the court to order them vaccinated and the mother opposes this.

Justice Pazaratz is concerned with our culture

The reason I wanted to draw your attention to this case, however, is not because of how the judge resolves the case, but because of the way he addresses the broader conversations we are having as a culture. You see the father in arguing his case accuses the mother of supporting the People’s Party of Canada, perpetuating Covid-related conspiracy theories and vaccine hesitancy, and sharing views questioning the efficacy of the government’s Covid-19 policies. And he gives these as reasons why she shouldn’t be the decision-maker.

Justice Pazaratz was not impressed with these arguments, saying: “How is any of this relevant? Have we reached the stage where parental rights are going to be decided based on what political party you belong to?… Can you simply utter the words ‘conspiracy theorist’ and do a mic drop?”

This is a court of law, not the court of public opinion

He goes on obviously unimpressed with the tact taken by the father and concerned about the broader cultural trends including in the courts, “We’re seeing more and more of this type of intolerance, vilification and dismissive character assassination in family court.  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. 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.”

Justice Pazaratz makes it clear: the important factor is not the parent’s political affiliation or beliefs, but the best interests of the child. And labelling something as a conspiracy theory or misinformation is not a shortcut to avoid dealing with the information presented. For example, one of the documents put forward by the mother was a fact sheet from Pfizer. Hardly a fringe source. Should it be dismissed just because it doesn’t support the father’s beliefs?

A lesson to us all: listen

This is the crux of why I think this decision is so interesting. We live in a time where we dismiss people before even hearing their reasons. This was on display over the past few weeks when our Prime Minister refused to listen to the convoy, but instead persisted in mischaracterizing them as racists, misogynists, and the like. With leadership like that, it’s hardly surprising that we see this play out all across the country.

But this approach ignores the actual people – image-bearers of God and worthy of respect. And is it not effective at drawing people into real unity and harmony as a country. Such an approach, whether by our Prime Minister or in the courts doesn’t lead to justice and harmony, but to division and oppression.

And it’s lazy. As Justice Pazaratz says so well: “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.’”

We’re all called to treat people better. Whether they are our brothers and sisters, our neighbours, people on social media, or parents in a legal matter. We would all do well to take Justice Pazaratz’s challenge to heart.

And, in case you were wondering, Justice Pazaratz concludes: “It’s irrelevant to my decision and it’s none of anyone’s business. But I am fully vaccinated. My choice. I mention this because I am acutely aware of how polarized the world has become. We should all return to discussing the issues rather than making presumptions about one another.”

It’s not a hard decision to read through and I’d recommend it. You can find it here.

Tabitha Ewert serves as the legal counsel for WNAL and ARPA Canada

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