Toronto Star

Divorced dad goes to court for right to vaccinate kids

Family law arbitrator’s ruling in mother’s favour based on ‘pseudo-scientific evidence,’ father says


Arnaud Presti has taken his battle to vaccinate his children to Superior Court.

This week, the Toronto father 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, Presti argues that family law arbitrator Herschel Fogelman based his ruling on “pseudo-scientific evidence” about the dangers of vaccines.

Presti, who owns a marketing agency, insists his main concern is the wellbeing of his sons, now aged 8 and a month shy of 13.

“The fact that both boys have already suffered whooping cough (a vaccinepre­ventable 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.

Presti 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.

“Choosing not to vaccinate is not illegal, negligent nor immoral.


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. 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.”

Presti couldn’t believe what he was hearing.

“I was shocked,” he says. “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 Presti, 47, 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 Presti 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 Presti says he spent on the three-day hearing.

To finance his court appeal, Presti launched a gofundme campaign that has so far raised more than $11,000. He 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 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 top10 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 Presti went along with his wife’s anti-vaccinatio­n views, even though he didn’t agree with them.

Presti 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.

Presti’s ex-wife 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, Presti 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 Presti’s ex-wife.

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 Chicagobas­ed 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.

Presti 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,” Presti says. “My partner had to get a booster to protect herself and the baby.”

At the arbitratio­n hearing, Presti 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. Presti 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. Presti’s 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 Presti’s 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.

“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 Presti’s ex-wife has a genetic variation — known as MTHFR mutation — preventing the production of toxin-fighting enzymes. “Vaccinatio­ns pose a greater risk” to Presti’s 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 hardcore 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.”

Presti 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.”

 ?? RICK MADONIK TORONTO STAR ?? Arnaud Presti, who’s fighting to get his kids vaccinated, says the arbitratio­n was unfair. His appeal request will be heard May 30.
RICK MADONIK TORONTO STAR Arnaud Presti, who’s fighting to get his kids vaccinated, says the arbitratio­n was unfair. His appeal request will be heard May 30.

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