Written on behalf of Long Shariff & Associates
Vaccinations in general have increasingly become a point of controversy in recent years, but the pandemic and the related efforts to vaccinate as many people as possible has shone a light on the issue. With the COVID vaccines approved in Canada for people as young as twelve, the issue has become a common point of disagreement between parents who share decision-making ability over their children post-separation or divorce.
When disputes arise between co-parents, the hope is that they will be able to work together to find a compromise that each person can agree to. However, certain issues, such as whether or not to vaccinate a child, don’t lend themselves to finding a middle ground. In addition to requiring a firm yes or no decision, the choice to vaccinate oneself or one’s children against COVID seems to be particularly polarizing, with strong opinions on both sides. Compromise is not really an option in this case if parents disagree. So, if co-parents are at a stalemate on this issue, who gets to make the decision?
Bests Interests of the Child Will Guide Parenting Orders
In a dispute involving decision-making rights with respect to a child, family courts will look to the best interests of the child to guide their decision. As a guideline of how to determine what might be in a child’s best interests, Canada’s Divorce Act enumerates several factors courts must consider, including:
- The child’s needs, considering their age and stage of development
- The history of the child’s care
- The child’s views and preferences, increasing proportionally with the child’s age and level of maturity
- The ability and willingness of each parent to care for and meet the child’s needs
Ontario Law Regarding Childhood Vaccination in General
In Ontario, children who attend primary or secondary school are required to obtain vaccinations for the following illnesses, unless they have a valid exemption:
- Whooping cough
- Chickenpox (for children born in 2010 or after)
The COVID-19 vaccine is not mandatory; however, it is strongly encouraged for all eligible residents of Canada, including children aged 12 and up.
Childhood Vaccinations and Ontario Family Courts
There is yet to be any significant jurisprudence on the issue of vaccinating a child against COVID-19, but there is a history of decisions pertaining to the vaccination of children in general. One recent decision of the Ontario Superior Court of Justice, A.P. v. L.K., reviewed an arbitrator’s decision in a dispute between parents with respect to vaccinating their children in accordance with the standard schedule of childhood immunizations.
In arbitration, the mother had argued for maintaining the status quo of not vaccinating their children, while the father wished for their children to receive the recommended vaccinations in accordance with provincial health guidelines. The mother claimed that her children had underlying medical conditions which made vaccination unsafe, and introduced evidence in the form of a series of expert witnesses who claimed that vaccinations were not properly tested or safe in general. The father, who was self-represented, introduced evidence that vaccines were safe and effective, and disputed the mother’s claims about their children’s underlying conditions. He also demonstrated that the children’s family doctor had recommended they get immunized. The arbitrator found for the mother, and awarded her with sole decision-making authority with respect to vaccinating the couple’s children.
The father appealed the decision, and the court found that the mother’s expert evidence had largely consisted of contested science, and reversed the decision. The father was awarded sole decision-making authority over the children’s vaccination schedule, and the right to choose the children’s physician. Further, the mother was ordered not to tell the children that vaccinations were unsafe or untested, or that vaccinations posed any particular threat to the children.
The Court ultimately concluded that vaccination was in the children’s best interests, stating:
The appellant’s plan is appropriate because it addresses an unnecessary risk the children currently face: illness, permanent health consequences, or death, from vaccine-preventable diseases. It does so in an appropriate way – through the administration of vaccines that are properly tested, and have been found to be safe and effective, with only minor side effects, in accordance with medical advice. Vaccinating the children is a safe way to protect them against unnecessary and serious risks.
Court Allows Father Decision-Making Ability Over Vaccination Issue In Light of COVID-19
In another recent decision, B.C.J.B. v. E.-R.R.R., a father wanted the ability to have his child vaccinated due to the threat posed by COVID-19. While the decision concerned non-COVID vaccinations, the standard childhood immunization schedule in Ontario, the issue was raised due to the father’s worry that his child may be more vulnerable to COVID if he were to become infected with a vaccine-preventable illness.
In its review of earlier cases on the vaccination issue, the court found that historically, courts tend to view the standard childhood vaccinations as being in the best interests of a child, so long as there are no medical reasons to decide otherwise. Given that, courts may tend to grant decision-making authority over this issue to a parent who wants their child to be vaccinated. As such, the father, in this case, was also given authority to determine whether his child would be vaccinated, noting that an unvaccinated child was at an elevated risk of contracting COVID-19, or suffering more severe symptoms if they did.
Of course, this may vary case-to-case, and this same standard may not apply to a newer vaccine, such as the COVID-19 vaccine, in all cases. It remains to be seen how courts will decide this issue going forward.
Contact Long Shariff & Associates in Stouffville for High-Conflict Parenting Disputes
At Long Shariff & Associates, we understand the impact an emotional and fraught parenting dispute can have on a family, particularly the children involved. As such, our family lawyers will work to bring about an agreement or solution that is fair and appropriate to your specific circumstances, while minimizing conflict whenever possible. To speak with a member of our family law team about your situation and your goals, please reach out to us online, or call us at 905-591-4545.