With children five years and older now eligible for the COVID vaccine, some separated parents who cannot agree on vaccinating their children are ending up in court.
On November 19, 2021, Health Canada approved the use of a lower dose Pfizer-BioNTech COVID-19 vaccine for use in children aged five to eleven years of age. It had already approved the Pfizer vaccine for use in children aged twelve to seventeen years.
To say vaccination status has been a polarizing topic is an understatement. Some family members are not speaking to each other. Some employers are terminating employees who refuse to follow the workplace vaccination policy. And communities are divided.
And what about separated parents who have joint decision-making authority but cannot agree on whether their children should be vaccinated?
In a few cases across Canada, the courts have grappled with this question, including one case in Alberta. Before we dive in though, let’s take a step back. First, the principal guiding any decision about children is Canada is what is in the best interests of the child, not what the parents or anyone else wants. Second, the courts have dealt with childhood vaccine issues long before COVID became a thing. In most cases, the courts decided in favour of the parent requesting authorization to vaccinate the children. And these COVID cases are no different.
Saskatchewan’s OMS v EJS
In September 2021 in the case of OMS vs EJS, the father applied for an order authorizing him to have a 12-year-old daughter vaccinated against COVID.
First, the court had to contend with heaps of documents, including affidavits from both parents and medical professionals. It did not seem too impressed to do so!
As part of the best interests of the child analysis, the court considered the daughter’s views and preferences. The mature minor doctrine requires that the court consider whether a child is mature enough to make their own decisions. In this case, the court found the daughter to be mature but held that she was deciding not to be vaccinated because of the influence of her mother and paternal grandparents. Thus, the court decided the child was not speaking independently.
The court also took judicial notice of several facts related to COVID. Judicial notice allows a court to accept the truth of a fact or situation without requiring proof. The mother’s counsel was not on board with the court doing so, and instead asked the court to keep an open mind and consider evidence provided about COVID. The court decided it could take judicial notice of a few things without any evidence to support its conclusion, including:
- Canada has been in a pandemic which has led to health and other restrictions to control the spread of the virus.
- The possibility of getting the virus poses a serious and significant health risk to people.
- The Pfizer vaccine is safe and effective for use in people given the vaccine approval process in Canada and approval by health authority. The court noted that to argue the vaccine “is experimental as is put forth by the mother and her supporting affidavits is not in accordance with the general knowledge available regarding this approval process and implementation” (para 113).
Finally, the court concluded “in light of the determinations concerning Covid-19, its effects, and the need to be vaccinated to avoid these effects” (para 119), it was in the daughter’s best interest to be vaccinated. The father could arrange for vaccination without the mother’s consent. However, the court did note the vaccination could only be completed following further advice from the child’s family physician and endocrinologist (given her diabetes diagnosis).
The parents also have a younger son. I wonder what will happen now that he may be of age to be vaccinated as well?
Ontario’s Saint-Phard v Saint-Phard
In the October case of Saint-Phard v Saint-Phard, a 14-year-old boy’s father was for and mother against vaccination.
In this case, the court also took judicial notice of several facts related to COVID, including:
The applicable government authorities have concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to be vaccinated. (para 7)
The mother provided a letter from a doctor saying the child should not have the vaccine because he had asthma and the vaccine is experimental. The court rejected this opinion given that it countered judicial notice taken about the vaccine.
The court also looked at the child’s preferences. The mother said the boy did not want the vaccine while the father said he did. Again, the court found both parents were influencing the child with misinformation.
Thus, the court concluded the child should be vaccinated and gave the father sole parental decision-making authority to do so. Interestingly, the court also ordered the mother not to make comments to the child (or to someone else to make to the child) about the vaccine being untested or unsafe or that he is at risk. This included showing him any websites or other materials about the vaccines.
See also the Ontario court’s decision in AC v LL, also entitling the children to the vaccine. In the end, both parents agreed their 14-year-old triplets were capable of deciding on their own whether to get the vaccine.
Alberta’s TRB v KWPB
On December 14, 2021 in TRB v KWPB, the Alberta Court of Queen’s Bench decided in favour of vaccination for two children, aged 10 and 12. This case follows the latest round of approvals for children aged five to eleven.
In this case, the mother was for vaccination and the father against. The mother was asking the court to vary the parenting order to give her sole decision-making authority on all medical and health-related issues, including the COVID vaccine.
Of course, the court considered the best interests of the children. The court decided the mother should not have sole decision-making authority over all health issues as the parents had made these decisions jointly before. Instead, the court gave the mother the deciding vote if they were at odds (which seems a lot like sole decision-making authority). The court also gave the mother authority to have the children vaccinated without the father’s consent, and sole decision-making authority over all COVID-related health decisions. The father’s position of ‘waiting to see’ was not in the children’s best interests.
The mother proposed to make sure the children were emotionally ready for the vaccine. However, the court did not make any specific order about this. But the court did go on to order that, like in Saint-Phard v Saint-Phard:
- the father not discuss or allow anyone else to discuss the vaccine or COVID generally with the children, or give information about the vaccine or virus to the children
- neither parent discuss the litigation with the children, and
- neither parent speak negatively about the other in front of the children, generally and with respect to COVID.
I am sure there will be many more cases on this issue. But given the trend of the case law so far, parents advocating against vaccination will have to bring something big to the table to succeed.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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