Reprinted from The Lawyer's Daily
There has been
considerable encouraging news regarding the imminent release of effective COVID-19
vaccines. While this is undoubtedly news
we have all been waiting to hear, for some separated parents, the availability
of a COVID vaccine may reopen old differences relating to medical decisions for
their children.
Two recent
decisions provide a helpful hint as to how our courts might approach disputes between
parents about whether their children should be vaccinated.
In Tarkowski v. Lemeiux (2020 ONCJ 280), both parents argued at trial for sole custody
of their 6-year old daughter. The Court ultimately granted custody to the
mother with the proviso that the father would have custody over all vaccination-related decisions.
Justice Jones’
noted evidence that mother had a checkered history regarding her child’s
vaccinations, including a belief that vaccines might be linked to autism or
immune system problems. The Court pre-emptively granted the father
decision-making power with respect to vaccinations, after considering
the prevalence and impact of the COVID-19 pandemic. Notably, this decision-making power granted included
the authority to vaccinate the child with a future COVID-19 vaccine.
The Court approached this issue with an eye towards the greater public’s health
in addition to the child’s health. As Justice Jones stated at para 74,
“Since children and
young people often show little or no reaction to the virus, a decision to
vaccinate a child may be informed by a public health concern that COVID-19 is a
virus that is easily spread and which disproportionately harms older people,
and people with challenged immune systems. Ultimately, a decision to vaccinate
[the child] may be a decision to protect other vulnerable people against [the
child] spreading the disease. “
In another
recent decision, B.C.J.B. v. E.-R.R.R. (2020 ONCJ 438), the Court heard
a motion that addressed a father’s request to be granted decision-making
authority over having their child vaccinated.
At the heart of the
dispute was determination of the applicable test for transferring decision
making authority over vaccinations from one parent to the other, prior to a
trial of the issue. The father argued that the test was the “best interests of
the child”, while the mother, who had sole custody of the child pursuant to an
early parenting agreement, argued that in order to change the status quo, the
father needed to establish “exigent circumstances.”
The Court ultimately
held that since this was not a variation case, the focus ought to be on the
best interests of the child. The crux of the father’s argument in support of
vaccinating the parties’ son, was that the child, who had not been vaccinated
in accordance with the standard Ontario vaccinations for children of his age,
was at an elevated level of risk due to the pandemic, and the best interests of
the child therefore necessitated a ruling pre-trial.
The motion judge, Finlayson J., ruled in favour of the
father, stating at paragraph 124, “I find the child is already exposed to risk
by not being vaccinated as it is. It is not an answer to argue that the
child has not contracted a disease during the last 10 years, so what’s the harm
in waiting a few more months to trial. This, in effect, is what the
mother argues. If it is in the child’s best interests to act now, then
the Court should intervene.”
The motion
judge very deliberately stated that the father’s pre-trial vaccine powers did
not extend to a COVID-19 vaccine, which
would need to be addressed at trial.
We are advised that an appeal from this decision is pending.
A takeaway for counsel from these cases is that once a COVID-19 vaccine
is released, the best interests of the child will most likely determine whether a child should be vaccinated, irrespective of the de facto custodial
parent’s personal views on
vaccinations.
It remains to be seen how
the court will balance consideration of a child’s best interests with broader the
public health interests and the prevalence of anti-vaccination beliefs, but
these two cases point in the direction of a likely, wider judicial affirmation
of the necessity of Covid-19 vaccination for children, even where one parent
objects.
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