Here are our Top 10 #LawTweets for the week of December 14, 2020.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Monday, December 14, 2020
Wise Law's Legal Headlines for the week of December 14, 2020
Friday, December 11, 2020
To Vaccinate or Not to Vaccinate: Which Parent Decides?
BY GARRY WISE, SIMRAN BAKSHI, AND JOSHUA PRIZANT
Reprinted from The Lawyer's Daily
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.
- Garry J. Wise, Simran Bakshi, and Joshua Prizant, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Monday, December 07, 2020
Wise Law's Top 10 LawTweets for the week of December 7, 2020
Here are our Top 10 #LawTweets for the week of December 7, 2020.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Wise Law's Legal Headlines for the week of December 7, 2020
Monday, November 30, 2020
Wise Law's Top 10 LawTweets for the week of November 30, 2020
Here are our Top 10 #LawTweets for the week of November 23, 2020.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Wise Law's Legal Headlines for the week of November 30, 2020
Here are our leading legal headlines for the week of November 30, 2020 from Wise Law on Twitter:
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Monday, November 23, 2020
Wise Law's Top 10 LawTweets for the week of November 23, 2020
Here are our Top 10 #LawTweets for the week of November 23, 2020.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Wise Law's Legal Headlines for the week of November 23, 2020
Here are our leading legal headlines for the week of November 23, 2020 from Wise Law on Twitter:
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Tuesday, November 17, 2020
Kids, classes and COVID: Case law regarding parental conflict over school attendance during pandemic
BY SIMRAN BAKSHI AND JOSHUA PRIZANT
Reprinted from The Lawyer's Daily
Reprinted from The Lawyer's Daily
Many separated and divorced parents have faced wrenching decisions about their children’s schooling this fall, due to the COVID-19 pandemic.
For many such families, agreement about schooling has been elusive, and unsurprisingly, there has been an explosion of case law on this topic over recent months.
This article will canvas this recent jurisprudence and highlight several factors that the courts have looked at when making back to school parenting decisions.
Government and school board decisions
Similarly, in J.E.S v S.S. (2020 ONSC 6064), the court was not compelled to transfer children to a different school district on the basis that the children's current school district a higher rate of confirmed COVID-19 cases. In declining the parent's request, Faieta J. expressed that the TDSB was taking enhanced measures to reduce the risk of contracting COVID in high risk communities.
By the same token, Shelston J. refused a parent's request to bar a child from taking the school bus. The Applicant argued, and the court agreed, that absent evidence to suggest otherwise, parents can rely on the school board’s decision that school buses were safe during COVID.
Relevant Tests
In what has become an oft-cited test, Akbarali J. in Zinati
v. Spence laid out the following factors when considering the best
interests of the child for schooling purposes:
ii. Whether the child, or a member of the child’s family, is at
increased risk from COVID-19 as a result of health conditions or other risk
factors;
iv.
Any proposed or planned measures to alleviate any of the risks noted
above;
v.
The child’s wishes, if they can be reasonably ascertained; and
Courts will also consider the relative risk involved
for the child’s family if they were to attend school in person. Absent an
unacceptable level of risk to the child
or their household, the court will lean towards
favouring the government’s decision to allow students back in school. In
J.N. v. A.S. (2020 ONSC 5292), Himel J. set out factors to consider when
assesing what constitutes an “unacceptable risk”:
(a) a
diagnosis for the vulnerable person;
(b) a
prognosis for the vulnerable person if he/she catches Covid-19 (if the medical
practitioner can provide same);
(c) any
available treatment that is relevant to the prevention and/or treatment if the
vulnerable person falls ill with Covid-19; and,
(d)
whether there are any precautions that can be put in place to enable the child
to attend in-person school without placing the vulnerable person at an
unacceptable risk of harm.
The courts have established that the best interests of
the child are “inextricably connected” to the well-being of the child’s
families. In Joachim v. Joachim (2020 ONSC 5355), and later applied in Manzon
v. Carruthers (2020 ONSC 6511), the court was clear that ordering online
learning because of serious family health concerns is not a deviation from, or
exception to, the best interests of the child.
Based on this emerging caselaw, below are five points
that parents and counsel should be aware of when dealing with the back to
school vs. home learning issue:
1. Child’s
learning abilities:
Courts have been cognizant of the ages and learning
abilities of the children. For younger children and children with demonstrable
learning differences, the court will likely determine that attending school
in-person is in the best interests of the child. One example is a child who has
been diagnosed with an Independent Education Plan (IEP).
2. Strong
medical evidence is crucial
Be prepared to show the court strong medical evidence
to support an argument either for against sending a child for in-school
learning. Some characteristics that the court will look for in medical evidence
include:
a) A
doctor’s diagnosis and prognosis;
b) The
date of the medical assessment;
c) Whether
there are conflicting reports between medical practitioners;
d) The “closeness” of a family member who may be at risk. For example, a court will likely rule that it’s not enough to keep a child at home because their school attendance poses a serious medial threat to their grandparents or other family members who are not part of the usual family routine or “social bubble”.
3. Be
flexible with your fellow co-parent
If one parent is unable or incapable of supervising
their child during school hours, a court will look favourably on a parent who
is willing to “trade” some of their weekends, evenings and holidays so that the
child can be in their care during school hours in order to facilitate online
learning.
4. Make
decisions together- or beware the consequences
If a child’s education falls under the purview of a
joint custody agreement, be prepared to show the court that the parents have
been collaborative in whatever decisions made for their child’s schooling. In Kaszap
v. Volk (2020 ONSC 6129), the court found a parent who unilaterally
enrolled their daughter in school without the consent of the other custodial
parent in contempt of court for violation of a court order mandating joint
decision making for their child’s schooling.
5. Limit
the court’s scope by agreeing on basic and uncontroversial facts
- Simran Bakshi and Joshua Prizant
Visit our Toronto Law Office website: www.wiselaw.net
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