Health Canada has approved certain COVID-19 vaccines for children aged 5 and up; and for many, this is good news and a glimmer of hope that things will soon return to the pre-COVID norm.
However, for other separated or divorced parents, this may cause new legal challenges. Unlike many other parenting issues, it is impossible to make concessions or reach a compromise on an issue like vaccination. A child is either vaccinated or not; there is no in-between. So, what do parents do in situations where they cannot agree on whether their children should be vaccinated against COVID-19?
Sole Decision-Making or Joint Decision-Making
If a parent has sole decision-making responsibility (formerly referred to as “sole custody”) over all major decisions that pertain to the child or just medical/health decisions, that parent could simply choose to vaccinate their child or not, without the other parent’s consent or agreement. Generally speaking, the parent with sole decision-making responsibilities should provide notice of their intention regarding a major decision to the other parent, and they should also make an attempt to discuss the issue with the other parent before making or finalizing a decision. And if the other parent takes issue with this decision, they could potentially seek court intervention.
However, for parents that share decision-making responsibility (where they have joint decision-making rights or “joint custody”) and disagree about this issue, their only recourse may be via litigation.
Best Interests of the Child is Primary Consideration
Courts in Ontario and throughout Canada have been fairly consistent in how they deal with questions of whether a child should be vaccinated against COVID-19. The primary consideration remains the “best interests of the child”. When tasked with figuring out whether it is in the child’s best interests to be vaccinated against COVID-19, judges and courts will consider several factors, including the child’s age, health, and whether the child has any particular medical needs.
Government and Public Health Recommendations
A substantial factor in any vaccine-related determination by the court will be the government’s recommendation at the time. At present, judges have generally deferred to scientists, doctors, and public health officials and have accepted the government’s recommendation that it is generally in the best interests of children to be vaccinated, subject to a specific child’s health condition and/or vulnerabilities. This is reflected through cases coming out on this issue in Ontario and all throughout Canada.
Court Decisions on Vaccination Disputes
In the October 2021 case of Saint-Phard v. Saint-Phard, the Ontario Superior Court Justice decided in favour of the father who wanted to have the parties’ 14-year-old son vaccinated against COVID-19. The court found that it was in the child’s best interests that he be vaccinated. In this case, the court took judicial notice regarding the safety and efficacy of publicly-funded vaccines, and the fact that the Ontario Ministry of Health has approved certain vaccines for children ages 12 years and older. Costs were ordered against the mother in the amount of $2,000.
Similarly, in the case of A.P. v. L.K., the Ontario Superior Court Justice again accepted government recommendations on vaccinations for children, and found in favour of the father who wanted to vaccinate the children against COVID-19. The court’s judgment overturned a previous decision by a family arbitrator in favour of the mother, who did not want the children to be vaccinated.
Contact GDH Family Law in Vaughan for Advice on Decision-Making Responsibility & Vaccinations
GDH Family Law provides reliable advice for parents who are unsure of their decision-making responsibilities and rights, whether regarding COVID-19 vaccinations or otherwise. We are based in Vaughan and represents clients throughout Maple, Concord, Woodbridge, Markham, Kleinburg, Richmond Hill, Nobleton, Toronto, Newmarket, Aurora, Brampton, Caledon, Mississauga, Etobicoke, North York, Thornhill, and King City. To request a free initial consultation with a family lawyer about parenting issues or any other family law matter, contact us at 416-535-6944 or reach out online.