As countries race to approve a vaccine for COVID-19, separated and divorced parents will be faced with the difficult decision of whether or not they will receive the vaccination for themselves and ultimately their children. Vaccinating children is a controversial issue that predates COVID-19 and continues to flood the news provincially and nationally. In Alberta, vaccines are not mandatory or legally required and parents are at liberty to choose whether or not to vaccinate their children.  However, currently s. 38(1)(c) of the Public Health Act of Alberta does allow the provincial government to mandate vaccines in the case of a health emergency but this legislative authority has never been exercised: https://www.qp.alberta.ca/documents/Acts/P37.pdf.

When divorced or separated parents have “joint custody” it means they have joint decision making authority with respect to important decisions for their children.  The list of decisions that require the joint agreement of both parents usually include major medical decisions.  This involves cooperation from both parents to make decisions that are in the child’s best interests. This becomes more complicated when parents disagree on whether vaccines are safe or appropriate for their child.  When separated parents are at an impasse on an issue of this level of importance, the Court, or another decision maker such an arbitrator, may have to make a binding decision.  This leaves the Court or decision maker in a difficult position.  The Court must weigh competing expert testimony and information from the parents to ultimately decide what is in the best interests of the child(ren).   In extreme circumstances, one or both parents may lose the ability to make decisions with respect to their children’s medical care.

This issue recently arose in a family Arbitration matter in Ontario.  The Arbitrator issued an award in favour of the mother who did not want the parties’ children to be vaccinated. Interestingly, during the Arbitration, the children contracted whooping cough, which is one of the diseases that routine vaccinations offer protection from.  In reaching its decision, the Arbitrator preferred the evidence of a medical doctor, who supported anti-vaccination positions.  Notably this medical doctor’s opinion had previously been rejected by the Provincial Court of British Columbia in an earlier family law case.  in the Ontario arbitration matter, the father has recently been given leave to appeal the Arbitrator’s decision in the Court of Queen’s Bench.  The Medical Officer of Health for the City of Toronto has also been granted leave to intervene in the appeal.  We will provide further updates as this matter proceeds through the courts.

Overall, the Courts have generally found in favour of the parent who seeks to vaccinate their children.  As with all issues affecting children, the Court’s duty is to determine the individual child’s best interests, while considering any medical expert testimony.  There are a handful of cases in which the court determined that the child should not receive vaccines.  The Alberta case of Chmiliar v. Chmiliar, 2001 ABQB 525 involved a 13 year old child.  The Court determined the child had the capacity to consent to medical treatment.  The Court also took into consideration the child’s fear of being vaccinated.  Interestingly, the Court required the child’s younger siblings to be vaccinated.  This is consistent with the trend in family law parenting decisions that, as children get older their voice and opinions can be a factor in the Court’s decision. 

COVID-19 has forced this issue to the forefront.  In the coming months families across Alberta and Canada as a whole will be faced with the decision of whether or not to vaccinate their children against COVID-19.  The following recent decisions shed light on how courts may address the issue of vaccines:

• B.C.J.B. v. E.R.R.R., 2020 ONCJ 438  involved a 10 year old child who had never received the routine childhood vaccines.  The father sought an Order seeking decision making authority to have the child vaccinated.  He raised concerns that, should the child contract a vaccine-preventable disease he may be more vulnerable to COVID-19 due to potential compromised immunity.  Ultimately, the court granted the father decision making authority with respect to publicly funded vaccine available to the child. The Court stated that the father’s authority does not extend to a future COVID-19 vaccination, if and when, one became available.
• In Tarkowski v. Lemieux 2020 ONCJ 280, the Ontario Court of Justice was challenged with determining the suitability of vaccinations for a 7 year old child.  The mother had sole custody and decision making authority with respect to the child.  The mother had initially refused to consent to the immunization of the child.  Although she later began the process of having the child vaccinated, she ultimately delayed and the Court determined that she continued to show hesitancy.  In contrast, the Court determined that the father understood the risks to the child and others if the child was not vaccinated.  The Court empowered the father to make health decisions about future vaccines and also granted the father the sole authority to decide whether or not the child would receive a COVID-19 vaccination, if and when, one became available.
• In B.L.O v. L.J.B., 2019 ONCJ 534 the Court heard evidence from a pediatric infectious diseases expert who supported the father’s wish to vaccinate his child.  The expert testified that routine childhood vaccines are safe and effective, and that the risks are low and manageable.  The expert gave evidence that the benefits of immunizations far outweigh the risks of not vaccinating.  In contrast, the mother tendered evidence obtained from the internet and chose not to file any expert evidence.  The Court accepted the father’s position and the expert evidence and determined that the child should be vaccinated.

In recent weeks, various pharmaceutical companies have revealed positive data with respect to the efficacy of their COVID-19 vaccinations. As a COVID-19 vaccine becomes available to Canadians, parents will be faced with the difficult decision of whether to vaccinate their children.  If parents are unable to reach an agreement on important medical decisions such as this, they may require the Court to step in and make vital decisions for them. 

Are you divorced or separated and unable to agree with your co-parent on whether to vaccinate your child(ren)?  If so, the lawyers at SVR Family Law can provide you with the necessary information and advice to help. 

This information is provided to you by the Calgary Divorce and Family Law Lawyers at SVR Family Law.