With Canada deep in the third wave of the COVID-19 pandemic and numbers largely worse than they’ve ever been, many are pinning hopes on an increase in vaccinations to enable us to get back to some sense of normalcy. However, vaccinations have long been a source of controversy for some, with some people feeling that vaccinating children against various illnesses creates an undue risk. Now, the particularly urgent nature of the pandemic is shining a bright spotlight on this issue for parents.
With many parts of Canada facing the worst infection rates to date in the COVID pandemic, vaccinations are a focus for many. Despite supply shortages and frequently evolving eligibility requirements, many people are beginning to look ahead to when they will be permitted to take part in their local vaccine program.
However, parents who share access and decision-making ability for their children may be feeling a sense of anxiety around the pending event if they disagree on whether or not their children should receive a vaccination. If there is a fundamental divide between the parents on this issue, what will the law have to say about it? To date, there have not been court rulings with respect to the COVID vaccine specifically, however, some existing decisions may demonstrate how courts in Canada will decide should parents be at odds over the COVID vaccine for their kids.
Despite other provinces doing so, the Alberta government confirmed in 2019 that it would not make the standard childhood immunization schedule mandatory in the province. This means that children whose parents had opted out of vaccines against measles, mumps and rubella or other illnesses would still be permitted to attend school.
The provincial Public Health Act does contain a clause (s. 38.1(c)), however, allowing the Lieutenant Governor in Council to order immunizations in the event that a “communicable disease…has become or may become epidemic or that a public health emergency exists”. This has not yet been exercised in Alberta, but the potential for such an order could come if it is deemed necessary.
When considering any parental dispute over the care of children, courts are required to consider, above all else, the best interests of the children in question. In addition, the older a child is, the more the courts are likely to consider the child’s preferences as well. This was demonstrated in a 2001 Alberta decision, in which the mother preferred her children not be vaccinated. Their oldest child was 13 at the time and was hesitant about getting vaccinated as she shared her mother’s concerns. While the court ordered vaccinations for the younger children, the older child was permitted to make her own decision.
In most decisions, courts appear to generally side with parents who seek to vaccinate their children. An arbitration decision made headlines for taking the opposite position when the parents disagreed and the mother brought in multiple medical experts from the U.S. to back her position against vaccinations. The experts she consulted had drawn controversy for their positions that vaccination was dangerous for children. Ultimately, the arbitrator did side with the mother, denying the father’s request to mandate immunizations. However, just this year, the decision was overturned by an Ontario court. The Court specifically questioned the qualifications of the experts the arbitrator relied on, citing their lack of knowledge of Canadian immunizations.
In some cases, courts have considered expert opinion showing that in most cases, the benefits of vaccinations outweigh any risks they may present. However, some courts also view the COVID vaccine as a different matter than the standard childhood vaccination schedule.
In a 2020 Ontario decision, the father wanted his daughter to get the regular childhood vaccinations at age 10, concerned that her exposure to diseases such as measles could make her more vulnerable to COVID-19. The mother was staunchly anti-vaccination and did not want her daughter to get any of the vaccinations generally recommended for young children. The court sided with the father, granting him sole decision-making authority with respect to the vaccine issue, but notably did not extend this authority to a COVID vaccine, if and when it became available.
Given that children are not yet a priority for the COVID vaccine in Canada, the specific issue of parental disagreement over getting their children vaccinated against the illness has not yet arisen in court. However, we will continue to follow the issue and provide updates if an when there is any jurisprudence on the matter.
The family law lawyers at Mincher Koeman are exceptionally experienced with respect to parenting plans and child access arrangements following the breakdown of a relationship. Contact our office today by calling us at 403-910-3000 or contact us online.
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