The decision to obtain one of the available COVID-19 vaccines is an individual choice. However, over the past few months, several policies have been put in place across the country that can limit a person’s activities or even employment prospects if they opt-out of the vaccine. In determining whether to uphold these policies, courts are attempting to strike a balance between the right of the individual to make their own medical decisions, while limiting the risk presented to others as a result of such a decision.

Recently, in two separate family law cases in Ontario, courts had to determine whether parenting time should be restricted for unvaccinated fathers. In one case, the father was unwilling to be vaccinated due to religious reasons and in the other, the father claimed he had a medical exemption.

Father Unvaccinated citing Religious Exemption, Mother Concerned about Child’s Safety during Parenting Time

In L.S. v. M.A.F., a mother sought an order that the time her four-year-old daughter spent with her father be supervised due to his unwillingness to become vaccinated. The father cited religious reasons pertaining to his Rastafarian faith as the reason he could not get the necessary shots and wanted to continue in-person access with his daughter. The father had only had occasional access to his daughter before the court hearing, however, he sought to increase that time to two days per week, as well as holiday time and occasional overnight visits. The father lived with his father, who was also unvaccinated.

The mother, citing concerns that her daughter’s risk of infection from COVID-19 could be increased with unsupervised time with her father, sought an order for supervised access only. Despite the father’s assertion that he had a legitimate religious belief that prevented him from getting the vaccine, he had not made any attempts to obtain an official exemption.

Court Permits Parenting Time but Orders Specific Safety Protocols during Visits to Reduce the Risk of Contracting COVID-19

The Court, finding that it was in the child’s best interests to maintain ongoing contact with her father, opted not to restrict the father’s time with his daughter unnecessarily. However, to afford the child maximum protection from infection, the Court did place several restrictions on the visits themselves, including:

  1. The visits were to occur outdoors or at his paternal grandmother’s home, as the paternal grandmother was vaccinated.
  2. The child was not permitted to visit the father at his home.
  3. Both the child and the father were required to wear masks for the duration of each visit.
  4. The child was not to be exposed to any adult, besides her father, who was not vaccinated during the father’s parenting time.
  5. The father was obligated to notify the mother and make new arrangements if he was experiencing symptoms of COVID-19, was exposed to anyone else with symptoms, or had tested positive for COVID-19.

The Court also noted that the first three restrictions would be lifted if the father was to become fully vaccinated.

Father Unvaccinated citing Medical Exemption, Mother Seeks to Suspend Parenting Time

In another Ontario case, A.G. v. M.A., a mother sought to suspend her child’s in-person parenting time with the child’s father due to his status as unvaccinated, citing health concerns specific to their daughter. The father had obtained the first dose of the vaccine in July, however, claimed he could not get the second dose due to a severe allergic reaction. As evidence, he provided a note from a medical practitioner which stated, in its entirety:

“This patient is exempt from taking the second dose of the COVID vaccine due to a severe allergic reaction to the first dose of the vaccine.”

Court Finds Father’s Medical Exemption Does Not Meet Provincial Requirements

The mother noted that the child, who was two years old at the time, had certain medical conditions which made her more susceptible to infection. In reviewing the father’s medical exemption in light of provincial regulations, the Court found the exemption lacking. Ontario regulations for medical exemptions require that medical exemptions should only be provided after a physician had reviewed a detailed medical history for the patient. In this case, the letter lacked any kind of analysis to support the doctor’s conclusion.

Court Does Not Restrict Parenting Time but Orders Access Restrictions

In trying to balance the child’s best interests which include ongoing contact with both parents, the Court did not fully suspend the father’s parenting time. However, it placed several restrictions on the father’s access, including:

  1. All parenting time between the father and his child was to take place outdoors.
  2. The father’s time was reduced from two hours per week to one hour.
  3. If the weather was not appropriate for outdoor visitation, the mother was to notify the father four hours before the visit that the parenting time would revert to virtual time for that week.

The father was informed that he could apply for a variation of this order should he become fully vaccinated in the future.

Contact Mincher Koeman for Dedicated and Skilled Representation in Parenting Matters

COVID-19 continues to have far-reaching implications for parents who are separated or divorced. From disputes on whether to vaccinate minor children, to parenting time, Canada’s courts will likely continue to face these types of decisions for months to come. If you are facing a COVID-related parenting dispute, we can help.

At Mincher Koeman in Calgary, we practice family law exclusively. Our divorce lawyers represent clients in all types of parenting matters, ranging from amicable to high conflict. We are committed to providing impeccable service with efficiency, honesty, and empathy. To discuss your matter with one of our Calgary family lawyers, call us at 403-910-3000 or contact us online.

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