The pandemic has created a host of issues for co-parents of minor children, from concerns about shared parenting time when one parent remains unvaccinated, disputes over when a child should return to in-person schooling, to parents disputes over whether to vaccinate minor children. In many of these cases that have made their way before a judge, the resulting decisions will pertain to specific issues such as guidelines for parenting time, or the question of vaccination against Covid. However, in a recent case before the Court of Queen’s Bench of Alberta, the positions of the mother and father were so opposed that the Court granted one parent complete control over all medical decisions pertaining to the child in question.

Parents Disagree on Medical Care for their Immunocompromised Child

The parents in the case at hand, TLM v. JTM, were in disputes over their child’s medical care since April 2021. The parents were formerly adult interdependent partners, and they shared one child, a nine-year-old son. The child had asthma and was also diagnosed with B-Cell Acute Lymphoblastic Leukemia in 2019. Since his diagnosis, he had been consistently undergoing a lengthy chemotherapy treatment protocol which was set to continue until September of this year.

The child was pronounced to be in remission in 2019, however, ongoing treatment was recommended to prevent a relapse of the illness. The child received in-person treatment once every three months at the hospital and took an oral chemotherapy capsule daily under the care of each of his parents. The parents shared both parenting time and decision-making ability.

Despite Father’s Reluctance to Follow Prescribed Medical Protocols, Court does not Revoke his Decision-Making Ability

In April of 2021, the mother applied to revoke the father’s decision-making ability with respect to their son’s medical care after the father began to express a reluctance to follow the prescribed medical protocol. The mother submitted that the father claimed cancer was “fake” and had been invented solely to enable pharmaceutical companies to make money. He wanted to stop the daily medication and seek treatment from a naturopath instead. At the time, the court chose to continue shared decision-making ability but made an order that the mother could have daily FaceTime contact with the child when he was in his father’s care, to ensure he took his medication.

Father Demands Assurances Before Providing Consent to Vaccinate

The child’s medical team, including his family doctor and his oncologist, strongly recommended he be vaccinated against Covid-19 due to his immunocompromised status. The father objected to vaccination and went so far as to tell the mother that if she were to have their son vaccinated, she would be “harming [the father’s] property”. The father also shared his negative views of the vaccine with the child, resulting in the child’s fear of getting vaccinated. The mother brought a new application to vary the previous order by removing the father’s decision-making ability over their son’s medical treatment.

A Material Change in Circumstances

In order to vary the existing order, the mother had the onus of demonstrating that there had been a material change in circumstances since April 2021. The court found that the mother satisfied this requirement in the following ways:

  1. At the time of the original order, the court did not foresee that the father would refuse recommended vaccinations for the child; and
  2. The Omicron variant of Covid-19, which is known to have higher transmissibility rates, was not a factor.

Since the original order, the father had also breached his duty to follow the advice of the child’s doctors, by missing a scheduled appointment at the hospital just after the December holidays.

Court Determines It Was in the Child’s Best Interests to Award Sole Medical Decision-Making Ability to the Mother

Ultimately, a child’s best interests will be the determining factor in any decision pertaining to a child’s wellbeing under s. 18 of Alberta’s Family Law Act. In conducting the best-interests analysis, the court considered that the National Advisory Committee on Immunization had strongly recommended that all children aged 5-11 with conditions that compromise their immune systems be vaccinated against Covid-19. While the court held that the vaccine was not a “magic bullet”, medical experts had come to the conclusion that it would give an immunocompromised child the best chance of survival in the face of the ongoing pandemic.

Further, the court took the origin of the father’s claims into consideration, as well as the fact that the father had created fear around the vaccine for his child:

The Father’s position with respect to vaccination is based on misinformation and conspiracy theories. His willingness to share this with the Child and cause him to fear the vaccine, further demonstrates that he is not able to make decisions in the Child’s best interests…The Child is young and vulnerable. He also loves his Father.  I also have no doubt the Father loves his son.  However, I conclude that the Father’s actions in this regard take advantage of the Child’s impressionability and are contrary to his emotional and psychological safety, security, and well-being.

Given the above considerations, the court agreed to order that the child should be vaccinated per his doctor’s recommendations and took the additional step of awarding sole decision-making ability to the mother with respect to his health and medical decisions.

Contact the Calgary Family Lawyers at Mincher Koeman for Skilled Representation in Parenting Matters

At Mincher Koeman, we practice family law exclusively. Our divorce lawyers have represented clients in all types of matters regarding decision-making ability and parenting time, ranging from amicable to high conflict. We will provide each client with a full picture of their rights and obligations with respect to the care of their child or children and provide experienced advocacy in court if necessary. We have built our practice to ensure that each client receives first-rate client service and will always be sure to steer clients towards the most efficient resolution of their matter, keeping costs down whenever possible. To discuss your matter with a lawyer, contact our firm by calling us at 403-910-3000 or by contacting us online.

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