The COVID-19 pandemic continues to be the basis for a significant number of parenting disputes between co-parents who share decision-making ability over their children post-divorce or separation. In March, we wrote about an Ontario case in which a father’s access to his children was limited due to his participation in anti-mask protests and promotion of the belief that COVID-19 was a hoax.
The current focus of many pandemic-related parental disputes is vaccination, particularly whether to vaccinate children under 18 against COVID-19. In May of 2021, Health Canada authorized the use of the Pfizer vaccine for children between 12 to17. In recent weeks, several provinces have adopted vaccine passport systems, mandating that people be fully vaccinated to access certain non-essential activities, including attending movie theatres, indoor dining at restaurants, and working out at gyms and fitness centres. Premier Kenney of Alberta recently announced that the passport system will likely be in effect until at least early 2022.
These circumstances have given rise to legal disputes between divorced and separated parents over whether to vaccinate their children against COVID-19. With the potential for vaccines to be approved for children as young as five years old in the coming months, it is likely the number of these types of disagreements will only increase. So far, courts have indicated that they will opt for vaccination in most cases, as demonstrated by a case out of Saskatchewan that recently made headlines as the first in the province to address a parental dispute over the vaccine for minor children.
In the case in question, the father and mother have been divorced for several years and share two children: a 13-year-old daughter and an 11-year-old son. When the COVID-19 vaccines became available for children aged 12 and older, the father expressed his wishes to have their daughter vaccinated. The mother objected. She had the support of the father’s parents, who oppose the COVID-19 vaccine and helped organize protests against vaccine mandates and other public health measures related to the pandemic. Unable to resolve the issue on their own, the case went before the Saskatchewan Court of Queen’s Bench.
Each parent presented evidence from various medical professionals to support their position. The mother included affidavit evidence from a doctor who has faced discipline from the College of Physicians and Surgeons of British Columbia for spreading vaccine misinformation. The father, in contrast, presented affidavit evidence from his daughter’s long-term pediatrician and an infectious disease specialist based in Regina.
The mother claimed the father’s enforcement of COVID-19 safety protocols including online schooling, testing when the child displayed symptoms of COVID-19, and a sanitization station, were a form of emotional abuse of their daughter. The Court disagreed, finding that the father’s practices were in line with public health recommendations and the claim that they were a form of abuse was “difficult and overreaching”.
Ultimately, the Court preferred the father’s evidence, and determined it would be in the child’s best interests to be vaccinated against COVID-19. The father was granted permission to arrange for vaccination in consultation with his daughter’s doctors.
The mother appealed the decision, requiring the father to delay vaccination further, pending the outcome of the appeal.
Across Canada, minors are permitted to make their own healthcare decisions without input from their parents or guardians. In Alberta, a minor may be allowed to get the vaccine even if their parent(s) object, if they are deemed a “mature minor“. A mature minor is someone under the age of 18 who can understand and appreciate the risks, benefits, and nature of a proposed medical treatment or procedure.
When determining whether a minor has the maturity level necessary to make their own healthcare decisions, a court or other decision-maker will consider several factors, including:
In emergency situations, medical professionals are entitled to provide treatment to a minor in the absence of consent from the minor or their legal guardian. In order to proceed in such a situation, the life or health of the child must be under immediate threat and there must be no indication that the minor or their guardian would have objected to the treatment or procedure.
The COVID-19 pandemic has created many issues for parents who share parenting time and decision-making ability regarding minor children. From deciding whether to educate children at home or allow them to attend school in person, to the decision of whether to vaccinate children aged 12 and up, courts have seen an influx of pandemic-related disputes. If you are facing a similar situation involving your family and decisions about your children’s care, we can help.
The family law lawyers at Mincher Koeman are exceptionally experienced with respect to parenting plans and child access arrangements following a divorce or separation. Contact our office today by calling us at 403-910-3000 or reach out online.
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