Children in Ontario between the ages of 12 – 17 became eligible for the first dose of the Pfizer vaccine on May 23, 2021. This raises a new question for separating parents: what happens when one parent wants their child vaccinated against COVID-19, but the other refuses?
The legal test for family law matters involving parenting issues remains the best interests of the child. Decisions involving children are always considered on a case-by-case basis, while considering the prevailing social or medical evidence available at the time. For example, court decisions involving virtual vs. in-person schooling during the pandemic such as Chase v Chase 2020 ONSC 5083 and Zinati v Spence 2020 ONSC 5231 largely deferred to public health guidelines in deciding whether children should be enrolled in virtual school. The short answer is this: where the government endorses in-person schooling, the court is likely to accept this conclusion unless one parent is able to advance evidence showing why it would be contrary to that specific child's best interests.
Court decisions dealing with children's pre-pandemic vaccines have adopted similar reasoning. For example, in the earlier case of C.M.G. v. D.W.S. 2015 ONSC 2201, the father sought to have the child vaccinated before travelling overseas, while the mother refused. The court ultimately concluded that vaccinating the child would be in her best interests and relied on Canada's public policy in favour of vaccinations of children generally, in addition to the expert evidence presented by the father in favour of the child's vaccination.
In Tarkowski v Lemieux, 2020 ONCJ 280, (decided before COVID-19 vaccines were approved for children), the court provided the father with the sole authority to vaccinate the child against COVID-19 should a vaccine be approved in the future. The court reached this conclusion, in part, due to the mother's lack of trust in Western medicine generally, and her history of refusing or delaying the child's routine vaccinations to date. The court further acknowledged that children and young people in general do not appear to have a high risk of developing adverse reactions to the COVID-19 vaccine, and that vaccinations could be beneficial in preventing the spread of the virus to more vulnerable members of the population.
The court's reasoning was similar to how pre-pandemic vaccines and the issue of virtual vs. in-person schooling were treated. In short, the courts are likely to defer to the accepted public health guidelines on the issue, unless one parent is able to advance evidence showing that the vaccine would not be in their child's best interests. This would likely need to be accomplished by way of a credible expert's opinion with respect to the specific child's needs. A parent might succeed in making this kind of argument where, for example, the child has a history of adverse reactions to previous vaccines.
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