The Saskatchewan Court of Queen's Bench recently rendered a decision that will be of note to separated or divorced parents who disagree on whether to vaccinate children between the ages of 5 to 11. Below is a summary of the Court's decision, written by the Honorable Justice Megaw.
Background Information about the Case
In the case, the parties had two children. The older child was 12 years of age. At the time that the case was litigated and decided, vaccinations were not yet approved in children age 5 to 11, so the application only concerned the 12-year-old child. There was an existing Judgment that granted the mother final decision-making authority with respect to medical matters involving the children. The father applied to the Court for an order authorizing him to have the 12-year-old child vaccinated for COVID-19. The mother opposed the application.
Both parties filed materials from various physicians in support of their respective positions. The Court reviewed the evidence provided by all of the physicians and provided comments on each physician's expertise in relation to infectious disease, COVID-19 and vaccinations generally.
The mother argued that the child should not be vaccinated for three reasons. First, she argued that the vaccine was unsafe and experimental. Second, she argued that the child had been diagnosed with a condition called "vaccine toxicity" and should not be subject to any further vaccinations. Third, she argued that the child did not want to be vaccinated, and that the child's view should be adhered to.
The father argued that the child should be vaccinated. He expressed concerns about the danger and risk of the COVID-19 virus and its impact on the child, particularly in light of her type 1 diabetes.
The Court granted the father's application and ordered that the child would be vaccinated for COVID-19. The Court provided the following reasons for its decision:
Analysis of the Best Interests of the Child
The Court first conducted an analysis of what was in the best interests of the child, referring to comments made by the Supreme Court of Canada in the case of Young v Young, [1993] 4 SCR 3. The Court emphasized that determining what is in the best interest of the child requires a child-centred analysis that respects the child's right to the best possible arrangement in the circumstances. The Court also noted that while the views of the parents are entitled to serious consideration, the welfare of the child is paramount (Peterson v. Peterson, 2019 SKCA 76). The Court also provided a review of s 16 of The Divorce Act, which lists the relevant factors when assessing the best interests of a child.
On assessing the child's needs, the Court considered her physical needs, her diabetic condition, and the medical opinion filed by the mother that the child potentially suffered from a condition called "vaccine toxicity". The Court commented that the physician who had diagnosed the child with possible "vaccine toxicity" had obtained the entirety of the child's medical history from birth, including background conditions and previous treatments, from the child herself during a single one-hour interview. The physician had not spoken to either parent, the child's family physician, or endocrinologist regarding the child's medical history.
The Court directed that any concerns regarding the child's health could be properly and thoroughly investigated by the child's family physician and endocrinologist, since they had direct involvement with the treatment of the child, were aware of her medical history, and had access to her health care records. The Court reasoned that the child's family physician and endocrinologist were more properly equipped to make the medical judgments in the best interests of the child. In conclusion, the Court decided not to give weight to the opinion filed by the mother regarding possible "vaccine toxicity".
Consideration of the Child's Views
When considering the child's own views and preferences, the Court conducted an analysis of the "mature minor doctrine", which was discussed by the Supreme Court of Canada in the case of A.C. v Manitoba, 2009 SCC 30. The Court emphasized that the factors that affect an adolescent child's ability to exercise independent, mature judgment are complicated and difficult to list. Generally, the Court stated that when considering whether a child is a "mature minor", Courts must consider the child's age and maturity, the nature and the extent of the child's dependency on guardians in making decisions, and the complexity of the medical treatment.
In deciding whether the child, in this case, was a mature minor, the Court expressed significant concern over the influence that other adults had on the child and whether those other adults had caused the child to form a view with respect to the vaccine. There was evidence before the Court that the child's mother and the child's paternal grandparents were opposed to the administration of the vaccine, and the child lived the majority of the time with the mother. The mother presented evidence to the Court that the child was concerned with a specific ingredient in the vaccine, but it was not clear where the child learned this information. The Court did not accept that the child was speaking independently and declined to leave the decision with respect to vaccination in the hands of the child.
Analysis of Vaccine Evidence
The Court then turned its attention to the mother's argument that the vaccine was experimental and unsafe. The mother also filed evidence raising skepticism regarding the seriousness of the COVID-19 pandemic and the impact of the COVID-19 virus on children as a whole. In response, the father provided affidavits from two physicians regarding the health concerns involved with infection by the COVID-19 virus, and the need for vaccination for all eligible individuals.
Justice Megaw referred to a number of other cases across Canada where Courts have taken "judicial notice" of certain adjudicated facts regarding COVID-19. A fact that a Court takes judicial notice of is a fact that is "so notorious as not to be the subject of dispute among reasonable people". B.C.J.B. v. E-R.R., 2020 OCNJ438.
In this case, the Court indicated that it would take judicial notice and not require proof for certain facts, including:
- That Canada and Saskatchewan had been in a COVID-19 pandemic resulting in restrictions imposed to control the spread of the virus;
- That contracting the COVID-19 virus poses a serious and significant health risk to people generally; and
- That the COVID-19 vaccination was safe and effective for use in children and adults in light of the vaccine approval process in Canada and approval by provincial health authorities.
The Court held that the mother's argument that the vaccine was experimental was not supported by the general knowledge available regarding the approval process and implementation of vaccines in Canada, including health authority information put forward by Health Canada and the Saskatchewan Health Authority.
Summary of Result
In conclusion, the Court referred to a number of previous decisions across Canada about vaccination of children in similar contexts. The Court noted that almost universally, Courts have determined to permit children to be vaccinated when there is a dispute regarding whether a child should be vaccinated.
The Court determined that in this case, there was no evidence that the child's health would be compromised by the administration of the vaccine and that any health concerns could be the subject of the consultation with the child's family physician and endocrinologist. The Court decided that it was in the child's best interest to be given the best opportunity to avoid the health risks associated with COVID-19, by receiving the COVID-19 vaccine.
The Court orderedthat the father would be authorized to arrange for the child to be vaccinated without the consent of the mother; however, the Court ordered that the vaccination would only be completed after the father had received any necessary further advice from the child's family physician and endocrinologist.
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