November 1, 2021
By Margaret Waddington & Jessica Bevilacqua
As COVID-19 vaccines rollout across Canada for those aged 12 and up, and with vaccination for children under 12 on the horizon, disputes between parents about vaccinating their children continue to increase.
If a parent has been granted decision-making responsibility (previously known as custody), they have the authority to make decisions regarding their children. Parents can also share this responsibility (previously known as joint custody). In that case they either come to a decision together or, if they are unable to agree, they have an agreed upon method to break the tie.
If asked to grant decision-making responsibility, Courts must use the “best interests of the child” test. This is a list of factors set out in legislation (the Children’s Law Reform Act provincially and the Divorce Act federally) or others as they see fit. The test is child-centred regarding their physical, emotional, mental well-being and safety. The preferences of the parents are only considered to the extent they are relevant to what is best for the child.
When it comes to vaccines in general the Courts have taken “judicial notice” of the safety and beneficial nature of vaccines.[1] That means that parties in court do not need to provide proof or evidence that vaccines are beneficial to children. The Court simply accepts that fact to be true.
The decision to vaccinate or not is one factor Courts have considered, pre-COVID-19, as part of the best interests of the child test, describing it as “providing a child with an increased likelihood of basic survival…in the form of decreased risk of contracting preventable life-threatening illnesses and diseases”.[2]
If one parent is not acting in the best interests of the child, Courts can intervene when issues are raised and provide creative solutions. In some cases where a parent with sole decision-making responsibility has refused to vaccinate the children and the other parent wants to vaccinate the children, Courts have gone so far as to award the “pro-vaccine” parent with sole responsibility to decide whether or not a child receives vaccines by taking this authority away from the other parent who previously had sole decision-making responsibility.[3]
However, it’s all about what is in the best interests of that particular child. If there is a medical or religious reason for why a child cannot or should not be vaccinated, with evidence to support it, then the Courts will take those factors into consideration as well, and has done so in the past.[4]
As for the COVID-19 vaccine specifically, recent cases provide a glimpse into how Courts will decide. For example, the Ontario Court of Justice in Tarkowski v. Lemieux decided to grant decision-making responsibility to the father with respect to vaccinating the parties’ children. The Court noted that this responsibility included the ability to decide whether the child will be vaccinated against COVID-19 once a vaccine was available.[5]
While the majority of cases demonstrate that Courts will go to great lengths to ensure children are protected against vaccine-preventable diseases, the Court’s analysis is heavily fact-based, like all decisions regarding the care and control of children.
We recommended that you consult a lawyer for an opinion on how the law applies to your individual situation before going to court over the Covid-19 vaccine.
[1] B.C.J.B. v E.-R.R.R, 2020 ONCJ 438.
[2] I.S. v J.W., 2021 ONSC 1194.
[3] A.P. v L.K. , 2021 ONSC 150.
[4] In Di Serio v Di Serio, 2002 CanLII 49568 (ON SC), the court considered the lack of a religious objection of the parents in determining the child’s best interests. The court also noted the Immunization of School Pupils Act, RSO 1990 c I-1, which provides exemptions for medical exemption and religious belief.