Family courts in Canada have had to deal with many issues relating to COVID-19 in the last two years, including disputes about parenting time, vaccination and changes to support due to decreased income. Recently, we looked at some examples of how the pandemic has impacted the assessment of a child’s best interests in the context of access.

This article looks at what happens when separated parents disagree on whether their child should be vaccinated against COVID-19.

Health Canada has approved the use of a paediatric Pfizer vaccine for children between 5 and 11 years of age, in addition to the previously approved Pfizer vaccine for individuals aged 12 and older. According to the Government of Canada, children under 12 have the highest rate of COVID-19 across all age groups in Canada, in part because this age group hasn’t had access to vaccinations until recently.

Who has decision-making responsibility?

When parents separate, arrangements must be made around dividing parental duties and responsibilities towards their children or, in other words, child custody and access.

Custody refers to a parent’s legal responsibility to make decisions about a child’s care (including where they live but also regarding their health, education, and religion among other things) and the parent’s general obligations towards that child. In a sole custody arrangement, one person has the legal authority to make major decisions about a child’s care and wellbeing, whereas, in a joint custody arrangement, both parents have equal legal decision-making capacity on the major decisions about their child.

Keeping the child’s best interest in mind

Custody arrangements are often made between the parents with the help of a family lawyer or mediator. Where the parents can’t agree, a court may be tasked with determining issues relating to custody and access.

When an Ontario court makes a parenting order regarding decision-making responsibility concerning the child or parenting time, according to section 24 of the Children’s Law Reform Act, the court takes into account the best interests of the child. In determining the child’s best interests, the court shall consider all factors related to the circumstances of the child and shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.

Recent decisions granting sole decision-making authority on COVID-19 vaccination

Parents in a number of recent cases have sought court orders providing sole decision-making authority on matters relating to COVID-19 vaccinations.

For example, in a recent Superior Court of Canada case, the applicant mother brought a motion to have her 10-year-old child vaccinated against COVID-19 and to prohibit the respondent father from telling the child anything negative about the vaccine. She wished to have her child vaccinated before school resumes in person and was worried about the risk posed to her elderly parents. The father wanted to wait until further evidence is available regarding the safety of the vaccine. The mother obtained a letter from the child’s doctor supporting vaccination.

Justice Van Melle of the Superior Court of Justice of Ontario noted that recent case law stands for the proposition that the Court is permitted to take judicial notice of the ongoing pandemic and the safety of the COVID-19 vaccine. Her Honour found that the child was receiving mixed messages about the vaccine from his parents and that at 10 years old, he was unable to make an informed choice. Her Honour decided that it was in the child’s best interests that his mother be given sole decision-making authority on the issue of COVID-19 vaccinations and that the father was not to tell or suggest, directly or indirectly, that COVID-19 vaccines are untested, unsafe or ineffective.

Similarly, in Saint-Phard v Saint-Phard, the father sought an order for sole decision-making authority concerning COVID-19 vaccinations for his 14-year-old child. At different stages, the child took each parent’s position on the issue of whether to get vaccinated.

The father relied on public health documents to establish that government authorities have concluded that the COVID-19 vaccine is safe and effective, and a letter from the child’s doctor in support of vaccination and noting that there were no contraindications for the child in receiving the vaccine.

Justice Mackinnon of the Superior Court of Justice of Ontario sided with the father in deciding that it was in the child’s best interests to be vaccinated. Her Honour found that the child’s current stated view not to be vaccinated was not based on an understanding of accurate medical information, and as such, did not constitute a properly informed decision. The mother was ordered not to provide information contrary to that provided by public health authorities.

Vaccination may not be allowed where there are other factors

However, in Comfort v Comfort, in the context of a wider dispute about creating a parenting plan and child support, Justice Somji of the Superior Court of Justice of Ontario was prepared to make an order preventing the father from having any shots or vaccinations administered to his 8-year-old and 5-year-old children.

The older child is immunocompromised as a result of an ADA2 deficiency, and therefore it has been recommended that he not have certain vaccinations. Her Honour said that it was unclear if the vaccine for COVID-19 was contraindicated, but that it was clear that the mother had been attending to the child’s medical needs and has obtained medical opinions on the child’s ability to be vaccinated. The mother is also cautious about vaccinating her younger child and has arranged for genetic testing.

Her Honour decided in the particular circumstances of the case that it was in the best interests of the children for the mother, upon reasonable consultation with the father, to have final decision-making authority on issues of education and health.

Contact NULaw in Toronto to Protect Your Custody and Decision-Making Rights

If you are experiencing child access and parenting time disputes, contact the experienced family lawyers at NULaw in Toronto. NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters including custody and access. Contact us online or at 416-481-5604 to book a consultation.