Which Parent Decides About Kid’s COVId-19 Vaccine?
As of December 9, 2020, the Canadian government has approved the first of the COVID-19 vaccines slated to administered to citizens, in order to stem the spread of the pandemic in our country.
This is undoubtedly good news. But for a separated or divorced parent, it gives rise to some potential new frontiers of discord with the other parent, on the issue of whether or not to vaccinate the child with a COVID-19 specific vaccine when one becomes widely available.
Long before the COVID-19 pandemic, some warring parents have already been at-odds over the need for routine immunizations for more customary childhood diseases such as measles, tetanus and rubella. This has sometimes required the courts to make a specific rulings that determine the issue and bind both parents, often as part of a custody/access and parenting order broader proceeding.
Courts generally view the customary childhood vaccines as being a good thing, i.e. in the best interests of a child and courts will generally side with a parent who wants to have a child immunized.
This was the scenario in a very recent Ontario decision called B.C.J.B. v. E.-R.R.R., where the court was asked to make a ruling on whether a separated father should be granted decision-making authority in connection with his child’s vaccinations, over the objections of the mother who had sole custody of the child in keeping with a prior parenting agreement. The child had never received any of the vaccines that other children in Ontario routinely received, and the father wanted him to be vaccinated now, partly to boost his general immunity and thus protect him from the risk of contracting COVID-19.
In this context, the court canvassed the historic cases. Collectively they illustrate that: 1) courts generally view the customary childhood vaccines as being a good thing, i.e. in the best interests of a child; and 2) courts will generally side with a parent who wants to have a child immunized.
This is not to say that courts will always order an immunization when parents disagree; however, the cases otherwise are few and far between. For example, in an older Alberta case called Chmiliar v. Chmiliar, vaccinations were ordered for a 10-year-old child over the objections of one of the parents, but were not ordered for a 13-year-old one, who was considered to be a “mature minor” who was capable of making her own medical decisions.
Nonetheless in B.C.J.B. v. E.-R.R.R. the court looked at what it considered to be the specific child’s best interests, and ultimately gave the father decision-making authority on the immunization issue, at least for the period prior to trial. The court agreed with the father that the child was actually at an elevated risk from COVID-19 due to the fact that he had not received the usual childhood immunizations in the past. However, the court was careful to add that the father’s pre-trial authority over decision-making on vaccines did not extend to any COVID-19 vaccine that may be available – this aspect would have to await the trial itself.
The issue of vaccines also arose recently in a case called Tarkowski v. Lemieux, where the parents were in court to obtain a decision on which of them should get sole custody of their 6-year old daughter. The side-issue of the daughter’s immunizations also arose, with the court noting that the mother had an erratic and unreliable approach to the issue of vaccinating, and held controversial and unproven beliefs – for example that standard vaccines could cause autism. In the end, the court granted sole custody to the mother nonetheless, but gave the father specific decision-making authority over the vaccination decision. In this case, the court expressly included the future decision on whether to administer any available COVID-19 vaccine as part of the father’s mandate.
For now, as it relates specifically to a COVID-19 vaccine, the legal issues have not come before the courts often; however, in the coming months as the vaccine gets rolled out across the country and released to citizens, it will no doubt factor in an increasing number of court rulings on parenting and decision-making. Watch this space, for further updates on any new cases as they arise.
For the full text of the decisions, see:
B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438
Chmiliar v. Chmiliar, 2001 ABQB 525
Tarkowski v. Lemieux, 2020 ONCJ 280
