Parenting Time & Decision Making

Could Refusal to Vaccinate Result in Losing Custody of Your Children? 

Written by Russell Alexander / (905) 655-6335

Could Refusal to Vaccinate Result in Losing Custody of Your Children? 

With the imminent rollout of “Vaccine Passports” in Ontario, there could be a new Family Law “twist” to the question of whether being vaccinated against COVID-19 is something that Canadian law or public policy can mandate for its citizens.

It’s the issue of whether courts have (or should have) the authority to deprive an unvaccinated parent of the right to have parenting time with his or her child.

As reported by Fox News and other media sources, a U.S. court initially ruled that a mom who refused to get the COVID-19 vaccine should temporarily lose custody of her 11-year-old son.  However, the same court later reversed the decision, reportedly in response to public outcry.

The Chicago-area mother has been divorced for seven years and shares custody and parenting time with the boy’s father. She has chosen to remain unvaccinated due to prior adverse reactions to vaccines.

In a ruling made on August 11, 2021 and delivered via Zoom call, the court took the unusual step of ordering the mother to be vaccinated, or else she would temporarily lose custody of the child and be deprived of the right to see him in person.  The court said the order was to continue until the mother receives her shots.

However, the same court later reversed the decision by vacating portions of that early-August ruling, which paved the way for the mother to see her son again.  This alleviated the need for her to bring an appeal, which she had vowed to do.

The original decision had attracted media criticism because the court had arguably exceeded its own jurisdiction by taking the initiative to both ask the mother whether she was vaccinated, and to make the order.  In other words, her unvaccinated status was never raised or objected to by the father at any point in their custody proceedings.

“The overriding principle governing the Canadian courts’ analysis and decision-making in such a scenario is the ‘best interests of the child'” – Lori Dubin, Associate Lawyer

At the time of writing, this issue has not come up in Ontario Family Courts, and the outcome of a future case of this nature is still unclear. The only certainty is that under Canadian law, the overriding principle governing the courts’ analysis and decision-making in such a scenario is the “best interests of the child”.

In this context, the parameters of that test are still uncharted. However it’s possible that, for example, a child with proven pre-existing medical conditions might be adjudged to be at risk if exposed to unvaccinated parents or extended family members.  In such cases a court could conceivably entertain a change to parenting time based on the need to ameliorate that risk.

For separated and divorced parents in Ontario who remain unvaccinated, time will tell how it all plays out.

As of now, however, there has been some rulings by the Court that have indicated when parents disagree as to vaccination status and the children’s return to school, that it is in the best interests of the child to be vaccinated (depending on their age) before returning to school. We discuss this topic in our upcoming webinar discussing disputes over students attending or in-person or remotely, which you can register for: HERE

For additional coverage of this story, see:

If you are going through a separation or other family law related issues, to ensure you understand all of your options and rights, you do not need to wait and you can get started online with us today or get in touch with us.

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.