How are Ontario Courts Dealing with Unvaccinated Parents?
In a very recent Blog we covered a U.S. case in which the court temporarily stripped a Chicago-area mother of custody over her 11-year old son, because she refused to get immunized against COVID-19. (The court later reversed the decision).
A very recent Ontario ruling on parenting time touches on this issue as well – though only as one of numerous factors considered by the court. It featured a battle between parents who – among very many things – differed in their approach to COVID-19: The mother wanted to remain unvaccinated against the virus, while the father had an upcoming appointment to get immunized so that he could optimize the requested parenting time with his daughter.
The parents’ dispute concerned the decision-making over what the court called a “happy and healthy four-and-a-half-year-old girl”. The father wanted it to be joint, while the mother wanted sole decision-making with only supervised parenting time for the father. They had separated in 2017, after an argument where the father left the matrimonial home.
Noting that the litigation between the parents had become toxic, the court emphasized that it was required to stay “laser-focused” on the child’s best interests when evaluating each parent’s position and proposed plan for the child.
Amidst a long list of other factors, the court considered their respective COVID-19 vaccination statuses, and level of willingness to comply with the government Public Health directives. The court wrote:
Public health considerations
Both parents are generally committed to abiding by COVID-19 protocols and given the higher rates of vaccination and Ontario’s reopening plan, I find that expanding the Father’s parenting time would not pose an undue risk of harm to the Child. Indeed, it will be nice for the Father to have the opportunity to venture further afield with the Child, including to local zoos, pools, and such.
As of June 11, 2021, Ontario’s COVID-19 public health measures will allow more extensive outdoor and indoor gatherings, as well as allowing access to certain tourist attractions, day camps, and Ontario Parks: Ontario, “Reopening Ontario,” updated June 7, 2021 and available at https://www.ontario.ca/page/reopening-ontario.
The Father works at various construction sites which creates a heightened risk of exposure for the Child. The Father also admits that he did not take the pandemic seriously enough in the early days of the pandemic. However, since May 20, 2020, he has generally complied with pandemic-related protocols after he was ordered by Justice Fowler-Byrne to do so. The Father had an appointment to receive his first dose of a vaccine on June 5, 2021.
The Mother has also generally abided by public health precautions by limiting her and the Child’s contact to people within their household. While the Child is not currently eligible to be vaccinated, the Mother has not yet been vaccinated and does not have concrete plans to receive the vaccination.
In the end, the court took more than 200 paragraphs to evaluate all the circumstances; however it appears not to have weighted the mother’s unvaccinated status very heavily in the analysis – perhaps because she also offered to “mitigate any pandemic-related risks by adhering to public health measures in her household”.
(And perhaps of greater interest to the court was the “highly litigious approach” that the parents took to resolving their issues, which included testimony of dubious credibility, prejudicial allegations, and the squandering of funds. The court noted that “The Father sold his home to fund this litigation, while the Mother used a significant portion of her equalization payment to hire private investigators to follow the Father.”)
The court ultimately ruled that the child’s best interests dictated that the mother should have sole decision-making, with scheduled parenting time with the father. Both parents were ordered to “comply with all current government safety COVID-19 guidelines, including those in place in the Child’s jurisdiction.” However, the court did not go so far as to mandate the mother to be vaccinated.
For the full text of the decision, see:
E.M.B. v. M.F.B., 2021 ONSC 4264