In 2020, the issue of whether children should attend in-person learning was likely one of the most litigated matters in family court. Many parents brought urgent motions dealing with this issue. Now that COVID-19 vaccines are available for children ages 12 and older, it is anticipated that separated parents will grapple with yet another critical issue: whether to vaccinate their children against COVID-19.
Whether or not to have your child vaccinated is usually up to the parents. When parents are together, they must make this decision together. When parents are separated, the hope is that they continue to make this decision together, but what if they cannot agree?
Whether or not to vaccinate a child can put a huge strain on a co-parenting relationship.
If one parent has sole decision-making responsibility, deciding whether to vaccinate the child is ultimately the decision of that parent. If the parents have joint decision-making responsibility, they will have to make those decisions together or start a court application so that a family court judge can decide.
Unlike the school issue, the issue of vaccines is not new to family law. The Court often encourages parents to seek the assistance of expert third parties when unable to agree on major medical decisions, including those regarding vaccinations. In reviewing the case law, I have found only one decision that ruled against vaccinating a child – this was an arbitration case where the mother argued that the children had underlying medical conditions that made them at risk for side effects from vaccines. The arbitrator ruled in favour of the mother and ordered that the children should not be vaccinated. The father then appealed the arbitrator’s decision and won his appeal.
Both the Canadian and Ontario Health Policies favor vaccinating children and youth. The Immunization of School Pupils Act requires children to be vaccinated, unless the parent has filed for an exemption claiming religious beliefs or as a matter of conscience. Even the exemption allowance can be overridden by a medical officer of health, if necessary. An override could occur if there are reasonable grounds that there is an outbreak, or an immediate outbreak risk of a designated disease, at the location the unvaccinated child attends.
It is important to note that parental views on vaccinations are not determinative of decision-making responsibility or parenting time with a child. The legal test for decision making responsibility and parenting time is always what is in the child’s best interest. In most cases, if there is a disagreement on the issue of vaccines, the parent who favors vaccinations will likely be given final decisions on medical issues but not necessarily sole decision-making responsibility on all issues.
Below are some tips for separated parents who disagree about the COVID-19 vaccine:
- Consult with your child’s pediatrician and attempt to resolve the issue with their advice and guidance.
- Consider working with an accredited mediator who can help you work out a solution without going to court.
- Speak to your child about the issue and explore all options: what are the possible side effects? Does the child require the vaccine to attend school, sports, or other activities?
- Consult with a family law lawyer who can provide advice on your likelihood of success if the matter is litigated.