When separated parents disagree about the COVID-19 Vaccine

◂ BLOG

It’s been almost 5 months since Health Canada approved the Pfizer vaccine and the Moderna Therapeutics vaccine for adults. While most Canadians were elated by the vaccines’ approval, others remained skeptical. This sad reality will no doubt have a divisive impact on separated parents’ decisions to vaccinate their children—once a vaccine for children is finally approved.

Decision to Vaccinate

If you have sole custody of your child, then you will be able to decide whether to vaccinate your child—the other parent will not have the authority to weigh in on this decision. However, the other parent will still be able to apply to the Court. If you have joint custody, and a decision cannot be reached, either parent may apply to the Court. In both circumstances, once either parent applies to the Court, the Court will intervene and decide whether vaccinating the child is in your child’s best interests.

The Legal Background

Although litigation relating to the COVID-19 vaccine and children is limited, it is likely that the Court will order that the child be vaccinated due to the Court’s traditional view on health-related procedures. 

Recent case law suggests that Courts are willing to effectively delegate this decision to medical health professionals. For example, the Court in Tarkowski v Lemieux (2020 ONCJ 280) was satisfied that “when and if such a vaccine becomes available, both parents should meet with the child’s doctor to discuss vaccination… against COVID-19”. This has been the Court’s traditional view with vaccinations and other health-related procedures, and this is not expected to change due to COVID-19. If anything, COVID-19’s ability to spread rapidly between people would likely give the Court another reason to order a vaccination.

In Tarkowski v Lemieux, the Court empowered the father to make health decisions about future vaccines. This decision was based on the mother’s inability to accurately assess the risks of not vaccinating, as the mother had previously made arguments that vaccinations might be linked to autism—a universally debunked myth.

As there is no evidence indicating that the COVID-19 vaccine would be harmful in any way, it would be an uphill battle for a parent to convince the Court to deny the vaccination. The parent would need to bring forward medical evidence indicating that the COVID-19 vaccine would not be in the best interests of the child. For example, if the child has an allergy or has experienced a bad reaction to a vaccine in the past, the parent might need to make an argument that the COVID-19 vaccine will lead to similar detriment.

Nonetheless, it is possible the Court will take a unique approach with COVID-19 vaccines due to a small minority of the population crying foul as to COVID-19’s legitimacy.

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