Separated and divorced parents often have disagreements on parenting issues. In particular, parents all across are grappling with issues on how best to navigate the COVID-19 pandemic for their child(ren)’s physical health. Vaccinations for children raise the question of what happens when one parent wants their child vaccinated and the other parent is against it. Parents who share parenting time and decision-making ability for their children may be feeling a sense of anxiety around the pending event if they disagree on whether or not their children should receive a vaccination. If there is a fundamental divide between the parents on this issue, what will the law have to say about it?
BEST INTERESTS OF THE CHILD
When considering any parental dispute over the care of children, courts are required to consider, above all else, the best interests of the children in question. In addition, the older a child is, the more the courts are likely to consider the child’s preferences as well. This was demonstrated in the case of Chmiliar v. Chmiliar, 2001 ABQB 525, in which the mother preferred her children not to be vaccinated. Their oldest child was 13 at the time and was hesitant about getting vaccinated as she shared her mother’s concerns. While the court-ordered vaccinations for the younger sibling, the older child was permitted to make her own decision.
CHILD’S AGE PLAYS A ROLE
It is important to consider the child’s preferences when trying parents try to settle their disagreements with regard to vaccinations.
At 16 years of age, a child has the right to make their own decisions. That is to say, when your child is 16 or older, they can decide for themselves if they want to get vaccinated or not.
The situation is however not clear for children who are in the 12 to 15 years age bracket. Under Ontario’s Health Care Consent Act, some children in this age group can consent to receive medical treatment on their own, without needing consent from a parent or guardian. Remarkably, however, the Health Care Consent Act does not specify a minimum age for a child to provide consent for vaccination independently (i.e., without needing consent from a parent). For a child to receive a vaccine without requiring parental consent, the child must have the capacity to make the decision, and they must be able to provide “informed consent.” A child will have the capacity to provide this “informed consent” to the vaccine if the child understands why the vaccine is recommended, and the benefits and risks of receiving it.
COURT’S GENERAL PRACTICE TOWARDS VACCINATING CHILDREN
Having said that, courts have consistently and overwhelmingly bestowed decision-making authority over health, or sometimes more narrowly over the health decision of whether to vaccinate a child, upon the parent best able to make an informed decision, based on sound medical advice. The courts in some of these cases have taken judicial notice of various facts relating to vaccines. In almost all the cases, the parent opposed to vaccinating their child, relied on inadmissible junk-science material, internet evidence from questionable sources, biased and misleading information from the so-called “anti-vaccination movement”, or even opinion evidence from persons with questionable qualifications to give that opinion in the first place.
- In B.L.O. v. L.J.B., 2019 ONCJ 534, this Court heard a motion concerning whether the parties’ 13-month old daughter should be vaccinated. The mother was hesitant to vaccinate the child, based on her own research, including information she obtained from the internet about the “Dr Paul Approved Vaccine Plan”. The father had previously agreed with her decision not to vaccinate the child to an extent, but then he changed his mind.
The father tendered a letter from the child’s doctor recommending that the child be vaccinated. He also tendered an expert report from Dr. Joan Robinson, a pediatric infectious diseases expert from the Stollery Children’s Hospital. The mother chose not to file any expert evidence to rebut this opinion, instead of relying on various internet documents.
This Court heard oral evidence from Dr. Robinson that routine childhood vaccines are very safe and effective, and the risks are low and manageable. Dr. Robinson’s testimony was that the benefits of immunization far outweigh the risks of not vaccinating. Although there was no evidence before the Court about whether the particular child had a certain health condition that would contraindicate vaccinating her, Dr. Robinson testified that the parents would already be aware of that by this point in the child’s life via routine appointments at the doctor’s office. Dr. Robinson was of the view that it is irresponsible for a parent not to vaccinate a healthy child in accordance with the standard practice in Canada. She also testified that there is a protocol for updating immunizations in children who are starting to receive vaccines, albeit on a delayed basis.
- C.M.G. v. D.W.S., 2015 ONSC 2201 is the leading Ontario decision involving vaccines. The child in that case was 10 years old. The parents had signed a Separation Agreement, whose terms were inconsistent with the order the father now asked the Court to make. The Separation Agreement had been incorporated into an order, so this was a variation case that required a material change in circumstances analysis. The Separation Agreement provided that the parents would have joint decision making, and they agreed to defer the decision whether or not to vaccinate the child until she reached age 12. Even then, they would have delegated the decision to the child.
The father brought a Motion to Change, arguing that the child must be vaccinated now. The “urgency” or timing of the Motion to Change, related to the fact that the mother had obtained a different court order allowing her to take the child on a trip to Germany, where there had been a measles outbreak.
Points to be noted: First, in the result, the Court disregarded the parties’ agreement, based on a best interests’ test, even though this was a variation proceeding. The Court had expert evidence before it. The Court relied on the opinion of a pediatric infectious diseases expert, but in addition, it also took judicial notice of Canada’s and Ontario’s health policies respecting vaccinations, including the policy behind the Immunization of School Pupils Act. The Court held that Canadian public policy favours the vaccination of children and youth, and that informed the Court’s legal reasoning. The Court also relied on information from the World Health Organization. In the result, the Court empowered the father to make decisions about vaccinations despite the terms of the Separation Agreement.
- In Chambers v. Klapacz, 2020 ONSC 2717, Bloom J. authorized the father to take the child to the doctor to be vaccinated. In this short decision, the issue was not so much whether the child should be vaccinated, but how that would occur. Bloom J. relied on a letter from a doctor and information from the government of Ontario, in reaching his decision.
- In Di Serio v. Di Serio (2002), 2002 CanLII 49568 (ON SC), 27 R.F.L. (5th) 38 (S.C.J.), the parties settled all issues except for “the issue of vaccination” concerning their 5 ½ and 8 years-old children. The vaccination issue was then dealt with by way of a motion. The mother relied on an opinion from the children’s family doctor recommending immunizations. The opinion also stated, “the benefit of immunization for vaccine-preventable diseases has been known for a very long time and the programme is considered to be the most beneficial of health interventions”. Father, by contrast, believed that vaccinations were dangerous based on his reading of “many different publications over the last 10 years” and that it was in the best interests of the children that they not be vaccinated.
Perkins J. held that the result, on the evidence, is obvious. He granted the mother sole custodial authority over the issue of immunizations. He also took judicial notice of Ontario’s public policy expressed in the Immunization of School Pupils Act.
- In Faulkner v. McTaggart, 2018 ONSC 5960, the mother opposed vaccinating the parties’ daughter, who appears to have been about 4 years old at the time of the hearing. Prior to the child’s birth, the parties had agreed that the child would not be vaccinated, but post-separation they now disagreed. The family doctor’s notes revealed “long discussions” with the mother about vaccinations, and the doctor’s opinion that there will “never be a consensus medical opinion advising against immunization as it is such an incredibly effective preventative tool” had been conveyed to her. In his trial Judgment, Douglas J. bestowed decision-making authority to the father regarding medical issues given the mother’s “demonstrated resistance to medical advice”.
- In Tarkowski v. Lemieux, 2020 ONCJ 280, P. Jones J. heard a trial concerning a 7 years-old girl. Although P. Jones J. granted the mother sole custody, she empowered the father to make health decisions about future vaccines, including about whether to administer a COVID-19 vaccine, when and if there is one. She did so based on the parents’ history of behaviour surrounding vaccines. The mother previously refused to consent to the child being immunized as an infant, she had expressed concerns that vaccinations might be linked to autism (a theory described as “universally debunked”), when she started to have the child vaccinated, she delayed the process, and she continued to show hesitancy. P. Jones J. found that the father understood the risks to the child and to others if the child is not vaccinated.
- In a very recent Ontario decision called B.C.J.B. v. E.-R.R.R 2020 ONCJ 438 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.
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.
- In Tarkowski v Lemieux, 2020 ONCJ 280, (decided before COVID-19 vaccines were approved for children), the court provided the father with the sole authority to vaccinate the child against COVID-19 should a vaccine be approved in the future. The court reached this conclusion, in part, due to the mother’s lack of trust in Western medicine generally, and her history of refusing or delaying the child’s routine vaccinations to date. The court further acknowledged that children and young people, in general, do not appear to have a high risk of developing adverse reactions to the COVID-19 vaccine and that vaccinations could be beneficial in preventing the spread of the virus to more vulnerable members of the population.
So far, there are only two cases where the children remained unvaccinated:
- Chmiliar v. Chmiliar, as discussed above, and
- A.P. v. L.K., 2019 ONSC 7256 and A.P. v. L.K., 2020 ONSC 2520 are two decisions relating to an appeal of the decision of an arbitrator, who apparently ruled that two children would not be vaccinated. While the facts of the case are not yet fully known, it appears that the arbitrator qualified Dr. Bark to give opinion evidence on behalf of the mother. Dr. Bark is the person whose opinion the BC Court rejected in D.R.B. v. D.A.T. The Medical Officer of Health for the City of Toronto has been given leave to intervene in the appeal for a number of reasons, including that the parties have put in issue the utility, efficacy, and safety of vaccines identified in the Immunization of School Pupils Act and Immunization Schedules.
HOW DO COURTS TREAT VACCINATION CLAUSES IN SEPARATION AGREEMENTS?
It is important for parents to bear in mind while canvassing their separation agreement, to include clauses that reflect the children’s best interests. The main consideration of the court is “what is in the best interests” of the child. If the court decides that the present circumstances or terms of your agreement do not reflect the best interests of your child (even when parents agree), courts can override such an arrangement and decide otherwise, if that is the best option for your child. (See C.M.G. v. D.W.S., 2015 ONSC 2201, discussed above).
The family law lawyers are Nussbaum Law are exceptionally experienced with respect to parenting plans and all aspects of childcare arrangements. Contact our office today by calling us at (416) 916-0886 or book an appointment with us at env-nussbaumlaw2023-stagingplus.kinsta.cloud.
