The COVID-19 Vaccine And Children: What if You and Your Ex Don't Agree?
By Timothy Henderson | August 5, 2021
with the assistance of law students Connor Cameron and Kierston Potter
Health Canada first approved the Pfizer and Moderna COVID-19 vaccines in December 2020, and Canada's vaccine program is now in full swing, with many in Canada now receiving their second dose. On May 5, 2021, Health Canada approved the Pfizer COVID-19 vaccine for children aged 12 and over. As of this writing, no approvals have yet been given for children under the age of 12.
For parents who cannot agree on the decision to have their child vaccinated, especially with a vaccine created so recently, arguments and the potential for legal disputes are a real concern. Of course, as in all situations involving the children of separated parents, we always recommend that parents exhaust all efforts to come to an agreement within the family, including involving the child in discussions in an age-appropriate way. There are many ways this can be achieved, such as meeting with the child's family physician or pediatrician, a session with a counsellor, or other forms of mediation or alternative methods of dispute resolution that can avoid the need for disputes to escalate to lawyers and courts.
To truly understand this issue from a family law legal perspective, it's important to look at a number of different considerations, including: your child's age and whether or not the court may give weight to your child's opinion; whether or not you have a custody arrangement in place and how the courts may deal with this; and the court's past decisions regarding the issue of vaccinating children.
Your Child's Age Plays a Role in the Discussion
To begin with, it may be important to consider your child's preferences when trying to settle a disagreement between you and your former partner.
At the age of 16, a child's right to make their own decisions independently is fairly absolute. In other words, if your child is 16 or older, they can decide on their own to get or not get a vaccine. The exception is special circumstances, for example, for a child with special needs.
The situation is not as clear for children who are 12 to 15 years old. Under Ontario's Health Care Consent Act, some children in this age group can consent to receiving 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 the Pfizer 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.
This means that not all children aged 12 to 15 will be able to consent to receive the Pfizer vaccine on their own. For example, children who have a disability that impedes their capacity to provide informed consent will require consent from a parent or guardian to receive the vaccine.
If a disagreement between parents means that the decision to vaccinate a child must proceed to court for a judge's decision, the courts will then consider each child uniquely to determine whether your child is capable of understanding the medical procedure or treatment, and what the potential positives and negatives may be. The judge will also consider whether your child understands the potential harms of denying the treatment (as in the case of a vaccination). Your child must also be in a position to make a decision without feeling forced to decide between their conflicting loyalties to both parents.
What this ultimately means for parents of older children or teens is that your child may not be required to follow your wishes regarding whether or not they receive the vaccine.
What about when a COVID-19 vaccine is approved for children under the age of 12? If parents cannot agree and the matter is brought before the court for a determination, a judge will typically make a ruling based on the "best interests" of the child, having regard to all the unique factors of your child in the context of your family. It's important to remember, too, that 12 is not a "fixed" age when it comes to a child's decision-making ability and will depend on the particular circumstances of your own family, the maturity level of your child, etc., as determined by the judge hearing your matter.
It is our expectation that we may see more court decisions involving parents in disputes over whether to have their children vaccinated with the COVID-19 vaccine, especially once the vaccine becomes approved for children under the age of 12. That being said, it is important for both parents to ask the same question that is true in all custody-access matters that end up before a judge: is this stranger – the judge – better able to make these decisions about my children than we, as their parents?
Custody Arrangements and Why the Court May Disregard Them
Many separated partners have some form of custody agreement (now called decision-making ability) or court order in place. This can take a variety of different forms, including a Parenting Arrangement, a Custody Agreement, a Separation Agreement, or a formal Order from a court. Regardless of the particular form, these documents generally outline how major decisions regarding the child's life will be made. These major decisions often include decisions regarding the child's health care. In past cases, parents have tried to rely upon these documents to determine whether or not their child should be vaccinated. However, it is important to note that courts will not always be bound by these agreements or orders and they have, in certain circumstances, altered these with respect to which parent will be allowed to make decisions regarding health care.
The main consideration of the court in these matters is what is in the "best interests" of your child. If the court decides that the present circumstances and the contractual terms of the agreement between you and your former partner don't reflect the best interests of the child, they can override that term and do what they feel is best for your child.
What this ultimately means for parents is that if your existing custody arrangements do not reflect what is best for your child, which is a determination for the court to make, it may be disregarded. This means that even though your former partner may have medical decision-making authority, if you believe that they are not acting in the best interests of the child with a specific decision, that decision may be open to challenge.
It is also important to be aware that, if you proceed with vaccinating your child without authority to do so (either because you don't have decision-making power in an existing agreement or court order, or in violation of a court's decision on the issue), you could face punishment (called sanctions) from the court.
The Courts' General Practice Towards Vaccinating Children
As of the date of this article, there have been no Canadian court cases that have ruled specifically on any of the COVID-19 vaccinations. However, it would be safe to assume that the courts in Ontario – and Canada in general – will almost undoubtedly approach these vaccines in the same manner as other vaccines, given the gravity of the current pandemic.
Generally speaking, courts have decided in favour of the parent wanting to vaccinate their children. A leading Ontario case on this issue is C.M.G. v. D.W.S., a 2015 decision. In this case, the Court ruled that a 10-year-old child was to be vaccinated against her mother's wishes, as requested by her father. The judge made this ruling despite the parties' agreement that gave the father and mother joint custody, with an agreement between them that the child would not be vaccinated prior to the age of 12, when the child would be able to decide for herself whether she wanted to be vaccinated. The parties' agreement also gave the mother final decision-making authority for all major decisions for the child. The judge ultimately determined it was in the child's best interests to be vaccinated. This reflects the public policy objectives of both the Ontario and Federal governments. The court also relied upon medical advice that the benefits the child would receive from being vaccinated ultimately outweighed the mild potential side-effects of being vaccinated.
In a more recent Ontario court decision, B.C.J.B. v. E.-R.R.R., released on September 28, 2020, the court stated its opinion that vaccines are both safe and effective when it comes to preventing vaccine-preventable diseases and that their widespread use has led to the reduction or eradication of such diseases in our society. In this case, the judge ultimately awarded the father decision-making authority over whether or not the child should receive Ontario's publicly funded vaccination. It is worth noting that the judge in this particular case specifically stated that his ruling would not apply to a future COVID-19 vaccine (none of which had then been approved).
This is, however, not a consistent sentiment amongst judges. Other judges have been willing to make a ruling regarding decision-making authority over the COVID-19 vaccines with an eye to the future. For example, in the Ontario case of Tarkowski v. Lemieux, released on June 9, 2020, the judge did give the father authority to make a decision regarding the COVID-19 vaccine, should one become available (again, this case was decided prior to any vaccine's approval for children or young people).
In conclusion, courts will generally rule in favour of the parent wishing for the child to be vaccinated (although it is important to note that there have been exceptions). Without any history of adverse reactions or allergies to vaccines, it will generally be considered that it is in the best interests of the child to be vaccinated.
If you have any questions about this issue, or any other issue related to the impact of COVID-19 on your parenting arrangement or court order, please contact us to schedule an appointment for legal advice.
This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.
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