UPDATE: Divorce and Disagreements on COVID Vaccination of Children in Canada

On Friday, November 19, 2021, Health Canada approved the Pfizer-BioNtech’s Covid-10 vaccine for children aged 5-11. Now families with children ages five and up can vaccinate their children against Covid-19.

This has created heightened anxiety for parents who genuinely believe vaccines are not the way to go and that they may have long-term and negative consequences we may not yet know about. Equally, the issue of vaccination has created conflict between parents who truly believe vaccines are helpful and those who do not.

Watch this short video on parental disagreements over vaccinating kids with COVID19 vaccination: 

Why is this relevant in family law? For separated parents, the decision to vaccinate or not vaccinate children can be contentious. The issue of vaccination has been litigated by the courts prior to Covid-19, but the nature of the pandemic is such that the division surrounding the pandemic will likely fuel litigation around the issue.

Parents have very strong opinions regarding COVID vaccines. If they disagree on getting them for their children or not, many will not hesitate to take the issue to court because it is very important to them.

We Disagree on Vaccinating our Children and We are Separated. What will happen?

Divorced parents can resolve their conflicts through mediation, negotiation, or the Courts. When it comes to vaccination, though, the issue seems to be black and white, and there doesn’t seem to be a middle ground or compromise on whether to do it or not. Therefore, many of these cases end up in court where a judge would have to decide on the children’s behalf:

• The primary goal of the court is to ensure the best interest of the child. The best interest of the child analysis clearly states that the court and family law practitioners must consider the child’s health and emotional well-being under the Family Law Act.
• The health of a child is paramount in a court’s evaluation of a parent’s ability to make decisions in the best interest of the child.
• If a parent is unable to make parental decisions in the best interest of the child, the courts have the ability to alter or reduce certain parental responsibilities that a parent may have.

In order to understand the BC Court’s approach to vaccinating children above the age of 5, let’s look at prior cases and guidance from the government:

BC Human Rights Tribunal Supports Children’s COVID19 Vaccination

In October 2021, the B.C. Human Rights Tribunal published their approach to Covid-19 vaccinations, specifically regarding proof of vaccination, in which they state that vaccination requirements are not in breach of the provincial Human Rights Code and a critical tool in protecting individuals from Covid-19 infection and serious illness – particularly for vulnerable populations.

BC Human Rights states that children are vulnerable populations that must be protected against Covid-19 infections. The number of children contracting Covid-19 has increased in Canada and will continue to be the case unless children are inoculated. As many people may be aware, having read the reports coming from the USA, a child contracting Covid-19 can be serious and fatal.

The Human Rights Tribunal’s position is that unvaccinated children have been seriously ill and died because of Covid-19, including in Canada. This is a serious and present health concern, and the policymakers have been clear that the strongest line of defence against Covid-19 are the Covid-19 vaccines.

Canadian Courts’ Approach to Vaccinating Children with COVID19 Vaccine 

The caselaw regarding Covid-19 vaccines for children is limited but is expected to grow exponentially in the next few months. Let’s look at prior court decisions from across the country:

Saskatchewan Court’s Decision on Vaccination and Children

In O.M.S. v E.J.S.  a Saskatchewan court made the following determination in the best interest of the child analysis:

[119]  In light of the determinations concerning Covid-19, its effects, and the need to be fully vaccinated to avoid these effects, I determine it is in the child’s best interests to have the Pfizer Covid-19 vaccine administered forthwith.

[120]  This is so because she must have the ability to avoid contracting the virus. The most efficacious way that is done at this time is through the administration of the vaccine. The adverse and serious health effects of Covid-19 have been noted. This child’s best interests dictate she be given the best opportunity to avoid such health risks.

Ontario Court’s Decision on Vaccination and Children

Ontario courts have in recent decisions taken judicial notice that Covid-19 vaccinations are in the best interest of children. The court noted that Covid-19 vaccinations have been promoted by all levels of government, and the safety and efficacy of the Covid-19 vaccine has been endorsed by the government and public health officials. The courts have taken into consideration that the National Advisory Committee on Immunization (NACI) strongly recommends vaccination of children as the known and potential benefits outweigh the potential risks.

British Columbia Court’s Decision on Vaccination and Children

The courts in British Columbia have come to similar conclusions regarding the safety and importance of vaccinations for children as a defence against Covid-19. In D.R.B. v. D.A.T.  it was noted that the best evidence is that vaccination is preferable to non-vaccination. Our courts have agreed with other provinces that any adverse reaction to the vaccine vastly outweighs the risk of contracting Covid-19.

Should I Go to Court if I Don’t Want My Kids Vaccinated? 

You can, but all signs are pointing in the direction that you may be unsuccessful on this issue unless exceptional circumstances exist, such as prior illness or health issues that would make the vaccines dangerous for your children.

The issue of vaccination of children will continue to be adjudicated by the courts, but it is important to consider the analysis noted above before going to court with your former spouse over the issue.

Keep in mind exemptions are rare, and the vaccine’s safety has been reviewed thoroughly by Health Canada and NACI.

There are potential risks to a parent who objects to the vaccination of their child against Covid-19. This may impact their ability to exercise parental responsibilities, including the ability to make medical decisions for their children. It may result in orders reallocating parental responsibilities, which in high conflict parenting matters can be impactful.

Please note that this article does not reflect our views on whether children should or should not be vaccinated. We respect freedom of choice and speech. This article merely provides information on your chances of success or loss if there is a dispute on vaccinating your children.

A YLaw, we deal with all things family law, including parenting time, parental responsibilities and guardianship. Contact our award-winning family lawyers at 604-974-9529 or get in touch if you have any questions or need advice on your family law issues.