When parents share decision-making ability with respect to their children, there is always room for disagreement. When it comes to matters of health and wellbeing, this can be cause for strife, as these issues can become emotional very quickly. A particular issue that has caused several disputes and is likely to become a hot button topic in the coming months relates to the decision of whether or not to vaccinate a child. There are strong opinions on both sides of the issue, and unfortunately, sometimes co-parents do not see eye to eye on this matter. The question of whether or not to vaccinate can become highly contentious, and it also has the potential to affect other areas of a child’s life, including their ability to attend school.

Adding to the questions around vaccination is the ongoing COVID-19 pandemic and the international race to find an effective vaccine against infection. The decision of whether or not to vaccinate a child against COVID-19, once one is available in Canada, may also be the source of parental disagreement.

Ongoing Parental Battle Over Vaccinations

Vaccination has been a source of parental disputes. In 2018 a couple entered binding arbitration to resolve the issue of whether or not to vaccinate their son. The mother in that case believed in holistic medicine and did not wish to have their son vaccinated. At first instance, the arbitrator held that the mother should make the decision about vaccinations. The father has appealed that decision, with the City of Toronto Public Health intervening. That decision is pending.

Court Grants Mother Sole Decision-Making Ability with Exception for Vaccine

A recent decision is one of the first in Ontario to address the right to make a decision about a potential COVID vaccine specifically, as the co-parents of a young girl each sought sole decision-making ability for their daughter. One of the primary disagreements between the two was the issue of vaccinations, and whether or not to proceed with them. The mother, with whom the child primarily lived, had embraced natural medicine and was reluctant to get her daughter vaccinated at all. It was only with a court’s intervention that she had her daughter inoculated with the traditional childhood vaccines. The father, on the other hand, was in favour of vaccination and sought the right to make this decision on his daughter’s behalf. He expressed concern that when a COVID vaccine becomes available, the mother would dismiss the idea out of hand.

The court was reluctant to move the daughter from her mother’s home, where she had been living for the prior four years. She was already enrolled in a local school and the court did not want to cause additional disruption to her life. The judge ultimately granted the mother sole decision-making authority with respect to the child in all areas of her life including education, health and religion. However, the judge carved out the single issue of vaccines and vested any related decisions in the future with the father. In making this decision, the judge referred to a 2015 decision called C.M.G. v. D.W.S.:

[t]here are no veritable scientific studies that have shown vaccinations to be harmful. The control and eradication of certain infectious diseases throughout the world is simply beyond dispute. The rationalization by those who are against vaccinations that such phenomena would have developed without the use of vaccinations is indefensible and illogical.

With respect to a potential COVID vaccination, the court encouraged the parents to work together with their daughter’s physician to come to a decision once a vaccine is available. However, should the parents disagree on the matter, or in the event the mother refuses to consider the option, the father was given unilateral control over whether or not to consent to a vaccine.

The issue of whether or not to vaccinate can be an especially difficult bridge to cross for co-parents on either side of the matter. The common law in Ontario now has a number of precedent decisions on the issue, however, it is far from settled law. Parents who find themselves in a similar dispute should seek the advice of a skilled family law lawyer as soon as possible to help facilitate a resolution.

At Boulby Weinberg LLP, we have extensive experience facilitating and representing clients during family mediation, arbitration and contested litigation. To arrange a consultation with a knowledgeable lawyer at Boulby Weinberg LLP, please complete our confidential online questionnaire, which will provide you with valuable preliminary information tailored to your situation. A representative from our firm will contact you within one business day to discuss your matter further and arrange an initial meeting. To contact our firm without completing the questionnaire, please reach out to us online, or call us at 647-494-0113 ext. 102.

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