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As worries of a new wave of Covid-19 appear just before school resumes and with vaccines approved for children aged 12 and up, a renewed focus on whether children should receive the Covid-19 vaccine seems likely. Yet, what happens if separated or divorced parents are unable to agree on whether a child should receive the vaccine? These decisions have the potential to be polarizing within families as vaccines do not offer the possibility of any compromise between parents.

Mature Minors May Consent to Vaccinations

Should a disagreement arise between former partners, it is important to recognize that the child’s own preferences carry weight and may play a role in any discussion. They may also be able to provide independent consent to receiving a vaccination. Ontario legislation does not set an age of consent for medical treatment, relying instead on an individual’s capacity. Section 4(1) of the Health Care Consent Act states that a person has the capacity to decide medical questions if they are able to understand the information that is relevant to a treatment decision and able to appreciate the reasonably foreseeable consequences of their decision. This sets a standard for “informed consent”. Thus, a child’s age does not solely determine whether they are capable of making medical decisions without parental approval, with a child’s maturity level more illustrative of capacity.

Courts Can Disregard Domestic Contracts to Safeguard a Child’s Wellbeing

Many co-parents will have an agreement or court order setting out the decision-making responsibilities of parents. The document will indicate how major decisions concerning a child’s welfare should be made, which will usually incorporate provisions regarding a child’s health care. Parents may try to rely on these documents in any disagreement over whether a child should be vaccinated, however, should the issue escalate before the courts, the best interests of the child remain the focus. This enables courts to determine outcomes irrespective of any terms set out within domestic contracts. Section 56(1) of Ontario’s Family Law Act confirms that in matters respecting the education, moral training or decision-making responsibility or parenting time with respect to a child, the court may disregard provisions of a domestic contract where the court believes it would be in the best interests of the child. Similar provisions appear in the Divorce Act and Children’s Law Reform Act.

Wainwright v. Wainwright reinforces a court’s capacity to disregard parenting terms in a written agreement based on a general duty of courts to not abdicate responsibility for custody issues to third parties. The fact that parents had entered into an agreement is only one factor to be considered when weighing the child’s best interests.

In C.M.G. v. D.W.S., both parents had earlier agreed to not vaccinate their child, leaving it up to the child to decide for herself upon reaching the age of 12. The father later wished for the child to be vaccinated prior to travelling internationally. In declining to give effect to the earlier agreement, the judge found that it did not reflect the reasoned analysis the issue required, and that it represented a simple ban on vaccinations when complex analysis is required. A scheme that was entered into on that basis did not reflect necessary legal considerations, with the judge finding he was not bound to accept the parents’ previous agreement concerning vaccinations.

Courts Expect Parents to Educate Themselves When Making Decisions About Vaccinations

In any conflict between parents over whether their child should receive vaccinations, parties will often find the reasonableness of their decision-making called into question. Particularly when one parent declines to follow routine medical advice. In deciding the issue, courts review the information the parents relied upon to arrive at a decision, which is contrasted with the weight of medical advice. In B.C.J.B. v. E.-R.R.R., the mother’s past and current decision-making was called into question, with the judge acknowledging that she needed to persuade the court that her choices were in the child’s best interests and to support her argument that the child may be at risk from a vaccine she needed to present some reliable evidence. Justice Harper defined the obligations of parents in C.M.G. v. D.W.S., stating that the duty of parents with decision-making authority is to “inform themselves fully and as objectively as possible in order to make the necessary decision” in their child’s best interest.  

In making a finding about decision-making authority over health or vaccinations, courts favour parents who will make an informed choice based on sound medical advice. In Tarkowski v. Lemieux, the judge accepted that new vaccines may pose some risk and that it was imperative for parents to weigh professional medical advice. Consequently, parents who fail to solicit and engage with medical advice may lead courts to find the parent exhibits a bias against vaccines. For example, in C.M.G. v. D.W.S., the mother cited a list of “indisputable facts” about the dangers of vaccines, which demonstrated a “lack of objectivity and thoroughness of research”. Instead, the judge believed it showed her rigidly held beliefs, while the research she cited was not grounded in objective facts or legitimate study. Likewise, in a 2012 British Columbia case the mother appeared opposed to vaccines in general, satisfying the court that the father would take an “analytical and evidence-based approach to health care decision-making”.

Courts Have Taken Judicial Notice That Public Policy Supports Vaccinations

In recent court cases where decision-making authority over vaccinations has been addressed, courts have been asked to take judicial notice that vaccines are safe and beneficial. The issue was canvassed extensively in B.C.J.B. v. E.-R.R.R, where the father asked the court to take judicial notice of the science of vaccinations and that federal and provincial government public policy supports vaccines as instruments of public health. The father produced documents including the Canada Immunization Guide which asserts that vaccines significantly contribute to the control of infectious diseases. Documents from both levels of government revealed that public policy supports widespread vaccination to promote individual health and public safety. Justice Finlayson was prepared to take judicial notice of the information contained in the documents concluding that vaccination is safe and effective at preventing disease. Collectively, the information informs how courts should apply the best interests test, as policy “encourages good science-based health decision-making for children, when it comes to vaccines”.  

Avoiding Family Conflict Over Vaccines

The next step in the Covid-19 vaccination effort will be the approval of a vaccine for children under age 12, and that may raise the possibility of further disputes between parents. Caselaw to date suggests that courts put significant weight on public health recommendations and medical opinion which recognizes vaccine safety in determining the best interests of the child. When families fail to reach a consensus, children should be shielded from conflict, with mature children given room to make a decision free from conflicting loyalties to their parents.

Contact Boulby Weinberg LLP in Toronto for Parental Disputes Regarding Decision-Making Authority

The lawyers at Boulby Weinberg LLP in Toronto focus exclusively on family law matters for clients in Ontario and internationally and regularly present clients with customized dispute resolution strategies across an array of family disputes. If you have concerns relating to parenting matters, our lawyers can help you with solutions tailored to your unique circumstances. To arrange a consultation please complete our online questionnaire or contact the firm at 647-494-0113 ext. 102.

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