Adam Norton – September 2021
Getting vaccinated is an important medical decision, and we encourage you to take the initiative and book an appointment today. However, what if the other parent chooses not to? Will a court modify custody or parenting time if a parent is unvaccinated?
While there has not been a case addressing this issue in Nova Scotia, a case in Cook County, Illinois involved a judge revoking custody rights from a mother who was unvaccinated.1 Ms. Rebecca Firlit told the court when asked that she did not get the vaccine as she had previous bad reactions to vaccines. That order was later rescinded by the court as an overreach, as the matter was never raised by the parties. The husband intends to pursue the original order.
In Nova Scotia, if a party raised the issue of a parent being unvaccinated, the court would apply the “best interest of the child” test to determine if modifying parenting time is appropriate. When considering the child’s best interest, the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.2
The history of the child’s care will be relevant, especially if the parent that primarily cares for the child is unvaccinated. Based on the child’s age and stage of development (normally in their teens) the court may consider the child’s wishes to live with a particular parent which may or may not relate to their vaccination status. A parent cannot unilaterally deny access to the other parent so any previously existing order or agreement will be relevant, as will any unilateral actions a parent took to prevent contact with an unvaccinated parent. Overall, the court will consider many factors and will weigh the child’s potential health impact from living with an unvaccinated parent against the benefit of the child having access to the unvaccinated parent
This blog is not a comprehensive treatment of this topic or legal advice. If you or a family member require more information, we recommend booking a consultations with MDW Law today so our lawyers can assist you.
1 Keilman, John. “Cook County Judge Rescinds Order Stripping Unvaccinated Pilsen Woman of Child Custody Rights, But Fight May Not Be Over.” chicagotribune.com. Chicago Tribune, August 31, 2021. https://www.chicagotribune.com/coronavirus/vaccine/ct-covid-child-custody-vaccine-judge-20210830-pcgg4sznzzfd7mqadk4yztzisa-story.html.
2 Section 16(1) of the Divorce Act, RSC 1985, c 3 for married parents; Similar consideration in Section 18 (6)(a) Parenting Support Act, RSNS 1989, c 160 for unmarried parents.