Adam Norton – September 2021
There have been flurried discussions with the rollout of the COVID-19 vaccines. Currently people aged 12 to 17 may receive the same 2-dose schedule recommended for adults, and no COVID-19 vaccine has been approved for use in children under the age of 12 in Canada.1 There are expectations that once testing is completed, most children will be able to be vaccinated. But what do you do when parents disagree about vaccination of the children? And what if the child disagrees with being vaccinated?
Although there are no COVID-vaccine specific cases yet, the courts have grappled with this issue before. Recently, in B.C.J.B. v E.-R.R.R.,2 the Ontario Court of Justice granted decision making authority over a child’s vaccinations (non-Covid-19 related) to one parent, over the protest of the other parent, even though the other parent had sole custody previously. When parents cannot agree, the court must decide what is in the best interest of the child. The court canvassed prior case law and took judicial notice that Ontario vaccines had reduced or eradicated vaccine preventable diseases, and that harm could result from a child contracting a vaccine preventable disease. The court did not decide that it would always order vaccination but did say that immunizations are generally in the child’s best interest, and the court will generally decide in favour of immunization. The issue of COVID-19 vaccination was expressly not addressed, to be decided at a later hearing.
Most Children Under 12
Applying that framework, the court will look at the child’s physical, emotional and psychological safety, security and well-being. The court will look to any available scientific evidence on the safety of the vaccine. The court will also look to previous decision-making of the parent looking to avoid immunization and reasons for not immunizing the child. Most of the case law suggests the court is likely to authorize the pro-vaccine parent to make the decision.
When children are old enough, they may be considered a “mature minor”. Mature minors have autonomy over their medical decisions, and a medical professional will not administer immunization against a mature minor’s wishes. This is currently relevant to parents with children 12 to 17 as they may be found to be mature minors and are currently eligible to receive the vaccine. There is no fixed certain age at which a child will be considered a mature minor because children mature at different rates. However, if considered to be a mature minor, their opinion will likely be considered by the court, if this is raised by the parties. In Chmiliar v. Chmiliar 3, for example, the Alberta Queen’s bench awarded a parent authority over vaccination for a 10-year-old child, but not over his 13-year-old sister, because she was found to be a mature minor.
In a recent unreported decision from Saskatchewan, the Court found in favour of a father seeking to vaccinate his 13-year-old daughter 4. The Court found the child’s fear of vaccination was influenced by her mother. The Court rejected a doctor’s diagnosis that the daughter suffered from a possible vaccine toxicity, based on the child’s vague memory of her medical history. The Court further held that the father following COVID-19 protocols such as sanitizing her hands, and online classes, was not punitive in nature and did not negatively affect the father’s decision-making ability. The Court held that immunization with consultation from the child’s family doctor was in the child’s best interest. This decision is currently under appeal.
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 Canada, Public Health Agency of. “Government of Canada.” Canada.ca. / Gouvernement du Canada, August 27, 2021. https://www.canada.ca/en/public-health/services/vaccination-children/covid-19.html.
2 B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438 (CanLII), https://canlii.ca/t/j9z23
3 Chmiliar v. Chmiliar, 2001 ABQB 525, https://canlii.ca/t/5m42
4 Quenneville, G. (2021, September 23). Divorced Sask. parents fight in court over covid-19 vaccination for teen daughter. CBCnews. Retrieved September 25, 2021, from https://www.cbc.ca/news/canada/saskatoon/divorced-couple-court-fight-daughter-vaccination-1.6180214.