Canada: What If Separating Parents Disagree Over Vaccinating Their Children? (November 15, 2021)

Vaccine debates are currently at the forefront of public opinion. Unsurprisingly, many separating couples stand on either side of this debate. This leads to the question: what if separating couples disagree as to whether their children should be vaccinated? In our previous blog, we predicted that courts would likely resolve this issue in accordance with government policy and recommendations. In other words, if the Ontario government finds that vaccines are safe for children, then the Ontario courts would likely agree.

All Ontarians turning 12-years-old before the end of 2021 are now eligible to receive their first dose of the COVID-19 vaccine. As well, the Ontario government is currently preparing to roll out vaccines for children between the ages of 5 and 12 - what does this mean for separating parents?

Health Care Consent Act

The decision to receive a vaccine (or any health care treatment) lies with the individual, so long as the individual is able to provide "informed consent" to the treatment in question.¹ This extends to children as well, unless there is reason to believe the child is unable to appreciate the consequences of accepting or refusing the treatment (or vaccine). Generally, the older the child, the more likely they will be in a position to provide informed consent, and vice versa. This issue is ultimately decided by the health care professional who is administering the treatment. Assuming the child is too young to consent to treatment for herself, we move on to the next step.

Decision-Making (Custody) Orders or Agreements

The legal term "custody" was recently replaced with "decision-making". If one parent has a custody or decision-making order or agreement² in their favour, then they will have authority over the child's medical decisions, where the child is unable to make those decisions for herself.

No Orders or Agreements in Place

If separating parents are not subject to a court order or separation agreement setting out decision-making for their children, then they will need to look to a court or arbitrator to decide the issue. The sole factor in a court/arbitrator's decision on this issue will boil down to the best interests of the children. The case of A.C. v. L.L. 2021 ONSC 6530 is the one Ontario family lawyers and separating parents have been waiting for.

The parents, in this case, had triplets, each 14 years of age. Father wanted the children to receive the COVID-19 vaccine, while Mother disagreed. Mother would not provide Father with the children's health cards. The court ultimately sided with the Father, reasoning as follows:

[28] The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated.

The court ultimately ordered Mother to provide Father with the children's health cards within 5 days. Notably, however, the court did not order that the children "shall" be vaccinated, but only that they will be "entitled" to receive the vaccine if they so wish. This is due to Health Care Consent Act, which allows individuals (including children) to decide for themselves whether they wish to be vaccinated.

When Ontario rolls out vaccines for children 5 and up, the same legal analysis is likely to apply: there will be a presumption in favour of vaccination unless a parent is able to provide compelling evidence to the contrary. In practical terms, this "compelling evidence" would likely need to be credible, expert evidence confirming that vaccination would be contrary to the child's best interests, likely due to pre-existing health conditions.

Footnotes

1. Health Care Consent Act, section 4.

2. Parents with separation agreements establishing decision-making responsibilities should be aware: courts still have the ability to disregard separation agreements and impose an order that is in the child's best interests. However, separation agreements are generally informative and persuasive to a court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.