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Court not the best option to resolve COVID-19 vaccination disputes

by Stephen Morgan

Separated and divorced parents should think twice before heading to court to settle disputes over COVID-19 vaccinations for their children. 

Unless there are some exceptional circumstances — which I will touch on below — the result is likely a foregone conclusion, since judges across Canada have overwhelmingly sided with parents seeking vaccination, as long as the child is eligible to receive a dose.

Judicial intervention could damage relationships

Even for a parent seeking vaccination, a court application is a very blunt object for enforcing your views. There’s a good chance that the judge will rule in your favour, but your encounter with the adversarial process could cause lasting damage to your relationship with your ex, as well as your child’s.

I recently attended a session for collaborative family lawyers where the speaker suggested practitioners encourage their clients to take a break before rushing to court over COVID-19 vaccine disagreements. I tend to agree that parties should explore their feelings in a constructive way, rather than using the court system as a weapon against a former partner. 

After COVID vaccination eligibility opened up to children between the ages of five and 11 last year, a poll carried out by the Kaiser Family Foundation — a U.S. health policy organization — found that just 27 per cent of parents with kids in that cohort were “eager” to get their child vaccinated. At the other end of the scale, 30 per cent were determined not to have their children jabbed, which leaves a sizeable number in the middle with some level of doubt over the best course of action, whether for religious, safety, philosophical or other reasons.

Vaccination can be a very emotional issue, but if you’re able to talk through and validate your former partner’s concerns in a non-judgmental way, it could take some of the sting out of the situation. In the best-case scenario, it may even lead to an agreement that spares everyone from judicial intervention.

Judges defer to public health guidelines

Sadly, litigation is not always avoidable. But when matters do end up in court, Canadian judges have so far taken a uniform approach to COVID -19 vaccination in children, deferring to public health officials speaking out in favour.

In A.C. v. L.L., one of the cases most cited by courts in various provinces, Ontario Superior Court Justice Robert Charney ruled in favour of the father of 14-year-old triplets, entitling his children to receive the COVID -19 vaccine if they wished, over the objections of their mother. 

“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,” Justice Charney wrote. 

“Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated,” he concluded.

In another Ontario case, L.M. v. C.O., Justice Francine Van Melle awarded the mother of a 10-year-old sole decision-making authority over her son’s COVID-19 vaccination on the same basis. The judge also declined to sanction a report that would canvass the boy’s views, finding that he was “heavily influenced” by his vaccine-skeptic father.

“I find that [the child] is receiving mixed messages about the risks and benefits of the COVID-19 vaccine and that at 10 years of age he is unable to make an informed choice. Given the contradictory information that he is receiving, I find that a Voice of the Child Report would be of no assistance to the court, and would only delay this matter unnecessarily,” Justice Van Melle wrote.

Exceptional cases

Based on the limited court rulings we have seen so far, the only time I can envision a judge siding with a parent who objects to the COVID -19 vaccine would be a case with safety issues. In exceptional cases, a parent may be able to show that the injection poses a significant risk to their child, perhaps because of an allergy to a base component in the vaccine. However, it would not be an easy argument to make, and the objecting parent would need to have credible medical evidence backing up their claim for a court to side with them.

Interestingly, a CTV News report suggests that B.C. teenagers may even be able to take matters into their own hands if either of their parents bars them from vaccination, via the province’s Infants Act. The law allows minors to make their own decisions on medical treatment with the help of healthcare professionals, and was specifically referenced by Bonnie Henry, B.C.’s provincial officer of health, when Health Canada approved the COVID -19 vaccine for 12- to 17-year-olds.

The Act does not set a minimum age for maturity to give informed consent, so it could conceivably be invoked by even younger children, although Henry did not repeat the reference when the vaccine was approved for those between five and 11. Ontario children are out of luck on that front, as there is no equivalent law in this province.

If you and your former partner are at odds about vaccinating your children against COVID-19, consider working with a family mediator who can help you come up with a solution without going to court.

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by Stephen Morgan

Stephen Morgan practices exclusively in family law and is highly skilled and experienced in litigation. He aims to guide clients through a difficult and stressful time in their lives with understanding, support, and practical advice.