Custody and the COVID-19 Vaccine
The initial rollout of the COVID-19 vaccination has begun in Canada. By the end of 2021, widespread dissemination of the vaccine is anticipated.[1]
But what if you don’t want your child to be vaccinated? Do you have any recourse before the Courts?
In general, the Courts have exercised their authority to order the vaccination of a child or to bestow decision making power to the parent best able to make an informed health decision about vaccinations.[2] Two major themes are predominant in vaccination case law:
1. Terms in an Agreement are subject to the “bests interest of the child” test
In the case of C.M.G. v. D.W.S, the parties had a separation agreement which included a provision that the child would not be vaccinated before their twelfth birthday. When the child was ten years old, the mother did not want their child to receive the measles vaccination prior to taking a vacation with her to Germany. The father argued that he would only give his consent to travel if the child was vaccinated.[3]
The judge disregarded the parents’ separation agreement and ordered the vaccination of the child. The Court stated that for issues of custody or access, the best interest of child is the sole consideration and, as such, the Court may “disregard any provision of a domestic contract” where necessary.[4]
2. The Court will grant a parent unilateral power over vaccinations, if necessary
In a more recent case discussing the COVID-19 vaccine, Tarkowski v. Lemieux, the Court granted the father “unilateral power” to consent to the COVID-19 vaccination for the child.[5] The Court came to this decision because:
- The mother initially refused to consent to the child being immunized as an infant;
- The mother expressed concerns that the vaccination may be linked to autism (which is disproved) or serious immune problems;
- When the mother finally agreed to vaccinating the child, she decided to have the child vaccinated one vaccine at a time, which delayed the child achieving immunity; and
- The mother had long-standing hesitation towards child being vaccinated, even after she agreed to it.[6]
The Court in Tarkowski emphasized that given the nature of the COVID-19 pandemic, immunizing the child may really be a “public health concern” for the protection of vulnerable people:
Since children and young people often show little or no reaction to the virus, a decision to vaccinate a child may be informed by a public health concern that COVID-19 is a virus that is easily spread and which disproportionately harms older people, and people with challenged immune systems. Ultimately, a decision to vaccinate [the child] may be a decision to protect other vulnerable people against [the child] spreading the disease. [7]
While the roll-out of the COVID-19 vaccine continues and the side effects of the vaccine are still being determined, it seems very likely that the Court will order a child to receive the COVID-19 vaccination, if it will protect the vulnerable and if it supports public health directives.[1] https://www.ctvnews.ca/health/coronavirus/canada-plans-to-vaccinate-everyone-who-wants-it-by-the-end-of-2021-1.5224265
[2] B.C.J.B. v. E-R.R.R., 2020 ONCJ 438 at para 162.
[3] C.M.G. , at paras 6-8.
[4] C.M.G., at para 33.
[5] Tarkowski v. Lemieux , 2020 ONCJ 280 at paras 75.
[6] Tarkowski, at para 73.
[7] Tarkowski, at para 74.