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Since the rollout of the COVID-19 vaccines, parents who do not see eye-to-eye on vaccinating their children or themselves are turning to the courts.

Across the country, courts are recognizing that their expertise is law and not medicine. They are taking judicial notice of the safety and efficacy of vaccines. Parents who don’t give consent to vaccinate their child may find that the courts will order that their consent is not required, unless they can overcome that presumption with valid medical evidence. The requirement to offset the presumption of vaccination is other persuasive medical evidence – that meets the threshold of admissibility. Recently, courts have taken even further steps to prevent children from being exposed to COVID-19. Now, unvaccinated parents can even face a loss of their parenting time.

In V.L.M. v B.S.F., a recent New Brunswick case, the parties had three children whom they shared on alternating weeks. The parties’ middle child was immunocompromised. The mother discovered that the father and his new partner were not immunized against COVID-19. The mother brought a motion for the children to be vaccinated.  She also asked the court to consider whether the status of the father’s vaccination should impact his parenting time.

Justice Godbout emphasized that rules of evidence allow courts to take judicial notice (i.e., introducing a fact without witness testimony) of certain undisputed facts in readily accessible, authoritative sources. She was satisfied that judicial notice could be taken of various Health Canada approvals and various facts found about the safety of the vaccine on the Government of Canada’s Public Health Agency website.[1]

The father presented research that he believed supported the lack of safety and efficacy of the vaccine. Recognizing that junk science did not meet the threshold for admissibility, Justice Godbout noted that the father’s “anecdotal research on such a highly specialized topic carries little to no weight in the overall analysis when measured against the sound medical advice of our public health officials.”[2] Justice Godbout granted sole decision-making authority over the children’s vaccination to the mother. She further ordered that the father’s physical parenting time with the children shall be suspended until further order of the court.[3]

Judicial notice of the safety of vaccinations endorsed by governments and public health teams affirms the approach taken by other courts across Canada since the start of the pandemic.[4] Ontario courts have accepted that Ontario’s vaccines are safe and effective in preventing harm or even death.  In A.P. v L.K.  the court took judicial notice of the safety and efficacy of vaccines, so that litigants don’t have to prove the safety and efficacy in each individual case, thus enabling the court to focus on the best interests of the child.[5]

In Quebec, in December 2021, in R.B. c. M.O., a father brought a motion in the Montréal court to increase his parenting time.[6] From a previous court decision, the mother had primary care and custody (under the Civil Code) of their twelve-and-a-half-year-old child. The mother brought a cross-motion to suspend the father’s parenting time. She had recently discovered that the father was unvaccinated and believed anti-vaccination conspiracy theories.

The court reviewed the father’s social media and found favour with the mother’s characterization of the father as an anti-vaccination conspiracy theorist. When questioned, the father stated his belief that he only places himself at risk by not getting vaccinated. When asked his reasons for refusing vaccination, he could not give any or explain his rationale, the court noted.

The mother, who had re-partnered, had two other children too young to vaccinate in her household – a seven-month-old infant and a four-year-old. The mother’s reasonable concern was the twelve-and-a-half-year-old child could be the vector for Covid transmission between the two households.

At paragraph 11 of his decision, the judge took judicial notice < la connaissance judiciaire > of the safety and efficacy of vaccination.[7]  The judge ruled that with the emergence of the highly contagious Omicron variant, the best interests of the children required a suspension of the father’s parenting time until he complies with the recommendations of the public health authority and gets vaccinated.

While such measures may be temporary, these cases demonstrate that the courts will not hesitate to override shared parenting arrangements in an effort to limit a child’s exposure to COVID-19. Those parents that remain unvaccinated could face greater risk of losing parenting time as the pandemic continues.

[1] V.L.M. v B.S.F., 2022 NBQB 023, at paras 36-38.

[2] Ibid., at para 40.

[3] Ibid., at para 69.

[4] Ibid., at paras 32-35.

[5] B.C.J.B. v. E.-R.R.R., 2-020 ONCJ 438 (CanLII), at paras 186-188, 191-193.

[6] Droit de la famille — 212444, 2021 QCCS 5387 (CanLII), at para 15.

[7] Ibid., para 11 < À tout évènement, il est de connaissance judiciaire que la vaccination est une mesure de prévention fortement encouragée par les autorités sanitaires nationales et mondiales. >

Author(s)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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