Children have gone through tremendous stress throughout the course of this pandemic from a combination of constantly changing school attendance, decreased socialization and group activities, and the stress of watching their parents and guardians struggle through constant worries. The situation is improving in large part because the vaccine eligibility has increased, first to teenagers ages 12-17, and now children over age 5 will most likely be eligible to be vaccinated before the end of the year.
When it comes to family law, the ultimate question is what happens when separated parents do not agree about whether or not to vaccinate their children. The issue did not start with COVID, rather it goes back decades, covering any number of vaccines that children are scheduled to receive before they turn 18. When teens first became eligible for the vaccine, it was unclear how the courts would handle these situations – would they follow similar cases with other vaccines, or would this be something novel? Now, a recent decision from the Ontario Superior Court sheds a clear light on how courts will likely handle this issue moving forward.
A.C. v. L.L.
In the case of A.C. v. L.L. (the names anonymized so as not to identify the children), 2021 ONSC 6530, the separated parties are the parents of 14-year old triplets, named in the decision as P, J, and E. P and J live with their father, and E resides with their mother. The debate centred around the vaccination and in-person learning. The mother did not support the vaccine, and did not wish for E to be vaccinated. She also wished for P and J to return to in-person learning, which their father did not want them doing until they had received the COVID-19 vaccine. In her haste, their mother withheld P and J’s health cards and identification, since they would be required in order to administer the vaccine.
The Court analyzed both issues with a view towards the best interests of the child. The best interests of the child are a core legal concept in family law, where the court will analyze factors such as the child’s needs, their views and preferences, the history of the child’s care, future plans for a child’s care, the existing family relationship, and the responsibility of each person to care for the child. The court also took ‘judicial notice’ (accepted as fact) the opinions of public health, and the leading scientific evidence in assessing the issue.
Under the Health Care Consent Act (the “Act”), the teenagers could ultimately decide whether or not they wished to receive the COVID-19 vaccine. The Act does not list a minimum age for medical consent, but requires that a person “is able to understand the information that is relevant to making a decision about the treatment…and able to appreciate the reasonably foreseeable consequences of a lack of decision.” This means that some younger people will be able to provide their own consent to health care treatment, whereas others who are years older may not.
Here, the Court ruled that P and J, who wished to be vaccinated, should be allowed to receive the vaccine, but E who did not wish to receive the vaccine would not be made to. Similarly, the Court relied on public health guidance to determine whether the children living with the father would return to in-person learning. The father had stated he would be alright with the children returning to in-person learning, but only two weeks after the children had received their second vaccine. The Court however found no scientific basis for that position, and instead ruled that they return to the classroom after their first shot.
When the Court Overrules Parental Influence
In a case from October called Saint-Phard v. Saint-Phard, 2021 ONSC 6910, a father petitioned the court for sole authority to vaccinate his almost 14-year-old son. The Court relied on the previous decision in A.C. v. L.L. and its guidance re: public health reliance to issue its decisions. It also reviewed letters provided by two doctors, one in support of the son being vaccinated, and the other relenting because of concerns over the child’s asthma.
More notable though was the influence of the child’s mother on his thinking. The teenager was represented by the Office of the Children’s Lawyer, which is tasked with representing children’s interests in such cases. He had initially told his lawyer and his father that he wanted the vaccine, but then after seeing his mother’s doctor told him that he “did not want to die.” He made confusing statements about wanting to wait until 2023 (although he could not explain why), and shared anecdotal stories his mother had related about someone becoming paralyzed after receiving the vaccine.
The Court found that the child was unduly influenced by his mother and her doctor. Not only was their evidence not credible, but it was contrary to public health guidance, and appeared to confuse the child. The Act requires that a person be aware of the consequences of choosing or refusing medical treatment, and in this case the child did not have a full awareness of the consequences. The court ruled in the father’s favour, and that the boy’s mother “shall not tell, or suggest…directly or indirectly, that the COVID-19 vaccines are untested, unsafe, ineffective, or that he is at particular risk from them.”
While children under age 12 may be too young to make decisions, they are certainly impressionable. These decisions shed great light into how the law will deal with the COVID-19 vaccine and children moving forward. Reliable evidence from public health will almost always take precedence, and undue negative influence from one parent will likely be recognized by courts as having negative consequences on a child’s health.
These issues are complicated, and parents require a skilled family lawyer to help navigate these waters. I represent parents and families throughout the Greater Toronto Area in complicated family law disputes, and use the law to support my client’s interests at every moment. Contact me today to learn more about how I can help.