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Covid -19 Child Parenting Vaccination Disputes

Child Parenting Covid-19 Vaccination Disputes are in full bloom now. Vaccines have been delivered across Canada. Parents are extremely stressed at present worrying about their children going to school again. Anti masking protestors roam the streets across Canada even harassing hospital workers. Vaccines were thankfully rushed through development and are 95% effective. Health Canada has approved the Pfizer COVID-19 vaccine for children and teens aged 12 – 18.  Now vaccines are in the process of being approved for children under age 12. Should you vaccinate your child or not? The majority of parents see the obvious benefit of it but some parents are fearful and resistant. There is no doubt that Child Parenting Covid-19 Vaccination disputes will continue to occur in the coming months.  A new case from Saskatchewan summarizes the current law in Canada for lawyers and parents. These cases will likely be appealed and may go as far as the Supreme Court of Canada. There are some new studies that show risks to the vaccine that do give pause for thought. Clearly, it is a highly emotional argument when two parents cannot agree on what is best for the health of their child.

So- how will Child Parenting Covid-19 Vaccine Disputes be decided by the courts? In today’s blog Lorne MacLean, QC shares a recent interview he gave to Canadian lawyer Magazine on a Saskatchewan  case this week and he provides some thoughts on what courts will do.

“In the Saskatchewan case, O.M.S v E.J. S., Megaw wrote “the father seeks to have the child vaccinated due to his concerns regarding the Covid-19 virus and its effect on this child.” The judge ruled “the best interests of this child operate in favour of an order directing that the father shall be entitled to have the child vaccinated for the Covid-19 virus.”

Our Covid-19 child vaccination dispute lawyers act across BC, Alberta, and in downtown Toronto. Contact our Covid-19 child vaccination dispute lawyers now if you need guidance on issues related to the pandemic. Child Parenting Covid-19 Vaccination Disputes are governed by the application of the best interests of the child test to determine whether a child should be vaccinated, regardless of the de facto custodial parent’s personal views on vaccinations. The impact on vulnerable persons of an unvaccinated child will also be in the Court’s mind.

MacLean Law is a  national family law firm and won numerous accolades as top family lawyers. Lorne MacLean, QC was just named as one of Canada’s 25 Most Influential Lawyers and he was the winning counsel on Canada’s most famous child custody case of Young v Young.

Child Parenting Covid-19 Vaccination Disputes
Lorne MacLean QC wins Top 25 Most Influential Canadian lawyers

Vancouver Child Parenting Covid-19 Vaccination Disputes 1 877 602 9900

Along with the continuing need for donning face masks in public and maintaining social distancing, those with children have had to work through new challenges concerning their welfare, especially about school. Now that a number of  vaccines are available, parents will have an added burden to their decision making. So far there have been minimal side effects and approval for vaccines for 12 and under is imminent. Most parents will weigh the options and determine together if they want to immunize their children with a new vaccine. But this is not so easy a task for separated parents who share parenting and are guardians.

The choice to immunize children is another stumbling block for divorced parents who share guardianship and parenting time. If one parent does not want a child or the children to be immunized and the other does, then the decision is brought to the courts. The evidence for the benefits and safety of vaccines far outweighs any contrary opinions. The overwhelming opinion of reputable doctors and researchers is that all children should be immunized against diseases that could affect their health for the rest of their lives or even kill them. This was the decision of Justice J. Affleck in 2012 in the case of Vincent v. Roche-Vincent, 2012 BCSC 1233. He stated, when referring to the arguments for vaccines, “I reach the same conclusion that the risk with the vaccination are extremely low and the benefit significantly outweigh them.” He ordered that both children were to be immunized.

A spate of Canadian cases has applied the best interest tests and taken judicial notice that the Covid-19 vaccine is safe and effective. Note: even a parent who is not a guardian can apply under section 49 of the Family law Act for the court to decide the vaccination issue.

BC Vaccination Cases 1 877 602 9900

child-parenting-covid-19-vaccination-disputes
Lorne MacLean, QC Top 25 Canadian Lawyer and child-parenting-covid-19-vaccination-disputes lawyer

 

In the case of D.R.B. v. D.A.T 2019 BCPC 334, a similar question confronted Judge S.D. Frame faced. In this particular case, divorced parents of two children could not agree on periodic immunizations. One parent did not want the children to be immunized with vaccines when the virus no longer existed in Canada. The Judge noted that one parent had a letter from the BC Interior Health detailing information directly from the CDC, The Center for Disease Control, explaining:

“Immunizations play a central role in the prevention of infectious diseases in children and the severe complications that can result. In addition, immunized children contribute to a herd immunity effect to protect the community as a whole. In particular, children who travel abroad should be up to date with the immunization schedule”.

Judge S.D. Frame wrote: “the US Department of Health and Human Services Centre for Disease Control and Prevention notes that not everyone is recommended to get the immunizations”. In this case, the children of this marriage did not fall into that category. The children had no prior life-threatening allergic reaction to a dose of that vaccine in question.

To help with his ruling, Judge S.D. Frame considered the decision of Justice Wedge J. in M.J.T. v. D.M.D., 2012 B.C.S.C. 863. Justice Wedge J. assessed the same question of immunizations. Justice Wedge J. referred to expert evidence from Dr. Scheifele, Professor of Pediatric Medicine at the University of British Columbia, and practicing physician at BC’s Children’s Hospital. Dr. Scheifele provided strong evidence supporting the importance of vaccinations and also addressed questions regarding adverse reactions to any o vaccinations recommended for children. The court wrote that it was:

“Dr. Scheifele’s opinion that none of the vaccinations given for these 14 infectious diseases posed any greater risk of significant adverse effects to the child than to any other child his age. All the vaccines are well tolerated by children. Most importantly, it is his view that the benefits of securing the child’s protection from each of the 14 diseases far outweigh the limited risks of a vaccine’s side effects”.

Despite the assurances of a certain president south of our border, a reliable, safe vaccine for COVID-19 is still a long time away. Vaccines go through a stringent series of tests before they are released to the general public. Yet, despite that, the debate of whether or not to immunize children is already starting.

Calgary and Toronto Child Parenting Covid-19 Vaccination Disputes 1 877 602 9900

Steve Benmore, who recently wrote a piece in the Lawyer’s Daily, notes that there are legitimate reasons to both vaccinate or not vaccinate a child. He discussed a recent case of Tarkowski v Lemieux. In that case, separated parents could not agree on whether their child (Avery) should be given a vaccine against the COVID-19 virus once one becomes available.

Justice Penny Jones stated:

“Should a vaccine against COVID-19 become available, these parents will have to decide whether Avery should be vaccinated against it. Since children and young people often shown 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 Avery may be a decision to protect other vulnerable people against Avery spreading the disease. As any vaccine may pose some risk, and a new vaccine may pose unknown risks, it is imperative that Avery’s parents receive the same advice on this issue from a medical health professional.”

Justice Jones ordered that if and when a vaccine for COVID-19 becomes available, both parents should meet with the child’s doctor to discuss vaccinations. If the mother refuses to attend this meeting or refuses the vaccination for Avery the Court is granting the father, as an incident of custody and access, the power to consent to the vaccination against COVID-19.

Covid-19 Guidelines For Parents

In Buckman vWyckham, 2020 BCSC 2076, Justice Kent considered an application for parenting time having regard to the PHO regime. As part of that consideration he noted at paras. 44 to 46:

[44]  Both parties referred to case law respecting COVID-19 and related parenting disputes, including Ribeiro v. Wright, 2020 ONSC 1829, and Le v. Norris, 2020 ONSC 1932.

[45]      Ribeiro is one of the first such cases and has been frequently cited across the country. In all these cases the courts have emphasized:

1. COVID-19 parenting issues will be decided on a case-by-case basis as each case is different and involves unique circumstances;

2. the court expects parents to meticulously adhere to all COVID-19 safety measures, including social distancing, use of disinfectants, and compliance with public safety directives;

3. the court also expects parents to demonstrate sensible insight, meaningful COVID-19 awareness, and all appropriate precautions necessary to protect the children;

4. the parents must do whatever they can to ensure that neither they nor their children contract COVID-19 – every precautionary measure recommended by governments and health authorities must be taken by both parents and, with their help, by the children; and

5. Neither parent should do anything that will expose themselves or the child to an increased risk of contracting the virus.

Ultimately, it is the responsibility of the parents to do all the research, talk to doctors and health professionals, and make an informed decision. If separated parents cannot reach a consensus, then it will be left to the courts. The courts will then objectively weigh the evidence and determine what is not only best for the child but society. A recent CBC article summarizes our position as correct.

If you have a Child Parenting Covid-19 Vaccination Disputes case contact our Covid-19 child parenting dispute lawyers for help.