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Covid -19 Child Parenting Vaccination Disputes

Child Parenting Covid-19 Vaccination Disputes are in full bloom now.  MacLean Law recently won  BC’s first Supreme Court case on the issue of ensuring a young child obtained all recommended vaccinations including COVID-19 vaccines. Vaccines have been delivered across Canada. The Omicron variant is particularly odious.  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  have been 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. Past BC vaccine dispute decisions favour giving the shots.

A new case from Saskatchewan summarizes the current law in Canada for lawyers and parents. A December 2021 Alberta case ruled the mother would be authorized to have both children vaccinated against COVID-19 but would take steps to ensure both are “emotionally ready” to proceed. The court decision barred the father from discussing or permitting anyone else from discussing the issue of COVID-19 vaccination or COVID-19 in general with the children. The new Alberta decision gave the mother decision making authority over vaccinating a couple’s 10 and 12 year old. 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.

In addition, BC and some other provinces make vaccinations a condition of attending school.

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.

Wishes Of The Child

The court cited Dueck (Re), 1999 CanLII 20568 for the following test for determining whether a
child is a mature minor:

The determination of whether a child is a mature minor must always be made
on a case-by-case basis. The relevant factors a court must take into
consideration are outlined in Wilson on Children and the Law (Toronto:
Butterworths, 1994) at para. 5.21:
1. The child’s age and maturity;

2. The nature and extent of the child’s dependency upon her
guardians in respect of taking care of herself, making her own
decisions, not necessarily requiring living apart and economic
self-sufficiency, but those circumstances would likely be
sufficient to enable the child to speak independent of her
parents so long as the child qua patient like any other patient
fully appreciates and understands the consent to specific
treatment;
3. The complexity of the treatment.

While finding that the child in this case was a “mature minor”, the court noted a significant concern over how free from influence the wishes of the child were.

Justice Michael Megaw held that “… the child’s views, while considered, do not decide the issue. There is concern over how much she has been influenced (by her mother and extended family). There is moreover concern over COVID-19 and the need to be vaccinated.”

However in a recent Ontario case of A.C. v L.L., the parents agreed that all three of the triplets had capacity under the Health Care Consent Act to consent to treatment. Unlike Justice Megaw, Justice Charney considered and respected the position of each of the triplets, leading to the unusual result that P and J could be vaccinated without their mother’s consent, while E could remain unvaccinated.

Parenting Time Restrictions For Unvaccinated Parents

A recent Ontario case from December 9, 2021 greatly restricted a father’s time with his children because he refused to get vaccinated. Here is some analysis on the topic:

[60]      However, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 raises sufficient concerns about parental judgment that direct parent-child contact is not in a child’s best interests. In Ribeiro v. Wright2020 ONSC 1829, Justice Alex Pazaratz wrote at paragraph 14 that there should be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

[61]      Justice Pazaratz went on to write at paragraph 23 of Ribeiro that “judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. …”

[62]      Since the release of Ribeiro, other courts have held that parties must follow COVID-19 protocols, including handwashing, physical distancing, and limiting exposure to others. See:  Skuce v. Skuce, 2020 ONSC 1881, at para. 85.

[63]      In A.T. v. V.S., 2020 ONSC 4198, the court made an order for no in-person parenting time for a father who refused to follow COVID-19 health protocols.

[64]      In Balbontin v. Luwana2020 ONSC 1996, Justice David Jarvis wrote that parents cannot ignore the other parent’s inquiries about how they would comply with government directions. All levels of government in Canada, national, provincial and local, he said, have issued public health notices dealing with preventing infection which include guidelines for physical distancing and, where appropriate, self-isolating. Good parents will be expected to comply with the guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant. Justice Jarvis suspended the parenting time of a parent who was not responsive to the other parent’s inquiries.

[65]      In determining a suspension of face-to-face contact the court must assess the medical vulnerabilities of children in the home, the ability of the parents to follow COVID-19 health protocols and the risk to the child of diminishing their relationship with one parent. See: C.L.B. v. A.J.N., 2020 ONCJ 213. The court must balance the harm of COVID-19 exposure with harm to children being denied face-to-face contact with a parent. See: Pollard v. Joshi, 2020 ONSC 2701.

[66]      In A.G., supra, where the mother sought to terminate the in-person parenting time of a parent who had only had a single vaccination, Justice Spence wrote that there were competing interests at stake. On the one hand, the father’s parenting time with his child increased the child’s risk of infection for COVID-19. On the other hand, all other things being equal, the child should be entitled to have her parent in her life in a meaningful way – in-person contact being more meaningful than virtual contact. Justice Spence balanced these considerations by reducing the father’s parenting time from two hours to one hour each week and requiring that it take place outdoors.

[67]      In L.S. v. M.A.F., supra, the mother only learned at trial that the father was unvaccinated. The mother did not seek to reduce the father’s parenting time of three hours each week but sought additional safety precautions. This court made the following orders to reduce the child’s chances of contracting the virus during the father’s parenting time:

  1. a)   The father’s parenting time shall be exercised either outdoors or in the paternal grandmother’s home.

  2. b)   The child shall not attend the father’s home. This is because both the father and the paternal grandfather, who reside together, are unvaccinated.

  3. c)   The child and the father shall wear masks at all times during the father’s parenting time.

  4. d)   Other than the father, the child shall not be exposed to any adult who is not fully vaccinated during the father’s parenting time. This means that the paternal grandfather, if he is not fully vaccinated, cannot have in-person parenting time with the child at this time.

  5. e)   If the father, or any person that the child will be exposed to during the father’s parenting time is experiencing any cold, flu or other COVID-19 symptoms, or has been in close contact with someone who has had such symptoms, or tests positive for COVID-19, within the prior 5 days, the father is to notify the mother and rearrange the visit.

f)   If the father breaches any of these conditions, the mother may bring a motion to court on an urgent basis to suspend his in-person parenting time.

 

Denial Of Parenting Tine To Unvaccinated Parents

A  January 2022 Quebec decision  ruled that a father temporarily lost visitation rights with his child because he was unvaccinated.  Superior Court Justice Sébastien Vaillancourt ruled that the order was given to protect the 12-year-old child, who is double vaccinated, given his father’s vaccination status and because “the pandemic situation has evolved unfavourably since then due to the Omicron variant.”

We will see more of these disputes and Charter of Rights arguments being made by parents and their children moving forward where courts will weigh public safety, and private health rights. Hiring lawyers like MacLean Law who just won a recent vaccination dispute case concerning normal childhood vaccinations plus COVID-19 shots for an under 12  year old makes sense.

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.

Charter of Rights And Vaccination

Our lawyers  doubt section 7 of the Charter arguments, would persuade a court to find that a child parenting vaccination dispute should not provide the shot to a child or their parent unless both parents and their children agreed to  vaccination.  Even if a parent or mature child can show an infringement of one of their section 7 protected interests, it is unlikely that a court would find that principles of fundamental justice have been violated. In the unlikely event the court did find a Charter violation related to a disputed vaccination, our lawyers expect  the saving provisions of section 1 of the Charter would be used  uphold the injection as a reasonable measure justifiable in a free and democratic society.

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.