The Problem

Vaccines against Covid-19 have now been approved for children under 12 years old in Canada. For separated parents, this is a situation that has the potential to lead to a significant conflict.

What do parents do if they don’t agree on whether or not their child (or children) should be vaccinated?

First, consider either alternate dispute resolution such as mediation, or a joint discussion with a trusted medical professional (such as the child’s Pediatrician or Family Doctor) before turning to the courts to decide the issue.

In the event that these attempts to resolve the issue are unsuccessful, it is possible to apply to court for an order to be made by a Judge.

What factors will the courts consider when making a decision?

Ultimately, a court will make a decision based on what is “in the best interests of the child”, in accordance with the test that is set out in section 37(2) of the Family Law Act (“FLA”).

Some of the most relevant factors in this test that courts will be required to consider are:  the child’s physical health (for example, does the child have any relevant medical conditions such as a history of severe allergic reactions to a previous vaccination?); the child’s views (depending on the child’s age); and, the ability of the parents to cooperate with one another in making decisions.

The courts will also examine how the parenting responsibilities, which are listed in section 41 of the FLA, should be divided between the parents. A court may make a term specifying that one parent has the responsibility for making medical decisions, or a term stating that this responsibility is shared equally between the parents. A court might also order a term that explains how disputes must be resolved between parents. For example, the parents might be required to attend mediation to attempt to resolve a disagreement before either parent can apply to court.

Can we predict how the courts will address this issue?

The courts make decisions based on the specific facts of each case, so there is never a guaranteed outcome. That being said, the courts are clear in the early decisions on covid-19 such as Le v. Norris, 2020 ONSC 1932, and Ribeiro v Wright, 2020 ONSC 1829, that parents are expected to use common sense, and to follow Public Health advice.

If are dealing with an issue around vaccination of a child, don’t hesitate to call and seek further legal advice.

Jeanine L. Ball

Associate