Family Lawyers are still getting cases on refusal to vaccinate children despite COVID-19

Colin Ferguson, Vancouver Family Lawyer, Collaborative Lawyer

As the coronavirus, COVID-19, spreads across Canada, and we see a rise in reported cases and fatalities, we also hear of the great work being performed by healthcare professionals as well as scientists trying to develop a vaccine for this deadly virus. Everyone is hoping for the development of a vaccine so that our lives can get back to normal. However, vaccination of children remains a hot topic in British Columbia, and this issue continues to come up in family law proceedings.

In December 2019, I successfully represented a father in obtaining a court order for his two children to receive vaccinations, as well as a court order for the mother to no longer have decision making power for medical and dental procedures. In the case of D.R.B. v. D.A.T., 2019 BCPC 334 (CanLII), the separated couple had two young children together and were joint guardians of the children. As joint guardians, both parents had an equal voice in decision making power for the children, including their medical and dental needs.

The court heard evidence from both parents regarding the medical history of the children. The father had been trying to have the children immunized in accordance with the BC Immunization Schedule, however, the mother consistently opposed vaccinations. Furthermore, the mother opposed standard dental procedures resulting in the children needing far more serious dental treatments. The presiding judge ruled in favour of the father after reviewing evidence from both parties and previous family law decisions. The Honourable Judge Frame stated:

[41] The current best evidence is that vaccination is preferable to non-vaccination, that it is required in order to protect those who cannot be vaccinated as well as to protect ourselves, and that any adverse reaction the person may have from the vaccine is largely outweighed by the risk of contracting the targeted disease. Both boys are considered to be in good health and have no contraindications in their medical records that would suggest they should not be vaccinated. They are active, social and connected children. They are exposed in their home and social environment to the risk of these diseases and should be vaccinated to be protected against them.

[42] I am also concerned that D.A.T.’s unsupported concerns regarding x-rays have led to unnecessary and painful dental procedures for at least one of these boys. This is not in their best interests.

[43] I am satisfied on the evidence that the parental responsibility for the medical and dental treatments for both boys should lie solely with D.R.B. I order that C.D.B. and A.J.B. be vaccinated in accordance with Immunization BC’s immunization schedule and the recommendations of their family doctor. I further order that D.R.B. have full parental responsibility for the medical and dental treatment of C.D.B. and A.J.B. going forward. However, D.R.B. is required to advise D.A.T. of any medical appointments, recommended treatment, and course of action with respect to the medical or dental treatment of these boys.

While vaccinations are not mandatory in British Columbia, parents who refuse to have their children vaccinated may be reported to the Ministry of Children and Family Development (“MCFD”). Under the Child, Family, and Community Service Act (the “CFCSA”), parents and guardians of children have the requirement to ensure that a child’s basic medical needs are met. These needs generally include regular visits to the dentist, and to a doctor in the event of illness.

Courts have consistently decided that the recommendations of a doctors with respect to children must be followed, including ensuring that prescription medication is taken accordingly. Medical doctors strongly recommend that children receive their vaccinations in accordance with the established immunization schedule which is available through HealthLinkBC. As British Columbia faces the COVID-19 pandemic, there may be a greater interest taken by the MCFD and the Courts to ensure children are receiving scheduled vaccinations.

After separation and divorce, parents sometimes get into disputes over the issue of vaccinating their children. Family lawyers may need to be engaged to deal with this issue in court. It is important to know that there is a high degree of risk in family law proceedings for any parent who refuses to vaccinate their children. Judges must assess what is in the best interests of a child when faced with two parents in a family law dispute who cannot agree on a medical decision for their child. The vaccination of children is strongly supported by medical research and decades of evidence and therefore it is highly likely that courts will support an application to have children vaccinated. The parent who is against vaccinations may lose the right to make medical decisions for their children and may even face an investigation from MCFD or lose parenting time. I have seen these results before in family law cases.

If you are separated or divorced and dealing with the issue of vaccination along with other parenting issues, or you are dealing with MCFD, the British Columbia family lawyers at Crossroads law can help. Issues that deal with the welfare of children are still being heard by the courts in B.C. despite the court closures due to COVID-19.