What happens when parents disagree on vaccinating their kids against COVID-19?

By David Kim, Calgary Family Lawyer, Civil Litigation Lawyer

A serious but overlooked consequence of COVID-19 has been its effect on separated or divorced parents who disagree on vaccinating their kids. For separated parents who share decision-making on their children’s’ health, disagreements over the risks vs. rewards of vaccination can become a hotly contested issue. If the parents cannot come to an agreement on their own, they will likely need to seek the Court’s guidance to overcome this impasse.

What have the Alberta Courts said?

The Court of Queen’s Bench of Alberta recently decided on the issue of parental disagreement on vaccination in the 2021 case of TRB v KWPB, 2021 ABQB 997. In that case, a mother (who was divorced from the father since 2014) wished to vaccinate her 10- and 12-year-old children but the father was against it due to concerns that the vaccine was riskier than the virus itself. He asked the Court to let them “wait and see” if the vaccine was safe. The two main issues before the Court were whether the mother should become the sole decision maker for the children’s health and whether getting vaccinated would be in the best interests of the children.

First, the Court decided that the mother should become the final decision maker for the children’s health and that she was authorized to vaccinate the children without the father’s consent. This was because the father failed to prove that the risks of the vaccine outweighed its benefits and that his beliefs were based on questionable publications about the vaccine. The mother’s lawyer argued that his position on vaccination amounted to “misinformation and conspiracy theories, and his willingness to share [these conspiracy theories] with the children demonstrates that he is not able to make decisions in their best interests.” The Court stated the following:

[29] That issue, however, has exposed both the questionable resources the father is relying on in his decision-making process, and the fact that he has shared that information with the children, increasing their stress and anxiety about vaccination. The children are young and at an impressionable age. Apart from some needle anxiety experienced by ARB there is no indication that either child was ever vaccine hesitant, and indeed BPB initially expressed a desire to receive the COVID-19 vaccination. The father’s actions in this regard are contrary to the emotional and psychological safety, security, and well-being of the children. I am mindful of the fact that COVID-19 vaccination has become a significantly polarizing topic, and the father’s behaviour must be considered in the context of the larger societal picture. While he has not exercised his decision-making responsibility regarding COVID-19 in the best interests of the children, I am not satisfied that there is a sufficient evidentiary record to remove the father from joint decision making with respect to all medical and health related matters. That said, in the event of conflict there needs to be a mechanism for dispute resolution short of a court application. As a result, I direct that in the event of an impasse, and after exhausting all other good-faith attempts at resolution, including the assistance of the parenting coach, the mother will have final decision making authority on all health and medical matters, not related to COVID-19.

Second, the Court found that the vaccine was in the best interest of the children because it was approved by Health Canada as being safe and effective in children age 12-17.Also, the Court accepted the evidence that “the risks associated with vaccines were minimal and [were] outweighed by the risk of serious illness and death to unvaccinated individuals, including children.” The Court further acknowledged that any stress and anxiety felt by the children over receiving the vaccine was directly related to the misinformation received from the father. The Court also rejected the “wait and see” approach given that “the risk of illness from COVID-19 at this particular point in time continues to be high”.

What should you do if you are unsure about vaccinating your kids?

Given the Court’s agreement with Health Canada’s guidelines on vaccine safety and effectiveness, a parent who does not want to vaccinate their kids will need to show strong medical evidence that vaccinating would be against the best interest of the children. Conversely, a parent wanting to vaccinate without consent will have a number of past cases to rely on to support doing so, especially if the other parent’s refusal is based on “misinformation”. However, this does not mean you should vaccinate your children without first obtaining court approval, especially if you are bound by a court order or agreement. This could lead to contempt of Court or Court costs. 

Our highly experienced legal team of Calgary family lawyers at Crossroads Law are here to assist you with any questions or concerns you may have with vaccinating your children. We have represented numerous clients in disputes regarding vaccination of children. Start today by booking your free consultation.

The information contained in this blog is not legal advice and should not be construed as legal advice on any subject. The information provided in this blog is for informational purposes only.