What if you and your ex cannot agree on the COVID-19 vaccine for your children?
By Sarah Macdonald, Family Lawyer, Calgary
With the Pfizer COVID-19 vaccine approved for children aged 12 and over since May 2021 and with Alberta and other provinces well into the fourth wave, courts across Canada have been seeing more and more legal disputes from parents who cannot agree on whether their child should be vaccinated.
It can be a very polarizing issue, with one parent saying yes and the other no, and the only way to reach a compromise is with one parent backing down from their position. If not, parents will end up in court or arbitration which leaves the judge or arbitrator with the final say. So, what are courts saying?
While there have not been any reported decisions in Alberta, generally speaking, courts have been ruling in favour of a child getting vaccinated. The main consideration for the court is what is in the best interest of the child. For health-related issues, courts usually take their lead from public health officials and health guidelines.
In a recent Saskatchewan decision (O.M.S v E.J.S 2021 SKQB 243), the judge ruled that a 13-year-old child should be vaccinated despite legal opposition from the girl’s mother, as it was in the child’s best interest. In reaching his decision, the judge concluded that “he is able to take judicial note that the Pfizer Covid-19 vaccination is safe and effective for use in people, including both adults and children.”
With there being limited cases relating specifically to the Pfizer vaccination, the judge reviewed other vaccine cases that have come before the court, and almost universally courts have ordered a child to be vaccinated when parents in a family law case are in dispute on the issue.
Interestingly, an Ontario court recently overturned an arbitrated decision (A.P. v L.K. 2021 ONSC 150) where the arbitrator decided that the children should not be vaccinated. The mother had argued that the children had underlying medical conditions that put them at risk of side effects from vaccines. Her expert witness questioned the safety and efficacy of vaccines, stating that they are untested and unsafe.
The decision of the arbitrator was appealed to the court and the court decided that the arbitrator had made a “palpable error” in concluding that remaining unvaccinated presented no risk to the children. The arbitrator’s decision was overturned, and the father was given sole authority on making all future decisions on whether to vaccinate the children.
Even though decisions from other provinces are not binding on Alberta courts, they are considered. Regardless, our courts are most likely to defer to the local public health guidelines when it comes to vaccinating children.
If you are separated or divorced and dealing with the issue of vaccinating your children, the family lawyers at Crossroads Law are ready to help. Contact us today for your free 20-minute consultation.