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Decision Making and the COVID-19 Vaccine

By: Lacey Bazoian, LMB Family Law

February 2021

Earlier this year, Courts were called upon to adjudicate disputes about timesharing for parents who are “essential workers”, traveling with children, and in-class versus online learning in the time of a global pandemic. As COVID-19 vaccinations begin to roll out across the province and the country, Courts may now be tasked with deciding whether or not children should receive the COIVD-19 vaccine once it is approved for children.

While there has yet to be much substantive litigation relating to the COVID-19 vaccine, below are a few cases which may be relevant to anyone dealing with this issue.

B.C.J.B. v. E.-R.R.R. (2020 ONCJ 438)

The case of B.C.J.B. v. E.-R.R.R. involved a pre-trial Motion by the father of a 10-year-old boy to be given decision-making authority over having the child vaccinated, which the mother opposed. The child had not received any vaccinations and the father was concerned that he would be especially susceptible to contracting vaccine-preventable diseases, and at a greater risk of harm should he contract same, due to the impact of COVID-19.

After a review of number of “vaccine cases”, the Honourable Justice Finlayson took judicial notice of the fact that “Ontario’s publicly funded vaccines are safe and effective at preventing vaccine preventable diseases. Their widespread use has led to severe reductions or eradication of incidents of these diseases in our society.” Justice Finlayson also took judicial notice of the harm to a child flowing from contracting a vaccine-preventable disease, which could include death. (paras. 186-187)

The Court held that it was in the child’s best interest that the father be granted authority to decide whether the child should receive any of the existing publicly-funded vaccines in Ontario, an issue which Justice Finlayson decided should not wait until trial, but specifically excluded the authority to decide whether to administer a future COVID-19 vaccine, which would be determined at trial if necessary.

Tarkowski v. Lemieux (2020 ONCJ 280)

In Tarkowski v. Lemieux, the Honourable Justice Jones dealt specifically with a future COVID-19 vaccine. At trial, both parents made a claim for sole custody of their 7-year-old daughter. The father raised concerns that the mother’s “mistrust” of the medical system, after she initially refused to allow the child to receive regular immunizations. While Justice Jones ultimately found that it was in the child’s best interest for the mother to have sole custody, an exception was carved out for medical decisions, specifically vaccinations, where the father would have final decision-making power.

In discussing the COVID-19 vaccine, Justice Jones noted:

Should a vaccine against COVID-19 become available, these parents will have to decide whether [the child] should be vaccinated against it. Since children and young people often show little or no reaction to the virus, a decision to vaccinate a child may be informed by a public health concerns 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 [the child] may be a decision to protect vulnerable people against [the child] spreading the disease. As any vaccine may pose some risk, and a new vaccine may pose unknown risks, it is imperative that [the child’s] parents receive the same advice on this issue from a medical health professional. (para. 74)

Justice Jones ordered that if the mother refused to consent to the child receiving future vaccinations (including a COVID-19 vaccination if available), the parties should meet with the child’s doctor and if the mother refuses to attend the meeting or consent to the vaccination, the father will have the unilateral right consent to the child being vaccinated.

C.M.G. v. D.W.S. (2015 ONSC 2001)

Both of these cases cite the Honourable Justice Harper’s decision in C.M.G. v. D.W.S., the leading Ontario decision involving vaccinations. In this case, the parties entered into a consent final order and separation agreement providing for joint custody and agreed that they would not vaccinate their child before she was 12 years of age. However, when the mother sought to travel with the then 10-year-old child to Germany, the father refused to consent to the travel unless the child was vaccinated, including the MMR vaccine. Each party sought sole decision-making powers relative to medical issues.

The Honourable Justice Harper appointed an amicus curiae to represent the child and heard evidence from the parties, the family doctor, a Naturopathic Doctor, a Doctor of Chiropractic, and a Physical and Paediatrician Specializing in Infectious Diseases, as well as considered legislation including the Immunization of School Pupils Act, RSO 1990, c I.1. His Honour rejected the mother’s evidence that vaccinations are harmful and concluded:

I find there is sufficient evidence on the balance of probabilities that the child in this case should be vaccinated in her best interests. Public policy as expressed by the Ontario and Canadian governments supports vaccinations as essential to the health of children and the public in general. The World Health Organization promotes vaccinations for the same purposes as a matter of public health and safety. (para. 105)

Justice Harper found that the parent’s agreed-upon prohibition on vaccinations for the child prior to the age of 12 was not in the child’s best interests. His Honour ordered that the father have decision making ability with respect to the child getting vaccinations and that the child be vaccinated prior to the trip to Germany.

A.P. v. L.K. (2020 ONSC 2520)

There is currently an appeal before the Superior Court of Justice from the decision of an arbitrator who declined to order the vaccination of the parties’ two children in the case of A.P. v. L.K. Interestingly, the Medical Officer of Health (City of Toronto) was granted leave to intervene in the appeal.

The Medical Officer of Health (“MOH”) submitted that there is a rising threat to public health through the proliferation of misinformation surrounding the utility, efficacy, and safety of vaccinations, and that this threat arises because of a reduction in vaccines due to vaccine hesitancy which can reduce heard immunity and lead to outbreaks that can put vulnerable people at risk from vaccine-preventable diseases.

The Honourable Justice Akbarali found that the MOH has “a particular expertise and a distinct perspective that is difference from that of the parties”, and that “she is likely to make a useful and distinct contribution to the determination of the issues of public importance raised in this appeal.” (para. 71)

The appeal was scheduled to be heard in September 2020, but as of writing no decision on the appeal has been published.

 

Upcoming Events:

Mark your calendars! The HLA Family Law Subcommittee has some great CPD events in store for 2021. Below are a list of the upcoming Lunch Bucket Seminars:

  •  February 22, 2021 – Bankruptcy Issues in Family Law
  • ·        April 7, 2021 – Business Valuations
  • ·        May 5, 2021 – Human Trafficking and Child Protection
  • ·        June 15, 2021 – Family Group Conference
  • ·        July 12, 2021 – Six Nations Coordination Agreement – Indigenous Child Welfare

Also, make sure you save the date for the 2021 Family Law Webinar conference which will be held on Thursday, October 21, 2021.

Bench and Bar Update:

A few updates and tips for our members.

1.      Attach draft orders, in word, to the confirmations (as word documents cannot be submitted through the portal).

 2.     Review the e-filing memo from Justice Sweeny and the naming protocol (both available on the HLA website).

 3.      There is a new trial readiness form that is required for matters on trial lists. You will be sent a copy of this form if you have a matter on the sittings.

 4.      Regular short motions are usually called Wednesdays and Fridays but they may be scheduled for other days if a Judge becomes available.

 5.      Pay attention to the limit for conference briefs.

 6.      Ensure that you list all documents that you want the Judge to review in your confirmation.

 

Lacey Bazoian began her practice as an Associate at a boutique family law firm in Hamilton before opening her LMB Family Law in 2019. She practices exclusively in the area of family law.

She can be reached at:

5 Main Street West, Suite 705 

Hamilton, Ontario

L8P 1H1

Tel: 289-389-4991

Email: lacey@lmbfamilylaw.ca