and the COVID-19 Vaccine
By: Lacey Bazoian, LMB Family Law
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.
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
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.
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:
22, 2021 – Bankruptcy Issues in Family Law
7, 2021 – Business Valuations
5, 2021 – Human Trafficking and Child Protection
15, 2021 – Family Group Conference
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,
Bench and Bar Update:
few updates and tips for our members.
draft orders, in word, to the confirmations (as word documents cannot be
submitted through the portal).
the e-filing memo from Justice Sweeny and the naming protocol (both available
on the HLA website).
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.
short motions are usually called Wednesdays and Fridays but they may be
scheduled for other days if a Judge becomes available.
attention to the limit for conference briefs.
that you list all documents that you want the Judge to review in your
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.
can be reached at:
Main Street West, Suite