COVID-19 Vaccinations for the Children of Separated Parents: Who Should Decide?

Health Canada has approved the Pfizer-BioNTech Covid-19 vaccine for children aged 12 to 17, and Courts are beginning to adjudicate which parent should have the decision-making authority over whether a child receives that vaccine, where the separated parents disagree.

In B.C.J.B. v. E.-R.R.R. I, 2020 ONCJ 438, the father of a 10-year-old child brought a pre-trial motion seeking decision-making authority over whether the child should be vaccinated. The child never received the childhood vaccines that other children in Ontario routinely receive.

Justice Finlayson noted that the decision-making authority over whether a child should be vaccinated is an incident of custody. The legal test for this type of application is the best interests of the child (para 58).

Justice Finlayson canvassed the pre-COVID-19 caselaw where the Court was asked to decide which parent should have decision-making authority concerning a child’s immunization (paras 160-185). Following this, Justice Finlayson took judicial notice of the following facts:

1. 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 (para 186);
2. the harm to a child, flowing from contracting a vaccine preventable disease, may even include death (para 187);
3. the governments of Canada and Ontario have a coordinated immunization strategy in the interest of public safety. The strategy includes sophisticated delivery systems, oversight and vaccine safety monitoring and compliance measures. Government policy, at all levels, supports the widespread use vaccination to promote individual health and public safety (paras 191-192).

Justice Finlayson granted the father’s pre-trial motion. He found that it was in the child’s best interest that the father be granted decision-making authority over whether the child should receive any of the existing publicly funded vaccines in Ontario (para 245). However, Justice Finlayson did not grant the father the authority to decide whether to administer a future COVID-19 vaccine, as no such vaccine existed at the time of the motion.

In I.S. v. J.W., 2021 ONSC 1194, the mother was the sole custodial parent of an almost 6-year-old child. The parents had agreed that the mother would have legal decision-making authority over major issues pertaining to the best interest of the child. The decision-making authority included decisions on medical care.

The mother opposed the child’s immunization for two reasons: (1) her adult son had a serious reaction to a vaccine when he was one month old (which suggested a doubt that vaccines are safe); and (2) the mother claim to have contracted measles despite immunization (which suggested that the vaccines are not efficacious). Justice Bale adopted the reasoning of Justice Finlayson, specifically, the adjudicative facts around vaccinations that the Court took judicial notice of (paras 182-183).

The father sought an Order for the child’s immunization. Justice Bale found that it the potential harm that could be caused to the child in further delaying this potentially life-saving form of preventative medicine outweighed the deference that should be given to the mother’s decision-making authority and anecdotal objections (para 185).

Justice Bale ordered that the mother to forthwith devise and implement a schedule for the child’s routine immunizations with the child’s current health care practitioners. If the child’s immunization schedule has not progressed satisfactorily by August 31, 2022, Justice Bale held that the father may initiate a review of this decision and seek sole decision-making authority over all aspects of the child’s medical care (para 186).

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