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| Ron Shulman |
Based on historical and recent rulings, these are the two other areas of concern that family courts across Canada appear to focus on when making these kinds of rulings.
3) Government directions on COVID-19 vaccinations for children
Another key factor in the courts’ determination has to do with the government’s own directions and established guidelines on COVID-19 vaccines, including their timing and suitability to various age groups.
This sparks an interesting question around the courts’ ability to take judicial notice of various facts, such as the efficacy of vaccines generally, and the existence of legislation intended to protect public health. This issue is covered comprehensively in decisions such as A.P. v. L.K. 2021 ONSC 150 (also A.P. v. L.K. [2021] O.J. No. 53; decision on costs at A.P. v. L.K. [2021] O.J. No. 631, A.P. v. L.K. 2021 ONSC 1054) and B.C.J.B. v. E.-R.R.R 2020 ONCJ 438, both of which were set against the background of determining parental authority over vaccines.
In B.C.J.B. v. E.-R.R.R. the court was asked to provide judicial notice of both adjudicative facts (namely that vaccines are safe and beneficial), and of legislative facts; the latter included Canadian government policy as reflected in the documents such as “Immunization 2020 — Modernizing Ontario’s Publicly Funded Immunization Program,” as well as assorted World Health Organization materials.
After conducting a thorough review of the vaccine-related precedent and the “science of vaccines and vaccinations,” the court took judicial notice of two adjudicative facts: 1) that Ontario's publicly funded vaccines are safe and effective at preventing vaccine preventable diseases, and their widespread use has led to severe reductions or eradication of incidents of these diseases in our society; and 2) that the harm to a child, flowing from contracting a vaccine preventable disease, may even include death (see paras. 186 and 187). The same adjudicative facts were expressly endorsed in the later ruling in A.P. v. L.K. 2021 ONSC 150, A.P. v. L.K. [2021] O.J. No. 53; decision on costs at A.P. v. L.K. [2021] O.J. No. 631, A.P. v. L.K. 2021 ONSC 1054 as well as a case called I.S. v. J.W. 2021 ONSC 1194, at paras. 181-183.
4) Other parameters
Finally, courts will also consider any unique restrictions or relevant facts. For example, in Chmiliar v. Chmiliar 2001 ABQB 525 the court separately considered the merits of vaccinating each of two older children, even over the objection of one parent. It ruled that the 10-year-old child’s best interests favoured her getting vaccinated; however the 13-year-old was not ordered to do so, since she was considered to be a “mature minor” and thus capable of making her own decisions around her medical health.
Urgency might also be a factor: In G. (C.M.) v. S. (D.W.) 2015 ONSC 2201 the parents of a 10-year-old child had agreed to defer a joint decision on vaccines until the child was 12. However, the mother had obtained a court order allowing her to take the child to Germany, where there was an outbreak of measles.
Despite prior agreement with the mother, the father applied successfully for an order giving him authority to have the child vaccinated immediately — which the court granted after considering expert evidence and taking judicial notice of the Canadian and Ontario government health policies around vaccinations.
Creative solutions
Since immunization relates to the important topic of a child’s health, courts have had to balance various concerns with sensitivity. One solution has been to split up the health-related authority between parents, by carving out the vaccination decision and giving it specifically to the one who is best-positioned to act in accord with the child’s best interests on this narrow topic.
This was the approach taken in Tarkowski v. Lemieux 2020 ONCJ 280, which involved the question of whether a 7-year-old child should now receive her routine childhood vaccines. The mother, who was adamantly opposed to vaccinations based on controversial and unproven beliefs, was granted sole parental decision making over the child on all items such as education, religion, general health and well-being.
However, the immunization decision was given squarely and solely to the father, and included the final choice on receiving any upcoming COVID-19 vaccine, if the parents could not agree in the future.
Conclusion
Especially with the recent changes to the Divorce Act, the child’s best interests are always the governing standard for courts to make decisions around vaccinations generally, and around any upcoming immunization against COVID-19 in particular. The cases are just starting to trickle through the court system; it will be interesting to see how courts — armed with established principles — will deal with this contentious issue.
This is part two of a two-part series. Part one: Potential conflict of child vaccination during COVID.
Ron Shulman, a certified specialist in family law, is the founder and managing partner of Shulman & Partners LLP, an exclusive family law practice focused on the resolution of conflicts and ensuring clients are prepared to confidently move on with their lives.
Photo credit / Balora ISTOCKPHOTO.COM
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