It is well known that the topic of vaccinations has a long and contested history. Despite many debates over the years, the issue of whether to vaccinate your children remains the center of many public health disputes.
With a plethora of arguments for both sides readily available on the internet, the vaccination debate has also found itself at the center of various family law disputes.
While the Covid-19 vaccine is not mandatory for children aged five and up, it is highly encouraged by the BC government and Health Canada.
This blog aims to answer questions with respect to vaccinations for children, especially in light of the COVID-19 vaccine and particularly when two parents do not mutually agree.
Are Vaccinations Legally Required?
The decision of whether to do so is entirely a decision left to the guardians of the Children ie: typically, the parents.
Generally, most spouses will come to an informed decision together once they have researched and spoken to relevant health professionals. However, this decision may not be as easy to make while going through in a separation or divorce.
What About COVID-19 Vaccines?
Health Canada has approved the Pfizer BioNTech and Moderna vaccine for children and teens aged 12 and older. Currently, Pfizer BioNTech is the only vaccine approved for children between 5 years of age to 11.
What Happens When Parents Disagree on Vaccinations?
Any spouse can withdraw their consent to vaccinate their child/children. If you and your former spouse share joint parental responsibilities of your child, then you are generally required to make decisions about your child/children’s health care collectively.
Unfortunately, collective decision making isn’t always possible when it comes to divorced or separated parents sharing custody.
Currently, past BC vaccine disputes that have been litigated in Court favor children receiving the vaccine as do several other provincial matters.
The effectiveness of vaccinations is supported by the medical community in Canada, with most doctors advocating for children to get vaccinated according to the proposed immunization schedule.
Are There Any Other Consequences When Refusing Vaccinations?
In terms of the Child, Family and Community Service Act, parents must ensure that all their child/children’s essential medical needs are satisfied.
Should any person believe that a child’s medical needs are not being met, they must report it to the Ministry of Children and Family Development (MCFD).
Therefore, although it is not illegal to refuse having your child vaccinated, you may risk being reported to the MCFD.
In certain circumstances, the child’s wishes may be taken into account, namely, a child should be a mature minor in order to do so.
COVID-19 Vaccine Specifics Following the Recent Ruling by the Ontario Superior Court of Justice
In J.N. v. C.G., 2022 ONSC 1198, a parent’s application to have their child vaccinated was denied.
In this case, a father applied for an order by the Court to have his two children (aged 10 and 12) vaccinated against COVID-19 because their mother refused. Her opposition argument was based entirely on medical and scientific evidence.
Most of the judgment focused on the father’s poor choice of evidence (or lack thereof) to vilify the mother’s character. However, the decision was ultimately based on what the Honorable Justice Pazaratz believed to be in the best interests of the child. In coming to such a conclusion, the children’s views were considered and neither wished to be vaccinated.
The Honorable Justice Pazarats also commented that most of the previous rulings regarding child vaccinations only considered government-endorsed views and argued that there have been many areas of life and the law where the government-endorsed views were wrong.
Ultimately, however, the Court noted that the children’s mother has the responsibility to make decisions for the children in her care; and that she has consistently made informed and child-focused decisions. So, the application to have the children vaccinated was denied.
While this decision is indeed a landmark one considering previous rulings, it will be interesting to see how it is treated by the courts – especially since case law indicates that courts are most likely to favor vaccinations as being in the best interests of the child.
The topic of vaccinations has remained a highly contested issue within the healthcare community. With the COVID-19 vaccine being called into question by many families, the topic has become even more contested.
In cases where parents cannot mutually agree on whether to vaccinate their child/children, the decision is left to the Courts.
It is important to note that there is an overwhelming amount of evidence that exists within the medical community in support of vaccinations. Consequently, case law indicates that the courts are likely to move in favor of the parent who seeks to have their child vaccinated. However, courts will not always opt for vaccination as seen in the recent decision of J.N. v. C.G., 2022 ONSC 1198.
Although it is legal not to vaccinate your child/children, other consequences may exist.
If you are separated or divorced and are having difficulty reaching an agreement with your former spouse on vaccinating your child (be it in general or related to COVID-19 vaccines), it may be beneficial to seek legal advice. Our Family Law lawyers can help you identify legal options for both you and your child. Contact us today!
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