Skip to content

Our Ontario Lawyers

When success matters, there is no substitute for the advantage that comes from experience.

Search for a lawyer below:

Office:

Search Results

We're sorry, We cannot locate any lawyers with that criteria. Please search again.

Sort By:

Experience and Expertise:

How Can We Help? We’ll be happy to match you to the right qualified Lerners Lawyer.
LERNx

Covid-19 Vaccines for Children: Parental Disagreements

6 minute read

The area and practice of family law is shaped by and evolves through societal change, legislation, global events (like a pandemic), and through judicial decisions of the Courts in Ontario and across Canada. FamilyMatters is the Lerners Family Law Group’s weekly update on how that change is being made:

With the start of a new school year, talks about a possible 4th wave, and anticipated access to vaccines for children under 12 years, the topic of vaccinations of children are once again the focus of many family dinners. However, this is more acrimonious among separated or divorced parents that maintain polarizing views on the vaccination of their children.

Parenting agreements

Although parenting agreements may be in place to outline how the child will be raised, the court may disregard the documents if they do not reflect the best interests of the child. Therefore, decision-making authority can be challenged by a former partner even with respect to medical decisions like general vaccinations. The leading case in Ontario is C.M.G. v D.W.S[i], a 2015 decision, which held that the child was to be vaccinated in accordance with the father’s wishes and against the parenting agreement. The judge found that it was in the child’s best interests to be vaccinated and that the benefits outweighed the potential side-effects.[ii] This leading case reflects the general support of public health guidance on vaccinations against vaccine-preventable diseases.

The trend in 2020-2021 case law

With the onset of Covid-19, however, we are beginning to see more legal battles among ex-partners over the vaccination of their children.

At the start of Covid-19, in Tarkowski v Lemieux[iii], the court gave the father decision-making authority with regard to vaccinations of the child. The court reviewed the mother’s beliefs surrounding vaccines and concluded that she exhibited bias due to her hesitancy to vaccinate and belief that it is linked to autism.[iv] The father was in a better position to understand the risks associated with vaccinations.[v] The court also held that should the Covid-19 vaccine become available to children, then the father will have authority to unilaterally decide to vaccinate the child.

Soon after, in B.C.J.B v E.-R.R.R.[vi], the parents did not agree about whether their child should receive the usual childhood immunizations. The father argued that having the child completely unvaccinated against vaccine preventable diseases places the child at an elevated risk in the face of Covid-19. The court agreed with the father and held that the mother failed to provide any evidence of careful science-based research for denying the child to be vaccinated.[vii] The court found that under the circumstances and the medical evidence of vaccine safety, the mother’s actions to not vaccinate were not in the child’s best interest.

More recently, on October 1st, 2021, the court held in A.C. v L.L.[viii] that all governments and public health agencies have endorsed the safety and efficacy of the Covid-19 vaccine.[ix] Thereby, unless otherwise contradicted, the general presumption is that it is in the best interest of the children to be vaccinated.[x] Furthermore, this court also held that it is in the best interest of eligible children to be vaccinated against Covid-19 before attending school in person.[xi]

Specifically, Justice Charney held that:

The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated.[xii]

Justice Charney concluded that in this case the children are entitled to receive the Covid-19 vaccine.

The main takeaway

It is evident that the recent case law in the past year has emphasized public policy and medical opinions that recognizes vaccine safety in establishing the best interest of the child. Absent any contradicting evidence, it is safe to say that the courts are likely to grant the parent wishing to vaccinate their child the medical decision-making authority with respect to immunizations. Therefore, if public policy endorses vaccine safety for children under 12 years, then the court will likely follow suit.

ABOUT THE LERNERS FAMILY LAW GROUP

At a time when much is at stake, there is no substitute for having the experienced and skilled advocates from Lerners at your side. You need compassion and understanding, but you also need someone to protect your interests. Our Family Law Group tailors its approach and strategy to your goals to achieve the best possible outcome. Our team, located in Toronto, London, and the Waterloo Region, serving the GTA, Southwestern Ontario, and beyond, has the experience to handle matters both straightforward and complicated, without ever over-lawyering or contributing to unnecessary conflict. With a successful track record that includes some of Canada’s most complex family law cases, we are focused on getting you results and helping you move forward. Contact us to see how we can help

[i] C.M.G. v. D.W.S., 2015 ONSC 2201.

[ii] ibid at para 106.

[iii] Tarkowski v. Lemieux, 2020 ONCJ 280.

[iv] Ibid at para 73.

[v] Ibid.

[vi] B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438.

[vii] Ibid at para 198.

[viii] A.C. v. L.L., 2021 ONSC 6530.

[ix] Ibid at para 23.

[x] Ibid at para 28.

[xi] Ibid at para 30.

[xii] Ibid at para 28.

LERNx Sidebar

LERNx

LERNx is committed to making the law easier to access for all by publishing high-quality and industry-leading content.

Erin Reid

We are here to help.

Do you have any questions about your unique scenario? Feel free to reach out directly by visiting my Lerners Profile View My Full Profile