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Family Matters: When Parents Litigate to Vaccinate

3 minute read

Lerners’ Weekly Family Caselaw Review #8

Every week, the Courts in Ontario and across Canada deliver judicial decisions that shape the area and practise of family law. The Lerners Family Law Group presents one of the most interesting cases from the week of November 9, 2020:

Going to Court, although at times necessary, can be expensive. Litigation requires financial resources and patience, none of which many family law clients have in abundance.

One way in which the law discourages gratuitous litigation is through costs. According to Justice Finlayson, the purpose of awarding costs is “to partially indemnify successful litigants; to encourage settlement; and to discourage and sanction inappropriate behaviour by litigants […] [and] to ensure that cases are dealt with justly.

Rule 24 of the Family Law Rules outlines the framework for costs in a family law proceeding.

In light of the current pandemic and possible rollout of a vaccine in the new year, many separated parents may be left wondering what the Court has to say about awarding costs when parents decide to litigate over vaccinating their child.

In B.C.J.B. v. E-R.R.R., 2020 ONCJ 438 (reasons for Judgment released on September 28, 2020), among other things, the Ontario Court of Justice awarded the Father with decision-making authority over the son’s health with respect to vaccines after the Mother refused to vaccinate him.

The OCJ recently released the corresponding costs decision (2020 ONCJ 512): The Mother was Ordered to pay the Father costs in the amount of $3,000. Why?

  1. The Court found that the Father enjoyed more success than the Mother, as the “vaccine issue” was more complicated, of greater importance to the parties, and consumed more time than the other issues in the litigation.
  2. The Court found that the Mother’s behaviour was unreasonable and that her position to not vaccinate the son resulted in the parties going to Court. According to Justice Finlayson, “Her persistence in refusing to allow [the son] to be vaccinated is contrary to science, to the medical advice she received, to the overwhelming weight of the case law, and to [the son]’s best interests.

It is important to note that this litigation pertained to the vaccines that are publicly funded by the province of Ontario – the Court’s thoughts on a vaccine specific to COVID-19 remains to be seen. However, this case may foreshadow future Court decisions when that time comes, and parents should expect that weight is given to medical evidence and documents provided by the Canadian and Ontario government.

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 and London, 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.

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