"Honey, I Vaccinated the Kids!"

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 a weekly update from our Family Law Lawyers on how that change is being made:

On May 5, 2021, Health Canada authorized the Pfizer vaccine for children ages 12-15. The Government later approved the vaccine for children ages 5-11 on November 19, 2021. While this decision is a breakthrough in Canada's efforts to eradicate COVID-19, it has left many parents wondering what the best decision is for their child. This decision is even more contentious in the case of two former spouses who disagree on whether or not their child should receive the vaccine. Although this issue has only been canvassed by courts a handful of times thus far, a clear trend has already emerged: in cases where parents disagree on whether to vaccinate their children against COVID-19, absent clear and compelling extenuating circumstances, courts will invariably favour the parent who wishes to vaccinate the child.

In the leading cases to date, courts have taken judicial notice of the safety and efficacy of vaccines. They have opted to award sole decision-making authority over immunizations to the parent favouring vaccination. Further, many judges have noted that there is no age requirement to consent to treatment under the Health Care Consent Act, 1996 ("HCCA"). For this reason, judges are pointing out that if a child possesses the requisite maturity under the HCCA to satisfy the administrator of a vaccine that they understand the benefits and risks associated with the vaccine (and with not getting the vaccine), they may not need parental consent. For this reason, parents with older children may be able to avoid adjudicating this debate in court if their child is capable of deciding on their own.

Regardless, the bottom line emerging from the case law is that the courts are not interested in debating the efficacy of vaccines.

Judicial Notice on the Efficacy of Vaccines

In Tarkowski v Lemieux (2020), the Ontario Court of Justice considered parental decision-making authority related to COVID-19 vaccinations. However, the question was determined on a hypothetical basis as the Pfizer vaccine was not even developed yet. Justice Jones found that the mother had a history of vaccine hesitancy and therefore awarded the father ultimate decision-making authority on the question of vaccines, including the COVID-19 vaccine when and if it became available.[1] In this early pandemic decision, the judge did not have the benefit of a developed and approved vaccine, and therefore did not take judicial notice of any scientific findings. Since then, case law has developed, and the courts are employing a more general analysis.

For example, despite a COVID-19 vaccine still not being fully developed at the time, in B.C.J.B. v E.-R.R.R., Justice Finlayson, then of the Ontario Court of Justice, took judicial notice of Ontario's publicly available vaccines as a whole.[2] In that case, the father sought decision-making authority regarding vaccinations for the parties' nine-year-old child, including any future COVID-19 vaccinations. In his submissions, the father specifically asked the court to take judicial notice of the science of vaccines. Justice Finlayson declined to take notice as framed by counsel for the father; however, he did state that courts should not have to decide whether publicly funded vaccines are safe. Instead, he deferred to health experts and stated:

[189]     I appreciate that I am taking judicial notice of scientific facts. In so doing, I have had resort to the vaccine cases. I note that the cases have included medical evidence from family doctors, pediatricians, immunologists, and pediatric infectious diseases specialists. But I do not rely on any particular statement made by an expert in any particular case to take judicial notice. Rather the case law, read as a whole, reflects the reality there is no debate in the medical community about the facts about which I am prepared to take judicial notice. So do the documents from the governments of Ontario and Canada that the father supplied to the Court.[3]

Ultimately, Justice Finlayson took judicial notice of the following:

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.[4]

He also took judicial notice of "the harm to a child, flowing from contracting a vaccine-preventable disease, may even include death."[5]  For these reasons, he granted the father's request for decision-making authority as it relates to Ontario's existing publically funded vaccines – but not the COVID-19 vaccine as it had not been developed yet, leaving that issue to be explored at trial. On appeal, this was upheld by Justice Sanfilippo, who found no error in Justice Finlayson's decision to take judicial notice regarding the efficacy of routine vaccinations.[6] Since the COVID-19 vaccine was recently approved for minors, many judges have followed Justice Finlayson's precedent and are taking judicial notice of the efficacy of this vaccine in particular.

The first and leading case that specifically contemplated the efficacy of the Pfizer vaccine for children is A.C. v L.L (2021).[7] Here the mother brought a motion to compel the father to consent to their three high-school-aged children attending in-person school. The father took the position that the children should only attend in-person school once they were vaccinated, which the mother opposed.

In considering these issues, Justice Charney of the Ontario Superior Court of Justice concluded that the government and public health authorities were in a better position than the courts to consider the "health benefits and risks to children of receiving the COVID-19 vaccination".[8] Accordingly, Justice Charney sent a clear message to parents regarding the vaccine, writing, "Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated".[9]

Justice Charney further defended the reasonableness of taking judicial notice on the efficacy of vaccines in response to the mother's argument that because the Government had not made vaccines mandatory in schools, it was ambivalent towards them. Justice Charney swiftly rejected this argument and stated:

[21]       The COVID-19 vaccination has been approved for children aged 12-17, and all levels of Government have been actively promoting vaccination and expending significant resources to make it available to the public. The fact that it is not mandatory for children aged 12-17 cannot be interpreted as ambivalence or uncertainty.

[22]       The fact that Government may try to promote or encourage vaccination through public education and voluntary compliance before imposing penalties on recalcitrant persons speaks more to the nature of public policy than it does to the safety and efficacy of the COVID-19 vaccine. It is understandable that governments may try the carrot before they have recourse to the stick.[10]

Since its release, A.C. v L.L. has been cited in all subsequent decisions regarding vaccinating minors against COVID-19 and has set the tone on this issue.

Less than a month after A.C. v L.L. was decided, Justice MacKinnon, in Saint-Phard v Saint-Phard (2021), took judicial notice that the Pfizer vaccine was safe for children.[11] In this case, the father sought an order for sole decision-making authority over immunizations to facilitate the vaccination of the parties' 13-year-old son. Justice MacKinnon wrote that she would take judicial notice of the following:

• The COVID-19 vaccination has been approved for children aged 12-17.
• All levels of Government have been actively promoting vaccination against COVID-19 and expending significant resources to make it available to the public.
• The safety and efficacy of the COVID-19 vaccine has been endorsed by governments and public health agencies.
• The Ontario Ministry of Health website states that Pfizer-BioNTech vaccine is now licensed by Health Canada for adolescents aged 12 years and older, has been proven to be safe in clinical trials and provided excellent efficacy in adolescents, and that NACI continues to strongly recommend a complete series with an MNRA vaccine for all eligible individuals in Canada, including those 12 years of age and older, as the known and potential benefits outweigh the known and potential risks.[12]

Importantly, in this case, the child in question had initially wanted to be vaccinated. However, his mother had a physician who was against the vaccine speak to him, after which the child was adamantly against receiving the vaccine. The judge found the child's mother had improperly influenced him and provided incorrect information on the vaccine resulting in the child's hesitancy. For this reason, Justice MacKinnon did not give much weight to the child's views and preferences in ordering that he be vaccinated, as she found it was not a properly informed decision. In addition to her order that the father have sole decision-making authority over the COVID-19 vaccine, the judge suggested the father arrange for the child to be properly educated on vaccinations before getting the jab.

The precedent of taking judicial notice on the efficacy of vaccines is not unique to Ontario, as a Quebec judge recently took note of Quebec's Public Health recommendation in Droit de la famille- 211637 and ordered the opposing parent's consent be dispensed with when it came to vaccinating the child parties' 12-year-old son against COVID-19.[13]

Likewise, in O.M.S. v E.J.S., a Saskatchewan court took judicial notice of the threat of COVID-19 to public health and the efficacy of vaccines.[14] In this case, the mother opposed her 12-year-old daughter receiving the COVID-19 vaccine and submitted it was dangerous and experimental. In response, the judge stated:

[113]     Finally, and perhaps most directly relevant to the matters before the Court here, I conclude I am able to take judicial notice that the Pfizer Covid-19 vaccination is safe and effective for use in people, including both adults and children. I form this conclusion by taking judicial notice of the vaccine approval process in Canada and the approval by the health authorities of this particular vaccine. To argue it is experimental as is put forth by the mother and her supporting affidavits is not in accordance with the general knowledge available regarding this approval process and implementation.[15]

Accordingly, the judge ordered the mother's consent be dispensed with and that it was in the child's best interests that the father have the parties' daughter vaccinated in consultation with the family physician.

Finally, in the Alberta case of TRB v KWPB (2021), Justice Kubik also took judicial notice of the efficacy of the Pfizer vaccine and criticized parents who present their children with false information.[16] In this case, the parties had two children aged 12 and 10, whom the mother wished to have vaccinated. In considering the application, Justice Kubik noted that the father seemed to be engaging with vaccine misinformation and wrote:

[10] Much of this material is refuted by evidence attached to the mother's filed materials, including publications of both the governments of Canada and Alberta relating to the vaccine, its approval, its side effects, and its efficacy. While the father's counsel argues that government publications are propaganda, there is no evidence before me to prove that the Government is willfully misleading its citizens about the safety and efficacy of COVID-19 vaccines and in particular the Pfizer-BioNTech vaccine, which has been approved for use in children age 5-11, and 12-17.[17]

Justice Kubik further stated:

[32] The vaccine is approved by Health Canada and is safe and effective for use in children age 5-11 and 12-17. The risks associated with vaccination are minimal and are outweighed by the risk of serious illness and death to unvaccinated individuals, including children. Vaccination is the children's best protection against the illness given that we are living in a state of public health emergency, during a global health pandemic. It is important to recognize that the risk of illness at this particular point in time continues to be high, and that vaccination reduces the risk of contracting COVID-19 and suffering serious consequences as a result.[18]

Accordingly, she varied the parties' parenting agreement to award the mother sole decision-making authority pertaining to vaccinations and any related treatment. Though the children were hesitant to receive the vaccine, Justice Kubik also made a specific order that the children be vaccinated. In doing so, she noted that much of the children's concern came from their father, and as such, she ordered that the father not speak with his children about anything related to COVID-19.[19] She further admonished the father, writing:

Apart from some needle anxiety experienced by ARB, there is no indication that either child was ever vaccine hesitant, and indeed BPB initially expressed a desire to receive the COVID-19 vaccination. The father's actions in this regard are contrary to the emotional and psychological safety, security, and well-being of the children.[20]

Here, as in Saint-Phard, the courts demonstrate that when the child's wishes are inconsistent with prevailing medical evidence, they will find it is in the child's best interest to receive the vaccine despite their personal and often uninformed preferences.

To address the children's concern, the mother in TRB v. KWPB also assured the court she would ensure the children spoke to medical experts before receiving the vaccination to assuage their concerns.[21] Overall, Justice Kubik ruled the mother could make COVID-19 decisions in the best interest of her children, and all other medical and health-related decisions would continue to be a joint responsibility.

Importantly, this is also the first case to date where the courts have authorized a child in the 5-11 cohort to be vaccinated where separated parents cannot agree, thereby demonstrating that the same analysis is likely to be applied to this younger cohort as well. As of the date this article is published, there has not been a case where the courts have ordered that a parent can prevent their child from receiving the COVID-19 vaccine without clear medical evidence in support of the position.

Parental Consent Not Required under the HCCA

Another important theme emerging in the albeit limited case law on vaccinating minors is that certain youth who wish to be vaccinated against COVID-19 may not need parental consent. In A.C. v L.L., the judge noted that Toronto Public Health had taken the position that under the HCCA, youth age 12-17 do not require parental consent if the health care provider administering the vaccine is satisfied that the youth is capable of giving informed consent. In considering this, Justice Charney wrote:

[38] The Court does not, of course, simply defer to the Government's interpretation of the HCCA.

[39] That said, I agree with this interpretation. While medical decision making is an incident of parental custody, if the minor is a "mature minor" and capable of providing informed consent under s.4 of the HCCA, decisions regarding medical treatment may be made by the minor. As indicated, the question is whether the health care provider administering the vaccine is satisfied that the young person is capable of understanding information about the vaccine[22].

While the question of the children's capacity to consent was not a live issue in this case, parents need to note that if their child is mature enough to appreciate the benefits and risks associated with the vaccination, they may be able to obtain it independently.

This has larger implications for the parents of older children who could theoretically bypass the concerns of their vaccine-hesitant parent and get vaccinated without their parents going to the courts to adjudicate the issue. However, given the requisite level of understanding and maturity required for consent under the HCCA, it is unlikely that a child under the age of 12 would be able to obtain a vaccination without their legal guardian.

Further, while the commentary suggests mature minors do not necessarily need parental consent to obtain the COVID-19 vaccine and may be capable of deciding on their own, cases such as Saint-Phard and TRB v KWPB illustrate that the courts are also alive to the potential for unreasonable parental influence. As such, the courts will not default to the wishes of minors if they are concerned that the child has been unfairly swayed by one parent. Here again, the courts will favour vaccinating the child—even against their wishes—if they believe the child has been manipulated by a vaccine-hesitant parent.

These cases show us that the courts are prepared to be decisive on the issue of vaccinations and offer little refuge for parents seeking to prevent their children from being vaccinated. While the cases released so far almost exclusively considered children in the 12-15 cohort, we expect the courts will set the same precedent regarding younger children in the 5-11 category, as the same public health directives have been released for this age group. This trend has already begun in other provinces with TRB v KWPB and, likely, Ontario will soon follow suit.

Further, although there are only a handful of cases on this issue so far, the rulings are unanimous and send a clear message to vaccine-hesitant parents: absent a compelling reason to the contrary, the courts will support public health directives and order children to be vaccinated against COVID-19.

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[1] Tarkowski v Lemieux, 2020 ONCJ 280.

[2] B.C.J.B. v E.-R.R.R., 2020 ONCJ 438, at paras 186-187.

[3] Ibid.

[4] Ibid, at paras 186-190.

[5] Ibid, at para 187.

[6] B.C.J.B. v E.-R.R.R., 2021 ONSC 6294, at paras 44-45 and 52.

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

[8] Ibid, at para 28.

[9] Ibid, at para 28.

[10] Ibid.

[11] Saint-Phard v Saint-Phard, 2021 ONSC 6910

[12] Ibid, at para 5.

[13] Droit de la famille- 211637, 2021 CarswellQue 13454, at paras 22-24.

[14] O.M.S. v E.J.S., 2021 SKQB 243.

[15] Ibid.

[16] TRB v KWPB, 2021 ABQB 997, paras 9 and 14.

[17] Ibid.

[18] Ibid.

[19] Ibid, para 39.

[20] Ibid, para 29.

[21] Ibid, paras 27-29.

[22] A.C. v L.L., supra.