In a recent Ontario decision, a court considered which parent should be granted decision-making for their daughter’s vaccination against COVID-19, if and when such a vaccination becomes available.

Parents Disagree on Vaccination Issue

The parents went to court for a number of issues regarding their daughter, who was born in 2013.

The mother had been granted temporary custody of the daughter, who lived with her in Toronto, while the father lived in Orangeville. 

Ultimately, the court gave the mother sole custody of the daughter, with specified access to the father. Additionally, the court granted the mother sole parental decision-making authority on most issues, including the power to make decisions concerning the daughter’s education, religion, health, and well-being.  

However, the court also addressed which parent should be granted the power to decide on whether the daughter would receive on-going vaccinations, including whether she would be vaccinated against COVID-19, when and if such a vaccination became available.  

The father stated that he did not trust the mother to provide good medical care to the daughter because of her distrust of Western medicine. He claimed that the mother would often rely on alternative treatments and had been negligent in her handling of the child’s health issues, particularly with respect to the child’s vaccination schedule. He stated that the mother had been against vaccinations from the very beginning, and only had the child vaccinated after the Office of the Children’s Lawyer and the case management judge had weighed in on the issue, and that, even then, the mother had been hesitant in getting the child vaccinated. The father was concerned that once the court was no longer there to encourage the mother to vaccinate the child and follow a doctor’s recommendations, she would once again neglect the child’s medical needs.  

In response, the mother stated that she had been working cooperatively with the child’s doctor and that she had been following the doctor’s recommendations on medical issues generally, and on vaccination issues in particular. 

Court Grants Father Decision-Making Power Relating to Vaccinations

The court began by stating that it was generally accepted that the COVID-19 pandemic will only end when the population achieves “herd immunity”, either through wide exposure of the virus in the population or by the introduction of an effective vaccine which is accepted by the population. 

In deciding whether to grant the father final decision-making power over vaccinations, the court considered the parents’ history on the issue, including the mother’s initial refusal to the daughter being immunized as an infant and the fact that the mother had expressed concerns that vaccinations might be linked to autism or might cause serious immune system problems. The court also accepted that the mother had refused to believe the daughter’s first doctor advice that the benefits of a vaccination far outweighed any potential risk. The court also noted that the mother had claimed a religious exemption which had allowed her to register the daughter in daycare and in school without having her vaccinated and without telling the father that she had done so. Finally, the court found that the mother had taken too long in having the daughter vaccinated. 

The court then stated: 

“Should a vaccine against Covid-19 become available, these parents will have to decide whether [the daughter] should be vaccinated against it. Since children and young people often show little or no reaction to the virus, a decision to vaccinate a child may be informed by a public health concern that COVID-19 is a virus that is easily spread and which disproportionately harms older people, and people with challenged immune systems. Ultimately, a decision to vaccinate [the daughter] may be a decision to protect other vulnerable people against [the daughter] spreading the disease. As any vaccine may pose some risk, and a new vaccine may pose unknown risks, it is imperative that [the daughter]’s parents receive the same advice on this issue from a medical health professional. 

When and if such a vaccine becomes available, both parents should meet with the child’s doctor to discuss vaccination for [the daughter] against COVID-19. In the event that the mother refuses to attend this meeting with the father and the doctor, or, at the meeting, refuses to consent to the child being vaccinated, I am granting the father, as an incident of custody and access, the unilateral power to consent to [the daughter] being vaccinated against COVID-19. I am satisfied that he has no bias against vaccinations in general, and will be able to decide this issue on the advice he receives. If the father decides that the child should be vaccinated, and if the child’s regular doctor is prepared to administer the vaccination to the child, the father shall arrange with the child’s regular doctor […] to administer the vaccination.” 

As a result, the court granted the mother the power to make decisions regarding the daughter’s medical and dental care, with the exception of vaccinations. Specifically, the court ordered as follows:

“If the […] mother refuses to consent to the [daughter] being vaccinated according to the recommended vaccination schedule for children in Ontario, or refuses to consent to [the daughter] receiving a vaccination against COVID-19 (if such a vaccine becomes available), the [father] shall seek a meeting with the [mother] and the child’s doctor to discuss the issue. If the mother refuses to attend the joint meeting, or, at the meeting refuses to consent to the child being vaccinated, the [father] will have the right to decide. If the [father] decides that the child should be vaccinated, he will use his best efforts to have the child vaccinated by her own doctor, and his consent alone will be sufficient to authorize the administering of the vaccine. If the child’s doctor is unable or unwilling to administer the vaccine, the [father] may make such other arrangements as he sees fit for this purpose, and the [mother] will cooperate with the arrangements made by the [father].” 

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At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.