We have previously reviewed a Saskatchewan decision in which the court ordered the COVID-19 vaccination of a teenager, despite the mother’s objections, as well as a Quebec decision in which the court also ruled in favour of the vaccination of a 12-year-old child despite the father’s objections.

This week, we look at a recent Ontario decision that made headlines, in which the court prohibited a mother from giving her son any misinformation on the COVID-19 vaccine and granting the father parental authority to have the child vaccinated.

Parents Disagree on Son’s Vaccination

The parents shared joint decision-making authority for their 13-year-old son.

The father applied to an Ontario court seeking an order for sole decision-making authority with regards to vaccinating the son against COVID-19. Based on governmental and public health recommendations and the recommendation of the son’s physician, the father wanted the son to be vaccinated.

The mother opposed the motion and did not want the son to be vaccinated against COVID-19. She based her view on the opinion of a doctor who was not the son’s physician, as well as her own information of individual cases where the vaccine had resulted in negative consequences.

The son had previously said he wanted to be vaccinated, but at the time of the hearing, he had decided against it.

The court noted at the outset that its decision would be governed by the best interests of the child.

Court Takes Judicial Notice of COVID-19 Vaccine Safety

Prior to looking at the case in front of it, the court began by taking judicial notice of certain COVID-19 information. Judicial notice is a rule of evidence where a court can allow certain evidence to be accepted as fact where they are notorious or well-known.

After reviewing previous case law and public health documents on the matter, the court found that the COVID-19 vaccination was safe and effective for children ages 12 to 17 to prevent severe illness from COVID-19.   

Court Reviews Parents’ Medical Evidence

The court turned to the medical evidence presented by each parent in support of their position.

The court noted that the son’s primary care physician had recommended that he be vaccinated with two doses of the Pfizer vaccine because it would prevent serious illness with COVID-19 and enable him to have a better opportunity to attend school uninterrupted. The physician noted there were no contraindications for the son, who had a history of asthma.

The court then reviewed the mother’s evidence from a different doctor, who had stated that the son should not be given the COVID-19 vaccine on account of him having asthma. The doctor had also opined that the vaccine was experimental, that testing would continue to 2022-2023 and thus “we have no evidence yet of any benefits to children”.  The doctor further cited many adverse effects of the vaccine including a “huge incidence of myocarditis in young men”.  Finally, the doctor noted that she had met with the son and discussed the issue with him, including the multiple adverse effects of the vaccine, and that the son did not want the vaccine.

Court Rejects Mother’s Submissions

In assessing the medical evidence submitted, the court first noted that it would not accept the mother’s affidavit regarding adverse outcomes from the vaccine, stating: “In the format presented this information is not admissible evidence to prove the truth of its contents, namely the alleged adverse outcomes from the vaccine.”

The court then stated that it preferred the son’s primary care physician’s evidence over that of the doctor testifying for the mother:

“[The mother’s doctor] does not refer to medical or scientific support for her conclusion that there is no evidence of any benefits to children from the vaccine, other than she has heard of ill effects in her practice. This statement is too general to be given weight.

[The mother’s doctor’s] objections raised against the vaccine were directly countered by the judicial notice taken that the vaccine is safe and effective and provides beneficial protection against the virus to those in this age group.”

Court Considers Child’s Wishes for Vaccination

The court then turned to the son’s wishes. It noted that he had initially indicated that he wanted the vaccine. However, at the time of hearing, he changed his mind. While he had originally told his father that he wanted the vaccine, his stance had changed after meeting with the doctor arranged by his mother. After that meeting, he had told his father he would rather wait until 2023 when the vaccine had been tested and that his mother told him one of his former teachers was paralyzed due to the vaccine.

The court then held:

“I find that [the son] changed his mind due to influence from [the mother’s doctor] and his mother. The explanations he gave his lawyer and his father are based on wrong information and inadmissible anecdote. His current stated view to not have the vaccine is not based on an understanding of accurate medical information as to the benefits and risks of the vaccine.  As such it is not a properly informed decision. This is an important finding because if the health care provider administering the vaccine is satisfied that a youth of [the son]’s age is capable of understanding information about the vaccine, why it is recommended and what will happen if they accept or refuse the vaccine, they may administer the vaccine without parental consent.”

Ultimately, the court concluded that the son did not have the requisite medical information on which to make an informed decision, finding that he had been misinformed by the doctor his mother took him to.

Court Rules That Mother Must Not Give Son Vaccination Advice

In the result, the court found that it was in the son’s best interests to be vaccinated against COVID-19.

The court, therefore, ordered the father would have sole parental decision-making authority for the purposes of the COVID-19 vaccine.

The court stated that the father should arrange for the son to be properly informed of the medical and scientific facts of the virus and the vaccine personally by his primary care physician prior to being taken for a vaccination.

Finally, the court ordered the mother to not give the son any inaccurate information or advice on the vaccine, stating:

“The mother shall not tell, or suggest to [the son] directly or indirectly, that the COVID-19 vaccines are untested, unsafe, ineffective, or that he is particularly at risk from them. Nor may she permit any other person to have any such discussion, or make any such suggestion to the child, directly or indirectly. My order includes that she is prohibited from showing [the son] social media sites, websites, other online information, literature, or any other material that calls into question the safety or efficacy of COVID-19 vaccines or permitting any other person to do so.”

Contact Feigenbaum Law for Experienced Advice on Family Law Matters

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.