Recent case law out of Ontario and Saskatchewan suggests that parents who have joint decision making responsibility may apply for sole-decision making responsibility regarding whether to vaccinate their children against Covid-19. The court will apply the Best Interests of the Child Test to determine which parent should be given sole decision-making responsibility, or if it should remain joint.
In BCJB v ERR, 2021 ONSC 6294, the Court considered the appeal of the father’s motion requesting sole decision-making authority over whether the child would be vaccinated. At the time of the application, the child was nearly 10 years old, and not sufficiently mature to provide his own medical consent.
The child had not received any of the vaccinations that children in Ontario typically receive by this age because the mother was conscientiously opposed to vaccination. The father argued that in light of the Covid-19 pandemic, those who are unvaccinated are in a particularly vulnerable position and therefore it would be in the child’s best interest to give sole decision-making authority to him.
The Judge applied the Best Interests of the Child test and granted the father sole decision-making authority about the child’s health as it relates to deciding whether to administer Ontario’s existing publicly funded vaccinations, which did not include “a future Covid-19 vaccine”, as the motion was heard prior to the advent of the Covid vaccines. This decision was confirmed on appeal.
In Saint-Phard v Saint-Phard, 2021 ONSC 6910, the Court gave sole-decision making responsibility to one parent in order to facilitate vaccinating the 14-year-old child against Covid-19, despite the opposing stance of both the other parent and the child in question. Typically a 14-year-old would be considered sufficiently mature to make their own choice on the subject, however in this case the Court found that the child’s views against vaccination were heavily influenced by the opposing parent who had told the child various lies about the vaccine. The Court applied the Best Interests of the Child test and found vaccination against Covid-19 to be in the child’s best interest.
In O.M.S. v E.J.S., 2021 SKQB 243, the Court went as far as to take judicial notice that the Pfizer Covid-19 vaccination is safe and effective for use in both adults and children. Judicial notice is only taken where the facts are so “notorious as not to be the subject of dispute among reasonable people”, making this decision extremely important in the emerging vaccine jurisprudence. The judge then applied the Best Interests of the Child test and found that the child should have the Pfizer Covid-19 vaccine administered. Responsibility for arranging for the vaccination to occur was allocated to the father, without the need for the mother’s consent.
While there has yet to be British Columbian case law on the subject, cases pre-dating Covid-19 have suggested that courts are willing to assign authority to make decisions on vaccines to the parent with a stronger track record of making well-researched, evidence based decisions about the child’s healthcare (G.M. v. S.S., 2012 BCSC 1491, at para 183). It, therefore, seems likely that concerned parents dealing with a co-parent who refuses to consent to vaccinating their child(ren) against Covid-19 will be successful in applying to Court for sole decision-making responsibility in that regard.