What Options are Available to Separated Parents Who Disagree About Whether to Vaccinate their Child(ren)?

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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.

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Neglect In Long-Term Care Homes And Assisted Living Residences

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British Columbia offers various home and community care services to individuals requiring assistance with day-to-day life due to health issues or illness. Individuals living in Long-Term Care Homes and Assisted Living Residences are some of British Columbia’s most vulnerable members of society. Long-Term Care Homes provide 24-hour care to elderly residents. Residents in Long-Term Care Homes often have mobility issues or dementia or require palliative care. Assisted Living Residences provide housing units to residents who require daily assistance but can live independently. Residents can be assisted with eating, dressing, bathing, and managing medication, among other things. Assisted Living Residences do not provide 24-hour care.

BC offers private and publicly subsidized Long-Term Care Homes and Assisted Living Residences. In publicly subsidized Long-Term Care Homes, residents pay a monthly charge of 80% of their after-tax income. In publicly subsidized Assisted Living Residences, residents pay a monthly charge of 70% of their after-tax income. The majority of Long-Term Care Homes and Assisted Living Residences in BC are run by private for-profit companies. In 2016, only 2.4% of the Assisted Living Residences were owned by public health authorities, while 53.1% were owned by for-profit companies and 44.5% were owned by non-profit organizations. In private for-profit Long-Term Care Homes and Assisted Living Residences, residents pay the full cost. If residents require additional services, they must pay an additional fee. Unfortunately, many residents cannot afford to pay for additional services to suit their individual needs.

British Columbia has many laws governing the health, safety, and quality of care for seniors living in Long-Term Care Homes and Assisted Living Residences. The Community Care and Assisted Living Act provides a Bill of Rights to residents in Long-Term Care Homes and Assisted Living Residences. The Bill of Rights provides the resident with:

 

  • Commitment to a care plan developed specifically for the individual
  • Rights to health, safety and dignity
  • Rights to participation and freedom of expression
  • Rights to transparency and accountability

 

Last year, Island Health took over the emergency management of three private for-profit Long-Term Care Homes on Vancouver Island due to complaints of staffing shortages and neglect of the residents. Since Island Heath took over the Long-Term Care Homes, improvements have been made to training staff, creating new staff positions and to purchasing necessary equipment and supplies.

A class action on behalf of a group of residents from Long-Term Care Homes in BC has been brought against the company that owns the Long-Term Care Homes, an investment company, and BC’s Ministry of Health. The class of residents allege “abuse, neglect and mistreatment” (Huebner v PR Seniors Housing Management Ltd, DBA Retirement Concepts, 2020 BCSC 1037). The certification hearing is scheduled to take place no later than June 2021.

Heath Law LLP can help you if you or a loved one have experienced neglect in a Long-Term Care Home or Assisted Living Residence.

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COVID-19 and Contract Frustration

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COVID-19 and Contract Frustration

In a previous blog post, COVID-19 and how the force majeure clause could apply to it was discussed.  For a force majeure clause to be activated, there has to be one in a contract.  Sometimes contracts are drafted without force majeure clauses.  Without the force majeure clause, are the parties bound to their agreement even if something arises that makes it impossible to perform the contract?  Contracts can be “frustrated” meaning subsequent to its formation, and without fault of either party, the contract becomes incapable of being performed due to an unforeseen events, resulting in the obligations under the contract being radically different from those contemplated by the parties to the contract.

The legal consequence of a contract that is found to have been frustrated is that the contract is automatically terminated at the point of frustration. The contract is not void ab initio (from the beginning), it is only void with regard to future obligations.

For frustration to operate, it is not sufficient that the performance of the contract is more onerous or unreasonably harsh. Instead, there must be a fundamental change in the circumstances governing performance.  The performance contemplated by the contract must become impracticable in a legal sense. The contract must become something drastically different from that which was initially contemplated by the parties.

Frustration is interpreted narrowly by the courts as there is a public interest in people being bound to the contracts they enter into.  COVID-19 could be grounds for deeming a contract frustrated but this is obviously context-specific.

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Confidentiality of Medical Records

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Confidentiality of Medical Records

You have recently been injured due to another person’s negligence (the “Incident”). The injuries are ongoing and starting to affect your daily living. You are considering starting a lawsuit but are hesitant because of a story you heard from your friend when they started a lawsuit. The friend told you that all of their personal information was no longer private, even the conversations they had with their doctor.

The truth of the matter is that the legal process is both private/confidential as well as public. The confidential portion of the legal process is that information you share is only made available to your lawyer and the opposition’s lawyer. There are very strict rules controlling lawyers and how they deal with information provided to them by clients. The public aspect arises if a lawsuit goes to trial, the public is at liberty to watch the trial and read any decisions that a judge makes with regard to the lawsuit. Quite often, especially in cases involving personal injury, one’s medical information becomes relevant and therefore potentially available to the public.

When it comes to medical reports not all of one’s medical history is necessarily relevant. A lot depends on the nature of the lawsuit one brings. For example, if from the Incident you are claiming that an injury to your arm is affecting your livelihood, then medical records pre-dating the Incident that relate to your arm should be disclosed.

The reason your medical history is disclosed is because it is necessary during the legal process to determine how much the Incident actually contributed to your current ailments.

The courts will always try to balance the privacy interests of plaintiffs against necessary document disclosure to ensure a fair trial. Only medical records that are considered relevant should be disclosed.

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Medical Assistance in Dying

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Ever since 2015, when the Supreme Court of Canada decided in Carter v Canada (Attorney General) that a prohibition on physician-assisted suicide was unconstitutional, Canada has had to redefine what end of life care means and what rights individuals have at this time. This is an ongoing process that will likely continue for many years.

The Supreme Court declared that it violated an individual’s rights to life, liberty, and security of the person to be denied medical assistance in dying (“MAiD”) if the person consents, and if they had a grievous and irremediable medical condition that causes enduring and intolerable suffering. In response to Carter, the federal government passed a law that allowed an individual to receive MAiD, but only if they met the conditions in Carter and if their natural death had become reasonably foreseeable.

The new law has been the subject of another constitutional challenge by the BC Civil Liberties Association, which was one of the plaintiffs in the Carter decision in 2015. They argue that the current law is overly restrictive, and that it excludes people with multiple sclerosis, Huntington’s disease, and Parkinson’s disease that should be allowed to have access to MAiD.

The discussion around MAiD continues in the courts, Parliament, legislatures, and in our homes. If you or a loved one is considering MAiD, be sure to research and understand the legal and personal implications of this important decision.

If you need legal advice on medical assistance in dying, end of life planning, or any other law related inquiry, please contact us.

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