October 6, 2020 | COVID-19

Judge can override a parent’s opposition to the COVID-19 vaccine

As family law lawyers, we see a multitude of disputes in court and child vaccination is one of them. It is becoming more common that in a family where the parents are divorced/separated, one parent believes in the anti-vaccination movement and the other wants to vaccinate their child. In Canada, it is not mandatory to receive vaccinations and there is no federal law that enforces vaccination, although provinces can enact legislation that requires proof of immunization for the child’s school registration (this is not the case in Quebec).

After a separation or divorce, it is common that parents disagree about what is in the best interest of their child. In Quebec, both parents have parental authority. Parental authority covers all the rights and duties parents have towards their children, for example with respect to the child’s custody and education, the child’s needs, and the decisions needed to ensure the child’s well-being (https://www.justice.gouv.qc.ca/en/couples-and-families/parenthood/parental-authority/).  

If a parent and their spouse separate, they will both continue to have parental authority over their child, even if one of them has sole custody. For example, they are both entitled to see their child’s report card, attend parent/teacher meetings and obtain information about the medical care the child is receiving. If one of the spouses has sole custody of the child, he or she may decide where the child will live, but must consult the other parent about any important decision with respect to the child. For example, the following decisions must be made by both parents: registering the child at a private or public school, religion, consenting to health care for the child, starting certain forms of medical treatment, such as orthodontics.

When it comes to vaccinations, if the parents cannot agree, neither parent has the final decision-making ability: either parent may apply to the court to settle the dispute or ask a family mediator to help resolve the dispute.

Also Read: COVID-19: Back to School Tips

Although a parent can technically refuse to have a child vaccinated and apply to the court, the courts in Quebec will always act in the best interest of the child, and receiving medical attention and vaccination would likely be considered in the best interest of the child. The efficacy of vaccination is strongly supported by the scientific research community, and so it is more likely that the courts will rule in favour of the parent who demands vaccination.

In Quebec and in Canada, at least 3 judgments over the last year have ordered the vaccination of children whose separated parents did not agree on the subject (https://www.lapresse.ca/actualites/sante/2020-01-17/vaccinez-vos-enfants-ordonne-le-tribunal).

In a judgment rendered on July 5, 2019, Justice Martin Bureau, J.C.S. of the Superior Court of Quebec ruled that a 5-year-old girl whose father refused vaccination should receive all the vaccines recommended by the Ministère de la Santé et des Services sociaux (MSSS). “The reasons invoked by the defendant for not accepting that the child receive the varicella vaccine are not serious. They are based on research he allegedly did on websites,” [translation] the judge concluded in his decision (Droit de la famille — 191500, 2019 QCCS 3293).

In a decision dated November 1, 2019, Justice Aline Quach, J.C.S. of the Superior Court also concluded that “the majority of scientific opinions support vaccination” and that it is therefore “in the interest of the children to receive them, the benefits clearly outweighing the disadvantages” [translation] (Droit de la famille — 192232, 2019 QCCS 4681).

In British Columbia, Justice Stella Frame of the Provincial Court also ordered on December 31, 2019 that two children be vaccinated. During court proceedings, their mother, who objected to their immunization, offered a report from Dr. Toni Lynn Bark, an American who describes herself as an expert in the study of adverse vaccine reactions. In her judgment, Justice Frame says Bark admits the field is unrecognized by medical professionals. In rejecting the mother’s submission of Bark’s report and the doctor’s qualification as an expert in what is called vaccine adversomics, Frame sides with public health officials, writing “the current best evidence is that vaccination is preferable to non-vaccination.” “It is difficult to know whether this is junk science or a recognized emerging field,” Frame wrote of Bark’s report on adversomics, adding that the document sounds more “like a conspiracy theory” as it is presented (D.R.B. v. D.A.T., 2019 BCPC 334).

Alain Roy, Professor of Family Law at the University of Montreal, emphasizes that the decision to have a child vaccinated is “fundamental” and must be made by both parents. “It’s not like giving Tylenol, a decision that can be made by the only parent in the presence of the child,” he says. If a court is called upon to rule on a fundamental issue such as immunization, it must “rule in the best interests of the child,” says Roy. According to Mr. Roy, recent Quebec court rulings in this regard have ruled in favour of childhood immunization.

Since we now have the COVID-19 vaccine, the Courts have been faced with cases where one parent wants their child to receive be vaccinated and the other does not. On June 25, 2021, Justice Marie Gaudreau, J.S.C. rendered a decision[1] with respect to a mother’s request for her 12 years old to receive the COVID-19 vaccine before his departure for a three week vacation with his father. In this particular situation, the father was not necessarily opposed to the mother’s request but wanted more time to consult a physician before consenting. However, given the pandemic and the urgency of the situation, as well as the government’s approval of administering the COVID-19 vaccine to children 12 years old and over, the Court authorized the mother to have her son vaccinated. The minor child’s best interest was the determining factor , as it was undoubtedly safer for him to receive the vaccine prior to his vacation. The present judgment shows that when two parents cannot agree with respect to a matter of this nature, the court has the authority to decide, always in the best interest of the child.

For any questions or concerns, do not hesitate to contact us!

[1] Droit de la famille — 211246, 2021 QCCS 2815.