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COVID Vaccinations

COVID-19, Divorce Lawyer, Family Lawyer | February 4, 2022 | Written by Crystal Arbour

Ontario – A.C. v. L.L.

This is an Ontario Supreme Court decision from September of 2021. The father wished the children to attend in-person school, but would not allow it unless they were vaccinated. The mother also wished the children to go to school in-person but was against having the children vaccinated.

The court considered this dispute from a couple of different angles. First, the court discussed vaccination in the context of the best interests of the child, which is the main (and sometimes only) test when it comes to decision-making by parents:

“The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated.”

The mother did not attempt to provide evidence to prove that the vaccines would not be safe for her children, so the court was not forced to consider anything other than the direction of the government and public health authorities.

The court also noted that this was not a position unique to the COVID-19 vaccines but was consistent with the treatment of vaccination in general by courts throughout Canadian history.

The court also considered whether, aside from the best interests of the child, a parent’s consent was  required for children to be vaccinated. In Ontario’s health care regime there is no clear age at which a child is considered able to make this decision for themselves; this is decided case by case, based on the child’s level of maturity and the type of procedure being contemplated. In A.C. v. L.L., it was determined that the 14-year-old children were capable of consenting on their own, and the court empowered them to be vaccinated even if their mother did not provide her consent: “As a matter of law, the mother’s consent is not necessary for the children to be vaccinated if they so choose.”

The children in this case wished to be vaccinated, which then formed a part of the best interests analysis.

Saskatchewan – O.M.S. v. E.J.S.

This is a Saskatchewan Queen’s Bench decision from around the same time as A.C. v. L.L., in late summer 2021. In this case the mother did attempt to present evidence as to why the vaccine would not be safe or effective for her child.

The court was careful to outline its ability to take judicial notice of certain facts about the pandemic and the vaccine. Judicial notice is the term for when a court uses evidence not presented by either party in its decision-making process; it is restricted to known, unambiguous facts which are available to the general population (a court could take judicial notice that water is wet). On this basis, the court took judicial notice that COVID-19 is a pandemic, and that the available vaccines are safe and effective. This is a strong pro-vaccine stance on the part of the court, and it illustrates the uphill battle for those who are fighting to keep their children unvaccinated.

The court also comprehensively dismissed evidence presented by the mother that the vaccines would not be safe or effective for her child based on a diagnosis of vaccine toxicity by a family physician. The court was much more prepared to accept clinical trials and the expert opinion of infectious disease specialists, than that of a general practitioner.

British Columbia – A.S.N. v. K.E.K.

This was a BC Supreme Court case from October 2021 – shortly after the above two decisions.

Among other things, vaccination was at issue. Here is the court’s quote directly:

“Now, respecting vaccinations, I understand that to date C.N. has received no vaccinations of any kind. The responsible governments and public health authorities have all concluded that vaccinations of children are safe and effective. These authorities are in a better position than the Court to consider health benefits and risks associated with vaccination of children. In my view, absent compelling evidence to the contrary, the general proposition is that it is in the best interests of children to receive vaccinations as recommended by the public health system.

Here there is no evidence, compelling or otherwise, that would rebut this presumption. Accordingly, I conclude that it is in C.N.’s best interest to receive the usual vaccinations as recommended by the public health system, including the Covid-19 vaccination when it becomes available to children of his age, and I make the order that those vaccinations be arranged as soon as practicable.”

If this sounds familiar, it’s because it is almost exactly the same stance taken in the other decisions: the court will likely defer to the medical experts and government health authorities on the subject of vaccines.

Summary

The common threads in these three cases are:

  • The court’s responsibility is to determine the best interests of the child when considering vaccinations;
  • The court is going to defer to public policy and overwhelming consensus within the medical community; and
  • The threshold of evidence to overcome this presumption will be very difficult to meet.

COVID-19 vaccines are still a very new topic in Canadian courts, and it will be interesting to see where the case law goes from here.

© Linley Welwood LLP. The contents of this article do not constitute legal advice. Readers should seek legal advice in relation to their own specific circumstances.


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