Vaccine battle spills over to family court
Judges generally say yes to the jab when parents fight on child vaccination
One parent wants the kids to be vaccinated against COVID-19, the other does not.
It’s a battle with the highest stakes — the health of a child — and it’s starting to show up in family court, the latest iteration of COVID-19 family legal disputes that began over safety measures like social distancing and whether kids should attend virtual or in-person school. And with 5- to 11-year-olds expected to have access to COVID-19 vaccines by the end of the year, courts across the country may soon start to see even more such disputes.
The court response so far, however, has been consistent with pre-COVID decisions: vaccination is in the best interest of the child, barring highly exceptional circumstances.
“When parents disagree with issues of vaccination, especially with respect to the COVID vaccine, the court is giving the power to make the decision to the parent who is provaccine,” said family lawyer Russell Alexander.
The tricky part, lawyers say, is how and when judges should take into account the wishes of the child and when they should be allowed to make the choice for themselves.
A recent case involved 14-yearold triplets in Toronto.
Two live with their dad and are going to school virtually until they can be vaccinated. The other triplet lives with their mother, who opposes vaccination, but wants all the children to go to school in person.
The mother brought a motion demanding in-person schooling for the other two kids, pointing out that the COVID-19 vaccination is not mandatory to attend school; the father brought his own motion demanding the mother release the children’s health cards so they can be vaccinated, after which they can attend school in person.
Justice Robert Charney concluded the analysis is the same as the one the courts have used for the debate over virtual and in-person schooling.
“The government and public health authorities are in a better position than the courts to consider the health risks to children in attending in-person school.
Thus, as a general proposition, if in-person schooling is available, the presumption is that it is in the best interests of the child,” he wrote.
Similarly, he continued, “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,” he wrote.
It does not matter that the vaccine is not mandatory for school attendance, he added.
“It is understandable that governments may try the carrot before they have recourse to the stick.”
Charney ordered that all three children be allowed to get vaccinated if they chose to do so, with both parents ultimately agreeing they were capable of making that choice. Two of the children wanted to be vaccinated, the other — the one who lives with their mother — does not.
“Barring some exceptional circumstances, (judges are ruling) the vaccine will likely be in the best interest of the child,” said family lawyer Lisa Kadoory, who represented one of the parents.
The question of when a child can make that choice and how much a judge should take their view into account is where the real debate is, Kadoory said.
Determining if a child is capable of consenting requires a careful exploration of whether the child’s views are consistent and independent of their parents. That might happen through an interview with a social worker or court-appointed lawyer, or even by the child speaking with the judge. There is no clear age cut-off though it’s usually for children above the age of 11 or 12, and depends on factors like the child’s maturity and ability to express themselves.
“Judges do have to give substantive weight to what the children express as their wishes,” said family lawyer Christine Vanderschoot. But that can also put children in a difficult and upsetting position, wanting to please parents with opposing views or being coached to give particular answers. It also raises questions about how children are getting information — family, peer groups, online — and whether that information is accurate.
“We may have an eight-yearold child who doesn’t want to go to the dentist. We still send the child to the dentist because it’s in their best interest,” Alexander said.
It can also mean courts are faced with parents giving conflicting accounts of what their child wants.
A Saskatchewan case from last month dealt with this issue, finding that a 12-year-old’s view on COVID and vaccination were “overly influenced” by her mother and grandparents, who oppose vaccination, view the Pfizer vaccine as “experimental” and asserted false information about COVID-19 in their court filings. He ordered that the child should be vaccinated in consultation with her doctors.
It is unlikely family court judges will wade into a “rabbit hole” of questions about whether the vaccine information — both for COVID-19 and other illnesses — issued by public health authorities is correct, lawyers say.
In the Saskatchewan case, the judge declined to consider “disjointed” information provided to the court about the safety of vaccines and the “reality” of the pandemic. The case is not about whether there is a pandemic, freedom-of-speech, right and left politics or whether the health measures imposed by governments are right, he said.
“This application is about only one thing: should this 12-yearold child be ordered to be vaccinated for the COVID-19 virus if she is saying she does not want that to be done,” he wrote. “The court’s singular focus on all matters involving children is to do that which is in the child’s best interest. Whether that best interest accords with either the mother’s or the father’s wishes is secondary to this primary goal.”
Citing another recent case in Ontario, which upheld on appeal a judge’s decision to take as fact public health authority guidance on vaccines, he determined that he could take as a fact that contracting the COVID-19 virus poses a serious and significant health risk to people generally, including children and adults, and that the Pfizer COVID-19 vaccination is safe and effective.
“We don’t have to prove over and over again in each court case that COVID-19 is a serious illness, that vaccines are what the government of Ontario has determined is the way we are going to deal with this,” Vanderschoot said.
But it does mean judges have to be on top of the latest information as it evolves, she said.
“Judges have to walk a very fine line because they are not scientists, but they have a duty, I believe, to decide these cases. So they really have to educate themselves as to what the scientific community consensus is on an up-to-date basis,” she said.
Given that valid exemptions to the COVID-19 vaccine on medical and religious grounds are extremely limited, there may not be an influx of cases on this issue, lawyers say.
With the virtual versus in-person schooling issue, there are more exceptional circumstances for a judge to weigh beyond the child, including whether there are highly vulnerable people in the home. But the same arguments don’t apply when it comes to having a child vaccinated — that does not create a risk to the family.
“According to science and government policy, the best interest is to have the child vaccinated … it’s a much, much stricter standard,” Alexander said.
When vaccinations become approved for younger children lawyers expect the decisions to continue to favour vaccination as being in the best interest of a child if that’s what the public health and medical community consensus is.
The courts might also start seeing cases around whether parents are vaccinated against the virus, potentially amplified by vaccine passports limiting access to certain places.
Lawyers say these dispute are almost always best handled outside court, through other avenues including mediation.
But when they do end up in court, it’s important to know that in the vast majority of cases judges start from a point of assuming both parents love their children and are trying to do what they think is best for them, Vansderschoot said.
“People believe they are fighting for their child,” she said. “And it’s tough but judges want both parties to accept their decision, not just accept it on paper but internalize and accept it … in the court scenario they are co-parents and they have to work together on some level.”