Co-Parenting and COVID
Separated parents of children often know the struggles of co-parenting. However, the recent COVID-19 pandemic has created even more contentious issues. Some areas the court have had to intervene include the return to in-person schooling and vaccinations for children.
The paramount consideration for orders or agreements affecting children is whether it is “in the best interests of the child”. Under BC law, this involves protecting the child’s physical, psychological, and emotional safety, security, and well-being.
On November 19, 2021, Heath Canada authorized the use of the Pfizer-BioNTech COVID-19 vaccine in children 5 to 11 years of age. Further, the Courts have taken judicial notice that receiving vaccines recommended by provincial health authorities, including the COVID-19 vaccine, is in the best interests of children.
Recent Case Law
In O.M.S. v. E.J.S., 2021 SKQB 243, a father brought a court application for an order allowing him to have his 12-year old daughter vaccinated against COVID-19. The Court made the following comments:
[113] Finally, and perhaps most directly relevant to the matters before the Court here, I conclude I am able to take judicial notice that the Pfizer Covid-19 vaccination is safe and effective for use in people, including both adults and children. I form this conclusion by taking judicial notice of the vaccine approval process in Canada and the approval by the health authorities of this particular vaccine. To argue it is experimental as is put forth by the mother and her supporting affidavits is not in accordance with the general knowledge available regarding this approval process and implementation.
[114] I find these facts “to be so notorious as not to be the subject of dispute among reasonable people” (B.C.J.B. at para 188). These facts can be established by assessing sources that cannot reasonably be disputed to be accurate. These include health authority information put forth by Health Canada and the Saskatchewan Health Authority, amongst others.
[119] In light of the determinations concerning Covid-19, its effects, and the need to be vaccinated to avoid these effects, I determine it is in the child’s best interests to have the Pfizer Covid-19 vaccine administered forthwith.
[120] This is so because she must have the ability to avoid contracting the virus. The most efficacious way that is done at this time is through the administration of the vaccine. The adverse and serious health effects of Covid-19 have been noted. This child’s best interests dictate she be given the best opportunity to avoid such health risks.
In a recent BC Supreme Court decision, A.S.N. v. K.E.K., 2021 BCSC 2435, a 4-year old child had received zero vaccinations to date and his father sought a court order. The Court held that responsible governments and public health authorities had concluded that vaccinations of children are safe and effective and that these authorities are in a better position than the Court to consider health benefits and risks associated with vaccination of children. In the Court’s 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.
General Immunizations
Prior to the introduction of COVID vaccines, provincial health authorities recommended children be vaccinated against other viruses and published an “immunization schedule”. The issue of whether a party could unilaterally vaccinate their children came before the courts in M.J.T. v. D.M.D., 2012 BCSC 863 [MJT]. In MJT, the Court relied on expert evidence from a doctor specializing in pediatric infectious diseases and immunization. The Court ultimately accepted his views and held that the benefits of immunization to the child far outweighed any risk that may be associated with the possible side effects from the immunization.
In D.R.B. v. D.A.T., 2019 BCPC 334, the Court held that the current evidence supported the position that vaccination is preferable to non-vaccination and that it is required in order to protect those who cannot be vaccinated as well as to protect ourselves. The Court also held that “any adverse reaction the person may have from the vaccine is largely outweighed by the risk of contracting the targeted disease.” Both children in the case were considered to be in good health and did not have any contraindications in their medical records that would suggest they should not be vaccinated. The Court also commented on their exposure to the risk of diseases from their home and social environment. The Court ordered the children to be vaccinated in accordance with Immunization BC’s immunization schedule and the recommendations of their family doctor.
For more information or to inquire further about children and vaccines, please contact any member of our family law group.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
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Jasmin Chohan Associate | Family law Lindsay Kenney LLP | Vancouver |