COVID-19 vaccines for kids: What happens when divorced and separated parents disagree?

21 mai 2021 | Caroline Kim, Patricia Fourcand

( Disponible en anglais seulement )

The COVID-19 vaccine has recently been approved for children aged 12 and up. For many teens and parents this is good news and signals a return to pre-COVID life.

But what happens when separated parents disagree about whether their children should get the COVID-19 vaccine?

Although most separating parents negotiate agreements and make concessions about schedules and decision-making, it is impossible to compromise when it comes to vaccinations. Either a child is vaccinated or they are not – there is no in between.

This creates a difficult situation as doctors will not vaccinate a child unless both parents agree. If parents do not agree, doctors will want to see an agreement or court order that clearly states which parent can make vaccination decisions.

For parents where one person has sole decision-making responsibility (“sole custody” or “sole parental authority” in Quebec) that parent can simply choose to vaccinate their child – or not. The other parent can then allow the decision, or try to ask the court for a change.

Similarly, for parents who share decision-making responsibility (“joint custody” or “joint parental authority” in Quebec) but cannot agree on vaccination, court may be the only recourse.

At court, a judge will consider the specific child’s needs, government and medical recommendations, and then make a decision based on the best interest of that particular child.

Recently two Miller Thomson lawyers, Caroline Kim and Kaitlin Jagersky, represented a father who wanted to vaccinate his children (A.P. v. L.K., 2021 ONSC 150 (CanLII)). In A.P. v. L.K., the parents had a separation agreement that addressed every other aspect of parenting. The parents were not, however, able to agree about vaccinations so they took the issue to an arbitrator.

The mother and her lawyer said that the children had underlying medical conditions that made them at risk for side effects from vaccines. Her expert witnesses said that vaccines are untested and unsafe. The father, who was self-represented at arbitration, gave evidence that vaccines are tested and safe, and that the children did not have any conditions that would prevent vaccination. The children’s family doctor recommended vaccination, but had not yet vaccinated the children.

The arbitrator found in favour of the mother and ordered that the children should not be vaccinated. The father then retained Miller Thomson to appeal the arbitrator’s decision, and won his appeal.

At the appeal, the court found that the arbitrator had made a mistake of fact because the mother’s argument was based on contested science. The court also accepted government recommendations on vaccination.

The court gave the father the ability to make decisions about vaccines, solely. In addition, because of the mother’s contested beliefs, the court ordered that the mother was not permitted to talk to the children about vaccines. Although the mother tried to appeal, leave to appeal was refused.

The children still see both parents regularly – only now, they have started to get caught up on their vaccinations.

When parents disagree about whether their children should be vaccinated, they should get legal advice from experts. Our family law lawyers across the country have a wide breadth of expertise and experience including experience taking vaccination questions to court.

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