Legal Insights / Family Law / COVID-19 AND YOUR FAMILY: Who decides if your child must be vaccinated?

COVID-19 AND YOUR FAMILY: Who decides if your child must be vaccinated?

Oct 22 2021
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With the pending approval of the Pfizer-BioNTech Comirnaty COVID-19 vaccine by Health Canada for children ages 5 to 11 years old and the fact that COVID-19 vaccinations have already been approved for children over the age of 12, you may have a lot of questions about your role as a parent and what to do when disagreements arise.

While scientific and medical evidence show that the COVID-19 vaccine can help protect you against the virus, as well as that those that are vaccinated may have less severe illness if they do become ill with COVID-19, we are living in new and challenging times that may render some people hesitant to obtaining vaccination.

If you and your former partner disagree about whether to vaccinate your child, it is important to understand what the law says regarding your parental responsibilities. In British Columbia, when making decisions about your child’s health care, parents must consider the child’s best interests. If the parents are unable to agree on what those best interests are, parents can ask a court to decide. The court’s singular focus on all matters involving children is to do what is in the child’s best interest – whether that best interest accords with either of the parent’s wishes is secondary to this focus.

Prior to the COVID-19 pandemic beginning there had been several applications to come before the court in British Columbia and across Canada addressing vaccination in general. Most often, those courts have decided to permit the child to be vaccinated.

In addition to considering the current public health orders and guidelines, courts may consider factors such as the age and preference of the child (if appropriate), any specific health risks to the child, each parent’s reason for being against vaccination and expert medical opinions when determining what is in the child’s best interest.

A recent Saskatchewan Court of Queen’s Bench decision (O.M.S. v. E.J.S., [2021] S.J. No. 399) was released this past September 2021 where the Court granted the father of a child the authority to have the child vaccinated against COVID-19 despite the mother’s opposition to doing so. In this decision the Court was satisfied that there was no reason to believe the child’s health would be compromised by the administration of the COVID-19 vaccine. After considering the adverse and serious health effects of the COVID-19 virus, the Court ordered that the child must have the ability to avoid contracting the virus and the most effective way to do so is done through the administration of the vaccine. The Court held that the best interests of the child required that she be given the best opportunity to avoid the dangerous effects of the COVID-19 virus.

The BC provincial public health policies have supported and encouraged children aged 12 and over to get the COVID-19 vaccine. Evidence has shown that children are not at a high risk of developing negative reactions to the Covid-19 vaccine and that the COVID-19 vaccine is effective in preventing the spread of the virus and minimizing severity of illness. It will be a difficult test to meet for a parent to prove to the court that a COVID-19 vaccination would not be in their child’s best interests to have.

This topic remains a new and developing area of law and can change as time progresses. Should you and your partner remain unable to agree about having your child vaccinated, we can help. Please contact our office at 604.853.0774 to speak with a member of our Family Law team today.

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