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

With the approval of the Pfizer-BioNTech Comirnaty COVID-19 vaccine by Health Canada for children ages 5 and up, 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 Supreme Court of British Columbia decision (A.S.N. v K.E.K, 2021 BCSC 2435) was just released this past December 2021 where the Court ordered that a child with no vaccinations receive the usual vaccinations as recommended by the public health system, including the COVID-19 vaccination when available for his age. The Court further ordered the vaccinations be arranged as soon as practicable.

The Court in this decision did not mince words when emphasizing that there is essentially little to no evidence that a party could provide to rebut the presumption that it is in the best interests of a child to receive vaccinations as recommended by the provincial public health system. A high threshold is placed on the opposing parent to substantially satisfy the Court that the child’s health would be compromised by the administration of the COVID-19 vaccine.

Another decision, this time from the Alberta Court of Queen’s Bench, commented not only on the Court’s ability to infer facts surrounding the seriousness of the pandemic, that the COVID-19 vaccination has regulatory approval and that public health officials recommend children be vaccinated, but also addressed the questionable sources the opposing parent relied on to refute the child being vaccinated against COVID-19. In particular, the Court addressed the misinformation the opposing parent presented as a reason for causing stress and anxiety on a child around vaccinations.

This blog post is updated to January 20, 2022. The 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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