We’ve blogged frequently about COVID-19 over the last two years, with many of our blogs focusing on situations where parents can’t agree on whether their children should get vaccinated, attend school in person, or spend time with a parent who was not following COVID-19 mandates. A recent decision from the Ontario Superior Court of Justice gives us a great reason to revisit the topic of vaccinations for children. In every decision we have written about to date, orders related to whether children should or should not be vaccinated when parents disagree over the issue have favoured the parents who want the children to be vaccinated. In most of these situations, the courts have written that it’s appropriate for them to follow the guidelines established by Canada’s various health authorities. However, as we will see in the case we discuss today, individual circumstances and the evidence introduced by each parent can have a significant impact on what courts ultimately decide in such matters.
Parents have very different positions on vaccinations
The parties were married in 2007 and separated in 2014. They had three children while married, who were 14, 12, and 10 years old at the time of the trial. Two of the children (the middle and youngest) were at the heart of the trial, and a final order stipulated that the mother had sole decision-making authority for them. With that said, the parents were required to consult with one another when making major decisions.
In January 2022, the father brought a motion requesting that the two youngest children be ordered to receive all recommended COVID vaccinations. He asked the court to allow him to take the children to receive the vaccinations because he did not believe the mother would comply with the order. The father told the court the mother was not being protective enough concerning COVID-19.
The mother responded by stating that the father was misrepresenting her position, explaining she is not opposed to vaccines. She agreed to the oldest child being vaccinated, adding that her opposition around the two younger children is backed up by sound research and evidence. She said that the two younger children had already contracted and recovered fully from COVID-19 and that based on information provided by at least one company that makes vaccines, the balance of risk/reward for children who have already had COVOD-19 is not the same, and it might be riskier for them to get the vaccine than not.
Looking at the positions of the two parents
One factor that makes this case so interesting is the evidence presented by each parent as well as the way the court responded to it.
The mother told the court that she generally favours vaccinations and that the children in question had received all vaccinations children would normally receive while growing up. She said the key point of difference for the COVID-19 vaccines was that the children had already had COVID-19. She provided a number of peer-reviewed papers published in medical journals as well as an eight-page “fact sheet” issued by Pfizer. These documents provided information about the risks to children who receive the vaccine as well as the necessity of vaccines for children who have recovered from COVID-19.
In most situations similar to this, it has been the parent opposed to vaccines who has been criticized for introducing “fringe” evidence. However, in this case, the court said “None of the materials presented by the mother are from fringe organizations or dubious authors. On the contrary, the mother quotes extensively from leaders in the medical and scientific community.” The mother also told the court she agrees with the evidence presented by the father. Another important finding by the court was that the mother did not try to influence the children in a way that would lead them to become vaccine-hesitant.
The court was not so quick to compliment the evidence presented by the father. The court found that instead of presenting evidence from the medical community that supports his position, he engaged in a “relentless” campaign to “dismiss the mother as some sort of lunatic.” The court found the father’s conduct at trial to be “dogmatic, intolerant, and paternalistic,” writing that instead of supporting his own position, he instead sought to discredit the mother. The court said this type of approach to family law, including “intolerance, vilification, and dismissive character assassination” is becoming more and more frequent, which is worrisome. This behaviour was found to outweigh the medical evidence the father did submit, some of which was shared by the mother.
Ultimately, the court could not base its decision based on the father’s treatment of the mother’s position, despite being critical of it. Instead, it had to consider only the best interests of the children. The court wrote,
“On balance, I am satisfied that that mother’s request for a cautious approach is compelling, and reinforced by the children’s views and preferences which are legitimate and must be respected. The mother has consistently made excellent decisions throughout the children’s lives. Her current concerns about the vaccines are entirely understandable, given the credible warnings and commentary provided by reputable sources who are specifically acquainted with this issue.”
The father’s motion was dismissed, and the mother was able to maintain her position as the parent responsible for medical decisions related to the two youngest children.
Howie Johnson Barristers & Solicitors can help you with your family law issues
With over 25 years of experience, the family law team at Howie Johnson Barristers & Solicitors knows the many issues that people going through divorce and separation have to work through. In our time practising family law, we’ve come across just about every situation, and we apply our experience to help see that our clients are successful. We advise clients on all matters of family law and help our clients best achieve a satisfactory resolution. If you have concerns related to parenting time and decision-making, please contact us online or by phone at 519-973-1500 to schedule an introductory consultation to see how we assist you.