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Over the last two years, we have spent a significant amount of time blogging about how the courts have responded to instances where parents do not agree on various measures related to COVID-19. Most of the cases we’ve written about have been about parents who disagree over whether their children should receive the COVID-19 vaccine, or about parents who disagree on whether their children should attend in-person school. In some cases, we’ve also discussed parents who could not agree on whether a vacation was responsible or appropriate. A decision issued by the Court of Queen’s Bench in New Brunswick, which was recently reported on by the CBC, is the first in the country to deal with a parent who has lost access to his children because of a refusal to get vaccinated against COVID-19.
Father does not trust the safety of COVID-19 vaccines
The parents involved in the matter began dating in 2009 and had three children before they separated in 2019. One of the children suffers from a medical condition that has left her immunocompromised. The parents shared parenting time with the children on a week-on-week-off schedule.
When the COVID-19 pandemic struck in March 2020, the parents continued to share parenting time with the children. It was only in July 2021 that things came to a head. It was at this time that adults in New Brunswick were eligible to receive COVID-19 vaccinates. The mother learned that the father and his new partner had decided to “wait” to get vaccinated because they did not trust the safety of the vaccines.
In 2021, the parents met with a doctor who provides care to their child with significant medical issues. The doctor told the parents that he recommended all family members and people close to the child who can be vaccinated do so. The mother followed up with the father a few days after that meeting to find out if he had changed his mind, but the father said he hadn’t changed his mind and that research he had done with his partner online had caused him to be concerned about the safety of the vaccine.
In October, the father and his wife obtained what they told the court were “medical exemptions” for the vaccine. The exemptions came from a doctor who has had his license suspended by the province’s College of Physicians & Surgeons. The court questioned the validity of the document and was told by the Registrar of the College that it was not valid.
In addition to the father’s refusal to get himself vaccinated, he also failed to provide the consent needed for the children to receive vaccines once they became eligible.
Because of the father’s position on vaccines for both himself and the children, the mother asked for sole decision-making responsibility for medical issues. She also asked the court for sole parenting time for the children.
Assessing the father’s position on vaccines
The court said that it was not in a position to research the safety of efficacy of vaccines but said that it must rely on what clear facts have been established. Over the last year, courts have had to rule on the safety of vaccines as well as the safety of allowing children back to school. Essentially, the position courts have taken is that the best thing to do is follow the guidance provided by federal and provincial health authorities, all of which state that the COVID-19 vaccinations available to Canadians are safe for use, and that there is more risk in not getting vaccinated than there is in getting vaccinated.
In addition to accepting the position of governments and the medical community, the court also said that they are not to take judicial notice (or give weight to) articles that are “not shown to have general acceptance in the medical community.” Essentially, the court is saying that research performed by the father on his computer is not something that can be considered.
Should the father’s refusal to get vaccinated impact his ability to see his children?
The court acknowledged that children will most benefit from the love, connection, and support from both parents, but added this is only true if done safely. At the time the decision was issued, New Brunswick was in its most serious level of COVID-19 restrictions available at the time, with families maintaining single-household bubbles and schools being offered virtually.
The court found that the father had to be aware that his decision to not get vaccinated could have medical implications for one of his children, and that it impacted her ability to be protected against the virus. The father asked the court why his decision to not get vaccinated is any more dangerous than allowing the child to attend school with unvaccinated children, or risk getting the flu. But the court said this is the wrong question to ask because the father is contributing to risk through his refusal. If the father was to maintain 50% parenting time with the child, she would be in close contact with the father and his partner for much of that time, potentially exposing her to the virus.
The court gave no weight to the “research” performed by the father and said it was subjective and not meaningful in any way. The same can be said about the “medical exemption” provided by the father, which was a vague “fill-in-the-blank” form provided by a doctor who cannot practise medicine at this time. In short, the father’s behaviour stands in contrast to his statement that he would “do anything” for his children.
The court ordered that the mother could have the children vaccinated with the consent of the father and that the father’s physical parenting time with the children would be temporarily suspended until a court order determines he can have access again. However, the father will be allowed “generous” virtual parenting time at least three times per week.
Let Johnson Miller Family Lawyers help with your family law issues
The family lawyers at Johnson Miller Family Lawyers recognize that working through disputes concerning parenting time can be one of the most stressful aspects of separation or divorce. Couple with an ongoing COVID-19 pandemic, we understand that parents are facing more stress than normal. With over 25 years of experience, we can help ease this stress while working compassionately and efficiently towards a solution that has your family’s best interests in mind. We offer services across all areas of family law, including child support, spousal support, mediation, and more. We proudly serve clients in Windsor, Essex County, and throughout the region. Please give us a call at 519-973-1500 or reach out to us online to schedule an initial consultation today.
