Could the Family Court Force a Parent to Vaccinate their Child?
In an intact family, parents may decide together not to vaccinate their child. But when parents are separated and cannot reach a decision, the solution is not so simple.
The word “custody” in family law refers to a bundle of rights and obligations relating to a child, referred to as “incidents of custody”. A decision regarding healthcare is one “incident of custody”. Custody may be vested in one parent, or both parents jointly. The court must determine the case based on what is in the best interests of the child. Decision-making authority over health is consistently and overwhelmingly bestowed upon the parent who is best able to make an informed decision, based on sound medical advice.
When it comes to vaccines, courts can take “judicial notice” of widespread information available regarding vaccines, including that they are safe and beneficial, and serious side effects are rare. When a parent decides not to follow routine medical advice that is universally given for most children, that parent must explain his or her decision-making, and present reliable evidence that the child may be at risk of harm. Evidence may be given by the child’s health care provider, or an expert in a relevant field, such as an infectious disease expert.
In almost all the vaccine cases, the parent opposing vaccination relied on internet evidence from questionable sources or opinion evidence from someone with questionable qualifications. Decision-making authority has therefore almost always been vested in the “pro-vaccine” parent.
Although there is currently no COVID-19 vaccine approved for children in Canada, this is something our courts will no doubt grapple with eventually. Interestingly, there has already been one Ontario decision (Tarkowski v. Lemieux, 2020 ONCJ 280) wherein the court vested decision-making power over whether to vaccinate the child against COVID-19 to the father, based on the mother’s past hesitancy to vaccinate the child.
Time will tell how the family court handles this upcoming issue. Based on existing caselaw, if a vaccine is eventually recommended for children, a parent hoping to avoid the vaccine will likely need to come to court armed with medical evidence that the vaccine poses some special increased risk to the child.
Family Law Lawyer, Siskinds