What if parents do not agree on vaccinating their children?

AuthorSteingard, Jessica

With children five years and older now eligible for the COVID vaccine, some separated parents who cannot agree on vaccinating their children are ending up in court.

On November 19, 2021, Health Canada approved the use of a lower dose Pfizer-BioNTech COVID-19 vaccine for use in children aged five to eleven years of age. It had already approved the Pfizer vaccine for use in children aged twelve to seventeen years.

To say vaccination status has been a polarizing topic is an understatement. Some family members are not speaking to each other. Some employers are terminating employees who refuse to follow the workplace vaccination policy. And communities are divided.

And what about separated parents who have joint decision-making authority but cannot agree on whether their children should be vaccinated?

In a few cases across Canada, the courts have grappled with this question, including one case in Alberta. Before we dive in though, let's take a step back. First, the principal guiding any decision about children is Canada is what is in the best interests of the child, not what the parents or anyone else wants. Second, the courts have dealt with childhood vaccine issues long before COVID became a thing. In most cases, the courts decided in favour of the parent requesting authorization to vaccinate the children. And these COVID cases are no different.

Saskatchewan's OMS v EJS

In September 2021 in the case of OMS vs EJS, the father applied for an order authorizing him to have a 12-year-old daughter vaccinated against COVID.

First, the court had to contend with heaps of documents, including affidavits from both parents and medical professionals. It did not seem too impressed to do so!

As part of the best interests of the child analysis, the court considered the daughter's views and preferences. The mature minor doctrine requires that the court consider whether a child is mature enough to make their own decisions. In this case, the court found the daughter to be mature but held that she was deciding not to be vaccinated because of the influence of her mother and paternal grandparents. Thus, the court decided the child was not speaking independently.

The court also took judicial notice of several facts related to COVID. Judicial notice allows a court to accept the truth of a fact or situation without requiring proof. The mother's counsel was not on board with the court doing so, and instead asked the court to keep an open mind and consider evidence...

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