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Nothing But the Vaxx: Family Law and Vaccinations

by Samantha J. Neill, Lawyer
Administrative Law • Arbitrations • Employment Law • Family Law (Litigation & Alternate Dispute Resolution) • Real Estate

With COVID-19 vaccines now available to children ages five through 11, there is no better time to explore the intersection between family law and vaccinations.

Discussions about vaccines have taken center stage over the past year: how they’re formulated, what they do, what they don’t or can’t do, and, perhaps most importantly, whether they can or should be mandated at law. 

Different households, different views

While COVID-19 vaccines have been strongly encouraged, they are not—and likely will not be—mandated for the general public. Ultimately, the decision to vaccinate is at the discretion of the individual… but what happens when separated parents have opposing views on the issue?

Often, children who move between their parents’ households encounter differences between the rules and norms in each of those spaces. With the advent of COVID-19, the Courts have grappled with those differences in cases where children are moving between households wherein one parent aligns with the general scientific perspective on vaccinations, and the other parent opposes that perspective for any number of reasons. 

Legal precedent: O.M.S. v. E.J.S.

In his September 9, 2021 decision in O.M.S. v. E.J.S., the Honourable Justice Megaw of our Court of Queen’s Bench was presented with a case involving separated parents of a 12-year-old child living with diabetes. While the father wanted the child to be vaccinated against COVID-19, the mother—along with the child’s paternal grandparents—was staunchly opposed. The child, too, opposed receiving the COVID-19 vaccine, which in this case was the Pfizer vaccine. 

Counsel filed myriad evidence and the Court had to navigate a number of side issues before addressing the paramount consideration: the child’s best interests. The Court considered each of the factors enumerated at section 16 of the Divorce Act (as in the Children’s Law Act) in relation to the facts in evidence. Among these considerations were not only the child’s physical needs, but also the child’s mental and emotional needs, insofar as these impacted on the child’s views and preferences. This is a key consideration when assessing whether a child should be considered a “mature minor” for the purpose of making their own medical treatment decisions. 

The relevant factors include:

  1. The child’s age and maturity; and,
  2. The nature and extent of the child’s dependency on his/her/their guardians in respect of making decision for themselves, and whether that child is able to decide for themselves, independent of their parent(s) views, and with a full appreciation and understanding of the consequences of submitting (or of not submitting) to a specific treatment.

In this case, the Court found that the child’s opposition to receiving the COVID vaccine was grounded primarily in beliefs that had been fostered by the mother and paternal grandparents. The Court found that the child’s views, when expressed, parroted those of the mother and paternal grandparents.  The Court concluded that the child had either not had the opportunity to fully consider, or did not possess the ability to appreciate and understand the potential consequences either of receiving or not receiving the COVID-19 vaccine. 

Perhaps the most decisive factor on this point is Justice Megaw’s assessment of the evidence presented, and his ultimate finding that he was able to take judicial notice of certain facts in the case before him:

  1. Canada and Saskatchewan have experienced a COVID-19 pandemic such that health and other restrictions have been imposed to control the spread of the virus; 
  2. The possibility of contracting the COVID-19 virus poses a serious and significant health to both children and adults; and, 
  3. The vaccine the father proposed the child receive (Pfizer) has undergone the approval process in Canada and has been approved by health authorities as being safe and effective for use in both adult and children. 

What does this mean? 

I have seen a variety of comments to suggest that the Court’s willingness to take judicial notice of these issues in this one decision creates a certainty that all children who are the subject of such applications in future will be required to receive the COVID-19 vaccine. In my view, this conclusion neglects to consider a couple of factors. The first is that Justice Megaw’s decision has been appealed to the Saskatchewan Court of Appeal, so there may yet be further consideration of this issue. The second is that cases such as this are incredibly fact-driven, and are decided on a case-by-case basis. Thus, in a case with an entirely different set of facts, the Court could well reach an altogether different conclusion.   

In this age of divisive opinions and politics, particularly around the issue of COVID-19, it is important to keep in mind that most people are doing the best that they can, and that we are all trying to sort out how to navigate this very unfamiliar terrain. 

If you have concerns about this issue, or any other issues impacting on your parenting, your family, and/or your employment, please contact Naidu Legal for a complimentary 30-minute consultation.