COVID-19 vaccinations approved for children. What happens now?

By Tony Poland, LegalMatters Staff • The approval of COVID-19 vaccinations for children aged five to 11 could open up a new legal battleground for divorced or separated parents, says Toronto family lawyer A. Julia P. Tremain.

However, parents of children who are opposed to the inoculations should not assume the courts will side with them, she says.

“People can get really worked up about the issue of vaccinations. It could be a messy situation for parents who disagree on whether their children should be inoculated,” says Tremain, a partner with Waddell Phillips Professional Corporation. “The issue of COVID-19 vaccinations is new, but general vaccination hesitancy is not. This type of dispute has been around for a long time. 

“I suspect the case law will not be that much different compared to other vaccinations,” she tellsLegalMattersCanada.ca. “Generally, when courts are asked to decide specifically on whether a child should be vaccinated, they accept public health directives. The advice so far has been that COVID vaccines work and they are safe. If health officials recommend them, the courts are unlikely to look beyond that.”

Of course, there will be exceptions, Tremain says.

‘A simple doctor’s note would not be enough’

“A parent would have to show a medical reason why their child should not be vaccinated but it would have to be a medical exemption,” she says. “A simple doctor’s note would not be enough. There would have to be a specific condition to prevent the child from being vaccinated explaining how it would affect them and what the negative consequences would be. I believe it will be an uphill climb for a parent to get a court order preventing an inoculation.”

On Nov. 19, Health Canada approved Pfizer-BioNTech’s vaccine for children aged five to 11, saying it marks “a major milestone in Canada’s fight against COVID-19.”

The clinical trial showed that the immune response in children five to 11 years of age was comparable to the immune response in people 16 to 25 years of age. The vaccine was 90.7 per cent effective at preventing COVID in children five to 11 years of age with no serious side effects.

“This is very good news for adults and children alike,” Dr. Supriya Sharma, a senior medical advisor with Health Canada told the media. “It provides another tool to protect Canadians, and to the relief of many parents, will help bring back a degree of normality to children’s lives, allowing them to more safely do the things that they have missed during the last 20 months.”

Disagreements among parents are likely

Tremain says there will undoubtedly be disagreements among parents when it comes to the shots, adding the courts have dealt with a number of COVID-related issues since the pandemic began. And in each case the health and well-being of the child was always the first consideration, she says.

For example, last month the court was asked to consider the parenting time for a father of a child with asthma, a condition that put her at greater risk of contracting the coronavirus.

Court was told the father had a severe reaction after receiving the first dose of the COVID-19 vaccine and was unable to get the second shot. The mother sought an order suspending his in-person parenting time citing the risk to their daughter.

Justice Robert J. Spence notes the father’s “increased risk of infection potentially exposes the child to an increased risk of infection.”

However, while the court places considerable importance on the child’s “safety, security and wellbeing,” it is also important they have an ongoing relationship with both parents. Spence allowed the father’s weekly visits to continue with restrictions, reducing the time spent with his daughter from two hours to one.

‘Child entitled to have her parent in her life in a meaningful way’

“All other things being equal, the child should be entitled to have her parent in her life in a meaningful way. Absent unusual circumstances, in-person contact between parent and child is more meaningful than virtual contact,” he writes.

In August 2020, Ontario Superior Court ruled in favour of a mother who wanted her son to return to the classroom despite the objections of the boy’s father.

• Order for parental visit at Turkish resort unusual and concerning
• SCC child support judgment is ‘a great decision for clarity’
• More couples preparing for the challenges of the ‘grey divorce’

“School attendance in the midst of a pandemic is a challenging issue for many parents,” Justice Andrea Himel wrote. “Unfortunately, for some separated and divorced parents, this is another battleground; one more arena where their child may become the prisoners of the war.”

Tremain notes the judge relied on public health directives in reaching her decision.

“The Ontario government has determined that September 2020 is an appropriate time to move on to a ‘new normal’ which includes a return to school,” she writes. “I note that the Ontario government did not hesitate to shut down all schools in March 2020 and has declined to re-open them until now. The Ontario government has articulated in the media that they will not hesitate to shut down schools again if the number of COVID-19 cases increases materially.”

Judge cites need to resolve matters outside of the courtroom

Another key takeaway in the ruling was the judge’s statement about the need to resolve matters outside of the courtroom, Tremain says.

“A better approach is to engage in mediation with a professional or third-party trusted family member or friend,” Himel writes. “I note that in this case (and in all others currently before the Court) the Mother and Father have delegated the authority to make the decision respecting their child’s in-person versus online attendance at school to me, a judge who has never met the parents and who will likely never meet the child. I would encourage the parents to return to mediation as this is a process that empowers them to make these important decisions.”

However, when it comes to disagreements about vaccinations, mediation is not really a viable option, says Tremain.

“The problem is this is an either/or proposition. There is no meeting in the middle, no compromise. The child is vaccinated or not,” she says.  “If one parent has decision-making powers and decides the child will not be vaccinated, the only option for the other parent is to bring a motion before the court. They may need a judge to make that decision.”

Tremain says it is an interesting circumstance because “people have people lined up to get themselves vaccinated but there may be more hesitation when it comes to having their children inoculated.”

‘We have to put our faith and trust in them’

“People may be concerned because they may think there is an element of experimentation to it,” she says. “Ultimately, we have public health doctors for a reason and we have to put our faith and trust in them. 

“The hesitation could be that it is a new vaccine,” Tremain adds. “It is a simple matter to get information and misinformation from the internet. People may be better informed but they also may be wrongly informed as well.”

She says now that the government has given its approval for children to be inoculated, parents who disagree on the issue “should be having the vaccination conversation as soon as possible.” And while no issue is ever “cut and dried,” Tremain says is confident she knows how courts will rule.

“If I was going to advise a parent, I would recommend against fighting this in court because it is unlikely they would be successful,” she says. “Judges are going to be pretty much on the side of vaccinations. That is the main thing parents need to know.”

More from Waddell Phillips Professional Corporation:

Reverse class action judgment needs to be reversed