COVID vaccination decision could find parents battling in court

By Tony Poland, LegalMatters Staff • While approval of the COVID-19 vaccine in Canada was heralded as welcome news, it could lead to court battles between parents who disagree about the wisdom of inoculating their children, says Toronto family lawyer A. Julia P. Tremain.

Health Canada recently approved the Pfizer-BioNTech vaccine and doses began arriving this week. Long-term care home residents and the staff who care for them are slated to be the first to get the two-dose shot. It will be months before those under 16 will get their turn.

However, when that time comes, Tremain, a partner with Waddell Phillips Professional Corporation, says she expects some divorced or separated couples will be turning to the legal system to settle their inoculation disputes.

“It is likely to cause all kinds of consternation with parents,” she tells LegalMattersCanada.ca. “People are so fed up with COVID. Everybody wants it to be over and if vaccination is a way to move things along, then so be it. 

‘Parents get anxious’

“But it’s one thing to talk about vaccinating health care workers and adults. Parents get more anxious when it’s their children. Nobody is quite sure if there is going to be long-term side effects.

Tremain says there is a range of people with “vaccine hesitancy.”

“People may be worried the vaccine may not be safe,” she says. “They may be fine inoculating their children with other vaccines but may feel this one is risky since it hasn’t been tested on children.

“They might have other reasons for not wanting this specific vaccine. There are also parents who are philosophically opposed to having their child inoculated with any vaccine,” Tremain adds. 

Ontario Health Minister Christine Elliott says although the COVID vaccine will not be forced upon the population, those who refuse immunization could face sanctions, according to a CTV report.

“There may be some restrictions placed on people that don’t have vaccines for travel purposes, to be able to go theatres and other places,” Elliott is quoted in the report. “That will be up to the individual person to decide whether they want to receive the vaccine to be able to do these things or not.”

She added Ontarians will be issued government documentation to prove they have received the vaccine, according to CTV. 

Free to refuse

Elliott says “strict anti-vaxxers” and those hesitant to get the vaccine are free to refuse.

“That’s their choice,” Elliott said. “This is not a mandatory campaign.”

That choice might be a tough one for some parents, says Tremain.

She says there is the chance that misinformation from “potentially dubious internet resources or discredited medical resources” regarding the COVID vaccine will unduly influence some.

“A parent may not be making a reasonable decision in such instances,” Tremain says. “But it may be tougher if there are some legitimate concerns.”

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The speed in which the vaccine was developed may worry some parents, but it shouldn’t, she says.

“It has been approved. It has been through the regulatory process,” she says. “Just because it has been done quickly doesn’t mean that it hasn’t been approved properly. They are not mutually exclusive.”

Even the initial rollout in the United Kingdom may scare some people from getting immunized, Tremain says.

“The vaccinations just started and already there was a report that people were having allergic reactions,” she says. “Even though those involved are fine, that is the kind of thing that may make people think twice.

“As time passes and we get more information people may be more confident about this vaccine.”

Tremain says a divorced or separated parent looking to the courts to prevent their child from being inoculated may be disappointed.

She explains a child’s welfare is paramount to courts when parents are divided.

‘Best interest of the child’

“When we’re dealing with the COVID vaccine I expect the outcome will be similar to other vaccination cases,” she says. “The courts almost always come down in favour of the vaccinations because they look at what’s in the best interest of the child. 

“All the messaging about the COVID vaccine is that it is important. It protects the health of the person being inoculated and those around them. I believe courts are going to come down in favour of the vaccine,” Tremain adds.

She advises parents to work at reaching a consensus about the vaccine.

“In almost any custody access decision, the courts will say parents are the best people to decide what’s best for the child,” says Tremain.

She points to a  ruling earlier this year when a divorced couple was split on the issue of their son returning to school amid the increasing numbers of COVID cases.

Court ruling

In her ruling, Justice Andrea Himel suggested it was up to parents to find a solution to their problems.

“School attendance in the midst of a pandemic is a challenging issue for many parents,” she 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.

“A better approach is to engage in mediation with a professional or third-party trusted family member or friend,” Himel added. “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.”

Tremain says courts will consider a number of factors in determining what is right for a child, such as their health and whether the vaccine will help protect their extended family.

“Unless there’s some really big problem with the COVID vaccination, the likelihood is the courts will come down on the same side as vaccinating children,” she says.