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What The Law Says About Vaccines and Children

While the high point of the COVID-19 crisis seems to have ended, the virus itself may be with us for years to come. Even once the situation is no longer deemed a ‘pandemic’ by the government, the virus may continue to adapt and circulate, and people will continue to become infected and likely need to isolate for a period of time.

Vaccines against the COVID-19 virus and several of its variants have been publicly available for almost two years now. During this time, many parents had differing views on whether to vaccinate their children against COVID-19 and these disagreements spilled into our judicial system.  The courts were asked to decide if a child should be vaccinated. Previous case law gave family lawyers some guidance on how a decision would be made, but now in 2023 the Ontario Court of Appeal appears to have set a new standard. 

What The Law Says About Vaccines and Children

Disputes between separated parents about whether or not to vaccinate their children have been going on since the vaccine was first accessible to children under the age of 18. In early decisions, these cases also frequently involved homeschooling, as schools were operating in largely hybrid formats, and parents were concerned about children attending in-person learning while unvaccinated. 

In 2021 we wrote about the case of A.C. v. L.L., 2021 ONSC 6530, where three children were divided between two separated parents. The mother, who was skeptical about the safety of the vaccines, argued that since they had not been mandated there must be an issue with safely administering them to children.

The children in this case were teenagers, and the Court recognized their power under the Health Care Consent Act to make knowledgeable decisions about their own health care. It did, however, take significant notice of the public health guidance which had shown that vaccines were safe and effective, and that following guidance from public health would usually be in the child’s best interests.

What happens, though, when an individual judge may share one parent’s skepticism? 

The Court of Appeal Weighs In

In J.N. v. C.G., 2023 ONCA 77, the Court of Appeal recently heard an appeal brought by a separated father of three children. The oldest child lives with him, and the two younger children (10 and 12) live with their mother. The father had brought an earlier motion to request decision-making authority in order to vaccinate his children, arguing that the vaccines were safe and effective. 

The mother, however, argued that there were questions about the vaccine’s safety and efficacy, and that the two youngest children did not wish to receive the vaccine. The father provided evidence from Health Canada and the Canadian Pediatric Society, whereas the mother provided her own online research, largely from social media. The Office of the Children’s Lawyer independently confirmed that the children did not want to receive the vaccine. 

This is where the case gets interesting. The judge hearing the motion agreed with the mother, and found that it was not in the children’s best rights for the father to make the decision. The judge found the father’s approach to be “dogmatic, intolerant, and paternalistic,” and used past examples of government misdeeds to prove that the government does not always know best. Instead, the Court found that the mother had “gone to extraordinary lengths to inform herself” and that her sources were reputable.

Upon review, the Court of Appeal noted that most of the ‘experts’ the mothers’ evidence relied on were actually self-styled experts, with little in the way of independent credentials. As the Court of Appeal ultimately ruled, “The information relied upon by the respondent was nothing but something someone wrote and published on the Internet, without any independent indicia of reliability or expertise, which, even if admissible, should have been afforded no weight at all.”

The Court noted that instead of reviewing the father’s evidence thoroughly, the motion judge used “inapt” historical examples such as Thalidomide, Japanese internment camps, and Motherisk in order to prove that government is fallible, while criticizing the father’s medical evidence as “somewhat narrow and repetitive.” The Court of Appeal noted that the judge effectively ignored the laws of evidence “in favour of the respondent’s questionable and unreliable internet printouts with no independent indicia of reliability or expertise.”

The Court also said that inappropriate weight was given to the Voice of the Child report produced by the Office of the Children’s Lawyer. While there are acceptable standards as to how to treat evidence provided by a child – including how informed the child is and parental influence – the children had been heavily influenced here by their mother, and provided with incorrect facts and bad science. As the Court of Appeal noted, “the motion judge appears to have made no effort to understand the children’s concerns about the vaccine.” 

Ultimately the Court of Appeal found that the motion judge had varied widely from agreed-upon rulings, and that the mother had not satisfied her onus to establish that the children should not receive the vaccine despite Health Canada’s opinion that the vaccine was safe and effective. The Court noted that “there is no reason to doubt the appellant’s [father’s] motivation and stated desire to approach this very sensitive issue in a measured way and with a view towards the children’s best interests.”

The Court of Appeal allowed the appeal, and granted the father sole decision-making authority with respect to the children’s vaccination against COVID-19 in this circumstance. 

Final Thoughts

The story of this case is fascinating. It is not unusual for parents to disagree on the issue of vaccines.  Ultimately, when it comes to whether children should be vaccinated, accepted science from regulators and recognized bodies such as Health Canada will be given significant weight before the courts.  As public health authorities have both approved and recommended the vaccine for almost all Canadians, a parent would need to present sound, well-researched science to prove why their child should not receive the vaccine against their co-parent’s wishes.

If you and your child’s other parent are debating how to handle the COVID-19 vaccine or other medical concerns when it comes to your children, our family lawyers can help. Our role is not to judge, but to help guide you in line with the law, and help you put your best case forward in any dispute. Contact us today to set up a family law consultation.