When Parents’ Decision-Making Authority and the Vaccine Views Clash

With medical experts announcing the beginning of the 4^th wave of COVID-19 in Ontario and school beginning in a few weeks, the topic of vaccinating children against COVID-19 has again come to the surface. When does the child’s perspective on vaccinations get taken into account? Also, what happens if separated or divorced parents have different views on vaccinations – which parent’s viewpoint should be followed?

Youth Aged 12 to 17 Can Consent To or Refuse the COVID-19 Vaccine

According to section 4(1) of the Health Care Consent Act, 1996, SO 1996, c 2, Sched A [HCCA], a person has the capacity to decide medical decisions “if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.” While 16 is the default age at which HCCA says a person can give or refuse consent, the common law has established that a “mature minor” under the age of 16 is capable of voicing medical opinions without requiring parental approval.

Currently Ontario has approved the Pfizer-BioNTech vaccine for youth aged 12-17. Youth in this age group need to provide informed consent when getting the vaccine, which means they acknowledge that they understand (a) what is involved in receiving the vaccine; (b) why the different levels of government and medical practitioners are recommending people get the vaccine and (c) what risks and benefits are associated with either getting or refusing the vaccine. People between 12-17 years old are able to provide consent to receive or refuse the vaccine without parental guidance.

Recent Ontario Decisions Lean in Favour of the Parent Who Supports Following Public Health Vaccination Guidance

In two recent Ontario Superior Court decisions, the court has had to address the issue of which parent should be entitled to decision-making authority when they disagree on whether to vaccinate their children against vaccine-preventable diseases and COVID-19.

In AP v LK, 2021 ONSC 150, the appellant father successfully appealed a final arbitration award where the arbitrator had found that vaccinating the parties’ two children, was not in the best interest of the children. The children, aged 14 and 10, had not received any of the standard childhood vaccines. During the marriage both parents agreed not to give the children any vaccinations. Following separation, the appellant father began to argue the children should get vaccinated. Tension related to vaccinations was causing anxiety in both the children, leading them to be reluctant to get vaccinated. The arbitrator found that it was in the children’s best interest not to get vaccinated for the following reasons at paragraph 34:

1. The status quo supports the children remaining unvaccinated;
2. There is no risk to the children if they do not become vaccinated;
3. The children are at increased risk from vaccination due to the respondent’s MTHFR genetic variation;
4. The children are anxious and stressed due to the prospect that they will be forced to become vaccinated, and only an Award that they not become vaccinated will free them from the conflict between the parties.

On appeal, the court found that the arbitrator had relied on incorrect medical opinions and had made a palpable error in ignoring valuable evidence about the benefits of vaccines and the risks associated with contracting a vaccine-preventable illness. The arbitrator also erred in finding that the children had a greater risk of having complications following vaccinations because of their genetic marker. While the status quo was to allow the children to remain unvaccinated, there was minimal evidence to demonstrate that the children were anxious or stressed about becoming vaccinated. Ultimately, the court found that the arbitrator’s errors collectively were overriding, allowing the court to set aside the arbitrator’s award. The court held at paragraphs 276-278 that,

it is in the best interests of the children to order, on a final basis, that the appellant shall have the sole responsibility to make vaccination-related decisions for them. This order will ensure that the children become vaccinated in accordance with the advice of a physician as to the vaccines to be administered, and the manner and timing by which to administer the vaccinations… Any concerns the children may have about vaccines and vaccination can be alleviated through communication with them about the fact that vaccines are well-tested and safe, with only minor side effects, and the provision of any other information that may be necessary to dispel any misconceptions they may have about the safety and efficacy of vaccines.

Similarly, in IS v JW, 2021 ONSC 1194, the vaccination of a six-year-old child was at issue. The applicant mother, who had decision-making authority, did not believe in the value of vaccines as a preventative treatment against illness and disease. The mother opposed vaccinating the child because her adult son had an allergic reaction to a vaccine when he was one-month old and she herself had been vaccinated against measles yet still contracted the disease. In contrast, the respondent father advocated for the benefit of vaccines. A developmental pediatrician testified during the trial to the efficacy of vaccines and his intention to recommend to his patients that they receive the COVID-19 vaccine once it became available. 

In its analysis of vaccine efficacy (at paragraph 182), the court took judicial notice of two facts based on the Justice Finlayson’s in-depth analysis of vaccine-related case law in BCJB v E-RRR, 2020 ONCJ 438:

1. Ontario’s publicly funded vaccines are safe and effective at preventing vaccine preventable diseases. Their widespread use has led to severe reductions or eradication of incidents of these diseases in our society; and 
2. The harm to a child, flowing from contracting a vaccine preventable disease, may even include death; at paras. 186-187.

Taking into consideration these established facts as well as the reasons for the mother’s hesitancy to vaccinate her child, the mother’s history of making other conscientious decisions related to the child’s health, the pediatrician’s views on vaccines and the mother’s lack of a future plans for immunizations, the court determined that it was in the child’s best interest not to allow the mother to continue refusing the child vaccines. The mother was ordered to immediately create and implement a schedule for immunizing the child according to Public Health Ontario’s recommendations. While the mother maintained her decision-making authority, the court also ordered that in the event the immunization schedule was not properly progressing, the father was entitled to initiate a review of the decision and request sole decision-making authority for all aspects of the child’s medical care. As the child was too young to be eligible for the COVID-19 vaccine, the order did not mention a requirement to vaccinate the child against COVID-19.

Conclusion

While Ontario courts have yet to order that parents vaccinate their children against COVID-19, based on these two recent decisions it is clear that they are leaning towards supporting public health guidance about the safety of vaccines and their efficacy in protecting children from disease and illness. When parents disagree on vaccination plans for their children, the courts are likely to follow public health guidance and award medical decision-making authority to the parent who wishes to vaccinate the child. It remains to be seen if courts will specifically order parents to vaccinate their children against COVID-19.

Thank you to Lucia Kim for her assistance with the research on recent case law.

If you have family law questions, including questions about decision-making and parenting time, contact the knowledgeable family lawyers at Mills & Mills LLP at 416­-863-0125 or via email.