Case Comment ' Covid-19 Vaccination Of Children, O.M.S. v. E.J.S., 2021 SKQB 243

• Published date: 20 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Trials & Appeals & Compensation, Operational Impacts and Strategy
• Law Firm: McKercher LLP
• Author: Ms Zina Scott

The Saskatchewan Court of Queen's Bench recently rendered a decision that will be of note to separated or divorced parents who disagree on whether to vaccinate children between the ages of 5 to 11. Below is a summary of the Court's decision, written by the Honorable Justice Megaw.

Background Information about the Case

In the case, the parties had two children. The older child was 12 years of age. At the time that the case was litigated and decided, vaccinations were not yet approved in children age 5 to 11, so the application only concerned the 12-year-old child. There was an existing Judgment that granted the mother final decision-making authority with respect to medical matters involving the children. The father applied to the Court for an order authorizing him to have the 12-year-old child vaccinated for COVID-19. The mother opposed the application.

Both parties filed materials from various physicians in support of their respective positions. The Court reviewed the evidence provided by all of the physicians and provided comments on each physician's expertise in relation to infectious disease, COVID-19 and vaccinations generally.

The mother argued that the child should not be vaccinated for three reasons. First, she argued that the vaccine was unsafe and experimental. Second, she argued that the child had been diagnosed with a condition called "vaccine toxicity" and should not be subject to any further vaccinations. Third, she argued that the child did not want to be vaccinated, and that the child's view should be adhered to.

The father argued that the child should be vaccinated. He expressed concerns about the danger and risk of the COVID-19 virus and its impact on the child, particularly in light of her type 1 diabetes.

The Court granted the father's application and ordered that the child would be vaccinated for COVID-19. The Court provided the following reasons for its decision:

Analysis of the Best Interests of the Child

The Court first conducted an analysis of what was in the best interests of the child, referring to comments made by the Supreme Court of Canada in the case of Young v Young, [1993] 4 SCR 3. The Court emphasized that determining what is in the best interest of the child requires a child-centred analysis that respects the child's right to the best possible arrangement in the circumstances. The Court also noted that while the views of the parents are entitled to serious consideration, the welfare of the child is paramount (Peterson v....