UPDATED VERSION - What Are Separated Parents' Rights When One Of Them Refuses To Vaccinate Their Child Against COVID-19?

• Published date: 08 February 2022
• Subject Matter: Family and Matrimonial, Coronavirus (COVID-19), Family Law, Government Measures
• Law Firm: McCague Borlack LLP
• Author: Dennis Molnar and Paul Jacoby

Major COVID-19 vaccine producers are attempting to have their vaccines approved for use in children as young as five years old.¹ With their approval, separated parents' beliefs about whether their child should receive a COVID-19 vaccination is an issue with the potential to further divide families.

In Ontario, some recent cases discuss whether one parent can have exclusive authority over vaccination-related decisions for their child while the other is against it. These cases stand for two general principles: it is generally in the best interests of the child to be vaccinated; however, if a mature child can provide consent about medical treatment, they will very likely be able to refuse the vaccine, as is their right under the Health Care Consent Act.²

Defining Consent

To provide consent for a medical treatment, including vaccination, a child must be able to "understand the information that is relevant to making a decision about the treatment'?'and be able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.³ This test will be applied on a case-by-case basis.

Decisions on Children's Vaccinations

In B.C.J.B., the father was granted sole decision-making power over whether to vaccinate the parties' 10-year-old child with a future COVID-19 vaccine approved for use in children.⁵ The mother argued against vaccinating the child against COVID-19. In this case, vaccination was in the best interests of the child, who also did not have a sufficient level of maturity to make the decision themselves.⁶

In I.S., the mother, who had sole authority over medical care and decision-making, was against administering any vaccines to her 5-year-old child.⁷ The Court held that the best interests of the child were to be vaccinated.⁸ While this case did not speak directly to the COVID-19 vaccine, as it was not widely available, it speaks to how government-recommended vaccinations, generally, are in the best interests of children.

In Tarkowski, the Court granted sole decision-making responsibility in all areas to the mother of the parties' seven-year-old child except for decisions concerning ongoing and future vaccinations. It held the father would have sole decision-making responsibility to decide whether to vaccinate the parties' child against COVID-19, even if the mother refused to consent.⁹

In reaching its decision, the Court considered the parents' history around vaccinations generally.¹⁰ The mother had a history of expressing debunked...