Co-Parenting and the COVID-19 Vaccine for Children

Health Canada has approved the Pfizer COVID-19 vaccine for children and teens aged 12 – 18. This is viewed by many as a positive indication of a return to pre-pandemic life. However, in some cases, it poses another challenge for separated parents where there is disagreement around vaccinations for their children.

In Alberta, physicians require consent from both parents to vaccinate a child. The exception to this rule is if there is a court order or agreement stating that one parent has sole decision-making as it relates to medical decisions for the child. If this is the case, Alberta Health Services requests a copy of this documentation for the child’s file before proceeding with issuing a vaccine without the other parent’s consent.

There is no ability to compromise when it comes to a child being vaccinated – it is a black or white issue. If co-parent’s cannot agree on vaccinations for their child, an application to the court may be the only option available to resolve the issue. The court will consider each parent’s position regarding vaccinating the child and make a determination based solely on the child’s best interests.

In a recent Ontario decision (A.P. v L.K. 2021 ONSC 150), a father successfully appealed an arbitrator’s decision that found it was not in his children’s best interests to be vaccinated. The parties had separated following a 12-year marriage and the father wanted to have the children vaccinated, while the mother was strongly in opposition. They elected to have the issue determined by an arbitrator. Both the mother and father led expert evidence in support of their respective positions. The mother argued that the children had underlying medical conditions that put them at risk of side effects from vaccines. Her expert witness questioned the safety and efficacy of vaccines, stating that they are untested and unsafe. The father, appearing self-represented at arbitration, presented evidence to the contrary and relied on the children’s family doctor recommendation in favour of vaccines. The mother was successful in arbitration and it was ordered that the children should not be vaccinated.

On appeal, the court held that the arbitrator had made a “palpable error” in concluding that remaining unvaccinated presented no risk to the children. The court also found that the mother’s expert witness should not have been qualified as an expert as her opinion was based on contested science. The government recommendations on vaccinations were relied on and favoured by the court in coming to the decision. The father was granted sole decision-making as it relates to vaccination for the children.

While this is an Ontario decision, it provides insight as to the court’s views on vaccinations. The court is cautious to rely on any untested theories regarding vaccines and will turn to government recommendations/ peer-reviewed scientific evidence to decide what is ultimately in the children’s best interests.

With the COVID-19 vaccine being considered for children under the age of 12 in the next year, it is anticipated that there will be an upswing in court applications regarding this issue. If you have any questions regarding vaccinating your child, the family lawyers at Vogel LLP are happy to assist in providing you the information you need to make the best decision for your family.