Court of King’s Bench Sheds Light on COVID-19 Vaccine for Children
A recent decision from Lethbridge is shedding light on issues surrounding the COVID-19 vaccination for children. In TRB v KWPB 2021 ABQB 997, the Honourable Justice J.C. Kubik (“Justice Kubik”) was tasked with deciding whether the COVID-19 vaccine was in the best interests of two children, aged 10 and 12.
In this case, the parents have a shared parenting arrangement and joint decision-making responsibility for the children. Although the children have received their childhood immunizations and annual flu shots, the parents could not see eye-to-eye with respect to the COVID-19 vaccine. The mother was in favour of having the children vaccinated for various reasons, including preventing the contraction of the virus and helping the children to re-integrate safely in their community. The father opposed the vaccination citing concerns that the risk of the vaccine may be greater than the risk to the children should they contact COVID-19. He proposed delaying the vaccination until there is further evidence available or having the children tested to determine if they have antibodies to COVID-19.
Justice Kubik notes that the children have been involved in the parents debate around the vaccine, including receiving misinformation, and that it caused stress and anxiety for them. The Court was advised as such by children’s counsel, who was in favour of having the children vaccinated.
In considering the application before her, Justice Kubik refers to the father’s “engagement with vaccine misinformation”. His filed material referred to the vaccine as experimental, and his counsel made submissions to the Court about a “purported pandemic” and criticized the government for failing to establish the existence of a pandemic. The father’s position was refuted by the mother’s material that included government publications about the vaccine. The Court opined that “there is no evidence before me to prove that government is willfully misleading its citizens about the safety and efficacy of COVID-19 vaccines”.
The mother applied to vary the current decision-making arrangement such that she would have sole decision-making authority on health and medical matters. The first step in varying an existing order is to establish there has been a material change in circumstances. The Court accepted this threshold was met by the availability of the vaccine, the ongoing global pandemic, and the parties have been unable to reach an agreement on the vaccine issue outside of litigation.
The second step in the analysis is strictly about the best interests of the children, with primary consideration to be given to the children’s physical, emotional, and psychological safety, security, and wellbeing. Justice Kubik found that the father considered questionable resources in his decision-making for the children and subsequently exposed the children to vaccine misinformation, thus increasing their stress and anxiety. As such, the mother was granted the authority to have the children vaccinated without the father’s consent and sole decision-making authority for any health decision relating to the COVID-19 vaccine and treatment for the children. The Court held that the parties would continue to have joint decision-making, however, in the event of conflict, the mother has final decision-making authority on all health and medical matters.
In her reasons for decision, Justice Kubik notes that the father’s “wait and see” approach to the vaccine is not in the best interests of the children for the following reasons:
- The vaccine is approved by Health Canada for use in children age 5 – 17;
- The risk of contracting COVID-19 continues to be high;
- The vaccine reduces the risk of contracting COVID-19 and suffering serious consequences as a result;
- Vaccination limits the risk of transmission and will allow the children to participate in their community, including at school events, extracurricular activities, and travel opportunities. This is ultimately beneficial to their mental health; and
- Vaccination “should be encouraged as a means of protecting [children’s] health and the health of others”.
In addition to granting the mother authority to have the children vaccinated, the Court further ordered that the father will not discuss the issue of the COVID-19 vaccination to the children, neither parent will discuss litigation with the children, and neither parent will speak negatively about the other in front of the children.
It seems inevitable that the COVID-19 vaccine for children will continue to be a hot button issue for many parents. It is recommended that anyone with questions about the vaccine consult a medical professional. In addition, the family lawyers at Vogel LLP are prepared to answer any questions that you may have about medical decision-making, and the COVID-19 vaccine, for separated or divorced parents.