Covid-19 is a serious health threat and the situation is evolving daily.  It appears that we are now in the second wave.  The risk to Canadians is considered high according to the Government of Canada.  According the World Health Organization, to date there have been 33,441,919 confirmed cases of Covid-19 and 1,003,497 deaths.  The numbers are staggering and overwhelming.

Medical and science professionals are working frantically to develop a safe and effective vaccine in record time.  And while that may be case, the fact remains that some parents are pro-vaccine and while others are anti-vaccine.

During a separation and divorce, the list is endless as to what the parties can fight over, but now thanks to Covid-19, we can add one more. 

So, which parent gets to decide if the child will get the Covid-19 vaccination, when one is available, especially in cases where the parents do not agree on the health benefits of the vaccine?

Normally, medical decisions are part of custody rights; that is the parent who has custody has the right to make major decisions relating to the child, including major and minor medical decisions, and this includes vaccinations for the child.

In recent Ontario case, Tarkowski v. Lemieux, 2020 ONCJ 280 (CanLII), this was addressed.  The Court split out the decision making authority between the separated parents.  After hearing the evidence and looking at the child’s best interest, the Court gave custody to the mother but gave the express right to make the final decision on whether their child gets vaccinated or not, including the Covid-19 vaccination, if and when it becomes available, to the father.

Justice Penny J. Jones stated “I am satisfied that he has no bias against vaccinations in general, and will be able to decide this issue on the advice he receives.  If the father decides that the child should be vaccinated, and if the child’s regular doctor is prepared to administer the vaccination to the child, the father shall arrange with the child’s regular doctor … to administer the vaccination.”

It was noted that there were no factual scientific studies proving that vaccines were harmful.  In addition, the Ontario and Canadian governments, together with the World Health Organization, all promoted the administering of vaccines as a matter of a public health policy.

“I find there is sufficient evidence on the balance of probabilities that the child in this case should be vaccinated in her best interests.  Public policy as expressed by the Ontario and Canadian governments supports vaccination as essential to the health of children and the public in general.  The World Health Organization promotes vaccinations for the same purposes as a matter of public health and safety.”

The case further chronicled the mother’s reluctant and often deceitful behaviour around getting their child vaccinated in the past, despite well-accepted medical advice around preventing common childhood diseases.

Blog posts are for informational purposes only and do not constitute legal advice.

Written by Marian Grande, Mediator
September 20, 2020

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