The COVID-19 pandemic has forced co-parents to make difficult decisions about parenting schedules, social distancing, online schooling, masks, and now vaccinations. Last week, Health Canada authorized the use of the Pfizer vaccine in children aged 5 to 11. The BC Centre for Disease Control (the "BCCDC") has since recommended that parents vaccinate their children against COVID-19, noting,
"Even though severe illnesses from COVID-19 in children are not common, they can occur. Vaccinating children helps keep them safe, and helps them keep people in their family and community - especially older adults, younger children and infants, and those with illnesses - safe as well."
A co-parent that opposes the COVID-19 vaccination for their child is unlikely to garner the court's support, unless there are other medical reasons for why the child should not be vaccinated. The court's only consideration in matters involving children is the child's best interest. When it comes to children and vaccines, courts have almost universally favored permitting the vaccination of the child.
Even before a COVID-19 vaccine was approved for use in Canada, the Ontario Court of Justice in Tarkowski v. Lemieux, 2020 ONCJ 280 gave the father authority to vaccinate his 7 year old daughter against the virus, should a vaccine against COVID-19 become available. In this case, the mother was opposed to vaccines in general and initially refused to consent to the child being immunized as an infant.
Later when a vaccine became available for children aged 12 and up, the Queen's Bench for Saskatchewan in O.M.S. v. E.J.S., 2021 SKQB 243 ordered that a 12-year-old child be vaccinated against COVID-19 despite her wish not to be vaccinated and a diagnosis of "possible" vaccine toxicity. The father sought to have his daughter vaccinated, but the mother vehemently opposed it.
Both parents brought extensive medical evidence. In support of vaccination, the father brought evidence from an infectious disease physician, an assistant professor and Canada Research Chair in emerging viruses in the Department of Medical Microbiology and Infectious Diseases at the University of Manitoba, and the child's family physician from birth. In opposition, the mother brought evidence from a family physician from another province that indicated he has a special interest in vaccines and is opposed to vaccinations with the Pfizer vaccine, and an anaesthesiologiest and previous tenured professor regarding a "possible" vaccine toxicity diagnosis. While the court preferred the father's expert evidence, the court did not rely on it.
Ultimately, the court's decision rested on the facts that did not require evidence, as they were found to be "so notorious as not to be the subject of dispute among reasonable people". At paragraphs 112 to 114 the court held:
- Canada has been in a COVID-19 pandemic;
- the possibility of contracting the COVID-19 virus poses serious and significant health risk to people generally, including children and adults; and
- the Pfizer vaccine is safe and effective for use in people, including both adults and children.
Accordingly, the court refused to consider arguments relating to the legitimacy of the pandemic, the government's response, and the safety or efficacy of vaccines approved by Health Canada. Instead, the court considered only the best interest of the child, determined by such factors as the child's needs, views or desires.
In this case, the child's wish not to be vaccinated was considered but given little weight. The court was concerned that this view was merely influenced by others. The court rejected the argument that the child's needs were impacted by a medical diagnosis of "possible" vaccine toxicity. The physician's diagnosis was not definitive and was based on incomplete medical information. As such, the court was not satisfied that the child's health would be compromised by the vaccine.
Even without particular vulnerability to the COVID-19 virus, vaccinating the child was in the daughter's best interest because the child could contract the COVID-19 virus, it was in the child's best interest to avoid contracting the virus, and the most efficacious way to avoid contracting the COVID-19 virus at this time is through vaccination.
While BC courts have not weighed in on COVID-19 vaccines for children, they have consistently provided the pro-vaccine parent with the authority to make decisions about the vaccinating the child in accordance with Public Health Department and Health Authority recommendations. In M.J.T. v. D.M.D., 2012 BCSC 863 and G.M. v. S.S., 2012 BCSC 1491, the Supreme Court of BC authorized the father to vaccinate his unvaccinated preschooler, despite the mother's belief that pediatric vaccines contribute to autism in children. In both cases, the court preferred medical evidence that demonstrated the benefits of immunization for the child outweighed any risk of side effects.
These cases demonstrate that vaccines approved by Health Canada and recommended by health authorities will almost universally be in the best interest of a child. Now that the Pfizer vaccine is approved for younger children and the BCCDC recommends parents vaccinate their children to keep them safe, co-parents in BC should be prepared for courts to conclude that the vaccination is in the best interest of their child.
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