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Vaccines and Family Law in the Age of COVID-19

Amy Wilhelm

Student-at-law

Tel:       403.692.5224
Email:  awilhelm@vogel-llp.ca

COVID-19 continues to impact all facets of daily life, with many people wondering what the “new normal” will turn out to be, especially if and when an effective vaccine becomes available.  The vaccination of children has long been a contested topic in family law matters where separated or divorced parents disagree. Parents who have joint custody of a child are to make important decisions about the child’s medical care together, but when it comes to vaccines, there isn’t much room for compromise – either the child will be vaccinated, or they won’t be.  Parents are entitled to their strongly held beliefs, but ultimately must make decisions that are “in the best interests” of their child(ren), and this is often where lawyers, mediators, arbitrators, and the courts are called to assist.

In Tarkowski v Lemieux, 2020 ONCJ 280, Justice Jones proactively dealt with this issue in a high-conflict custody matter where both parties sought sole custody of their 6-year-old daughter. In support of his position, the father claimed that “the mother has been negligent in her handling of the child’s health issues, particularly with respect to the child’s vaccination schedule”, and “only had the child vaccinated after the OCL and then the case management judge weighed in on the issue, and even then, the mother was hesitant in getting the child vaccinated, and only completed the child’s vaccinations the night before the doctor testified at trial”.

Justice Jones granted sole custody to the mother, but gave the father unilateral decision-making power over whether the child should receive vaccinations, noting:

[74] Should a vaccine against COVID-19 become available, these parents will have to decide whether [the child] should be vaccinated against it. Since children and young people often show little or no reaction to the virus, a decision to vaccinate a child may be informed by a public health concern that COVID-19 is a virus that is easily spread and which disproportionately harms older people, and people with challenged immune systems. Ultimately, a decision to vaccinate [the child] may be a decision to protect other vulnerable people against [the child] spreading the disease. As any vaccine may pose some risk, and a new vaccine may pose unknown risks, it is imperative that [the child’s] parents receive the same advice on this issue from a medical health professional.

[75] When and if such a vaccine becomes available, both parents should meet with [the child’s] doctor to discuss vaccination of [the child] against COVID-19. In the event that the mother refuses to attend this meeting with the father and the doctor, or, at the meeting, refuses to consent to the child being vaccinated, I am granting the father, as an incident of custody and access, the unilateral power to consent to [the child] being vaccinated against COVID-19. 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.

Families will have many decisions to make resulting from the effects of COVID-19 in the coming months, including attendance at school and work, travel, vaccination, and other healthcare decisions. The experienced family lawyers at Vogel LLP are prepared to assist you in resolving these parenting issues and continue to be available for consults by telephone or video conference at this time.

2020-07-17T09:09:02-06:00July 20th, 2020|

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