An Update on COVID-19 Vaccination Case Law

Child getting a COVID-19 vaccination

An Update on COVID-19 Vaccination Case Law

On December 9, 2020, Health Canada authorized use of the Pfizer-BioNTech Comirnaty COVID-19 vaccine (the “vaccine”) in individuals 16 years or older. Authorization of its use expanded to those 12 to 15 years of age on May 5, 2021 and most recently, on November 19, 2021, Health Canada authorized use of the vaccine in children as young as 5 years old.

The expansion of those eligible to receive the vaccine has led to the development of a small body of case law regarding vaccination of children (particularly against COVID-19) in co-parenting regimes. This article briefly reviews some, albeit not all, of the case law arriving out if Alberta, Saskatchewan, Ontario and British Columbia. The cases shed some insight into how Courts are grappling with vaccination disputes between separated parents across Canada.

1.TRB v KWPB, 2021 ABQB 997

In the case of TRB v KWPB, the Mother sought to have the parties’ 10-year-old and 12-year old children vaccinated against COVID-19. She also sought sole decision-making on health and medical matters. The Father opposed the children being vaccinated until further medical research became available and on the basis that the potential negative effects from the vaccine posed a greater risk than COVID-19 itself.

In her decision, the Honourable Madam Justice J.C. Kubik took Judicial Notice of the fact that:

a. Canadians were in the midst of a global pandemic;

b. The Government of Alberta had declared multiple states of public medical emergency since the onset of the pandemic;

c. The vaccine had received regulatory approval and specifically, Health Canada had approved the use of the vaccine in children as young as 5; and

d. That by virtue of the vaccine’s approval by Health Canada, the vaccine was “not experimental.”

In her decision, Justice J.C. Kubik found that the Father had engaged with “vaccine misinformation” and “questionable resources” in his decision-making process. She also found the Father to have exposed the children to such information causing the children to experience unnecessary stress and anxiety about the vaccine.

In light of her findings, Justice J.C. Kubik Ordered that the Mother was “authorized to have the children vaccinated… without the consent of the Father” and that she could make all future “medical and health related decisions associated with COVID-19 vaccination or treatment, now and in the future.” She further commented that,

“[Vaccination] serves the children’s best interest by protecting their physical health, fostering their physiological and emotional needs and imparting important social lessons to them about maintaining and protecting their health for the sake of themselves and those around them.” 

Notwithstanding she granted the Mother permission to have the children vaccinated, Justice C.J. Kubik did not grant the Mother sole decision-making on all medical issues as she found the Father had historically exercised appropriate decision-making regarding the children’s health.

In addition, her Ladyship also directed that the Father could no longer discuss COVID-19 or vaccination against COVID-19 with the children. He was also Ordered to abstain from supplying the children with any resources about COVID-19.

2. Sembaliuk v Sembaliuk, 2022 ABQB 62

In Sembaliuk v Sembaliuk, the Father scheduled a vaccination appointment for the parties’ 13-year-old child as permitted by the parties’ Consent Final Parenting Order. In turn, the Mother sought an Order prohibiting the Father from facilitating the child’s appointment, as was her right under the same Order.

The Mother argued that the vaccine presented unnecessary risks to the child because the child had already contracted COVID-19 and developed a natural immunity to COVID-19. The Mother also opposed vaccination of the child on religious grounds – namely that the vaccine had been supposedly developed using aborted fetuses which was contrary to her and the child’s beliefs as Catholics.

Justice N. Whitling ultimately found that, “there [was] no evidence before [him] that the vaccine presents any appreciable risk or danger to the child that is not clearly outweighed by its benefits.”

Justice Whitling also acknowledged the objections made against the vaccine on religious grounds. However, he noted that little evidence had been put before the Court respecting the child’s religious views. Further, His Lordship stated the Mother’s sincerely held religious beliefs must be balanced against, “the Father’s sincere wish to protect his daughter from the disease.”

Ultimately, Justice Whitling affirmed that the Father could make COVID-19 vaccination appointments for the child and facilitate the child’s attendance at the appointments without the Mother’s consent as required by their Consent Final Parenting Order. To be clear however, Justice Whitling’s Order was not a positive Order requiring the Father to vaccinate the child or requiring the child to submit to vaccination. Rather, as Justice Whitling noted,

“It is possible that the child might object to being vaccinated, or even express her refusal to submit to such a vaccination. What might happen in that event is speculative. In that context, the Father would presumably take his daughter’s wishes into account when exercising his own legal authority as her parent.”

On a final interesting note, in his decision, Justice Whitling references his decision to allow the mother to submit her research materials into evidence to illustrate her conclusion and position on vaccination. However, he found that the materials could not be relied upon by the Mother to prove a scientific point without the assistance of expert evidence. In making such a ruling, Justice Whitling found that the Mother was not qualified to,

 “conduct research and to draw reliable conclusions respecting the scientific subject matters addressed in her materials…”

and further that,

“It became apparent during her testimony that she had not conducted a fulsome or balanced review of the applicable material, and had instead compiled a one-sided collection of those materials which she believes to be supportive of her own point of view.”

3. A.S.N v K.E.K., 2021 BCSC 2435

ASN v KEK is a decision from the British Columbia Superior Court and is therefore not binding in Alberta. However, the matter was a high conflict parenting application between the Father and the Mother regarding their 4-and-a-half-year-old child. The child had received no vaccinations as of the date of the trial.

Justice J.P. Weatherill mentions very little about COVID-19 or vaccinations generally in his decision. However, he comments that,

“The responsible governments and public health authorities have all concluded that vaccinations of children are safe and effective…. Absent compelling evidence to the contrary, the general proposition is that it is in the best interests of the child to receive vaccinations…”

No compelling evidence to the contrary having been presented, Justice Weatherill found that it was in the child’s best interest to,

“receive the usual vaccinations as recommended by the public health system, including the Covid-19 vaccination when it becomes available to children his age, and I make the order that those vaccinations be arranged as soon as practicable.”

The case is interesting as it represents an Order for vaccination of a young child where most of the current case law contemplates the vaccination of older school-age children.

4. Saint-Phard v Saint-Phard, 2021 ONSC 6910

Also not binding in Alberta, but of interest, is the case of Saint-Phard v Saint-Phard

which involved a dispute between a Mother and a Father over whether their soon-to-be 14-year-old son should be vaccinated. The parties’ child had originally expressed to his counsel that he wanted to be vaccinated but had, on the eve of the hearing, told his counsel that, “he was only 13 and did not want to die.” Consequently, the case contemplates competing medical opinion and the ability of a minor to make an informed decision to consent to or reject medical treatment.

 Firstly, Justice Mackinnon considered two competing medical letters from different physicians and notes that, Dr. O’Conner “had already formulated her opinion that [the child] should not be vaccinated” and that, “she does not refer to medical or scientific support for her conclusion that there is no evidence or any benefits to children from the vaccine.”

Justice Mackinnon went on to find that the child had been influenced by the Mother and Dr. Conner and that his change of view was, “based on wrong information and inadmissible anecdote” and that his decision was therefore not a “properly informed decision” which might allow him to consent or reject medical treatment without his legal guardian’s consent or signature.

As a result, Justice Mackinnon Ordered that the Father may vaccinate the child but should arrange for the child to be properly informed about the vaccine by his regular physician, prior to receiving the vaccine. Similar to the case of TRB v KWPB, Justice Mackinnon also prohibited the Mother from sharing, directly or indirectly, vaccine misinformation with the child.

5. Rouse v Howard, 2022 ONCJ 23

 Rouse v Howard as an Urgent Application by the Father to have his and the Mother’s 9-year-old daughter vaccinated against COVID-19. The decision is not binding in Alberta. The Father was the primary caregiver and sought to have the child vaccinated on the basis that one of his other children was immunocompromised and that his child’s unvaccinated status presented a risk to his other child’s immunocompromised health.

The Mother was, “a proponent of non-traditional medication” and did not believe in the “need for or benefits of vaccines.” The child had also expressed her opposition to vaccines to her general physician who wrote a letter to the Court reiterating the views conveyed by the child without the Doctor directly expressing any support or opposition to the child’s view on vaccination.

Justice A.D. Hilliard ultimately found that “at present” it was not in the child’s best interests for the Father to have sole medical decision-making for the purposes of compelling the child to be vaccinated.

In support of his decision, Justice Hilliard noted:

a. the child had not received any standard childhood vaccinations;

b. the “child ascribes to the Mother’s views regarding traditional medicine, and vaccines in particular”;

c. the Father had previously acceded to the Mother’s views on medicine; and

d. the Father failed to evidence why the matter was sufficiently urgent in light of his failure to take any other meaningful precautionary measures in the preceding years.

While Justice Hilliard’s Order permitted the child to remain unvaccinated, his decision appears to imply that it was a temporary without prejudice decision which would be properly reviewed in case management at a later date.

6. M.S. v E.J.S., 2021 SKQB 243

In OMS v EJS, the Father of the child had brought an Application in the Saskatchewan Superiour Court to have the parties’ 12-year-old daughter vaccinated against Covid-19. The Application was contested by the Mother who was against their daughter being vaccinated against Covid-19. The child herself was also found to be against the vaccine.

Justice Megaw’s 52-page decision ultimately concludes,

“it is in this child’s best interest to be vaccinated against the Covid-19 virus…. Her father shall be authorized to arrange for, and have completed, that vaccination. He shall be entitled to do this without the consent of the mother. The vaccination shall only be completed following receipt of such further advice as Drs. Yatsina and Nour are prepared to give.”

Expert evidence led by the Mother suggesting the child may suffer from vaccine toxicity issues was ultimately given little weight by Justice Megaw in his 52-page decision wherein he determines that any concerns raised by the expert could be more properly “investigated and considered by the child’s family physician.”

As it relates to the child’s own preference to not be vaccinated, Justice Megaw raised concerns about the manner and conditions under which the child’s views were ascertained. Further, in consideration of the mature minor doctrine, Justice Megaw ultimately found that,

“the circumstances here raise rather significant concern over the influence others are having over this young person…”

Further His Lordship determined that the child was not speaking independently and consequently, she was,

“not entitled on all matters to simply make a decision on her own … her views, as suspect as they may be, do not carry the day here.”                    

Takeaways from the Reported Decisions

Upon review of some of the decisions being reported, some key points to take away include:

  1. The Superior Courts may take Judicial Notice of the COVID-19 pandemic and the various Government and Public Health Notices surrounding the Pandemic and the vaccine;
  1. The Courts are alive to the issue of vaccine and health misinformation and are prepared to restrict a parent’s ability to discuss their views and sources with children if the Court feels such a restriction is necessary to protect the child;
  1. The Courts may hold litigants to a high evidentiary standard should they wish to admit medical resources or call expert witnesses in support of their position;
  1. Non-medical reasons against COVID-19 vaccination may carry some weight in determining a child’s best interests, particularly if the non-medical reasons or beliefs are sincerely held by the child or parent and such views are properly put before the Court;
  1. A child’s view or preferences may or may not be given weight depending on their maturity and other extenuating factors, including whether the child has been unduly influenced by either parent or other third parties;
  1. Children may be vaccinated against their wishes in certain circumstances;
  1. The Court is prepared to Order mandatory vaccination of both very young and very mature children; and
  1. Unsurprisingly, the child’s best interests in consideration of their unique needs and circumstances will always carry the day.

Further Information

If you have any questions or concerns about medical decision-making for your child, you can set up a consultation by calling our office at 587-440-3070 or by using the contact form on our website. Our office is set up to work virtually and we can assist you with any family or divorce issues you may have during the Covid-19 pandemic. You can also take a look at our other articles on the topic of COVID-19 vaccinations.

The above information regarding medical decision-making and its intersection with the COVID-19 pandemic as detailed above does not constitute legal advice. EBL Family Law is not liable for any reliance on the above information.