Late last year, Health Canada approved the Pfizer-BioNTech vaccine for use in children aged 5 to 17 years of age to combat the COVID-19 virus. Many parents have struggled to weigh the benefit of immunizing their children against a potentially deadly and rapidly changing virus with a vaccine that has been approved at record pace. For divorced or separated parents, this decision can be particularly hard.
What happens if separated parents can’t agree on whether to vaccinate their children? If one parent wants the children vaccinated and the other resists. What factors will Court consider in deciding for these parents? The recent decision of TRB v KWPB, 2021 ABQB 997 (TRB) provides the first authority from the Alberta Court of Queen’s Bench.
This decision signals to family law lawyers and parents that Courts in Alberta will likely find that vaccination against COVID-19 is in the best interest of children unless it’s proven otherwise. A parent who resists vaccination will be required to provide compelling expert evidence in order to demonstrate that vaccination is not in the best interest of a child.
The decision of TRB is discussed in more detail below.
Background
In the case of TRB, the parents shared decision-making authority in respect of their two children, aged 10 and 12. The Mother wanted the children vaccinated for a number of reasons:
- to prevent them from contracting COVID-19;
- to allow them to return to more regular activities in safety; and
- to teach them social and community responsibility.
The Father was opposed to vaccinating the children. He felt that the risk associated with the vaccine outweighed the risk to the children if they contracted COVID-19. He asked the Court to delay their vaccination until further evidence was available regarding the safety of the vaccine and suggested that the children could be tested to determine whether they have antibodies to COVID-19.
Although initially in favour of being vaccinated, the children became fearful of being vaccinated after reading what the Court found to be vaccine misinformation provided to them by the Father. Counsel for the children was appointed to act as an advocate on their behalf. That counsel recommended that the children be vaccinated.
The Law and Analysis
The Court was asked to decide:
- whether the parties’ joint decision-making status should be varied such that the mother becomes the sole decision maker in relation to all medical and health related matters; and
- whether it is in the children’s best interests to be vaccinated against COVID-19.
In all decisions to be made in respect of minor children, Courts throughout Canada apply the “best interest test”. Each case turns on its own facts. What is decided in one case, may not be the same outcome in another case. This reflects the Court’s attempt to tailor the law to the unique circumstances of each family. In this case, Madam Justice J.C. Kubik decided that:
- The Mother was authorized to have the children vaccinated against COVID-19and to take such other steps as were necessary to ensure the children are physically and emotionally prepared for vaccination. The Mother was granted sole decision-making authority for any and all medical and health care decisions relating to COVID-19 vaccination and/or treatment.
- The Mother and Father should continue to share joint decision making with respect to all other medical and health related decisions. The Mother was granted final decision-making authority on all health and medical matters, if the parents couldn’t agree.
- The Father should not discuss or permit anyone else to discuss the issue of the COVID-19 vaccination or COVID-19 generally with the children, nor supply the children with any social media or other information about the vaccine or the disease.
This case is interesting for a few reasons, which may be helpful to parents considering whether to oppose vaccination and lawyers advising their vaccine-hesitant clients of the hurdles they will face in withholding consent vaccination of the children.
First, the Court took judicial notice of the COVID-19 pandemic and regulatory approvals and directives issued by the various governments and agencies in Canada and Alberta. This step is taken where a fact is so “notorious and indisputable” that it is not up for reasonable debate, such that no evidence is required to establish a fact. Justice Kusik commented:
Further, I have considered the scientific evidence in the Canadian context, which includes the regulatory approvals of the Pfizer-BioNTech vaccination, and the recommendations of government health officials, including the Chief Medical Officer for Health in Alberta. I accept that evidence as an accurate reflection of the current state of scientific knowledge regarding both the virus and the vaccine. I prefer this evidence to the American documentation provided by the father, noting that the state of regulatory approval of the vaccine in the United States is different than that in Canada. I have ascribed no weight to publications relating to vaccine mandates, which are not in issue in these proceedings. The documentation provided by the Canadian Covid Care Alliance is not a peer-reviewed, scientific publication, and, in the context of this special chambers application, its author was neither qualified as an expert nor subject to examination and cross-examination as to his opinion. Accordingly, I ascribe less weight to this documentation than I do to the regulatory approvals and the recommendations of public officials in Canada, who are tasked with protecting public health.
This case suggests that information from the governments of Canada and Alberta as to the science of vaccine safety and efficacy will be presumed to be accurate. Parents seeking a Court Order that their child(ren) be vaccinated for COVID-19 do not need to obtain expert evidence to establish these facts. On the other hand, parents who oppose vaccination will have to provide evidence from a qualified expert to establish either a specific risk to their child(ren) or more general as-yet-unaccounted-for risk that would indicate vaccination is not in the best interest of a child.
In weighing the best interests of the children, the Court conceded that vaccination, like all medical treatment, comes with risk. In the case of the Pfizer-BioNTech vaccine those risks include transitory symptoms such as injection site pain, fatigue, and headache (to name a few), and more serious side effects such as myocarditis. The Court further noted that while children in Canada have died from COVID-19, the vaccination for COVID-19 has not caused the death of any children in clinical trials.
Other Canadian Decisions
The decision of TRB reflects a broader trend adopted by Courts across Canada to defer to the policy decisions made by governments and the science underlying these decisions. For instance, in the recent case of Shaw v. Gauthier, 2021 ONSC 5790, in which the Court was considering whether children ought to return to school in-person, Justice P.J. Monahan reasoned that:
While potential exposure to Covid 19 is obviously a factor to be taken into account in any such assessment, the court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The court should proceed on the basis that the government’s plan for reopening of schools in the context of Covid 19 is reasonable in the circumstances for most people and that it will be modified as circumstances require.
In deciding that it was in the best interest of the children to be vaccinated against COVID-19 over the objection of the Mother, the Court in A.C. v. L.L., 2021 ONSC 6530 stated simply that:
The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated.