Provincial Roundup: Recent Decisions on Child COVID-19 Vaccination Disputes across Canada

boy sitting on steps during covid-19

Written on behalf of Shariff & Associates

Since the approval of the COVID-19 vaccine for children aged 12 and over, the courts have seen numerous cases brought by parents who could not agree about whether or not their children should be vaccinated. In this blog, we review some of the cases on the issue that have been decided across Canada.

QUEBEC, August 27: Court Orders Child to be Vaccinated  D.P. v. G.M., Droit de la famille — 211637 

Decided on August 27, 2021, the parents of a 12-year-old son went to court over his COVID-19 vaccination. The mother wanted the son to be vaccinated, while the father objected.

The son himself had stated that he wanted the vaccine.

Parents Present Their Arguments on COVID-19 Vaccination

The mother wanted her son to be vaccinated prior to starting school in the fall. As part of her submissions, the mother provided evidence that the son’s family doctor had recommended he receive the vaccine.

The father claimed the son already had antibodies, that he was at risk for side effects, and that the vaccine was experimental. The father attempted to introduce evidence from a different doctor in support of his position; however, the court refused to hear the father’s expert evidence, finding that the doctor was known to have made inaccurate claims about the safety of the COVID-19 vaccine.

The court took note of the child’s doctor’s evidence as well as the Quebec Public Health’s recommendation that children aged 12 to 17 should receive the COVID-19 vaccine.

Court Orders Child To Be Vaccinated

The court granted the mother’s request and ruled that she could have the son vaccinated without the father’s consent. The court reasoned vaccination was in the son’s best interests and the father had not presented any evidence to prove otherwise, stating in part:

“Father did not convince the Court of the seriousness of his allegations and concerns. He failed to prove that the child’s health condition is at risk and prevents him from receiving the vaccine….

Although the child’s desire cannot be considered as decisive in the present matter (only a minor aged 14 years and over may give his consent to care alone), the Court notes that the child’s wish is serious and well-reasoned.”

SASKATCHEWAN September, 9: Court Rules COVID-19 Vaccination is in the Child’s Best Interest  O.M.S. v E.J.S.

In a case from Saskatchewan, decided on September 9, 2021, the parents had two children. The eldest child, a daughter, was 12 years old at the time. She lived with her mother, who had been granted decision-making authority regarding education and medical decisions. 

Parents Disagree on Vaccination of 12-Year-Old Daughter

The father commenced an action against the mother because he wanted to have the daughter vaccinated against COVID-19. The mother did not. The father was particularly concerned because the daughter had diabetes, which he felt put her at greater risk. 

The mother opposed the vaccination. She argued her daughter did not want the vaccination, because she believed her daughter may have a condition called “vaccine toxicity”. Additionally, she opposed vaccination in general and had doubts regarding the safety of the COVID-19 vaccine specifically.

Court Reviews Parents’ Arguments on COVID-19 Vaccine 

At the outset, the court rejected both the father’s submission regarding the daughter’s diabetic condition as well as the mother’s claim of “vaccine toxicity”, finding that neither had merit.

The court then addressed the daughter’s view that she did not want the vaccine. However, the court ultimately found that the daughter’s preference was based on misinformation provided by the mother. The court held that the daughter’s opinion was therefore not independent and could not carry weight in its decision. Furthermore, the court found the daughter was too young to make such a decision for herself.

Court Orders Daughter’s COVID-19 Vaccination

The court ordered it was in the daughter’s best interest to be vaccinated against COVID-19, despite the mother’s distent. The court found the COVID-19 vaccine was both safe and effective and that the mother’s claims against its use were without merit. It concluded by stating: 

I have determined there is nothing before me that satisfies me on a balance of probabilities that this child’s health will be compromised by the administration of the Covid-19 vaccine. In any event, with the manner in which the order is being granted, any health concerns may be the subject of consultation with the family physician and the endocrinologist. This will ensure the child’s medical issues are properly and thoroughly considered by those that are most familiar with her and her medical file.

In light of the determinations concerning Covid-19, its effects, and the need to be vaccinated to avoid these effects, I determine it is in the child’s best interests to have the Pfizer Covid-19 vaccine administered forthwith.

This is so because she must have the ability to avoid contracting the virus. The most efficacious way that is done at this time is through the administration of the vaccine. The adverse and serious health effects of Covid-19 have been noted. This child’s best interests dictate she be given the best opportunity to avoid such health risks.”

ONTARIO, October 18: Court Rules Vaccination is in the Best Interest of the Child and Prohibits Mother from Presenting Son with Misinformation – Saint-Phard v. Saint-Phard

Decided on October 18, 2021, the parents went to court over the vaccination of their 14-year-old son. The father wanted the son to be vaccinated, while the mother objected.

Family Members Express Their Wishes on COVID-19 Vaccination

The father wanted his son to be vaccinated based on governmental and public health recommendations and the recommendation of the child’s physician.  

The mother did not want her son vaccinated and stated she found information and evidence that people who received the vaccine suffered from negative consequences.

The son had previously indicated he wanted to be vaccinated; however, by the time of the hearing, he had changed his mind and no longer wished to receive the COVID-19 vaccine.

Court Reviews Parties’ Evidence on Vaccine

The court began by taking judicial notice of evidence showing that the COVID-19 vaccine was safe and effective for children ages 12 to 17 to prevent severe illness from COVID-19.

The court then noted that the child’s own family doctor had recommended the vaccine and had not indicated that he was at risk for any serious side effects.

The court rejected the mother’s evidence, finding it had no scientific or medical merit. The court further found that the son’s reluctance to be vaccinated had been influenced by the mother’s misinformation on the matter.

Court Orders Mother to Cease Providing Child With Misinformation about the COVID-19 Vaccine

After reviewing the evidence, the court ruled it was in the son’s best interest to be vaccinated and granted the father sole parental decision-making authority for the COVID-19 vaccine.

Additionally, the court ordered the mother to stop exposing the son to misinformation on the COVID-19 vaccine, stating:

“The mother shall not tell, or suggest to [the son] directly or indirectly, that the COVID-19 vaccines are untested, unsafe, ineffective, or that he is particularly at risk from them. Nor may she permit any other person to have any such discussion, or make any such suggestion to the child, directly or indirectly. My order includes that she is prohibited from showing [the son] social media sites, websites, other online information, literature, or any other material that calls into question the safety or efficacy of COVID-19 vaccines or permitting any other person to do so.”  

Contact the Family Lawyers at Shariff & Associates in Markham Stouffville for Assistance with Decision-Making and Parenting Time Matters 

The compassionate family family lawyers at Shariff & Associates work with clients throughout York Region, Durham Region, Vaughan, and Markham on parenting matters of all types. We understand this can be one of the most contentious and important issues for a couple following a separation or divorce. To arrange a consultation with a member of our team, please reach out to us online, or call us at 905-591-4545.