Background
The parties were parents to 14-year old triplets. There was a shared parenting arrangement in which two of the children lived primarily with the father and one of the children lived primarily with the mother. Two of the children were attending school online while the third child was attending school in person. While the parties agreed that all three children should attend school in person, the father insisted that they be vaccinated first. The mother on the other hand was adamantly opposed to vaccinating the children and even went so far as to withhold the children’s health cards and other government ID from the father to prevent him from having the children vaccinated. The mother’s argument relied on the fact that vaccination was not necessary for the children to return to in-person learning.
The mother alleged that the father refused to allow the two children living primarily with him to attend in person learning even though they were registered. The mother brought a motion for an order requiring the children to attend in person learning. The father brought a cross-motion for an order that the mother provide a copy of the children’s health cards to the father and that all three children be permitted to receive the vaccine if they choose to do so.
Analysis
Justice Charney, in finding that the father could get the children vaccinated, found that there is a “general presumption” that it is in a child’s best interests to be vaccinated against COVID-19 prior to returning to in person learning. The court also found that there is also a presumption that in person learning is in the best interests of the children.
The mother failed to provide “compelling evidence” which would rebut this general presumption. The court relied on the fact that the government has deemed the vaccination safe for children aged 12-17 which, importantly, were the ages of the children in this particular case and that government officials were better placed to make this decision than the courts were. The court held that unless a parent can present compelling evidence that it would not be in a child’s best interest to be vaccinated, then vaccination would be in their best interests.
The court rebutted the mother’s argument that the test to be considered was whether vaccination was “crucial” to in-person learning. Rather, the court held that the test is solely whether vaccination is in the best interests of the child.
Once finding that it was in the best interests of the children to be vaccinated, the court addressed whether the mother’s consent was necessary. The court found that the mother’s consent was not necessary. In deciding so, the court relied on s. 4 of the Health Care Consent Act which creates a presumption that regardless of their age, a person is capable of consenting to treatment. The court held that, “if the minor is a mature minor and capable of providing informed consent under s. 4 of the HCCA, decisions regarding medical treatment may be made by the minor.” The court referred to Toronto Public Health’s position that youth aged 12-17 do not require the consent of their parent or legal guardian to receive the vaccine so long as the health care provider administering the vaccine is satisfied that the individual is able to understand information about the vaccine, why it is being represented by medical professionals and the effects of accepting or rejecting the vaccine.
Importantly in this case, both parents agreed that the children had the required capacity to make these medical decisions and agreed that they would abide by the children’s decision. Given the parties agreed on this, the court did not address the issue of the children’s capacity any further. The father’s position was not necessarily that the children mustbe vaccinated, but rather that the children should be able to make the decision on their own.
The final decision the court made was with respect to when the two children who chose to get the vaccine could begin attending in-person schooling. The father wanted the children to wait until 14 days after receiving their second dose but the court found that there was no medical evidence to support this. Rather, the court ordered they attend school following their 1st vaccine in accordance with the direction of their family doctor.
Conclusion
The motion judge granted the father’s motion and ordered that the children were authorized to receive the vaccine. In doing so, the court ordered that the mother give the father copies of the children’s health cards and it would then be up to each child to decide whether they wanted to be vaccinated.
The court’s decision is consistent with the approach taken by other courts addressing the issue of vaccination prior to the COVID-19 pandemic including: C.M.G. v. D.W.S., 2015 ONSC 2201, B.C.J.B. v. E.R.R.R., 2020 ONCJ 439 and Chambers v. Klapacz, 2020 ONSC 2717.
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