In light of the now imminent distribution of the COVID-19 vaccine, separated and divorced parents will have to negotiate the decision whether to immunize their children against the pandemic-causing virus. Although the preeminent legal test in matters involving children remains determining what is in the best interests of the children, the current health calamity calls for courts to also consider the wider public interest.
In an Ontario decision from the summer, Tarkowski v. Lemieux, the Ontario Court of Justice granted custody of a child to the child’s mother, but gave the father the right to make decisions regarding the child’s vaccinations, including the COVID-19 vaccine, should it become available. In this case, the mother’s history of bias against vaccination was a factor in the court’s perception that the father was better placed to make such decisions, on the basis of medical advice and established scientific evidence in favour of vaccination, rather than ill-supported preconceptions.
With respect to the COVID-19 vaccine specifically, the court found that there is a substantiated public health interest in parents vaccinating their children in order to protect people who are most vulnerable to the illness in society. Notably, the court did not deviate from the best-interests test in making this decision. It emphasized that children and young people do not appear to be at a high risk of experiencing adverse or even any reactions to the COVID-19 virus. Other groups, however, such as older people and those with compromised immune systems, stand to be gravely harmed by such exposure.
This was not a balancing exercise, then, with the health of vulnerable populations being weighed against the best interests of the children. Rather, it was a judgment based squarely on such interests, as reinforced by the health interests of society at large. A very similar decision was made in July by the Ontario Superior Court of Justice in A.T. v. V.S. In that case, a mother was granted temporary sole custody because of the father's refusal to take COVID-19 seriously. The court also granted the mother sole decision-making power with respect to the medical care, health, school and extra-curricular activities of the child.
It remains to be seen how courts in British Columbia will treat this issue once a COVID-19 vaccine becomes available. However, from the preliminary decisions emerging from Ontario thus far, it appears that the best interests test does not favour the anti-vaccine predilection.
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