Proceeding with standard childhood vaccinations is often a non-issue for parents; however, in recent years outbreaks of once rare childhood illnesses are occurring in Canada and various countries. The vast majority of cases involve children who have not received the measles-mumps-rubella or MMR vaccine. Similarly, cases of unvaccinated children contracting life threatening conditions, such as whooping cough and tetanus, have also been reported.
While the vast majority of parents in Ontario complete Ontario's Routine Immunization Schedule for their children, the “Anti-Vaxxer” and “Anti-Vaccination” movement, along with interest in alternative medicine or naturopathy, and debunked myths about vaccine risks, are result in some parents abstaining from vaccinations.
When Parents Disagree about Vaccinations
Vaccinations are a public health issue: a reduction in vaccinations can reduce herd immunity and lead to outbreaks, and also puts vulnerable individuals and children at risk.
However vaccinations can also become a family law issue when there is significant disagreement between separated parents about whether or not to vaccinate their children.
When parents have “joint custody” or "joint decision maaing" of a child they are to make important decisions about the child’s medical care together; however, parents that disagree on vaccinations have incompatible conceptions of what is in the “best interests of the child” – the foundational test and consideration for family judges under Children’s Law Reform Act, Family Law Act, and Divorce Act.
As a result, when parents disagree the Family Courts in Canada have been required to address the issue of whether or not to vaccinate children and make Orders in regards to vaccinations.
Proceeding with Vaccinations in C.M.G. v. D.W.S.
A leading case regarding vaccinations is C.M.G. v. D.W.S. (2015 ONSC 2201) in which the parents had joint custody of their ten year old daughter. Initially, the parents agreed to not vaccinate their daughter until she turned 12 years old, and that they would allow the child to make her own decision on vaccinations at that time. However, when the mother requested to travel to Germany with their daughter, the father withheld consent unless she was vaccinated for several diseases, including measles. The mother then withheld her consent for any vaccinations, as she preferred to exclusively use homeopathic medicine and believed that vaccines cause autism.
In assessing this case, Justice R. John Harper noted that the child in this case was caught in the middle of the parent’s conflict, as the parents were at the “extreme end of high conflict” and their positions regarding vaccinations were equally polarized.
In making this decision, Justice Harper commented that an “absolute prohibition on vaccinations for the child… [was] not in the best interests of the child” and that the past agreement between the parents to not vaccinate lacked a reasoned analysis.
As a result, Justice Harper ordered that the father would be granted decision-making with respect to the child getting vaccinations and that prior to the child being taken on the trip to Germany the child was to receive a vaccination for measles, mumps and rubella and any other vaccinations that were recommended by the child’s family doctor. Similarly, the court took the unique step of ordering the mother to not make any negative statements about receiving vaccinations to the child – as the child had previously been told that the family cat died due to vaccinations.
Additional Case Law
C.M.G. v. D.W.S. is one of a small collection of case law regarding vaccinations disputes between separated parents. The small number of cases is likely due to many parents being aligned on vaccinations issues both before and after separation. However, this body of case law is growing:
In W.(P.) v. M.(C.), (2017 NSSC 91) a similar vaccination dispute occurred between two parents, and Justice Harper’s decision was thoroughly endorsed by the court as a “cautionary tale about putting off the decision of vaccines and placing children in the middle of such an important decision”. Following a review of the issues, the court ordered sole custody or sole decision-making for medical issues to the pro-vaccination parent.
In Tarkowski v. Lemieux (2020 ONCJ 280) both parents sought an order for sole custody over their six year old child in this high conflict case. The father's arguments noted the mother's "mistrust of the medical system" and her corresponding failure to take the child to a doctor for three years, and in her refusal to have the child immunized until the night before the doctor testified at trial. Justice Jones granted sole custody to the mother, but gave the father unilateral decision-making power over whether the child should receive vaccinations. Perhaps most interesting is that this case even considers the pending COVID-19 vaccine, and expressly granted the father "unilateral power to consent to [the child] being vaccinated against COVID-19."
In D.R.B. v. D.A.T. (2019 BCPC 334) the mother opposed the vaccination of her children in accordance with the province’s immunization schedule. The mother's evidence included that she became “uncomfortable” with vaccines after speaking to a naturopath about risks of side effects. Justice Stella Frame granted the father full responsibility for decisions regarding their medical and dental treatment, and noted that "[t]he current best evidence is that vaccination is preferable to non-vaccination, that it is required in order to protect those who cannot be vaccinated as well as to protect ourselves, and that any adverse reaction the person may have from the vaccine is largely outweighed by the risk of contracting the targeted disease...I am satisfied on the evidence that the parental responsibility for the medical and dental treatments for both boys should lie solely with [the father]. I order that [the children] be vaccinated in accordance with Immunization BC’s immunization schedule and the recommendations of their family doctor."
In M.J.T. v. D.M.D. (2012 BCSC 863) Justice Wedge again provided the father with "ultimate decision-making authority" in regards to the child's vaccinations, but joint custody over all other important decisions. The Court was required to assess the question of immunization, and relied on the expertise of Dr. David Scheifele, a Professor of Pediatric Medicine at the University of British Columbia. Dr. Scheifele noted that the benefits of using vaccines outweigh any theoretical risks, and that that studies have convincingly shown that autism does not result from immunization.
Judicial Trend: Vaccinations in Best Interests of Child
As outlined above, there is a clear trend within Canadian case law of the court empowering the parent who is in favour of vaccinations, and granting them legal decision making to ensure that immunization protocols are followed.
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