On May 18, 2021, Health Canada approved the use of the Pfizer-BioNTech COVID-19 vaccine for children 12 years of age and older. In the months following the announcement, courts across the country have begun ruling on a new range of disputes between parents who disagree about whether their child should receive the vaccine. As the highly-contagious Omicron variant sweeps across the province and COVID-19 immunization campaigns for children ramp up, two recent Ontario decisions—A.C. v. L.L., 2021 ONSC 6530 and Saint-Phard v. Saint-Phard, 2021 ONSC 6910—offer a glimpse of the legal trends emerging at this latest intersection of family law and health law.
1. COVID-19 vaccination is presumptively in a child’s best interest
In A.C. v. L.L., the mother brought a motion for an order requiring two of her 14-year-old triplets, both of whom resided primarily with their father, to attend school in-person. The father wanted the children to receive the COVID-19 vaccine before resuming in-person classes, but the mother refused to consent to their vaccination and withheld their health cards from the father to prevent them from being vaccinated. Accordingly, the father brought a cross-motion for an order entitling the children to receive the vaccine and requiring the mother to provide to him a copy of their health cards. Since both parents ultimately agreed that the children should attend school in-person, the only live issue was whether the mother could prevent the children from being vaccinated.
The Court concluded that, as a general presumption, if a child is eligible to receive the COVID-19 vaccine, it is in that child’s best interest to be vaccinated before they attend school in-person. In coming to this conclusion, the Court cited various public pronouncements from government and public health authorities, all of whom champion the safety and effectiveness of the vaccine and encourage eligible children to get vaccinated. The Court found that these authorities “are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination.”
The parent objecting to the vaccination bears the onus of establishing that it is in the child's best interest not to be vaccinated. Given that the Court in A.C. v. L.L. took broad judicial notice of public pronouncements about the general safety and effectiveness of the vaccine, an objecting parent is unlikely to displace the general presumption by attacking the general safety and effectiveness of the vaccine. Rather, they would need to establish that, notwithstanding such general safety and effectiveness, their particular child is not eligible to receive it (e.g., due to contraindications).