No medical decision-making right for father opposed to COVID-19 vaccine: Sask. Court of Appeal

Father refused to have his children vaccinated based on religious grounds

No medical decision-making right for father opposed to COVID-19 vaccine: Sask. Court of Appeal

The Saskatchewan Court of Appeal has refused to grant medical decision-making rights to a father who opposed COVID-19 vaccination for his children based on religious grounds.

In Inglis v. Inglis, 2022 SKCA 82, Fraser and Kayla Inglis and their two children lived in the family home in a small Saskatchewan town until the couple separated in 2020. Following the separation, Kayla moved to Regina, leaving the children in Fraser’s care.

Fraser eventually bought a farmhouse in Manitoba and he intended to move there. Kayla refused to consent to the children residing in Manitoba, so Fraser requested the court that he be granted primary residency of the children. Kayla likewise filed an application for primary residency of the children in Regina. Both applications were dismissed. Nonetheless, Fraser made several applications seeking for his parenting time to occur in Manitoba, rather than in the family home in Saskatchewan. On the other hand, Kayla requested for authority to solely make medical decisions for the children, including COVID-19 vaccination.

The court dismissed Fraser’s application for his parenting time to occur in Manitoba. The chambers judge observed that many of Fraser’s submissions were premised on the notion that he had “custodial rights,” rather than the best interests of the children.

The judge granted Kayla’s application for sole decision-making authority regarding COVID-19 vaccinations after noting that Fraser opposed vaccinations on religious grounds. The judge took judicial notice of the effects of the pandemic on children, as well as the efficacy of government-approved vaccines in protecting children from the effects of the COVID-19 virus. The judge also noted that Kayla had proceeded on a good-faith basis to address any medical or counselling issues the children may have.

Fresh evidence application

Fraser applied to adduce fresh evidence in the form of two medical studies, allegedly written by doctors, on the effect of vaccine in children. Fraser also contended in his affidavit that the children had already tested positive for COVID-19, so he personally concluded that they had developed natural immunity to the virus.

The Court of Appeal laid down the test for admission of additional evidence on appeal – that the evidence could not have been obtained for the original hearing, the evidence is relevant and credible, and the evidence, if believed, could have affected the result at the hearing. The court said that while the fact that the children had COVID-19 was established, there was no evidence showing the significance of contracting the disease to the issue of whether vaccination was advisable or necessary. The court further said that Fraser’s personal conclusion that the children had developed natural immunity to COVID-19 could not be admitted because Fraser was not a medical expert to offer such an opinion.

The court also rejected the evidence of medical studies submitted by Fraser because its authenticity and credibility were not sufficiently established.

“[Fraser] found two reports on the internet which, on their face, appear to have some characteristics of an authoritative report and provide some support for his position. This court will not accept expert opinion evidence on the flimsy basis upon which it has been offered in this application,” said the appeal court.

Material change of circumstances

It was clear to the appeal court that the chambers judge had found a material change of circumstances had occurred. The change consisted of a finding that Fraser started to view medical decisions through the lens of his parental rights as opposed to focusing on the best interests of the children. Consequently, the chambers judge determined that it would be in the best interests of the children if sole medical decision-making was granted to Kayla.

The appeal court did not find any error in the chambers judge’s reasoning.

“There was ample evidence that the change had occurred, that it was significant enough to require a modification of the existing decision-making regime and that it was in the best interests of the children for Ms. Inglis to solely make the medical decisions going forward,” said the court.

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