Family lawyer says case law on vaccinations and COVID-19 schooling disputes may be instructive
Courts have historically been supportive of vaccinating children except if it is shown that the vaccine is not in the best interests of the child, a Toronto family lawyer says in considering how courts may handle COVID-19 inoculation disputes among parents.
Health Canada approved the Pfizer Canada ULC/BioNTech SE vaccine on Dec. 9 and the Moderna Therapeutics Inc. vaccine on Dec. 23.
There is no case law yet on vaccinations during a pandemic, says Julia Tremain, a partner in Waddell Phillips Professional Corporation in Toronto; but lawyers expecting to handle such inoculation disputes may benefit from studying the general case law on vaccinations. The test in such disputes is the best interests of the child, with courts generally ruling in favour of vaccination unless the parent opposing vaccination can show why it is not in a child’s best interests: for example, if the child has an allergy or experienced a bad reaction to a vaccine in the past.
Given that the COVID-19 vaccine has not yet been approved for children, “it will be interesting to see whether the courts treat the issue of the COVID vaccine any differently than a regular childhood vaccine,” Tremain says. Courts may have additional considerations specific to the pandemic, such as the increased threat to public health if a child showing mild or no symptoms spreads the virus unwittingly, she says.
Courts’ decisions on children receiving schooling online versus in person during the pandemic may provide insight on how the courts will rule on inoculation disputes, Tremain says. The test in these school attendance disputes is also the child’s best interests.
Judges have deferred to the COVID-19-related public health guidelines in these schooling disputes, she says, as seen in the reasons of Ontario Superior Court justices Andrea Himel in Chase v. Chase, 2020 ONSC 5083 and Jasmine Akhbarali in Zinati v. Spence, 2020 ONSC 5231.
“Family law cases are very fact-specific, as the courts will look at the child’s situation and apply the best interest test to that child in the context of that family, but I think the decisions about in-person school versus remote school show that the courts are also taking these public health guidelines into consideration when they consider what is best for any specific child,” says Tremain.
These cases show that the courts will seek medical evidence if a parent makes an assertion of comorbidity or other health risks, she says; so, if a parent wishes to argue against their child receiving the COVID-19 vaccine, they should present evidence to support their submission that the vaccine will harm their child.
At Waddell Phillips Tremain has handled family law disputes involving custody and access issues, separation, divorce, property division and mediated solutions. She also served as in-house counsel with The Office of the Children’s Lawyer for seven years.