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Best Interests in Childhood Vaccination

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While the COVID-19 pandemic has led to a sharp increase in family law conflict, these disputes have recently shifted to vaccination of minors. At times, this is being attempted contrary to one or both of the parent’s wishes.

The Health Care Consent Act, 1996 does not state a minimum age for capacity for medical decisions, but instead provides relevant factors,

Capacity

4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Presumption of capacity

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.

Exception

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be.
[emphasis added]

Section 10 of the Act requires a health practitioner to ensure that the person receiving treatment is capable and has provided consent. If a person is incapable with respect to treatment, section 20(5) indicates that a parent of the incapable person may make this decision, as long as it is not prohibited by a court order or separation agreement.

Interpreting these provisions in Gegus v. Bilodeau, Justice Fowler Byrne stated,

[51] Accordingly, it appears that the HCCA contemplates situations in which only one parent, by court order or separation agreement, has the authority to give consent on behalf of a child when the child is determined to be incapable. The determination of whether only one parent should have this authority is determined under the appropriate legislation, in this case, the Children’s Law Reform Act.

[52] Accordingly, nothing in the decision of the motions judge takes away the child’s primary right to accept or refuse treatment, if the health practitioner is satisfied that the child has the capacity to do so.
Applying these concepts in the COVID-19 context should be straightforward, but given the tensions around vaccines will inevitably be tense at times.
In a recent decision in A.C. v. L.L., Justice Charney referenced Toronto Public Health, Toronto District School Board, and Ontario Ministry of Health information on childhood vaccination. He noted that numerous cases have concluded that in-person classes are in the best interest of the child, and the need for vaccination in this context informs the best interest related to vaccination,

[28] Accordingly, I would apply the same analysis to COVID-19 vaccinations that the respondent mother asks me to apply to in-person school attendance. The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated.

[29] This analysis and conclusion is consistent with the approach taken by other courts addressing vaccinations prior to COVID-19: C.M.G. v. D.W.S., 2015 ONSC 2201, at para. 105; A.P. v. L.K., at para. 276; B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, at para. 180, aff’d B.C.J.B. v. E.-R.R.R., 2021 ONSC 6294, at paras. 49-53; Chambers v. Klapacz, 2020 ONSC 2717, at para. 7.
[30] The issue is not, as argued by the respondent mother, whether obtaining the vaccination is “crucial” to in-person attendance. That is not the legal test. The question is whether it is in the best interests of the child. Given the government statements above, there can be no dispute that, as a general presumption, it is in the best interest of eligible children to get vaccinated before they attend school in person.
The court in C.D. v. R.D. recently came to a similar conclusion with in-person education for children.
Relying on comparable public health statements, Justice Mackinnon also concluded in Saint-Phard v. Saint-Phard that it was in the child’s best interest to be vaccinated against COVID-19, ordering one of the parents not to provide the child with any information about COVID-19 contrary to what public health authorities have stated.
In this case, the parent opposing the vaccines attempted to rely on Chmiliar v. Chmiliar, but Justice Mackinnon distinguished it because it did not involve the COVID-19 vaccine, which arise in “an exceptional, time sensitive public health emergency generated by a virus which does have life and death consequences.”
There is a lot of information around COVID-19 vaccines online, and some of it is conflicting or even misleading. In this context, parents may attempt to argue that children are not able to understand the information, or reasonably foresee the consequences of being vaccinated or refusing vaccination.
Courts are not the arbiters of scientific disputes, and are unlikely to delve into these intricacies. Courts have taken judicial notice on the safety and efficacy of publicly funded vaccines, and admitted public health statements under the public documents’ exception to the hearsay rule.
In light of this, parents should not expect courts to intervene with attempts by a child to be vaccinated for COVID-19, and are likely to maintain the beneficial protection that the vaccine provides to those in the approved age groups.

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