After a year-and-a-half of COVID-19, there is still much adjusting to do for Canadians. The new sets of expectations around vaccinations and rules around vaccination requirements are part of the ever-evolving landscape and can be especially difficult to navigate for families with young children.

Right now, across Canada, children cannot be vaccinated if they are under 12. However, children above 12 and below 19 are still dependent children in Nova Scotia. Although Pfiezer has now applied to Health Canada to vaccinate children as young as 5 years old. This means parents are typically responsible for medical decisions to be made about those children. Since anyone above 12 is being encouraged to get their doses of an approved COVID-19 vaccine by the government, family law cases are now cropping up around the country demonstrating battles between parents who are divided over whether their children should be vaccinated.

The Saskatchewan Court of Queen’s Bench recently ruled, in the face of disagreement between a child’s parents, that it was in the best interests of the child to be vaccinated against the COVID-19 virus. [1] The father was allowed to vaccinate without the consent of the mother, who was opposed, as long as it was done in consultation with the child’s family physician and endocrinologist.

In that case, the court was presented with extensive volumes of affidavit and expert evidence from both sides. The Court was asked by the father to accept as fact that there was a Covid-19 pandemic, that a vaccination was protection against acquiring the virus, and that the Pfizer vaccine was safe and effective. The mother’s submissions to the court urged the opposite, based on the belief that the vaccine was experimental and potentially dangerous, and a general questioning of Covid-19 information disseminated by health authorities. The Court sided with the father.

A similar situation has been contemplated by the Superior Court in Quebec in two 2021 cases.[2] In two of the three cases above, the child had underlying health issues which one parent was concerned could be problematic if they were given the vaccine. In one, the child had Type-1 diabetes. In the other, the child was overweight. In each case, it was still determined that it was in the child’s best interests to receive the COVID-19 vaccine.

Outside of health concerns, an Ontario case recently decided that it was in the best interests of the children to be vaccinated because it would allow them to attend in-person school, and in-person as opposed to virtual learning has been shown to be in the best interests of the child.[3]

In the cases discussed above, the Court considered the child’s own wishes, however, they were not decisive.

There have not yet been any cases discussing these family law issues before a Court in Nova Scotia, or an Appeal Court in any province.

Lawyers at BOYNECLARKE LLP can help you navigate the legal issues of family law. If you are seeking legal advice, please call 902-469-9500 to schedule your consultation with a member of our Family Law team.

[1] OMS v EJS, 2021 SKQB 243.

[2] See DP v GM, 2021 QCCS 3582 and DH v MS, 2021 QCCS 2815.

[3] AC v LL, 2021 ONSC 6530.