Starting next week, school-aged kids will be eligible for the COVID-19 vaccine, leaving parents and guardians to decide whether their kids will get the shot or not.
Health Canada has authorized the Pfizer-BioNTech vaccine for children five and older and the BC Centre for Disease Control (BCCDC) recommends kids get it.
The question of jab or no jab becomes more complicated for folks who are co-parenting and disagree or have a child who objects to the COVID-19 vaccine.
Chantal Cattermole is a senior partner at Clark Wilson LLP, co-chair of the firm’s Family Law group and has been practising for 20 years. She is also a parent.
We caught up with her to find out what the courts have to say about the issue of kids and vaccines.
What follows is an edited version of that conversation.
Q: Let's say I am divorced, share custody and want to have the kids get the COVID-19, but the kids' dad is anti-vaccine. What would the courts say about this?
A: If you both have guardianship, with joint decision-making authority, then you would both make decisions in relation to the vaccine. You would follow whatever the dispute mechanism is in the parenting plan or court order. If you still can’t agree, the parent who wants it would have to bring an application before the court saying that it is in the child's best interest to be vaccinated.
The only test that the court looks to is what is in the best interest of the child.
Both parents would have to submit evidence as to why it is in the best interest of the child to have or not to have the vaccine. The case law that has been decided has been in Ontario and Saskatchewan and in both of those cases, the court determined it was in the best interest of the child, when weighing the medical evidence, for the child to be vaccinated.
The court will look to the federal and provincial health authorities, such as BC Centre for Disease Control, to see what their recommendations are, and the court would likely follow those recommendations.
Now that the Pfizer vaccine is approved for younger children and the BCCDC recommends parents vaccinate their children to keep them safe, co-parents in B.C. should be prepared for courts to conclude that the vaccination is in the best interest of their child.
Q: What if a parent says they will get their child vaccinated and doesn't or goes and gets it when there was an understanding they wouldn't?
A: Such an interesting question because you can't suck the vaccine back out, right?
If you do something contrary to a court order or contrary to an agreement, the other parent could seek ramifications against that person for breaching the agreement or the order.
Those ramifications can be fines, but more so, probably, the court is going to look and see if that person is doing things that are not in the best interest of the child to the point that it is unsafe for the child to be with that person.
Or does there need to be a change in that parent’s decision-making authority?
That is a pretty severe outcome and I don't know if ultimately you would be successful in removing decision-making authority entirely just if the child got the vaccine. I think the decision-making authority could be more limited perhaps, such that you are not allowed to make medical decisions going forward, and it is only the other parent who can do it.
Q: What does the law say about when kids can make their own decisions?
Section 17 of the Infants Act governs medical treatment and healthcare for children. The provision used to require that a child be 16 years old before they could provide consent but now does not dictate a minimum age. Instead, that section codifies the common law in that a child may consent to medical treatment on their own without a parent or guardian’s consent so long as that healthcare provider is confident that the treatment is in the child’s best interests and the child understands the details of the treatment, including its risks and benefits.
Q: What about step-parents? Do they get any say at all in this
A: Not really, no. Only if they are what is called "loco parentis,' meaning standing in place of a parent. Then, they could potentially have guardianship or decision-making authority. So can a grandparent or another relative. Under the Family Law Act, it doesn't just need to be a birth parent who can have guardianship rights.
Q: With approximately 350,000 children in B.C. eligible for the COVID-19 pediatric vaccine, do you think this will become a big issue between co-parents?
A: I think so. In my legal practice but also in my Parenting Co-ordination (PC) practice, for sure this issue has come up. It has come up on almost all of my PC files and when I act as legal counsel, and I think that is only going to increase. Of course, there are the hard-core anti-vaccine people. We all know about those folks and they disagree for lots of reasons that are larger than just COVID, I think. But in relation to COVID, a lot of why the disagreement is coming is because it is all so new and there is fear of the unknowns. At the root of it, no one wants to harm their child or do anything that could be potentially harmful to their child. So, I think there are a lot of people who are guarded and nervous. I am not so sure that is entirely wrong.
I just ultimately think that the court and the law are going to follow what the BCCDC says and look at each case individually and what is in the best interest of the child.