Sep 28, 2020

COVID-19 Vaccines for Kids – Which Parent Gets to Decide?

Tarkowski v. Lemieux, 2020 ONCJ 280 (CanLII)

There is no end to the list of topics about which separated and divorcing parents can find themselves in dispute. Vaccinations – and the decision on whether or not to vaccinate a child against typical and preventable childhood diseases (such as measles, mumps and rubella) – is one of them. One parent may be pro-vaccine, the other may be firmly in the anti-vaccine camp.

The COVID-19 pandemic brings these kinds of parental disputes to the forefront. As scientists around the world scramble to come up with a vaccine, a difficult question looms on the horizon for parents who are a child separately: When a COVID-19 vaccine inevitably becomes available, which of them gets to decide whether their child should have it?

In most situations where one parent has court ordered sole custody of a child (and the other parent has access rights), the major day-to-day decisions about a child’s medical health and wellbeing are placed in that custodial parent’s hands.

However in a recent Ontario case called Tarkowski v. Lemieux, the court split-out the decision-making authority between the separated parents: It gave custody to the mother but gave the father express right to make the final decision on whether their 7-year old child gets vaccinated, including for COVID-19 if-and-when that vaccine becomes available.

The court noted the Canadian and worldwide public-policy in favour of vaccinations, and a distinct lack of verified scientific evidence to prove they were harmful. It chronicled the mother’s reluctant and often deceitful behaviour around getting their child vaccinated in the past, despite well-accepted medical advice around preventing common childhood diseases.

With a view to the child’s best interests, the court accordingly ruled the father was best-placed to make decisions on the child’s vaccinations, in light of his more reasonable views on the topic. Respecting a COVID-19 vaccine specifically, the court added:

VACCINATION ISSUE

Since the trial ended, a world health pandemic has been declared relating to the COVID-19 virus. …

It is generally accepted that the pandemic will only end when the population achieves “herd immunity”, either through wide exposure of the virus in the population or by the introduction of an effective vaccine which is accepted by the population. …

Should a vaccine against Covid-19 become available, these parents will have to decide whether [the child] should be vaccinated against it. Since children and young people often show little or no reaction to the virus, a decision to vaccinate a child may be informed by a public health concern that COVID-19 is a virus that is easily spread and which disproportionately harms older people, and people with challenged immune systems. Ultimately, a decision to vaccinate Avery may be a decision to protect other vulnerable people against [the child] spreading the disease. As any vaccine may pose some risk, and a new vaccine may pose unknown risks, it is imperative that [the child’s] parents receive the same advice on this issue from a medical health professional.

When and if such a vaccine becomes available, both parents should meet with the child’s doctor to discuss vaccination for [the child] against COVID-19. In the event that the mother refuses to attend this meeting with the father and the doctor, or, at the meeting, refuses to consent to the child being vaccinated, I am granting the father, as an incident of custody and access, the unilateral power to consent to [the child] being vaccinated against COVID-19. I am satisfied that he has no bias against vaccinations in general, and will be able to decide this issue on the advice he receives. If the father decides that the child should be vaccinated, and if the child’s regular doctor is prepared to administer the vaccination to the child, the father shall arrange with the child’s regular doctor … to administer the vaccination.

This same procedure should be adopted generally as the need for regularly scheduled vaccinations arise during [the child’s] childhood.

For the full text of the decision, see:

Tarkowski v. Lemieux, 2020 ONCJ 280

[This post by Russell Alexander first appeared on FamilyLLB.com on September 22, 2020]