COVID-19 vaccines have been one of the most universally debated issues in recent months. Opposing views on the COVID-19 vaccines continue to persist, despite being two years into the pandemic and over a year since the vaccine was first approved for use in Canada.
When it comes to children, what happens when separated parents disagree on vaccinating a child against COVID-19?
The short answer is, if one parent is in favour of vaccinating a child against COVID-19, the child will likely be vaccinated, regardless of opposing views from the other parent, unless there is a valid medical reason not to vaccinate the child.
Current Approval for Children Aged 5-11 (as of February 2022)
Health Canada has approved the Pfizer-BioNTech Comirnaty vaccine for children ages 5 to 11. What this means is that clinical trials were completed on children ages 5 to 11 years of age and the medical evidence demonstrated that the vaccines are safe enough to be approved for that age group.
What the Courts are Saying – To Vaccinate or Not to Vaccinate A Child?
We are seeing a very clear trend out of the Ontario courts – if the medical professionals have determined that the vaccine is safe enough and will provide protection to children against COVID-19, then it is in a child’s best interest to be vaccinated.
In a recent case, A.C. v. L.L, 2021 ONSC 6530, heard by Justice Charney in the Ontario Superior Court of Justice, it was held that it is in the best interest of eligible children, in this case three 14-year-old triplets, to be vaccinated against COVID-19. One parent wanted the children to be vaccinated and the other parent was opposed to the children receiving the vaccine.
The court stated the following:
The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 [then approved ages] 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 court 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.
Is Consent of Both Parents Required to Vaccinate a Child?
Consent of one or both parents is not required if the child has capacity to consent to medical treatment.
Section 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2 (“HCCA”) states that an individual has capacity if they are “able to understand the information that is relevant to making a decision about the treatment, admission, or personal assistance service . . . and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”.
The HCCA does not set a minimum age for capacity to make treatment decisions.
The Consent Form published by the Ontario Ministry of Health, which is specifically for children aged 5-17, requires either consent from the child directly or consent of a substitute decision maker, which may be a parent. The Consent Form can be found here.
The Ontario Ministry of Health website confirms that if a child has the capacity to provide informed consent to be vaccinated, the child must provide consent to be vaccinated. However, the Ontario Ministry of Health goes on to say that in most cases of children from 5 to 11 years of age, parents will be required to provide consent on behalf of the child.
In A.C. v. L.L, 2021 ONSC 6530, the Court confirmed that when a child (defined as someone under the age of 18) is a “mature minor” and has capacity to provide consent under section 4 of the HCCA, that child can choose whether or not to receive the COVID-19 vaccine.
- It is in the best interests of children to receive the COVID-19 vaccine, according to Ontario courts.
- If your child is a mature minor and has the capacity to make an informed decision, the child can choose whether or not to receive the COVID-19 vaccine.
- Ontario Courts will not hesitate to make orders permitting children to be vaccinated.
If you need counsel regarding family law matters, the experienced team at SV Law can help you.
Please contact us here and a member of our specialized team will be in touch.
Written by Ashley Timm.
*This article does not constitute legal advice; always consult legal counsel.
The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.