The recent Health Canada approval of the Pfizer-BioNTech Covid-19 vaccine on November 19, 2021, comes as a welcome relief for many parents who have navigated their daily lives with trepidation due to their children's unvaccinated status. While most parents will queue up and embrace the opportunity to vaccinate their children, some will not. This hot button issue will likely dominate courtrooms across the country in the weeks and months to come.
The response by courts on Covid-19 vaccination for children in Ontario has been, unsurprisingly, not favourable to the anti-vaccine cohort. On October 18, 2021, Justice Mackinnon of the Superior Court of Ontario (Ottawa) released what is likely to be the first of many decisions surrounding the issue of parental decision-making for child vaccination and information sharing related to vaccination. In Saint-Phard v. Saint-Phard, 2021 ONSC 6910, both parents had joint (shared) decision-making of their soon-to-be 14-year-old son. The father, relying on public health guidelines and recommendations from the child's primary doctor, wanted his son to be vaccinated. The mother was opposed to vaccinating the child and furnished him with misleading information about the safety and efficacy of the vaccine: he ultimately changed his mind as a result.
The father relied heavily on statements by public health authorities in his submissions, including public statements by Dr. Tam, the Chief Officer of Health for Canada promoting the safety of Covid-19 vaccines for children ages 12-17, and their efficacy at preventing severe illness, hospitalization, and death. At the provincial level, the father relied on public statements by Dr. Kieran Moore, the Chief Medical Officer for Ontario, and the Ontario Covid-19 Science Advisory Table recommendations that children ages 12-17 be vaccinated. He also relied on a Notice published by the Ottawa Catholic District School Board endorsing the safety and necessity of vaccines for public health and the protection of students. The father also introduced a letter written by their son’s family doctor, Dr. Tchen, wherein she recommended that he receive two doses of the Pfizer Covid-19 vaccine and that vaccination would allow for more continuity in his in-person schooling.
The mother relied on the letter of an independent physician, Dr. O’Connor stating that the child should not receive the vaccine because of his asthma. The mother also cited anecdotal accounts of adverse vaccine reactions that she had heard from people within her community, which the Court found to be inadmissible hearsay. Her medical evidence relied on the conclusions of Dr. O’Connor, who believed that the vaccine was experimental and cited the potentially adverse effects of the vaccines on young men, including the rare instances of myocarditis.
Ultimately, Justice Mackinnon preferred the father's evidence as Dr. Tchen was the child’s primary care physician, had access to his medical records and first-hand knowledge of his asthma. Her Honour found that Dr. O’Connor’s conclusions lacked the support of medical or scientific evidence. Justice Mackinnon granted the father sole parental decision-making authority regarding his consent to vaccination and information-sharing related to the Covid-19 vaccine but did not order the child to be vaccinated. Her Honours words demonstrate the delicate straddling of parental decision-making and a child's consent to vaccination. In Ontario, the decision to be vaccinated rests on capacity, not parental consent. So long as the child understands information relevant to making decisions about their treatment and appreciates the consequences of their decision to be vaccinated, they have the requisite capacity to consent to or refuse a vaccine. While the father cannot decide whether his son gets vaccinated, he can ensure that the child receives objective information to enable informed decision-making.
The Court found that the mother prevented the child from making an informed decision about getting the vaccine because she influenced his decision with misinformation and discussions with Dr. O'Connor. Initially, the child told the lawyer representing him (an OCL lawyer) and his father that he wanted to be vaccinated. On the day before the hearing, the child abruptly changed his mind, stating that he was “13 and did not want to die” and that he would wait until 2023 when the vaccine was tested and a “full list” was available, which he could not explain when prompted by his lawyer. Justice Mackinnon prohibited the mother from suggesting that Covid-19 vaccinations are untested, unsafe, ineffective, or place the child at risk and from providing any form of online, social media, or other literature questioning the safety or efficacy of vaccines. She was also ordered not to bring the child to any doctor other than Dr. Tchen, the child’s primary care physician.
The role of judges taking judicial notice of public health recommendations and objective medical findings will likely continue to be a determinative factor in child vaccination litigation moving forward. Judges are permitted to take judicial notice (accept as evidence) of well-known or indisputable facts, streamlining the evidence-gathering process. Justice Mackinnon relied on several recent decisions, B.C.J.B. v. E.-R.R.R., 2021 ONSC 6294, A.P. v. L.K., 2021 ONSC 150, and A.C. v. L.L., 2021 ONSC 6530 wherein courts made findings based on taking judicial notice of the safety and efficacy of vaccines. Building on these decisions and adopting science-based public health statements will ease the evidentiary burden for parents who want their children to make an informed decision on whether to be vaccinated and create obstacles for parents who oppose vaccines without solid medical and scientific evidence.
Parental differences on child vaccination for Covid-19 will likely remain a battleground for parents and family lawyers in the coming months following the recent approval of vaccines for children ages 5-11. We would do well to continue reading decisions that rely on science, public health and medical experts, and good old-fashioned common sense. Perhaps these decisions will curb litigation on this issue altogether. Hope springs eternal.
December 5, 2021