For separated and divorced parents, the COVID-19 pandemic has greatly heightened the existing day-to-day challenges around raising children. New concerns have arisen around keeping children socially distanced while still maintaining established custody and access schedules. Many complicated issues arising in connection with the child’s upcoming return to their school (in some form or the other).
Although the pandemic has taken everyone by surprise, one thing is for certain:
Medical and science professionals around the globe are now working frantically to develop a safe and effective vaccine.
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This sparks a narrow and potentially-pressing legal issue. Which of two separated or divorced parents has the right to make the decision on whether or not to vaccinate their child against COVID-19? Especially in cases the parents do not agree on the merits or health benefits of vaccines in the first place.
Medical Decisions as Part of Custody Rights
In a typical separation/divorce scenario, the parents either agree or are ordered by the court for one of the parents to have custody. The other has access. In this context, “custody” refers not to physical “possession” of the child. Rather, it refers to the right to make day-to-day decisions that pertain to the child’s care and wellbeing.
A parent who has custody has the right to make the major decisions that affect the child. This includes major medical decisions. Conceptually, this can include the decision on whether to have the child vaccinated.
There is occasionally a sharp visceral divide betweem separated and divorced parents. Are vaccines helpful or harmful? This sometimes become one of many points of intense conflict between the parents. Even to the point where the court must settle the matter for them.
When Parents Cannot Agree
One of many available resolutions involves the court actually splitting out the decision-making authority on vaccines specifically. This is in order to place the responsibility squarely and solely in the hands of the parent it thinks will best promote the child’s health-related interests.
A very recent Ontario case called Tarkowski v. Lemieux. was a similar situation. The separated parents – who had not yet agreed on custody and access arrangements – were also at odds over whether to vaccinate their 7-year old child at all. The mother was adamantly against doing so. The parents asked the court to make a decision on this issue. This was part of its overall ruling on how responsibility and decision-making should be allocated between them going-forward.
After looking at the evidence and the child’s best interests, the court ultimately granted sole custody to the mother. There was specified access to the father. This meant the mother had sole parental decision-making on all issues relating to the child’s education, religion, health, and well-being.
Importantly however, the court carved out an exception as to the scope of the mother’s authority:
It gave the father the power to specifically decide whether the child would receive on-going vaccinations. It also included whether he would be vaccinated against COVID-19 if-and-when such a vaccine becomes available.
The court was satisfied with the quality of medical care the mother had been arranging for the child since the split. Although, it noted she had only reluctantly acquiesced to the recommendations of the child’s doctor as to vaccinations thus far. It also noted there were no veritable scientific studies proving vaccines were harmful, and that the Ontario and Canadian governments, together with the World Health Organization, all promoted the administering of vaccines as a matter of public health policy.
The child’s best interests are always the governing standard. The court preferred the father’s more balanced and rational approach to the issue. It was confident he should be the one to make the final decision if the parents could not agree in the future.
The court accordingly ruled that for this particular child, if a vaccine against COVID-19 becomes available the parents should try to decide jointly whether to vaccinate. This would ideally involve them consulting with medical health professionals and weighing the risks together.
However, if the mother refused to participate, or refused to consent to the child receiving the vaccine when objectively warranted, then the father would have the sole authority to decide the issue, and to give his consent. The same process was to be used for any other regularly-scheduled vaccinations that would arise in future during the child’s development.
Tailoring Your Separation Agreement
The contentiousness around whether vaccines are harmful is nothing new. But if you and your Ex want to avoid confrontation around the issue of your particular child’s vaccinations – and avoid a trip to court – the best way is to pro-actively include the topic in a separation agreement that you and your Ex negotiate. This pertains not merely to any upcoming COVID-19 vaccine, but rather to all vaccines and any discretion-based medical procedures that may arise in the course of childhood for particular child.
The court’s reasoning in cases like Tarkowski v. Lemieux provides a good starting-point for this discussion, since it sets the groundwork for the types of questions that you and your Ex will want to tackle, including the agreed sources for obtaining reliable medical advice that you both trust, as well the steps for resolving any stalemate between you.
Ideally, you will want to consult with both your preferred medical practitioner for health-based advice, and with an experienced Family Law lawyer who can draft a provision that sets out the steps, and properly allocates decision-making in the event of a dispute.
 2020 ONCJ 280 (CanLII), <http://canlii.ca/t/j870r>