Who Decides Whether a Child Should be Vaccinated?

Is it the father? The mother? The child? The courts?

By Raman De Souza

A review of O.M.S. v E.J.S, 2023 SKCA 8 (CanLII)

The Saskatchewan Court of Appeal has recently ruled that it was in the best interest of the teenager not to be vaccinated per her wishes.

Like many high-conflict family law cases, the ongoing emotional rollercoaster and the back-and-forth banter between the parents as it relates to their children never truly ends.

In this case, the parent had been divorced since 2012 and following a drawn-out trial, in 2014 the parents were granted joint custody of their two children of the marriage, with the children residing primarily with the Mother, and exercising specified parenting time with the Father.

The Trial judge in 2014 stated that as for the medical care of the children, “both parents should abide by what is recommended by medical or professional caregivers as being in the interests of the children”. However, the trial judge also found that “there has to be a tie breaker” and, because the “final decision‑making authority with respect to education and medical matters rests with the [mother as the] primary residence parent”, the trial judge ordered that the mother have the final say if the parties could not agree.

One of the children of the marriage had Type 1 diabetes and the father wanted her to be vaccinated against COVID-19 because she was more at risk of severe infection. The mother and the father had opposing views on the public health authorities’ information about COVID-19.

In September 2021, the honourable Justice Michael Megaw ruled in favour of the father, ordering the teenager to be vaccinated against COVID-19. The mother appealed.

The outcome of the mother’s appeal is determined by the answers to three questions:

1. Did the Chambers judge err in concluding that the child’s physical safety, security and well-being would be served by receiving an approved Covid-19 vaccine?
2. Did the Chambers judge err by failing to account for the child’s emotional and psychological safety, security and well-being when considering whether to order that she be vaccinated against her wishes?
3. When proper account is taken of all relevant factors, is it in this child’s best interests that she be vaccinated?

The appeal court noted “it is not surprising that the Covid-19 pandemic provided an occasion for further disagreement”, however, found the Honourable Justice Megaw erred in law by failing to account for the teen’s emotional and psychological well-being. The father acknowledged that the child did not want to receive the vaccine. His position was that the child’s views had been guided by misinformation from the mother and his own parents, and that the child was therefore incapable of making an informed decision.

While the Honourable Justice Megaw did consider whether the teenager was situated to make an informed decision and weighed the vaccine’s effect on her physical health, the appeal court noted that under the Divorce Act, the court “shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.”

In this case, the child’s relationship with her father is already fraught. The evidence is such that if the child is to be vaccinated at the father’s insistence, it will damage that relationship further. That can be said with near certainty. The court must also weigh the possibility, if not the probability, that it will destroy the relationship completely, if not irretrievably, if the father forces a vaccination on the child. An order which might damage an already tenuous relationship with a parent presents a real risk of causing the very harm that orders made pursuant to the Divorce Act are meant to avoid.

The appeal court pointed out an incident where the teenager had “raised self-harm as a possibility after experiencing a perceived threat of bodily harm that she associated with the father”, and ruled that, “before a court can ignore completely the risk that the child might self-harm if forced to be vaccinated, it would have to be satisfied that the risk is not real or material.” The court further stated that “there is a risk, albeit small, that a forced vaccination may prompt this child to self-harm, and a much greater risk that it will cause other very real psychological and emotional harm to this child.”

Furthermore, the appeal court acknowledged that overruling the Honourable Justice Megaw’s decision might be seen as creating “the unfortunate risk” that allowing the mother’s appeal “will be seen by some as providing a reward to the providers of misinformation” and prompt others to act similarly. However, the appeal court says the focus is on this child’s best interests and we must ignore these broader concerns, except to the extent that they bear on what is right for this child.

For these reasons only, in the unique circumstances of this case, the Court of appeal ordered that this child should not be vaccinated against her expressed wishes.

Click here to read the full decision.